G.R. No.

137110 August 1, 2000

VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner,

DECISION

PANGANIBAN, J.:

A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally
contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of
bigamy. This principle applies even if the earlier union is characterized by statute as "void."

The Case

Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision of the Court of Appeals (CA) 1 in
CA-GR CR No. 19830 and its January 4, 1999 Resolution denying reconsideration. The assailed Decision affirmed
the ruling of the Regional Trial Court (RTC) of Bacolod City in Criminal Case No. 13848, which convicted herein
petitioner of bigamy as follows:

"WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. Dr. Vincent G. Mercado of the crime
of Bigamy punishable under Article 349 of the Revised Penal Code to have been proven beyond reasonable doubt,
[the court hereby renders] judgment imposing upon him a prison term of three (3) years, four (4) months and
fifteen (15) days of prision correccional, as minimum of his indeterminate sentence, to eight (8) years and twenty-
one (21) days of prision mayor, as maximum, plus accessory penalties provided by law.

Costs against accused."2

The Facts

The facts are quoted by Court of Appeals (CA) from the trial court’s judgment, as follows: "From the evidence
adduced by the parties, there is no dispute that accused Dr. Vincent Mercado and complainant Ma. Consuelo Tan
got married on June 27, 1991 before MTCC-Bacolod City Br. 7 Judge Gorgonio J. Ibañez [by reason of] which a
Marriage Contract was duly executed and signed by the parties. As entered in said document, the status of accused
was ‘single’. There is no dispute either that at the time of the celebration of the wedding with complainant,
accused was actually a married man, having been in lawful wedlock with Ma. Thelma Oliva in a marriage ceremony
solemnized on April 10, 1976 by Judge Leonardo B. Cañares, CFI-Br. XIV, Cebu City per Marriage Certificate issued
in connection therewith, which matrimony was further blessed by Rev. Father Arthur Baur on October 10, 1976 in
religious rites at the Sacred Heart Church, Cebu City. In the same manner, the civil marriage between accused and
complainant was confirmed in a church ceremony on June 29, 1991 officiated by Msgr. Victorino A. Rivas, Judicial
Vicar, Diocese of Bacolod City. Both marriages were consummated when out of the first consortium, Ma. Thelma
Oliva bore accused two children, while a child, Vincent Paul, Jr. was sired by accused with complainant Ma.
Consuelo Tan.

"On October 5, 1992, a letter-complaint for bigamy was filed by complainant through counsel with the City
Prosecutor of Bacolod City, which eventually resulted [in] the institution of the present case before this Court
against said accused, Dr. Vincent G. Mercado, on March 1, 1993 in an Information dated January 22, 1993.

"On November 13, 1992, or more than a month after the bigamy case was lodged in the Prosecutor’s Office,
accused filed an action for Declaration of Nullity of Marriage against Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City,
and in a Decision dated May 6, 1993 the marriage between Vincent G. Mercado and Ma. Thelma V. Oliva was
declared null and void.

"Accused is charged [with] bigamy under Article 349 of the Revised Penal Code for having contracted a second
marriage with herein complainant Ma. Consuelo Tan on June 27, 1991 when at that time he was previously united
in lawful marriage with Ma. Thelma V. Oliva on April 10, 1976 at Cebu City, without said first marriage having been
legally dissolved. As shown by the evidence and admitted by accused, all the essential elements of the crime are
present, namely: (a) that the offender has been previously legally married; (2) that the first marriage has not been
legally dissolved or in case the spouse is absent, the absent spouse could not yet be presumed dead according to
the Civil Code; (3) that he contract[ed] a second or subsequent marriage; and (4) that the second or subsequent
marriage ha[d] all the essential requisites for validity. x x x

"While acknowledging the existence of the two marriage[s], accused posited the defense that his previous
marriage ha[d] been judicially declared null and void and that the private complainant had knowledge of the first
marriage of accused.

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"It is an admitted fact that when the second marriage was entered into with Ma. Consuelo Tan on June 27, 1991,
accused’s prior marriage with Ma. Thelma V. Oliva was subsisting, no judicial action having yet been initiated or
any judicial declaration obtained as to the nullity of such prior marriage with Ma. Thelma V. Oliva. Since no
declaration of the nullity of his first marriage ha[d] yet been made at the time of his second marriage, it is clear
that accused was a married man when he contracted such second marriage with complainant on June 27, 1991. He
was still at the time validly married to his first wife."3

Ruling of the Court of Appeals

Agreeing with the lower court, the Court of Appeals stated:

"Under Article 40 of the Family Code, ‘the absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage void.’ But here, the final
judgment declaring null and void accused’s previous marriage came not before the celebration of the second
marriage, but after, when the case for bigamy against accused was already tried in court. And what constitutes the
crime of bigamy is the act of any person who shall contract a second subsequent marriage ‘before’ the former
marriage has been legally dissolved."4

Hence, this Petition.5

The Issues

In his Memorandum, petitioner raises the following issues:

"A

Whether or not the element of previous legal marriage is present in order to convict petitioner.

"B

Whether or not a liberal interpretation in favor of petitioner of Article 349 of the Revised Penal Code
punishing bigamy, in relation to Articles 36 and 40 of the Family Code, negates the guilt of petitioner.

"C

Whether or not petitioner is entitled to an acquittal on the basis of reasonable doubt."6

The Court’s Ruling

The Petition is not meritorious.

Main Issue:Effect of Nullity of Previous Marriage

Petitioner was convicted of bigamy under Article 349 of the Revised Penal Code, which provides:

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

The elements of this crime are as follows:

"1. 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."7

When the Information was filed on January 22, 1993, all the elements of bigamy were present. It is undisputed
that petitioner married Thelma G. Oliva on April 10, 1976 in Cebu City. While that marriage was still subsisting, he
contracted a second marriage, this time with Respondent Ma. Consuelo Tan who subsequently filed the Complaint
for bigamy.

Petitioner contends, however, that he obtained a judicial declaration of nullity of his first marriage under Article 36
of the Family Code, thereby rendering it void ab initio. Unlike voidable marriages which are considered valid until

2
set aside by a competent court, he argues that a void marriage is deemed never to have taken place at all.8 Thus,
he concludes that there is no first marriage to speak of. Petitioner also quotes the commentaries 9 of former Justice
Luis Reyes that "it is now settled that if the first marriage is void from the beginning, it is a defense in a bigamy
charge. But if the first marriage is voidable, it is not a defense."

Respondent, on the other hand, admits that the first marriage was declared null and void under Article 36 of the
Family Code, but she points out that that declaration came only after the Information had been filed. Hence, by
then, the crime had already been consummated. She argues that a judicial declaration of nullity of a void previous
marriage must be obtained before a person can marry for a subsequent time.

We agree with the respondent.

To be sure, jurisprudence regarding the need for a judicial declaration of nullity of the previous marriage has been
characterized as "conflicting."10 In People v. Mendoza,11 a bigamy case involving an accused who married three
times, the Court ruled that there was no need for such declaration. In that case, the accused contracted a second
marriage during the subsistence of the first. When the first wife died, he married for the third time. The second
wife then charged him with bigamy. Acquitting him, the Court held that the second marriage was void ab
initio because it had been contracted while the first marriage was still in effect. Since the second marriage was
obviously void and illegal, the Court ruled that there was no need for a judicial declaration of its nullity. Hence, the
accused did not commit bigamy when he married for the third time. This ruling was affirmed by the Court in People
v. Aragon,12 which involved substantially the same facts.

But in subsequent cases, the Court impressed the need for a judicial declaration of nullity. In Vda de Consuegra v.
GSIS,13 Jose Consuegra married for the second time while the first marriage was still subsisting. Upon his death, the
Court awarded one half of the proceeds of his retirement benefits to the first wife and the other half to the second
wife and her children, notwithstanding the manifest nullity of the second marriage. It held: "And with respect to
the right of the second wife, this Court observes that although the second marriage can be presumed to be void ab
initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of
such nullity."

In Tolentino v. Paras,14 however, the Court again held that judicial declaration of nullity of a void marriage was not
necessary. In that case, a man married twice. In his Death Certificate, his second wife was named as his surviving
spouse. The first wife then filed a Petition to correct the said entry in the Death Certificate. The Court ruled in favor
of the first wife, holding that "the second marriage that he contracted with private respondent during the lifetime
of the first spouse is null and void from the beginning and of no force and effect. No judicial decree is necessary to
establish the invalidity of a void marriage."

In Wiegel v. Sempio-Diy,15 the Court stressed the need for such declaration. In that case, Karl Heinz Wiegel filed an
action for the declaration of nullity of his marriage to Lilia Olivia Wiegel on the ground that the latter had a prior
existing marriage. After pretrial, Lilia asked that she be allowed to present evidence to prove, among others, that
her first husband had previously been married to another woman. In holding that there was no need for such
evidence, the Court ruled: "x x x There is likewise no need of introducing evidence about the existing prior
marriage of her first husband at the time they married each other, for then such a marriage though void still needs,
according to this Court, a judicial declaration of such fact and for all legal intents and purposes she would still be
regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel; x x x."

Subsequently, in Yap v. CA,16 the Court reverted to the ruling in People v. Mendoza, holding that there was no need
for such declaration of nullity.

