SECOND DIVISION 

[G.R. No. 185064, January 16, 2012] 

SPOUSES ARACELI OLIVA-DE MESA AND ERNESTO S. DE MESA, PETITIONER, VS. SPOUSES CLAUDIO D. ACERO, JR. AND MA. RUFINA D. ACERO, SHERIFF

FELIXBERTO L. SAMONTE AND REGISTRAR ALFREDO SANTOS, RESPONDENTS.

D E C I S I O N 

REYES, J.:

Nature of the Petition 

This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by the Spouses Araceli Oliva-De Mesa (Araceli) and Ernesto S. De Mesa (Ernesto), assailing the Court of Appeals’ (CA) Decision[1] dated June 6, 2008 and Resolution[2]dated October 23, 2008 in CA-G.R. CV No. 79391 entitled “Spouses Araceli Oliva-De Mesa and Ernesto De Mesa v. Spouses Claudio Acero, Jr., et al.”

The Antecedent Facts 

This involves a parcel of land situated at No. 3 Forbes Street, Mount Carmel Homes Subdivision, Iba, Meycauayan, Bulacan, which was formerly covered by Transfer Certificate of Title (TCT) No. T-76.725 (M) issued by the Register of Deeds of Meycauayan, Bulacan and registered under Araceli’s name. The petitioners jointly purchased the subject property on April 17, 1984 while they were still merely cohabiting before their marriage. A house was later constructed on the subject property, which the petitioners thereafter occupied as their family home after they got married sometime in January 1987.

Sometime in September 1988, Araceli obtained a loan from Claudio D. Acero, Jr. (Claudio) in the amount of P100,000.00, which was secured by a mortgage over the subject property. As payment, Araceli issued a check drawn against China Banking Corporation payable to Claudio.

When the check was presented for payment, it was dishonored as the account from which it was drawn had already been closed. The petitioners failed to heed Claudio’s subsequent demand for payment.

Thus, on April 26, 1990, Claudio filed with the Prosecutor's Office of Malolos, Bulacan a complaint for violation of Batas Pambansa Blg. 22 (B.P. 22) against the petitioners. After preliminary investigation, an information for violation of B.P. 22 was filed against the petitioners with the Regional Trial Court (RTC) of Malolos, Bulacan.

On October 21, 1992, the RTC rendered a Decision[3] acquitting the petitioners but ordering them to pay Claudio the amount of P100,000.00 with legal interest from date of demand until fully paid.

On March 15, 1993, a writ of execution was issued and Sheriff Felixberto L. Samonte (Sheriff Samonte) levied upon the subject property. On March 9, 1994, the subject property was sold on public auction; Claudio was the highest bidder and the corresponding certificate of sale was issued to him.

Sometime in February 1995, Claudio leased the subject property to the petitioners and a

certain Juanito Oliva (Juanito) for a monthly rent of P5,500.00. However, the petitioners and Juanito defaulted in the payment of the rent and as of October 3, 1998, their total accountabilities to Claudio amounted to P170,500.00.

Meanwhile, on March 24, 1995, a Final Deed of Sale[4] over the subject property was issued to Claudio and on April 4, 1995, the Register of Deeds of Meycauayan, Bulacan cancelled TCT No. T-76.725 (M) and issued TCT No. T-221755 (M)[5] in his favor.

Unable to collect the aforementioned rentals due, Claudio and his wife Ma. Rufina Acero (Rufina) (collectively referred to as Spouses Acero) filed a complaint for ejectment with the Municipal Trial Court (MTC) of Meycauayan, Bulacan against the petitioners and Juanito. In their defense, the petitioners claimed that Spouses Acero have no right over the subject property. The petitioners deny that they are mere lessors; on the contrary, they are the lawful owners of the subject property and, thus cannot be evicted therefrom.

On July 22, 1999, the MTC rendered a Decision,[6] giving due course to Spouses Acero’s complaint and ordering the petitioners and Juanito to vacate the subject property. Finding merit in Spouses Acero’s claims, the MTC dismissed the petitioners' claim of ownership over the subject property. According to the MTC, title to the subject property belongs to Claudio as shown by TCT No. T-221755 (M).

The MTC also stated that from the time a Torrens title over the subject property was issued in Claudio’s name up to the time the complaint for ejectment was filed, the petitioners never assailed the validity of the levy made by Sheriff Samonte, the regularity of the public sale that was conducted thereafter and the legitimacy of Claudio’s Torrens title that was resultantly issued.

The petitioners appealed the MTC’s July 22, 1999 Decision to the RTC. This appeal was, however, dismissed in a Decision dated November 22, 1999 due to the petitioners’ failure to submit their Memorandum. The petitioners sought reconsideration of the said decision but the same was denied in an Order dated January 31, 2000.

Consequently, the petitioners filed a petition for review[7] with the CA assailing the RTC’s November 22, 1999 Decision and January 31, 2000 Order. In a December 21, 2006 Decision,[8] the CA denied the petitioner’s petition for review. This became final on July 25, 2007.[9]

In the interregnum, on October 29, 1999, the petitioners filed against the respondents a complaint[10] to nullify TCT No. T-221755 (M) and other documents with damages with the RTC of Malolos, Bulacan. Therein, the petitioners asserted that the subject property is a family home, which is exempt from execution under the Family Code and, thus, could not have been validly levied upon for purposes of satisfying the March 15, 1993 writ of execution.

On September 3, 2002, the RTC rendered a Decision,[11] which dismissed the petitioners’ complaint. Citing Article 155(3) of the Family Code, the RTC ruled that even assuming that the subject property is a family home, the exemption from execution does not apply. A mortgage was constituted over the subject property to secure the loan Araceli obtained from Claudio and it was levied upon as payment therefor.

The petitioners sought reconsideration of the RTC’s September 3, 2002 Decision but this was denied in a Resolution[12] dated January 14, 2003.

On appeal, the CA affirmed the RTC’s disposition in its Decision[13] dated June 6, 2008. The CA ratiocinated that the exemption of a family home from execution, attachment or forced

sale under Article 153 of the Family Code is not automatic and should accordingly be raised and proved to the Sheriff prior to the execution, forced sale or attachment. The appellate court noted that at no time did the petitioners raise the supposed exemption of the subject property from execution on account of the same being a family home.

The petitioners then sought reconsideration of the said June 6, 2008 Decision but the same was denied by the CA in its Resolution[14] dated October 23, 2008.

Aggrieved, the petitioners filed the instant petition for review, praying for the cancellation of TCT No. T-221755 (M). They insist that the execution sale that was conducted is a nullity considering that the subject property is a family home. The petitioners assert that, contrary to the disposition of the CA, a prior demonstration that the subject property is a family home is not required before it can be exempted from execution.

In their Comment,[15] Spouses Acero claimed that this petition ought to be denied on the ground of forum-shopping as the issues raised had already been determined by the MTC in its July 22, 1999 Decision on the complaint for ejectment filed by them, which had already become final and executory following the petitioner’s failure to appeal the CA’s December 21, 2006 Decision affirming it.

Issues

The threshold issues for resolution are the following: (a) whether the petitioners are guilty of forum-shopping; and (b) whether the lower courts erred in refusing to cancel Claudio’s Torrens title TCT No. T-221755 (M) over the subject property.

The Court’s Ruling

First Issue: Forum-Shopping

On the first issue, we find that the petitioners are not guilty of forum-shopping.

There is forum-shopping when as a result of an adverse decision in one forum, or in anticipation thereof, a party seeks a favorable opinion in another forum through means other than an appeal or certiorari. Forum-shopping exists when two or more actions involve the same transactions, essential facts, and circumstances; and raise identical causes of action, subject matter, and issues.[16]

Forum-shopping exists where the elements of litis pendentia are present, and where a final judgment in one case will amount to res judicata in the other. The elements of forum-shopping are: (a) identity of parties, or at least such parties as would represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity of the two preceding particulars such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.[17]

There is no identity of issues and reliefs prayed for in the ejectment case and in the action to cancel TCT No. T-221755 (M). Verily, the primordial issue in the ejectment case is who among the contending parties has a better right of possession over the subject property while ownership is the core issue in an action to cancel a Torrens title.

It is true that the petitioners raised the issue of ownership over the subject property in the ejectment case. However, the resolution thereof is only provisional as the same is solely for the purpose of determining who among the parties therein has a better right of possession

over the subject property.

Accordingly, a judgment rendered in an ejectment case is not a bar to action between the same parties respecting title to the land or building. Neither shall it be conclusive as to the facts therein. This issue is far from being novel and there is no reason to depart from this Court’s previous pronouncements. In Malabanan v. Rural Bank of Cabuyao, Inc.,[18] this Court had previously clarified that a decision in an ejectment case is not res judicata in an annulment of title case and vice-versa given the provisional and inconclusive nature of the determination of the issue of ownership in the former.

Forum-shopping exists where the elements of litis pendentia are present, namely: (a) identity of parties or at least such as representing the same interests in both actions; (b) identity of rights asserted and reliefs prayed for, the relief being founded on the same facts; and (c) the identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amounts to res judicata in the other.

Petitioner and respondent are the same parties in the annulment and ejectment cases. The issue of ownership was likewise being contended, with same set of evidence being presented in both cases. However, it cannot be inferred that a judgment in the ejectment case would amount to res judicata in the annulment case, and vice-versa.

This issue is hardly a novel one. It has been laid to rest by heaps of cases iterating the principle that a judgment rendered in an ejectment case shall not bar an action between the same parties respecting title to the land or building nor shall it be conclusive as to the facts therein found in a case between the same parties upon a different cause of action involving possession.

It bears emphasizing that in ejectment suits, the only issue for resolution is the physical or material possession of the property involved, independent of any claim of ownership by any of the party litigants. However, the issue of ownership may be provisionally ruled upon for the sole purpose of determining who is entitled to possessionde facto. Therefore, the provisional determination of ownership in the ejectment case cannot be clothed with finality.

Corollarily, the incidental issue of whether a pending action for annulment would abate an ejectment suit must be resolved in the negative.

A pending action involving ownership of the same property does not bar the filing or consideration of an ejectment suit, nor suspend the proceedings. This is so because an ejectment case is simply designed to summarily restore physical possession of a piece of land or building to one who has been illegally or forcibly deprived thereof, without prejudice to the settlement of the parties' opposing claims of juridical possession in appropriate proceedings.[19] (citations omitted)

Second Issue: Nullification of TCT No. T-221755 (M) 

Anent the second issue, this Court finds that the CA did not err in dismissing the petitioners’ complaint for nullification of TCT No. T-221755 (M).

The subject property is a family home.

The petitioners maintain that the subject property is a family home and, accordingly, the sale thereof on execution was a nullity. In Ramos v. Pangilinan,[20] this Court laid down the rules relative to exemption of family homes from execution:

For the family home to be exempt from execution, distinction must be made as to what law applies based on when it was constituted and what requirements must be complied with by the judgment debtor or his successors claiming such privilege.Hence, two sets of rules are applicable.

If the family home was constructed before the effectivity of the Family Code or before August 3, 1988, then it must have been constitutedeither judicially or extra-judicially as provided under Articles 225, 229-231 and 233 of the Civil Code. Judicial constitution of the family home requires the filing of a verified petition before the courts and the registration of the court’s order with the Registry of Deeds of the area where the property is located.Meanwhile, extrajudicial constitution is governed by Articles 240 to 242 of the Civil Code and involves the execution of a public instrument which must also be registered with the Registry ofProperty.Failure to comply with either one of these two modes of constitution will bar a judgment debtor from availing of the privilege.

On the other hand, for family homes constructed after the effectivity of the Family Code on August 3, 1988, there is no need to constitute extrajudicially or judicially, and the exemption is effective from the timeit was constituted and lasts as long as any of its beneficiaries under Art. 154 actually resides therein. Moreover, the family home should belong to the absolute community or conjugal partnership, or if exclusively by one spouse, its constitution must have beenwithconsent of the other, and its valuemustnotexceed certain amounts depending upon the area where it is located. Further, the debts incurred for which the exemption does not apply as provided under Art. 155 for which the family home is made answerable must have been incurred after August 3, 1988.[21] (citations omitted)

In the earlier case of Kelley, Jr. v. Planters Products, Inc.,[22] we stressed that:

Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All family homes constructed after the effectivity of the Family Code (August 3, 1988) are constituted as such by operation of law. All existing family residences as of August 3, 1988 are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code.[23] (emphasis supplied and citation omitted)

The foregoing rules on constitution of family homes, for purposes of exemption from execution, could be summarized as follows:

First, family residences constructed before the effectivity of the Family Code or before August 3, 1988 must be constituted as a family home either judicially or extrajudicially in accordance with the provisions of the Civil Code in order to be exempt from execution;

Second, family residences constructed after the effectivity of the Family Code on August 3, 1988 are automatically deemed to be family homes and thus exempt from execution from the time it was constituted and lasts as long as any of its beneficiaries actually resides therein;

Third, family residences which were not judicially or extrajudicially constituted as a family home prior to the effectivity of the Family Code, but were existing thereafter, are considered as family homes by operation of law and are prospectively entitled to the benefits accorded to a family home under the Family Code.

Here, the subject property became a family residence sometime in January 1987. There was no showing, however, that the same was judicially or extrajudicially constituted as a family home in accordance with the provisions of the Civil Code. Still, when the Family Code took

effect on August 3, 1988, the subject property became a family home by operation of law and was thus prospectively exempt from execution. The petitioners were thus correct in asserting that the subject property was a family home.

The family home’s exemption from execution must be set up and proved to the Sheriff beforethe sale of the property at public auction.

Despite the fact that the subject property is a family home and, thus, should have been exempt from execution, we nevertheless rule that the CA did not err in dismissing the petitioners’ complaint for nullification of TCT No. T-221755 (M). We agree with the CA that the petitioners should have asserted the subject property being a family home and its being exempted from execution at the time it was levied or within a reasonable time thereafter. As the CA aptly pointed out:

In the light of the facts above summarized, it is evident that appellants did not assert their claim of exemption within a reasonable time. Certainly, reasonable time, for purposes of the law on exemption, does not mean a time after the expiration of the one-year period provided for in Section 30 of Rule 39 of the Rules of Court for judgment debtors to redeem the property sold on execution, otherwise it would render nugatory final bills of sale on execution and defeat the very purpose of execution – to put an end to litigation. x x x.[24]

The foregoing disposition is in accord with the Court’s November 25, 2005 Decision inHonrado v. Court of Appeals,[25] where it was categorically stated that at no other time can the status of a residential house as a family home can be set up and proved and its exemption from execution be claimed but before the sale thereof at public auction:

While it is true that the family home is constituted on a house and lot from the time it is occupied as a family residence and is exempt from execution or forced sale under Article 153 of the Family Code, such claim for exemption should be set up and proved to the Sheriff before the sale of the property at public auction. Failure to do so would estop the party from later claiming the exemption. As this Court ruled inGomez v. Gealone:

Although the Rules of Court does not prescribe the period within which to claim the exemption, the rule is, nevertheless, well-settled that the right of exemption is a personal privilege granted to the judgment debtor and as such, it must be claimed not by the sheriff, but by the debtor himself at the time of the levy or within a reasonable period thereafter;

“In the absence of express provision it has variously held that claim (for exemption) must be made at the time of the levy if the debtor is present, that it must be made within a reasonable time, or promptly, or before the creditor has taken any step involving further costs, or before advertisement of sale, or at any time before sale, or within a reasonable time before the sale, or before the sale has commenced, but as to the last there is contrary authority.”

In the light of the facts above summarized, it is self-evident that appellants did not assert their claim of exemption within a reasonable time. Certainly, reasonable time, for purposes of the law on exemption, does not mean a time after the expiration of the one-year period provided for in Section 30 of Rule 39 of the Rules of Court for judgment debtors to redeem the property sold on execution, otherwise it would render nugatory final bills of sale on execution and defeat the very purpose of execution—to put an end to litigation. We said before, and We repeat it now, that litigation must end and terminate sometime and somewhere, and it is essential to an effective administration of justice that, once a judgment has become final, the winning party be not, through a mere subterfuge, deprived of the

fruits of the verdict. We now rule that claims for exemption from execution of properties under Section 12 of Rule 39 of the Rules of Court must be presented before its sale on execution by the sheriff.[26] (citations omitted)

Reiterating the foregoing in Spouses Versola v. Court of Appeals,[27] this Court stated that:

Under the cited provision, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence; there is no need to constitute the same judicially or extrajudicially.

The settled rule is that the right to exemption or forced sale under Article 153 of the Family Code is a personal privilege granted to the judgment debtor and as such, it must be claimed not by the sheriff, but by the debtor himself before the sale of the property at public auction. It is not sufficient that the person claiming exemption merely alleges that such property is a family home.This claim for exemption must be set up and proved to the Sheriff. x x x.[28] (emphasis supplied and citations omitted)

Having failed to set up and prove to the sheriff the supposed exemption of the subject property before the sale thereof at public auction, the petitioners now are barred from raising the same. Failure to do so estop them from later claiming the said exemption.

Indeed, the family home is a sacred symbol of family love and is the repository of cherished memories that last during one’s lifetime.[29] It is likewise without dispute that the family home, from the time of its constitution and so long as any of its beneficiaries actually resides therein, is generally exempt from execution, forced sale or attachment.[30]

The family home is a real right, which is gratuitous, inalienable and free from attachment. It cannot be seized by creditors except in certain special cases.[31]However, this right can be waived or be barred by laches by the failure to set up and prove the status of the property as a family home at the time of the levy or a reasonable time thereafter.

In this case, it is undisputed that the petitioners allowed a considerable time to lapse before claiming that the subject property is a family home and its exemption from execution and forced sale under the Family Code. The petitioners allowed the subject property to be levied upon and the public sale to proceed. One (1) year lapsed from the time the subject property was sold until a Final Deed of Sale was issued to Claudio and, later, Araceli’s Torrens title was cancelled and a new one issued under Claudio’s name, still, the petitioner remained silent. In fact, it was only after the respondents filed a complaint for unlawful detainer, or approximately four (4) years from the time of the auction sale, that the petitioners claimed that the subject property is a family home, thus, exempt from execution.

For all intents and purposes, the petitioners’ negligence or omission to assert their right within a reasonable time gives rise to the presumption that they have abandoned, waived or declined to assert it. Since the exemption under Article 153 of the Family Code is a personal right, it is incumbent upon the petitioners to invoke and prove the same within the prescribed period and it is not the sheriff’s duty to presume or raise the status of the subject property as a family home.

The petitioners’ negligence or omission renders their present assertion doubtful; it appears that it is a mere afterthought and artifice that cannot be countenanced without doing the respondents injustice and depriving the fruits of the judgment award in their favor. Simple justice and fairness and equitable considerations demand that Claudio’s title to the property be respected. Equity dictates that the petitioners are made to suffer the consequences of

their unexplained negligence.

WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The assailed Decision dated June 6, 2008 of the Court of Appeals in CA-G.R. CV No. 79391, which affirmed the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22, in Civil Case No. 1058-M-99 and dismissed the complaint for declaration of nullity of TCT No. 221755 (M) and other documents, and the October 23, 2008 Resolution denying reconsideration, are AFFIRMED.

SO ORDERED.

Carpio, (Chairperson), Perez, Sereno, and Bernabe, JJ.* concur.

SECOND DIVISION 

[G. R. No. 183622, February 08, 2012] 

MEROPE ENRIQUEZ VDA. DE CATALAN, PETITIONER, VS. LOUELLA A. CATALAN-LEE, RESPONDENT.

R E S O L U T I O N 

SERENO, J.:

Before us is a Petition for Review assailing the Court of Appeals (CA) Decision[1] and Resolution[2] regarding the issuance of letters of administration of the intestate estate of Orlando B. Catalan.

The facts are as follows:

Orlando B. Catalan was a naturalized American citizen. After allegedly obtaining a divorce in the United States from his first wife, Felicitas Amor, he contracted a second marriage with petitioner herein.

On 18 November 2004, Orlando died intestate in the Philippines.

Thereafter, on 28 February 2005, petitioner filed with the Regional Trial Court (RTC) of Dagupan City a Petition for the issuance of letters of administration for her appointment as administratrix of the intestate estate of Orlando. The case was docketed as Special Proceedings (Spec. Proc.) No. 228.

On 3 March 2005, while Spec. Proc. No. 228 was pending, respondent Louella A. Catalan-Lee, one of the children of Orlando from his first marriage, filed a similar petition with the RTC docketed as Spec. Proc. No. 232.

The two cases were subsequently consolidated.

Petitioner prayed for the dismissal of Spec. Proc. No. 232 on the ground of litis pendentia, considering that Spec. Proc. No. 228 covering the same estate was already pending.

On the other hand, respondent alleged that petitioner was not considered an interested person qualified to file a petition for the issuance of letters of administration of the estate of Orlando. In support of her contention, respondent alleged that a criminal case for bigamy was filed against petitioner before Branch 54 of the RTC of Alaminos, Pangasinan, and docketed as Crim. Case No. 2699-A.

Apparently, Felicitas Amor filed a Complaint for bigamy, alleging that petitioner contracted a second marriage to Orlando despite having been married to one Eusebio Bristol on 12 December 1959.

On 6 August 1998, the RTC had acquitted petitioner of bigamy.[3] The trial court ruled that since the deceased was a divorced American citizen, and since that divorce was not recognized under Philippine jurisdiction, the marriage between him and petitioner was not valid.

Furthermore, it took note of the action for declaration of nullity then pending action with the trial court in Dagupan City filed by Felicitas Amor against the deceased and petitioner. It considered the pending action to be a prejudicial question in determining the guilt of petitioner for the crime of bigamy.

Finally, the trial court found that, in the first place, petitioner had never been married to Eusebio Bristol.

On 26 June 2006, Branch 70 of the RTC of Burgos, Pangasinan  dismissed the Petition for the issuance of letters of administration filed by petitioner and granted that of private respondent. Contrary to its findings in Crim. Case No. 2699-A, the RTC held that the marriage between petitioner and Eusebio Bristol was valid and subsisting when she married

Orlando. Without expounding, it reasoned further that her acquittal in the previous bigamy case was fatal to her cause. Thus, the trial court held that petitioner was not an interested party who may file a petition for the issuance of letters of administration.[4]

After the subsequent denial of her Motion for Reconsideration, petitioner elevated the matter to the Court of Appeals (CA) via her Petition for Certiorari, alleging grave abuse of discretion on the part of the RTC in dismissing her Petition for the issuance of letters of administration.

Petitioner reiterated before the CA that the Petition filed by respondent should have been dismissed on the ground of litis pendentia. She also insisted that, while a petition for letters of administration may have been filed by an "uninterested person," the defect was cured by the appearance of a real party-in-interest.  Thus, she insisted that, to determine who has a better right to administer the decedent's properties, the RTC should have first required the parties to present their evidence before it ruled on the matter.

On 18 October 2007, the CA promulgated the assailed Decision. First, it held that petitioner undertook the wrong remedy. She should have instead filed a petition for review rather than a petition for certiorari. Nevertheless, since the Petition for Certiorari was filed within the fifteen-day reglementary period for filing a petition for review under Sec. 4 of Rule 43, the CA allowed the Petition and continued to decide on the merits of the case. Thus, it ruled in this wise:

As to the issue of litis pendentia, we find it not applicable in the case. For litis pendentia to be a ground for the dismissal of an action, there must be: (a) identity of the parties or at least such as to represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same acts, and (c) the identity in the two cases should be such that the judgment which may be rendered in one would, regardless of which party is successful, amount to res judicata in the other. A petition for letters of administration is a special proceeding. A special proceeding is an application or proceeding to establish the status or right of a party, or a particular fact. And, in contrast to an ordinary civil action, a special proceeding involves no defendant or respondent. The only party in this kind of proceeding is the petitioner of the applicant. Considering its nature, a subsequent petition for letters of administration can hardly be barred by a similar pending petition involving the estate of the same decedent unless both petitions are filed by the same person. In the case at bar, the petitioner was not a party to the petition filed by the private respondent, in the same manner that the latter was not made a party to the petition filed by the former. The first element of litis pendentia is wanting. The contention of the petitioner must perforce fail.

Moreover, to yield to the contention of the petitioner would render nugatory the provision of the Rules requiring a petitioner for letters of administration to be an "interested party," inasmuch as any person, for that matter, regardless of whether he has valid interest in the estate sought to be administered, could be appointed as administrator for as long as he files his petition ahead of any other person, in derogation of the rights of those specifically mentioned in the order of preference in the appointment of administrator under Rule 78, Section 6 of the Revised Rules of Court, which provides:

xxx  xxx  xxx

The petitioner, armed with a marriage certificate, filed her petition for letters of administration. As a spouse, the petitioner would have been preferred to administer the estate of Orlando B. Catalan. However, a marriage certificate, like any other public document, is only prima facieevidence of the facts stated therein. The fact that the

petitioner had been charged with bigamy and was acquitted has not been disputed by the petitioner. Bigamy is an illegal marriage committed by contracting a second or subsequent marriage before the first marriage has been dissolved or before the absent spouse has been declared presumptively dead by a judgment rendered in a proper proceedings. The deduction of the trial court that the acquittal of the petitioner in the said case negates the validity of her subsequent marriage with Orlando B. Catalan has not been disproved by her. There was not even an attempt from the petitioner to deny the findings of the trial court. There is therefore no basis for us to make a contrary finding. Thus, not being an interested party and a stranger to the estate of Orlando B. Catalan, the dismissal of her petition for letters of administration by the trial court is in place.

xxx  xxx  xxx

WHEREFORE, premises considered, the petition is DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.[5] (Emphasis supplied)

Petitioner moved for a reconsideration of this Decision.[6]  She alleged that the reasoning of the CA was illogical in stating, on the one hand, that she was acquitted of bigamy, while, on the other hand, still holding that her marriage with Orlando was invalid. She insists that with her acquittal of the crime of bigamy, the marriage enjoys the presumption of validity.

On 20 June 2008, the CA denied her motion.

Hence, this Petition.

At the outset, it seems that the RTC in the special proceedings failed to appreciate the finding of the RTC in Crim. Case No. 2699-A that petitioner was never married to Eusebio Bristol. Thus, the trial court concluded that, because petitioner was acquitted of bigamy, it follows that the first marriage with Bristol still existed and was valid.  By failing to take note of the findings of fact on the nonexistence of the marriage between petitioner and Bristol, both the RTC and CA held that petitioner was not an interested party in the estate of Orlando.

Second, it is imperative to note that at the time the bigamy case in Crim. Case No. 2699-A was dismissed, we had already ruled that under the principles of comity, our jurisdiction recognizes a valid divorce obtained by a spouse of foreign nationality. This doctrine was established as early as 1985 in Van Dorn v. Romillo, Jr.[7] wherein we said:

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces[,] the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. xxx

We reiterated this principle in Llorente v. Court of Appeals,[8] to wit:

In Van Dorn v. Romillo, Jr. we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. In

the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law.

Citing this landmark case, the Court held in Quita v. Court of Appeals, that once proven that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become applicable and petitioner could "very well lose her right to inherit" from him.   

In Pilapil v. Ibay-Somera, we recognized the divorce obtained by the respondent in his country, the Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons.

For failing to apply these doctrines, the decision of the Court of Appeals must be reversed. We hold that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction as a matter of comity. xxx

Nonetheless, the fact of divorce must still first be proven as we have enunciated inGarcia v. Recio,[9] to wit:

Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and admitted in evidence. A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself. The decree purports to be a written act or record of an act of an official body or tribunal of a foreign country.

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.

The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian family court. However, appearance is not sufficient; compliance with the aforementioned rules on evidence must be demonstrated.

Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil Registry of Cabanatuan City. The trial court ruled that it was admissible, subject to petitioner's qualification. Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia.

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer bound by Philippine personal laws after he acquired Australian citizenship in 1992. Naturalization is the legal act of adopting an alien and clothing him with the political and civil rights belonging to a citizen. Naturalized citizens, freed from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws.

Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of the divorce decree and was cognizant of the marital laws of Australia, because she had lived and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly known by Philippine courts; thus, judges may take judicial notice of foreign laws in the exercise of sound discretion.

We are not persuaded. The burden of proof lies with the "party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action." In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when those are denied by the answer; and defendants have the burden of proving the material allegations in their answer when they introduce new matters. Since the divorce was a defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him. 

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function. The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative. (Emphasis supplied)

It appears that the trial court no longer required petitioner to prove the validity of Orlando's divorce under the laws of the United States and the marriage between petitioner and the deceased. Thus, there is a need to remand the proceedings to the trial court for further reception of evidence to establish the fact of divorce.

Should petitioner prove the validity of the divorce and the subsequent marriage, she has the preferential right to be issued the letters of administration over the estate. Otherwise, letters of administration may be issued to respondent, who is undisputedly the daughter or next of kin of the deceased, in accordance with Sec. 6 of Rule 78 of the Revised Rules of Court.

This is consistent with our ruling in San Luis v. San Luis,[10] in which we said:

Applying the above doctrine in the instant case, the divorce decree allegedly obtained by Merry Lee which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal personality to file the present petition as Felicisimo's surviving spouse. However, the records show that there is insufficient evidence to prove the validity of the divorce obtained by Merry Lee as well as the marriage of respondent and Felicisimo under the laws of the U.S.A. In Garcia v. Recio, the Court laid down the specific guidelines for pleading and proving foreign law and divorce judgments. It held that presentation solely of the divorce decree is insufficient and that proof of its authenticity and due execution must be presented. Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.

With regard to respondent's marriage to Felicisimo allegedly solemnized in California, U.S.A., she submitted photocopies of the Marriage Certificate and the annotated text of the Family Law Act of California which purportedly show that their marriage was done in accordance with the said law. As stated in Garcia, however, the Court cannot take judicial notice of foreign laws as they must be alleged and proved.

Therefore, this case should be remanded to the trial court for further reception of evidence on the divorce decree obtained by Merry Lee and the marriage of respondent and Felicisimo. (Emphasis supplied)

Thus, it is imperative for the trial court to first determine the validity of the divorce to ascertain the rightful party to be issued the letters of administration over the estate of Orlando B. Catalan.

