Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No.

158298 August 11, 2010

ISIDRO ABLAZA, Petitioner, vs. REPUBLIC OF THE PHILIPPINES, Respondent. DECISION BERSAMIN, J.: Whether a person may bring an action for the declaration of the absolute nullity of the marriage of his deceased brother solemnized under the regime of the old Civil Code is the legal issue to be determined in this appeal brought by the petitioner whose action for that purpose has been dismissed by the lower courts on the ground that he, not being a party in the assailed marriage, had no right to bring the action. Antecedents On October 17, 2000, the petitioner filed in the Regional Trial Court (RTC) in Cataingan, Masbate a petition for the declaration of the absolute nullity of the marriage contracted on December 26, 1949 between his late brother Cresenciano Ablaza and Leonila Honato.1 The case was docketed as Special Case No. 117 entitled In Re: Petition for Nullification of Marriage Contract between Cresenciano Ablaza and Leonila Honato; Isidro Ablaza, petitioner. The petitioner alleged that the marriage between Cresenciano and Leonila had been celebrated without a marriage license, due to such license being issued only on January 9, 1950, thereby rendering the marriage void ab initio for having been solemnized without a marriage license. He insisted that his being the surviving brother of Cresenciano who had died without any issue entitled him to one-half of the real properties acquired by Cresenciano before his death, thereby making him a real party in interest; and that any person, himself included, could impugn the validity of the marriage between Cresenciano and Leonila at any time, even after the death of Cresenciano, due to the marriage being void ab initio.2 Ruling of the RTC On October 18, 2000, 3 the RTC dismissed the petition, stating: Considering the petition for annulment of marriage filed, the Court hereby resolved to DISMISS the petition for the following reasons: 1) petition is filed out of time (action had long prescribed) and 2) petitioner is not a party to the marriage (contracted between Cresenciano Ablaza and Leonila Nonato on December 26, 1949 and solemnized by Rev. Fr. Eusebio B. Calolot). SO ORDERED. The petitioner seasonably filed a motion for reconsideration, but the RTC denied the motion for reconsideration on November 14, 2000. Ruling of the Court of Appeals The petitioner appealed to the Court of Appeals (CA), assigning the lone error that: The trial court erred in dismissing the petition for being filed out of time and that the petitioner is not a party to the marriage. In its decision dated January 30, 2003,4 however, the CA affirmed the dismissal order of the RTC, thus:

While an action to declare the nullity of a marriage considered void from the beginning does not prescribe, the law nonetheless requires that the same action must be filed by the proper party, which in this case should be filed by any of the parties to the marriage. In the instant case, the petition was filed by Isidro Ablaza, a brother of the deceased-spouse, who is not a party to the marriage contracted by Cresenciano Ablaza and Leonila Honato. The contention of petitionerappellant that he is considered a real party in interest under Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as he stands to be benefited or injured by the judgment in the suit, is simply misplaced. Actions for annulment of marriage will not prosper if persons other than those specified in the law file the case. Certainly, a surviving brother of the deceased spouse is not the proper party to file the subject petition. More so that the surviving wife, who stands to be prejudiced, was not even impleaded as a party to said case. WHEREFORE, finding no reversible error therefrom, the Orders now on appeal are hereby AFFIRMED. Costs against the petitioner-appellant. SO ORDERED.5 Hence, this appeal. Issues The petitioner raises the following issues: I. WHETHER OR NOT THE DECISION OF THIS HONORABLE COURT OF APPEALS IN CA-G.R. CV. NO. 69684 AFFIRMING THE ORDER OF DISMISSAL OF THE REGIONAL TRIAL COURT, BRANCH 49 AT CATAINGAN, MASBATE IN SPECIAL PROCEEDING NO. 117 IS IN ACCORDANCE WITH APPLICABLE LAWS AND JURISPRUDENCE; II. WHETHER OR NOT THE DECISION OF THE HONORABLE COURT OF APPEALS IN CA-G.R. CV NO. 69684 (SHOULD) BE REVERSED BASED ON EXECUTIVE ORDER NO. 209 AND EXISTING JURISPRUDENCE. The issues, rephrased, boil down to whether the petitioner is a real party in interest in the action to seek the declaration of nullity of the marriage of his deceased brother. Ruling The petition is meritorious. A valid marriage is essential in order to create the relation of husband and wife and to give rise to the mutual rights, duties, and liabilities arising out of such relation. The law prescribes the requisites of a valid marriage. Hence, the validity of a marriage is tested according to the law in force at the time the marriage is contracted.6 As a general rule, the nature of the marriage already celebrated cannot be changed by a subsequent amendment of the governing law.7 To illustrate, a marriage between a stepbrother and a stepsister was void under the Civil Code, but is not anymore prohibited under the Family Code; yet, the intervening effectivity of the Family Code does not affect the void nature of a marriage between a stepbrother and a stepsister solemnized under the regime of the Civil Code. The Civil Code marriage remains void, considering that the validity of a marriage is governed by the law in force at the time of the marriage ceremony.8 Before anything more, the Court has to clarify the impact to the issue posed herein of Administrative Matter (A.M.) No. 0211-10-SC (Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages), which took effect on March 15, 2003. Section 2, paragraph (a), of A.M. No. 02-11-10-SC explicitly provides the limitation that a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or wife. Such limitation demarcates a line to distinguish between marriages covered by the Family Code and those solemnized under the regime of the Civil Code.9 Specifically, A.M. No. 02-11-10-SC extends only to marriages covered by the Family Code, which took effect on August 3,

1988, but, being a procedural rule that is prospective in application, is confined only to proceedings commenced after March 15, 2003.10 Based on Carlos v. Sandoval,11 the following actions for declaration of absolute nullity of a marriage are excepted from the limitation, to wit: 1. Those commenced before March 15, 2003, the effectivity date of A.M. No. 02-11-10-SC; and 2. Those filed vis--vis marriages celebrated during the effectivity of the Civil Code and, those celebrated under the regime of the Family Code prior to March 15, 2003. Considering that the marriage between Cresenciano and Leonila was contracted on December 26, 1949, the applicable law was the old Civil Code, the law in effect at the time of the celebration of the marriage. Hence, the rule on the exclusivity of the parties to the marriage as having the right to initiate the action for declaration of nullity of the marriage under A.M. No. 02-11-10-SC had absolutely no application to the petitioner. The old and new Civil Codes contain no provision on who can file a petition to declare the nullity of a marriage, and when. Accordingly, in Nial v. Bayadog,12 the children were allowed to file after the death of their father a petition for the declaration of the nullity of their fathers marriage to their stepmother contracted on December 11, 1986 due to lack of a marriage license. There, the Court distinguished between a void marriage and a voidable one, and explained how and when each might be impugned, thuswise: Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the nullity of a marriage. "A void marriage does not require a judicial decree to restore the parties to their original rights or to make the marriage void but though no sentence of avoidance be absolutely necessary, yet as well for the sake of good order of society as for the peace of mind of all concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction." "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. 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 and such absolute nullity can be based only on a final judgment to that effect. For the same reason, the law makes either the action or defense for the declaration of absolute nullity of marriage imprescriptible. 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. 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.13 It is clarified, however, that the absence of a provision in the old and new Civil Codes cannot be construed as giving a license to just any person to bring an action to declare the absolute nullity of a marriage. According to Carlos v. Sandoval,14 the plaintiff must still be the party who stands to be benefited by the suit, or the party entitled to the avails of the suit, for it is basic in procedural law that every action must be prosecuted and defended in the name of the real party in interest.15 Thus, only the party who can demonstrate a "proper interest" can file the action.16 Interest within the meaning of the rule means material interest, or an interest in issue to be affected by the decree or judgment of the case, as distinguished from mere curiosity about the question involved or a mere incidental interest. One having no material interest to protect cannot invoke the jurisdiction of the court as plaintiff in an action. When the plaintiff is not the real party in interest, the case is dismissible on the ground of lack of cause of action.17 Here, the petitioner alleged himself to be the late Cresencianos brother and surviving heir. Assuming that the petitioner was as he claimed himself to be, then he has a material interest in the estate of Cresenciano that will be adversely

affected by any judgment in the suit. Indeed, a brother like the petitioner, albeit not a compulsory heir under the laws of succession, has the right to succeed to the estate of a deceased brother under the conditions stated in Article 1001 and Article 1003 of the Civil Code, as follows: Article 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one half of the inheritance and the brothers and sisters or their children to the other half. Article 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. Pursuant to these provisions, the presence of descendants, ascendants, or illegitimate children of the deceased excludes collateral relatives like the petitioner from succeeding to the deceaseds estate.18 Necessarily, therefore, the right of the petitioner to bring the action hinges upon a prior determination of whether Cresenciano had any descendants, ascendants, or children (legitimate or illegitimate), and of whether the petitioner was the late Cresencianos surviving heir. Such prior determination must be made by the trial court, for the inquiry thereon involves questions of fact. As can be seen, both the RTC and the CA erroneously resolved the issue presented in this case. We reverse their error, in order that the substantial right of the petitioner, if any, may not be prejudiced. Nevertheless, we note that the petitioner did not implead Leonila, who, as the late Cresencianos surviving wife,19 stood to be benefited or prejudiced by the nullification of her own marriage. It is relevant to observe, moreover, that not all marriages celebrated under the old Civil Code required a marriage license for their validity;20 hence, her participation in this action is made all the more necessary in order to shed light on whether the marriage had been celebrated without a marriage license and whether the marriage might have been a marriage excepted from the requirement of a marriage license. She was truly an indispensable party who must be joined herein: xxx under any and all conditions, [her] presence being a sine qua non for the exercise of judicial power.1avvphi1 It is precisely "when an indispensable party is not before the court [that] the action should be dismissed." The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.21 We take note, too, that the petitioner and Leonila were parties in C.A.-G.R. CV No. 91025 entitled Heirs of Cresenciano Ablaza, namely: Leonila G. Ablaza and Leila Ablaza Jasul v. Spouses Isidro and Casilda Ablaza, an action to determine who between the parties were the legal owners of the property involved therein. Apparently, C.A.-G.R. CV No. 91025 was decided on November 26, 2009, and the petitioners motion for reconsideration was denied on June 23, 2010. As a defendant in that action, the petitioner is reasonably presumed to have knowledge that the therein plaintiffs, Leonila and Leila, were the wife and daughter, respectively, of the late Cresenciano. As such, Leila was another indispensable party whose substantial right any judgment in this action will definitely affect. The petitioner should likewise implead Leila. The omission to implead Leonila and Leila was not immediately fatal to the present action, however, considering that Section 11,22 Rule 3, Rules of Court, states that neither misjoinder nor non-joinder of parties is a ground for the dismissal of an action. The petitioner can still amend his initiatory pleading in order to implead her, for under the same rule, such amendment to implead an indispensable party may be made "on motion of any party or on (the trial courts) own initiative at any stage of the action and on such terms as are just." WHEREFORE, the petition for review on certiorari is granted. We reverse and set aside the decision dated January 30, 2003 rendered by the Court of Appeals. Special Case No. 117 entitled In Re: Petition for Nullification of Marriage Contract between Cresenciano Ablaza and Leonila Honato; Isidro Ablaza, petitioner, is reinstated, and its records are returned to the Regional Trial Court, Branch 49, in Cataingan, Masbate, for further proceedings, with instructions to first require the petitioner to amend his initiatory pleading in order to implead Leonila Honato and her daughter Leila Ablaza Jasul as parties-defendants; then to determine whether the late Cresenciano Ablaza had any ascendants, descendants, or children (legitimate or illegitimate) at the time of his death as well as whether the petitioner was the brother and surviving heir of the late Cresenciano Ablaza entitled to succeed to the estate of said deceased; and thereafter to proceed accordingly.