In Domingo v. CA,17 the issue raised was whether a judicial declaration of nullity was still necessary for the recovery
and the separation of properties of erstwhile spouses. Ruling in the affirmative, the Court declared: "The Family
Code has settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity
of a marriage is now explicitly required either as a cause of action or a ground for defense; in fact, the requirement
for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or
her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first
marriage, the person who marries again cannot be charged with bigamy." 18

Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was not a criminal prosecution for
bigamy. Nonetheless, Domingo underscored the need for a judicial declaration of nullity of a void marriage on the
basis of a new provision of the Family Code, which came into effect several years after the promulgation
of Mendoza and Aragon.

In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage Law), which provided:

"Illegal marriages. — Any marriage subsequently contracted by any person during the lifetime of the first spouse
shall be illegal and void from its performance, unless:

(a) The first marriage was annulled or dissolved;

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 (b) The first spouse had been absent for seven consecutive years at the time of the second marriage
without the spouse present having news of the absentee being alive, or the absentee being generally
considered as dead and believed to be so by the spouse present at the time of contracting such
subsequent marriage, the marriage as contracted being valid in either case until declared null and void by
a competent court."

The Court held in those two cases that the said provision "plainly makes a subsequent marriage contracted by any
person during the lifetime of his first spouse illegal and void from its performance, and no judicial decree is
necessary to establish its invalidity, as distinguished from mere annulable marriages."19

The provision appeared in substantially the same form under Article 83 of the 1950 Civil Code and Article 41 of the
Family Code. However, Article 40 of the Family Code, a new provision, expressly requires a judicial declaration of
nullity of the previous marriage, as follows:

"ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such marriage void."

In view of this provision, Domingo stressed that a final judgment declaring such marriage void was necessary.
Verily, the Family Code and Domingo affirm the earlier ruling in Wiegel. Thus, a Civil Law authority and member of
the Civil Code Revision Commitee has observed:

"[Article 40] is also in line with the recent decisions of the Supreme Court that the marriage of a person may be
null and void but there is need of a judicial declaration of such fact before that person can marry again; otherwise,
the second marriage will also be void (Wiegel v. Sempio-Diy, Aug. 19/86, 143 SCRA 499, Vda. De Consuegra v. GSIS,
37 SCRA 315). This provision changes the old rule that where a marriage is illegal and void from its performance, no
judicial decree is necessary to establish its validity (People v. Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil.
1033)."20

In this light, the statutory mooring of the ruling in Mendoza and Aragon – that there is no need for a judicial
declaration of nullity of a void marriage -- has been cast aside by Article 40 of the Family Code. Such declaration is
now necessary before one can contract a second marriage. Absent that declaration, we hold that one may be
charged with and convicted of bigamy.

The present ruling is consistent with our pronouncement in Terre v. Terre,21 which involved an administrative
Complaint against a lawyer for marrying twice. In rejecting the lawyer’s argument that he was free to enter into a
second marriage because the first one was void ab initio, the Court ruled: "for purposes of determining whether a
person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and
void ab initio is essential." The Court further noted that the said rule was "cast into statutory form by Article 40 of
the Family Code." Significantly, it observed that the second marriage, contracted without a judicial declaration that
the first marriage was void, was "bigamous and criminal in character."

Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited by petitioner, changed his view
on the subject in view of Article 40 of the Family Code and wrote in 1993 that a person must first obtain a judicial
declaration of the nullity of a void marriage before contracting a subsequent marriage: 22

"It is now settled that the fact that the first marriage is void from the beginning is not a defense in a bigamy
charge. As with a voidable marriage, there must be a judicial declaration of the nullity of a marriage before
contracting the second marriage. Article 40 of the Family Code states that x x x. The Code Commission believes
that the parties to a marriage should not be allowed to assume that their marriage is void, even if such is the fact,
but must first secure a judicial declaration of nullity of their marriage before they should be allowed to marry
again. x x x."

In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of
nullity of his first marriage. In fact, he instituted the Petition to have the first marriage declared void only after
complainant had filed a letter-complaint charging him with bigamy. By contracting a second marriage while the
first was still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code.

That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat,
the crime had already been consummated by then. Moreover, his view effectively encourages delay in the
prosecution of bigamy cases; an accused could simply file a petition to declare his previous marriage void and
invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

Under the circumstances of the present case, he is guilty of the charge against him.

Damages

In her Memorandum, respondent prays that the Court set aside the ruling of the Court of Appeals insofar as it
denied her claim of damages and attorney’s fees.23

4
Her prayer has no merit. She did not appeal the ruling of the CA against her; hence, she cannot obtain affirmative
relief from this Court.24 In any event, we find no reason to reverse or set aside the pertinent ruling of the CA on this
point, which we quote hereunder:

"We are convinced from the totality of the evidence presented in this case that Consuelo Tan is not the innocent
victim that she claims to be; she was well aware of the existence of the previous marriage when she contracted
matrimony with Dr. Mercado. The testimonies of the defense witnesses prove this, and we find no reason to doubt
said testimonies.

xxx xxx xxx

"Indeed, the claim of Consuelo Tan that she was not aware of his previous marriage does not inspire belief,
especially as she had seen that Dr. Mercado had two (2) children with him. We are convinced that she took the
plunge anyway, relying on the fact that the first wife would no longer return to Dr. Mercado, she being by then
already living with another man.

"Consuelo Tan can therefore not claim damages in this case where she was fully conscious of the consequences of
her act. She should have known that she would suffer humiliation in the event the truth [would] come out, as it did
in this case, ironically because of her personal instigation. If there are indeed damages caused to her reputation,
they are of her own willful making."25

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioner.

SO ORDERED.

G.R. No. 126746 November 29, 2000

ARTHUR TE, petitioner,

DECISION

KAPUNAN, J.:

Before us is a petition for review on certiorari which seeks to reverse the Decision of the Court of Appeals Tenth
Division, dated 31 August 1994 in CA-G.R. SP No. 239711 and CA-G.R. SP No. 261782 and the Resolution dated
October 18, 1996 denying petitioner’s motion for reconsideration.

The facts of the case are as follows:

Petitioner Arthur Te and private respondent Liliana Choa were married in civil rites on September 14, 1988. They
did not live together after the marriage although they would meet each other regularly. Not long after private
respondent gave birth to a girl on April 21, 1989, petitioner stopped visiting her. 3

On May 20, 1990, while his marriage with private respondent was subsisting, petitioner contracted a second
marriage with a certain Julieta Santella (Santella). 4

On the basis of a complaint-affidavit filed by private respondent sometime in June 1990, when she learned about
petitioner’s marriage to Santella, an information charging petitioner with bigamy was filed with the Regional Trial
Court (RTC) of Quezon City on August 9, 1990.5 This case was docketed as Criminal Case No. Q-90-14409.6

Meanwhile, on July 20, 1990, petitioner filed in the RTC of Quezon City an action for the annulment of his marriage
to private respondent on the ground that he was forced to marry her. He alleged that private respondent
concealed her pregnancy by another man at the time of their marriage and that she was psychologically
incapacitated to perform her essential marital obligations.7

On November 8, 1990, private respondent also filed with the Professional Regulation Commission (PRC) an
administrative case against petitioner and Santella for the revocation of their respective engineering licenses on
the ground that they committed acts of immorality by living together and subsequently marrying each other
despite their knowledge that at the time of their marriage, petitioner was already married to private respondent.
With respect to petitioner, private respondent added that he committed an act of falsification by stating in his
marriage contract with Santella that he was still single.8

After the prosecution rested its case in the criminal case for bigamy, petitioner filed a demurrer to evidence with
leave of court and motion to inhibit the trial court judge for showing antagonism and animosity towards
petitioner’s counsel during the hearings of said case.

5
The trial court denied petitioner’s demurrer to evidence in an Order dated November 28, 1990 which stated that
the same could not be granted because the prosecution had sufficiently established a prima facie case against the
accused.9 The RTC also denied petitioner’s motion to inhibit for lack of legal basis. 10

Petitioner then filed with the Court of Appeals a petition for certiorari, alleging grave abuse of discretion on the
part of the trial court judge, Judge Cezar C. Peralejo, for (1) exhibiting antagonism and animosity towards
petitioner’s counsel; (2) violating the requirements of due process by denying petitioner’s [motion for
reconsideration and] demurrer to evidence even before the filing of the same; (3) disregarding and failing to
comply with the appropriate guidelines for judges promulgated by the Supreme Court; and (4) ruling that in a
criminal case only "prima facie evidence" is sufficient for conviction of an accused. This case was docketed as CA-
G.R. SP No. 23971.11

Petitioner also filed with the Board of Civil Engineering of the PRC (PRC Board), where the administrative case for
the revocation of his engineering license was pending, a motion to suspend the proceedings therein in view of the
pendency of the civil case for annulment of his marriage to private respondent and criminal case for bigamy in
Branches 106 and 98, respectively of the RTC of Quezon City.12 When the Board denied the said motion in its Order
dated July 16, 1991,13 petitioner filed with the Court of Appeals another petition for certiorari, contending that the
Board gravely abused its discretion in: (1) failing to hold that the resolution of the annulment case is prejudicial to
the outcome of the administrative case pending before it; (2) not holding that the continuation of proceedings in
the administrative case could render nugatory petitioner’s right against self-incrimination in this criminal case for
bigamy against him; and (3) making an overly-sweeping interpretation that Section 32 of the Rules and Regulations
Governing the Regulation and Practice of Professionals does not allow the suspension of the administrative
proceeding before the PRC Board despite the pendency of criminal and/or administrative proceedings against the
same respondent involving the same set of facts in other courts or tribunals. This petition was docketed as CA-G.R.
SP No. 26178.14

The two petitions for certiorari were consolidated since they arose from the same set of facts.