WHEREFORE, premises considered, the Petition is hereby PARTIALLY GRANTED.The Decision dated 18 October 2007 and the Resolution dated 20 June 2008 of the Court of Appeals are hereby REVERSED and SET ASIDE. Let this case beREMANDED to Branch 70 of the Regional Trial Court of Burgos, Pangasinan for further proceedings in accordance with this Decision.

SO ORDERED.

Carpio, (Chairperson), Brion, Perez, and Reyes, JJ., concur.

SECOND DIVISION

 

 

ALAIN M. DIÑO ,                                      G.R. No. 178044

Petitioner,

Present:

 

CARPIO, J., Chairperson,

- versus -                                            NACHURA,

PERALTA,

ABAD, and

MENDOZA, JJ.

MA. CARIDAD L. DIÑO,                          Promulgated:

Respondent.                                       January 19, 2011

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D E C I S I O N

 

CARPIO, J.:

 

The Case

 

Before the Court is a petition for review1 assailing the 18 October 2006 Decision2 and the 12 March 2007 Order3 of the Regional Trial Court of Las Piñas City, Branch 254 (trial court) in Civil Case No. LP-01-0149.

 

The Antecedent Facts

 

Alain M. Diño (petitioner) and Ma. Caridad L. Diño (respondent) were childhood friends and sweethearts. They started living together in 1984 until they decided to separate in 1994. In 1996, petitioner and respondent decided to live together again. On 14 January 1998, they were married before Mayor Vergel Aguilar of Las Piñas City.

 

On 30 May 2001, petitioner filed an action for Declaration of Nullity of Marriage against respondent, citing psychological incapacity under Article 36 of the Family Code. Petitioner alleged that respondent failed in her marital obligation to give love and support to him, and had abandoned her responsibility to the family, choosing instead to go on shopping sprees and gallivanting with her friends that depleted the family assets. Petitioner further alleged that respondent was not faithful, and would at times become violent and hurt him.

 

Extrajudicial service of summons was effected upon respondent who, at the time of the filing of the petition, was already living in the United States of America. Despite receipt of the summons, respondent did not file an answer to the petition within the reglementary period. Petitioner later learned that respondent filed a petition for divorce/dissolution of her marriage with petitioner, which was granted by the Superior Court of California on 25 May 2001. Petitioner also learned that on 5 October 2001, respondent married a certain Manuel V. Alcantara.

 

On 30 April 2002, the Office of the Las Piñas prosecutor found that there were no indicative facts of collusion between the parties and the case was set for trial on the merits.

 

Dr. Nedy L. Tayag (Dr. Tayag), a clinical psychologist, submitted a psychological report establishing that respondent was suffering from Narcissistic Personality Disorder which was deeply ingrained in her system since her early formative years. Dr. Tayag found that respondent’s disorder was long-lasting and by nature, incurable.

In its 18 October 2006 Decision, the trial court granted the petition on the ground that respondent was psychologically incapacited to comply with the essential marital obligations at the time of the celebration of the marriage.

 

The Decision of the Trial Court

 

The trial court ruled that based on the evidence presented, petitioner was able to establish respondent’s psychological incapacity. The trial court ruled that even without Dr. Tayag’s psychological report, the allegations in the complaint, substantiated in the witness stand, clearly made out a case of psychological incapacity against respondent. The trial court found that respondent committed acts which hurt and embarrassed petitioner and the rest of the family, and that respondent failed to observe mutual love, respect and fidelity required of her under Article 68 of the Family Code. The trial court also ruled that respondent abandoned petitioner when she obtained a divorce abroad and married another man.

 

The dispositive portion of the trial court’s decision reads:

 

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

 

1.      Declaring the marriage between plaintiff ALAIN M. DIÑO and defendant MA. CARIDAD L. DIÑO on January 14, 1998, and all its effects under the law, as NULL and VOID from the beginning; and

2.      Dissolving the regime of absolute community of property.

 

A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall only be issued upon compliance with Article[s] 50 and 51 of the Family Code.

 

Let copies of this Decision be furnished the parties, the Office of the Solicitor General, Office of the City Prosecutor, Las Piñas City and the Office of the Local Civil Registrar of Las Piñas City, for their information and guidance.

 

SO ORDERED.4

Petitioner filed a motion for partial reconsideration questioning the dissolution of the absolute community of property and the ruling that the decree of annulment shall only be issued upon compliance with Articles 50 and 51 of the Family Code.

 

In its 12 March 2007 Order, the trial court partially granted the motion and modified its 18 October 2006 Decision as follows:

 

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

 

1) Declaring the marriage between plaintiff ALAIN M. DIÑO and defendant MA. CARIDAD L. DIÑO on January 14, 1998, and all its effects under the law, as NULL and VOID from the beginning; and

 

2) Dissolving the regime of absolute community of property.

 

A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall be issued after liquidation, partition and distribution of the parties’ properties under Article 147 of the Family Code.

 

Let copies of this Order be furnished the parties, the Office of the Solicitor General, the Office of the City Prosecutor of Las Piñas City and the Local Civil Registrar of Las Piñas City, for their information and guidance.5

 

Hence, the petition before this Court.

The Issue

The sole issue in this case is whether the trial court erred when it ordered that a decree of absolute nullity of marriage shall only be issued after liquidation, partition, and distribution of the parties’ properties under Article 147 of the Family Code.

The Ruling of this Court

 

The petition has merit.

Petitioner assails the ruling of the trial court ordering that a decree of absolute nullity of marriage shall only be issued after liquidation, partition, and distribution of the parties’ properties under Article 147 of the Family Code. Petitioner argues that Section 19(1) of the Rule on Declaration of Absolute Nullity of Null Marriages and Annulment of Voidable Marriages6 (the Rule) does not apply to Article 147 of the Family Code.

 

We agree with petitioner.

 

The Court has ruled in Valdes v. RTC, Branch 102, Quezon City that in a void marriage, regardless of its cause, the property relations of the parties during the period of cohabitation is governed either by Article 147 or Article 148 of the Family Code.7 Article 147 of the Family Code applies to union of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void,8 such as petitioner and respondent in the case before the Court.

 

Article 147 of the Family Code provides:

 

Article 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned

by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

 

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household.

 

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

 

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

 

 

For Article 147 of the Family Code to apply, the following elements must be present:

 

1.      The man and the woman must be capacitated to marry each other;

2.      They live exclusively with each other as husband and wife; and

3.      Their union is without the benefit of marriage, or their marriage is void.9

 

 

All these elements are present in this case and there is no question that Article 147 of the Family Code applies to the property relations between petitioner and respondent.

 

We agree with petitioner that the trial court erred in ordering that a decree of absolute nullity of marriage shall be issued only after liquidation, partition and distribution of the parties’ properties under Article 147 of the Family Code. The ruling has no basis because Section 19(1) of the Rule does not apply to cases governed under Articles 147 and 148 of the Family Code. Section 19(1) of the Rule provides:

 

Sec. 19. Decision. - (1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties.

 

 

The pertinent provisions of the Family Code cited in Section 19(1) of the Rule are:

 

Article 50. The effects provided for in paragraphs (2), (3), (4) and (5) of Article 43 and in Article 44 shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45.10

 

The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.

 

 

 

All creditors of the spouses as well as of the absolute community of the conjugal partnership shall be notified of the proceedings for liquidation.

 

In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129.

 

Article 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters.

 

The children of their guardian, or the trustee of their property, may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either or both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime.

 

It is clear from Article 50 of the Family Code that Section 19(1) of the Rule applies only to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45 of the Family Code. In short, Article 50 of the Family Code does not apply to marriages which are declared void ab initio under Article 36 of the Family Code, which should be declared void without waiting for the liquidation of the properties of the parties.

 

Article 40 of the Family Code contemplates a situation where a second or bigamous marriage was contracted. Under Article 40, “[t]he absolute nullity of a previous

marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.” Thus we ruled:

 

x x x where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring a previous marriage void.11

Article 45 of the Family Code, on the other hand, refers to voidable marriages, meaning, marriages which are valid until they are set aside by final judgment of a competent court in an action for annulment.12 In both instances under Articles 40 and 45, the marriages are governed either by absolute community of property13 or conjugal partnership of gains14 unless the parties agree to a complete separation of property in a marriage settlement entered into before the marriage. Since the property relations of the parties is governed by absolute community of property or conjugal partnership of gains, there is a need to liquidate, partition and distribute the properties before a decree of annulment could be issued. That is not the case for annulment of marriage under Article 36 of the Family Code because the marriage is governed by the ordinary rules on co-ownership.

 

In this case, petitioner’s marriage to respondent was declared void under Article 3615 of the Family Code and not under Article 40 or 45. Thus, what governs the liquidation of properties owned in common by petitioner and respondent are the rules on co-ownership. In Valdes, the Court ruled that the property relations of parties in a void marriage during the period of cohabitation is governed either by Article 147 or Article 148 of the Family Code.16The rules on co-ownership apply and the properties of the spouses should be liquidated in accordance with the Civil Code provisions on co-ownership. Under Article 496 of the Civil Code, “[p]artition may be made by agreement between the parties or by judicial proceedings. x x x.” It is not necessary to liquidate the properties of the spouses in the same proceeding for declaration of nullity of marriage.

 

 

WHEREFORE, we AFFIRM the Decision of the trial court with the MODIFICATION that the decree of absolute nullity of the marriage shall be

issued upon finality of the trial court’s decision without waiting for the liquidation, partition, and distribution of the parties’ properties under Article 147 of the Family Code.

SO ORDERED.

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

 

 

 

 

ANTONIO EDUARDO B. NACHURA

Associate Justice

 

 

 

 

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

 

 

 

 

 

 

JOSE C. MENDOZA

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 Court’s Division.

 

 

 

ANTONIO T. CARPIO

Associate Justice

Chairperson

 

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s 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 Court’s Division.

 

 

 

RENATO C. CORONA

Chief Justice

SECOND DIVISION

 

 

 

ARTURO SARTE FLORES,                      G.R. No. 183984

Petitioner,

Present:

 

CARPIO, J., Chairperson,

- versus -                                                     NACHURA,

PERALTA,

ABAD, and

MENDOZA, JJ.

 

SPOUSES ENRICO L. LINDO, JR.           Promulgated:

and EDNA C. LINDO,

Respondents.                                               April 13, 2011

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D E C I S I O N

 

CARPIO, J.:

 

The Case

 

Before the Court is a petition for review1 assailing the 30 May 2008 Decision2 and the 4 August 2008 Resolution3 of the Court of Appeals in CA-G.R. SP No. 94003.

 

 

 

The Antecedent Facts

 

The facts, as gleaned from the Court of Appeals’ Decision, are as follows:

 

On 31 October 1995, Edna Lindo (Edna) obtained a loan from Arturo Flores (petitioner) amounting to P400,000 payable on 1 December 1995 with 3% compounded monthly interest and 3% surcharge in case of late payment. To secure the loan, Edna executed a Deed of Real Estate Mortgage4 (the Deed) covering a property in the name of Edna and her husband Enrico (Enrico) Lindo, Jr. (collectively, respondents). Edna also signed a Promissory Note5and the Deed for herself and for Enrico as his attorney-in-fact.

 

Edna issued three checks as partial payments for the loan. All checks were dishonored for insufficiency of funds, prompting petitioner to file a Complaint for Foreclosure of Mortgage with Damages against respondents. The case was raffled to the Regional Trial Court of Manila, Branch 33 (RTC, Branch 33) and docketed as Civil Case No. 00-97942.

 

In its 30 September 2003 Decision,6 the RTC, Branch 33 ruled that petitioner was not entitled to judicial foreclosure of the mortgage. The RTC, Branch 33 found that the Deed was executed by Edna without the consent and authority of Enrico. The RTC, Branch 33 noted that the Deed was executed on 31 October 1995 while the Special Power of Attorney (SPA) executed by Enrico was only dated 4 November 1995.

 

The RTC, Branch 33 further ruled that petitioner was not precluded from recovering the loan from Edna as he could file a personal action against her. However, the RTC, Branch 33 ruled that it had no jurisdiction over the personal action which should be filed in the place where the plaintiff or the defendant resides in accordance with Section 2, Rule 4 of the Revised Rules on Civil Procedure.

 

Petitioner filed a motion for reconsideration. In its Order7 dated 8 January 2004, the RTC, Branch 33 denied the motion for lack of merit.

 

On 8 September 2004, petitioner filed a Complaint for Sum of Money with Damages against respondents. It was raffled to Branch 42 (RTC, Branch 42) of the Regional Trial Court of Manila, and docketed as Civil Case No. 04-110858.

 

Respondents filed their Answer with Affirmative Defenses and Counterclaims where they admitted the loan but stated that it only amounted to P340,000. Respondents further alleged that Enrico was not a party to the loan because it was contracted by Edna without Enrico’s signature. Respondents prayed for the dismissal of the case on the grounds of improper venue, res judicata and forum-shopping, invoking the Decision of the RTC, Branch 33. On 7 March 2005, respondents also filed a Motion to Dismiss on the grounds of res judicata and lack of cause of action.

 

The Decision of the Trial Court

 

On 22 July 2005, the RTC, Branch 42 issued an Order8 denying the motion to dismiss. The RTC, Branch 42 ruled that res judicata will not apply to rights, claims or demands which, although growing out of the same subject matter, constitute separate or distinct causes of action and were not put in issue in the former action. Respondents filed a motion for reconsideration. In its Order9 dated 8 February 2006, the RTC, Branch 42 denied respondents’ motion. The RTC, Branch 42 ruled that the RTC, Branch 33 expressly stated that its decision did not mean that petitioner could no longer recover the loan petitioner extended to Edna.

 

Respondents filed a Petition for Certiorari and Mandamus with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order before the Court of Appeals.

 

 

The Decision of the Court of Appeals

 

In its 30 May 2008 Decision, the Court of Appeals set aside the 22 July 2005 and 8 February 2006 Orders of the RTC, Branch 42 for having been issued with grave abuse of discretion.

 

The Court of Appeals ruled that while the general rule is that a motion to dismiss is interlocutory and not appealable, the rule admits of exceptions. The Court of Appeals ruled that the RTC, Branch 42 acted with grave abuse of discretion in denying respondents’ motion to dismiss.

 

The Court of Appeals ruled that under Section 3, Rule 2 of the 1997 Rules of Civil Procedure, a party may not institute more than one suit for a single cause of action. If two or more suits are instituted on the basis of the same cause of action, the filing of one on a judgment upon the merits in any one is available ground for the dismissal of the others. The Court of Appeals ruled that on a nonpayment of a note secured by a mortgage, the creditor has a single cause of action against the debtor, that is recovery of the credit with execution of the suit. Thus, the creditor may institute two alternative remedies: either a personal action for the collection of debt or a real action to foreclose the mortgage, but not both. The Court of Appeals ruled that petitioner had only one cause of action against Edna for her failure to pay her obligation and he could not split the single cause of action by filing separately a foreclosure proceeding and a collection case. By filing a petition for foreclosure of the real estate mortgage, the Court of Appeals held that petitioner had already waived his personal action to recover the amount covered by the promissory note.

 

Petitioner filed a motion for reconsideration. In its 4 August 2008 Resolution, the Court of Appeals denied the motion.

 

Hence, the petition before this Court.

 

The Issue

 

The sole issue in this case is whether the Court of Appeals committed a reversible error in dismissing the complaint for collection of sum of money on the ground of multiplicity of suits.

 

The Ruling of this Court

 

The petition has merit.

 

The rule is that a mortgage-creditor has a single cause of action against a mortgagor-debtor, that is, to recover the debt.10 The mortgage-creditor has the option of either filing a personal action for collection of sum of money or instituting a real action to foreclose on the mortgage security.11 An election of the first bars recourse to the second, otherwise there would be multiplicity of suits in which the debtor would be tossed from one venue to another depending on the location of the mortgaged properties and the residence of the parties.12

 

The two remedies are alternative and each remedy is complete by itself.13 If the mortgagee opts to foreclose the real estate mortgage, he waives the action for the collection of the debt, and vice versa.14 The Court explained:

x x x in the absence of express statutory provisions, a mortgage creditor may institute against the mortgage debtor either a personal action for debt or a real action to foreclose the mortgage. In other words, he may pursue either of the two remedies, but not both. By such election, his cause of action can by no means be impaired, for each of the two remedies is complete in itself. Thus, an election to bring a personal action will leave open to him all the properties of the debtor for attachment and execution, even including the mortgaged property itself. And, if he waives such personal action and pursues his remedy against the mortgaged property, an unsatisfied judgment thereon would still give him the right to sue for deficiency judgment, in which case, all the properties of the defendant, other than the mortgaged property, are again open to him for the satisfaction of the deficiency. In either case, his remedy is complete, his cause of action undiminished, and any advantages attendant to the pursuit of one or the other remedy are purely accidental and are all under his right of election. On the other hand, a rule that would authorize the plaintiff to bring a personal action against the debtor and simultaneously or successively another action against the mortgaged property, would result not only in multiplicity of suits so offensive to justice (Soriano v. Enriques, 24 Phil. 584) and obnoxious to law and equity (Osorio v. San Agustin, 25 Phil. 404), but also in subjecting the defendant to the vexation of being sued in the place of his residence or of the residence of the plaintiff, and then again in the place where the property lies.15

 

The Court has ruled that if a creditor is allowed to file his separate complaints simultaneously or successively, one to recover his credit and another to foreclose his mortgage, he will, in effect, be authorized plural redress for a single breach of contract at so much costs to the court and with so much vexation and oppressiveness to the debtor.16

In this case, however, there are circumstances that the Court takes into consideration.

 

Petitioner filed an action for foreclosure of mortgage. The RTC, Branch 33 ruled that petitioner was not entitled to judicial foreclosure because the Deed of Real Estate Mortgage was executed without Enrico’s consent. The RTC, Branch 33 stated:

 

All these circumstances certainly conspired against the plaintiff who has the burden of proving his cause of action. On the other hand, said circumstances

tend to support the claim of defendant Edna Lindo that her husband did not consent to the mortgage of their conjugal property and that the loan application was her personal decision.

 

Accordingly, since the Deed of Real Estate Mortgage was executed by defendant Edna Lindo lacks the consent or authority of her husband Enrico Lindo, the Deed of Real Estate Mortgage is void pursuant to Article 96 of the Family Code.

 

This does not mean, however, that the plaintiff cannot recover the P400,000 loan plus interest which he extended to defendant Edna Lindo. He can institute a personal action against the defendant for the amount due which should be filed in the place where the plaintiff resides, or where the defendant or any of the principal defendants resides at the election of the plaintiff in accordance with Section 2, Rule 4 of the Revised Rules on Civil Procedure. This Court has no jurisdiction to try such personal action.17

 

 

Edna did not deny before the RTC, Branch 33 that she obtained the loan. She claimed, however, that her husband did not give his consent and that he was not aware of the transaction.18 Hence, the RTC, Branch 33 held that petitioner could still recover the amount due from Edna through a personal action over which it had no jurisdiction.

 

Edna also filed an action for declaratory relief before the RTC, Branch 93 of San Pedro Laguna (RTC, Branch 93), which ruled:

 

At issue in this case is the validity of the promissory note and the Real Estate Mortgage executed by Edna Lindo without the consent of her husband.

 

The real estate mortgage executed by petition Edna Lindo over their conjugal property is undoubtedly an act of strict dominion and must be consented to by her husband to be effective. In the instant case, the real estate mortgage, absent the authority or consent of the husband, is necessarily void. Indeed, the real estate mortgage is this case was executed on October 31, 1995 and the subsequent special power of attorney dated November 4, 1995 cannot be made to retroact to October 31, 1995 to validate the mortgage previously made by petitioner.

 

The liability of Edna Lindo on the principal contract of the loan however subsists notwithstanding the illegality of the mortgage. Indeed, where a mortgage is not valid, the principal obligation which it guarantees is not thereby rendered null and void. That obligation matures and becomes demandable in accordance with the stipulation pertaining to it. Under the foregoing circumstances, what is lost is merely the right to foreclose the mortgage as a special remedy for satisfying or settling the indebtedness which is the principal obligation. In case of nullity, the mortgage deed remains as evidence or proof of a personal obligation of the debtor and the amount due to the creditor may be enforced in an ordinary action.

 

In view of the foregoing, judgment is hereby rendered declaring the deed of real estate mortgage as void in the absence of the authority or consent of petitioner’s spouse therein. The liability of petitioner on the principal contract of loan however subsists notwithstanding the illegality of the real estate mortgage.19

 

The RTC, Branch 93 also ruled that Edna’s liability is not affected by the illegality of the real estate mortgage.

 

Both the RTC, Branch 33 and the RTC, Branch 93 misapplied the rules.

 

Article 124 of the Family Code provides:

 

Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of contract implementing such decision.

 

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (Emphasis supplied)

 

 

Article 124 of the Family Code of which applies to conjugal partnership property, is a reproduction of Article 96 of the Family Code which applies to community property.

 

Both Article 96 and Article 127 of the Family Code provide that the powers do not include disposition or encumbrance without the written consent of the other spouse. Any disposition or encumbrance without the written consent shall be void. However, both provisions also state that “the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse x x x before the offer is withdrawn by either or both offerors.”

 

In this case, the Promissory Note and the Deed of Real Estate Mortgage were executed on 31 October 1995. The Special Power of Attorney was executed on 4

November 1995. The execution of the SPA is the acceptance by the other spouse that perfected the continuing offer as a binding contract between the parties, making the Deed of Real Estate Mortgage a valid contract.

 

However, as the Court of Appeals noted, petitioner allowed the decisions of the RTC, Branch 33 and the RTC, Branch 93 to become final and executory without asking the courts for an alternative relief. The Court of Appeals stated that petitioner merely relied on the declarations of these courts that he could file a separate personal action and thus failed to observe the rules and settled jurisprudence on multiplicity of suits, closing petitioner’s avenue for recovery of the loan.

 

Nevertheless, petitioner still has a remedy under the law.

 

In Chieng v. Santos,20 this Court ruled that a mortgage-creditor may institute against the mortgage-debtor either a personal action for debt or a real action to foreclose the mortgage. The Court ruled that the remedies are alternative and not cumulative and held that the filing of a criminal action for violation of Batas Pambansa Blg. 22 was in effect a collection suit or a suit for the recovery of the mortgage-debt.21 In that case, however, this Courtpro hac vice, ruled that respondents could still be held liable for the balance of the loan, applying the principle that no person may unjustly enrich himself at the expense of another.22

 

The principle of unjust enrichment is provided under Article 22 of the Civil Code which provides:

 

Art. 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.

 

There is unjust enrichment “when a person unjustly retains a benefit to the loss of another, or when a person retains money or property of another against the fundamental principles of justice, equity and good conscience.”23 The principle of unjust enrichment requires two conditions: (1) that a person is benefited without a valid basis or justification, and (2) that such benefit is derived at the expense of another.24

 

The main objective of the principle against unjust enrichment is to prevent one from enriching himself at the expense of another without just cause or consideration.25 The principle is applicable in this case considering that Edna admitted obtaining a loan from petitioners, and the same has not been fully paid without just cause. The Deed was declared void erroneously at the instance of Edna, first when she raised it as a defense before the RTC, Branch 33 and second, when she filed an action for declaratory relief before the RTC, Branch 93. Petitioner could not be expected to ask the RTC, Branch 33 for an alternative remedy, as what the Court of Appeals ruled that he should have done, because the RTC, Branch 33 already stated that it had no jurisdiction over any personal action that petitioner might have against Edna.

 

Considering the circumstances of this case, the principle against unjust enrichment, being a substantive law, should prevail over the procedural rule on multiplicity of suits. The Court of Appeals, in the assailed decision, found that Edna admitted the loan, except that she claimed it only amounted to P340,000. Edna should not be allowed to unjustly enrich herself because of the erroneous decisions of the two trial courts when she questioned the validity of the Deed. Moreover, Edna still has an opportunity to submit her defenses before the RTC, Branch 42 on her claim as to the amount of her indebtedness.

 

WHEREFORE, the 30 May 2008 Decision and the 4 August 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 94003 are SET ASIDE. The Regional Trial Court of Manila, Branch 42 is directed to proceed with the trial of Civil Case No. 04-110858.

SO ORDERED.

 

 

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

 

WE CONCUR:

 

 

 

 

ANTONIO EDUARDO B. NACHURA

Associate Justice

 

 

 

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

 

 

 

JOSE C. MENDOZA

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 Court’s Division.

 

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

Chairperson

 

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s 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 Court’s Division.

 

 

 

RENATO C. CORONA

Chief Justice

SECOND DIVISION 

[G.R. No. 175367, June 06, 2011] 

DANILO A. AURELIO, PETITIONER, VS. VIDA MA. CORAZON P. AURELIO, RESPONDENT. 

D E C I S I O N 

PERALTA, J.:

Before this Court is a petition for review on certiorari, [1] under Rule 45 of the Rules of Court, seeking to set aside the October 6, 2005 Decision [2] and October 26, 2006 Resolution, [3] of the Court of Appeals (CA), in CA-G.R. SP No. 82238.

The facts of the case are as follows:

Petitioner Danilo A. Aurelio and respondent Vida Ma. Corazon Aurelio were married on March 23, 1988. They have two sons, namely: Danilo Miguel and Danilo Gabriel.

On May 9, 2002, respondent filed with the Regional Trial Court (RTC) of Quezon City, Branch 94, a Petition for Declaration of Nullity of Marriage. [4] In her petition, respondent alleged that both she and petitioner were psychologically incapacitated of performing and complying with their respective essential marital obligations.  In addition, respondent alleged that such state of psychological incapacity was present prior and even during the time of the marriage ceremony.  Hence, respondent prays that her marriage be declared null and void under Article 36 of the Family Code which provides:

Article 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void, even if such incapacity becomes manifest only after its solemnization.

As succinctly summarized by the CA, contained in respondent's petition are the following allegations, to wit:

x x x  The said petition alleged, inter alia, that both husband and wife are psychologically incapable of performing and complying with their essential marital obligations.  Said psychological incapacity was existing prior and at the time of the marriage.  Said psychological incapacity was manifested by lack of financial support from the husband; his lack of drive and incapacity to discern the plight of his working wife. The husband exhibited consistent jealousy and distrust towards his wife.  His moods alternated between hostile defiance and contrition.  He refused to assist in the maintenance of the family.  He refused to foot the household bills and provide for his family's needs.  He exhibited arrogance.  He was completely insensitive to the feelings of his wife.  He liked to humiliate and embarrass his wife even in the presence of their children.

Vida Aurelio, on the other hand, is effusive and displays her feelings openly and freely.  Her feelings change very quickly - from joy to fury to misery to despair, depending on her day-to-day experiences.  Her tolerance for boredom was very low.  She was emotionally immature; she cannot stand frustration or disappointment.  She cannot delay to gratify her needs.  She gets upset when she cannot get what she wants. Self-indulgence lifts her spirits immensely.  Their hostility towards each other distorted their relationship.  Their incapacity to accept and fulfill the essential obligations of marital life led to the breakdown of their marriage.  Private respondent manifested psychological aversion to cohabit with her husband or to take care of him.  The psychological make-up of private respondent was evaluated by a psychologist, who found that the psychological incapacity of both husband and wife to perform their marital obligations is grave, incorrigible and incurable.  Private respondent suffers from a Histrionic Personality Disorder with Narcissistic features; whereas petitioner suffers from passive aggressive (negativistic) personality disorder that renders him immature and irresponsible to assume the normal obligations of a marriage. [5]

On November 8, 2002, petitioner filed a Motion to Dismiss [6] the petition. Petitioner principally argued that the petition failed to state a cause of action and that it failed to meet the standards set by the Court for the interpretation and implementation of Article 36 of the Family Code.

On January 14, 2003, the RTC issued an Order [7] denying petitioner's motion.

On February 21, 2003, petitioner filed a Motion for Reconsideration, which was, however, denied by the RTC in an Order [8] dated December 17, 2003. In denying petitioner's motion, the RTC ruled that respondent's petition for declaration of nullity of marriage complied with the requirements of the Molina doctrine, and whether or not the allegations are meritorious would depend upon the proofs presented by both parties during trial, to wit:

A review of the petition shows that it observed the requirements in Republic vs. Court of Appeals (268 SCRA 198), otherwise known as the Molina Doctrine. There was allegation of the root cause of the psychological incapacity of both the petitioner and the respondent contained in paragraphs 12 and 13 of the petition. The manifestation of juridical antecedence was alleged in paragraphs 5 and 6 of the petition. The allegations constituting the gravity of psychological incapacity were alleged in paragraph 9 (a to l) of the petition. The incurability was alleged in paragraph 10 of the petition. Moreover, the clinical finding of incurability was quoted in paragraph 15 of the petition. There is a cause of action presented in the petition for the nullification of marriage under Article 36 of the Family Code.

Whether or not the allegations are meritorious depends upon the proofs to be presented by both parties. This, in turn, will entail the presentation of evidence which can only be done in the hearing on the merits of the case. If the Court finds that there are (sic) preponderance of evidence to sustain a nullification, then the cause of the petition shall fail. Conversely, if it finds, through the evidence that will be presented during the hearing on the merits, that there are sufficient proofs to warrant nullification, the Court shall declare its nullity. [9]

On February 16, 2004, petitioner appealed the RTC decision to the CA via petition forcertiorari [10] under Rule 65 of the Rules of Court.

On October 6, 2005, the CA rendered a Decision dismissing the petition, the dispositive portion of which reads:

WHEREFORE, premises considered, [the] instant petition is DISMISSED.

SO ORDERED. [11]

In a Resolution dated October 26, 2004, the CA dismissed petitioner's motion for reconsideration.

In its Decision, the CA affirmed the ruling of the RTC and held that respondent's complaint for declaration of nullity of marriage when scrutinized in juxtaposition with Article 36 of the Family Code and the Molina doctrine revealed the existence of a sufficient cause of action.

Hence, herein petition, with petitioner raising two issues for this Court's consideration, to wit:

I.

WHETHER OR NOT THE COURT OF APPEALS VIOLATED THE APPLICABLE LAW AND JURISPRUDENCE WHEN IT HELD THAT THE ALLEGATIONS CONTAINED IN THE PETITION FOR DECLARATION OF THE NULLITY OF MARRIAGE ARE SUFFICIENT FOR THE COURT TO DECLARE THE NULLITY OF THE MARRIAGE BETWEEN VIDA AND DANILO.