No costs of suit. SO ORDERED. LUCAS P. BERSAMIN Associate Justice WE CONCUR: CONCHITA CARPIO MORALES Associate Justice Chairperson ARTURO D. BRION Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. CONCHITA CARPIO MORALES Associate Justice Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Chief Justice ROBERTO A. ABAD* Associate Justice

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION G.R. No. 186400 October 20, 2010

CYNTHIA S. BOLOS, Petitioner, vs. DANILO T. BOLOS, Respondent. DECISION MENDOZA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking a review of the December 10, 2008 Decision1 of the Court of Appeals (CA) in an original action for certiorari under Rule 65 entitled "Danilo T. Bolos v. Hon. Lorifel Lacap Pahimna and Cynthia S. Bolos," docketed as CA-G.R. SP. No. 97872, reversing the January 16, 2007 Order of the Regional Trial Court of Pasig City, Branch 69 (RTC), declaring its decision pronouncing the nullity of marriage between petitioner and respondent final and executory. On July 10, 2003, petitioner Cynthia Bolos (Cynthia) filed a petition for the declaration of nullity of her marriage to respondent Danilo Bolos (Danilo) under Article 36 of the Family Code, docketed as JDRC No. 6211. After trial on the merits, the RTC granted the petition for annulment in a Decision, dated August 2, 2006, with the following disposition: WHEREFORE, judgment is hereby rendered declaring the marriage between petitioner CYNTHIA S. BOLOS and respondent DANILO T. BOLOS celebrated on February 14, 1980 as null and void ab initio on the ground of psychological incapacity on the part of both petitioner and respondent under Article 36 of the Family Code with all the legal consequences provided by law. Furnish the Local Civil Registrar of San Juan as well as the National Statistics Office (NSO) copy of this decision. SO ORDERED.2 A copy of said decision was received by Danilo on August 25, 2006. He timely filed the Notice of Appeal on September 11, 2006. In an order dated September 19, 2006, the RTC denied due course to the appeal for Danilos failure to file the required motion for reconsideration or new trial, in violation of Section 20 of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. On November 23, 2006, a motion to reconsider the denial of Danilos appeal was likewise denied. On January 16, 2007, the RTC issued the order declaring its August 2, 2006 decision final and executory and granting the Motion for Entry of Judgment filed by Cynthia. Not in conformity, Danilo filed with the CA a petition for certiorari under Rule 65 seeking to annul the orders of the RTC as they were rendered with grave abuse of discretion amounting to lack or in excess of jurisdiction, to wit: 1) the September 19, 2006 Order which denied due course to Danilos appeal; 2) the November 23, 2006 Order which denied the motion to reconsider the September 19, 2006 Order; and 3) the January 16, 2007 Order which declared the August 2, 2006 decision as final and executory. Danilo also prayed that he be declared psychologically capacitated to render the essential marital obligations to Cynthia, who should be declared guilty of abandoning him, the family home and their children. As earlier stated, the CA granted the petition and reversed and set aside the assailed orders of the RTC. The appellate court stated that the requirement of a motion for reconsideration as a prerequisite to appeal under A.M. No. 02-11-10-SC did not apply in this case as the marriage between Cynthia and Danilo was solemnized on February 14, 1980 before the Family Code took effect. It relied on the ruling of this Court in Enrico v. Heirs of Sps. Medinaceli3 to the effect that the "coverage [of A.M. No. 02-11-10-SC] extends only to those marriages entered into during the effectivity of the Family Code which took effect on August 3, 1988."

Cynthia sought reconsideration of the ruling by filing her Manifestation with Motion for Extension of Time to File Motion for Reconsideration and Motion for Partial Reconsideration [of the Honorable Courts Decision dated December 10, 2008]. The CA, however, in its February 11, 2009 Resolution,4 denied the motion for extension of time considering that the 15day reglementary period to file a motion for reconsideration is non-extendible, pursuant to Section 2, Rule 40, 1997 Rules on Civil Procedure citing Habaluyas v. Japson, 142 SCRA 208. The motion for partial reconsideration was likewise denied. Hence, Cynthia interposes the present petition via Rule 45 of the Rules of Court raising the following ISSUES I THE COURT OF APPEALS GRAVELY ERRED IN ISSUING THE QUESTIONED DECISION DATED DECEMBER 10, 2008 CONSIDERING THAT: A. THE PRONOUNCEMENT OF THE HONORABLE COURT IN ENRICO V. SPS. MEDINACELI IS NOT APPLICABLE TO THE INSTANT CASE CONSIDERING THAT THE FACTS AND THE ISSUE THEREIN ARE NOT SIMILAR TO THE INSTANT CASE. B. ASSUMING ARGUENDO THAT THE PRONOUNCEMENT OF THE HONORABLE COURT IS APLLICABLE TO THE INSTANT CASE, ITS RULING IN ENRICO V. SPS. MEDINACELI IS PATENTLY ERRONEOUS BECAUSE THE PHRASE "UNDER THE FAMILY CODE" IN A.M. NO. 02-11-10-SC PERTAINS TO THE WORD "PETITIONS" RATHER THAN TO THE WORD "MARRIAGES." C. FROM THE FOREGOING, A.M. NO. 02-11-10-SC ENTITLED "RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES" IS APPLICABLE TO MARRIAGES SOLEMNIZED BEFORE THE EFFECTIVITY OF THE FAMILY CODE. HENCE, A MOTION FOR RECONSIDERATION IS A PRECONDITION FOR AN APPEAL BY HEREIN RESPONDENT. D. CONSIDERING THAT HEREIN RESPONDENT REFUSED TO COMPLY WITH A PRECONDITION FOR APPEAL, A RELAXATION OF THE RULES ON APPEAL IS NOT PROPER IN HIS CASE. II THE COURT OF APPEALS GRAVELY ERRED IN ISSUING THE QUESTIONED RESOLUTION DATED FEBRUARY 11, 2009 CONSIDERING THE FOREGOING AND THE FACTUAL CIRCUMSTANCES OF THIS CASE. III THE TENETS OF JUSTICE AND FAIR PLAY, THE NOVELTY AND IMPORTANCE OF THE ISSUE AND THE SPECIAL CIRCUMSTANCES IN THIS CASE JUSTIFY AND WARRANT A LIBERAL VIEW OF THE RULES IN FAVOR OF THE PETITIONER. MOREOVER, THE INSTANT PETITION IS MERITORIOUS AND NOT INTENDED FOR DELAY.5 From the arguments advanced by Cynthia, the principal question to be resolved is whether or not A.M. No. 02-11-10-SC entitled "Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages," is applicable to the case at bench. Petitioner argues that A.M. No. 02-11-10-SC is also applicable to marriages solemnized before the effectivity of the Family Code. According to Cynthia, the CA erroneously anchored its decision to an obiter dictum in the aforecited Enrico case, which did not even involve a marriage solemnized before the effectivity of the Family Code. She added that, even assuming arguendo that the pronouncement in the said case constituted a decision on its merits, still the same cannot be applied because of the substantial disparity in the factual milieu of the Enrico case from this case. In the said case, both the marriages sought to be declared null were solemnized, and the action for declaration of nullity was filed, after the effectivity of both the Family Code in 1988 and of A.M. No. 02-11-10-SC in 2003. In this case, the

marriage was solemnized before the effectivity of the Family Code and A.M. No. 02-11-10-SC while the action was filed and decided after the effectivity of both. Danilo, in his Comment,6 counters that A.M. No. 02-11-10-SC is not applicable because his marriage with Cynthia was solemnized on February 14, 1980, years before its effectivity. He further stresses the meritorious nature of his appeal from the decision of the RTC declaring their marriage as null and void due to his purported psychological incapacity and citing the mere "failure" of the parties who were supposedly "remiss," but not "incapacitated," to render marital obligations as required under Article 36 of the Family Code. The Court finds the petition devoid of merit. Petitioner insists that A.M. No. 02-11-10-SC governs this case. Her stance is unavailing. The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages as contained in A.M. No. 02-11-10-SC which the Court promulgated on March 15, 2003, is explicit in its scope. Section 1 of the Rule, in fact, reads: Section 1. Scope This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of the Philippines. The Rules of Court shall apply suppletorily. The categorical language of A.M. No. 02-11-10-SC leaves no room for doubt. The coverage extends only to those marriages entered into during the effectivity of the Family Code which took effect on August 3, 1988.7 The rule sets a demarcation line between marriages covered by the Family Code and those solemnized under the Civil Code.8 The Court finds Itself unable to subscribe to petitioners interpretation that the phrase "under the Family Code" in A.M. No. 02-11-10-SC refers to the word "petitions" rather than to the word "marriages." A cardinal rule in statutory construction is that when the law is clear and free from any doubt or ambiguity, there is no room for construction or interpretation. There is only room for application.9 As the statute is clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. This is what is known as the plain-meaning rule or verba legis. It is expressed in the maxim, index animi sermo, or "speech is the index of intention." Furthermore, there is the maxim verba legis non est recedendum, or "from the words of a statute there should be no departure."10 There is no basis for petitioners assertion either that the tenets of substantial justice, the novelty and importance of the issue and the meritorious nature of this case warrant a relaxation of the Rules in her favor. Time and again the Court has stressed that the rules of procedure must be faithfully complied with and should not be discarded with the mere expediency of claiming substantial merit.11 As a corollary, rules prescribing the time for doing specific acts or for taking certain proceedings are considered absolutely indispensable to prevent needless delays and to orderly and promptly discharge judicial business. By their very nature, these rules are regarded as mandatory.12 The appellate court was correct in denying petitioners motion for extension of time to file a motion for reconsideration considering that the reglementary period for filing the said motion for reconsideration is non-extendible. As pronounced in Apex Mining Co., Inc. v. Commissioner of Internal Revenue, 13 The rule is and has been that the period for filing a motion for reconsideration is non-extendible. The Court has made this clear as early as 1986 in Habaluyas Enterprises vs. Japzon. Since then, the Court has consistently and strictly adhered thereto.1avvphil Given the above, we rule without hesitation that the appellate courts denial of petitioners motion for reconsideration is justified, precisely because petitioners earlier motion for extension of time did not suspend/toll the running of the 15-day reglementary period for filing a motion for reconsideration. Under the circumstances, the CA decision has already attained finality when petitioner filed its motion for reconsideration. It follows that the same decision was already beyond the review jurisdiction of this Court. In fine, the CA committed no reversible error in setting aside the RTC decision which denied due course to respondents appeal and denying petitioners motion for extension of time to file a motion for reconsideration.

Appeal is an essential part of our judicial system. Its purpose is to bring up for review a final judgment of the lower court. The courts should, thus, proceed with caution so as not to deprive a party of his right to appeal.14 In the recent case of Almelor v. RTC of Las Pinas City, Br. 254,15 the Court reiterated: While the right to appeal is a statutory, not a natural right, nonetheless it is an essential part of our judicial system and courts should proceed with caution so as not to deprive a party of the right to appeal, but rather, ensure that every party-litigant has the amplest opportunity for the proper and just disposition of his cause, free from the constraints of technicalities. In the case at bench, the respondent should be given the fullest opportunity to establish the merits of his appeal considering that what is at stake is the sacrosanct institution of marriage. No less than the 1987 Constitution recognizes marriage as an inviolable social institution. This constitutional policy is echoed in our Family Code. Article 1 thereof emphasizes its permanence and inviolability, thus: Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. This Court is not unmindful of the constitutional policy to protect and strengthen the family as the basic autonomous social institution and marriage as the foundation of the family.16 Our family law is based on the policy that marriage is not a mere contract, but a social institution in which the State is vitally interested. The State finds no stronger anchor than on good, solid and happy families. The break up of families weakens our social and moral fabric and, hence, their preservation is not the concern alone of the family members.17 WHEREFORE, the petition is DENIED. SO ORDERED. JOSE CATRAL MENDOZA Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice Chairperson ANTONIO EDUARDO B. NACHURA Associate Justice TERESITA J. LEONARDO-DE CASTRO* Associate Justice

DIOSDADO M. PERALTA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA Chief Justice