On 31 August 1994, the Court of Appeals, Tenth Division, rendered the assailed decision in the consolidated
petitions. The appellate court upheld the RTC’s denial of the motion to inhibit due to petitioner’s failure to show
any concrete evidence that the trial court judge exhibited partiality and had prejudged the case. It also ruled that
the denial of petitioner’s motion to suspend the proceedings on the ground of prejudicial question was in accord
with law.15 The Court of Appeals likewise affirmed the RTC’s denial of the demurrer to evidence filed by petitioner
for his failure to set forth persuasive grounds to support the same, considering that the prosecution was able to
adduce evidence showing the existence of the elements of bigamy. 16

Neither did the appellate court find grave abuse of discretion on the part of the Board’s Order denying petitioner’s
motion to suspend proceedings in the administrative case on the ground of prejudicial question. Respondent court
held that no prejudicial question existed since the action sought to be suspended is administrative in nature, and
the other action involved is a civil case.17

Petitioner thereafter filed a motion for reconsideration of the decision of the Court of Appeals but the same was
denied.18

Hence, petitioner filed the instant petition raising the following issues:

PUBLIC RESPONDENT COMMITTED A SERIOUS ERROR IN REFUSING TO SUSPEND THE LEGAL [CRIMINAL
AND ADMINISTRATIVE] PROCEEDINGS DESPITE THE PENDENCY OF THE CIVIL CASE FOR DECLARATION OF
NULLITY OF MARRIAGE.

II

PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION AND COMMITTED AN ERROR OF LAW IN NOT
HOLDING THAT THE DEMURRER TO EVIDENCE SHOULD HAVE BEEN GIVEN DUE COURSE.

III

PUBLIC RESPONDENT COMMITTED A SERIOUS LEGAL ERROR IN NOT HOLDING THAT THE TRIAL JUDGE A
QUO SHOULD HAVE INHIBITED HIMSELF.19

The petition has no merit.

While the termination of Civil Case No. Q-90-6205 for annulment of petitioner’s marriage to private respondent
has rendered the issue of the propriety of suspending both the criminal case for bigamy before the RTC of Quezon
City, Branch 98 and the administrative case for revocation of petitioner’s engineering license before the PRC Board

6
moot and academic, the Court shall discuss the issue of prejudicial question to emphasize the guarding and
controlling precepts and rules.20

A prejudicial question has been defined as one based on a fact distinct and separate from the crime but so
intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the
criminal action, it must appear not only that said case involves facts intimately related to those upon which the
criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case,
the guilt or innocence of the accused would necessarily be determined. 21 The rationale behind the principle of
suspending a criminal case in view of a prejudicial question is to avoid two conflicting decisions. 22

The Court of Appeals did not err when it ruled that the pendency of the civil case for annulment of marriage filed
by petitioner against private respondent did not pose a prejudicial question which would necessitate that the
criminal case for bigamy be suspended until said civil case is terminated.

The outcome of the civil case for annulment of petitioner’s marriage to private respondent had no bearing upon
the determination of petitioner’s innocence or guilt in the criminal case for bigamy, because all that is required for
the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is
contracted.23 Petitioner’s argument that the nullity of his marriage to private respondent had to be resolved first in
the civil case before the criminal proceedings could continue, because a declaration that their marriage was
void ab initio would necessarily absolve him from criminal liability, is untenable. The ruling in People vs.
Mendoza24 and People vs. Aragon25 cited by petitioner that no judicial decree is necessary to establish the invalidity
of a marriage which is void ab initio has been overturned. The prevailing rule is found in Article 40 of the Family
Code, which was already in effect at the time of petitioner’s marriage to private respondent in September 1988.
Said article states that the absolute nullity of a previous marriage may not be invoked for purposes of remarriage
unless there is a final judgment declaring such previous marriage void. Thus, under the law, a marriage, even one
which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding.26 In Landicho vs.
Relova,27 we held that:

Parties to a marriage should not be permitted to judge for themselves its nullity, for this must be submitted to the
judgment of competent courts and only when the nullity of a marriage is so declared can it be held as void, and so
long as there is no such declaration the presumption of marriage exists.28

It is clear from the foregoing that the pendency of the civil case for annulment of petitioner’s marriage to private
respondent did not give rise to a prejudicial question which warranted the suspension of the proceedings in the
criminal case for bigamy since at the time of the alleged commission of the crime, their marriage was, under the
law, still valid and subsisting.

Neither did the filing of said civil case for annulment necessitate the suspension of the administrative proceedings
before the PRC Board. As discussed above, the concept of prejudicial question involves a civil and a criminal case.
We have previously ruled that there is no prejudicial question where one case is administrative and the other is
civil.29

Furthermore, Section 32 of the Rules and Regulations Governing the Regulation and Practice of Professionals of
the PRC Board expressly provides that the administrative proceedings before it shall not be suspended
notwithstanding the existence of a criminal and/or civil case against the respondent involving the same facts as the
administrative case:

The filing or pendency of a criminal and/or civil cases in the courts or an administrative case in another judicial
body against an examinee or registered professional involving the same facts as in the administrative case filed or
to be filed before the Board shall neither suspend nor bar the proceeding of the latter case. The Board shall
proceed independently with the investigation of the case and shall render therein its decision without awaiting for
the final decision of the courts or quasi-judicial body.

It must also be noted that the allegations in the administrative complaint before the PRC Board are not confined to
the issue of the alleged bigamous marriage contracted by petitioner and Santella. Petitioner is also charged with
immoral conduct for continued failure to perform his obligations as husband to private respondent and as father
to their child, and for cohabiting with Santella without the benefit of marriage. 30 The existence of these other
charges justified the continuation of the proceedings before the PRC Board.

Petitioner also contends that the Court of Appeals erred in upholding the trial court’s denial of his demurrer to
evidence in the criminal case for bigamy, arguing that the prosecution failed to establish the existence of both the
first and second marriages beyond reasonable doubt. Petitioner claims that the original copy of marriage contract
between him and private respondent was not presented, the signatures therein were not properly identified and
there was no showing that the requisites of a valid marriage were complied with. He alleges further that the
original copy of the marriage contract between him and Santella was not presented, that no proof that he signed
said contract was adduced, and that there was no witness presented to show that a second marriage ceremony
participated in by him ever took place.31

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We are not persuaded. The grant or denial of a demurrer to evidence is left to the sound discretion of the trial
court, and its ruling on the matter shall not be disturbed in the absence of a grave abuse of such discretion. 32 In
this case, the Court of Appeals did not find any grave abuse of discretion on the part of the trial court, which based
its denial of the demurrer on two grounds: first, the prosecution established a prima facie case for bigamy against
the petitioner; and second, petitioner’s allegations in the demurrer were insufficient to justify the grant of the
same. It has been held that the appellate court will not review in a special civil action for certiorari the
prosecution’s evidence and decide in advance that such evidence has or has not yet established the guilt of the
accused beyond reasonable doubt.33 In view of the trial court’s finding that a prima facie case against petitioner
exists, his proper recourse is to adduce evidence in his defense. 34

The Court also finds it necessary to correct petitioner’s misimpression that by denying his demurrer to evidence in
view of the existence of a prima facie case against him, the trial court was already making a pronouncement that
he is liable for the offense charged. As correctly held by the Court of Appeals, the order of the RTC denying the
demurrer was not an adjudication on the merits but merely an evaluation of the sufficiency of the prosecution’s
evidence to determine whether or not a full-blown trial would be necessary to resolve the case.35 The RTC’s
observation that there was a prima facie case against petitioner only meant that the prosecution had presented
sufficient evidence to sustain its proposition that petitioner had committed the offense of bigamy, and unless
petitioner presents evidence to rebut the same, such would be the conclusion. 36 Said declaration by the RTC should
not be construed as a pronouncement of petitioner’s guilt. It was precisely because of such finding that the trial
court denied the demurrer, in order that petitioner may present evidence in his defense and allow said court to
resolve the case based on the evidence adduced by both parties.

Lastly, petitioner contends that his motion to inhibit Judge Peralejo in Criminal Case No. Q-90-14409 should have
been granted since said judge exhibited partiality and bias against him in several instances. First, when petitioner
manifested that he would file a motion for reconsideration of the denial of his motion to suspend the proceedings
in said case, the judge said such motion was dilatory and would be denied even though the motion for
reconsideration had not yet been filed. Second, when petitioner’s counsel manifested that he had just recovered
from an accident and was not physically fit for trial, the judge commented that counsel was merely trying to delay
the case and required said counsel to produce a medical certificate to support his statement. Third, when
petitioner manifested that he was going to file a demurrer to evidence, the judge characterized the same as
dilatory and declared that he would deny the same. According to petitioner, the judge’s hostile attitude towards
petitioner’s counsel as shown in the foregoing instances justified the grant of his motion to inhibit.