II.

WHETHER OR NOT THE COURT OF APPEALS VIOLATED THE APPLICABLE LAW AND JURISPRUDENCE WHEN IT DENIED PETITIONER'S ACTION FOR CERTIORARI DESPITE THE FACT THAT THE DENIAL OF HIS MOTION TO DISMISS BY THE TRIAL COURT IS PATENTLY AND UTTERLY TAINTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION; AND THAT APPEAL IN DUE COURSE IS NOT A PLAIN, ADEQUATE OR SPEEDY REMEDY UNDER THE CIRCUMSTANCES. [12]

Before anything else, it bears to point out that had respondent's complaint been filed after March 15, 2003, this present petition would have been denied since Supreme Court Administrative Matter No. 02-11-10 [13] prohibits the filing of a motion to dismiss in actions for annulment of marriage. Be that as it may, after a circumspect review of the arguments raised by petitioner herein, this Court finds that the petition is not meritorious.

In Republic v. Court of Appeals, [14] this Court created the Molina guidelines to aid the courts in the disposition of cases involving psychological incapacity, to wit:

(1) Burden of proof to show the nullity of the marriage belongs to the     plaintiff.

(2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision.

(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable.

(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife, as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. [15]

This Court, pursuant to Supreme Court Administrative Matter No. 02-11-10, has modified the above pronouncements, particularly Section 2(d) thereof, stating that the certification of the Solicitor General required in the Molina case is dispensed with to avoid delay.  Still, Article 48 of the Family Code mandates that the appearance of the prosecuting attorney or fiscal assigned be on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. [16]

Petitioner anchors his petition on the premise that the allegations contained in respondent's petition are insufficient to support a declaration of nullity of marriage based on psychological incapacity. Specifically, petitioner contends that the petition failed to comply with three of the Molina guidelines, namely: that the root cause of the psychological incapacity must be alleged in the complaint; that such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage; and that the non-complied marital obligation must be stated in the petition. [17]

First, contrary to petitioner's assertion, this Court finds that the root cause of psychological incapacity was stated and alleged in the complaint. We agree with the manifestation of respondent that the family backgrounds of both petitioner and respondent were discussed in the complaint as the root causes of their psychological incapacity. Moreover, a competent and expert psychologist clinically identified the same as the root causes.

Second, the petition likewise alleged that the illness of both parties was of such grave a nature as to bring about a disability for them to assume the essential obligations of marriage. The psychologist reported that respondent suffers from Histrionic Personality Disorder with Narcissistic Features. Petitioner, on the other hand, allegedly suffers from Passive Aggressive (Negativistic) Personality Disorder. The incapacity of both parties to perform their marital obligations was alleged to be grave, incorrigible and incurable.

Lastly, this Court also finds that the essential marital obligations that were not complied with were alleged in the petition. As can be easily gleaned from the totality of the petition, respondent's allegations fall under Article 68 of the Family Code which states that "the husband and the wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support."

It bears to stress that whether or not petitioner and respondent are psychologically incapacitated to fulfill their marital obligations is a matter for the RTC to decide at the first instance. A perusal of the Molina guidelines would show that the same contemplate a situation wherein the parties have presented their evidence, witnesses have testified, and that a decision has been reached by the court after due hearing. Such process can be gleaned from guidelines 2, 6 and 8, which refer to a decision rendered by the RTC after trial on the merits. It would certainly be too burdensome to ask this Court to resolve at first instance whether the allegations contained in the petition are sufficient to substantiate a case for psychological incapacity. Let it be remembered that each case involving the application of Article 36 must be treated distinctly and judged not on the basis of a priori assumptions, predilections or generalizations but according to its own attendant facts.  Courts should interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals. [18] It would thus be more prudent for this Court to remand the case to the RTC, as it would be in the best position to scrutinize the evidence as well as hear and weigh the evidentiary value of the testimonies of the ordinary witnesses and expert witnesses presented by the parties.

Given the allegations in respondent's petition for nullity of marriage, this Court rules that the RTC did not commit grave abuse of discretion in denying petitioner's motion to dismiss. By grave abuse of discretion is meant capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. [19]  Even assuming arguendo that this Court were to agree with petitioner that the allegations contained in respondent's petition are insufficient and that the

RTC erred in denying petitioner's motion to dismiss, the same is merely an error of judgment correctible by appeal and not an abuse of discretion correctible by certiorari. [20]

Finally, the CA properly dismissed petitioner's petition.  As a general rule, the denial of a motion to dismiss, which is an interlocutory order, is not reviewable by certiorari.  Petitioner's remedy is to reiterate the grounds in his motion to dismiss, as defenses in his answer to the petition for nullity of marriage, proceed trial and, in case of an adverse decision, appeal the decision in due time. [21] The existence of that adequate remedy removed the underpinnings of his petition for certiorari in the CA. [22]

WHEREFORE, premises considered the petition is DENIED.  The October 6, 2005 Decision and October 26, 2006 Resolution of the Court of Appeals, in CA-G.R. SP No. 82238, are AFFIRMED.

SO ORDERED.

Carpio, (Chairperson), Nachura, Abad, and Mendoza, JJ., concur.

FIRST DIVISION 

[G.R. No. 157537, September 07, 2011] 

THE HEIRS OF PROTACIO GO, SR. AND MARTA BAROLA, NAMELY: LEONOR, SIMPLICIO, PROTACIO, JR., ANTONIO, BEVERLY ANN LORRAINNE, TITA,

CONSOLACION, LEONORA AND ASUNCION, ALL SURNAMED GO, REPRESENTED BY LEONORA B. GO, PETITIONERS, VS. ESTER L. SERVACIO AND RITO B. GO,

RESPONDENTS. 

D E C I S I O N 

BERSAMIN, J.:

The disposition by sale of a portion of the conjugal property by the surviving spouse without the prior liquidation mandated by Article 130 of the Family Code is not necessarily void if said portion has not yet been allocated by judicial or extrajudicial partition to another heir of

the deceased spouse. At any rate, the requirement of prior liquidation does not prejudice vested rights.

Antecedents

On February 22, 1976, Jesus B. Gaviola sold two parcels of land with a total area of 17,140 square meters situated in Southern Leyte to Protacio B. Go, Jr. (Protacio, Jr.). Twenty three years later, or on March 29, 1999, Protacio, Jr. executed an Affidavit of Renunciation and Waiver,[1] whereby he affirmed under oath that it was his father, Protacio Go, Sr. (Protacio, Sr.), not he, who had purchased the two parcels of land (the property).

On November 25, 1987, Marta Barola Go died. She was the wife of Protacio, Sr. and mother of the petitioners.[2] On December 28, 1999, Protacio, Sr. and his son Rito B. Go (joined by Rito's wife Dina B. Go) sold a portion of the property with an area of 5,560 square meters to Ester L. Servacio (Servacio) for ?5,686,768.00.[3] On March 2, 2001, the petitioners demanded the return of the property,[4] but Servacio refused to heed their demand. After barangay proceedings failed to resolve the dispute,[5] they sued Servacio and Rito in the Regional Trial Court in Maasin City, Southern Leyte (RTC) for the annulment of the sale of the property.

The petitioners averred that following Protacio, Jr.'s renunciation, the property became conjugal property; and that the sale of the property to Servacio without the prior liquidation of the community property between Protacio, Sr. and Marta was null and void.[6]

Servacio and Rito countered that Protacio, Sr. had exclusively owned the property because he had purchased it with his own money.[7]

On October 3, 2002,[8] the RTC declared that the property was the conjugal property of Protacio, Sr. and Marta, not the exclusive property of Protacio, Sr., because there were three vendors in the sale to Servacio (namely: Protacio, Sr., Rito, and Dina); that the participation of Rito and Dina as vendors had been by virtue of their being heirs of the late Marta; that under Article 160 of the Civil Code, the law in effect when the property was acquired, all property acquired by either spouse during the marriage was conjugal unless there was proof that the property thus acquired pertained exclusively to the husband or to the wife; and that Protacio, Jr.'s renunciation was grossly insufficient to rebut the legal presumption.[9]

Nonetheless, the RTC affirmed the validity of the sale of the property, holding that: "xxx As long as the portion sold, alienated or encumbered will not be allotted to the other heirs in the final partition of the property, or to state it plainly, as long as the portion sold does not encroach upon the legitimate (sic) of other heirs, it is valid."[10]Quoting Tolentino's commentary on the matter as authority,[11] the RTC opined:

In his comment on Article 175 of the New Civil Code regarding the dissolution of the conjugal partnership, Senator Arturo Tolentino, says" [sic]

"Alienation by the survivor. -- After the death of one of the spouses, in case it is necessary to sell any portion of the community property in order to pay outstanding obligation of  the partnership, such sale must be made in the manner and with the formalities established by the Rules of Court for the sale of the property of the deceased persons. Any sale, transfer, alienation or disposition of said property affected without said formalities shall be null and void, except as regards the portion that belongs to the vendor as determined in the liquidation and partition. Pending the liquidation, the disposition must be considered as limited only to the contingent share or interest of the vendor in the particular property involved, but not to the corpus of the property.

This rule applies not only to sale but also to mortgages.The alienation, mortgage or disposal of the conjugal property without the required formality, is not however, null   ab initio , for the law recognizes their validity so long as they do not exceed the portion which, after liquidation and partition, should pertain to the surviving spouse who made the contract." [underlining supplied]

It seems clear from these comments of Senator Arturo Tolentino on the provisions of the New Civil Code and the Family Code on the alienation by the surviving spouse of the community property that jurisprudence remains the same  -  that the alienation made by the surviving spouse of a portion of the community property is not wholly void ab initiodespite Article 103 of the Family Code, and shall be valid to the extent of what will be allotted, in the final partition, to the vendor. And rightly so, because why invalidate the sale by the surviving spouse of a portion of the community property that will eventually be his/her share in the final partition? Practically there is no reason for that view and it would be absurd.

Now here, in the instant case, the 5,560 square meter portion of the 17,140 square-meter conjugal lot is certainly mush (sic) less  than what vendors Protacio Go and his son Rito B. Go will eventually get as their share in the final partition of the property. So the sale is still valid.

WHEREFORE, premises considered, complaint is hereby DISMISSED without pronouncement as to cost and damages.

SO ORDERED.[12]

The RTC's denial of their motion for reconsideration[13] prompted the petitioners to appeal directly to the Court on a pure question of law.

Issue

The petitioners claim that Article 130 of the Family Code is the applicable law; and that the sale by Protacio, Sr., et al. to Servacio was void for being made without prior liquidation.

In contrast, although they have filed separate comments, Servacio and Rito both argue that Article 130 of the Family Code was inapplicable; that the want of the liquidation prior to the sale did not render the sale invalid, because the sale was valid to the extent of the portion that was finally allotted to the vendors as his share; and that the sale did not also prejudice any rights of the petitioners as heirs, considering that what the sale disposed of was within the aliquot portion of the property that the vendors were entitled to as heirs.[14]

Ruling

The appeal lacks merit.

Article 130 of the Family Code reads:

Article 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extra-judicially within one year from the death of the deceased spouse. If upon the lapse of the six month period no liquidation is

made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

Article 130 is to be read in consonance with Article 105 of the Family Code, viz:

Article 105. In case the future spouses agree in the marriage settlements that the regime of conjugal partnership of gains shall govern their property relations during marriage, the provisions in this Chapter shall be of supplementary application.

The provisions of this Chapter shall also apply to conjugal partnerships of gains already established between spouses before the effectivity of this Code, without prejudice to vested rights already acquired in accordance with the Civil Code or other laws, as provided in Article 256. (n) [emphasis supplied]

It is clear that conjugal partnership of gains established before and after the effectivity of the Family Code are governed by the rules found in Chapter 4 (Conjugal Partnership of Gains) of Title IV (Property Relations Between Husband And Wife) of the Family Code. Hence, any disposition of the conjugal property after the dissolution of the conjugal partnership must be made only after the liquidation; otherwise, the disposition is void.

Before applying such rules, however, the conjugal partnership of gains must be subsisting at the time of the effectivity of the Family Code. There being no dispute that Protacio, Sr. and Marta were married prior to the effectivity of the Family Code on August 3, 1988, their property relation was properly characterized as one of conjugal partnership governed by the Civil Code.  Upon Marta's death in 1987, the conjugal partnership was dissolved, pursuant to Article 175 (1) of the Civil Code,[15] and an implied ordinary co-ownership ensued among Protacio, Sr. and the other heirs of Marta with respect to her share in the assets of the conjugal partnership pending a liquidation following its liquidation.[16] The ensuing implied ordinary co-ownership was governed by Article 493 of the Civil Code,[17] to wit:

Article 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. (399)

Protacio, Sr., although becoming a co-owner with his children in respect of Marta's share in the conjugal partnership, could not yet assert or claim title to any specific portion of Marta's share without an actual partition of the property being first done either by agreement or by judicial decree. Until then, all that he had was an ideal or abstract quota in Marta's share.[18] Nonetheless, a co-owner could sell his undivided share; hence, Protacio, Sr. had the right to freely sell and dispose of his undivided interest, but not the interest of his co-owners.[19] Consequently, the sale by Protacio, Sr. and Rito as co-owners without the consent of the other co-owners was not necessarily void, for the rights of the selling co-owners were thereby effectively transferred, making the buyer (Servacio) a co-owner of Marta's share.[20] This result conforms to the well-established principle that the binding force of a contract must be recognized as far as it is legally possible to do so (quando res non valet ut ago, valeat quantum valere potest).[21]

Article 105 of the Family Code, supra, expressly provides that the applicability of the rules on dissolution of the conjugal partnership is "without prejudice to vested rights already acquired in accordance with the Civil Code or other laws." This provision gives another reason not to declare the sale as entirely void. Indeed, such a declaration prejudices the rights of Servacio who had already acquired the shares of Protacio, Sr. and Rito in the property subject of the sale.

In their separate comments,[22] the respondents aver that each of the heirs had already received "a certain allotted portion" at the time of the sale, and that Protacio, Sr. and Rito sold only the portions adjudicated to and owned by them. However, they did not present any public document on the allocation among her heirs, including themselves, of specific shares in Marta's estate. Neither did they aver that the conjugal properties had already been liquidated and partitioned. Accordingly, pending a partition among the heirs of Marta, the efficacy of the sale, and whether the extent of the property sold adversely affected the interests of the petitioners might not yet be properly decided with finality. The appropriate recourse to bring that about is to commence an action for judicial partition, as instructed in Bailon-Casilao v. Court of Appeals,[23] to wit:

From the foregoing, it may be deduced that since a co-owner is entitled  to  sell his undivided share, a sale of the entire property by one 

co-owner without the consent of the other co-owners is not null and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.

The proper action in cases like this is not for the nullification of the sale or for the recovery of possession of the thing owned in common from the third person who substituted the co-owner or co-owners who alienated their shares, but the DIVISION of the common property as if it continued to remain in the possession of the co-owners who possessed and administered it [Mainit v. Bandoy, supra].

Thus, it is now settled that the appropriate recourse of co-owners in cases where their consent were not secured in a sale of the entire property as well as in a sale merely of the undivided shares of some of the co-owners is an action for PARTITION under Rule 69 of the Revised Rules of Court. xxx[24]

In the meanwhile, Servacio would be a trustee for the benefit of the co-heirs of her vendors in respect of any portion that might not be validly sold to her. The following observations of Justice Paras are explanatory of this result, viz:

xxx [I]f it turns out that the property alienated or mortgaged really would pertain to the share of the surviving spouse, then said transaction is valid. If it turns out that there really would be, after liquidation, no more conjugal assets then the whole transaction is null and void.  But if it turns out  that half of the property thus alienated or mortgaged belongs to the husband as his share in the conjugal partnership, and half should go to the estate of the wife, then that corresponding to the husband is valid, and that corresponding to the other is not. Since all these can be determined only at the time the liquidation is over, it follows logically that a disposal made by the surviving spouse is not void ab initio. Thus, it has been held that the sale of conjugal properties cannot be made by the surviving spouse without the legal requirements. The sale is void as to the share of the deceased spouse (except of course as to that portion of the husband's share inherited by her as the surviving spouse). The buyers of the property that could not be validly sold become trustees of said portion for the benefit of the husband's other heirs, the cestui que trust ent. Said heirs shall not be

barred by prescription or by laches (See Cuison, et al. v. Fernandez, et al.,L-11764, Jan.31, 1959.)[25]

WHEREFORE, we DENY the petition for review on certiorari; and AFFIRM the decision of the Regional Trial Court.

The petitioners shall pay the costs of suit.

SO  ORDERED.

Corona, C.J., (Chairperson), Leonardo-De Castro, Del Castillo, and Villarama, Jr., JJ., concur.

FIRST DIVISION 

[G.R. No. 167459, January 26, 2011] 

JOSE REYNALDO B. OCHOSA, PETITIONER, VS. BONA J. ALANO AND REPUBLIC OF THE PHILIPPINES, RESPONDENTS.

D E C I S I O N 

LEONARDO-DE CASTRO, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to set aside the Decision[1] dated October 11, 2004 as well as the Resolution[2] dated March 10, 2005 of the Court of Appeals in CA-G.R. CV No. 65120, which reversed and set aside the Decision[3] dated January 11, 1999 of the Regional Trial Court of Makati City, Branch 140 in Civil Case No. 97-2903.  In the said January 11, 1999 Decision, the trial court granted petitioner Jose Reynaldo Ochosa's (Jose) petition for the declaration of nullity of marriage between him and private respondent Bona J. Alano (Bona).

The relevant facts of this case, as outlined by the Court of Appeals, are as follows:

It appears that Jose met Bona in August 1973 when he was a young lieutenant in the AFP while the latter was a seventeen-year-old first year college drop-out. They had a whirlwind romance that culminated into sexual intimacy and eventual marriage on 27 October 1973

before the Honorable Judge Cesar S. Principe in Basilan. The couple did not acquire any property. Neither did they incur any debts. Their union produced no offspring. In 1976, however, they found an abandoned and neglected one-year-old baby girl whom they later registered as their daughter, naming her Ramona Celeste Alano Ochosa.

During their marriage, Jose was often assigned to various parts of the Philippine archipelago as an officer in the AFP. Bona did not cohabit with him in his posts, preferring to stay in her hometown of Basilan. Neither did Bona visit him in his areas of assignment, except in one (1) occasion when Bona stayed with him for four (4) days.

Sometime in 1985, Jose was appointed as the Battalion Commander of the Security Escort Group. He and Bona, along with Ramona, were given living quarters at Fort Bonifacio, Makati City where they resided with their military aides.

In 1987, Jose was charged with rebellion for his alleged participation in the failed coup d'etat. He was incarcerated in Camp Crame.

It appears that Bona was an unfaithful spouse. Even at the onset of their marriage when Jose was assigned in various parts of the country, she had illicit relations with other men. Bona apparently did not change her ways when they lived together at Fort Bonifacio; she entertained male visitors in her bedroom whenever Jose was out of their living quarters. On one occasion, Bona was caught by Demetrio Bajet y Lita, a security aide, having sex with Jose's driver, Corporal Gagarin. Rumors of Bona's sexual infidelity circulated in the military community. When Jose could no longer bear these rumors, he got a military pass from his jail warden and confronted Bona.

During their confrontation, Bona admitted her relationship with Corporal Gagarin who also made a similar admission to Jose. Jose drove Bona away from their living quarters. Bona left with Ramona and went to Basilan.

In 1994, Ramona left Bona and came to live with Jose. It is Jose who is currently supporting the needs of Ramona.

Jose filed a Petition for Declaration of Nullity of Marriage, docketed as Civil Case No. 97-2903 with the RTC of Makati City, Branch 140, seeking to nullify his marriage to Bona on the ground of the latter's psychological incapacity to fulfill the essential obligations of marriage.

Summons with a copy of the petition and its annexes were duly served upon Bona who failed to file any responsive pleading during the reglementary period.

Pursuant to the order of the trial court, the Public Prosecutor conducted an investigation to determine whether there was collusion between the parties. Said prosecutor submitted a report that she issued a subpoena to both parties but only Jose appeared; hence, it can not be reasonably determined whether or not there was collusion between them.

Trial on the merits of the case ensued.  Petitioner along with his two military aides, Gertrudes Himpayan Padernal and Demetrio Bajet y Lita, testified about respondent's marital infidelity during the marriage.

The fourth and final witness was Elizabeth E. Rondain, a psychiatrist, who testified that after conducting several tests, she reached the conclusion that respondent was suffering from histrionic personality disorder which she described as follows:

"Her personality is that she has an excessive emotion and attention seeking behavior. So therefore they don't develop sympathy in feelings and they have difficulty in maintaining emotional intimacy. In the case of Mr. Ochosa he has been a military man. It is his duty to be transferred in different areas in the Philippines. And while he is being transferred from one place to another because of his assignments as a military man, Mrs. Bona Alano refused to follow him in all his assignments. There were only few occasions in which she followed him. And during those times that they were not living together, because of the assignments of Mr. Ochosa she developed extra marital affair with other man of which she denied in the beginning but in the latter part of their relationship she admitted it to Mr. Ochosa that she had relationship with respondent's driver. I believe with this extra marital affair that is her way of seeking attention and seeking emotions from other person and not from the husband. And of course, this is not fulfilling the basic responsibility in a marriage."

According to Rondain, respondent's psychological disorder was traceable to her family history, having for a father a gambler and a womanizer and a mother who was a battered wife. There was no possibility of a cure since respondent does not have an insight of what is happening to her and refused to acknowledge the reality.

With the conclusion of the witnesses' testimonies, petitioner formally offered his evidence and rested his case.

The Office of the Solicitor General (OSG) submitted its opposition to the petition on the ground that "the factual settings in the case at bench, in no measure at all, can come close to the standards required to decree a nullity of marriage (Santos v. CA, 240 SCRA 20 [1995])."

In a Decision dated 11 January 1999, the trial court granted the petition and nullified the parties' marriage on the following findings, viz:

x x x x

Article 36 of the Family Code, as amended, provides as follows:

`A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.'

Such a ground to be invalidative (sic) of marriage, the degree of incapacity must exhibit GRAVITY, ANTECEDENCE and INCURABILITY.

From the evidence presented, the Court finds that the psychological incapacity of the respondent exhibited GRAVITY, ANTECEDENCE and INCURABILITY.

It is grave because the respondent did not carry out the normal and ordinary duties of marriage and family shouldered by any average couple existing under everyday circumstances of life and work. The gravity was manifested in respondent's infidelity as testified to by the petitioner and his witnesses.

The psychological incapacity of the respondent could be traced back to respondent's history as testified to by the expert witness when she said that respondent's bad experience during her childhood resulted in her difficulty in achieving emotional intimacy, hence, her continuous illicit relations with several men before and during the marriage.

Considering that persons suffering from this kind of personality disorder have no insight of their condition, they will not submit to treatment at all. As in the case at bar, respondent's

psychological incapacity clinically identified as Histrionic Personality Disorder will remain incurable.[4] (Emphasis supplied.)

Thus, the dispositive portion of the trial court Decision dated January 11, 1999 read:

WHEREFORE, premises considered, judgment is hereby rendered DECLARING the marriage of JOSE REYNALDO B. OCHOSA and BONA J. ALANO on October 27, 1973 at Basilan City VOID AB INITIO on ground of psychological incapacity of the respondent under Article 36 of the Family Code as amended with all the effects and consequences provided for by all applicable provisions of existing pertinent laws.

After this Decision becomes final, let copies thereof be sent to the Local Civil Registrar of Basilan City who is directed to cancel the said marriage from its Civil Registry, and the Local Civil Registrar of Makati City for its information and guidance.[5]

The Office of the Solicitor General (OSG) appealed the said ruling to the Court of Appeals which sided with the OSG's contention that the trial court erred in granting the petition despite Jose's abject failure to discharge the burden of proving the alleged psychological incapacity of his wife, Bona, to comply with the essential marital obligations.

Thus, the Court of Appeals reversed and set aside the trial court Decision in its assailed Decision dated October 11, 2004, the dispositive portion of which states:

WHEREFORE, the appeal is GRANTED, the appealed Decision dated 11 January 1999 in Civil Case No. 97-2903 of the Regional Trial Court (RTC) of Makati City, Branch 140, is accordingly REVERSED and SET ASIDE, and another is entered DISMISSING the petition for declaration of nullity of marriage.[6]

Jose filed a Motion for Reconsideration but this was denied by the Court of Appeals for lack of merit in its assailed Resolution dated March 10, 2005.

Hence, this Petition.

The only issue before this Court is whether or not Bona should be deemed psychologically incapacitated to comply with the essential marital obligations.

The petition is without merit.

The petition for declaration of nullity of marriage which Jose filed in the trial court hinges on Article 36 of the Family Code, to wit:

A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

In the landmark case of Santos v. Court of Appeals,[7] we observed that psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability.  The incapacity must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in marriage; it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after marriage; and it must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved.

Soon after, incorporating the three basic requirements of psychological incapacity as

mandated in Santos, we laid down in Republic v. Court of Appeals and Molina[8] the following guidelines in the interpretation and application of Article 36 of the Family Code:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state.

The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity.

(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or physically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists.

(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outburst" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Article 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides:

"The following are incapable of contracting marriage: Those who are unable to assume the essential obligations of marriage due to causes of psychological nature."

Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate tribunal. Ideally - subject to our law on evidence - what is decreed as canonically invalid should also be decreed civilly void.

This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Church - while remaining independent, separate and apart from each other - shall walk together in synodal cadence towards the same goal of protecting and cherishing marriage and the family as the inviolable base of the nation.

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculicontemplated under Canon 1095.[9] (Citations omitted.)

In Marcos v. Marcos,[10] we previously held that the foregoing guidelines do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be "medically or clinically identified."  What is important is the presence of evidence that can adequately establish the party'spsychological condition.  For, indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to.

It is also established in jurisprudence that from these requirements arise the concept that Article 36 of the Family Code does not really dissolve a marriage; it simply recognizes that there never was any marriage in the first place because the affliction - already then existing - was so grave and permanent as to deprive the afflicted party of awareness of the duties and responsibilities of the matrimonial bond he or she was to assume or had assumed.[11]

A little over a decade since the promulgation of the Molina guidelines, we made a critical assessment of the same in Ngo Te v. Yu-Te,[12] to wit:

In hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of psychological incapacity. Understandably, the Court was then alarmed by the deluge of petitions for the dissolution of marital bonds, and was sensitive to the OSG's exaggeration of Article 36 as the "most liberal divorce procedure in the world." The unintended consequences ofMolina, however, has taken its toll on people who have to live with deviant behavior, moral insanity and sociopathic personality anomaly, which, like termites, consume little by little the very foundation of their families, our basic

social institutions. Far from what was intended by the Court, Molina has become a strait-jacket, forcing all sizes to fit into and be bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage. Ironically, the Roman Rota has annulled marriages on account of the personality disorders of the said individuals.[13]

However, our critique did not mean that we had declared an abandonment of theMolina doctrine.  On the contrary, we simply declared and, thus, clarified in the sameTe case that there is a need to emphasize other perspectives as well which should govern the disposition of petitions for declaration of nullity under Article 36. Furthermore, we reiterated in the same case the principle that each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts.  And, to repeat for emphasis, courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.[14]

In the case at bar, the trial court granted the petition for the declaration of nullity of marriage on the basis of Dr. Elizabeth Rondain's testimony[15] and her psychiatric evaluation report[16] as well as the individual testimonies of Jose[17] and his military aides - Mrs. Gertrudes Himpayan Padernal[18] and Corporal Demetrio Bajet.[19]

We are sufficiently convinced, after a careful perusal of the evidence presented in this case, that Bona had been, on several occasions with several other men, sexually disloyal to her spouse, Jose.  Likewise, we are persuaded that Bona had indeed abandoned Jose. However, we cannot apply the same conviction to Jose's thesis that the totality of Bona's acts constituted psychological incapacity as determined by Article 36 of the Family Code.  There is inadequate credible evidence that her "defects" were already present at the inception of, or prior to, the marriage. In other words, her alleged psychological incapacity did not satisfy the jurisprudential requisite of "juridical antecedence."

With regard to Bona's sexual promiscuity prior to her marriage to Jose, we have only the uncorroborated testimony of Jose made in open court to support this allegation.  To quote the pertinent portion of the transcript:

Q: So, what was the reason why you have broken with your wife after several years -A: Well, I finally broke up with my wife because I can no longer bear the torture

because of the gossips that she had an affair with other men, and finally, when I have a chance to confront her she admitted that she had an affair with other men.

Q: With other men. And, of course this - her life with other men of course before the marriage you have already known -

A: Yes, your honor.

Q: So, that this gossips - because you said that you thought that this affair would go to end after your marriage?

A: Yes, I was thinking about that.

Q: So, that after several years she will not change so that's why you can't bear it anymore?

A: Yes, ma'am.[20]

Dr. Rondain's testimony and psychiatric evaluation report do not provide evidentiary support to cure the doubtful veracity of Jose's one-sided assertion.  Even if we take into account the

psychiatrist's conclusion that Bona harbors a Histrionic Personality Disorder that existed prior to her marriage with Jose and this mental condition purportedly made her helplessly prone to promiscuity and sexual infidelity, the same cannot be taken as credible proof of antecedence since the method by which such an inference was reached leaves much to be desired in terms of meeting the standard of evidence required in determining psychological incapacity.

The psychiatrist's findings on Bona's personality profile did not emanate from a personal interview with the subject herself as admitted by Dr. Rondain in court, as follows:

Q: How about, you mentioned that the petitioner came for psychological test, how about the respondent, did she come for interview and test?

A: No, ma'am.

Q: Did you try to take her for such?A: Yes, ma'am.

Q: And what did she tell you, did she come for an interview?A: There was no response, ma'am.[21]

As a consequence thereof, Dr. Rondain merely relied on her interview with Jose and his witness, Mrs. Padernal, as well as the court record of the testimonies of other witnesses, to wit:

Q: And you said you did interviews. Who did the interview?A: I interviewed Mr. Ochosa and their witness Padernal, ma'am.

Q: When you say Padernal are you referring to Gertrudes Himpayan Padernal who testified in this court?