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

A.M. No. P-94-1054

March 11, 2003

EDWIN A. ACEBEDO, petitioner, vs. EDDIE P. ARQUERO, respondent. CARPIO MORALES, J.: By letter-complaint1 dated June 1, 1994, Edwin A. Acebedo charged Eddie P. Arquero, Process Server of the Municipal Trial Court (MTC) of Brooke's Point, Palawan for immorality. Complainant alleged that his wife, Dedje Irader Acebedo, a former stenographer of the MTC Brooke's Point, and respondent unlawfully and scandalously cohabited as husband and wife at Bancudo Pulot, Brooke's Point, Palawan as a result of which a girl, Desiree May Irader Arquero, was born to the two on May 21, 1989. Attached to the letter-complaint was the girl's Baptismal Certificate2 reflecting the names of respondent and Dedje Irader as her parents. Also attached to the letter-complaint was a copy of a marriage contract 3 showing that complainant and Dedje Irader contracted marriage on July 10, 1979. By Resolution of September 7, 1994, this Court required respondent to file an answer to the complaint.4 By his Answer5 of October 6, 1994, respondent vehemently denied the charge of immorality, claiming that it is "just a (sic) mere harassment and a product of complainant's hatred and extreme jealousy to (sic) his wife."6 Attached to the answer were the September 27, 1987 affidavit of desistance7 executed by complainant in favor of his wife with respect to an administrative complaint he had much earlier filed against her, and complainant's sworn statement8 dated September 13, 1994 acknowledging paternity of a child born out of wedlock, which documents, respondent claims, support his contention that the complaint filed against him is but a malicious scheme concocted by complainant to harass him. Additionally, respondent claimed that sometime in 1991, complainant likewise instituted a criminal complaint against him for "adultery" which was, however, dismissed after preliminary investigation. Finally, respondent claimed that complainant himself had been cohabiting with another woman. By Resolution of February 6, 1995, this Court referred the case to then Executive Judge Filomeno A. Vergara of the Regional Trial Court of Puerto Princesa, Palawan for investigation, report and recommendation.9 Judge Vergara having retired during the pendency of the investigation, the case was referred to Executive Judge Nelia Y. Fernandez who was, by Resolution of August 16, 2000, directed by this Court to (1) verify the authenticity of the marriage certificate and baptismal certificate submitted by complainant; (2) conduct an investigation as to the information contained in the said baptismal certificate and the circumstances under which it was issued, and such other verifiable matters relevant to the charge; and (3) submit her report and recommendation thereon.10 In her Investigation Report of February 12, 2001, Judge Fernandez recommends that the complaint be dismissed for failure to adduce adequate evidence to show that respondent is guilty of the charge.11 The report focuses on the nonappearance of complainant and Dedje Irader Acebedo, thusly: xxx xxx xxx

Having appeared that the complainant Edwin Acebedo and Dedjie Irader who per reliable information cannot be notified for reason that subject persons are no longer residing in their given address and their whereabouts is unknown as shown by the return of the subpoena dated November 7, 2000, and the inadmissibility of the baptismal certificate alleging therein that the father of Desiree Arquero is the respondent herein, and for the reason that the same had not been testified to by Dedje Irader who is the informant of the entries contained therein, this Court had not received adequate proof or relevant evidence to support a conclusion that respondent herein could be held liable of the charge imputed against him, hence, he should be absolved from any liability. xxx xxx xxx12 (Quoted verbatim).

By Resolution of April 25, 2001, this Court referred the case to the Office of the Court Administrator (OCA) for evaluation, report and recommendation.

By Memorandum of December 12, 2001, the OCA, disagreeing with the recommendation of the Investigating Judge that the case should be dismissed, recommends that respondent be held guilty of immorality and that he be suspended from office for a period of one (1) year without pay.13 Thus the OCA ratiocinates: . . . [R]espondent admitted the fact that for eight (8) to nine (9) months, he a single man maintained relations with Dedje Irader Acebedo, wife of herein complainant, attended with "sexual union" (TSN dated 23 November 2000, pp. 14-15). Based on his testimony, we observed that respondent justified his having a relationship with Dedje I. Acebedo solely on the written document purportedly a "Kasunduan" or agreement entered into by complainant and his wife, consenting to and giving freedom to either of them to seek any partner and to live with him or her. Being a court employee respondent should have known that said agreement was void despite it having been notarized. Even granting that Dedjie I. Acebedo was separated from her husband during their short lived relation, to hold on to said scandalous agreement and enter an immoral relationship with a very much married woman and a co-court employee at that is highly improper. It is contrary to the Code of Conduct and Ethical Standards of Public Officials and Employees which provides that public employees of which respondent is one, . . . "shall at all times (sic) respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. Moreover, respondent cannot seek refuge and "sling mud" at complainant for having executed an Affidavit dated September 13, 1994, acknowledging that he bore a woman other than his wife, a child. It would seem that respondent would want to apply the principle of in pari delicto in the instant case. Respondent would have it appear that a married man with an extra-marital relation and an illegitimate child is precluded from complaining if his wife enters into a relationship with another man. Second, the records show that an Affidavit of Desistance was executed by herein complainant. However, a cursory reading of said document reveals that it favors only Dedje Irader Acebedo and not herein respondent. Interestingly, the date of said affidavit is 2 September 1987. Respondent had the temerity to claim it as evidence in his favor when the instant complaint was only filed sometime in 1994. Third, when respondent was asked by the investigating judge if he attended the baptism of the daughter of Dedje Irader Acebedo, his former co-employee and ex-intimate friend, he answered, "I did not. I'm not sure the child is mine". From his answer, we could infer that respondent did not categorically rule out the possibility that said child might be her (sic) daughter, only that he is doubtful of her paternity. xxx xxx xxx14 (Emphasis supplied; underscoring in the original)

While the complainant appears to have lost interest in the prosecution of the present case, the same does not ipso facto warrant its dismissal. Once administrative charges have been filed, this Court may not be divested of its jurisdiction to investigate and ascertain the truth thereof.15 For it has an interest in the conduct of those in the service of the Judiciary and in improving the delivery of justice to the people, and its efforts in the direction may not be derailed by the complainant's desistance from prosecuting the case he initiated.16 On the merits of the case, the entry of respondent's name as father in the baptismal certificate of Desiree May I. Arquero cannot be used to prove for her filiation and, therefore, cannot be availed of to imply that respondent maintained illicit relations with Dedje Irader Acebedo. A canonical certificate is conclusive proof only of the baptism administered, in conformity with the rites of the Catholic Church by the priest who baptized the child, but it does not prove the veracity of the declarations and statements contained therein which concern the relationship of the person baptized.17 It merely attests to the fact which gave rise to its issue, and the date thereof, to wit, the fact of the administration of the sacrament on the date stated, but not the truth of the statement therein as to the percentage of the child baptized.18 By respondent's own admission, however, he had an illicit relationship with complainant's wife: Q: During the formal offer of the possible nature of your testimony before the Court by your counsel, did the Court get it correct that there has been a short lived relation between you and Dedgie Irader, am I correct in my impression? A: During that time that I have heard she and her husband have parted ways already, I joking informed her that she is now being separated, she is now single and is free to have some commitment. So, I courted her and she accepted me, so we have a short lived relation and after that we parted ways. Q: For how long was this short lived relation you made mention a while ago?

A:

May be (sic) about eight (8) to nine (9) months.

Q: When you said you have (sic) a short lived relationship from 8 to 9 months, you mean to tell the Court that you have (sic) a sexual union with this woman? A: Yes ma'am.19 (Emphasis and underscoring supplied).

Respondent justified his pursuing a relationship with complainant's wife with the spouses having priorly entered into a settlement with respect to their marriage which was embodied in a "Kasunduan", the pertinent portions of which are reproduced hereunder: Kami, EDWIN AGUINALDO ACEBEDO at DEDJE IRADER ACEBEDO, may sapat na taong gulang, mag-asawa, Pilipino, at kasalukuyang nakatira sa Poblacion, Broke's (sic) Point, Palawan, ay malayang nagkasundo ng mga sumusunod: 1. Na, yayamang hindi kami magkasundo bilang mag-asawa, at magiging miserable lamang ang aming mga buhay kung aming ipagpapatuloy pa ang aming pagsasama bilang mag-asawa, kami ay malayang nagkasundo ngayon na maghiwalay na bilang mag-asawa, at ang bawat isa sa amin ay may kalayaan na humanap na ng kaniyang makakasama sa buhay bilang asawa at hindi kami maghahabol sa isat isa sa alin pa mang hukuman; xxx xxx xxx20 (Italics supplied)

Respondent's justification fails. Being an employee of the judiciary, respondent ought to have known that the Kasunduan had absolutely no force and effect on the validity of the marriage between complainant and his wife. Article 1 of the Family Code provides that marriage is "an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation." It is an institution of public order or policy, governed by rules established by law which cannot be made inoperative by the stipulation of the parties.21 Republic Act 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, enunciates the State's policy of promoting a high standard of ethics and utmost responsibility in the public service.22 Although every office in the government service is a public trust, no position exacts a greater demand for moral righteousness and uprightness from an individual than in the judiciary.23 That is why this Court has firmly laid down exacting standards morality and decency expected of those in the service of the judiciary.24 Their conduct, not to mention behavior, is circumscribed with the heavy burden of responsibility,25 characterized by, among other things, propriety and decorum so as to earn and keep the public's respect and confidence in the judicial service.26 It must be free from any whiff of impropriety, not only with respect to their duties in the judicial branch but also to their behaviour outside the court as private individuals.27 There is no dichotomy of morality; court employees are also judged by their private morals.28 Respondent's act of having illicit relations with complainant's wife is, within the purview of Section 46(5) of Subtitle A, Title I, Book V of Executive Order No. 292, otherwise known as the Administrative Code of 1987, a disgraceful and immoral conduct. Under Rule IV, Section 52A(15) of the Revised Uniform Rules on Administrative Cases in the Civil Service, an immoral conduct is classified as a grave offense which calls for a penalty of suspension for six (6) months and one (1) day to one (1) year for the first offense, and dismissal is imposed for the second offense. Since the present charge of immorality against respondent constitutes his first offense, his suspension for six (6) months and one (1) day is in order. WHEREFORE, this Court finds respondent Eddie P. Arquero, Process Server of the Municipal Trial Court of Brooke's Point, Palawan, GUILTY of immorality, for which he is hereby SUSPENDED for six (6) months and one (1) day without pay with a STERN WARNING that commission of the same or similar acts shall be dealt with severely. Let a copy of this decision be filed in the personal record of respondent. SO ORDERED. Puno, Panganiban, Sandoval-Gutierrez and Corona, JJ ., concur.

Republic of the Philippines SUPREME COURT Baguio City THIRD DIVISION G.R. No. 136921 April 17, 2001

LORNA GUILLEN PESCA, petitioner vs. ZOSIMO A PESCA, respondent. VITUG, J.: Submitted for review is the decision of the Court of Appeals, promulgated on 27 May 1998, in C.A. G.R. CV. No. 52374, reversing the decision of the Regional Trial Court ("RTC") of Caloocan City, Branch 130, which has declared the marriage between petitioner and respondent to be null and void ab initio on the ground of psychological incapacity on the part of respondent. Petitioner Lorna G. Pesca and respondent Zosimo A. Pesca first met sometime in 1975 while on board an inter-island vessel bound for Bacolod City. After a whirlwind courtship, they got married on 03 March 1975. Initially, the young couple did not live together as petitioner was still a student in college and respondent, a seaman, had to leave the country on board an ocean-going vessel barely a month after the marriage. Six months later, the young couple established their residence in Quezon City until they were able to build their own house in Caloocan City where they finally resided. It was blissful marriage for the couple during the two months of the year that they could stay together - when respondent was on vacation. The union begot four children, 19-year old Ruhem, 17-year old Rez, 11-year old Ryan, and 9-year old Richie. It started in 1988, petitioner said, when she noticed that respondent surprisingly showed signs of "psychological incapacity" to perform his marital covenant. His "true color" of being an emotionally immature and irresponsible husband became apparent. He was cruel and violent. He was a habitual drinker, staying with friends daily from 4:00 o'clock in the afternoon until 1:00 o'clock in the morning. When cautioned to stop or, to at least, minimize his drinking, respondent would beat, slap and kick her. At one time, he chased petitioner with a loaded shotgun and threatened to kill her in the presence of the children. The children themselves were not spared from physical violence. Finally, on 19 November 1992, petitioner and her children left the conjugal abode to live in the house of her sister in Quezon City as they could no longer bear his violent ways. Two months later, petitioner decided to forgive respondent, and she returned home to give him a chance to change. But, to her dismay, things did not so turn out as expected. Indeed, matters became worse. On the morning of 22 March 1994, about eight o'clock, respondent assaulted petitioner for about half an hour in the presence of the children. She was battered black and blue. She submitted herself to medical examination at the Quezon City General Hospital, which diagnosed her injuries as contusions and abrasions. Petitioner filed a complaint with the barangay authorities, and a case was filed against respondent for slight physical injuries. He was convicted by the Metropolitan Trial Court of Caloocan City and sentenced to eleven days of imprisonment. This time, petitioner and her children left the conjugal home for good and stayed with her sister. Eventually, they decided to rent an apartment. Petitioner sued respondent before the Regional Trial Court for the declaration of nullity of their marriage invoking psychological incapacity. Petitioner likewise sought the custody of her minor children and prayed for support pendente lite . Summons, together with a copy of the complaint, was served on respondent on 25 April 1994 by personal service by the sheriff. As respondent failed to file an answer or to enter his appearance within the reglementary period, the trial court ordered the city prosecutor to look into a possible collusion between the parties. Prosecutor Rosa C. Reyes, on 03 August 1994, submitted her report to the effect that she found no evidence to establish that there was collusion between the parties. 1wphi1.nt On 11 January 1995, respondent belatedly filed, without leave of court, an answer, and the same, although filed late, was admitted by the court. In his answer, respondent admitted the fact of his marriage with petitioner and the birth of their children. He also confirmed the veracity of Annex "A" of the complaint which listed the conjugal property. Respondent vehemently denied, however, the allegation that he was psychologically incapacitated. On 15 November 1995, following hearings conducted by it, the trial court rendered its decision declaring the marriage between petitioner and respondent to be null and void ab initio on the basis of psychological incapacity on the part of respondent and ordered the liquidation of the conjugal partnership. Respondent appealed the above decision to the Court of Appeals, contending that the trial court erred, particularly, in holding that there was legal basis to declare the marriage null and void and in denying his motion to reopen the case.