We agree with the appellate court that the grounds raised by petitioner against Judge Peralejo did not conclusively
show that the latter was biased and had prejudged the case. 37 In People of the Philippines vs. Court of
Appeals,38 this Court held that while bias and prejudice have been recognized as valid reasons for the voluntary
inhibition of a judge under Section 1, Rule 137, the rudimentary rule is that the mere suspicion that a judge is
partial is not enough. There should be clear and convincing evidence to prove the charge of bias and partiality. 39

Furthermore, since the grounds raised by petitioner in his motion to inhibit are not among those expressly
mentioned in Section 1, Rule 137 of the Revised Rules of Court, the decision to inhibit himself lay within the sound
discretion of Judge Peralejo. Said provision of law states:

Section 1. Disqualification of judges. – No judge or judicial officer shall sit in any case in which he, or his wife or
child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within
the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the
rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he
has presided in any inferior court when his ruling or decision is the subject of review, without the written consent
of all parties in interest, signed by them and entered upon the record.

A judge may, in the exercise of his sound discretion, disqualify himself from sitting in the case, for just and valid
reasons other than those mentioned above.

Thus, it was not mandatory that the judge inhibit himself from hearing and deciding the case.

This Court does not find any abuse of discretion by respondent judge in denying petitioner’s motion to inhibit. The
test for determining the propriety of the denial of said motion is whether petitioner was deprived a fair and
impartial trial.40 The instances when Judge Peralejo allegedly exhibited antagonism and partiality against petitioner
and/or his counsel did not deprive him of a fair and impartial trial. As discussed earlier, the denial by the judge of
petitioner’s motion to suspend the criminal proceeding and the demurrer to evidence are in accord with law and
jurisprudence. Neither was there anything unreasonable in the requirement that petitioner’s counsel submit a
medical certificate to support his claim that he suffered an accident which rendered him unprepared for trial. Such
requirement was evidently imposed upon petitioner’s counsel to ensure that the resolution of the case was not
hampered by unnecessary and unjustified delays, in keeping with the judge’s duty to disposing of the court’s
business promptly.41

WHEREFORE, the petition is hereby DENIED for lack of merit.

SO ORDERED.

8
G.R. No. 160258 January 19, 2005

REPUBLIC OF THE PHILIPPINES, petitioner,

DECISION

GARCIA, J.:

Via this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Republic of the Philippines,
represented by the Office of the Solicitor General (OSG), seeks the reversal and setting aside of the decision dated
September 23, 2003 of the Court of Appeals in CA-G.R. CV No. 73884, which affirmed on appeal an earlier decision
of the Regional Trial Court (RTC) at San Mateo, Rizal in a summary judicial proceeding thereat commenced by the
herein respondent Gloria Bermudez-Lorino for the declaration of the presumptive death of her absent spouse,
Francisco Lorino, Jr., based on the provisions of Article 41 of the Family Code, for purposes of remarriage.

The facts may be summarized, as follows:

Respondent Gloria Bermudez-Lorino (Gloria for brevity), and her husband were married on June 12, 1987. Out of
this marriage, she begot three (3) children, namely: Francis Jeno, Fria Lou and Fatima.1a\^/phi1.net

Before they got married in 1987, Gloria was unaware that her husband was a habitual drinker, possessed with
violent character/attitude, and had the propensity to go out with friends to the extent of being unable to engage in
any gainful work.

Because of her husband’s violent character, Gloria found it safer to leave him behind and decided to go back to her
parents together with her three (3) children. In order to support the children, Gloria was compelled to work
abroad.

From the time of her physical separation from her husband in 1991, Gloria has not heard of him at all. She had
absolutely no communications with him, or with any of his relatives.

On August 14, 2000, nine (9) years after she left her husband, Gloria filed a verified petition with the Regional Trial
Court (RTC) at San Mateo, Rizal under the rules on Summary Judicial Proceedings in the Family Law provided for in
the Family Code, which petition was docketed in the same court as Special Proceeding No. 325-00 SM.

On August 28, 2000, the RTC issued an order directing, inter alia, the publication of the petition in a newspaper of
general circulation, thus:

A verified petition was filed by herein petitioner through counsel alleging that she married Francisco Lorino, Jr. on
June 12, 1987 but because of the violent character of his husband, she decided to go back to her parents and lived
separately from her husband. After nine (9) years, there was absolutely no news about him and she believes that
he is already dead and is now seeking through this petition for a Court declaration that her husband is judicially
presumed dead for the purpose of remarriage.

Finding the said petition to be sufficient in form and substance, the same is hereby set for hearing before this
Court on September 18, 2000 at 8:30 o’clock in the morning at which place, date and time, any or all persons who
may claim any interest thereto may appear and show cause why the same should not be granted.

Let a copy of this Order be published in a newspaper of general circulation in this province once a week for three
(3) consecutive weeks and be posted in the bulletin boards of the Hall of Justice and the Municipal Hall, San
Mateo, Rizal, all at the expense of the petitioner.1awphi1.nét

Furnish the Office of the Solicitor General a copy of this Order together with a copy of the petition. Further, send a
copy of this Order to the last known address of Francisco Lorino, Jr. at 719 Burgos St., Sta. Elena, Marikina City.

SO ORDERED1

The evidence in support of the summary judicial proceeding are: the order of publication dated August 28, 2000
(Exhibit "A"); affidavit of publication dated September 16, 2000 (Exhibit "B")2 ; copies of the newspapers where the
order appeared (Exhibits "C" to "E-1")3 ; a deposition dated September 4, 2000 of Gloria taken in Hong Kong
(Exhibit "G")4 ; Gloria’s affidavit dated October 21, 1999, also executed in Hong Kong (Exhibit "G-1")5 ; and a
certification by Department of Foreign Affairs Authentication Officer, Catalina C. Gonzalez, dated November 3,
1999, therein certifying that the signature of Vice Consul Adriane Bernie C. Candolada, appearing below the jurat in
Gloria’s affidavit of October 21, 1999, is authentic (Exhibit "G-2")6 .

9
In a decision dated November 7, 2001, the RTC, finding merit in the summary petition, rendered judgment granting
the same, to wit:

WHEREFORE, this Court in view of the facts and circumstances obtaining, finds the petition with merit and hereby
grants its imprimatur to the petition. Judgment is hereby rendered declaring the presumptive death/absence of
Francisco Lorino, Jr. pursuant to Art. 41 of the New Family Code but subject to all restrictions and conditions
provided therein.

SO ORDERED.7

Despite the judgment being immediately final and executory under the provisions of Article 247 of the Family
Code, thus:

Art. 247. The judgment of the court shall be immediately final and executory,

the Office of the Solicitor General, for the Republic of the Philippines, nevertheless filed a Notice of Appeal. 8 Acting
thereon, the RTC had the records elevated to the Court of Appeals which docketed the case as CA-G.R. CV No.
73884.

In a decision dated September 23, 2003, the Court of Appeals, treating the case as an ordinary appealed case
under Rule 41 of the Revised Rules on Civil Procedure, denied the Republic’s appeal and accordingly affirmed the
appealed RTC decision:

WHEREFORE, based on the foregoing premises, the instant appeal is DENIED. Accordingly, the appealed November
7, 2001 Decision of the Regional Trial Court of San Mateo, Rizal in Spec. Proc. No. 325-00 SM is hereby AFFIRMED.

SO ORDERED.9

Without filing any motion for reconsideration, petitioner Republic directly went to this Court via the instant
recourse under Rule 45, maintaining that the petition raises a pure question of law that does not require prior
filing of a motion for reconsideration.

The foregoing factual antecedents present to this Court the following issues:

WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED JURISDICTION OVER THE APPEAL ON A FINAL AND
EXECUTORY JUDGMENT OF THE REGIONAL TRIAL COURT; and

WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL DECLARATION OF PRESUMPTIVE DEATH
UNDER ARTICLE 41 OF THE FAMILY CODE WERE DULY ESTABLISHED IN THIS CASE.

The Court rules against petitioner Republic.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW, sets the
tenor for cases covered by these rules, to wit:

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for
in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without
regard to technical rules.

Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly complied with the above-cited provision by
expeditiously rendering judgment within ninety (90) days after the formal offer of evidence by therein petitioner,
Gloria Bermudez-Lorino.

The problem came about when the judge gave due course to the Republic’s appeal upon the filing of a Notice of
Appeal, and had the entire records of the case elevated to the Court of Appeals, stating in her order of December
18, 2001, as follows:

Notice of Appeal having been filed through registered mail on November 22, 2001 by the Office of the Solicitor
General who received a copy of the Decision in this case on November 14, 2001, within the reglementary period
fixed by the Rules, let the entire records of this case be transmitted to the Court of Appeals for further
proceedings.

SO ORDERED.10

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect
an appeal, precisely because judgments rendered thereunder, by express provision of Section 247, Family Code,

10
supra, are "immediately final and executory". It was erroneous, therefore, on the part of the RTC to give due
course to the Republic’s appeal and order the transmittal of the entire records of the case to the Court of Appeals.

An appellate court acquires no jurisdiction to review a judgment which, by express provision of law, is immediately
final and executory. As we have said in Veloria vs. Comelec,11 "the right to appeal is not a natural right nor is it a
part of due process, for it is merely a statutory privilege." Since, by express mandate of Article 247 of the Family
Code, all judgments rendered in summary judicial proceedings in Family Law are "immediately final and
executory", the right to appeal was not granted to any of the parties therein. The Republic of the Philippines, as
oppositor in the petition for declaration of presumptive death, should not be treated differently. It had no right to
appeal the RTC decision of November 7, 2001.