A: Yes, ma'am.

x x x x

Q: Other than the interviews what else did you do in order to evaluate members of the parties?

A: I also interviewed (sic) the transcript of stenographic notes of the testimonies of other witnesses, ma'am.x x x x

Q: Was there also a psychological test conducted on the respondent?A: Yes, your honor.

Q: It was on the basis of the psychological test in which you based your evaluation report?

A: It was based on the psychological test conducted and clinical interview with the other witnesses, your Honor.[22]

Verily, Dr. Rondain evaluated Bona's psychological condition indirectly from the information gathered solely from Jose and his witnesses. This factual circumstance evokes the possibility that the information fed to the psychiatrist is tainted with bias for Jose's cause, in the absence of sufficient corroboration.

Even if we give the benefit of the doubt to the testimonies at issue since the trial court judge had found them to be credible enough after personally witnessing Jose and the witnesses testify in court, we cannot lower the evidentiary benchmark with regard to information on

Bona's pre-marital history which is crucial to the issue of antecedence in this case because we have only the word of Jose to rely on.  In fact, Bona's dysfunctional family portrait which brought about her Histrionic Personality Disorder as painted by Dr. Rondain was based solely on the assumed truthful knowledge of Jose, the spouse who has the most to gain if his wife is found to be indeed psychologically incapacitated.  No other witness testified to Bona's family history or her behavior prior to or at the beginning of the marriage.  Both Mrs. Padernal and Corporal Bajet came to know Bona only during their employment in petitioner's household during the marriage.  It is undisputed that Jose and Bona were married in 1973 while Mrs. Padernal and Corporal Bajet started to live with petitioner's family only in 1980 and 1986, respectively.

We have previously held that, in employing a rigid and stringent level of evidentiary scrutiny to cases like this, we do not suggest that a personal examination of the party alleged to be psychologically incapacitated is mandatory; jurisprudence holds that this type of examination is not a mandatory requirement. While such examination is desirable, we recognize that it may not be practical in all instances given the oftentimes estranged relations between the parties.  For a determination though of a party's complete personality profile, information coming from persons with personal knowledge of the juridical antecedents may be helpful.  This is an approach in the application of Article 36 that allows flexibility, at the same time that it avoids, if not totally obliterate, the credibility gaps spawned by supposedly expert opinion based entirely on doubtful sources of information.[23]

However, we have also ruled in past decisions that to make conclusions and generalizations on a spouse's psychological condition based on the information fed by only one side, similar to what we have pointed out in the case at bar, is, to the Court's mind, not different from admitting hearsay evidence as proof of the truthfulness of the content of such evidence.[24]

Anent the accusation that, even at the inception of their marriage, Bona did not wish to be with Jose as a further manifestation of her psychological incapacity, we need only to look at the testimonial records of Jose and his witnesses to be convinced otherwise, to wit:

JOSE OCHOSA'S TESTIMONY:

Q: How long did you stay with your wife?A: We were married in 1973 and we separated in 1988 but in all those years there

were only few occasions that we were staying together because most of the time I'm in the field.

Q: Now, you said most of the time you were in the field, did you not - your wife come with you in any of your assignments?

A: Never, but sometimes she really visited me and stayed for one (1) day and then -

Q: And, where did your wife stayed when she leaves you?A: She was staying with her mother in Basilan.

Q: Where were you assigned most of the time?A: I was assigned in Davao, Zamboanga, Cotabato, Basilan.

Q: And, of course she would come to your place every now and then because it is not very far -

A: No, ma'am, once in a while only.

Q: Did you not go home to your conjugal home?A: I have a chanced also to go home because we were allowed to at least three (3)

days every other month.

Q: So, if you start from the marriage up to 1988 so that is 16 years you were supposed to have been living together?

A: No, actually in 19 - middle of 1987 because in 1987 I was in x x x.[25]

GERTRUDES PADERNAL'S TESTIMONY:

Q: Now, do you know when they lived together as husband and wife?A: 1979.

Q: And you said that you have known the petitioner and the respondent in this case because in fact, you lived with them together in the same quarters. Does the quarters have different rooms?

A: Yes, ma'am.

Q: But very near each other?A: Yes, ma'am.

Q: You know them because of the proximity of the quarters?A: Yes, ma'am.

Q: It was only during this 1980 to 1983, three (3) years that you lived together that you have a chance to be with the spouses?

x x x x

A: Since 1980 to 1983 we lived together in the same house.

x x x x

Q: Now, Madam Witness, after 1983, where did you reside together with your husband?

A: In Cagayan de Oro and in 1986 we came back to Manila, in Fort Bonifacio.

Q: You mean, in the same house where petitioner and the respondent lived together?A: Yes. Ma'am.

Q: How long did you live in the house where the petitioner and the respondent stay?A: Twelve years now since 1983 to 1995.

Q: Where was the petitioner working at that time, from 1982 to 1995?A: He is a soldier, a Colonel.

Q: Do you know where he was assigned during this time?A: Yes, ma'am, G-3.

Q: May we know where this G-3 is?A: Fort Bonifacio, ma'am.

Q: What about the wife, where does she stay?A: At Fort Bonifacio, in their house.[26]

DR. ELIZABETH E. RONDAIN'S TESTIMONY:

Q: Now, they got married in 1973, am I correct?A: Yes, ma'am.

Q: But the matter of the work or assignment of the petitioner, he was assigned in different Provinces or Barangays in the Philippines?

A: Yes, ma'am.

Q: Now, when the wife or the respondent in this case did not go with the husband in different places of his assignment did you ask her why what was the reason why she did not like to go those places?

A: She just did not want to. The wife did not go with him because... by transferring from one place to another, she just don't want to go, she just wanted to stay in Basilan where her hometown is, ma'am.

Q: Did the petitioner herein tell you why the respondent don't want to go with him?A: Yes, I asked, the answer of the petitioner was she simply did not want to go with

him because she did not want him to be appointed to far away places.

Q: And would it be that since she did not like to go with the husband in some far away different assignments she also assumed that the assignments were in this war regions they were always fighting considering the place in Basilan they were in fighting atmosphere?

A: It is possible but he was transferred to Manila and she also refused to stay in Manila, ma'am.

Q: When was that that she refused to come to Manila?A: I think, sometime in 1983, ma'am. She did not follow immediately. She stayed with

him only for four (4) months, ma'am.

Q: Now, do you know if the petitioner and the respondent were living together as husband and wife for this period of time during the relationship?

A: Yes, ma'am. After their marriage I believe their relationship was good for a few months until he was transferred to Julu. I believe during that time when they were together the husband was giving an attention to her. The husband was always there and when the husband transferred to Basilan, the attention was not there anymore, ma'am.[27]

It is apparent from the above-cited testimonies that Bona, contrary to Jose's assertion, had no manifest desire to abandon Jose at the beginning of their marriage and was, in fact, living with him for the most part of their relationship from 1973 up to the time when Jose drove her away from their conjugal home in 1988.  On the contrary, the record shows that it was Jose who was constantly away from Bona by reason of his military duties and his later incarceration.  A reasonable explanation for Bona's refusal to accompany Jose in his military assignments in other parts of Mindanao may be simply that those locations were known conflict areas in the seventies. Any doubt as to Bona's desire to live with Jose would later be erased by the fact that Bona lived with Jose in their conjugal home in Fort Bonifacio during the following decade.

In view of the foregoing, the badges of Bona's alleged psychological incapacity, i.e., her sexual infidelity and abandonment, can only be convincingly traced to the period of time after her marriage to Jose and not to the inception of the said marriage.

We have stressed time and again that Article 36 of the Family Code is not to be confused with a divorce law that cuts the marital bond at the time the causes therefore manifest

themselves.  It refers to a serious psychological illness afflicting a party even before the celebration of the marriage.  It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. These marital obligations are those provided under Articles 68 to 71, 220, 221 and 225 of the Family Code.[28]

While we are not insensitive to petitioner's suffering in view of the truly appalling and shocking behavior of his wife, still, we are bound by judicial precedents regarding the evidentiary requirements in psychological incapacity cases that must be applied to the present case.

WHEREFORE, the petition is DENIED and the assailed Decision of the Court of Appeals is hereby AFFIRMED.

SO ORDERED.

Corona, C.J.,  (Chairperson), Velasco, Jr., Del Castillo, and Perez, JJ., concur.SECOND DIVISION 

[G.R. No. 191425, September 07, 2011] 

ATILANO O. NOLLORA, JR., PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

D E C I S I O N 

CARPIO, J.:

The Case

G.R. No. 191425 is a petition for review[1] assailing the Decision[2] promulgated on 30 September 2009 as well as the Resolution[3] promulgated on 23 February 2010 by the Court of Appeals (appellate court) in CA-G.R. CR No. 31538. The appellate court affirmed the 19 November 2007 Decision[4] of Branch 215 of the Regional Trial Court of Quezon City (trial court) in Criminal Case No. Q-04-129031.

The trial court found accused Atilano O. Nollora, Jr. (Nollora) guilty of bigamy under Article 349 of the Revised Penal Code and sentenced him to suffer imprisonment. Co-accused Rowena Geraldino (Geraldino) was acquitted for the prosecution's failure to prove her guilt beyond reasonable doubt.

The Facts

The appellate court recited the facts as follows:

On August 24, 2004, Assistant City Prosecutor Raymond Jonathan B. Lledo filed an Information against Atilano O. Nollora, Jr. ("Nollora") and Rowena P. Geraldino ("Geraldino") for the crime of Bigamy. The accusatory portion of the Information reads:

"That on or about the 8th day of December 2001 in Quezon City, Philippines, the above-named accused ATILANO O. NOLLORA, JR., being then legally married to one JESUSA PINAT NOLLORA, and as said marriage has not been legally dissolved and still subsisting, did then and there willfully, unlawfully and feloniously contract a subsequent or second marriage with

her [sic] co-accused ROWENA P. GERALDINO, who knowingly consented and agreed to be married to her co-accused ATILANO O. NOLLORA, JR. knowing him to be a married man, to the damage and prejudice of the said offended party JESUSA PINAT NOLLORA."

Upon his arraignment on April 18, 2005, accused Nollora assisted by counsel, refused to enter his plea. Hence, a plea of not guilty was entered by the Court for him. Accused Geraldino, on the other hand, entered a plea of not guilty when arraigned on June 14, 2005. On even date, pre-trial conference was held and both the prosecution and defense entered the following stipulation of facts:

"1. the validity of the first marriage between Atilano O. Nollora, Jr. and Jesusa Pinat Nollora solemnized on April 6, 1999 at Sapang Palay, San Jose del Monte;

2. that Atilano O. Nollora, Jr. contracted the second marriage with Rowena P. Geraldino on December 8, 2001 in Quezon City;

3. that in the Counter-Affidavit of Atilano O. Nollora, Jr., he admitted that he contracted the second marriage to Rowena P. Geraldino;

4. that Rowena P. Geraldino attached to her Counter-Affidavit the Certificate of Marriage with Atilano O. Nollora, Jr. dated December 8, 2001;

5. the fact of marriage of Rowena P. Geraldino with Atilano O. Nollora, Jr. as admitted in her Counter-Affidavit."

The only issue thus proffered by the prosecution for the RTC's resolution is whether or not the second marriage is bigamous. Afterwards, pre-trial conference was terminated and the case was set for initial hearing. Thereafter, trial ensued.

Evidence for the Prosecution

As culled from the herein assailed Decision, the respective testimonies of prosecution witnesses were as follows:

"xxx (W)itness Jesusa Pinat Nollora xxx testified that she and accused Atilano O. Nollora, Jr. met in Saudi Arabia while she was working there as a Staff Midwife in King Abdulah Naval Base Hospital. Atilano O. Nollora, Jr. courted her and on April 6, 1999, they got married at the [IE] MELIF Chruch [sic] in Sapang Palay, San Jose del Monte, Bulacan (Exhibit `A'). While working in said hospital, she heard rumors that her husband has another wife and because of anxiety and emotional stress, she left Saudi Arabia and returned to the Philippines (TSN, October 4, 2005, page 10). Upon arrival in the Philippines, the private complainant learned that indeed, Atilano O. Nollora, Jr. contracted a second marriage with co-accused Rowena P. Geraldino on December 8, 2001 (Exhibit `B') when she secured a certification as to the civil status of Atilano O. Nollora, Jr. (Exhibit `C') from the National Statistics Office (NSO) sometime in November 2003.

Upon learning this information, the private complainant confronted Rowena P. Geraldino at the latter's workplace in CBW, FTI, Taguig and asked her if she knew of the first marriage between complainant and Atilano O. Nollora, Jr. to which Rowena P. Geraldino allegedly affirmed and despite this knowledge, she allegedly still married Atilano O. Nollora, Jr. because she loves him so much and because they were neighbors and childhood friends. Private complainant also knew that Rowena P. Geraldino knew of her marriage with Atilano O. Nollora, Jr., because when she (private complainant) was brought by Atilano O. Nollora, Jr. at the latter's residence in Taguig, Metro Manila and introduced her to Atilano O. Nollora,

Jr.'s parents, Rowena P. Geraldino was there in the house together with a friend and she heard everything that they were talking about.

Because of this case, private complainant was not able to return to Saudi Arabia to work as a Staff Midwife thereby losing income opportunity in the amount of P34,000.00 a month, more or less. When asked about the moral damages she suffered, she declared that what happened to her was a tragedy and she had entertained [thoughts] of committing suicide. She added that because of what happened to her, her mother died and she almost got raped when Atilano O. Nollora, Jr. left her alone in their residence in Saudi Arabia. However, she declared that money is not enough to assuage her sufferings. Instead, she just asked for the return of her money in the amount of P50,000.00 (TSN, July 26, 2005, pages 4-14).

Prosecution witness Ruth Santos testified that she knew of the marriage between the private complainant and Atilano O. Nollora, Jr., because she was one of the sponsors in said wedding. Sometime in November 2003, she was asked by the private complainant to accompany the latter to the workplace of Rowena P. Geraldino in FTI, Taguig, Metro Manila. She declared that the private complainant and Rowena P. Geraldino had a confrontation and she heard that Rowena P. Geraldino admitted that she (Rowena) knew of the first marriage of Atilano O. Nollora, Jr. and the private complainant but she still went on to marry Atilano O. Nollora, Jr. because she loves him very much (TSN, October 24, 2005, pages 3-5).

Evidence for the Defense

The defense's version of facts, as summarized in the herein assailed Decision, is as follows:

"Accused Atilano O. Nollora, Jr. admitted having contracted two (2) marriages, the first with private complainant Jesusa Pinat and the second with Rowena P. Geraldino. He, however, claimed that he was a Muslim convert way back on January 10, 1992, even before he contracted the first marriage with the private complainant. As a [M]uslim convert, he is allegedly entitled to marry four (4) wives as allowed under the Muslim or Islam belief.

To prove that he is a Muslim convert even prior to his marriage to the private complainant, Atilano O. Nollora, Jr. presented a Certificate of Conversion dated August 2, 2004 issued by one Hadji Abdul Kajar Madueño and approved by one Khad Ibrahim A. Alyamin wherein it is stated that Atilano O. Nollora, Jr. allegedly converted as a Muslim since January 19, 1992 (Exhibit `2,' `3' and `4'). Aside from said certificate, he also presented a Pledge of Conversion dated January 10, 1992 issued by the same Hadji Abdul Kajar Madueño and approved by one Khad Ibrahim A. Alyamin (Exhibit `7').

He claimed that the private complaint knew that he was a Muslim convert prior to their marriage because she [sic] told this fact when he was courting her in Saudi Arabia and the reason why said private complainant filed the instant case was due to hatred having learned of his second marriage with Rowena P. Geraldino. She [sic] further testified that Rowena P. Geraldino was not aware of his first marriage with the private complainant and he did not tell her this fact because Rowena P. Geraldino is a Catholic and he does not want to lose her if she learns of his first marriage.

He explained that in his Marriage Contract with Jesusa Pinat, it is indicated that he was a `Catholic Pentecostal' but that he was not aware why it was placed as such on said contract. In his Marriage Contract with Rowena P. Geraldino, the religion `Catholic' was also indicated because he was keeping as a secret his being a Muslim since the society does not approve of marrying a Muslim. He also indicated that he was `single' despite his first marriage to keep said first marriage a secret (TSN, January 30, 2006, pages 2-13).

Defense witness Hadji Abdul Qasar Madueño testified that he is the founder and president of Balik Islam Tableegh Foundation of the Philippines and as such president, he has the power and authority to convert any applicant to the Muslim religion. He alleged that sometime in 1992, he met accused Atilano O. Nollora, Jr. in Mabini (Manila) who was then going abroad. Atilano O. Nollora, Jr. applied to become a Muslim (Exhibit `14') and after receiving the application, said accused was indoctrinated regarding his obligations as a Muslim. On January 10, 1992, Atilano O. Nollora, Jr. embraced the Muslim faith. He was then directed to report every Sunday to monitor his development.

In the year 2004, Atilano O. Nollora, Jr. visited him and asked for a certification because of the filing of the instant case. On October 2, 2004, he issued a Certificate of Conversion wherein it is stated that Atilano O. Nollora, Jr. is a Muslim convert since January 10, 1992. Apart from the above-mentioned document, their `Imam' also issued a Pledge of Conversion (Exhibit `7'). He declared that a Muslim convert could marry more than one according to the Holy Koran. However, before marrying his second, third and fourth wives, it is required that the consent of the first Muslim wife be secured. Thus, if the first wife is not a Muslim, there is no necessity to secure her consent (TSN, October 9, 2006, pages 2-12).

During his cross-examinations, he declared that if a Muslim convert gets married not in accordance with the Muslim faith, the same is contrary to the teachings of the Muslim faith. A Muslim also can marry up to four times but he should be able to treat them equally. He claimed that he was not aware of the first marriage but was aware of the second. Since his second marriage with Rowena P. Geraldino was not in accordance with the Muslim faith, he advised Atilano O. Nollora, Jr. to re-marry Rowena P. Geraldino in accordance with Muslim marriage celebration, otherwise, he will not be considered as a true Muslim (TSN, June 25, 2007, pages 3-7).

Accused Rowena P. Geraldino alleged that she was only a victim in this incident of bigamous marriage. She claimed that she does not know the private complainant Jesusa Pinat Nollora and only came to know her when this case was filed. She insists that she is the one lawfully married to Atilano O. Nollora, Jr., having been married to the latter since December 8, 2001. Upon learning that Atilano O. Nollora, Jr. contracted a first marriage with the private complainant, she confronted the former who admitted the said marriage. Prior to their marriage, she asked Atilano O. Nollora, Jr. if he was single and the latter responded that he was single. She also knew that her husband was a Catholic prior to their marriage but after she learned of the first marriage of her husband, she learned that he is a Muslim convert. She also claimed that after learning that her husband was a Muslim convert, she and Atilano O. Nollora, Jr., also got married in accordance with the Muslim rites. She also belied the allegations of the private complainant that she was sought by the private complainant and that they had a confrontation where she admitted that she knew that Atilano O. Nollora, Jr. was married to the private complainant and despite this knowledge, she went on to marry him because she loved him very much. She insisted that she only came to know the private complainant when she (private complainant) filed this case (TSN, August 14, 2007, pages 2-8)."[5]

The Trial Court's Ruling

In its Decision[6] dated 19 November 2007, the trial court convicted Nollora and acquitted Geraldino.

The trial court stated that there are only two exceptions to prosecution for bigamy: Article 41[7] of the Family Code, or Executive Order No. 209, and Article 180[8] of the Code of Muslim Personal Laws of the Philippines, or Presidential Decree No. 1083. The trial court also cited Article 27 of the Code of Muslim Personal Laws of the Philippines, which provides the

qualifications for allowing Muslim men to have more than one wife: "[N]o Muslim male can have more than one wife unless he can deal with them in equal companionship and just treatment as enjoined by Islamic Law and only in exceptional cases."

In convicting Nollora, the trial court's Decision further stated thus:

The principle in Islam is that monogamy is the general rule and polygamy is allowed only to meet urgent needs. Only with the permission of the court can a Muslim be permitted to have a second wife subject to certain requirements. This is because having plurality of wives is merely tolerated, not encouraged, under certain circumstances (Muslim Law on Personal Status in the Philippines by Amer M. Bara-acal and Abdulmajid J. Astir, 1998 First Edition, Pages 64-65). Arbitration is necessary. Any Muslim husband desiring to contract subsequent marriages, before so doing, shall notify the Shari'a Circuit Court of the place where his family resides. The clerk of court shall serve a copy thereof to the wife or wives. Should any of them objects [sic]; an Agama Arbitration Council shall be constituted. If said council fails to secure the wife's consent to the proposed marriage, the Court shall, subject to Article 27, decide whether on [sic] not to sustain her objection (Art. 162, Muslim Personal Laws of the Philippines).

Accused Atilano Nollora, Jr., in marrying his second wife, co-accused Rowena P. Geraldino, did not comply with the above-mentioned provision of the law. In fact, he did not even declare that he was a Muslim convert in both marriages, indicating his criminal intent. In his converting to the Muslim faith, said accused entertained the mistaken belief that he can just marry anybody again after marrying the private complainant. What is clear, therefore, is [that] a Muslim is not given an unbridled right to just marry anybody the second, third or fourth time. There are requirements that the Shari'a law imposes, that is, he should have notified the Shari'a Court where his family resides so that copy of said notice should be furnished to the first wife. The argument that notice to the first wife is not required since she is not a Muslim is of no moment. This obligation to notify the said court rests upon accused Atilano Nollora, Jr. It is not for him to interpret the Shari'a law. It is the Shari'a Court that has this authority.

In an apparent attempt to escape criminal liability, the accused recelebrated their marriage in accordance with the Muslim rites. However, this can no longer cure the criminal liability that has already been violated.

The Court, however, finds criminal liability on the person of accused Atilano Nollora, Jr., only. There is no sufficient evidence that would pin accused Rowena P. Geraldino down. The evidence presented by the prosecution against her is the allegation that she knew of the first marriage between private complainant and Atilano Nollora, Jr., is insufficient[,] being open to several interpretations. Private complainant alleged that when she was brought by Atilano Nollora, Jr., to the latter's house in Taguig, Metro Manila, Rowena P. Geraldino was there standing near the door and heard their conversation. From this incident, private complainant concluded that said Rowena P. Geraldino was aware that she and Atilano Nollora, Jr., were married. This conclusion is obviously misplaced since it could not be reasonably presumed that Rowena P. Geraldino understands what was going on between her and Atilano Nollora, Jr. It is axiomatic that "(E)very circumstance favoring accused's innocence must be taken into account, proof against him must survive the test of reason and the strongest suspicion must not be permitted to sway judgment" (People vs. Austria, 195 SCRA 700). This Court, therefore, has to acquit Rowena P. Geraldino for failure of the prosecution to prove her guilt beyond reasonable doubt.

WHEREFORE, premises considered, judgment is hereby rendered, as follows:

a) Finding accused ATILANO O. NOLLORA, JR. guilty beyond reasonable doubt of the crime of Bigamy punishable under Article 349 of the Revised Penal Code. This court hereby renders judgment imposing upon him a prison term of two (2) years, four (4) months and one (1) day of prision correccional, as minimum of his indeterminate sentence, to eight (8) years and one (1) day of prision mayor, as maximum, plus accessory penalties provided by law.

b) Acquitting accused ROWENA P. GERALDINO of the crime of Bigamy for failure of the prosecution to prove her guilt beyond reasonable doubt.

Costs against accused Atilano O. Nollora, Jr.

SO ORDERED.[9]

Nollora filed a notice of appeal and moved for the allowance of his temporary liberty under the same bail bond pending appeal. The trial court granted Nollora's motion.

Nollora filed a brief with the appellate court and assigned only one error of the trial court:

The trial court gravely erred in finding the accused-appellant guilty of the crime charged despite the prosecution's failure to establish his guilt beyond reasonable doubt.[10]

The Appellate Court's Ruling    

On 30 September 2009, the appellate court dismissed Nollora's appeal and affirmed the trial court's decision.[11]

The appellate court rejected Nollora's defense that his second marriage to Geraldino was in lawful exercise of his Islamic religion and was allowed by the Qur'an. The appellate court denied Nollora's invocation of his religious beliefs and practices to the prejudice of the non-Muslim women who married him pursuant to Philippine civil laws. Nollora's two marriages were not conducted in accordance with the Code of Muslim Personal Laws, hence the Family Code of the Philippines should apply. Nollora's claim of religious freedom will not immobilize the State and render it impotent in protecting the general welfare.

In a Resolution[12] dated 23 February 2010, the appellate court denied Nollora's motion for reconsideration. The allegations in the motion for reconsideration were a mere rehash of Nollora's earlier arguments, and there was no reason for the appellate court to modify its 30 September 2009 Decision.

Nollora filed the present petition for review before this Court on 6 April 2010.

The Issue

The issue in this case is whether Nollora is guilty beyond reasonable doubt of the crime of bigamy.

The Court's Ruling

Nollora's petition has no merit. We affirm the rulings of the appellate court and of the trial court.

Elements of Bigamy

Article 349 of the Revised Penal Code provides:

Art. 349. Bigamy. - The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

The elements of the crime of bigamy are:

1. That the offender has been legally married.2. That the marriage has not been legally dissolved or, in case his or her spouse is

absent, the absent spouse could not yet be presumed dead according to the Civil Code.

3. That he contracts a second or subsequent marriage.4. That the second or subsequent marriage has all the essential requisites for validity.[13]

The circumstances in the present case satisfy all the elements of bigamy. (1) Nollora is legally married to Pinat;[14] (2) Nollora and Pinat's marriage has not been legally dissolved prior to the date of the second marriage; (3) Nollora admitted the existence of his second marriage to Geraldino;[15] and (4) Nollora and Geraldino's marriage has all the essential requisites for validity except for the lack of capacity of Nollora due to his prior marriage.[16]

The marriage certificate[17] of Nollora and Pinat's marriage states that Nollora and Pinat were married at Sapang Palay IEMELIF Church, Sapang Palay, San Jose del Monte, Bulacan on 6 April 1999. Rev. Jonathan De Mesa, Minister of the IEMELIF Church officiated the ceremony. The marriage certificate[18] of Nollora and Geraldino's marriage states that Nollora and Geraldino were married at Max's Restaurant, Quezon Avenue, Quezon City, Metro Manila on 8 December 2001. Rev. Honorato D. Santos officiated the ceremony.

A certification dated 4 November 2003 from the Office of the Civil Registrar General reads:

We certify that ATILANO JR O. NOLLORA who is alleged to have been born on February 22, 1968 from ATILANO M. NOLLORA SR and FLAVIANA OCLARIT, appears in our National Indices of Marriage for Groom for the years 1973 to 2002 with the following information:

Date of Marriage Place of Marriagea) April 06, 1999 b) SAN JOSE DEL MONTE, BULACANa) December 08, 2001 b) QUEZON CITY, METRO MANILA (2nd District)[19]

Before the trial and appellate courts, Nollora put up his Muslim religion as his sole defense. He alleged that his religion allows him to marry more than once. Grantingarguendo that Nollora is indeed of Muslim faith at the time of celebration of both marriages,[ 20] Nollora cannot deny that both marriage ceremonies were not conducted in accordance with the Code of Muslim Personal Laws, or Presidential Decree No. 1083. The applicable Articles in the Code of Muslim Personal Laws read:

Art. 14. Nature. - Marriage is not only a civil contract but a civil institution. Its nature, consequences and incidents are governed by this Code and the Shari'a and not subject to stipulation, except that the marriage settlements to a certain extent fix the property relations of the spouses.

Art. 15. Essential Requisites. - No marriage contract shall be perfected unless the following essential requisites are complied with:

(a) Legal capacity of the contracting parties;(b) Mutual consent of the parties freely given;(c) Offer (ijab) and acceptance (qabul) duly witnessed by at least two competent persons after the proper guardian in marriage (wali) has given his consent; and(d) Stipulation of the customary dower (mahr) duly witnessed by two competent persons.

Art. 16. Capacity to contract marriage. - (1) Any Muslim male at least fifteen years of age and any Muslim female of the age of puberty or upwards and not suffering from any impediment under the provisions of this Code may contract marriage. A female is presumed to have attained puberty upon reaching the age of fifteen.

x x x.

Art. 17. Marriage Ceremony. - No particular form of marriage ceremony is required but the ijab and the qabul in marriage shall be declared publicly in the presence of the person solemnizing the marriage and the two competent witnesses. The declaration shall be set forth in an instrument in triplicate, signed or marked by the contracting parties and said witnesses, and attested by the person solemnizing the marriage. One copy shall be given to the contracting parties and another sent to the Circuit Registrar by the solemnizing officer who shall keep the third.

Art. 18. Authority to solemnize marriage. - Marriage maybe solemnized:

(a) By the proper wali by the woman to be wedded;

(b) Upon the authority of the proper wali, by any person who is competent under Muslim law to solemnize marriage; or

(c) By the judge of the Shari'a District Court or Shari'a Circuit Court or any person designated by the judge, should the proper wali refuse without justifiable reason, to authorize the solemnization.

Art. 19. Place of solemnization. - Marriage shall be solemnized publicly in any mosque, office of the Shari'a judge, office of the Circuit Registrar, residence of the bride or her wali, or at any other suitable place agreed upon by the parties.

Art. 20. Specification of dower. - The amount or value of dower may be fixed by the contracting parties (mahr-musamma) before, during or after the celebration of marriage. If the amount or the value thereof has not been so fixed, a proper dower (mahr- mithl) shall, upon petition of the wife, be determined by the court according to the social standing of the parties.

Indeed, Article 13(2) of the Code of Muslim Personal Laws states that "[i]n case of a marriage between a Muslim and a non-Muslim, solemnized not in accordance with Muslim law or this Code, the [Family Code of the Philippines, or Executive Order No. 209, in lieu of the Civil Code of the Philippines] shall apply." Nollora's religious affiliation is not an issue here. Neither is the claim that Nollora's marriages were solemnized according to Muslim law. Thus, regardless of his professed religion, Nollora cannot claim exemption from liability for the crime of bigamy.[21]

Nollora asserted in his marriage certificate with Geraldino that his civil status is "single." Moreover, both of Nollora's marriage contracts do not state that he is a Muslim. Although the truth or falsehood of the declaration of one's religion in the marriage certificate is not an essential requirement for marriage, such omissions are sufficient proofs of Nollora's liability

for bigamy. Nollora's false declaration about his civil status is thus further compounded by these omissions.