The Court of Appeals reversed the decision of the trial court and declared the marriage between petitioner and respondent valid and subsisting. The appellate court said: "Definitely the appellee has not established the following: That the appellant showed signs of mental incapacity as would cause him to be truly incognitive of the basic marital covenant, as so provided for in Article 68 of the Family Code; that the incapacity is grave, has preceded the marriage and is incurable; that his incapacity to meet his marital responsibility is because of a psychological, not physical illness; that the root cause of the incapacity has been identified medically or clinically, and has been proven by an expert; and that the incapacity is permanent and incurable in nature. "The burden of proof to show the nullity of marriage lies in the plaintiff and any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity."1 Petitioner, in her plea to this Court, would have the decision of the Court of Appeals reversed on the thesis that the doctrine enunciated in Santos vs. Court of Appeals,2 promulgated on 14 January 1995, as well as the guidelines set out in Republic vs. Court of Appeals and Molina,3 promulgated on 13 February 1997, should have no retroactive application and, on the assumption that the Molina ruling could be applied retroactively, the guidelines therein outlined should be taken to be merely advisory and not mandatory in nature. In any case, petitioner argues, the application of the Santos and Molina dicta should warrant only a remand of the case to the trial court for further proceedings and not its dismissal. Be that as it may, respondent submits, the appellate court did not err in its assailed decision for there is absolutely no evidence that has been shown to prove psychological incapacity on his part as the term has been so defined in Santos. Indeed, there is no merit in the petition. The term "psychological incapacity," as a ground for the declaration of nullity of a marriage under Article 36 of the Family Code, has been explained by the Court, in Santos and reiterated in Molina. The Court, in Santos, concluded: "It should be obvious, looking at all the foregoing disquisitions, including, and most importantly, the deliberations of the Family Code Revision Committee itself, that the use of the phrase 'psychological incapacity' under Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances (cited in Fr. Artemio Balumad's 'Void and Voidable Marriages in the Family Code and their Parallels in Canon Law,' quoting form the Diagnostic Statistical Manuel of Mental Disorder by the American Psychiatric Association; Edward Hudson's 'Handbook II for Marriage Nullity Cases'). Article 36 of the Family. Code cannot be taken and construed independently of, but must stand in conjunction with, existing precepts in our law on marriage. Thus correlated, 'psychological incapacity' should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of 'psychological incapacity' to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated." The- "doctrine of stare decisis," ordained in Article 8 of the Civil Code, expresses that judicial decisions applying or interpreting the law shall form part of the legal system of the Philippines. The rule follows the settled legal maxim - "legis interpretado legis vim obtinet" - that the interpretation placed upon the written law by a competent court has the force of law.3 The interpretation or construction placed by the courts establishes the contemporaneous legislative intent of the law. The latter as so interpreted and construed would thus constitute a part of that law as of the date the statute is enacted. It is only when a prior ruling of this Court finds itself later overruled, and a different view is adopted, that the new doctrine may have to be applied prospectively in favor of parties who have relied on the old doctrine and have acted in good faith in accordance therewith5 under the familiar rule of "lex prospicit, non respicit." The phrase "psychological incapacity ," borrowed from Canon law, is an entirely novel provision in our statute books, and, until the relatively recent enactment of the Family Code, the concept has escaped jurisprudential attention. It is in Santos when, for the first time, the Court has given life to the term. Molina, that followed, has additionally provided procedural guidelines to assist the courts and the parties in trying cases for annulment of marriages grounded on psychological incapacity. Molina has strengthened, not overturned, Santos.

At all events, petitioner has utterly failed, both in her allegations in the complaint and in her evidence, to make out a case of psychological incapacity on the part of respondent, let alone at the time of solemnization of the contract, so as to warrant a declaration of nullity of the marriage. Emotional immaturity and irresponsibility, invoked by her, cannot be equated with psychological incapacity. The Court reiterates its reminder that marriage is an inviolable social institution and the foundation of the family6 that the State cherishes and protects. While the Court commisserates with petitioner in her unhappy marital relationship with respondent, totally terminating that relationship, however, may not necessarily be the fitting denouement to it. In these cases, the law has not quite given up, neither should we. WHEREFORE, the herein petition is DENIED. No costs. SO ORDERED. Vitug, J.C.; Melo, J.A.R; Panganiban, A.V.; Gonzaga-Reyes, M.P.; Sandoval-Gutierez, A., Concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

A.C. No. 4431 June 19, 1997 PRISCILLA CASTILLO VDA. DE MIJARES, complainant, vs. JUSTICE ONOFRE A. VILLALUZ (Retired), respondent.

REGALADO, J.: Doubly distressing as the subject of administrative recourse to this Court is the present case where the cause celebre is a star-crossed marriage, and the unlikely protagonists are an incumbent and a retired member of the Judiciary. In a sworn complaint for disbarment filed with this Court on June 6, 1995, complainant Judge Priscilla Castillo Vda. de Mijares charged respondent Onofre A. Villaluz, a retired Justice of the Court of Appeals, with gross immorality and grave misconduct. 1 After an answer 2 and a reply 3 were respectively filed by respondent and complainant, the Court, in its Resolution dated February 27, 1996, resolved to refer the administrative case to Associate Justice Fidel P. Purisima of the Court of Appeals for investigation, report and recommendation. On March 4, 1997, Justice Purisima submitted his Report to this Court, with the following recommendation: WHEREFORE, in light of the foregoing and without prejudice to the outcome of the aforesaid Criminal Case No. 142481 for Bigamy, it is respectfully recommended that the respondent, former Justice Onofre A. Villaluz, be found guilty of gross misconduct, within the contemplation of Rule 138 of the Revised Rules of Court on removal or suspension of attorneys, and therefor(e), he be suspended from the practice of law for a period of two (2) years, commencing from the finality of the Decision in this case, with a warning that a repetition of the same or any other misconduct will be dealt with more severely. On the bases of the evidence adduced by the parties, Justice Purisima summarized the antecedent facts in his aforestated Report and which we feel should be reproduced hereunder so that his disposition of this case may be duly appreciated: Complainant is the Presiding Judge of Branch 108 of the Regional Trial Court, Pasay City, while respondent former Justice Onofre A. Villaluz is a consultant at the Presidential Anti Crime Commission (PACC) headed by Vice-President Joseph E. Estrada. Widowed by the death of her first husband, Primitivo Mijares, complainant commenced Special Proceeding No. 90-54650 and therein obtained a decree declaring the said Primitivo Mijares presumptively dead, after an absence of sixteen (16) years. Complainant narrated that on January 7, 1994, she got married to respondent in a civil wedding before Judge Myrna Lim Verano, then Presiding Judge of the Municipal Circuit Trial Court of Carmona, Cavite and now Judge of the Metropolitan Trial Court of Mandaluyong City. Their marriage was the culmination of a long engagement. They met sometime in 1977, when respondent, as Presiding Judge of the Criminal Circuit Court in Pasig, Metro Manila, was trying a murder case involving the death of a son of Judge Mijares. Since then, respondent became a close family friend of complainant (TSN, p. 14; April 10, 1996). After the wedding, they received their guests at a German restaurant in Makati. With the reception over, the newlywed(s) resumed their usual work and activities. At 6:00 o'clock in the afternoon of the same day, respondent fetched complainant from her house in Project 8, Quezon City, and reached the condominium unit of respondent two hours later at which time, she answered the phone. At the other end of the line was a woman offending her with insulting remarks. Consternated, complainant confronted respondent on the identity of such caller but respondent simply remarked "it would have been just a call at the wrong number". What followed was a heated exchange of harsh words, one word led to another, to a point when respondent called complainant a "nagger", saying "Ayaw ko nang ganyan! Ang gusto ko sa babae, yong sumusunod sa bawa't gusto ko". Get that marriage contract and have it burned." Such unbearable utterances of respondent left complainant no choice but to leave in haste the place of their would-be honeymoon.

Since then, the complainant and respondent have been living separately because as complainant rationalized, contrary to her expectation respondent never got in touch with her and did not even bother to apologize for what happened (TSN, p. 13, April 10, 1996. Several months after that fateful encounter of January 7, 1994, in a Bible Study session, the complainant learned from Manila RTC Judge Ramon Makasiar, a member of the Bible Group, that he (Judge Makasiar) solemnized the marriage between former Justice Onofre A. Villaluz and a certain Lydia Geraldez. Infuriated and impelled by the disheartening news, complainant lost no time in gathering evidence against respondent, such that, on June 6, 1995 she filed the instant Complaint for Disbarment against him (Exh. "A"). On August 7, 1995, when she discovered another incriminatory document against respondent, the complainant executed against respondent her "Supplemental Complaint Affidavit for Falsification" (Exhs. "D" and "D-1"). Exhibit "C", marriage contract of respondent and Lydia Geraldez, dated May 10, 1994, was offered by complainant to prove that respondent immorally and bigamously entered into a marriage, and to show that the respondent distorted the truth by stating his civil status as SINGLE, when her married Lydia Geraldez. This, the respondent did, to lead an immoral and indiscreet life. He resorted to falsification to distort the truth, complainant lamented. Also presented for complainant were: Marriage Contract between her and respondent (Exh. "B"); Order declaring her first husband, Primitivo Mijares, presumptively dead (Exh. "E"); and Affidavit of Judge Myrna Lim Verano, who solemnized the marriage between her (complainant) and respondent (Exhs. "F" and "F-1"). Respondent gave a different version. According to him, what he inked with the complainant on January 7, 1994 was merely but a "sham marriage". He explained that he agreed as, in fact, he voluntarily signed the Marriage Contract marked Exh. "B", in an effort to help Judge Mijares in the administrative case for immorality filed against her by her Legal Researcher, Atty. Joseph Gregorio Naval, Jr., sometime in 1993. Respondent theorized that when his marriage with complainant took place before Judge Myrna Lim Verano, his marriage with Librada Pea, his first wife, was subsisting because the Decision declaring the annulment of such marriage had not yet become final and executory, for the reason that said Decision was not yet published as required by the Rules, the service of summons upon Librada Pea having been made by publication, and subject Decision was not yet published. To this effect was the Certification by Mrs. Nelia B. Rosario, Acting Branch Clerk of Court of Branch 37 of the Regional Trial Court of Manila (Exh. "4"). After a thorough review of the records, the Court finds itself in full accord with the findings and recommendation of Justice Purisima. Herein respondent is undeniably guilty of deceit and grossly immoral conduct. He has made a mockery of marriage which is a sacred institution of demanding respect and dignity. 4 He himself asserts that at the time of his marriage to herein complainant, the decision of the court annulling his marriage to his first wife, Librada Pea, had not yet attained finality. Worse, four months after his marriage to petitioner, respondent married another woman, Lydia Geraldez, in Cavite, after making a false statement in his application for marriage license that his previous marriage had been annulled. Respondent's subterfuge that his marriage to petitioner was just a "sham" marriage will not justify his actuations. Even if the said marriage was just a caper of levity in bad taste, a defense which amazes and befuddles but does not convince, it does not speak well of respondent's sense of social propriety and moral values. This is aggravated by the fact that he is not a layman nor even just an ordinary lawyer, but a former Judge of the Circuit Criminal Court and, thereafter, a Justice of the Court of Appeals who cannot but have been fully aware of the consequences of a marriage celebrated with all the necessary legal requisites. 5 On this score, we rely once again on the perceptive findings and discussion of Investigating Justice Purisima which we quote with approval: That, on January 7, 1994 respondent knowingly and voluntarily entered into and signed a Marriage Contract with complainant before Judge Myrna Lim Verano, then Presiding Judge of the Municipal Circuit Trial Court of Carmona, Cavite, competent under the law to solemnize a civil marriage, is beyond cavil. As stated under oath by respondent himself, he could not be forced to do anything not of his liking (TSN, April 2, 1996, p. 15a). That what complainant and respondent contracted was a valid marriage is borne out by law and the evidence. To be sure, all the essential and formal requisites of a valid marriage under Articles 2 and 3 of the Family Code, i.e., legal capacity of the contracting parties, who must be a male and a female; consent freely given in the presence of the solemnizing officer; authority of the solemnizing officer; a valid marriage license except in the cases provided for in Chapter 2 of Title I on marriage, Family Code; and a marriage ceremony with the appearance of