It was fortunate, though, that the Court of Appeals, acting through its Special Fourth Division, with Justice Elvi John
S. Asuncion as Acting Chairman and ponente, denied the Republic’s appeal and affirmed without modification the
final and executory judgment of the lower court. For, as we have held in Nacuray vs. NLRC :12

Nothing is more settled in law than that when a judgment becomes final and executory it becomes immutable and
unalterable. The same may no longer be modified in any respect, even if the modification is meant to correct what
is perceived to be an erroneous conclusion of fact or law, and whether made by the highest court of the land
(citing Nunal v. Court of Appeals, G.R. No. 94005, 6 April 1993, 221 SCRA 26).

But, if only to set the records straight and for the future guidance of the bench and the bar, let it be stated that the
RTC’s decision dated November 7, 2001, was immediately final and executory upon notice to the parties. It was
erroneous for the OSG to file a notice of appeal, and for the RTC to give due course thereto. The Court of Appeals
acquired no jurisdiction over the case, and should have dismissed the appeal outright on that ground.

This judgment of denial was elevated to this Court via a petition for review on certiorari under Rule 45. Although
the result of the Court of Appeals’ denial of the appeal would apparently be the same, there is a big difference
between having the supposed appeal dismissed for lack of jurisdiction by virtue of the fact that the RTC decision
sought to be appealed is immediately final and executory, and the denial of the appeal for lack of merit. In the
former, the supposed appellee can immediately ask for the issuance of an Entry of Judgment in the RTC, whereas,
in the latter, the appellant can still raise the matter to this Court on petition for review and the RTC judgment
cannot be executed until this Court makes the final pronouncement.

The Court, therefore, finds in this case grave error on the part of both the RTC and the Court of Appeals. To stress,
the Court of Appeals should have dismissed the appeal on ground of lack of jurisdiction, and reiterated the fact
that the RTC decision of November 7, 2001 was immediately final and executory. As it were, the Court of Appeals
committed grave reversible error when it failed to dismiss the erroneous appeal of the Republic on ground of lack
of jurisdiction because, by express provision of law, the judgment was not appealable.

WHEREFORE, the instant petition is hereby DENIED for lack of merit.1a\^/phi1.net No pronouncement as to costs.

SO ORDERED.

G.R. No. 94053 March 17, 1993

REPUBLIC OF THE PHILIPPINES, petitioner,

The Solicitor General for plaintiff-appellee.

Warloo G. Cardenal for respondent.

RESOLUTION

FELICIANO, J.:

On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of Antique, Branch 10, a
petition for the declaration of presumptive death of his wife Janet Monica Parker, invoking Article 41 of the Family
Code. The petition prayed that respondent's wife be declared presumptively dead or, in the alternative, that the
marriage be declared null and void.1

The Republic of the Philippines opposed the petition through the Provincial Prosecutor of Antique who had been
deputized to assist the Solicitor-General in the instant case. The Republic argued, first, that Nolasco did not possess
a "well-founded belief that the absent spouse was already dead," 2 and second, Nolasco's attempt to have his
marriage annulled in the same proceeding was a "cunning attempt" to circumvent the law on marriage. 3

11
During trial, respondent Nolasco testified that he was a seaman and that he had first met Janet Monica Parker, a
British subject, in a bar in England during one of his ship's port calls. From that chance meeting onwards, Janet
Monica Parker lived with respondent Nolasco on his ship for six (6) months until they returned to respondent's
hometown of San Jose, Antique on 19 November 1980 after his seaman's contract expired. On 15 January 1982,
respondent married Janet Monica Parker in San Jose, Antique, in Catholic rites officiated by Fr. Henry van Tilborg in
the Cathedral of San Jose.

Respondent Nolasco further testified that after the marriage celebration, he obtained another employment
contract as a seaman and left his wife with his parents in San Jose, Antique. Sometime in January 1983, while
working overseas, respondent received a letter from his mother informing him that Janet Monica had given birth
to his son. The same letter informed him that Janet Monica had left Antique. Respondent claimed he then
immediately asked permission to leave his ship to return home. He arrived in Antique in November 1983.

Respondent further testified that his efforts to look for her himself whenever his ship docked in England proved
fruitless. He also stated that all the letters he had sent to his missing spouse at No. 38 Ravena Road, Allerton,
Liverpool, England, the address of the bar where he and Janet Monica first met, were all returned to him. He also
claimed that he inquired from among friends but they too had no news of Janet Monica.

On cross-examination, respondent stated that he had lived with and later married Janet Monica Parker despite his
lack of knowledge as to her family background. He insisted that his wife continued to refuse to give him such
information even after they were married. He also testified that he did not report the matter of Janet Monica's
disappearance to the Philippine government authorities.

Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified that her daughter-in-law
Janet Monica had expressed a desire to return to England even before she had given birth to Gerry Nolasco on 7
December 1982. When asked why her daughter-in-law might have wished to leave Antique, respondent's mother
replied that Janet Monica never got used to the rural way of life in San Jose, Antique. Alicia Nolasco also said that
she had tried to dissuade Janet Monica from leaving as she had given birth to her son just fifteen days before, but
when she (Alicia) failed to do so, she gave Janet Monica P22,000.00 for her expenses before she left on 22
December 1982 for England. She further claimed that she had no information as to the missing person's present
whereabouts.

The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the dispositive portion of which
reads:

Wherefore, under Article 41, paragraph 2 of the Family Code of the Philippines (Executive Order
No. 209, July 6, 1987, as amended by Executive Order No. 227, July 17, 1987) this Court hereby
declares as presumptively dead Janet Monica Parker Nolasco, without prejudice to her
reappearance.4

The Republic appealed to the Court of Appeals contending that the trial court erred in declaring Janet Monica
Parker presumptively dead because respondent Nolasco had failed to show that there existed a well founded
belief for such declaration.

The Court of Appeals affirmed the trial court's decision, holding that respondent had sufficiently established a
basis to form a belief that his absent spouse had already died.

The Republic, through the Solicitor-General, is now before this Court on a Petition for Review where the following
allegations are made:

1. The Court of Appeals erred in affirming the trial court's finding that there existed a well-
founded belief on the part of Nolasco that Janet Monica Parker was already dead; and

2. The Court of Appeals erred in affirming the trial Court's declaration that the petition was a
proper case of the declaration of presumptive death under Article 41, Family Code. 5

The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco has a well-founded belief that
his wife is already dead."6

The present case was filed before the trial court pursuant to Article 41 of the Family Code which provides that:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall
be null and void, unless before the celebration of the subsequent marriage, the prior spouse had
been absent for four consecutive years and the spouse present had a well-founded belief that the
absent spouse was already dead. In case of disappearance where there is danger of death under
the circumstances set forth in the provision of Article 391 of the Civil Code, an absence of only
two years shall be sufficient.

12
 For the purpose of contracting the subsequent marriage under the preceding paragraph, the
spouse present must institute a summary proceeding as provided in this Code for the declaration
of presumptive death of the absentee, without prejudice to the effect of reappearance of the
absent spouse. (Emphasis supplied).

When Article 41 is compared with the old provision of the Civil Code, which it superseded, 7 the following crucial
differences emerge. Under Article 41, the time required for the presumption to arise has been shortened to four
(4) years; however, there is need for a judicial declaration of presumptive death to enable the spouse present to
remarry.8 Also, Article 41 of the Family Code imposes a stricter standard than the Civil Code: Article 83 of the Civil
Code merely requires either that there be no news that such absentee is still alive; or the absentee is generally
considered to be dead and believed to be so by the spouse present, or is presumed dead under Article 390 and 391
of the Civil Code.9 The Family Code, upon the other hand, prescribes as "well founded belief" that the absentee
is already dead before a petition for declaration of presumptive death can be granted.

As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of presumptive death
under Article 41 of the Family Code:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years
if the disappearance occurred where there is danger of death under the circumstances laid down
in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive death
of the absentee. 10

Respondent naturally asserts that he had complied with all these requirements.11

Petitioner's argument, upon the other hand, boils down to this: that respondent failed to prove that he had
complied with the third requirement, i.e., the existence of a "well-founded belief" that the absent spouse is
already dead.

The Court believes that respondent Nolasco failed to conduct a search for his missing wife with such diligence as to
give rise to a "well-founded belief" that she is dead.

United States v. Biasbas, 12 is instructive as to degree of diligence required in searching for a missing spouse. In that
case, defendant Macario Biasbas was charged with the crime of bigamy. He set-up the defense of a good faith
belief that his first wife had already died. The Court held that defendant had not exercised due diligence to
ascertain the whereabouts of his first wife, noting that:

While the defendant testified that he had made inquiries concerning the whereabouts of his
wife, he fails to state of whom he made such inquiries. He did not even write to the parents of
his first wife, who lived in the Province of Pampanga, for the purpose of securing information
concerning her whereabouts. He admits that he had a suspicion only that his first wife was dead.
He admits that the only basis of his suspicion was the fact that she had been absent. . . . 13

In the case at bar, the Court considers that the investigation allegedly conducted by respondent in his attempt to
ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a reasonable or well-founded
belief that she was already dead. When he arrived in San Jose, Antique after learning of Janet Monica's departure,
instead of seeking the help of local authorities or of the British Embassy, 14 he secured another seaman's contract
and went to London, a vast city of many millions of inhabitants, to look for her there.

Q After arriving here in San Jose, Antique, did you exert efforts to inquire the
whereabouts of your wife?

A Yes, Sir.

Court:

How did you do that?