[ATTY. CALDINO:]

Q: In your marriage contract, Mr. Witness, with Jesusa Pinat, you indicated here as your religion, Catholic Pentecostal, and you were saying that since January 10, 1992, you are already a [M]uslim convert. . . you said, Mr. Witness, that you are already a [M]uslim convert since January 10, 1992. However, in your marriage contract with Jesusa Pinat, there is no indication here that you have indicated your religion. Will you please go over your marriage contract?

[NOLLORA:]

A: When we got married, they just placed there Catholic but I didn't know why they did not place any Catholic there.

x x x

Q: Now, Mr. Witness, I would like to call your attention with respect to your marriage contract with your co-accused in this case, Rowena Geraldino, x x x will you please tell us, Mr. Witness, considering that you said that you are already a [M]uslim convert on January 10, 1992, why in the marriage contract with Rowena Geraldino, you indicated there your religion as Catholic, Mr. Witness?

A: Since I was a former Catholic and since I was then keeping, I was keeping it as a secret my being my Balik-Islam, that's why I placed there Catholic since I know that the society doesn't approve a Catholic to marry another, that's why I placed there Catholic as my religion, sir.

Q: How about under the column, "civil status," why did you indicate there that you're single, Mr. Witness?

A: I also kept it as a secret that I was married, earlier married.[22] (Emphasis supplied)

x x x

[PROSECUTOR TAYLOR:]

Q: Would you die for your new religion, Mr. Nollora?

A: Yes, ma'am.

Q: If you would die for your new religion, why did you allow that your faith be indicated as Catholic when in fact you were already as you alleged [M]uslim to be put in your marriage contract?

x x x

[A:] I don't think there is anything wrong with it, I just signed it so we can get married under the Catholic rights [sic] because after that we even got married under the [M]uslim rights [sic], your Honor.

x x x

Q: Under your Muslim faith, if you marry a second wife, are you required under your faith to secure the permission of your first wife to get married?

A: Yes, ma'am.

Q: Did you secure that permission from your first wife, Jesusa Nollora?

A: I was not able to ask any permission from her because she was very mad at me, at the start, she was always very mad, ma'am.[ 23]

In his petition before this Court, Nollora casts doubt on the validity of his marriage to Geraldino. Nollora may not impugn his marriage to Geraldino in order to extricate himself from criminal liability; otherwise, we would be opening the doors to allowing the solemnization of multiple flawed marriage ceremonies. As we stated in Tenebro v. Court of Appeals:[24]

There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would render the State's penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment.

WHEREFORE, we DENY the petition. The Decision of the Court of Appeals in CA-G.R. CR No. 31538 promulgated on 30 September 2009 and the Resolution promulgated on 23 February 2010 are AFFIRMED. Petitioner Atilano O. Nollora, Jr. is guilty beyond reasonable doubt of Bigamy in Criminal Case No. Q-04-129031 and is sentenced to suffer the penalty of imprisonment with a term of two years, four months and one day of prision correccional as minimum to eight years and one day of prision mayor as maximum of his indeterminate sentence, as well as the accessory penalties provided by law.

Costs against petitioner Atilano O. Nollora, Jr.

SO ORDERED.

Brion, Peralta,* Perez, and Mendoza,** JJ., concur.

SECOND DIVISION 

[G.R. No. 179010, April 11, 2011] 

ELENITA M. DEWARA, REPRESENTED BY HER ATTORNEY-IN-FACT, FERDINAND MAGALLANES, PETITIONER, VS. SPOUSES RONNIE AND GINA LAMELA AND STENILE

ALVERO, RESPONDENTS.

DECISION 

NACHURA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision[1] dated November 6, 2006 and the Resolution[2] dated July 10, 2007 of the Court of Appeals (CA) in CA-G.R. CV No. 64936, which reversed and set aside the Decision[3] dated September 2, 1999 of the Regional Trial Court (RTC), Branch 54, Bacolod City, in Civil Case No. 93-7942.

The Facts

Eduardo Dewara (Eduardo) and petitioner Elenita Magallanes Dewara (Elenita) were married before the enactment of the Family Code. Thus, the Civil Code governed their marital relations. Husband and wife were separated-in-fact because Elenita went to work in California, United States of America, while Eduardo stayed in Bacolod City.

On January 20, 1985, Eduardo, while driving a private jeep registered in the name of Elenita,[4] hit respondent Ronnie Lamela (Ronnie). Ronnie filed a criminal case for serious physical injuries through reckless imprudence[5] against Eduardo before the Municipal Trial Court in Cities (MTCC), Branch IV, Bacolod City. The MTCC found Eduardo guilty of the charge and sentenced him to suffer the penalty of imprisonment of two (2) months and one (1) day to (3) months, and to pay civil indemnity of Sixty-Two Thousand Five Hundred Ninety-Eight Pesos and Seventy Centavos (P62,598.70) as actual damages and Ten Thousand Pesos (P10,000.00) as moral damages. On appeal, the RTC[6] affirmed the decision of the MTCC[7] and it became final and executory.[8]

The writ of execution on the civil liability was served on Eduardo, but it was returned unsatisfied because he had no property in his name. Ronnie requested the City Sheriff, respondent Stenile Alvero, to levy on Lot No. 234-C, Psd. 26667 of the Bacolod Cadastre, with an area of One Thousand Four Hundred Forty (1,440) square meters (sq m), under Transfer Certificate of Title (TCT) No. T-80054, in the name of “ELENITA M. DEWARA, of legal age, Filipino, married to Eduardo Dewara, and resident of Bacolod City,” to satisfy the judgment on the civil liability of Eduardo. The City Sheriff served a notice of embargo on the title of the lot and subsequently sold the lot in a public auction. In the execution sale, there were no interested buyers other than Ronnie. The City Sheriff issued a certificate of sale to spouses Ronnie and Gina Lamela to satisfy the civil liability in the decision against Eduardo.

[9] Ronnie then caused the consolidation of title in a Cadastral Proceeding before the RTC, which ordered the cancellation of TCT No. T-80054 in the name of Elenita and the issuance of a new certificate of title in the name of respondent spouses.[10]

The levy on execution, public auction, issuance of certificate of sale, and cancellation of title of the lot in the name of Elenita were done while Elenita was working in California.[11] Thus, Elenita, represented by her attorney-in-fact, Ferdinand Magallanes, filed a case for annulment of sale and for damages against respondent spouses and ex-officio sheriff Stenile Alvero before the RTC of Bacolod City. Petitioner claimed that the levy on execution of Lot No. 234-C was illegal because the said property was her paraphernal or exclusive property and could not be made to answer for the personal liability of her husband. Furthermore, as the registered owner of the property, she received no notice of the execution sale. She sought the annulment of the sale and the annulment of the issuance of the new TCT in the name of respondent spouses.[12]

On the other hand, respondent spouses averred that the subject lot was the conjugal property of petitioner Elenita and Eduardo. They asserted that the property was acquired by Elenita during her marriage to Eduardo; that the property was acquired with the money of Eduardo because, at the time of the acquisition of the property, Elenita was a plain housewife; that the jeep involved in the accident was registered in the name of petitioner; and that Elenita did not interpose any objection pending the levy on execution of the property.[13] On September 2, 1999, the RTC rendered a decision in favor of petitioner, the fallo of which reads:

WHEREFORE, judgment is hereby rendered in favor of the [petitioner] and against the [respondents]:

1. The levy on execution on Lot No. 234-C of the Bacolod Cadastre covered by TCT No. 80054 in the name of [petitioner] Elenita M. Dewara, the public auction of the property, and the consolidation of the title and issuance of new TCT No. 167403 in the name of [respondent] Ronnie Lamela, are hereby declared null and void;

2. The Register of Deeds of Bacolod City is ordered to cancel TCT No. 167403 in the name of [respondent] Ronnie Lamela and TCT No. 80054 be reinstated or a new one issued in the name of [petitioner] Elenita M. Dewara;

3. There is no pronouncement on damages with cost de officio.

SO ORDERED.[14]

The RTC declared that said property was paraphernal in nature. It arrived at this conclusion by tracing how Elenita acquired the subject property. Based on the documentary evidence submitted, Elenita’s grandfather, Exequiel Magallanes, originally owned Lot No. 234-C. Upon his demise, his children, Jesus (Elenita’s father), Salud, and Concepcion, inherited the property, each entitled to a share equal to one-third (1/3) of the total area of the land. They were issued a new title (TCT No. T-17541) for the property. On July 6, 1966, petitioner’s aunt, Salud, executed a waiver of rights duly registered with the Office of the Register of Deeds under Entry No. 76392, thereby waiving her rights and participation over her 1/3 share of the property in favor of her siblings, Jesus and Concepcion. The two siblings then became the owners of the property, each owning one-half (1/2) of the property. Jesus subsequently sold his share to his daughter, Elenita, for the sum of Five Thousand Pesos (P5,000.00), based on the deed of sale dated March 26, 1975. The deed of sale was duly registered with the Register of Deeds under Entry No. 76393. Concepcion also sold her share to her niece, Elenita, for the sum of Ten Thousand Pesos (P10,000.00), based on the deed of

sale dated April 29, 1975, which was duly registered with the Register of Deeds under Entry No. 76394. By virtue of the sale transactions, TCT No. T-17541 was cancelled and a new title, TCT No. T-80054, was issued in the name of Elenita.[15]

The RTC gave credence to the testimony of Elenita on the circumstances surrounding the sale of the property. First, it was sold to her by her father and her aunt so that the family would remain on the lot. Second, the minimal and inadequate consideration for the 1,440 sq m property was for the purpose of helping her expand her capital in her business at the time. Thus, the sale was essentially a donation and was therefore gratuitous in character.[16]

Having declared that the property was the paraphernal property of Elenita, the RTC ruled that the civil liability of Eduardo, which was personal to him, could not be charged to the exclusive property of his wife.[17]

On appeal, the CA reversed the decision of the RTC. The dispositive portion of the Decision reads:

WHEREFORE, in view of all the foregoing, the instant appeal isGRANTED. The assailed decision of the Regional Trial Court of Bacolod City, Branch 54, dated September 2, 1999, in Civil Case No. 93-7942 is hereby REVERSED and SET ASIDE, and a new Decision is entered DISMISSING the complaint for lack of merit. Let a copy of this Decision be furnished to the Office of the Register of Deeds of Bacolod City, Negros Occidental [which] is hereby ordered to cancel Transfer Certificate of Title No. T-80054 or any transfer certificate of title covering Lot No. 234-C issued in the name of Elenita M. Dewara, andreinstate Transfer Certificate of Title No. 167403 or issue a new transfer certificate of title covering Lot No. 234-C in the name of Ronnie Lamela. No pronouncement as to costs.

SO ORDERED.[18]

In reversing the decision of the RTC, the CA elucidated that the gross inadequacy of the price alone does not affect a contract of sale, except that it may indicate a defect in the consent, or that the parties really intended a donation or some other act or contract. Except for the assertions of Elenita, there was nothing in the records that would indicate a defect in Jesus and Concepcion Magallanes’ consent to the sale.[19]The CA ruled that Elenita and Eduardo acquired the property by onerous title during their marriage through their common fund. Thus, it belonged to the conjugal partnership of gains and might be levied upon to answer for civil liabilities adjudged against Eduardo.[20]

Hence, this petition.

The Issue

The sole issue for resolution is whether the subject property is the paraphernal/exclusive property of Elenita or the conjugal property of spouses Elenita and Eduardo.

The answer to this question will define whether the property may be subject to levy and execution sale to answer for the civil liability adjudged against Eduardo in the criminal case for serious physical injuries, which judgment had already attained finality.

The Ruling of the Court

All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the wife.[21] Registration in the name of the husband or the wife alone does not destroy this presumption.[22]The separation-in-fact between the husband and the wife without judicial approval shall not affect the conjugal partnership. The lot retains its conjugal nature.[23]Moreover, the presumption of conjugal ownership applies even when the manner in which the property was acquired does not appear. The use of the conjugal funds is not an essential requirement for the presumption to arise.[24]

There is no dispute that the subject property was acquired by spouses Elenita and Eduardo during their marriage. It is also undisputed that their marital relations are governed by the conjugal partnership of gains, since they were married before the enactment of the Family Code and they did not execute any prenuptial agreement as to their property relations. Thus, the legal presumption of the conjugal nature of the property applies to the lot in question. The presumption that the property is conjugal property may be rebutted only by strong, clear, categorical, and convincing evidence—there must be strict proof of the exclusive ownership of one of the spouses, and the burden of proof rests upon the party asserting it.[25]

Aside from the assertions of Elenita that the sale of the property by her father and her aunt was in the nature of a donation because of the alleged gross disparity between the actual value of the property and the monetary consideration for the sale, there is no other evidence that would convince this Court of the paraphernal character of the property. Elenita proffered no evidence of the market value or assessed value of the subject property in 1975. Thus, we agree with the CA that Elenita has not sufficiently proven that the prices involved in the sales in question were so inadequate for the Court to reach a conclusion that the transfers were in the nature of a donation rather than a sale.

Furthermore, gross inadequacy of the price does not affect a contract of sale, except as it may indicate a defect in the consent, or that the parties really intended a donation or some other act or contract.[26] The records are bereft of proof that the consent of petitioner’s father and her aunt were vitiated or that, in reality, they intended the sale to be a donation or some other contract. Inadequacy of the price per se will not rule out the transaction as one of sale; the price must be grossly inadequate or shocking to the conscience, such that the mind would revolt at it and such that a reasonable man would neither directly nor indirectly consent to it.[27]

However, even after having declared that Lot No. 234-C is the conjugal property of spouses Elenita and Eduardo, it does not necessarily follow that it may automatically be levied upon in an execution to answer for debts, obligations, fines, or indemnities of one of the spouses. Before debts and obligations may be charged against the conjugal partnership, it must be shown that the same were contracted for, or the debts and obligations should have redounded to, the benefit of the conjugal partnership. Fines and pecuniary indemnities imposed upon the husband or the wife, as a rule, may not be charged to the partnership. However, if the spouse who is bound should have no exclusive property or if the property should be insufficient, the fines and indemnities may be enforced upon the partnership assets only after the responsibilities enumerated in Article 161 of the Civil Code have been covered.

In this case, it is just and proper that Ronnie be compensated for the serious physical injuries he suffered. It should be remembered that even though the vehicle that hit Ronnie was registered in the name of Elenita, she was not made a party in the said criminal case. Thus, she may not be compelled to answer for Eduardo’s liability. Nevertheless, their

conjugal partnership property may be held accountable for it since Eduardo has no property in his name. The payment of indemnity adjudged by the RTC of Bacolod City in Criminal Case No. 7155 in favor of Ronnie may be enforced against the partnership assets of spouses Elenita and Eduardo after the responsibilities enumerated under Article 161 of the Civil Code have been covered. This remedy is provided for under Article 163 of the Civil Code, viz.:

Art. 163. The payment of debts contracted by the husband or the wife before the marriage shall not be charged to the conjugal partnership.

Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.

However, the payment of debts contracted by the husband or the wife before the marriage, and that of fines and indemnities imposed upon them, may be enforced against the partnership assets after the responsibilities enumerated in Article 161 have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the liquidation of the partnership such spouse shall be charged for what has been paid for the purposes above-mentioned.[28]

Article 161 of the Civil Code enumerates the obligations which the conjugal partnership may be held answerable, viz.:

Art. 161. The conjugal partnership shall be liable for:

(1) All debts and obligations contracted by the husband for the benefit of the conjugal partnership, and those contracted by the wife, also for the same purpose, in the cases where she may legally bind the partnership;

(2) Arrears or income due, during the marriage, from obligations which constitute a charge upon property of either spouse or of the partnership;

(3) Minor repairs or for mere preservation made during the marriage upon the separate property of either the husband or the wife; major repairs shall not be charged to the partnership;

(4) Major or minor repairs upon the conjugal partnership property;

(5) The maintenance of the family and the education of the children of both the husband and wife, and of legitimate children of one of the spouses;

(6) Expenses to permit the spouses to complete a professional, vocational or other course.

The enumeration above-listed should first be complied with before the conjugal partnership may be held to answer for the liability adjudged against Eduardo.

Finally, the indemnity imposed against Eduardo shall earn an interest at the rate of twelve percent per annum, in accordance with our ruling in Eastern Shipping Lines, Inc. v. Court of Appeals.[29]

WHEREFORE, in view of the foregoing, the Decision dated November 6, 2006 and the Resolution dated July 10, 2007 of the Court of Appeals in CA-G.R. CV No. 64936 are

hereby ANNULLED and SET ASIDE. The decision dated September 2, 1999 of the Regional Trial Court of Bacolod City in Civil Case No. 93-7942 is herebyREINSTATED WITH MODIFICATION that the conjugal properties of spouses Elenita Dewara and Eduardo Dewara shall be held to answer for the judgment of Seventy-Two Thousand Five Hundred Ninety-Eight Pesos and Seventy Centavos (P72,598.70), plus an interest rate of twelve (12) percent per annum from the date of finality of the decision of the Regional Trial Court of Bacolod City in Criminal Case No. 7155, after complying with the provisions of Article 161 of the Civil Code.

SO ORDERED.

Carpio (Chairperson), Peralta, Abad, and Mendoza, JJ., concur.

FIRST DIVISION 

[G. R. No. 169766, March 30, 2011] 

ESTRELLITA JULIAJVO-LLAVE, PETITIONER, VS. REPUBLIC OF THE PHILIPPINES, HAJA PUTRI ZORAYDA A. TAMANO AND ADIB AHMAD A. TAMANO, RESPONDENTS.

D E C I S I O N 

DEL CASTILLO, J.:

A new law ought to affect the future, not what is past. Hence, in the case of subsequent marriage laws, no vested rights shall be impaired that pertain to the protection of the legitimate union of a married couple.

This petition for review on certiorari assails the Decision[1] dated August 17, 2004 of the Court of Appeals (CA) in CA-GR. CVNo. 61762 and its subsequent Resolution[2]dated September 13, 2005, which affirmed the Decision of the Regional Trial Court (RTC) of Quezon City, Branch 89 declaring petitioner Estrellita Juliano-Llave's (Estrellita) marriage to Sen. Mamintal AJ. Tamano (Sen. Tainano) as void ab initio.

Factual Antecedents

Around 11 months before his death, Sen. Tamano married Estrellita twice -initially under the Islamic laws and tradition on May 27, 1993 in Cotabato City[3] and, subsequently, under a civil ceremony officiated by an RTC Judge at Malabang, Lanao del Sur on June 2, 1993.[4]   In their marriage contracts, Sen. Tamano's civil status was indicated as 'divorced.'

Since then, Estrellita has been representing herself to the whole world as Sen. Tamano's wife, and upon his death, his widow.

On November 23,1994, private respondents Haja Putri Zorayda A. Tamano (Zorayda) and her son Adib Ahmad A. Tamano (Adib), in their own behalf and in behalf of the rest of Sen. Tamano's legitimate children with Zorayda,[5] filed a complaint with the RTC of Quezon City for the declaration of nullity of marriage between Estrellita and Sen. Tamano for being bigamous. The complaint[6] alleged, inter alia, that Sen. Tamano married Zorayda on May 31, 1958 under civil rites, and that this marriage remained subsisting when he married Estrellita in 1993. The complaint likewise averred that:

11. The marriage of the deceased and Complainant Zorayda, having been celebrated under the New Civil Code, is therefore governed by this law. Based on Article 35 (4) of the Family Code, the subsequent marriage entered into by deceased Mamintal with Defendant Llave is void ab initio because he contracted the same while his prior1 marriage to Complainant Zorayda was still subsisting, and his status being declared as "divorced" has no factual or legal basis, because the deceased never divorced Complainant Zorayda in his lifetime, and he could not have validly done so because divorce is not allowed under the New Civil Code;

11.1 Moreover, the deceased did not and could not have divorced Complainant Zorayda by invoking the provision of P.D. 1083, otherwise known as the Code of Muslim Persona! Laws, for the simple reason that the marriage of the deceased with Complainant Zorayda was

never deemed, legally and factually, to have been one contracted under Muslim law as provided under Art. 186 (2) of P.D. 1083, since they (deceased and Complainant Zorayda) did not register their mutual desire to be thus covered by this law;[7]

Summons was then served on Estrellita on December 19, 1994. She then asked from the court for an extension of 30 days to file her answer to be counted from January 4, 1995,[8] and again, another 15 days[9] or until February 18, 1995, both of which the court granted.[10]

Instead of submitting her answer, however, Estrellita filed a Motion to Dismiss[11] on February 20, 1995 where she declared that Sen. Tamano and Zorayda are both Muslims who were married under the Muslim rites, as had been averred in the latter's disbarment complaint against Sen. Tamano.[12] Estrellita argued that the RTC has no jurisdiction to take cognizance of the case because under Presidential Decree (PD) No. 1083, or the Code of Muslim Personal Laws of the Philippines (Muslim Code), questions and issues involving Muslim marriages and divorce fall under the exclusive jurisdiction of shari'a courts.

The trial court denied Estrellita's motion and asserted its jurisdiction over the case for declaration of nullity.[13] Thus, Estrellita filed in November 1995 a certiorari petition with this Court questioning the denial of her Motion to Dismiss. On December 15, 1995, we referred the petition to the CA[14] which was docketed thereat as CA-GR. SP No. 39656.

During the pendency of CA-GR. SP No. 39656, the RTC continued to try the case since there can be no default in cases of declaration of nullity of marriage even if the respondent failed to file an answer. Estrellita was allowed to participate in the trial while her opposing parties presented their evidence.   When it was A Estrellita's turn to adduce evidence, the hearings set for such purpose[15] were postponed mostly at her instance until the trial court, on March 22, 1996, suspended the proceedings[16] in view of the CA's temporary restraining order issued on February 29,1996, enjoining it from hearing the case. [17]

Eventually, however, the CA resolved the petition adverse to Estrellita in its Decision dated September 30, 1996.,[18] Estrellita then elevated the appellate court's judgment to this Court by way of a petition for review on certiorari docketed as GR.No. 126603.[19]

Subsequent to the promulgation of the CA Decision, the RTC ordered Estrellita to present her evidence on June 26, 1997.[20]    As Estrellita was indisposed on that day, the hearing was reset to July 9, 1997.[21] The day before this scheduled hearing, Estrellita again asked for a postponement.[22]

Unhappy with the delays in the resolution of their case, Zorayda and Adib moved to submit the case for decision[23], reasoning that Estrellita had long been delaying the case. Estrellita opposed, on the ground that she has not yet filed her answer as she still awaits the outcome of GR. No. 126603.[24]

On June 29, 1998, we upheld the jurisdiction of the RTC of Quezon City,[25] stating as one of the reasons that as shari'a courts are not vested with original and exclusive jurisdiction in cases of marriages celebrated under both the Civil Code and PD 1083, the RTC, as a court of general jurisdiction, is not precluded from assuming jurisdiction over such cases. In our Resolution dated August 24,1998,[26] we denied Estrellita's motion for reconsideration[27]   with finality.

A few days before this resolution, or on August 18,1998, the RTC rendered the aforementioned judgment declaring Estrellita's marriage with Sen. Tamano as void ab initio.[28 ]

Ruling of the Regional Trial Court 

The RTC, finding that the marital ties of Sen. Tamano and Zorayda were never severed, declared Sen. Tamano's subsequent marriage to Estrellita as void ah initio for being bigamous under Article 35 of the Family Code of the Philippines and under Article 83 of the Civil Code of the Philippines.[29] The court said:

A comparison between Exhibits A and B (supra) immediately shows that the second marriage of the late Senator with [Estrellita] was entered into during the subsistence of his first marriage1 with [Zorayda]. This renders the subsequent marriage void from the very beginning. The fact that the late Senator declared his civil status as "divorced" will not in any way affect the void character of the second marriage because, in this jurisdiction, divorce obtained by the Filipino spouse is not an acceptable method of terminating the effects of a previous marriage, especially, where the subsequent marriage was solemnized under the Civil Code or Family Code.[30]

Ruling of the Court of Appeals

In her appeal,[31] Estrellita argued that she was denied her right to be heard as a the RTC rendered its judgment even without waiting for the finality of the Decision of the Supreme Court in GR. No. 126603. She claimed that the RTC should have required her to file her answer after the denial of her motion to dismiss. She maintained that Sen. Tamano is capacitated to marry her as his marriage and subsequent divorce with Zorayda is governed by the Muslim Code. Lastly, she highlighted Zorayda's lack of legal standing to question the validity of her marriage to the deceased.

In dismissing the appeal in its Decision dated August 17, 2004;[32] the CA held that Estrellita can no longer be allowed to file her answer as she was given ample opportunity to be heard but simply ignored it by asking for numerous postponements. She never filed her answer despite the lapse of around 60 days, a period longer than what was prescribed by the rules. It also ruled that Estrellita cannot rely on her pending petition for certiorari with the higher courts since, as an independent and original action, it does not interrupt the proceedings in the trial court.

As to the substantive merit of the case, the CA adjudged that Estrellita's marriage to Sen. Tamano is void ab initio for being bigamous, reasoning that the marriage of Zorayda and Sen. Tamano is governed by the Civil Code, which does not provide for an absolute divorce. It noted that their first nuptial celebration was under civil rites, while the subsequent Muslim celebration was only ceremonial. Zorayda then, according to the CA, had the legal standing to file the action as she is Sen. Tamano's wife and, hence, the injured party in the senator's subsequent bigamous marriage with Estrellita.

In its September 13, 2005 Resolution,[33] the CA denied Estrellita's Motion for Reconsideration/Supplemental Motion for Reconsideration where it debunked the additional errors she raised.  The CA noted that the allegation of lack of they public prosecutor's report on the existence of collusion in violation of both Rule 9, Section 3(e) of the Rules of Court[34] and Article 48 of the Family Code[35] will not invalidate the trial court's judgment as the proceedings between the parties had been adversarial, negating the existence of collusion. Assuming that the issues have not been joined before the RTC, the same is attributable to Estrellita's refusal to file an answer. Lastly, the CA disregarded Estrellita's allegation that the trial court erroneously rendered its judgment way prior to our remand to the RTC of the records of the case ratiocinating that GR. No. 126603 pertains to the issue on the denial of the Motion to Dismiss, and not to the issue of the validity of Estrellita's marriage to Sen. Tamano.

The Parties'Respective Arguments

Reiterating her arguments before the court a quo, Estrellita now argues that the CA erred in upholding the RTC judgment as the latter was prematurely issued, depriving her of the opportunity to file an answer and to present her evidence to dispute the allegations against the validity of her marriage. She claims that Judge Macias v. Macias[36] laid down the rule that the filing of a motion to dismiss instead of an answer suspends the period to file an answer and, consequently, the trial court is obliged to suspend proceedings while her motion to dismiss on the ground of lack of jurisdiction has not yet been resolved with finality. She maintains that she merely participated in the RTC hearings because of the trial court's assurance that the proceedings will be without prejudice to whatever action the High Court will take on her petition questioning the RTC's jurisdiction and yet, the RTC violated this commitment as it rendered an adverse judgment on August 18, 1998, months before the records of GR. No. 126603 were remanded to the CA on November 11, 1998.[37]  She also questions the lack of a report of the public prosecutor anent a finding of whether there was collusion, this being a prerequisite before further proceeding could be held when a party has failed to file an answer in a suit for declaration of nullity of marriage.

Estrellita is also steadfast in her belief that her marriage with the late senator is valid as the latter was already divorced under the Muslim Code at the time he married her. She asserts that such law automatically applies to the marriage of Zorayda and the deceased without need of registering their consent to be covered by it, as both parties are Muslims whose marriage was solemnized under Muslim law. She pointed out that Sen. Tamano married all his wives under Muslim rites, as attested to by the affidavits of the siblings of the deceased.[38]

Lastly, Estrellita argues that Zorayda and Adib have no legal standing to file suit because only the husband or the wife can file a complaint for the declaration of nullity of marriage under Supreme Court Resolution A.M. No. 02-11-10-SC.[39]

Refuting the arguments, the Solicitor General (Sol Gen) defends the CA's reasoning and stresses that Estrellita was never deprived of her right to be heard; and, that filing an original action for certiorari does not stay the proceedings of the main action before the RTC.

As regards the alleged lack of report of the public prosecutor if there is collusion, the Sol Gen says that this is no longer essential considering the vigorous opposition of Estrellita in the suit that obviously shows the lack of collusion. The Sol Gen also supports private respondents' legal standing to challenge the validity of Estrellita's purported marriage with Sen. Tamano, reasoning that any proper interested party may attack directly or collaterally a void marriage, and Zorayda and Adib have such right to file the action as they are the ones prejudiced by the marital union.

Zorayda and Adib, on the other hand, did not file any comment

Issues

The issues that must be resolved are the following:

1.    Whether the CA erred in affirming the trial court's judgment, even though the latter was rendered prematurely because: a) the judgment was rendered without waiting for the Supreme Court's final resolution of her certiorari petition, i.e., GR. No. 126603; b) she has not yet filed her answer and thus was denied due process; and c) the public prosecutor did

not even conduct an investigation whether there was collusion;

2.   Whether the marriage between Estrellita and the late Sen. Tamano was bigamous; and

3.  Whether Zorayda and Adib have the legal standing to have Estrellita's marriage declared void ab initio.

Our Ruling

Estrellita s refusal to file an answer eventually led to the loss of her right to answer; and her pending petition for certiorari/review on certiorari questioning the denial of the motion to dismiss before the higher courts does not at all suspend the trial proceedings of the principal suit before the RTC of Quezon City.

Firstly, it can never be argued that Estrellita was deprived of her right to due process.  She was never declared in default, and she even actively participated in the trial to defend her interest.