the contracting parties before the solemnizing officer, and their personal declaration that they take each other as husband and wife, in the presence of not less than two witnesses of legal age, were satisfied and complied with. The theory of respondent that what (was) solemnized with complainant was nothing but a "sham" marriage is too incredible to deserve serious consideration. According to respondent, he entered into subject marriage in an effort to save the complainant from the charge of immorality against her. But, to repeat: regardless of the intention of respondent in saying "I do" with complainant before a competent authority, all ingredients of a valid marriage were present. His consent thereto was freely given. Judge Myrna Lim Verano was authorized by law to solemnize the civil marriage, and both contracting parties had the legal capacity to contract such marriage. Without in anyway pre-empting whatever the Regional Trial Court of Manila will find in the criminal case of Bigamy against herein respondent, and even assuming for the sake of argument that the judgment in Civil Case No. 9367048 decreeing the annulment of the marriage between respondent and Librada Pena had not attained complete finality due to non publication of said judgment in a newspaper of general circulation; that circumstance, alone, only made subject marriage voidable and did not necessarily render the marriage between complainant and respondent void. Besides, as stressed upon by complainant, respondent stated under oath that his marriage with Librada Pena had been annulled by a decree of annulment, when he (respondent) took Lydia Geraldez as his wife by third marriage, and therefore, he is precluded, by the principle of estoppel, from claiming that when he took herein complainant as his wife by a second marriage, his first marriage with Librada Pea was subsisting and unannulled. But, anyway, as it is not proper to make here a definitive findings as to whether or not respondent can be adjudged guilty of bigamy under the attendant facts and circumstances, a crucial issue pending determination in Criminal Case No. 142481 before Branch 12 of the Manila Regional Trial Court, even assuming arguendo that what respondent contracted with complainant on January 7, 1994 was a "sham" marriage, as he terms it, the ineluctible conclusion is that what respondent perpetrated was a gross misconduct on his part as a member of the Philippine Bar and as former appellate Justice, at that. Even granting that the immorality charge against herein complainant in the administrative case instituted against her by Atty. Joseph Gregorio Naval, Jr., is unfounded, respondent was not justified in resorting to a "sham" marriage to protect her (complainant) from said immorality charge. Being a lawyer, the respondent is surely conversant with the legal maxim that a wrong cannot be righted by another wrong. If he never had any immoral love affair with Judge Priscilla Castillo Vda. de Mijares and therefore, he felt duty bound to help her in ventilating the whole truth and nothing but the truth, respondent could have testified in her favor in said administrative case, to assure all and sundry that what Atty. Joseph Gregorio Naval, Jr. complained of in said administrative case was without any factual and legal basis. In this only Christian country of the Far East, society cherishes and protects the sanctity of marriage and the family as a social institution. Consequently, no one can make a mockery thereof and perform a sham marriage with impunity. To make fun of and take lightly the sacredness of marriage is to court the wrath of the Creator and mankind. Therefore, the defense of respondent that what was entered into by him and complainant on January 7, 1994 was nothing but a "sham" marriage is unavailing to shield or absolve him from liability for his gross misconduct, nay sacrilege. From the foregoing, it is evident that respondent dismally fails to meet the standard of moral fitness for continued membership in the legal profession. The nature of the office of an attorney at law requires that he shall be a person of good moral character. This qualification is not only a condition precedent for admission to the practice of law; its continued possession is also essential for remaining in the practice of law. 6 Under Rule 1.01 of the Code of Professional Responsibility, a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. The commission of grossly immoral conduct and deceit are grounds for suspension or disbarment of lawyers. 7 However, considering that respondent is in the declining years of his life; that his impulsive conduct during some episodes of the investigation reveal a degree of aberrant reactive behavior probably ascribable to advanced age; and the undeniable fact that he has rendered some years of commendable service in the Judiciary, the Court feels that disbarment would be too harsh a penalty in this peculiar case. Hence, a suspension of two years, as recommended, would suffice as a punitive but compassionate disciplinary measure. WHEREFORE, finding herein respondent, former Justice Onofre A. Villaluz, GUILTY of immoral conduct in violation of the Code of Professional Responsibility, he is hereby SUSPENDED from the practice of law for a period of two (2) years effective upon notice hereof, with the specific WARNING that a more severe penalty shall be imposed should he commit the same or a similar offense hereafter.

SO ORDERED. Padilla, Davide, Jr., Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Hermosisima, Jr., Panganiban and Torres, Jr., J.J., concur. Narvasa, C.J., took no part. Bellosillo and Francisco, JJ., are on leave.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 83598 March 7, 1997 LEONCIA BALOGBOG and GAUDIOSO BALOGBOG, petitioners, vs. HONORABLE COURT OF APPEALS, RAMONITO BALOGBOG and GENEROSO BALOGBOG, respondents.

MENDOZA, J.: This is a petition for review of the decision 1 of the Court of Appeals, affirming the decision of the Court of First Instance of Cebu City (Branch IX), declaring private respondents heirs of the deceased Basilio and Genoveva Balogbog entitled to inherit from them. The facts are as follows. Petitioners Leoncia and Gaudioso Balogbog are the children of Basilio Balogbog and Genoveva Arzibal who died intestate in 1951 and 1961, respectively. They had an older brother, Gavino, but he died in 1935, predeceasing their parents. In 1968, private respondents Ramonito and Generoso Balogbog brought an action for partition and accounting against petitioners, claiming that they were the legitimate children of Gavino by Catalina Ubas and that, as such, they were entitled to the one-third share of Gavino in the estate of their grandparents. In their answer, petitioners denied knowing private respondents. They alleged that their brother Gavino died single and without issue in their parents' residence at Tag-amakan, Asturias, Cebu. In the beginning they claimed that the properties of the estate had been sold to them by their mother when she was still alive, but they later withdrew this allegation. Private respondents presented Priscilo Y. Trazo, 2 then 81 years old, mayor of the municipality of Asturias from 1928 to 1934, who testified that he knew Gavino and Catalina to be husband and wife and Ramonito to be their first child. On crossexamination, Trazo explained that he knew Gavino and Catalina because they performed at his campaign rallies, Catalina as "balitaw" dancer and Gavino Balogbog as her guitarist. Trazo said he attended the wedding of Gavino and Catalina sometime in 1929, in which Rev. Father Emiliano Jomao-as officiated and Egmidio Manuel, then a municipal councilor, acted as one of the witnesses. The second witness presented was Matias Pogoy, 3 a family friend of private respondents, who testified that private respondents are the children of Gavino and Catalina. According to him, the wedding of Gavino and Catalina was solemnized in the Catholic Church of Asturias, Cebu and that he knew this because he attended their wedding and was in fact asked by Gavino to accompany Catalina and carry her wedding dress from her residence in Camanaol to the poblacion of Asturias before the wedding day. He testified that Gavino died in 1935 in his residence at Obogon, Balamban, Cebu, in the presence of his wife. (This contradicts petitioners' claim made in their answer that Gavino died in the ancestral house at Tag-amakan, Asturias.) Pogoy said he was a carpenter and he was the one who had made the coffin of Gavino. He also made the coffin of the couple's son, Petronilo, who died when he was six. Catalina Ubas testified concerning her marriage to Gavino. 4 She testified that after the wedding, she was handed a "receipt," presumably the marriage certificate, by Fr. Jomao-as, but it was burned during the war. She said that she and Gavino lived together in Obogon and begot three children, namely, Ramonito, Petronilo, and Generoso. Petronilo died after an illness at the age of six. On crossexamination, she stated that after the death of Gavino, she lived in common law relation with a man for a year and then they separated. Private respondents produced a certificate from the Office of the Local Civil Registrar (Exh. P) that the Register of Marriages did not have a record of the marriage of Gavino and Catalina, another certificate from the Office of the Treasurer (Exh. L) that there was no record of the birth of Ramonito in that office and, for this reason, the record must be presumed to have been lost or destroyed during the war, and a certificate by the Parish Priest of Asturias that there was likewise no record of birth of Ramonito in the church, the records of which were either lost or destroyed during the war. (Exh. M) On the other hand, as defendant below, petitioner Leoncia Balogbog testified 5 that Gavino died single at the family residence in Asturias. She denied that her brother had any legitimate children and stated that she did not know private respondents before this case was filed. She obtained a certificate (Exh. 10) from the Local Civil Registrar of Asturias to the effect that that office did not have a record of the names of Gavino and Catalina. The certificate was prepared by

Assistant Municipal Treasurer Juan Maranga, who testified that there was no record of the marriage of Gavino and Catalina in the Book of Marriages between 1925 to 1935. 6 Witness Jose Narvasa testified 7 that Gavino died single in 1935 and that Catalina lived with a certain Eleuterio Keriado after the war, although he did not know whether they were legally married. He added, however, that Catalina had children by a man she had married before the war, although he did not know the names of the children. On crossexamination, Narvasa stated that Leoncia Balogbog, who requested him to testify, was also his bondsman in a criminal case filed by a certain Mr. Cuyos. Ramonito Balogbog was presented 8 to rebut Leoncia Balogbog's testimony. On June 15, 1973, the Court of First Instance of Cebu City rendered judgment for private respondents (plaintiffs below), ordering petitioners to render an accounting from 1960 until the finality of its judgment, to partition the estate and deliver to private respondents one-third of the estate of Basilio and Genoveva, and to pay attorney's fees and costs. Petitioners filed a motion for new trial and/or reconsideration, contending that the trial court erred in not giving weight to the certification of the Office of the Municipal Treasurer of Asturias (Exh. 10) to the effect that no marriage of Gavino and Catalina was recorded in the Book of Marriages for the years 1925-1935. Their motion was denied by the trial court, as was their second motion for new trial and/or reconsideration based on the church records of the parish of Asturias which did not contain the record of the alleged marriage in that church. On appeal, the Court of Appeals affirmed. It held that private respondents failed to overcome the legal presumption that a man and a woman deporting themselves as husband and wife are in fact married, that a child is presumed to be legitimate, and that things happen according to the ordinary course of nature and the ordinary habits of life. 9 Hence, this petition. We find no reversible error committed by the Court of Appeals. First. Petitioners contend that the marriage of Gavino and Catalina should have been proven in accordance with Arts. 53 and 54 of the Civil Code of 1889 because this was the law in force at the time the alleged marriage was celebrated. Art. 53 provides that marriages celebrated under the Civil Code of 1889 should be proven only by a certified copy of the memorandum in the Civil Registry, unless the books thereof have not been kept or have been lost, or unless they are questioned in the courts, in which case any other proof, such as that of the continuous possession by parents of the status of husband and wife, may be considered, provided that the registration of the birth of their children as their legitimate children is also submitted in evidence. This Court noted long ago, however, that Arts. 42 to 107 of the Civil Code of 1889 of Spain did not take effect, having been suspended by the Governor General of the Philippines shortly after the extension of that code to this country. 10 Consequently, Arts. 53 and 54 never came into force. Since this case was brought in the lower court in 1968, the existence of the marriage must be determined in accordance with the present Civil Code, which repealed the provisions of the former Civil Code, except as they related to vested rights, 11 and the rules on evidence. Under the Rules of Court, the presumption is that a man and a woman conducting themselves as husband and wife are legally married. 12 This presumption may be rebutted only by cogent proof to the contrary. 13 In this case, petitioners' claim that the certification presented by private respondents (to the effect that the record of the marriage had been lost or destroyed during the war) was belied by the production of the Book of Marriages by the assistant municipal treasurer of Asturias. Petitioners argue that this book does not contain any entry pertaining to the alleged marriage of private respondents' parents. This contention has no merit. In Pugeda v. Trias, 14 the defendants, who questioned the marriage of the plaintiffs, produced a photostatic copy of the record of marriages of the Municipality of Rosario, Cavite for the month of January, 1916, to show that there was no record of the alleged marriage. Nonetheless, evidence consisting of the testimonies of witnesses was held competent to prove the marriage. Indeed, although a marriage contract is considered primary evidence of marriage, 15 the failure to present it is not proof that no marriage took place. Other evidence may be presented to prove marriage. 16 Here, private respondents proved, through testimonial evidence, that Gavino and Catalina were married in 1929; that they had three children, one of whom died in infancy; that their marriage subsisted until 1935 when Gavino died; and that their children, private respondents herein, were recognized by Gavino's family and by the public as the legitimate children of Gavino.