A I secured another contract with the ship and we had a trip to London and I
went to London to look for her I could not find her (sic). 15 (Emphasis supplied)

Respondent's testimony, however, showed that he confused London for Liverpool and this casts doubt on his
supposed efforts to locate his wife in England. The Court of Appeal's justification of the mistake, to wit:

13
 . . . Well, while the cognoscente (sic) would readily know the geographical difference between
London and Liverpool, for a humble seaman like Gregorio the two places could mean one —
place in England, the port where his ship docked and where he found Janet. Our own provincial
folks, every time they leave home to visit relatives in Pasay City, Kalookan City, or Parañaque,
would announce to friends and relatives, "We're going to Manila." This apparent error in naming
of places of destination does not appear to be fatal. 16

is not well taken. There is no analogy between Manila and its neighboring cities, on one hand, and London and
Liverpool, on the other, which, as pointed out by the Solicitor-General, are around three hundred fifty (350)
kilometers apart. We do not consider that walking into a major city like Liverpool or London with a simple hope of
somehow bumping into one particular person there — which is in effect what Nolasco says he did — can be
regarded as a reasonably diligent search.

The Court also views respondent's claim that Janet Monica declined to give any information as to her personal
background even after she had married respondent 17 too convenient an excuse to justify his failure to locate her.
The same can be said of the loss of the alleged letters respondent had sent to his wife which respondent claims
were all returned to him. Respondent said he had lost these returned letters, under unspecified circumstances.

Neither can this Court give much credence to respondent's bare assertion that he had inquired from their friends
of her whereabouts, considering that respondent did not identify those friends in his testimony. The Court of
Appeals ruled that since the prosecutor failed to rebut this evidence during trial, it is good evidence. But this kind
of evidence cannot, by its nature, be rebutted. In any case, admissibility is not synonymous with credibility. 18 As
noted before, there are serious doubts to respondent's credibility. Moreover, even if admitted as evidence, said
testimony merely tended to show that the missing spouse had chosen not to communicate with their common
acquaintances, and not that she was dead.

Respondent testified that immediately after receiving his mother's letter sometime in January 1983, he cut short
his employment contract to return to San Jose, Antique. However, he did not explain the delay of nine (9) months
from January 1983, when he allegedly asked leave from his captain, to November 1983 when be finally reached
San Jose. Respondent, moreover, claimed he married Janet Monica Parker without inquiring about her parents and
their place of residence. 19 Also, respondent failed to explain why he did not even try to get the help of the police
or other authorities in London and Liverpool in his effort to find his wife. The circumstances of Janet Monica's
departure and respondent's subsequent behavior make it very difficult to regard the claimed belief that Janet
Monica was dead a well-founded one.

In Goitia v. Campos-Rueda, 20 the Court stressed that:

. . . Marriage is an institution, the maintenance of which in its purity the public is deeply
interested. It is a relationship for life and the parties cannot terminate it at any shorter period by
virtue of any contract they make. . . . . 21 (Emphasis supplied)

By the same token, the spouses should not be allowed, by the simple expedient of agreeing that one of them leave
the conjugal abode and never to return again, to circumvent the policy of the laws on marriage. The Court notes
that respondent even tried to have his marriage annulled before the trial court in the same proceeding.

In In Re Szatraw, 22 the Court warned against such collusion between the parties when they find it impossible to
dissolve the marital bonds through existing legal means.

While the Court understands the need of respondent's young son, Gerry Nolasco, for maternal care, still the
requirements of the law must prevail. Since respondent failed to satisfy the clear requirements of the law, his
petition for a judicial declaration of presumptive death must be denied. The law does not view marriage like an
ordinary contract. Article 1 of the Family Code emphasizes that.

. . . Marriage is a special contract of permanent union between a man and a woman entered into
in accordance with law for the establishment of conjugal and family life. It is the foundation of
the family and an inviolable social institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided by this Code. (Emphasis
supplied)

In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly the need to protect.

. . . the basic social institutions of marriage and the family in the preservation of which the State
bas the strongest interest; the public policy here involved is of the most fundamental kind. In
Article II, Section 12 of the Constitution there is set forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect and strengthen
the family as a basic autonomous social institution. . . .

14
 The same sentiment bas been expressed in the Family Code of the Philippines in Article 149:

The family, being the foundation of the nation, is a basic social institution which
public policy cherishes and protects. Consequently, family relations are
governed by law and no custom, practice or agreement destructive of the
family shall be recognized or given effect. 24

In fine, respondent failed to establish that he had the well-founded belief required by law that his absent wife was
already dead that would sustain the issuance of a court order declaring Janet Monica Parker presumptively dead.

WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the trial court's decision
declaring Janet Monica Parker presumptively dead is hereby REVERSED and both Decisions are hereby NULLIFIED
and SET ASIDE. Costs against respondent.

Bidin, Davide, Jr., Romero and Melo, JJ., concur.

Gutierrez, Jr. J., is on leave.

G.R. No. 165545 March 24, 2006

SOCIAL SECURITY SYSTEM, Petitioner,

DECISION

CARPIO MORALES,J.:

The Court of Appeals Decision1 dated June 23, 20042 and Resolution dated September 28, 20043 reversing the
Resolution dated April 2, 20034 and Order dated June 4, 20035 of the Social Security Commission (SSC) in SSC Case
No. 4-15149-01 are challenged in the present petition for review on certiorari.

On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice) contracted marriage in Barcelona,
Sorsogon.6

More than 15 years later or on October 9, 1970, Bailon filed before the then Court of First Instance (CFI) of
Sorsogon a petition7 to declare Alice presumptively dead.

By Order of December 10, 1970,8 the CFI granted the petition, disposing as follows:

WHEREFORE, there being no opposition filed against the petition notwithstanding the publication of the Notice of
Hearing in a newspaper of general circulation in the country, Alice Diaz is hereby declared to [sic] all legal intents
and purposes, except for those of succession, presumptively dead.

SO ORDERED.9 (Underscoring supplied)

Close to 13 years after his wife Alice was declared presumptively dead or on August 8, 1983, Bailon contracted
marriage with Teresita Jarque (respondent) in Casiguran, Sorsogon. 10

On January 30, 1998, Bailon, who was a member of the Social Security System (SSS) since 1960 and a retiree
pensioner thereof effective July 1994, died.11

Respondent thereupon filed a claim for funeral benefits, and was granted P12,00012 by the SSS.

Respondent filed on March 11, 1998 an additional claim for death benefits 13 which was also granted by the SSS on
April 6, 1998.14

Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one Elisa Jayona (Elisa) contested before
the SSS the release to respondent of the death and funeral benefits. She claimed that Bailon contracted three
marriages in his lifetime, the first with Alice, the second with her mother Elisa, and the third with respondent, all of
whom are still alive; she, together with her siblings, paid for Bailon’s medical and funeral expenses; and all the
documents submitted by respondent to the SSS in support of her claims are spurious.

In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma) submitted an Affidavit dated February
13, 199915 averring that they are two of nine children of Bailon and Elisa who cohabited as husband and wife as
early as 1958; and they were reserving their right to file the necessary court action to contest the marriage
between Bailon and respondent as they personally know that Alice is "still very much alive."16

15
In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be the brother and guardian of "Aliz P.
Diaz," filed before the SSS a claim for death benefits accruing from Bailon’s death, 17 he further attesting in a sworn
statement18 that it was Norma who defrayed Bailon’s funeral expenses.

Elisa and seven of her children19 subsequently filed claims for death benefits as Bailon’s beneficiaries before the
SSS.20

Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga City recommended the cancellation of
payment of death pension benefits to respondent and the issuance of an order for the refund of the amount paid
to her from February 1998 to May 1999 representing such benefits; the denial of the claim of Alice on the ground
that she was not dependent upon Bailon for support during his lifetime; and the payment of the balance of the
five-year guaranteed pension to Bailon’s beneficiaries according to the order of preference provided under the
law, after the amount erroneously paid to respondent has been collected. The pertinent portions of the
Memorandum read:

1. Aliz [sic] Diaz never disappeared. The court must have been misled by misrepresentation in declaring
the first wife, Aliz [sic] Diaz, as presumptively dead.

xxxx

x x x the Order of the court in the "Petition to Declare Alice Diaz Presumptively Dead," did not become
final. The presence of Aliz [sic] Diaz, is contrary proof that rendered it invalid.

xxxx

3. It was the deceased member who abandoned his wife, Aliz [sic] Diaz. He, being in bad faith, and is the
deserting spouse, his remarriage is void, being bigamous.

xxxx

In this case, it is the deceased member who was the deserting spouse and who remarried, thus his marriage to
Teresita Jarque, for the second time was void as it was bigamous. To require affidavit of reappearance to
terminate the second marriage is not necessary as there is no disappearance of Aliz [sic] Diaz, the first wife, and a
voidable marriage [sic], to speak of.21 (Underscoring supplied)

In the meantime, the SSS Sorsogon Branch, by letter of August 16, 2000, 22 advised respondent that as Cecilia and
Norma were the ones who defrayed Bailon’s funeral expenses, she should return the P12,000 paid to her.

In a separate letter dated September 7, 1999,23 the SSS advised respondent of the cancellation of her monthly
pension for death benefits in view of the opinion rendered by its legal department that her marriage with Bailon
was void as it was contracted while the latter’s marriage with Alice was still subsisting; and the December 10, 1970
CFI Order declaring Alice presumptively dead did not become final, her "presence" being "contrary proof" against
the validity of the order. It thus requested respondent to return the amount of P24,000 representing the total
amount of monthly pension she had received from the SSS from February 1998 to May 1999.