Estrellita invokes Judge Macias v. Macias [40]to justify the suspension of the period to file an answer and of the proceedings in the trial court until her petition for certiorari questioning the validity of the denial of her Motion to Dismiss has been decided by this Court. In said case, we affirmed the following reasoning of the CA which, apparently, is Estrellita's basis for her argument, to wit

However, she opted to file, on April 10, 2001, a 'Motion to Dismiss? instead of filing an Answer to the complaint The filing of said motion suspended the period for her to file her Answer to the complaint. Until said motion is resolved by the Respondent Court with finality, it behooved the Respondent Court to suspend the hearings of the case on the merits. The Respondent Court, on April 19,2001, issued its Order denying the 'Motion to Dismiss' of the Petitioner. Under Section 6, Rule 16 of the 1997 Rules of Civil Procedure [now Section 4], the Petitioner had the balance of the period provided for in Rule 11 of the said Rules but in no case less than five (5) days computed from sendee on her of the aforesaid Order of the Respondent Court within which to file her Answer to the complaint x x x[41]' (Emphasis supplied.)

Estrellita obviously misappreciated Macias. All we pronounced therein is that the trial court is mandated to suspend trial until it finally resolves the motion to dismiss that is filed before it. Nothing in the above excerpt states that the trial court should suspend its proceedings should the issue of the propriety or impropriety of the motion to dismiss be raised before the appellate courts. In Macias, the trial court failed to observe due process in the course of the proceeding of the case because after it denied the wife's motion to dismiss, it immediately proceeded to allow the husband to present evidence ex parte and resolved the case with undue haste even when, under the rules of procedure, the wife still had time to file an answer. In the instant case, Estrellita had no time left for filing an answer, as she filed the motion to dismiss beyond the extended period earlier granted by the trial court after she filed motions for extension of time to file an answer.

Estrellita argues that the trials court prematurely issued its judgment, as it should have waited first for the resolution of her Motion to Dismiss before the CA and, subsequently, before this Court. However, in upholding the RTC, the CA correctly ailed that the pendency

of ,a petition for certiorari does not suspend the proceedings before the trial court. "An application for certiorari is an independent action which is not part or a continuation of the trial which resulted in the rendition of the judgment complained of."[42] Rule 65 of the Rules of Court is explicit in stating that "[t]he petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case."[43] In fact, the trial court respected the CA's temporary restraining order and only after the CA rendered judgment did the RTC again require Estrellita to present her evidence.

Notably, when the CA judgment was elevated to us by way of Rule 45, we never issued any order precluding the trial court from proceeding with the principal action. With her numerous requests for postponements, Estrellita remained obstinate in refusing to file an answer or to present her evidence when it was her turn to do so, insisting that the trial court should wait first for our decision in GR. Mo. 126603. Her failure to file an answer and her refusal to present her evidence were attributable only to herself and she should not be allowed to benefit from her own dilatory tactics to the prejudice of the other party. Sans her answer, the trial court correctly proceeded with the trial and rendered its Decision after it deemed Estrellita to have waived her right to present her side of the story. Neither should the lower court wait for the decision in GR. No. 126603 to become final and executory, nor should it wait for its records to be remanded back to it because GR. No. 126603 involves strictly the propriety of the Motion to Dismiss and not the issue of validity of marriage.

The Public Prosecutor issued a report as to the non-existence of collusion.

Aside from Article 48 of the Family Code and Rule 9, Section 3(e) of the Rules of Court, the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC)[44] also requries the participation of the public prosecutor in cases involving void marriages. It specifically mandates the prosecutor to submit his investigation report to determine whether there is collusion between the parties:

Sec. 9. Investigation report of public prosecutor.- (1) Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any.

(2) If the public prosecutor finds that collusion exists, he shall slate the basis thereof in his report. The parties shall file their respective comments on the finding of collusion within ten days from receipt of a copy of the report. The court shall set the report for hearing and if convinced that the parties are in collusion, it shall dismiss the petition.

(3) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.

Records show that the trial court immediately directed the public prosecutor to submit the required report,[45] which we find to have been sufficiently complied with by Assistant City Prosecutor Edgardo T. Paragua in his Manifestation dated March 30,1995,[46] wherein he attested that there could be no collusion between the parties and no fabrication of evidence because Estrellita is not the spouse of any of the private respondents.

Furthermore, the lack of collusion is evident in the case at bar. Even assuming that there is a lack of report of collusion or a lack of participation by the public prosecutor, just as we held in Tuason v. Court of Appeals,[47] the lack of participation of a fiscal does not invalidate the proceedings in the trial court:

The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation proceedings is to determine whether collusion exists between the parties and to take care that the evidence is not suppressed or fabricated. Petitioner's vehement opposition to the annulment proceedings negates the conclusion that collusion existed between the parties. There is no allegation by the petitioner that evidence was suppressed or fabricated by any of the parties. Under these circumstances, we are convinced that the nonintervention of a prosecuting attorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in the trial court.[48]

The Civil Code governs the marriage of Zorayda and the late Sen. Tamano; their marriage was never invalidated by PD 1083. Sen. Tamano's subsequent marriage to Estrellita is void ab initio.

The marriage between the late Sen. Tamano and Zorayda was celebrated in 1958, solemnized under civil and Muslim rites.[49] The only law in force governing marriage relationships between Muslims and non-Muslims alike was the Civil Code of 1950, under the provisions of which only one marriage can exist at any given time.[50]Under the marriage provisions of the Civil Code, divorce is not recognized except during the efifectivity of Republic Act No. 394[51] which was not availed of during its effectivity.

As far as Estrellita is concerned, Sen. Tamano's prior marriage to Zorayda has been severed by way of divorce under PD 1083,[52] the law that codified Muslim personal laws. However, PD 1083 cannot benefit Estrellita. Firstly, Article 13(1) thereof provides that the law applies to "marriage and divorce wherein both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines." But we already ruled in GR. No. 126603 that "Article 13 of PD 1083 does not provide for a situation where the parties were married both in civil and Muslim rites."[53]

Moreover, the Muslim Code took effect only on February 4, 1977, and this law cannot retroactively override the Civil Code which already bestowed certain rights on the marriage of Sen. Tamano and Zorayda. The former explicitly provided for the prospective application of its provisions unless otherwise provided:

Art. 186 (1). Effect of code on past acts. —Acts executed prior to the effectivity of this Code shall be governed by the laws in force at the time of their execution, and nothing herein except as otherwise specifically provided, shall affect their validity or legality or operate to extinguish any right acquired or liability incurred thereby.

It has been held that:

The foregoing provisions are consistent with the principle that all laws operate prospectively, unless the contrary appears or is clearly, plainly and unequivocably expressed or necessarily implied; accordingly, every case of doubt will be resolved against the retroactive operation of laws. Article 186 aforecited enunciates the general rule of the Muslim Code to have its provisions applied prospectively, and implicitly upholds the force and effect of a pre-existing body of law, specifically, the Civil Code - in respect of civil acts that took place before the Muslim Code's enactment.[54]

An instance of retroactive application of the Muslim Code is Article 186(2) which states:

A marriage contracted by a Muslim male prior to the effectivity of this Code in accordance with non-Muslim law shall be considered as one contracted under Muslim law provided the spouses register their mutual desire to thiseffect.

Even granting that there was registration of mutual consent for the marriage to be considered as one contracted under the Muslim law, the registration of mutual consent between Zorayda and Sen. Tamano will still be ineffective, as both are Muslims whose marriage was celebrated under both civil and Muslim laws. Besides, as we have already settled, the Civil Code governs their personal status since this was in effect at the time of the celebration of their marriage. In view of Sen. Tamano's prior marriage which subsisted at the time Estrellita married him, their subsequent marriage is correctly adjudged by the CA as void ab initio.

Zorayda andAdib, as the injured parties, have the legal personalities to file the declaration of nullity of marriage. A.M. No. 02-11-10SC, which limits to only the husband or the wife the filing of a petition for nullity is prospective in application and does not shut out the prior spouse from filing suit if the ground is a bigamous subsequent marriage.

Her marriage covered by the Family Code of the Philippines,"[55] Estrellita relies on A.M. No. 02-11-10-SC which took effect on March 15, 2003 claiming that under Section 2(a) [56] thereof, only the husband or the wife, to the exclusion of others, may file a petition for declaration of absolute nullity, therefore only she and Sen. Tamano may directly attack the validity of their own marriage.

Estrellita claims that only the husband or the wife in a void marriage can file a petition for declaration of nullity of marriage. However, this interpretation does not apply if the reason behind the petition is bigamy.

In explaining why under A.M. No. 02-11-10-SC only the spouses may file the petition to the exclusion of compulsory or intestate heirs, we said:

The Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders explicates on Section 2(a) in the following manner,viz:(1) Only an aggrieved or injured spouse may file petitions for annulment of voidable marriages and declaration of absolute nullity of void marriages. Such petitions cannot be filed by the compulsory or intestate heirs of the spouses or by the State. [Section 2; Section 3, paragraph a]

Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of absolute nullity of void marriages. Such petition cannot be filed by compulsory or intestate heirs of the spouses or by the State. The Committee is of the belief that they do not have a legal right to file the petition. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and hence can only question.the validity of the marriage of the spouses upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. On the other hand, the concern of the State is to preserve marriage and not to seek its dissolution.[57]

Note that the Rationale makes it clear that Section 2(a) of A.M. No. 02-11-10-SC refers to the "aggrieved or injured spouse." If Estrellita's interpretation is employed, the prior spouse is

unjustly precluded from filing an action. Surely, this is not what the Rule contemplated.

The subsequent spouse may only be expected to take action if he or she had only discovered during the connubial period that the fnarriage was bigamous, and especially if the conjugal bliss had already vanished. Should parties in a subsequent marriage benefit from the bigamous marriage, it would not be expected that they would file an action to declare the marriage void and thus, in such circumstance, the "injured spouse" who should be given a legal remedy is the one in a subsisting previous marriage. The latter is clearly the aggrieved party as the bigamous marriage not only threatens the financial and the property ownership aspect of the prior marriage but most of all, it causes an emotional burden to the prior spouse. The subsequent marriage will always be a reminder of the infidelity of the spouse and the disregard of the prior marriage which sanctity is protected by the Constitution.

Indeed, Section 2(a) of A.M. No. 02-11-10-SC precludes the son from impugning the subsequent marriage. But in the case at bar, both Zorayda and Adib have legal personalities to file an action for nullity. Albeit the Supreme Court Resolution governs marriages celebrated under the Family Code, such is prospective in application and does not apply to cases already commenced before March 15,2003.[58]

Zorayda and Adib filed the case for declaration of nullity of Estrellita's marriage in November 1994. While the Family Code is silent with respect to the proper party who can file a petition for declaration of nullity of marriage prior to A.M. No. 02-11-10-SC, it has been held that in a void marriage, in which no marriage has taken place and cannot be the source of rights, any interested party may attack the mairiage directly or collaterally without prescription, which may be filed even beyond the lifetime of the parties to the marriage.[59] Since A.M. No. 02-11-10-SC does not apply, Adib, as one of the children of the deceased who has property rights as an heir, is likewise considered to be the real party in interest in the suit he and his mother had filed since both of them stand to be benefited or injured by the judgment in the suit.[60]

Since our Philippine laws protect the marital union of a couple, they should be interpreted in a way that would preserve their respective rights which include striking down bigamous marriages. We thus find the CA Decision correctly rendered.

WHEREFORE, the petition is DENIED. The assailed August 17, 2004 Decision of the Court of Appeals in CA-GR. CV No. 61762, as well as its subsequent Resolution issued on September 13, 2005, are hereby AFFIRMED.

SO ORDERED.

Corana, C.J., (Chairperson), Velasco, Jr., Leonardo-De Castro, and Perez, JJ., concur.

FIRST DIVISION 

[G.R.No. 170195, March 28, 2011] 

SOCIAL SECURITY COMMISSION AND SOCIAL SECURITY SYSTEM, PETITIONER, VS. TERESA G. FAVILA, RESPONDENT.

D E C I S I O N 

DEL CASTILLO, J.:

A spouse who claims entitlement to death benefits as a primary beneficiary under the Social Security Law must establish two qualifying factors, to wit: (1) that he/she is the legitimate spouse; and (2) that he/she is dependent upon the member for support.[1]

This Petition for Review on Certiorari assails the Decision[2] dated May 24, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 82763 which reversed and set aside the Resolution[3] dated June 4, 2003 and Order[4] dated January 21, 2004 of the Social Security Commission (SSC) in SSC Case No. 8-15348-02.  Likewise assailed is the CA Resolution[5] dated October 17, 2005 denying the Motion for Reconsideration thereto.

Factual Antecedents

On August 5, 2002, respondent Teresa G. Favila (Teresa) filed a Petition[6] before petitioner SSC docketed as SSC Case No. 8-15348-02. She averred therein that after she was married to Florante Favila (Florante) on January 17, 1970, the latter designated her as the sole beneficiary in the E-l Form he submitted before petitioner Social Security System (SSS), Quezon City Branch on June 30, 1970.  When they begot their children Jofel, Floresa and Florante II, her husband likewise designated each one of them as beneficiaries. Teresa further averred that when Florante died on February 1, 1997, his pension benefits under the SSS were given to their only minor child at that time, Florante II, but only until his emancipation at age 21.  Believing that as the surviving legal wife she is likewise entitled to receive Florante's pension benefits, Teresa subsequently filed her claim for said benefits before the SSS. The SSS, however, denied the claim in a letter dated January 31, 2002, hence, the petition.

In its Answer,[7] SSS averred that on May 6, 1999, the claim for Florante's pension benefits was initially settled in favor of Teresa as guardian of the minor Florante II. Per its records, Teresa was paid the monthly pension for a total period of 57 months or from February 1997 to October 2001 when Florante II reached the age of 21. The claim was, however, re-adjudicated on July 11, 2002 and the balance of the five-year guaranteed pension was again settled in favor of Florante II.[8] SSS also alleged that Estelita Ramos, sister of Florante, wrote a letter[9] stating that her brother had long been separated from Teresa. She alleged therein that the couple lived together for only ten years and then decided to go their separate ways because Teresa had an affair with a married man with whom, as Teresa herself allegedly admitted, she slept with four times a week. SSS also averred that an interview conducted in Teresa's neighborhood in Tondo, Manila on September 18, 1998 revealed that although she did not cohabit with another man after her separation with Florante, there were rumors that she had an affair with a police officer.  To support Teresa's non-entitlement to the benefits claimed, SSS cited the provisions of Sections 8(k) and 13 of Republic Act (RA) No. 1161, as amended otherwise known as Social Security (SS) Law.[10]

Ruling of the Social Security Commission

In a Resolution[11] dated June 4, 2003, SSC held that the surviving spouse's entitlement to an SSS member's death benefits is dependent on two factors which must concur at the time of the latter's death, to wit: (1) legality of the marital relationship; and (2) dependency for support.  As to dependency for support, the SSC opined that same is affected by factors such as separation de facto of the spouses, marital infidelity and such other grounds sufficient to disinherit a spouse under the law.  Thus, although Teresa is the legal spouse

and one of Florante's designated beneficiaries, the SSC ruled that she is disqualified from claiming the death benefits because she was deemed not dependent for support from Florante due to marital infidelity.  Under Section 8(k) of the SS Law, the dependent spouse until she remarries is entitled to death benefits as a primary beneficiary, together with the deceased member's legitimate minor children.  According to SSC, the word "remarry" under said provision has been interpreted as to include a spouse who cohabits with a person other than his/her deceased spouse or is in an illicit relationship.  This is for the reason that no support is due to such a spouse and to allow him/her to enjoy the member's death benefits would be tantamount to circumvention of the law.  Even if a spouse did not cohabit with another, SSC went on to state that for purposes of the SS Law, it is sufficient that the separation in-fact of the spouses was precipitated by an adulterous act since the actual absence of support from the member is evident from such separation.  Notable in this case is that while Teresa denied having remarried or cohabited with another man, she did not, however, deny her having an adulterous relationship. SSC therefore concluded that Teresa was not dependent upon Florante for support and consequently disqualified her from enjoying her husband's death benefits.

SSC further held that Teresa did not timely contest her non-entitlement to the award of benefits.  It was only when Florante II's pension was stopped that she deemed it wise to file her claim.  For SSC, Teresa's long silence led SSS to believe that she really suffered from a disqualification as a beneficiary, otherwise she would have immediately protested her non-entitlement.  It thus opined that Teresa is now estopped from claiming the benefits.  Hence, SSC dismissed the petition for lack of merit.

As Teresa's Motion for Reconsideration[12] of said Resolution was also denied by SSC in an Order[13] dated January 21, 2004, she sought recourse before the CA through a Petition for Review[14] under Rule 43.

Ruling of the Court of Appeals

Before the CA, Teresa insisted that SSS should have granted her claim for death benefits because she is undisputedly the legal surviving spouse of Florante and is therefore entitled to such benefits as primary beneficiary. She claimed that the SSC's finding that she was not dependent upon Florante for support is unfair because the fact still remains that she was legally married to Florante and that her alleged illicit affair with another man was never sufficiently established.  In fact, SSS admitted that there was no concrete evidence or proof of her amorous relationship with another man.  Moreover, Teresa found SSS's strict interpretation of the SS Law as not only anti-labor but also anti-family.  It is anti-labor in the sense that it does not work to the benefit of a deceased employee's primary beneficiaries and anti-family because in denying benefits to surviving spouses, it destroys family solidarity.  In sum, Teresa prayed for the reversal and setting aside of the assailed Resolution and Order of the SSC.

The SSC and the SSS through the Office of the Solicitor General (OSG) filed their respective Comments[15] to the petition.

SSC contended that the word "spouse" under Section 8(k) of the SS Law is qualified by the word "dependent".  Thus, to be entitled to death benefits under said law, a surviving spouse must have been dependent upon the member spouse for support during the latter's lifetime including the very moment of contingency.  According to it, the fact of dependency is a mandatory requirement of law.  If it is otherwise, the law would have simply used the word "spouse" without the descriptive word "dependent". In this case, SSC emphasized that Teresa never denied the fact that she and Florante were already separated and living in different houses when the contingency happened.  Given this fact and since the conduct of

investigation is standard operating procedure for SSS, it being under legal obligation to determine prior to the award of death benefit whether the supposed beneficiary is actually receiving support from the member or if such support was rightfully withdrawn prior to the contingency, SSS conducted an investigation with respect to the couple's separation. And as said investigation revealed tales of Teresa's adulterous relationship with another man, SSS therefore correctly adjudicated the entire death benefits in favor of Florante II.

To negate Teresa's claim that SSS failed to establish her marital infidelity, SSC enumerated the following evidence: (1) the letter[6] of Florante's sister, Estelita Ramos, stating that the main reasons why Teresa and Florante separated after only 10 years of marriage were Teresa's adulterous relationship with another man and her propensity for gambling; (2) the Memorandum[17] dated August 30, 2002 of SSS Senior Analysts Liza Agilles and Jana Simpas which ran through the facts in connection with the claim for death benefits accruing from Florante's death.  It indicates therein, among others, that based on interviews conducted in Teresa's neighborhood, she did not cohabit with another man after her separation from her husband although there were rumors that she and a certain police officer had an affair.  However, there is not enough proof to establish their relationship as Teresa and her paramour did not live together as husband and wife; and (3) the field investigation report[18] of SSS Senior Analyst Fernando F. Nicolas which yielded the same findings.  The SSC deemed the foregoing evidence as substantial to support the conclusion that Teresa indeed had an illicit relationship with another man.

SSC also defended SSS's interpretation of the SS law and argued that it is neither anti-labor nor anti-family.  It is not anti-labor because the subject matter of the case is covered by the SS Law and hence, Labor Law has no application.  It is likewise not anti-family because SSS has nothing to do with Teresa's separation from her husband which resulted to the latter's withdrawal of support for her.  At any rate, SSC advanced that even if Teresa is entitled to the benefits claimed, same have already been received in its entirety by Florante II so that no more benefits are due to Florante's other beneficiaries.  Hence, SSC prayed for the dismissal of the petition.

For its part, the OSG likewise believed that Teresa is not entitled to the benefits claimed as she lacks the requirement that the wife must be dependent upon the member for support. This is in view of the rule that beneficiaries under the SS Law need not be the legal heirs but those who are dependent upon him for support. Moreover, it noted that Teresa did not file a protest before the SSS to contest the award of the five-year guaranteed pension to their son Florante II.  It posited that because of this, Teresa cannot raise the matter for the first time before the courts.  The OSG also believed that no further benefits are due to Florante's other beneficiaries considering that the balance of the five-year guaranteed pension has already been settled.

In a Decision[19] dated May 24, 2005, the CA found Teresa's petition impressed with merit. It gave weight to the fact that she is a primary beneficiary because she is the lawful surviving spouse of Florante and in addition, she was designated by Florante as such beneficiary. There was no legal separation or annulment of marriage that could have disqualified her from claiming the death benefits and that her designation as beneficiary had not been invalidated by any court of law. The CA cited Social Security System v. Davac[20] where it was held that it is only when there is no designation of beneficiary or when the designation is void that the SSS would have to decide who is entitled to claim the benefits.  It opined that once a spouse is designated by an SSS member as his/her beneficiary, same forecloses any inquiry as to whether the spouse is indeed a dependent deriving support from the member. Thus, when SSS conducted an investigation to determine whether Teresa is indeed dependent upon Florante, SSS was unilaterally adding a requirement not imposed by law which makes it very difficult for designated primary beneficiaries to claim for benefits.  To

make things worse, the result of said investigation which became the basis of Teresa's non-entitlement to the benefits claimed was culled from unfounded rumors.

Moreover, the CA saw SSS's conduct of investigations to be violative of the constitutional right to privacy.  It lamented that SSS has no power investigate and pry into the member's and his/her family's personal lives and should cease and desist from conducting such investigations. Ultimately, the CA reversed and set aside the assailed Resolution and Order of the SSC and directed SSS to pay Teresa's monetary claims which included the monthly pension due her as the surviving spouse and the lump sum benefit equivalent to thirty-six times the monthly pension.

SSC filed its Motion for Reconsideration of said Decision but same was denied in a Resolution22 dated October 17, 2005. Impleading SSS as co-petitioner, SSC thus filed this petition for review on certiorari.

Issue

Is Teresa a primary beneficiary in contemplation of the Social Security Law as to be entitled to death benefits accruing from the death of Florante?

Petitioners' Arguments

SSC reiterates the argument that to be entitled to death benefits, a surviving spouse must have been actually dependent for support upon the member spouse during the latter's lifetime including the very moment of contingency.  To it, this is clearly the intention of the legislature; otherwise, Section 8(k) of the SS law would have simply stated "spouse" without the descriptive word "dependent". Here, although Teresa is without question Florante's legal spouse, she is not the "dependent spouse" referred to in the said provision of the law.  Given the reason for the couple's separation for about 17 years prior to Florante's death and in the absence of proof that during said period Teresa relied upon Florante for support, there is therefore no reason to infer that Teresa is a dependent spouse entitled to her husband's death benefits.

SSC adds that in the process of determining non-dependency status of a spouse, conviction of a crime involving marital infidelity is not an absolute necessity.  It is sufficient for purposes of the award of death benefits that a thorough investigation was conducted by SSS through interviews of impartial witnesses and that same showed that the spouse-beneficiary committed an act of marital infidelity which caused the member to withdraw support from his spouse.  In this case, no less than Florante's sister, who does not stand to benefit from the present controversy, revealed that Teresa frequented a casino and was disloyal to her husband so that they separated after only 10 years of marriage.  This was affirmed through the interview conducted in Teresa's neighborhood.  Hence, it is not true that Teresa's marital infidelity was not sufficiently proven.

Likewise, SSC contends that contrary to the CA's posture, a member's designation of a primary beneficiary does not guarantee the latter's entitlement to death benefits because such entitlement is determined only at the time of happening of the contingency.  This is because there may have been events which supervened subsequent to the designation which would otherwise disqualify the person designated as beneficiary such as emancipation of a member's child or separation from his/her spouse.  This is actually the same reason why SSS must conduct an investigation of all claims for benefits.

Moreover, SSC justifies SSS's conduct of investigation and argues that said office did not intrude into Florante's and his family's personal lives as the investigation did not aggravate

the situation insofar as Teresa's relationship with her deceased husband was concerned.  It merely led to the discovery of the true state of affairs between them so that based on it, the death benefits were awarded to the rightful primary beneficiary, Florante II.  Clearly, such an investigation is an essential part of adjudication process, not only in this case but also in all claims for benefits filed before SSS.  Thus, SSC prays for the setting aside of the assailed CA Decision and Resolution. 

Respondent's Arguments

To support her entitlement to the death benefits claimed, Teresa cited Ceneta v. Social Security System,[23] a case decided by the CA which declared, viz:

Clearly then, the term dependent spouse, who must not re-marry in order to be entitled to the SSS death benefits accruing from the death of his/her spouse, refers to the legal spouse who, under the law, is entitled to receive support from the other spouse.

Indubitably, petitioner, having been legally married to the deceased SSS member until the latter's death and despite his subsequent marriage to respondent Carolina, is deemed dependent for support under Article 68 of the Family Code.  Said provision reads: 'The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support'Based on said law, petitioner is, therefore, entitled to the claimed death benefits. Her marriage to trie deceased not having been lawfully severed, the law disputably presumes her to be continually dependent for support.

No evidence or even a mere inference can be adduced to prove that petitioner ceased to derive all her needs indispensable for her sustenance, and thus, she remains a legal dependent. A dependent spouse is primary beneficiary entitled to the death benefits of a deceased SSS member spouse unless he or she remarries. A mere allegation of adultery not substantially proven can not validly deprive petitioner of the support referred to under the law, and consequently, of her claim under the SSS Law.

Thus, being the legal wife, Teresa asserts that she is presumed to be dependent upon Florante for support.  The bare allegation of Estelita that she had an affair with another man is insufficient to deprive her of support from her husband under the law and, conversely, of the death benefits from SSS.  Moreover, Teresa points out that despite their separation and the rumors regarding her infidelity, Florante did not withdraw her designation as primary beneficiary. Under this circumstance, Teresa believes that Florante really intended for her to receive the benefits from SSS.

Teresa also agrees with the CA's finding that SSS unilaterally added to the requirements of the law the condition that a surviving spouse must be actually dependent for support upon the member spouse during the latter's lifetime.  She avers that this could not have been the lawmakers' intention as it would make it difficult or even impossible for beneficiaries to claim for benefits under the SS Law. She stresses that courts (or quasi-judicial agencies for that matter), may not, in the guise of interpretation, enlarge the scope of a statute and include therein situations not provided nor intended by lawmakers. Courts are not authorized to insert into the law what they think should be in it or to supply what they think the legislature would have supplied if its attention had been called to the omission. Hence, Teresa prays that the assailed CA Decision and Resolution be affirmed in toto.

Our Ruling

We find merit in the petition.

The law in force at the time of Florante's death was RA 1161. Section 8 (e) and (k) of said law provides:

Section 8. Terms Defined. For the purposes of this Act the following terms shall, unless the context indicates otherwise, have the following meanings:

xxxx

(e) Dependent - The legitimate, legitimated or legally adopted child who is unmarried, not gainfully employed and not over twenty-one years of age, or over twenty-one years of age, provided that he is congenitally incapacitated and incapable of self-support, physically or mentally; the legitimate spouse dependent for support upon the employee;and the legitimate parents wholly dependent upon the covered employee for regular support.

xxxx

(k) Beneficiaries - The dependent spouse until he remarries and dependent children, who shall be the primary beneficiaries.  In their absence, the dependent parents and, subject to the restrictions imposed on dependent children, the legitimate descendants and illegitimate children who shall be the secondary beneficiaries.  In the absence of any of the foregoing, any other person designated by the covered employee as secondary beneficiary. (Emphasis ours.)

From the above-quoted provisions, it is plain that for a spouse to qualify as a primary beneficiary under paragraph (k) thereof, he/she must not only be a legitimate spouse but also a dependent as defined under paragraph (e), that is, one who is dependent upon the member for support. Paragraphs (e) and (k) of Section 8 of RA 1161 are very clear. "Hence, we need only apply the law. Under the principles of statutory construction, if a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. This plain meaning rule or verba legis, derived from the maxim index animo sermo est (speech is the index of intention), rests on the valid presumption that the words employed by the legislature in a statute correctly express its intent by the use of such words as are found in the statute. Verba legisnon est recedendum , or, from the words of a statute there should be no departure."[24]

Thus, in Social Security System v. Agiias[25] we held that:

[I]t bears stressing that for her (the claimant) to qualify as a primary beneficiary, she must prove that she was 'the legitimate spouse dependent for support from the employee.'  The claimant-spouse must therefore establish two qualifying factors: (1) that she is the legitimate spouse, and (2) that she is dependent upon the member for support, x x x

Here, there is no question that Teresa was Florante's legal wife.  What is at point, however, is whether Teresa is dependent upon Florante for support in order for her to fall under the term "dependent spouse" under Section 8(k) of RA 1161.

What the SSC relies on in concluding that Teresa was not dependent upon Florante for support during their separation for 17 years was its findings that Teresa maintained an illicit relationship with another man.  Teresa however counters that such illicit relationship has not been sufficiently established and, hence, as the legal wife, she is presumed to be continually dependent upon Florante for support.

We agree with Teresa that her alleged affair with another man was not sufficiently

established.  The Memorandum of SSS Senior Analysts Liza Agilles and Jana Simpas reveals that it vyas Florante who was in fact living with a common law wife, Susan Favila (Susan) and their three minor children at the time of his death.  Susan even filed her own claim for death benefits with the SSS but same was, however, denied.  With respect to Teresa, we quote the pertinent portions of said Memorandum, viz:

SUSAN SUBMHTED A LETTER SIGNED BY ESTEL1TA RAMOS, ELDER SISTER OF THE DECEASED STATING THAT MEMBER WAS SEPARATED FROM TERESA AFTER 10 YEARS OF LIVING IN FOR THE REASONS THAT HIS WIFE HAD COHABITED WITH A MARRIED MAN.  ALSO, PER ESTELITA, THE WIFE HERSELF ADMITTED THAT THE MAN SLEPT WITH HER 4 TIMES A WEEK.

TERESA SUBMITTED AN AFFIDAVIT EXECUTED BY NAPOLEON AND JOSEFINA, BROTHER AND SISTER (IN) LAW, RESPECTIVELY, OF THE DECEASED THAT TERESA HAS NEVER RE-MARRED NOR COHABITED WITH ANOTHER MAN.