Neither is there merit in the argument that the existence of the marriage cannot be presumed because there was no evidence showing in particular that Gavino and Catalina, in the presence of two witnesses, declared that they were taking each other as husband and wife. 17 An exchange of vows can be presumed to have been made from the testimonies of the witnesses who state that a wedding took place, since the very purpose for having a wedding is to exchange vows of marital commitment. It would indeed be unusual to have a wedding without an exchange of vows and quite unnatural for people not to notice its absence. The law favors the validity of marriage, because the State is interested in the preservation of the family and the sanctity of the family is a matter of constitutional concern. As stated in Adong v. Cheong Seng Gee: 18 The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but it is a new relation, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and if the parties were not what they thus hold themselves out as being, they would be living in the constant violation of decency and of law. A presumption established by our Code of Civil Procedure is "that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage." (Sec. 334, No. 28) Semper praesumitur pro matrimonio Always presume marriage. (U.S. vs. Villafuerte and Rabano [1905], 4 Phil., 476; Son Cui vs. Guepangco, supra; U.S. vs. Memoracion and Uri [1916], 34 Phil., 633; Teter vs. Teter [1884], 101 Ind., 129.) Second. Petitioners contend that private respondents' reliance solely on testimonial evidence to support their claim that private respondents had been in the continuous possession of the status of legitimate children is contrary to Art. 265 of the Civil Code which provides that such status shall be proven by the record of birth in the Civil Register, by an authentic document or by final judgment. But in accordance with Arts. 266 and 267, in the absence of titles indicated in Art. 265, the filiation of children may be proven by continuous possession of the status of a legitimate child and by any other means allowed by the Rules of Court or special laws. Thus the Civil Code provides: Art. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child. Art. 267. In the absence of a record of birth, authentic document, final judgment or possession of status, legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws. Petitioners contend that there is no justification for presenting testimonies as to the possession by private respondents of the status of legitimate children because the Book of Marriages for the years 1928-1929 is available. What is in issue, however, is not the marriage of Gavino and Catalina but the filiation of private respondents as their children. The marriage of Gavino and Catalina has already been shown in the preceding discussion. The treasurer of Asturias, Cebu certified that the records of birth of that municipality for the year 1930 could not be found, presumably because they were lost or destroyed during the war (Exh. L). But Matias Pogoy testified that Gavino and Catalina begot three children, one of whom, Petronilo, died at the age of six. Catalina testified that private respondents Ramonito and Generoso are her children by Gavino Balogbog. That private respondents are the children of Gavino and Catalina Balogbog cannot therefore be doubted. Moreover, the evidence in the record shows that petitioner Gaudioso Balogbog admitted to the police of Balamban, Cebu that Ramonito is his nephew. As the Court of Appeals found: Ironically, it is appellant Gaudioso himself who supplies the clincher that tips the balance in favor of the appellees. In an investigation before the Police Investigating Committee of Balamban, Cebu, held on March 8, 1968, conducted for the purpose of inquiring into a complaint filed by Ramonito against a patrolman of the Balamban police force, Gaudioso testified that the complainant in that administrative case is his nephew. Excerpts from the transcript of the proceedings conducted on that date (Exhs. "N", "N-1", "N-2", "N-3" and "N-4") read: Atty. Kiamco May it please this investigative body. Q. Do you know the complainant in this Administrative Case No. 1?

A. Yes I know. Q. Why do you know him? A. I know because he is my nephew. Q. Are you in good terms with your nephew, the complainant? A. Yes. Q. Do you mean to say that you are close to him? A. Yes. We are close. Q. Why do you say you are close? A. We are close because aside from the fact that he is my nephew we were also leaving (sic) in the same house in Butuan City, and I even barrow (sic) from him money in the amount of P300.00, when I return to Balamban, Cebu. xxx xxx xxx Q. Why is Ramonito Balogbog your nephew? A. Because he is the son of my elder brother. This admission of relationship is admissible against Gaudioso although made in another case. It is considered as a reliable declaration against interest (Rule 130, Section 22). Significantly, Gaudioso did not try to offer any explanation to blunt the effects of that declaration. He did not even testify during the trial. Such silence can only mean that Ramonito is indeed the nephew of Gaudioso, the former being the son of Gavino. WHEREFORE, the decision appealed from is AFFIRMED. SO ORDERED. Regalado, Romero, Puno and Torres, Jr., JJ., concur.

PHILIPPINE JURISPRUDENCE - FULL TEXT The Lawphil Project - Arellano Law Foundation G.R. No. L-57062 January 24, 1992 MA. DEL ROSARIO MARIATEGUI, ET AL. vs. COURT OF APPEALS, ET AL. Republic of the Philippines

SUPREME COURT Manila THIRD DIVISION

G.R. No. L-57062 January 24, 1992 MARIA DEL ROSARIO MARIATEGUI, ET AL., petitioners, vs. HON. COURT OF APPEALS, JACINTO MARIATEGUI, JULIAN MARIATEGUI and PAULINA MARIATEGUI, respondents. Montesa, Albon & Associates for petitioners . Parmenio B. Patacsil, Patacsil Twins Law Office for the heirs of the late Maria del Rosario Mariategui . Tinga, Fuentes & Tagle Firm for private respondents .

BIDIN, J.: This is a petition for review on certiorari of the decision * of the Court of Appeals dated December 24, 1980 in CA-G.R. No. 61841, entitled "Jacinto Mariategui, et al. v. Maria del Rosario Mariategui, et al.," reversing the judgment of the then Court of First Instance of Rizal, Branch VIII ** at Pasig, Metro Manila. The undisputed facts are as follows: Lupo Mariategui died without a will on June 26, 1953 (Brief for respondents, Rollo, pp. 116; 8). During his lifetime, Lupo Mariategui contracted three (3) marriages. With his first wife, Eusebia Montellano, who died on November 8, 1904, he begot four (4) children, namely: Baldomera, Maria del Rosario, Urbana and Ireneo. Baldomera died and was survived by her children named Antero, Rufina, Catalino, Maria, Gerardo, Virginia and Federico, all surnamed Espina. Ireneo also died and left a son named Ruperto. With his second wife, Flaviana Montellano, he begot a daughter named Cresenciana who was born on May 8, 1910 (Rollo, Annex "A", p. 36). Lupo Mariategui and Felipa Velasco (Lupo's third wife) got married sometime in 1930. They had three children, namely: Jacinto, born on July 3, 1929, Julian, born on February 16, 1931 and Paulina, born on April 19, 1938. Felipa Velasco Mariategui died in 1941 (Rollo, Ibid). At the time of his death, Lupo Mariategui left certain properties which he acquired when he was still unmarried (Brief for respondents, Rollo, pp. 116; 4). These properties are described in the complaint as Lots Nos. 163, 66, 1346 and 156 of the Muntinglupa Estate (Rollo, Annex "A", p. 39).

On December 2, 1967, Lupo's descendants by his first and second marriages, namely, Maria del Rosario, Urbana, Ruperto, Cresencia, all surnamed Mariategui and Antero, Rufina, Catalino, Maria, Gerardo, Virginia and Federico, all surnamed Espina, executed a deed of extrajudicial partition whereby they adjudicated unto themselves Lot No. 163 of the Muntinglupa Estate. Thereafter, Lot No. 163 was the subject of a voluntary registration proceedings filed by the adjudicatees under Act No. 496, and the land registration court issued a decree ordering the registration of the lot. Thus, on April 1, 1971, OCT No. 8828 was issued in the name of the above-mentioned heirs. Subsequently, the registered owners caused the subdivision of the said lot into Lots Nos. 163-A to 163-H, for which separate transfer certificates of title were issued to the respective parties (Rollo, ibid). On April 23, 1973, Lupo's children by his third marriage with Felipa Velasco (Jacinto, Julian and Paulina) filed with the lower court an amended complaint claiming that Lot No. 163 together with Lots Nos. 669, 1346 and 154 were owned by their common father, Lupo Mariategui, and that, with the adjudication of Lot No. 163 to their co-heirs, they (children of the third marriage) were deprived of their respective shares in the lots. Plaintiffs pray for partition of the estate of their deceased father and annulment of the deed of extrajudicial partition dated December 2, 1967 (Petition, Rollo, p. 10). Cresencia Mariategui Abas, Flaviana Mariategui Cabrera and Isabel Santos were impleaded in the complaint as unwilling defendants as they would not like to join the suit as plaintiffs although they acknowledged the status and rights of the plaintiffs and agreed to the partition of the parcels of land as well as the accounting of their fruits (Ibid., Rollo, p. 8; Record on Appeal, p. 4). The defendants (now petitioners) filed an answer with counterclaim (Amended Record on Appeal, p. 13). Thereafter, they filed a motion to dismiss on the grounds of lack of cause of action and prescription. They specifically contended that the complaint was one for recognition of natural children. On August 14, 1974, the motion to dismiss was denied by the trial court, in an order the dispositive portion of which reads: It is therefore the opinion of the Court that Articles 278 and 285 of the Civil Code cited by counsel for the defendants are of erroneous application to this case. The motion to dismiss is therefore denied for lack of merit. SO ORDERED. (Ibid, p. 37). However, on February 16, 1977, the complaint as well as petitioners' counterclaim were dismissed by the trial court, in its decision stating thus: The plaintiffs' right to inherit depends upon the acknowledgment or recognition of their continuous enjoyment and possession of status of children of their supposed father. The evidence fails to sustain either premise, and it is clear that this action cannot be sustained. (Ibid, Rollo, pp. 67-68) The plaintiffs elevated the case to the Court of Appeals on the ground that the trial court committed an error ". . . in not finding that the parents of the appellants, Lupo Mariategui and Felipa Velasco (were) lawfully married, and in holding (that) they (appellants) are not legitimate children of their said parents, thereby divesting them of their inheritance . . . " (Rollo, pp. 14-15). On December 24, 1980, the Court of Appeals rendered a decision declaring all the children and descendants of Lupo Mariategui, including appellants Jacinto, Julian and Paulina (children of the third marriage) as entitled to equal shares in the estate of Lupo Mariategui; directing the adjudicatees in the extrajudicial partition of real properties who eventually acquired transfer certificates of title thereto, to execute deeds of reconveyance in favor, and for the shares, of Jacinto, Julian and Paulina provided rights of innocent third persons are not prejudiced otherwise the said adjudicatees shall reimburse the said heirs the fair market value of their shares; and directing all the parties to submit to the lower court a project of partition in the net estate of Lupo Mariategui after payment of taxes, other government charges and outstanding legal obligations. The defendants-appellees filed a motion for reconsideration of said decision but it was denied for lack of merit. Hence, this petition which was given due course by the court on December 7, 1981. The petitioners submit to the Court the following issues: (a) whether or not prescription barred private respondents' right to demand the partition of the estate of Lupo Mariategui, and (b) whether or not the private respondents, who belatedly filed the action for recognition, were able to prove their successional rights over said estate. The resolution of these issues hinges, however, on the resolution of the preliminary matter, i.e., the nature of the complaint filed by the private respondents.