Respondent protested the cancellation of her monthly pension for death benefits by letter to the SSS dated
October 12, 1999.24 In a subsequent letter dated November 27, 1999 25 to the SSC, she reiterated her request for
the release of her monthly pension, asserting that her marriage with Bailon was not declared before any court of
justice as bigamous or unlawful, hence, it remained valid and subsisting for all legal intents and purposes as in fact
Bailon designated her as his beneficiary.

The SSS, however, by letter to respondent dated January 21, 2000, 26 maintained the denial of her claim for and the
discontinuance of payment of monthly pension. It advised her, however, that she was not deprived of her right to
file a petition with the SSC.

Respondent thus filed a petition27 against the SSS before the SSC for the restoration to her of her entitlement to
monthly pension.

In the meantime, respondent informed the SSS that she was returning, under protest, the amount of P12,000
representing the funeral benefits she received, she alleging that Norma and her siblings "forcibly and coercively
prevented her from spending any amount during Bailon’s wake." 28

After the SSS filed its Answer29 to respondent’s petition, and the parties filed their respective Position Papers, one
Alicia P. Diaz filed an Affidavit30 dated August 14, 2002 with the SSS Naga Branch attesting that she is the widow of
Bailon; she had only recently come to know of the petition filed by Bailon to declare her presumptively dead; it is
not true that she disappeared as Bailon could have easily located her, she having stayed at her parents’ residence
in Barcelona, Sorsogon after she found out that Bailon was having an extramarital affair; and Bailon used to visit
her even after their separation.

16
By Resolution of April 2, 2003, the SSC found that the marriage of respondent to Bailon was void and, therefore,
she was "just a common-law-wife." Accordingly it disposed as follows, quoted verbatim:

WHEREFORE, this Commission finds, and so holds, that petitioner Teresita Jarque-Bailon is not the legitimate
spouse and primary beneficiary of SSS member Clemente Bailon.

Accordingly, the petitioner is hereby ordered to refund to the SSS the amount of P24,000.00 representing the
death benefit she received therefrom for the period February 1998 until May 1999 as well as P12,000.00
representing the funeral benefit.

The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the appropriate death benefit arising from the
demise of SSS member Clemente Bailon in accordance with Section 8(e) and (k) as well as Section 13 of the SS Law,
as amended, and its prevailing rules and regulations and to inform this Commission of its compliance herewith.

SO ORDERED.31 (Underscoring supplied)

In so ruling against respondent, the SSC ratiocinated.

After a thorough examination of the evidence at hand, this Commission comes to the inevitable conclusion that
the petitioner is not the legitimate wife of the deceased member.

xxxx

There is x x x ample evidence pointing to the fact that, contrary to the declaration of the then CFI of Sorsogon
(10th Judicial District), the first wife never disappeared as the deceased member represented in bad faith. This
Commission accords credence to the findings of the SSS contained in its Memorandum dated August 9,
1999,32 revealing that Alice (a.k.a. Aliz) Diaz never left Barcelona, Sorsogon, after her separation from Clemente
Bailon x x x.

As the declaration of presumptive death was extracted by the deceased member using artifice and by exerting
fraud upon the unsuspecting court of law, x x x it never had the effect of giving the deceased member the right to
marry anew. x x x [I]t is clear that the marriage to the petitioner is void, considering that the first marriage on April
25, 1955 to Alice Diaz was not previously annulled, invalidated or otherwise dissolved during the lifetime of the
parties thereto. x x x as determined through the investigation conducted by the SSS, Clemente Bailon was the
abandoning spouse, not Alice Diaz Bailon.

xxxx

It having been established, by substantial evidence, that the petitioner was just a common-law wife of the
deceased member, it necessarily follows that she is not entitled as a primary beneficiary, to the latter’s death
benefit. x x x

xxxx

It having been determined that Teresita Jarque was not the legitimate surviving spouse and primary beneficiary of
Clemente Bailon, it behooves her to refund the total amount of death benefit she received from the SSS for the
period from February 1998 until May 1999 pursuant to the principle of solutio indebiti x x x

Likewise, it appearing that she was not the one who actually defrayed the cost of the wake and burial of Clemente
Bailon, she must return the amount of P12,000.00 which was earlier given to her by the SSS as funeral
benefit.33 (Underscoring supplied)

Respondent’s Motion for Reconsideration34 having been denied by Order of June 4, 2003, she filed a petition for
review35 before the Court of Appeals (CA).

By Decision of June 23, 2004, the CA reversed and set aside the April 2, 2003 Resolution and June 4, 2003 Order of
the SSC and thus ordered the SSS to pay respondent all the pension benefits due her. Held the CA:

x x x [T]he paramount concern in this case transcends the issue of whether or not the decision of the then CFI, now
RTC, declaring Alice Diaz presumptively dead has attained finality but, more importantly, whether or not the
respondents SSS and Commission can validly re-evaluate the findings of the RTC, and on its own, declare the
latter’s decision to be bereft of any basis. On similar import, can respondents SSS and Commission validly declare
the first marriage subsisting and the second marriage null and void?

xxxx

17
x x x while it is true that a judgment declaring a person presumptively dead never attains finality as the finding that
"the person is unheard of in seven years is merely a presumption juris tantum," the second marriage contracted by
a person with an absent spouse endures until annulled. It is only the competent court that can nullify the second
marriage pursuant to Article 87 of the Civil Code and upon the reappearance of the missing spouse, which action
for annulment may be filed. Nowhere does the law contemplates [sic] the possibility that respondent SSS may
validly declare the second marriage null and void on the basis alone of its own investigation and declare that the
decision of the RTC declaring one to be presumptively dead is without basis.

Respondent SSS cannot arrogate upon itself the authority to review the decision of the regular courts under the
pretext of determining the actual and lawful beneficiaries of its members. Notwithstanding its opinion as to the
soundness of the findings of the RTC, it should extend due credence to the decision of the RTC absent of [sic] any
judicial pronouncement to the contrary. x x x

x x x [A]ssuming arguendo that respondent SSS actually possesses the authority to declare the decision of the RTC
to be without basis, the procedure it followed was offensive to the principle of fair play and thus its findings are of
doubtful quality considering that petitioner Teresita was not given ample opportunity to present evidence for and
her behalf.

xxxx

Respondent SSS is correct in stating that the filing of an Affidavit of Reappearance with the Civil Registry is no
longer practical under the premises. Indeed, there is no more first marriage to restore as the marital bond
between Alice Diaz and Clemente Bailon was already terminated upon the latter’s death. Neither is there a second
marriage to terminate because the second marriage was likewise dissolved by the death of Clemente Bailon.

However, it is not correct to conclude that simply because the filing of the Affidavit of Reappearance with the Civil
Registry where parties to the subsequent marriage reside is already inutile, the respondent SSS has now the
authority to review the decision of the RTC and consequently declare the second marriage null and
void.36 (Emphasis and underscoring supplied)

The SSC and the SSS separately filed their Motions for Reconsideration 37 which were both denied for lack of merit.

Hence, the SSS’ present petition for review on certiorari38 anchored on the following grounds:

THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO LAW.

II

THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION. 39

The SSS faults the CA for failing to give due consideration to the findings of facts of the SSC on the prior and
subsisting marriage between Bailon and Alice; in disregarding the authority of the SSC to determine to whom,
between Alice and respondent, the death benefits should be awarded pursuant to Section 540 of the Social Security
Law; and in declaring that the SSS did not give respondent due process or ample opportunity to present evidence
in her behalf.

The SSS submits that "the observations and findings relative to the CFI proceedings are of no moment to the
present controversy, as the same may be considered only as obiter dicta in view of the SSC’s finding of the
existence of a prior and subsisting marriage between Bailon and Alice by virtue of which Alice has a better right to
the death benefits."41

The petition fails.

That the SSC is empowered to settle any dispute with respect to SSS coverage, benefits and contributions, there is
no doubt. In so exercising such power, however, it cannot review, much less reverse, decisions rendered by courts
of law as it did in the case at bar when it declared that the December 10, 1970 CFI Order was obtained through
fraud and subsequently disregarded the same, making its own findings with respect to the validity of Bailon and
Alice’s marriage on the one hand and the invalidity of Bailon and respondent’s marriage on the other.

In interfering with and passing upon the CFI Order, the SSC virtually acted as an appellate court. The law does not
give the SSC unfettered discretion to trifle with orders of regular courts in the exercise of its authority to
determine the beneficiaries of the SSS.