BASED ON THE INTERVIEW (DATED 9/18/98) CONDUCTED FROM THE NEIGHBORHOOD OF TERESA AND BGY. KAGAWAD IN TONDO, MANILA,IT WAS ESTABLISHED THAT TERESA DID NOT COHABIT WITH ANOTHER MAN AFTER THE SEPARATION ALTHOUGH THERE ARE RUMORS THAT SHE AND A CERTAIN POLICE OFFICER HAD AN AFFAIR. BUT [NOT] ENOUGH PROOF TO ESTABLISH THEIR RELATIONSHIP SINCE THEY DID NOT LIVE-IN AS HUSBAND AND WIFE.

BASED ON THE INTERVIEW WITH JOSEFINA FAVILA, MEMBER AND TERESA WERE SEPARATED FOR A NUMBER OF YEARS AND THAT SHE HAD NO KNOWLEDGE IF TERESA COHABITED WITH ANOTHER MAN ALTHOUGH SHE HEARD OF THE RUMORS THAT SAID WIFE HAD AN AFFAIR WITH ANOTHER MAN. NAPOLEON WAS NOT INTERVIEWED. (Emphasis ours)

While SSC believes that the foregoing constitutes substantial evidence of Teresa's amorous relationship, we, however, find otherwise.  It is not hard to see that Estelita's claim of Teresa's cohabitation with a married man is a mere allegation without proof.  Likewise, the interviews conducted by SSS revealed minors only that Teresa had an affair with a certain police officer.  Notably, not one from those interviewed confirmed that such an affair indeed existed.  "The basic rule is that mere allegation is not evidence and is not equivalent to proof.  Charges based on mere suspicion and speculation likewise cannot be given credence."[26] Mere uncorroborated hearsay or rumor does not constitute substantial evidence."[27] Remarkably, the Memorandum itself stated that there is not enough proof to establish Teresa's alleged relationship with another man since they did not live as husband and wife.

This notwithstanding, we still find untenable Teresa's assertion that being the legal wife, she is presumed dependent upon Florante for support.  In Re: Application for Survivor's Benefits of Manlavi,[28] this Court defined "dependent" as "one who derives his or her main support from another [or] relying on, or subject to, someone else for support; not able to exist or sustain oneself, or to perform anything without the will, power or aid of someone else."  Although therein, the wife's marriage to the deceased husband was not dissolved prior to the latter's death, the Court denied the wife's claim for survivorship benefits from the Government Service Insurance System (GSIS) because the wife abandoned her family to live with other men for more than 17 years until her husband died. Her whereabouts was unknown to her family and she never attempted to communicate with them or even check up on the well-being of her daughter with the deceased.  From these, the Court concluded that the wife during said period was not dependent on her husband for any support, financial or otherwise, hence, she is not a dependent within the contemplation of RA 8291[29] as to be

entitled to survivorship benefits.  It is worthy to note that under Section 2(f) RA 8291, a legitimate spouse dependent for support is likewise included in the enumeration of dependents and under Section 2(g), the legal dependent spouse in the enumeration of primary beneficiaries.

Under this premise, we declared in Aguas that "the obvious conclusion is that a wife who is already separated de facto from her husband cannot be said to be 'dependent for support' upon the husband, absent any showing to the contrary.  Conversely, if it is proved that the husband and wife were still living together at the time of his death, it would be safe to presume that she was dependent on the husband for support, unless it is shown that she is capable of providing for herself."[30]  Hence, we held therein that the wife-claimant had the burden to prove that all the statutory requirements have been complied with, particularly her dependency on her husband at the time of his death.  And, while said wife-claimant was the legitimate wife of the deceased, we ruled that she is not qualified as a primary beneficiary since she failed to present any proof to show that at the time of her husband's death, she was still dependent on him for support even if they were already living separately.

In this case, aside from Teresa's bare allegation that she was dependent upon her husband for support and her misplaced reliance on the presumption of dependency by reason of her valid and then subsisting marriage with Florante, Teresa has not presented sufficient evidence to discharge her burden of proving that she was dependent upon her husband for support at the time of his death.  She could have done this by submitting affidavits of reputable and disinterested persons who have knowledge that during her separation with Florante, she does not have a known trade, business, profession or lawful occupation from which she derives income sufficient for her support and such other evidence tending to prove her claim of dependency.  While we note from the abovementioned SSS Memorandum that Teresa submitted affidavits executed by Napoleon Favila and Josefina Favila, same only pertained to the fact that she never remarried nor cohabited with another man.  On the contrary, what is clear is that she and Florante had already been separated for about 17 years prior to the latter's death as Florante was in fact, living with his common wife when he died.  Suffice it to say that "[w]hoever claims entitlement to the benefits provided by law should establish his or her right thereto by substantial evidence."[31]  Hence, for Teresa's failure to show that despite their separation she was dependent upon Florante for support at the time of his death, Teresa cannot qualify as a primary beneficiary.  Hence, she is not entitled to the death benefits accruing on account of Florante's death.

As a final note, we do not agree with the CA's pronouncement that the investigations conducted by SSS violate a person's right to privacy.  SSS, as the primary institution in charge of extending social security protection to workers and their beneficiaries is mandated by Section 4(b)(7) of RA 8282[32] to require reports, compilations and analyses of statistical and economic data and to make an investigation as may be needed for its proper administration and development.  Precisely, the investigations conducted by SSS are appropriate in order to ensure that the benefits provided under the SS Law are received by the rightful beneficiaries.  It is not hard to see that such measure is necessary for the system's proper administration, otherwise, it will be swamped with bogus claims that will pointlessly deplete its funds.  Such scenario will certainly frustrate the purpose of the law which is to provide covered employees and their families protection against the hazards of disability, sickness, old age and death, with a view to promoting their well-being in the spirit of social justice.  Moreover and as correctly pointed out by SSC, such investigations are likewise necessary to carry out the mandate of Section 15 of the SS Law which provides in part, viz;

Sec. 15. Non-transfer ability of Benefits, - The SSS shall pay the benefits provided for in this Act to such [x x x] persons as may be entitled thereto in accordance with the provisions of this Act x x x. (Emphasis ours.)

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The assailed Decision and Resolution of the Court of Appeals dated May 24,2005 and October 17, 2005 in CA-G.R. SP No. 82763 are hereby REVERSED and SET ASIDE.  Respondent Teresa G. Favila is declared to be not a dependent  spouse within the contemplation of Republic Act No. 1161 and is therefore not entitled to death benefits accruing from the death of Florante Favila.

SO ORDERED.

Corona, C.J., (Chairperson), Velasco, Jr., Leonardo-De Castro, and Perez, JJ., concur.

FIRST DIVISION 

[G.R. No. 181258, March 18, 2010] 

BEN-HUR NEPOMUCENO, PETITIONER, VS. ARHBENCEL ANN LOPEZ, REPRESENTED BY HER MOTHER ARACELI LOPEZ, RESPONDENT. 

D E C I S I O N 

CARPIO MORALES, J.:

Respondent Arhbencel Ann Lopez (Arhbencel), represented by her mother Araceli Lopez (Araceli), filed a Complaint[1] with the Regional Trial Court (RTC) of Caloocan City for recognition and support against Ben-Hur Nepomuceno (petitioner).

Born on June 8, 1999, Arhbencel claimed to have been begotten out of an extramarital affair of petitioner with Araceli; that petitioner refused to affix his signature on her Certificate of Birth; and that, by a handwritten note dated August 7, 1999, petitioner nevertheless obligated himself to give her financial support in the amount of P1,500 on the 15th and 30th days of each month beginning August 15, 1999.

Arguing that her filiation to petitioner was established by the handwritten note, Arhbencel prayed that petitioner be ordered to: (1) recognize her as his child, (2) give her supportpendente lite in the increased amount of P8,000 a month, and (3) give her adequate monthly financial support until she reaches the age of majority.

Petitioner countered that Araceli had not proven that he was the father of Arhbencel; and that he was only forced to execute the handwritten note on account of threats coming from the National People's Army.[2]

By Order of July 4, 2001,[3] Branch 130 of the Caloocan RTC, on the basis of petitioner's handwritten note which it treated as "contractual support" since the issue of Arhbencel's filiation had yet to be determined during the hearing on the merits, granted Arhbencel's prayer for support pendente lite in the amount of P3,000 a month.

After Arhbencel rested her case, petitioner filed a demurrer to evidence which the trial court granted by Order dated June 7, 2006,[4] whereupon the case was dismissed for insufficiency of evidence.

The trial court held that, among other things, Arhbencel's Certificate of Birth was notprima facie evidence of her filiation to petitioner as it did not bear petitioner's signature; that petitioner's handwritten undertaking to provide support did not contain a categorical acknowledgment that Arhbencel is his child; and that there was no showing that petitioner performed any overt act of acknowledgment of Arhbencel as his illegitimate child after the execution of the note.

On appeal by Arhbencel, the Court of Appeals, by Decision of July 20, 2007,[5] reversedthe trial court's decision, declared Arhbencel to be petitioner's illegitimate daughter and accordingly ordered petitioner to give Arhbencel financial support in the increased amount of P4,000 every 15th and 30th days of the month, or a total of P8,000 a month.

The appellate court found that from petitioner's payment of Araceli's hospital bills when she gave birth to Arhbencel and his subsequent commitment to provide monthly financial support, the only logical conclusion to be drawn was that he was Arhbencel's father; that petitioner merely acted in bad faith in omitting a statement of paternity in his handwritten undertaking to provide financial support; and that the amount of P8,000 a month was reasonable for Arhbencel's subsistence and not burdensome for petitioner in view of his income.

His Motion for Reconsideration having been denied by Resolution dated January 3, 2008,[6] petitioner comes before this Court through the present Petition for Review on Certiorari.[7]

Petitioner contends that nowhere in the documentary evidence presented by Araceli is an explicit statement made by him that he is the father of Arhbencel; that absent recognition or acknowledgment, illegitimate children are not entitled to support from the putative parent; that the supposed payment made by him of Araceli's hospital bills was neither alleged in the complaint nor proven during the trial; and that Arhbencel's claim of paternity and filiation was not established by clear and convincing evidence.

Arhbencel avers in her Comment that petitioner raises questions of fact which the appellate court had already addressed, along with the issues raised in the present petition.[8]

The petition is impressed with merit.

The relevant provisions of the Family Code[9] that treat of the right to support are Articles 194 to 196, thus:

Article 194. Support compromises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.

Article 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article:

1. The spouses;2. Legitimate ascendants and descendants;3. Parents and their legitimate children and the legitimate and illegitimate children of

the latter;4. Parents and their illegitimate children  and the legitimate and illegitimate children of

the latter; and5. Legitimate brothers and sisters, whether of the full or half-blood.

Article 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant's fault or negligence. (emphasis and underscoring supplied)

Arhbencel's demand for support, being based on her claim of filiation to petitioner as his illegitimate daughter, falls under Article 195(4). As such, her entitlement to support from petitioner is dependent on the determination of her filiation.

Herrera v. Alba[10] summarizes the laws, rules, and jurisprudence on establishing filiation, discoursing in relevant part as follows:

Laws, Rules, and JurisprudenceEstablishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

x x x x

ART. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or(2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:

SEC. 39. Act or declaration about pedigree. -- The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree. -- The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree.

This Court's rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of paternity still has to be resolved by suchconventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father. A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence. Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation. However, a student permanent record, a written consent to a father's operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing. Standing alone, neither a certificate of baptism nor family pictures are sufficient to establish filiation. (emphasis and underscoring supplied)

In the present case, Arhbencel relies, in the main, on the handwritten note executed by petitioner which reads:

Manila, Aug. 7, 1999

I, Ben-Hur C. Nepomuceno, hereby undertake to give and provide financial support in the amount of P1,500.00 every fifteen and thirtieth day of each month for a total of P3,000.00 a month starting Aug. 15, 1999, to Ahrbencel Ann Lopez, presently in the custody of her mother Araceli Lopez without the necessity of demand, subject to adjustment later depending on the needs of the child and my income.

The abovequoted note does not contain any statement whatsoever about Arhbencel's filiation to petitioner. It is, therefore, not within the ambit of Article 172(2) vis-à-vis Article 175 of the Family Code which admits as competent evidence of illegitimate filiation an admission of filiation in a private handwritten instrument signed by the parent concerned.

The note cannot also be accorded the same weight as the notarial agreement to support the child referred to in Herrera. For it is not even notarized. And Herrera instructs that the notarial agreement must be accompanied by the putative father's admission of filiation to be an acceptable evidence of filiation. Here, however, not only has petitioner not admitted filiation through contemporaneous actions. He has consistently denied it.

The only other documentary evidence submitted by Arhbencel, a copy of her Certificate of Birth,[11] has no probative value to establish filiation to petitioner, the latter not having signed the same.

At bottom, all that Arhbencel really has is petitioner's handwritten undertaking to provide financial support to her which, without more, fails to establish her claim of filiation. The Court is mindful that the best interests of the child in cases involving paternity and filiation should be advanced. It is, however, just as mindful of the disturbance that unfounded paternity suits cause to the privacy and peace of the putative father's legitimate family.

WHEREFORE, the petition is GRANTED. The Court of Appeals Decision of July 20, 2007 is SET ASIDE. The Order dated June 7, 2006 of Branch 130 of the Caloocan City RTC dismissing the complaint for insufficiency of evidence is REINSTATED.

SO ORDERED.

Puno, C.J., Leonardo-De Castro, Bersamin, and Villarama, Jr., concur.

FIRST DIVISION 

[G.R. No. 178221, December 01, 2010] 

MAY D. AÑONUEVO, ALEXANDER BLEE DESANTIS AND JOHN DESANTIS NERI, PETITIONERS, VS. INTESTATE ESTATE OF RODOLFO G. JALANDONI, REPRESENTED

BY BERNARDINO G. JALANDONI AS SPECIAL ADMINISTRATOR, RESPONDENT.

D E C I S I O N 

PEREZ, J.:

On appeal[1] is the Decision[2] dated 31 May 2007 of the Court of Appeals in CA-G.R. SP No. 00576.  In the said decision, the Court of Appeals nullified, on certiorari, the Orders[3] of the Regional Trial Court, Branch 40, of Negros Occidental (intestate court) allowing herein petitioners and their siblings[4] to intervene in the estate proceedings of the late Rodolfo G. Jalandoni.[5]  The decretal portion of the decision of the appellate court reads:

ACCORDINGLY, the petition for certiorari is hereby GRANTED, the assailed Orders dated July 2, 2004 and January 26, 2005, of the Regional Trial Court in Spec. Proc. No. 338 are hereby SET ASIDE andNULLIFIED, and a permanent injunction is hereby issued enjoining respondents [petitioners], their agents and anyone acting for and in their behalves, from enforcing the assailed Orders.  No costs.[6]

The antecedents are:

Rodolfo G. Jalandoni (Rodolfo) died intestate on 20 December 1966.[7]  He died without issue.[8]

On 28 April 1967, Bernardino G. Jalandoni (Bernardino), the brother of Rodolfo, filed a petition for the issuance of letters of administration[9] with the Court of First Instance of Negros Occidental, to commence the judicial settlement of the latter's estate.  The petition was docketed as Spec. Proc. No. 338 and is currently pending before the intestate court.[10]

On 17 January 2003, the petitioners and their siblings filed a Manifestation[11] before the intestate court.  In the Manifestation, they introduced themselves as the children of Sylvia Blee Desantis (Sylvia)--who, in turn, was revealed to be the daughter of Isabel Blee (Isabel) with one John Desantis.[12]

The petitioners and their siblings contend that their grandmother--Isabel--was, at the time of Rodolfo's death, the legal spouse of the latter.[13]  For which reason, Isabel is entitled to a share in the estate of Rodolfo.

Seeking to enforce the right of Isabel, the petitioners and their siblings pray that they be allowed to intervene on her behalf in the intestate proceedings of the late Rodolfo G. Jalandoni.[14]  As it was, by the time the Manifestation was filed, both Sylvia and Isabel have already passed away with the former predeceasing the latter.[15]

To support their cause, the petitioners and their siblings appended in their Manifestation, the following documents:

a.) Two (2) marriage certificates between Isabel and Rodolfo;[16]

b.) The birth certificate of their mother, Sylvia;[17] andc.) Their respective proof of births.[18]

It is the assertion of the petitioners and their siblings that the foregoing pieces of evidence sufficiently establish that Isabel was the spouse of Rodolfo, and that they are her lawful representatives.

The respondent intestate estate of Rodolfo G. Jalandoni, now represented by Bernardino as its Special Administrator, however, begged to differ.  It opposed the intervention on the ground that the petitioners and their siblings have failed to establish the status of Isabel as an heir of Rodolfo.  The very evidence presented by the petitioners and their siblings showed that Isabel had a previous and subsisting marriage with John Desantis at the time she was purportedly married to Rodolfo.

In its Comment to the Manifestation,[19] the respondent called attention to the entries in the birth certificate of Sylvia, who was born on 14 February 1946.[20]  As it turned out, the record of birth of Sylvia states that she was a "legitimate" child of Isabel and John Desantis.[21]  The document also certifies the status of both Isabel and John Desantis as "married."[22]  The respondent posits that the foregoing entries, having been made in an official registry, constitute prima facie proof of a prior marriage between Isabel and John Desantis.[23]

According to the respondent, Isabel's previous marriage, in the absence of any proof that it was dissolved, made her subsequent marriage with Rodolfo bigamous and voidab initio.[24]

On 2 July 2004, the intestate court issued an order allowing the petitioners and their siblings to take part in the settlement proceedings.[25]  The intestate court was convinced that the evidence at hand adequately establish Isabel's status as the legal spouse of Rodolfo and, by that token, permitted the petitioners and their siblings to intervene in the proceedings on her behalf.[26]

The intestate court also held that the birth certificate of Sylvia was insufficient to prove that there was a previous marriage between Isabel and John Desantis.[27]  It ventured on the possibility that the entries in the birth record of Sylvia regarding her legitimacy and the status of her parents, may have been made only in order to save Isabel and her family from the social condemnation of having a child out of wedlock.[28]

The respondent sought for reconsideration, but was denied by the intestate court in its order dated 26 January 2006.[29]  Undeterred, the respondent hoisted a petition forcertiorari before the Court of Appeals.

On 31 May 2007, the Court of Appeals granted the petition and nullified the orders of the intestate court.[30]

In coming to its conclusion, the Court of Appeals found that it was an error on the part of the intestate court to have disregarded the probative value of Sylvia's birth certificate.[31]  The appellate court, siding with the respondent, held that Sylvia's birth certificate serves as prima facie evidence of the facts therein stated--which includes the civil status of her parents.[32]  Hence, the previous marriage of Isabel with John Desantis should have been taken as established.

The Court of Appeals added that since the petitioners and their siblings failed to offer any other evidence proving that the marriage of Isabel with John Desantis had been dissolved by the time she was married to Rodolfo, it then follows that the latter marriage--the Isabel-Rodolfo union--is a nullity for being bigamous.[33] From that premise, Isabel cannot be considered as the legal spouse of Rodolfo.  The petitioners and their siblings, therefore, failed to show that Isabel has any interest in the estate of Rodolfo.

Hence, the instant appeal.[34]

The sole issue in this appeal is whether the Court of Appeals erred when it nullified the orders of the intestate court allowing the petitioners and their siblings to intervene in the settlement proceedings.

The petitioners answer in the affirmative. They proffer the following arguments:

One. The Court of Appeals exceeded the limits of review under a writ ofcertiorari.[35]  In nullifying the intestate court's order, the appellate court did not confine itself to the issue of whether the same was issued with grave abuse of discretion.[36]  Rather, it chose to re-assess the evidence and touch upon the issue pertaining to Isabel's right to inherit from Rodolfo.[37]

Had the appellate court limited itself to the issue of whether grave abuse of discretion exists, it would have found that the intestate court did not act whimsically or capriciously in issuing its assailed orders.[38] Grave abuse of discretion on the part of the intestate court is belied by the fact that the said orders may be supported by the two (2) marriage certificates

between Isabel and Rodolfo.[39]

Second. Assuming ex-gratia argumenti that the Court of Appeals was correct in addressing the issue of whether there was sufficient evidence to prove that Isabel has a right to inherit from Rodolfo, it nevertheless erred in finding that there was none.[40]  A proper evaluation of the evidence at hand does not support the conclusion that Isabel had a previous marriage with John Desantis.[41]

To begin with, the respondent was not able to produce any marriage certificate executed between Isabel and John Desantis.[42]  The conspicuous absence of such certificate can, in turn, only lend credibility to the position that no such marriage ever took place.

Moreover, the entries in the birth certificate of Sylvia do not carry the necessary weight to be able to prove a marriage between Isabel and John Desantis.[43]  In assessing the probative value of such entries, the Court of Appeals should have taken note of a "typical" practice among unwed Filipino couples who, in order to "save face" and "not to embarrass their families," concoct the illusion of marriage and make it appear that a child begot by them is legitimate.[44]

Since the alleged previous marriage of Isabel with John Desantis was not satisfactorily proven, the Court of Appeals clearly erred in finding that her marriage with Rodolfo is bigamous.

We are not impressed.

First Argument

The first argument raised by the petitioners is specious at best. The question of whether the intestate court gravely abused its discretion is intricately linked with the issue of whether there was sufficient evidence to establish Isabel's status as the legal spouse of Rodolfo.

A court's power to allow or deny intervention, albeit discretionary in nature, is circumscribed by the basic demand of sound judicial procedure that only a person withinterest in an action or proceeding may be allowed to intervene.[45]  Otherwise stated, a court has no authority to allow a person, who has no interest in an action or proceeding, to intervene therein.[46]

Consequently, when a court commits a mistake and allows an uninterested person to intervene in a case--the mistake is not simply an error of judgment, but one of jurisdiction. In such event, the allowance is made in excess of the court's jurisdiction and can only be the product of an exercise of discretion gravely abused.  That kind of error may be reviewed in a special civil action for certiorari.

Verily, the Court of Appeals was acting well within the limits of review under a writ ofcertiorari, when it examined the evidence proving Isabel's right to inherit from Rodolfo.  The sufficiency or insufficiency of such evidence determines whether the petitioners and their siblings have successfully established Isabel's interest in Rodolfo's estate--which, as already mentioned, is an indispensable requisite to justify any intervention.  Ultimately, the re-assessment of the evidence presented by the petitioners and their siblings will tell if the assailed orders of the intestate court were issued in excess of the latter's jurisdiction or with grave abuse of discretion.

We now proceed to the second argument of the petitioners.

Second Argument

The second argument of the petitioners is also without merit.  We agree with the finding of the Court of Appeals that the petitioners and their siblings failed to offer sufficient evidence to establish that Isabel was the legal spouse of Rodolfo.  The very evidence of the petitioners and their siblings negates their claim that Isabel has interest in Rodolfo's estate.

Contrary to the position taken by the petitioners, the existence of a previous marriage between Isabel and John Desantis was adequately established. This holds true notwithstanding the fact that no marriage certificate between Isabel and John Desantis exists on record.

While a marriage certificate is considered the primary evidence of a marital union, it is not regarded as the sole and exclusive evidence of marriage.[47]  Jurisprudence teaches that the fact of marriage may be proven by relevant evidence other thanthe marriage certificate.[48]  Hence, even a person's birth certificate may be recognized as competent evidence of the marriage between his parents.[49]

In the present case, the birth certificate of Sylvia precisely serves as the competent evidence of marriage between Isabel and John Desantis.  As mentioned earlier, it contains the following notable entries: (a) that Isabel and John Desantis were "married" and (b) that Sylvia is their "legitimate" child.[50]  In clear and categorical language, Sylvia's birth certificate speaks of a subsisting marriage between Isabel and John Desantis.

Pursuant to existing laws,[51] the foregoing entries are accorded prima facie weight.  They are presumed to be true.  Hence, unless rebutted by clear and convincing evidence, they can, and will, stand as proof of the facts attested.[52]  In the case at bench, the petitioners and their siblings offered no such rebuttal.

The petitioners did no better than to explain away the entries in Sylvia's birth certificate as untruthful statements made only in order to "save face."[53]  They urge this Court to take note of a "typical" practice among unwed Filipino couples to concoct the illusion of marriage and make it appear that a child begot by them is legitimate.  That, the Court cannot countenance.

The allegations of the petitioners, by themselves and unsupported by any other evidence, do not diminish the probative value of the entries.  This Court cannot, as the petitioners would like Us to do, simply take judicial notice of a supposed folkway and conclude therefrom that the usage was in fact followed.  It certainly is odd that the petitioners would themselves argue that the document on which they based their interest in intervention contains untruthful statements in its vital entries.

Ironically, it is the evidence presented by the petitioners and their siblings themselves which, properly appreciated, supports the finding that Isabel was, indeed, previously married to John Desantis.  Consequently, in the absence of any proof that such marriage had been dissolved by the time Isabel was married to Rodolfo, the inescapable conclusion is that the latter marriage is bigamous and, therefore, void ab initio.

The inability of the petitioners and their siblings to present evidence to prove that Isabel's prior marriage was dissolved results in a failure to establish that she has interest in the estate of Rodolfo.  Clearly, an intervention by the petitioners and their siblings in the settlement proceedings cannot be justified.  We affirm the Court of Appeals.

WHEREFORE, the instant appeal is DENIED. Accordingly, the decision dated 31 May 2007

of the Court of Appeals in CA-G.R. SP No. 00576 is hereby AFFIRMED.

Costs against the petitioners.

SO ORDERED.

Corona, C.J., (Chairperson), Leonardo-De Castro,* Peralta,** and Abad,*** JJ.,concur.

FIRST DIVISION 

[G.R. Nos. 168992-93, May 21, 2009] 

IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM, MONINA P. LIM, PETITIONER.

IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM, MONINA P. LIM, PETITIONER. 

D E C I S I O N 

CARPIO, J.:

The Case

This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the Decision[1] dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P. Lim.

The Facts

The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, she married Primo Lim (Lim). They were childless. Minor children, whose parents were unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a child of their own, petitioner and Lim registered the children to make it appear that

they were the children's parents. The children[2] were named Michelle P. Lim (Michelle) and Michael Jude P. Lim (Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She was born on 15 March 1977.[3] Michael was 11 days old when Ayuban brought him to petitioner's clinic. His date of birth is 1 August 1983.[4]

The spouses reared and cared for the children as if they were their own. They sent the children to exclusive schools. They used the surname "Lim" in all their school records and documents. Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner married Angel Olario (Olario), an American citizen.

Thereafter, petitioner decided to adopt the children by availing of the amnesty[5]given under Republic Act No. 8552[6] (RA 8552) to those individuals who simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the filing of the petitions for adoption, Michelle was 25 years old and already married, while Michael was 18 years and seven months old.

Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of Consent.[7] Michael also gave his consent to his adoption as shown in his Affidavit of Consent.[8] Petitioner's husband Olario likewise executed an Affidavit of Consent[9] for the adoption of Michelle and Michael.

In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle was considered as an abandoned child and the whereabouts of her natural parents were unknown.[10] The DSWD issued a similar Certification for Michael.[11]

The Ruling of the Trial Court

On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court ruled that since petitioner had remarried, petitioner should have filed the petition jointly with her new husband. The trial court ruled that joint adoption by the husband and the wife is mandatory citing Section 7(c), Article III of RA 8552 and Article 185 of the Family Code.

Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order dated 16 June 2005. In denying the motion, the trial court ruled that petitioner did not fall under any of the exceptions under Section 7(c), Article III of RA 8552. Petitioner's argument that mere consent of her husband would suffice was untenable because, under the law, there are additional requirements, such as residency and certification of his qualification, which the husband, who was not even made a party in this case, must comply.

As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint exercise of parental authority, the trial court ruled that joint adoption is not only for the purpose of exercising parental authority because an emancipated child acquires certain rights from his parents and assumes certain obligations and responsibilities.

Hence, the present petition.

Issue

Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who has remarried, can singly adopt.

The Court's Ruling

Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the court and the State to protect the paramount interest and welfare of the child to be adopted. Petitioner argues that the legal maxim "dura lex sed lex" is not applicable to adoption cases. She argues that joint parental authority is not necessary in this case since, at the time the petitions were filed, Michelle was 25 years old and already married, while Michael was already 18 years of age. Parental authority is not anymore necessary since they have been emancipated having attained the age of majority.

We deny the petition.

Joint Adoption by Husband and Wife

It is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She filed the petitions by herself, without being joined by her husband Olario. We have no other recourse but to affirm the trial court's decision denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads:SEC. 7. Who May Adopt. - The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, further, That the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouses; or

(c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.

Husband and wife shall   jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. (Emphasis supplied)The use of the word "shall" in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.[12]

The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by petitioner herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground.

Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted are not the legitimate children of petitioner or of her husband Olario. Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario are not legally separated from each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are certain requirements that Olario must comply being an American citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must have been living in the Philippines for at least three continuous years prior to the filing of the application for adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to enter the adopter's country as the latter's adopted child. None of these qualifications were shown and proved during the trial.

These requirements on residency and certification of the alien's qualification to adopt cannot likewise be waived pursuant to Section 7. The children or adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the legitimate children of petitioner.

Effects of Adoption

Petitioner contends that joint parental authority is not anymore necessary since the children have been emancipated having reached the age of majority.    This is untenable.

Parental authority includes caring for and rearing the children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.[13] The father and the mother shall jointly exercise parental authority over the persons of their common children.[14] Even the remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.[15]

It is true that when the child reaches the age of emancipation -- that is, when he attains the age of majority or 18 years of age[16] -- emancipation terminates parental authority over the person and property of the child, who shall then be qualified and responsible for all acts of

civil life.[17] However, parental authority is merely just one of the effects of legal adoption. Article V of RA 8552 enumerates the effects of adoption, thus:

ARTICLE V

EFFECTS OF ADOPTIONSEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s).

SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family.

SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.

Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except when the biological parent is the spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent and child, including but not limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right of the adopter and adoptee to be legal and compulsory heirs of each other.[18] Therefore, even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights[19] of a legitimate child such as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled[20] such as support[21] and successional rights.[22]

We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family, as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.[23]  But, as we have ruled in Republic v. Vergara:[24]

We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of the children. Accordingly, the law should be construed liberally, in a manner that will sustain rather than defeat said purpose. The law must also be applied with compassion, understanding and less severity in view of the fact that it is intended to provide homes, love, care and education for less fortunate children. Regrettably, the Court is not in a position to affirm the trial court's decision favoring adoption in the case at bar, for the law is clear and it cannot be modified without violating the proscription against judicial legislation. Until such time however, that the law on the matter is amended, we cannot sustain the respondent-spouses' petition for adoption. (Emphasis supplied)Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the petitions with her husband. We cannot make our own legislation to suit petitioner.

Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no longer be possible because Olario has filed a case for dissolution of his marriage to petitioner in the Los Angeles Superior Court.

We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is of no moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there is a judicial decree for the dissolution of the marriage between petitioner and Olario, the marriage still subsists. That being the case, joint adoption by the husband and the wife is required. We reiterate our ruling above that since, at the time the petitions for adoption were filed, petitioner was married to Olario, joint adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner.

SO ORDERED.

Puno, C.J., (Chairperson), Corona, Leonardo-De Castro, and Bersamin, JJ., concur.

[1] Penned by Judge Antonio C. Lubao. Records of SPL. PROC. Case No. 1258, pp. 161-162 and  SPL. PROC. Case No. 1259, pp. 163-164.

[2] Three children were actually entrusted to petitioner and Lim. The third, who was named Primo  Jude P. Lim, was still a minor at the time the petition for adoption was filed. The case was    docketed as SPL. PROC. No. 1260. Petitioner opted not to appeal the decision insofar as the minor      Primo Jude P. Lim was concerned.

SEC. 22. Rectification of Simulated Births.- A person who has, prior to the effectivity of this Act,  simulated the birth of a child shall not be punished for such act: Provided,That the simulation of     birth was made for the best interest of the child and that he/she has been consistently considered and treated by that person as his/her own son/daughter: Provided, further, That the application for     correction of the birth registration and petition for adoption shall be filed within five (5) years   from the effectivity of this Act and completed thereafter: Provided, finally, That such person complies with the procedure as specified in Article IV of this Act and other requirements as    determined by the Department.

[6] An Act Establishing the Rules and Policies on the Domestic Adoption of Filipino Children and For Other Purposes, otherwise known as the "Domestic Adoption Act of 1998." Approved on 25   February 1998.

[16] Republic Act No. 6809, An Act Lowering the Age of Majority from Twenty-One to Eighteen     Years, Amending for the Purpose Executive Order Numbered Two Hundred Nine, and For Other Purposes.

SPECIAL THIRD DIVISION 

[G.R. No. 164435, June 29, 2010] 

VICTORIA S. JARILLO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT. 

R E S O L U T I O N 

PERALTA, J.:

This resolves petitioner's Motion for Reconsideration[1] dated November 11, 2009 and respondent's Comment[2] thereto dated March 5, 2010.

In the Decision dated September 29, 2009, the Court affirmed petitioner's conviction for bigamy. Petitioner is moving for reconsideration of the Decision, arguing that since petitioner's marriages were entered into before the effectivity of the Family Code, then the applicable law is Section 29 of the Marriage Law (Act 3613), instead of Article 40 of the Family Code, which requires a final judgment declaring the previous marriage void before a person may contract a subsequent marriage.

Petitioner's argument lacks merit.

As far back as 1995, in Atienza v. Brillantes, Jr.,[3] the Court already made the declaration that Article 40, which is a rule of procedure, should be applied retroactively because Article 256 of the Family Code itself provides that said "Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights." The Court went on to explain, thus:

The fact that procedural statutes may somehow affect the litigants' rights may not preclude their retroactive application to pending actions. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is

adversely affected. The reason is that as a general rule, no vested right may attach to, nor arise from, procedural laws.[4]

In Marbella-Bobis v. Bobis,[5] the Court pointed out the danger of not enforcing the provisions of Article 40 of the Family Code, to wit:

In the case at bar, respondent's clear intent is to obtain a judicial declaration of nullity of his first marriage and thereafter to invoke that very same judgment to prevent his prosecution for bigamy. He cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has to do is disregard Article 40 of the Family Code, contract a subsequent marriage and escape a bigamy charge by simply claiming that the first marriage is void and that the subsequent marriage is equally void for lack of a prior judicial declaration of nullity of the first. A party may even enter into a marriage aware of the absence of a requisite - usually the marriage license - and thereafter contract a subsequent marriage without obtaining a declaration of nullity of the first on the assumption that the first marriage is void. Such scenario would render nugatory the provision on bigamy.  x x x [6]

The foregoing scenario is what petitioner seeks to obtain in her case, and this, the Court shall never sanction.  Clearly, therefore, petitioner's asseveration, that Article 40 of the Family Code should not be applied to her case, cannot be upheld.

IN VIEW OF THE FOREGOING, the Motion for Reconsideration dated November 11, 2009 is DENIED with FINALITY.

SO ORDERED.

Velasco, Jr., (Chairperson), Nachura, Leonardo-De Castro, and Villarama, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 168785 --- Herald Black Dacasin, Petitioner, vs. Sharon Del Mundo Dacasin, Respondent .

x ------------------------------------------------------------------------------------------------------- x

SEPARATE OPINION

ABAD, J.:

I agree with the reasons that the majority of the Court gave in support of the decision, except one.I am uncomfortable with the proposition that an agreement between the mother and the father on a joint custody over a child below seven years of age is void for being contrary to law and public policy.True, the law provides in Article 363 of the Civil Code that No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.The State can think up ways of protecting the child.But the 1987 Constitution acknowledges in Article II, Section 12, the natural and primary right and duty of parents to nurture their children and that the State must support them in this respect.[1] cralaw

I submit that, in the matter of child custody, the mutual will of the childs parents takes precedence in the absence of circumstances that justify recourse to the law. The law becomes relevant, only as a default, if a separated couple cannot agree on the custody of their child. The law should not supplant parental discretion or unnecessarily infringe on parental authority.

Parents have a natural and fundamental right to autonomy in the care, custody, and upbringing of their children. The Family Code recognizes this in Article 209:

Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. (n)

The State ought not to interfere with the right of parents to bring up their child unless its exercise causes potential harm to him. The State steps in, through the law, only if there are compelling reasons to do so. State intrusion is uncalled for where the welfare of a child is not jeopardized.

Regardless of marital circumstances, the mother and the father are presumed to be fit and competent to act in the best interest of their child. They can agree to share parental authority or, if you will, parental custody even as they decide to live under separate roofs.In a voluntary joint custody the mother might want to keep the child in her home during schooldays but allow the father to have him on weekends.And they could agree on some device for arriving at a consensus on where the child will study and how his spiritual needs are to be attended to.

The law does not take away from a separating couple the authority and competence to determine what is best for their child. If they resolve on their own that shared parental custody is in their childs best interest, then the law and the courts have no business vetoing their decision.The parents enjoy a primary right to make such decision. I cannot concede that, where the child is below seven years of age, any agreement that diminishes the mothers absolute custody over him is void.

The second paragraph of Article 213 of the Family Code should not be read as prohibiting separated couples from agreeing to a custody arrangement, other than sole maternal custody, for their child of tender age. The statutory preference for the mothers custody comes into play only when courts are compelled to resolve custody fights between separated parents. Where the parents settle the matter out of court by mutual agreement, the statutory preference reserved to the mother should not apply.

A reading of the entire text of Article 213 shows that the second paragraph applies only to custody disputes that have reached the courtroom. Thus:

Article 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court . The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.

It is unmistakable that the legislative policy is to vest the separated mother with physical custody of the child under seven years old,in cases where the courts are called upon to designate a parentfor the exercise of parental authority. The second sentence of the first paragraph and the second paragraph itself merely qualify the general rule expressed in the first sentence that parental authority shall be exercised by the parent designated by the Court, in case of parental separation.

In choosing the parent who will exercise parental authority, the court must take into account all relevant considerations. One of these is the childs age, as the court is directed to give due regard to the childs choice, if the child is more than seven years of age. If the child, however, is below seven years of age, the court cannot separate the child from the mother, except for compelling reasons. This is the import of the entire provision.

Thus, no legislative policy is violated if separated parents are allowed to voluntarily agree to a child custody arrangement other than sole maternal custody. It is not the policy of the state to prohibit separated parents from compromising on child custody even if the child is of tender age. On the contrary, voluntary custody agreements are generally favored as it can only work for the best interest of the child.

It is not logical to say that the Court would be subverting the legislative policy of avoiding a tragedy where a mother has seen her baby torn away from her if separated parents are allowed to enter into a joint custody agreement. It can hardly be said that a child is being torn away from the mother, if the mother sees the wisdom and benefit of sharing custody of the child with the father. The voluntary nature of the agreement negates any deep sorrow or sense of deprivation that the mother may experience on account of her separation from the child.

Consequently, if separated parents mutually stipulate to uphold some form of joint authority over their children of tender age, it cannot in any way be regarded as illegal or contrary to public policy. Joint parental authority and custody is the norm and should be viewed as the more desirable custody arrangement. It encourages continuing contact with and involvement of both parents in the lives of their children. It can only redound to the minors greater well-being and should thus be favored.

To declare that a joint custody agreement over minors of tender age contravenes Philippine laws will only discourage separating couples from sharing parental duties and responsibilities. It will render shared parenthood illegal and unduly promote paternal alienation. It also presumes that separated parents cannot cooperate and compromise for the welfare of their children. It constitutes undue interference in the parents intrinsic right to direct their relations with their child.

A joint custody agreement can of course never be regarded as permanent and unbending.The situations of the mother or the father and even of the child can change and render performance of such agreement no longer in the latters best interest.If the parents disagree on what they think is best for the child, recourse to the Court may be inevitable.But I suggest that the parent who wants the joint custody agreement changed or set aside bears the burden of showing to the court the new situations of the parties and how such arrangement have become unfavorable or detrimental to the child under the circumstances.This is a consequence of the presumption that contracts that are valid remain valid unless shown otherwise.

Here, the agreement between petitioner Herald and his estranged wife providing for joint custody of their then six-year-old child is a valid exercise of parental discretion and authority. It is independent of the foreign divorce decree and may be enforced or repudiated in this jurisdiction, since its object is the custody of a Filipino-American minor residing in the Philippines. Although Heralds complaint before the trial court appears to be one for specific performance, it is, at heart, an action for custody and enforcement of parental rights. Being so, the Regional Trial Courts have exclusive original jurisdiction over the action.

I concur in the decision subject to my above reservations .

ROBERTO A. ABADAssociate Justice

Endnotes:

[1] cralaw Article II, Sec. 12.The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

THIRD DIVISION 

[G.R. No. 158298, August 11, 2010] 

ISIDRO ABLAZA, PETITIONER, VS. REPUBLIC OF THE PHILIPPINES, RESPONDENT.

D E C I S I O N 

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 entitledIn 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 themotion 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 petitioner-appellant 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 Codedoes 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. 02-11-10-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 solelyby 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 theCivil 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 afterMarch 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-à-vis marriages celebrated during the effectivity of the Civil Code and, those celebrated under the regime of theFamily 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 Niñal 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 father's 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 Codescannot 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 Cresenciano's 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 deceased's 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 Cresenciano's 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 Cresenciano's 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 nonfor the exercise of judicial power. 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 petitioner's 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 court's) own initiative at any stage of the actionand 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.

Carpio Morales, (Chairperson), Brion, Abad,* and  Villarama, Jr., JJ., concur.

FIRST DIVISION 

[G.R. No. 183824, December 08, 2010] 

MYRNA P. ANTONE, PETITIONER, VS. LEO R. BERONILLA, RESPONDENT.

D E C I S I O N 

PEREZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to nullify and set aside the issuances of the Court of Appeals in CA-G.R. SP No. 102834, to wit: (a) the Resolution[1] dated 29 April 2008 dismissing the petition for certiorari under Rule 65, which assailed the trial court's Orders[2] dated 20 September 2007 and 6 December 2007 in Criminal Case No. 07-0907-CFM for Bigamy; and (b) the Resolution[3] dated 18 July 2008 denying the motion for reconsideration of the first resolution.

The trial court quashed the Information on the ground that the elements of Bigamy were rendered incomplete after herein respondent presented documents to prove a fact, which the court believed would negate the allegation in the Information that there was a first valid marriage. The evidence presented showed that respondent later obtained a judicial declaration of nullity of the first union following the celebration of a subsequent marriage.

The Antecedents

On 12 March 2007, herein petitioner Myrna P. Antone executed an Affidavit-Complaint[4] for Bigamy against Leo R. Beronilla before the Office of the City Prosecutor of Pasay City.  She alleged that her marriage with respondent in 1978 had not yet been legally dissolved when the latter contracted a second marriage with one Cecile Maguillo in 1991.

On 21 June 2007, the prosecution filed the corresponding Information[5] before the Regional Trial Court, Pasay City. The case was docketed as Criminal Case No. 07-0907-CFM and raffled to Branch 115.

Pending the setting of the case for arraignment, herein respondent moved to quash the Information on the ground that the facts charged do not constitute an offense.[6]  He informed the court that his marriage with petitioner was declared null and void by the Regional Trial Court, Branch 16, Naval, Biliran on 26 April 2007;[7] that the decision became final and executory on 15 May 200[7];[8] and that such decree has already been registered with the Municipal Civil Registrar on 12 June 2007.[9]  He argued that since the marriage had been declared null and void from the beginning, there was actually no first marriage to speak of.  Absent a first valid marriage, the facts alleged in the Information do not constitute

the crime of bigamy.[10]

In its comment/opposition to the motion,[11] the prosecution, through herein petitioner, maintained that the respondent committed an act which has all the essential requisites of bigamy.  The prosecution pointed out that the marriage of petitioner and respondent on 18 November 1978 has not yet been severed when he contracted a second marriage on 16 February 1991, for which reason, bigamy has already been committed before the court declared the first marriage null and void on 27 April 2007.[12]  The prosecution also invoked the rulings of the Supreme Court holding that a motion to quash is a hypothetical admission of the facts alleged in the information, and that facts contrary thereto are matters of defense which may be raised only during the presentation of evidence.[13]

After a hearing on the motion,[14] the court quashed the Information.[15]  ApplyingMorigo v. People,[16] it ruled:

Hence, contrary to what was stated in the Information, accused Beronilla was actually never legally married to Myrna Antone.  On this score alone, the first element appears to be missing.  Furthermore, the statement in the definition of Bigamy which reads "before the first marriage has been legally dissolved" clearly contemplates that the first marriage must at least be annullable or voidable but definitely not void, as in this case.  xxx [I]n a similar case, [the Supreme Court] had the occasion to state:

The first element of bigamy as a crime requires that the accused must have been legally married.  But in this case, legally speaking, the petitioner was never married to Lucia Barrete.  Thus, there is no first marriage to speak of.  Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married "from the beginning." xxx The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of.  xxx[17]

The prosecution, through herein petitioner, moved for reconsideration of  the said Order[18] on the ground, among others, that the facts and the attending circumstances in Morigo are not on all fours with the case at bar.  It likewise pointed out that, in Mercado v. Tan,[19] this Court has already settled that "(a) declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense."[20]

In its Order of 6 December 2007,[21] the court denied the motion for reconsideration stating that Mercado has already been superseded by Morigo.

In the interim, in a Petition for Relief from Judgment[22] before the Regional Trial Court of Naval, Biliran, petitioner questioned the validity of the proceedings in the petition for the declaration of nullity of marriage in Civil Case No. B-1290 on 5 October 2007.  On 24 March 2008, the court set aside its Decision of 26 April 2007 declaring the marriage of petitioner with respondent null and void, and required herein petitioner (respondent in Civil Case No. B-1290) to file her "answer to the complaint."[23]  On 21 July 2008, the court DISMISSED the petition for nullity of marriage for failure of herein respondent (plaintiff in Civil Case No. B-1290) to submit his pre-trial brief.[24]  Respondent, however, challenged the orders issued by the court before the Court of Appeals.[25]  The matter is still pending resolution thereat.[26]

Meanwhile, in a petition for certiorari under Rule 65 of the Rules of Court filed on 26 March 2008 before the Court of Appeals,[27] herein petitioner alleged that the Pasay City trial court acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction when it dismissed the case of bigamy and denied her motion for reconsideration.

In its Resolution of 29 April 2008, the Court of Appeals dismissed the petition stating that:

The present petition xxx is fatally infirm in form and substance for the following reasons:

1. The verification is defective as it does not include the assurance that the allegations in the petition are based on authentic records.

2.  Since the petition assails the trial court's dismissal of the criminal information for bigamy filed against private respondent Leo Beronilla, the petition, if at all warranted, should be filed in behalf of the People of the Philippines by the Office of the Solicitor General, being its statutory counsel in all appealed criminal cases.

3.  There is a violation of the rule on double jeopardy as the dismissal of the subject criminal case is tantamount to an acquittal based on the trial court's finding that the first essential element of bigamy, which is a first valid marriage contracted by private respondent is wanting.  There is no clear showing in the petition that the dismissal was tainted with arbitrariness which violated petitioner's right to due process. Notably, petitioner filed her comment/opposition to private respondent's motion to quash before the trial court issued its Order dated September 20, 2007 dismissing the information.  Hence, if there is no denial of due process, there can be no grave abuse of discretion that would merit the application of the exception to the double jeopardy rule. [28]

On 18 July 2008, the Court of Appeals denied respondent's Motion for Reconsideration of the aforequoted Resolution for lack of merit. [29]

Hence, this petition.[30]

Our Ruling

I

We are convinced that this petition should be given due course despite the defect in the pleading and the question of legal standing to bring the action.

The Rules of Court provides that a pleading required to be verified which lacks a proper verification shall be treated as unsigned pleading.[31]

This, notwithstanding, we have, in a number of cases, opted to relax the rule in order that the ends of justice may be served.[32] The defect being merely formal and not jurisdictional, we ruled that the court may nevertheless order the correction of the pleading, or even act on the pleading "if the attending circumstances are such that xxx strict compliance with the rule may be dispensed with in order that the ends of justice xxx may be served."[33] At any rate, a pleading is required to be verified only to ensure that it was prepared in good faith, and that the allegations were true and correct and not based on mere speculations.[34]

There is likewise no dispute that it is the Office of the Solicitor General (OSG) which has the authority to represent the government in a judicial proceeding before the Court of Appeals.  The Administrative Code specifically defined its powers and functions to read, among others:

Sec. 35.  Powers and Functions. -  The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. xxx It shall have the following specific powers and functions:

(1)Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme Court, Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party.[35]

As an exception to this rule, the Solicitor General is allowed to:

(8) Deputize legal officers of government departments, bureaus, agencies and offices to assist the Solicitor General and appear or represent the Government in cases involving their respective offices, brought before the courts and exercise supervision and control over such legal officers with respect to such cases.[36]

Thus, in Republic v. Partisala,[37] we held that the summary dismissal of an action in the name of the Republic of the Philippines, when not initiated by the Solicitor General, is in order.[38]  Not even the appearance of the conformity of the public prosecutor in a petition for certiorari would suffice because the authority of the City Prosecutor or his assistant to represent the People of the Philippines is limited to the proceedings in the trial court.[39]

We took exceptions, however, and gave due course to a number of actions even when the respective interests of the government were not properly represented by the Office of the Solicitor General.

In Labaro v. Panay,[40] this Court dealt with a similar defect in the following manner:

It must, however, be stressed that if the public prosecution is aggrieved by any order or ruling of the trial judge in a criminal case, the OSG, and not the prosecutor, must be the one to question the order or ruling before us.[41]  xxx

Nevertheless, since the challenged order affects the interest of the State or the plaintiff People of the Philippines, we opted not to dismiss the petition on this technical ground.  Instead, we required the OSG to comment on the petition, as we had done before in some cases.[42]  In light of its Comment, we rule that the OSG has ratified and adopted as its own the instant petition for the People of the Philippines. (Emphasis supplied.)

In Cooperative Development Authority v. Dolefil Agrarian Reform Beneficiaries Cooperative, Inc.,[43] without requiring the Office of the Solicitor General to file a comment on the petition, this Court determined the merits of the case involving a novel issue on the nature and scope of jurisdiction of the Cooperative Development Authority to settle cooperative disputes as well as the battle between two (2) factions concerning the management of the Dolefil Agrarian Reform Beneficiaries Cooperative, Inc. (DARBCI) "that inevitably threatens the very existence of one of the country's major cooperatives."[44]

And, lest we defeat the ends of justice, we opt to look into the merit of the instant petition even absent the imprimatur of the Solicitor General. After all, "for justice to prevail, the scales must balance, for justice is not to be dispensed for the accused alone."[45] To borrow the words of then Justice Minita V. Chico-Nazario in another case where the dismissal of a criminal case pending with the trial court was sought:

[T]he task of the pillars of the criminal justice system is to preserve our democratic society under the rule of law, ensuring that all those who [come or are brought to court] are afforded a fair opportunity to present their side[s]. xxx The State, like any other litigant, is entitled to its day in court, and to a reasonable opportunity to present its case.[46]

II

We cannot agree with the Court of Appeals that the filing of this petition is in violation of the respondent's right against double jeopardy on the theory that he has already been practically acquitted when the trial court quashed the Information.

Well settled is the rule that for jeopardy to attach, the following requisites must concur:

(1) there is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent.[47]

The third and fourth requisites are clearly wanting in the instant case as (a) respondent has not yet entered his plea to the charge when he filed the Motion to Quash the Information, and (2) the case was dismissed not merely with his consent but, in fact, at his instance.[48]

We reiterate, time and again, that jeopardy does not attach in favor of the accused on account of an order sustaining a motion to quash.[49]  More specifically, the granting of a motion to quash anchored on the ground that the facts charged do not constitute an offense is "not a bar to another prosecution for the same offense."[50]  Thus:

It will be noted that the order sustaining the motion to quash the complaint against petitioner was based on Subsection (a) of Section 2 of Rule 117 of the Rules of Court - that the facts charged in the complaint do not constitute an offense.  If this is so then the dismissal of said complaint will not be a bar to another prosecution for the same offense, for it is provided in Section 8 of Rule 117 of the Rules of Court [now Section 6 of the 2000 Rules of Criminal Procedure] that an order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in Section 2, Subsection[s] (f) and (h) of this rule  [now substantially reproduced in Section 3, Subsections (g) and (i) of the 2000 Rules of Criminal Procedure] xxx.[51]

III

We now determine the merit of the petition ˗ did the trial court act without or in excess of jurisdiction or grave abuse of discretion when it sustained respondent's motion to quash on the basis of a fact contrary to those alleged in the information?

Petitioner maintains that the trial court did so because the motion was a hypothetical admission of the facts alleged in the information and any evidence contrary thereto can only be presented as a matter of defense during trial.

Consistent with existing jurisprudence, we agree with the petitioner.

We define a motion to quash an Information as ˗

the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information.[52]

This motion is "a hypothetical admission of the facts alleged in the Information,"[53]for which reason, the court cannot consider allegations contrary to those appearing on the face of the information.[54]

As further elucidated in Cruz, Jr. v. Court of Appeals:[55]

It is axiomatic that a complaint or information must state every single fact necessary to constitute the offense charged; otherwise, a motion to dismiss/quash on the ground that it charges no offense may be properly sustained.  The fundamental test in considering a motion to quash on this ground is whether the facts alleged, if hypothetically admitted, will establish the essential elements of the offense as defined in the law.

Contrary to the petitioner's contention, a reading of the information will disclose that the essential elements of the offense charged are sufficiently alleged.  It is not proper therefore to resolve the charges at the very outset, in a preliminary hearing only and without the benefit of a full-blown trial.  The issues require a fuller examination.  Given the circumstances of this case, we feel it would be unfair to shut off the prosecution at this stage of the proceedings and to dismiss the informations on the basis only of the petitioner's evidence, such as [this].[56]

As in the recent case of Los Baños v. Pedro,[57] where we found no merit in respondent's allegation that the facts charged do not constitute an offense because "the Information duly charged a specific offense and provide[d] the details on how the offense was committed,"[58] we see no apparent defect in the allegations in the Information in the case at bar.  Clearly, the facts alleged in its accusatory portion, which reads:

That on or about the 16th day of February, 1991, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, LEO R. BERONILLA, having been united in a lawful marriage with one MYRNA A. BERONILLA, which marriage is still in force and subsisting and without having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with one Cecile Maguillo, which subsequent marriage of the accused has all the essential requisites for validity.[59]

sufficiently constitute an offense.  It contained all the elements of the crime of Bigamy under Article 349 of the Revised Penal Code hereunder enumerated:

(1) that the offender has been legally married;(2)  that the first marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;(3)  that he contracts a second or subsequent marriage; and(4) that the second or subsequent marriage has all the essential requisites for validity.[60]

The documents showing that: (1) the court has decreed that the marriage of petitioner and respondent is null and void from the beginning; and (2) such judgment has already become final and executory and duly registered with the Municipal Civil Registrar of Naval, Biliran are pieces of evidence that seek to establish a fact contrary to that alleged in the Information ˗ that a first valid marriage was subsisting at the time the respondent contracted a subsequent marriage. This should not have been considered at all because matters of defense cannot be raised in a motion to quash.

Neither do we find a justifiable reason for sustaining the motion to quash even after taking into consideration the established exceptions to the rule earlier recognized by this Court, among others: (1) when the new allegations are admitted by the prosecution;[61] (2) when the Rules so permit, such as upon the grounds of extinction of criminal liability and double jeopardy;[62] and (3)  when facts have been established by evidence presented by both parties which destroyed the prima facietruth of the allegations in the information during the

hearing on a motion to quash based on the ground that the facts charged do not constitute an offense, and "it would be pure technicality for the court to close its eyes to said facts and still give due course to the prosecution of the case already shown to be weak even to support possible conviction xxx."[63]

For of what significance would the document showing the belated dissolution of the first marriage offer?  Would it serve to prevent the impracticability of proceeding with the trial in accordance with People v. dela Rosa thereby warranting the non-observance of the settled rule that a motion to quash is a hypothetical admission of the facts alleged in the information?  We quote:

[W]here in the hearing on a motion to quash predicated on the ground that the allegations of the information do not charge an offense, facts have been brought out by evidence presented by both parties which destroy the prima facie truth accorded to the allegations of the information on the hypothetical admission thereof, as is implicit in the nature of the ground of the motion to quash, it would be pure technicality for the court to close its eyes to said facts and still give due course to the prosecution of the case already shown to be weak even to support possible conviction, and hold the accused to what would clearly appear to be a merely vexatious and expensive trial, on her part, and a wasteful expense of precious time on the part of the court, as well as of the prosecution.[64]  (Emphasis supplied.)

We find that there is none.

With the submission of the documents showing that the court has declared the first marriage void ab initio, respondent heavily relied on the rulings[65] in People v. Mendoza and Morigo declaring that: (a) a case for bigamy based on a void ab initiomarriage will not prosper because there is no need for a judicial decree to establish that a void ab initio marriage is invalid;[66] and (b) a marriage declared void ab initiohas retroactive legal effect such that there would be no first valid marriage to speak of after all, which renders the elements of bigamy incomplete.[67]

Both principles, however, run contrary to the new provision of the Family Code, which was promulgated by the late President Corazon C. Aquino in 1987, a few years before respondent's subsequent marriage was celebrated in 1991.

The specific provision, which reads:

ART. 40.  The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such marriage void.

was exhaustively discussed in Mercado,[68] where this Court settled the "conflicting" jurisprudence on "the need for a judicial declaration of nullity of the previous marriage."  After establishing that Article 40 is a new provision expressly requiring a judicial declaration of nullity of a prior marriage and examining a long line of cases,[69] this Court, concluded, in essence, that under the Family Code a subsequent judicial declaration of the nullity of the first marriage is immaterial in a bigamy case because, by then, the crime had already been consummated.  Otherwise stated, this Court declared that a person, who contracts a subsequent marriage absent a prior judicial declaration of nullity of a previous one, is guilty of bigamy.[70]

Notably, Morigo, was indeed promulgated years after Mercado.  Nevertheless, we cannot uphold the Order dated 6 December 2007 of the trial court, which maintained

that Morigo has already superseded Mercado. In fact,  in Morigo, this Court clearly distinguished the two (2) cases from one another, and explained:

The present case is analogous to, but must be distinguished fromMercado v. Tan.  In the latter case, the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated.  xxx

It bears stressing though that in Mercado, the first marriage was actually solemnized xxx. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio.

In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer.  Petitioner and Lucia Barrete merely signed a marriage contract on their own.  The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity.  Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage.[71]

The application of Mercado to the cases following Morigo even reinforces the position of this Court to give full meaning to Article 40 of the Family Code. Thus, in 2004, this Court ruled in Tenebro v. Court of Appeals:[72]

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, xxx said marriage is not without legal effects.  Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate.  There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences.  Among these legal consequences is incurring criminal liability for bigamy. xxx.[73] (Emphasis supplied.)

Finally, in Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and Amelia Serafico,[74] this Court pronounced: 

In a catena of cases,[75] the Court has consistently held that a judicial declaration of nullity is required before a valid subsequent marriage can be contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral. xxx

To conclude, the issue on the declaration of nullity of the marriage between petitioner and respondent only after the latter contracted the subsequent marriage is, therefore, immaterial for the purpose of establishing that the facts alleged in the information for Bigamy does not constitute an offense.  Following the same rationale, neither may such defense be interposed by the respondent in his motion to quash by way of exception to the established rule that facts contrary to the allegations in the information are matters of defense which may be raised only during the presentation of evidence.

All considered, we find that the trial court committed grave abuse of discretion when, in so quashing the Information in Criminal Case No. 07-0907-CFM, it considered an evidence introduced to prove a fact not alleged thereat disregarding the settled rules that a motion to quash is a hypothetical admission of the facts stated in the information; and that facts not alleged thereat may be appreciated only under exceptional circumstances, none of which is obtaining in the instant petition.

WHEREFORE, the Orders dated 20 September 2007 and 6 December 2007 of the Regional Trial Court, Branch 115, Pasay City as well as the Resolutions dated 29 April 2008 and 18 July 2008 of the Court of Appeals are hereby SET ASIDE.  Criminal Case No. 07-0907-CFM is REMANDED to the trial court for further proceedings. 

SO ORDERED.

Corona,C.J., (Chairperson), Leonardo-De Castro,* Del Castillo, and Abad,** JJ., concur.