The complaint alleged, among other things, that "plaintiffs are the children of the deceased spouses Lupo Mariategui . . . and Felipa Velasco"; that "during his lifetime, Lupo Mariategui had repeatedly acknowledged and confirmed plaintiffs as his children and the latter, in turn, have continuously enjoyed such status since their birth"; and "on the basis of their relationship to the deceased Lupo Mariategui and in accordance with the law on intestate succession, plaintiffs are entitled to inherit shares in the foregoing estate (Record on Appeal, pp. 5 & 6). It prayed, among others, that plaintiffs be declared as children and heirs of Lupo Mariategui and adjudication in favor of plaintiffs their lawful shares in the estate of the decedent (Ibid, p. 10). A perusal of the entire allegations of the complaint, however, shows that the action is principally one of partition. The allegation with respect to the status of the private respondents was raised only collaterally to assert their rights in the estate of the deceased. Hence, the Court of Appeals correctly adopted the settled rule that the nature of an action filed in court is determined by the facts alleged in the complaint constituting the cause of action (Republic vs. Estenzo, 158 SCRA 282 [1988]). It has been held that, if the relief demanded is not the proper one which may be granted under the law, it does not characterize or determine the nature of plaintiffs' action, and the relief to which plaintiff is entitled based on the facts alleged by him in his complaint, although it is not the relief demanded, is what determines the nature of the action (1 Moran, p. 127, 1979 ed., citing Baguioro vs. Barrios, et al., 77 Phil. 120). With respect to the legal basis of private respondents' demand for partition of the estate of Lupo Mariategui, the Court of Appeals aptly held that the private respondents are legitimate children of the deceased. Lupo Mariategui and Felipa Velasco were alleged to have been lawfully married in or about 1930. This fact is based on the declaration communicated by Lupo Mariategui to Jacinto who testified that "when (his) father was still living, he was able to mention to (him) that he and (his) mother were able to get married before a Justice of the Peace of Taguig, Rizal." The spouses deported themselves as husband and wife, and were known in the community to be such. Although no marriage certificate was introduced to this effect, no evidence was likewise offered to controvert these facts. Moreover, the mere fact that no record of the marriage exists does not invalidate the marriage, provided all requisites for its validity are present (People vs. Borromeo, 133 SCRA 106 [1984]). Under these circumstances, a marriage may be presumed to have taken place between Lupo and Felipa. The laws presume that a man and a woman, deporting themselves as husband and wife, have entered into a lawful contract of marriage; that a child born in lawful wedlock, there being no divorce, absolute or from bed and board is legitimate; and that things have happened according to the ordinary course of nature and the ordinary habits of life (Section 5 (z), (bb), (cc), Rule 131, Rules of Court; Corpus v. Corpus, 85 SCRA 567 [1978]; Saurnaba v. Workmen's Compensation, 85 SCRA 502 [1978]; Alavado v. City Gov't. of Tacloban, 139 SCRA 230 [1985]; Reyes v. Court of Appeals, 135 SCRA 439 [1985]). Courts look upon the presumption of marriage with great favor as it is founded on the following rationale: The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but it is a new relation, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any counterpresumption or evidence special to that case, to be in fact married. The reason is that such is the common order of society and if the parties were not what they thus hold themselves out as being, they would be living in the constant violation of decency and of law . . . (Adong vs. Cheong Seng Gee, 43 Phil. 43, 56 [1922] quoted in Alavado vs. City Government of Tacloban, 139 SCRA 230 [1985]). So much so that once a man and a woman have lived as husband and wife and such relationship is not denied nor contradicted, the presumption of their being married must be admitted as a fact (Alavado v. City Gov't. of Tacloban, supra). The Civil Code provides for the manner under which legitimate filiation may be proven. However, considering the effectivity of the Family Code of the Philippines, the case at bar must be decided under a new if not entirely dissimilar set of rules because the parties have been overtaken by events, to use the popular phrase (Uyguangco vs. Court of Appeals, G.R. No. 76873, October 26, 1989). Thus, under Title VI of the Family Code, there are only two classes of children ? legitimate and illegitimate. The fine distinctions among various types of illegitimate children have been eliminated (Castro vs. Court of Appeals, 173 SCRA 656 [1989]).

Article 172 of the said Code provides that the filiation of legitimate children may be established by the record of birth appearing in the civil register or a final judgment or by the open and continuous possession of the status of a legitimate child. Evidence on record proves the legitimate filiation of the private respondents. Jacinto's birth certificate is a record of birth referred to in the said article. Again, no evidence which tends to disprove facts contained therein was adduced before the lower court. In the case of the two other private respondents, Julian and Paulina, they may not have presented in evidence any of the documents required by Article 172 but they continuously enjoyed the status of children of Lupo Mariategui in the same manner as their brother Jacinto. While the trial court found Jacinto's testimonies to be inconsequential and lacking in substance as to certain dates and names of relatives with whom their family resided, these are but minor details. The nagging fact is that for a considerable length of time and despite the death of Felipa in 1941, the private respondents and Lupo lived together until Lupo's death in 1953. It should be noted that even the trial court mentioned in its decision the admission made in the affidavit of Cresenciana Mariategui Abas, one of the petitioners herein, that " . . . Jacinto, Julian and Paulina Mariategui ay pawang mga kapatid ko sa ama . . ." (Exh. M, Record on Appeal, pp. 65-66). In view of the foregoing, there can be no other conclusion than that private respondents are legitimate children and heirs of Lupo Mariategui and therefore, the time limitation prescribed in Article 285 for filing an action for recognition is inapplicable to this case. Corollarily, prescription does not run against private respondents with respect to the filing of the action for partition so long as the heirs for whose benefit prescription is invoked, have not expressly or impliedly repudiated the co-ownership. In other words, prescription of an action for partition does not lie except when the coownership is properly repudiated by the co-owner (Del Banco vs. Intermediate Appellate Court, 156 SCRA 55 [1987] citing Jardin vs. Hollasco, 117 SCRA 532 [1982]). Otherwise stated, a co-owner cannot acquire by prescription the share of the other co-owners absent a clear repudiation of co-ownership duly communicated to the other co-owners (Mariano vs. De Vega, 148 SCRA 342 [1987]). Furthermore, an action to demand partition is imprescriptible and cannot be barred by laches (Del Banco vs. IAC, 156 SCRA 55 [1987]). On the other hand, an action for partition may be seen to be at once an action for declaration of co-ownership and for segregation and conveyance of a determinate portion of the property involved (Roque vs. IAC, 165 SCRA 118 [1988]). Petitioners contend that they have repudiated the co-ownership when they executed the extrajudicial partition excluding the private respondents and registered the properties in their own names (Petition, p. 16; Rollo, p. 20). However, no valid repudiation was made by petitioners to the prejudice of private respondents. Assuming petitioners' registration of the subject lot in 1971 was an act of repudiation of the co-ownership, prescription had not yet set in when private respondents filed in 1973 the present action for partition (Ceniza vs. C.A., 181 SCRA 552 [1990]). In their complaint, private respondents averred that in spite of their demands, petitioners, except the unwilling defendants in the lower court, failed and refused to acknowledge and convey their lawful shares in the estate of their father (Record on Appeal, p. 6). This allegation, though denied by the petitioners in their answer (Ibid, p. 14), was never successfully refuted by them. Put differently, in spite of petitioners' undisputed knowledge of their relationship to private respondents who are therefore their co-heirs, petitioners fraudulently withheld private respondent's share in the estate of Lupo Mariategui. According to respondent Jacinto, since 1962, he had been inquiring from petitioner Maria del Rosario about their (respondents) share in the property left by their deceased father and had been assured by the latter (Maria del Rosario) not to worry because they will get some shares. As a matter of fact, sometime in 1969, Jacinto constructed a house where he now resides on Lot No. 163 without any complaint from petitioners. Petitioners' registration of the properties in their names in 1971 did not operate as a valid repudiation of the co-ownership. In Adille vs. Court of Appeals (157 SCRA 455, 461-462 [1988]), the Court held: Prescription, as a mode of terminating a relation of co-ownership, must have been preceded by repudiation (of the coownership). The act of repudiation, in turn, is subject to certain conditions: (1) a co-owner repudiates the co-ownership; (2) such an act of repudiation is clearly made known to the other co-owners; (3) the evidence thereon is clear and conclusive; and (4) he has been in possession through open, continuous, exclusive, and notorious possession of the property for the period required by law. xxx xxx xxx

It is true that registration under the Torrens system is constructive notice of title, but it has likewise been our holding that the Torrens title does not furnish shield for fraud. It is therefore no argument to say that the act of registration is equivalent to notice of repudiation, assuming there was one, notwithstanding the long-standing rule that registration operates as a universal notice of title. Inasmuch as petitioners registered the properties in their names in fraud of their co-heirs prescription can only be deemed to have commenced from the time private respondents discovered the petitioners' act of defraudation (Adille vs. Court of Appeals, supra). Hence, prescription definitely may not be invoked by petitioners because private respondents commenced the instant action barely two months after learning that petitioners had registered in their names the lots involved. WHEREFORE, the petition is DENIED and the assailed decision of the Court of Appeals dated December 24, 1980 is Affirmed. SO ORDERED. Gutierrez, Jr., Feliciano, Davide, Jr. and Romero, JJ., concur

. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 174689 October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner, vs. REPUBLIC OF THE PHILIPPINES, respondent. DECISION CORONA, J.: When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2) Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and the other was a female. Amihan named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda) When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a persons sex? May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery? On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent. Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male." He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had always identified himself with girls since childhood.1 Feeling trapped in a mans body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the procedure. From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female." An order setting the case for initial hearing was published in the Peoples Journal Tonight, a newspaper of general circulation in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila. On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made. During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fianc, Richard P. Edel, as witnesses. On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. The sole issue here is whether or not petitioner is entitled to the relief asked for. The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioners misfortune to be trapped in a mans body is not his own doing and should not be in any way taken against him. Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her [fianc] and the realization of their dreams. Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any [o]pposition. WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioners first name from "Rommel Jacinto" to MELY and petitioners gender from "Male" to FEMALE. 5 On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration. On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial courts decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republics petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition. Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10 The petition lacks merit. A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial court: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. (emphasis supplied) Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil registry changes sought. We disagree. The State has an interest in the names borne by individuals and entities for purposes of identification.11 A change of name is a privilege, not a right.12 Petitions for change of name are controlled by statutes.13 In this connection, Article 376 of the Civil Code provides: ART. 376. No person can change his name or surname without judicial authority. This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048 provides: SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent

and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial. RA 9048 likewise provides the grounds for which change of first name may be allowed: SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first name or nickname may be allowed in any of the following cases: (1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or (3) The change will avoid confusion. Petitioners basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter ones legal capacity or civil status.18 RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioners first name for his declared purpose may only create grave complications in the civil registry and the public interest. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the use of his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was not within that courts primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioners petition in so far as the change of his first name was concerned. No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look to the statutes.21 In this connection, Article 412 of the Civil Code provides: ART. 412. No entry in the civil register shall be changed or corrected without a judicial order. Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the civil register.23 Section 2(c) of RA 9048 defines what a "clerical or typographical error" is: SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean: xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such

as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (emphasis supplied) Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court. The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code:24 ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. ART. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name. The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment. To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace something with something else of the same kind or with something that serves as a substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary. Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly. "Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of his age, nationality and his family membership.27 The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied) A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal capacity and civil status. In this connection, Article 413 of the Civil Code provides: ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws. But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioners cause. Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child. In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to be issued. xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a persons sex made at the time of his or her birth, if not attended by error,30 is immutable.31 When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a male from a female"32 or "the distinction between male and female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category "female." For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate. Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong. The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioners first step towards his eventual marriage to his male fianc. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman.37 One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-tofemale post-operative transsexual). Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women,39 certain felonies under the Revised Penal Code40 and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court,41 among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioners petition were to be granted. It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it. In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege. It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress. Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams." No argument about that. The Court recognizes that there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the courts. WHEREFORE, the petition is hereby DENIED. Costs against petitioner. SO ORDERED. Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 96740 March 25, 1999

VIRGINIA P. SARMIENTO and APOLONIA P. CATIBAYAN, petitioners, vs. COURT OF APPEALS and SIMON ARGUELLES, respondents.

PURISIMA, J.: At bar is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, seeking to set aside the Decision, 1 dated October 26, 1989 and the Resolution, 2 dated January 4, 1991, of the Court of Appeals 3 in CA G.R. CV No. 11750, reversing the Decision 4, dated May 30, 1986, of Branch XV, Regional Trial Court, in Trece Martires City 5 in Civil Case No. NC-75. The antecedent facts that matter are as follows: Virginia P. Sarmiento and Apolonia P. Catibayan, the petitioners herein, filed a complain for partition of a piece of land, more particularly described as Lot No. 926 of the Naic Estate, G.L.R.O., Record No. 8340, in Naic, Cavite, with an area of 1,779 square meters, covered by TCT No. 21877 issued on September 1, 1941 to co-owners, Francisco Arguelles and Petrona Reyes. Petitioners are sisters, their parents being Tiburcio Pangilinan and Leogarda Arguelles, who died in 1946. Leogarda was the daughter of Francisco Arguelles who died on February 18, 1949 and Emilia Pineli, who died on May 2, 1950. Private respondent Simon Arguelles is a half brother of Leogarda, with Francisco Arguelles as their common father. Petitioners claim that as granddaughters of Francisco Arguelles, they and private respondent Simon Arguelles are coowners of the 1/2 portion of Lot No. 926, as the only heirs of the late Francisco Arguelles. But according to private respondent, petitioners are not the legal heirs of Francisco Arguelles because their (petitioners') mother, Leogarda Arguelles, was allegedly an illegitimate child of his father, Francisco Arguelles, and Emilia Pineli who were not married. Under the old Civil Code, which should be applied since Francisco Arguelles died in 1949, before the effectivity of the New Civil Code, an illegitimate child did not have successional rights. After trial, the lower court came out with a decision ordering the parties herein to partition among themselves subject 1/2 portion of Lot No. 926; and disposing thus: In view of all the foregoing, plaintiffs Virginia P. Sarmiento and Apolonia P. Catibayan and defendant Simon Arguelles are hereby ordered to partition among themselves the one-half portion of Lot No. 926 of the Naic Estate, located in Naic, Cavite, covered by Transfer Certificate of title No. 21877, pertaining to the deceased Francisco Arguelles. The counterclaim, for lack of merit, is hereby dismissed. No pronouncement is made as to cost. SO ORDERED. 6 Dissatisfied therewith, the private respondent went to the Court of Appeals on a Petition for Review; theorizing that: I. The Lower Court erred in holding that Francisco Arguelles and Emilia Pineli were legally married and that Leogardo (sic) Arguelles was their legitimate daughter. II. The Lower Court erred in not holding that the cause of action of the plaintiffs-appellees if any, had already prescribed. III. The Lower Court erred in ordering the partition of the property involved in this case among the plaintiffs-appellees and the defendant-appellant. 7 On October 26, 1989, the Court of Appeals handed down its judgment, reversing the decision of the Regional Trial Court of origin and disposing as follows:

WHEREFORE, judgment is hereby entered REVERSING the decision appealed from and DISMISSING the complaint for judicial partition. Without pronouncement as to costs. SO ORDERED. 8 With the denial with their Motion For Reconsideration on January 4, 1991, petitioners found their way to this court via the present Petition; posing as issues: I. WHETHER OR NOT A MAN AND A WOMAN WHO LIVED TOGETHER AS HUSBAND AND WIFE ARE PRESUMED MARRIED; and. II. WHETHER THE BORN OUT OF SUCH MARRIAGE IS LEGITIMATE OR NOT. 9 The pivotal issue for determination is: whether or not the petitioners offered sufficient evidence to substantiate their submission that Francisco Arguelles and Emilia Pineli were legally married. Sec. 3 (aa) of Rule 131 of the Revised Rules of Court provides: Sec. 3. Disputable presumptions, The following presumptions are satisfactory if uncontradicted, but maybe contradicted or overcome by other evidence xxx xxx xxx (aa) That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage; xxx xxx xxx Guided by the aforecited provision of law, the trial court ratiocinated: The fact that no marriage certificate of Francisco Arguelles and Emilia Pineli was submitted in evidence does not lead to the conclusion that the said parties were not legally married and that Leogarda was their illegitimate child. The defendant admitted that his father and Emilia Pineli lived and cohabited together as husband and wife, even staying in the same house were he was also residing. The presumption is that 'A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage (sic) (Sec. 5(bb), Rule 131, Rules of Court). 10 Every intendment of law or facts leans toward the validity of marriage and the legitimacy of children (Art. 220, Civil Code). In this case, no evidence was adduced by defendant Arguelles to rebut this presumption. Neither did he attempt to show that Francisco and Emilia could not validity marry each other because of some legal impediments to their marriage. 11 While it is true that Francisco Arguelles and Emilia Pineli cohabited as husband and wife, private respondent Simon Arguelles testified that the said cohabitation was without the benefit of marriage. In People vs. Borromeo 12, this Court held that persons living together in apparent matrimony are presumed, absent any counter presumption or evidence special to the case, to be in fact married. 13 In the case under consideration, the presumption of marriage, on which the trial court premised its decision, has been sufficiently offset. 14 Records reveal that petitioners tried to justify the non-presentation of the marriage certificate of Francisco and Emilia by submitting a certification issued by Assistant Treasurer Lucila Lucero of Naic, Cavite, to the effect that: the Marriage Certificate of Francisco Arguelles married to Emilia Pineli on the 18th day of August, 1918 at Naic, Cavite, is no longer available due to destruction of the records during the Japanese occupation, and as such no certified copy of Marriage could be issued to the parties concerned. 15 However, Assistant Treasurer Lucila Lucero admitted later 16 on the witness stand that she signed the said certificate prepared by a certain Consuelo Pangilinan, without verifying its correctness. In reality, the records of marriages of Naic are intact. The said records were brought and examined before the trial court, and its pages 20 to 22 containing entries from July 3, 1917 to May 30, 1918 do not reflect the names of Francisco Arguelles and Emilia Pineli.

So also, the death certificate of Francisco Arguelles contained the word "none" opposite the phrase "surviving spouse", indicating that he died a widower on February 18, 1949. His deceased wife was Petrona Reyes, the mother of private respondent. 17 Then too, TCT No. 21877 covering Lot 926 as well as the reconstituted TCT No. 21877, RT-19055, show the status of Francisco Arguelles as "widower". 18 On this point, the respondent court said: . . . Emilia would not have allowed Francisco Arguelles to place the property in his name alone as widower if in fact they were legally married to each other. If there was a mistake in indicating in the title Francisco's status as a widower, the same could have been easily cured by presenting a petition for correction in the proper court. If it is true, as Tiburcio Pangilinan testified, that the certificate of title was the possession of Emilia Pineli and was given to him (Tiburcio) before her death, there is no conceivable reason why Emilia never exerted any effort to correct the mistake in the description of Francisco's status in the certificate of title as 'widower' knowing that she would not be able to transmit any part of the property to her heirs upon her death if the error was not corrected. Her omission only serves to bolster the proposition that she had no right to protect, in the first place, because she was not legally married to Francisco. 19 Consequently, with the presumption of marriage sufficiently overcome, the onus probandi of the private respondent shifted to the petitioners. It then became the burden of the petitioners, Virginia P. Sarmiento and Apolonia P. Catibayan, to prove that their deceased grandparents, Francisco Arguelles and Emilia Pineli, were legally married. In Trinidad vs. Court of Appeals, et a1. 20, this Court ruled that as proof of marriage may be presented: a) testimony of a witness to the matrimony; b) the couple's public and open cohabitation as husband and wife after the alleged wedlock; c) the birth and baptismal certificate of children born during such union; and d) the mention of such nuptial in subsequent documents. Pertinent records show that the petitioners failed to substantiate their theory that Francisco Arguelles and Emilia Pineli were married. What is more, the available records of marriage contradict the allegation that Francisco Arguelles and Emilia Pineli were legally married. But petitioners, to whom the burden of proving the fact of marriage shifted, did not present anybody who witnessed the marriage ceremony of Francisco Arguelles and Emilia Pineli. As aptly reasoned out by the respondent court: . . . Not one of the three witnesses for plaintiffs ever declared having observed that Francisco and Emilia acted as husband and wife. Tiburcio Pangilinan testified mainly on the fact that he is the father of the plaintiffs and husband of the late Leogarda Arguelles who was the daughter of Francisco Arguelles and Emilia Pineli. The rest of his testimony touched on the certificate of tittle covering Lot 926 which Emilia allegedly delivered two weeks before she died but was later on taken from him by defendant. Plaintiffs on their part did not testify that Francisco Arguelles and Emilia Pineli lived together as husband and wife, which may be explained by the fact that Virginia Sarmiento and Apolonia Catibayan where only 6 and 5 years old, respectively, when Emilia Pineli died and were then too young to perceive the nature of whatever the relationship existed Francisco and Emilia. 21 Evidently, petitioners relied mainly on the legal presumption that Francisco Arguelles and Emilia Pineli were married, without introducing any evidence to prove the marriage theorized upon. In a belated attempt to establish the legitimacy of Leogarda Arguelles, petitioners have theorized for the first time, in the present Petition, that the birth certificate 22 of Leogarda Arguelles which they allegedly presented during the trial below, shows the legitimate status of Leogarda Arguelles. 23 Concededly, such birth certificate may be used to show the alleged marriage. But be that as it may, the totality of evidence for the private respondent preponderates over petitioners'. Preponderant evidence means that, as a whole, the evidence adduced by one side outweighs that of the adverse party. 24 Compared with the evidence introduced by the private respondent, petitioners rely heavily on the legal presumption of marriage which, as earlier pointed out, has been effectively rebutted. We are concluded by the factual findings of the Court of Appeals. Premises studiedly considered, we are of the ineluctable conclusion, and so hold, that the Court of Appeals erred not in reversing the decision of the Regional Trial Court a quo. WHEREFORE, the Petition is DENIED and the assailed Decision, dated October 26, 1989, and Resolution, dated January 4, 1991, of the Court of Appeals AFFIRMED. No pronouncement as to costs.

SO ORDERED. Romero, Vitug, Panganiban and Gonzaga-Reyes, JJ., concur

Republic of the Philippines SUPREME COURT Manila 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.

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 father's death, petitioners filed a petition for declaration of nullity of the marriage of Pepito to Norma alleging that the said marriage was void for lack of a marriage license. The case was filed under the assumption that the validity or invalidity of the second marriage would affect petitioner's successional rights. Norma filed a motion to dismiss on the ground that petitioners have no cause of action since they are not among the persons who could file an action for "annulment of marriage" under Article 47 of the Family Code. 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 father's death. 1

Thus, the lower court ruled that petitioners should have filed the action to declare null and void their father's marriage to respondent before his death, applying by analogy Article 47 of the Family Code which enumerates the time and the persons who could initiate an action for annulment of marriage. 2 Hence, this petition for review with this Court grounded on a pure question of law. This petition was originally dismissed for non-compliance with Section 11, Rule 13 of the 1997 Rules of Civil Procedure, and because "the verification failed to state the basis of petitioner's averment that the allegations in the petition are "true and correct"." It was thus treated as an unsigned pleading which produces no legal effect under Section 3, Rule 7, of the 1997 Rules. 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 State's 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 applicant's 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. 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 anytime 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: Art. 63: . . . This notice shall request all persons having knowledge of any impediment to the marriage to advice the local civil registrar thereof. . . . Art. 64: Upon being advised of any alleged impediment to the marriage, the local civil registrar shall forthwith make an investigation, examining persons under oath. . . . This is reiterated in the Family Code thus: Art. 17 provides in part: . . . This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. . . . Art. 18 reads in part: . . . 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. . . . 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 respondent's marriage, it cannot be said that they have lived with each other as husband and wife for at least five years prior to their wedding day. From the time Pepito's first marriage was dissolved to the time of his marriage with respondent, only about twenty months had elapsed. Even assuming that Pepito and his first wife had separated in fact, and thereafter both Pepito and respondent had started living with each other that has already lasted for five years, the fact remains that their five-year period cohabitation was not the cohabitation contemplated by law. It should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract. Pepito had a subsisting marriage at the time when he started cohabiting with respondent. It is immaterial that when they lived with each other, Pepito had already been separated in fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of the filial companionship between the spouses cannot make any cohabitation by either spouse with any third party as being one as "husband and wife". Having determined that the second marriage involved in this case is not covered by the exception to the requirement of a marriage license, it is void ab initio because of the absence of such element. The next issue to be resolved is: do petitioners have the personality to file a petition to declare their father's marriage void after his death? Contrary to respondent judge's ruling, Article 47 of the Family Code 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 anytime 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. Contrary to the trial court's ruling, the death of petitioner's father extinguished the alleged marital bond between him and respondent. The conclusion is erroneous and proceeds from a wrong premise that there was a marriage bond that was dissolved between the two. It should be noted that their marriage was void hence it is deemed as if it never existed at all and the death of either extinguished nothing. Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the nullity of a marriage. 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.

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.1wphi1.nt SO ORDERED. Davide, Jr., C.J., Puno and Kapunan, JJ., concur. Pardo, J., on official business abroad.