The two marriages involved herein having been solemnized prior to the effectivity on August 3, 1988 of the Family
Code, the applicable law to determine their validity is the Civil Code which was the law in effect at the time of their
celebration.42

18
Article 83 of the Civil Code43 provides:

Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person
with any person other than such first spouse shall be illegal and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the second marriage
without the spouse present having news of the absentee being alive, or if the absentee, though he has
been absent for less than seven years, is generally considered as dead and believed to be so by the spouse
present at the time of contracting such subsequent marriage, or if the absentee is presumed dead
according to Articles 390 and 391. The marriage so contracted shall be valid in any of the three cases
until declared null and void by a competent court. (Emphasis and underscoring supplied)

Under the foregoing provision of the Civil Code, a subsequent marriage contracted during the lifetime of the first
spouse is illegal and void ab initio unless the prior marriage is first annulled or dissolved or contracted under any of
the three exceptional circumstances. It bears noting that the marriage under any of these exceptional cases is
deemed valid "until declared null and void by a competent court." It follows that the onus probandi in these cases
rests on the party assailing the second marriage. 44

In the case at bar, as found by the CFI, Alice had been absent for 15 consecutive years 45 when Bailon sought the
declaration of her presumptive death, which judicial declaration was not even a requirement then for purposes of
remarriage.46

Eminent jurist Arturo M. Tolentino (now deceased) commented:

Where a person has entered into two successive marriages, a presumption arises in favor of the validity of the
second marriage, and the burden is on the party attacking the validity of the second marriage to prove that the
first marriage had not been dissolved; it is not enough to prove the first marriage, for it must also be shown that it
had not ended when the second marriage was contracted. The presumption in favor of the innocence of the
defendant from crime or wrong and of the legality of his second marriage, will prevail over the presumption of the
continuance of life of the first spouse or of the continuance of the marital relation with such first
spouse.47 (Underscoring supplied)

Under the Civil Code, a subsequent marriage being voidable,48 it is terminated by final judgment of annulment in a
case instituted by the absent spouse who reappears or by either of the spouses in the subsequent marriage.

Under the Family Code, no judicial proceeding to annul a subsequent marriage is necessary. Thus Article 42
thereof provides:

Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by
the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the
previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to
the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially
determined in case such fact is disputed. (Emphasis and underscoring supplied)

The termination of the subsequent marriage by affidavit provided by the above-quoted provision of the Family
Code does not preclude the filing of an action in court to prove the reappearance of the absentee and obtain a
declaration of dissolution or termination of the subsequent marriage. 49

If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or by
court action, such absentee’s mere reappearance, even if made known to the spouses in the subsequent marriage,
will not terminate such marriage.50 Since the second marriage has been contracted because of a presumption that
the former spouse is dead, such presumption continues inspite of the spouse’s physical reappearance, and
by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is
terminated as provided by law.51

If the subsequent marriage is not terminated by registration of an affidavit of reappearance or by judicial

x x x [G]enerally if a subsequent marriage is dissolved by the death of either spouse, the effects of dissolution of
valid marriages shall arise. The good or bad faith of either spouse can no longer be raised, because, as in annullable
or voidable marriages, the marriage cannot be questioned except in a direct action for annulment.52 (Underscoring
supplied)

19
Similarly, Lapuz v. Eufemio53 instructs:

In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2,
of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee
for seven consecutive years, or when she had been generally believed dead, still the action for annulment became
extinguished as soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the
Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties
involved. And furthermore, the liquidation of any conjugal partnership that might have resulted from such
voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse," as
expressly provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding. 54 (Emphasis and
underscoring supplied)

It bears reiterating that a voidable marriage cannot be assailed collaterally except in a direct proceeding.
Consequently, such marriages can be assailed only during the lifetime of the parties and not after the death of
either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid.55 Upon
the death of either, the marriage cannot be impeached, and is made good ab initio.56

In the case at bar, as no step was taken to nullify, in accordance with law, Bailon’s and respondent’s marriage prior
to the former’s death in 1998, respondent is rightfully the dependent spouse-beneficiary of Bailon.

In light of the foregoing discussions, consideration of the other issues raised has been rendered unnecessary.

WHEREFORE, the petition is DENIED.

No costs.

SO ORDERED.

G.R. No. L-53880 March 17, 1994

ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, EVELINA C. PACETE and EDUARDO C.
PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS PACETE, respondents.

Juan G. Sibug and Rodolfo B. Quiachon for petitioners.

Julio F. Andres, Jr. for private respondent.

VITUG, J.:

The issue in this petition for certiorari is whether or not the Court of First Instance (now Regional Trial Court) of
Cotabato, Branch I, in Cotabato City, gravely abused its discretion in denying petitioners' motion for extension of
time to file their answer in Civil Case No. 2518, in declaring petitioners in default and in rendering its decision of 17
March 1980 which, among other things, decreed the legal separation of petitioner Enrico L. Pacete and private
respondent Concepcion Alanis and held to be null and void ab initio the marriage of Enrico L. Pacete to Clarita de la
Concepcion.

On 29 October 1979, Concepcion Alanis filed with the court below a complaint for the declaration of nullity of the
marriage between her erstwhile husband Enrico L. Pacete and one Clarita de la Concepcion, as well as for legal
separation (between Alanis and Pacete), accounting and separation of property. In her complaint, she averred that
she was married to Pacete on 30 April 1938 before the Justice of the Peace of Cotabato, Cotabato; that they had a
child named Consuelo who was born on 11 March 1943; that Pacete subsequently contracted (in 1948) a second
marriage with Clarita de la Concepcion in Kidapawan, North Cotabato; that she learned of such marriage only on
01 August 1979; that during her marriage to Pacete, the latter acquired vast property consisting of large tracts of
land, fishponds and several motor vehicles; that he fraudulently placed the several pieces of property either in his
name and Clarita or in the names of his children with Clarita and other "dummies;" that Pacete ignored overtures
for an amicable settlement; and that reconciliation between her and Pacete was impossible since he evidently
preferred to continue living with Clarita.

The defendants were each served with summons on 15 November 1979. They filed a motion for an extension of
twenty (20) days from 30 November 1979 within which to file an answer. The court granted the motion. On 18
December 1979, appearing through a new counsel, the defendants filed a second motion for an extension of
another thirty (30) days from 20 December 1979. On 07 January 1980, the lower court granted the motion but only
for twenty (20) days to be counted from 20 December 1979 or until 09 January 1980. The Order of the court was
mailed to defendants' counsel on 11 January 1980. Likely still unaware of the court order, the defendants, on 05

20
February 1980, again filed another motion (dated 18 January 1980) for an extension of "fifteen (15) days counted
from the expiration of the 30-day period previously sought" within which to file an answer. The following day, or
on 06 February 1980, the court denied this last motion on the ground that it was "filed after the original period
given . . . as first extension had expired."1

The plaintiff thereupon filed a motion to declare the defendants in default, which the court forthwith granted. The
plaintiff was then directed to present her evidence. 2 The court received plaintiff's evidence during the hearings
held on 15, 20, 21 and 22 February 1980.

On 17 March 1980, the court3 promulgated the herein questioned decision, disposing of the case, thus —

WHEREFORE, order is hereby issued ordering:

1. The issuance of a Decree of Legal Separation of the marriage between, the plaintiff,
Concepcion (Conchita) Alanis Pacete and the herein defendants, Enrico L. Pacete, in accordance
with the Philippine laws and with consequences, as provided for by our laws;

2. That the following properties are hereby declared as the conjugal properties of the partnership
of the plaintiff, Concepcion (Conchita) Alanis Pacete and the defendant, Enrico L. Pacete, half and
half, to wit:

1. The parcel of land covered by TCT No. V-815 which is a parcel of land situated in the barrio of
Langcong, Municipality of Matanog (previously of Parang), province of Maguindanao (previously
of Cotabato province) with an area of 45,265 square meters registered in the name of Enrico
Pacete, Filipino, of legal age, married to Conchita Alanis as shown in Exhibits "B" and "B-1" for
the plaintiff.

2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with an area of 538
square meters and covered by Tax Declaration No. 2650 (74) in the name of Enrico Pacete,
situated in the Poblacion of Kidapawan, North Cotabato, together with all its improvements,
which parcel of land, as shown by Exhibits "K-1" was acquired by way of absolute deed of sale
executed by Amrosio Mondog on January 14, 1965.

3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and covered by Tax
Declaration No. 803 (74), with an area of 5.1670 hectares, more or less, as shown by Exhibit "R",
the same was registered in the name of Enrico Pacete and the same was acquired by Enrico
Pacete last February 17, 1967 from Ambag Ampoy, as shown by Exhibit "R-1", situated at Musan,
Kidapawan, North Cotabato.

4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an area of 5.0567
hectares, covered by Tax Declaration No. 4332 (74), as shown by Exhibit "S", and registered in
the name of Enrico Pacete.

5. A parcel of land covered by Transfer Certificate of Title No. T-9750, situated at Lika, Mlang,
North Cotabato, with an area of 4.9841 hectares and the same is covered by Tax Declaration No.
803 (74) and registered in the name of Enrico Pacete and which land was acquired by Enrico
Pacete from Salvador Pacete on September 24, 1962, as shown by Exhibit "Q-1".

6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with an area of 9.9566 and
also covered by Tax Declaration No. 8608 (74) and registered in the name of the defendant
Enrico L. Pacete which Enrico L. Pacete acquired from Sancho Balingcos last October 22, 1962, as
shown by Exhibit "L-1" and which parcel of land is situated at (Kialab), Kiab, Matalam, North
Cotabato.

7. A parcel of land covered by Transfer Certificate of Title No. T-9227, situated at Kiab, Matalam,
North Cotabato, with an area of 12.04339 hectares, more or less, and also covered by Tax
Declaration No. 8607 (74) both in the name of the defendant Enrico L. Pacete which he acquired
last October 15, 1962 from Minda Bernardino, as shown by Exhibit "M-1".

8. A parcel of land covered by Transfer Certificate of Title No. T-9228, situated at Kiab, Matalam,
North Cotabato, with an area of 10.8908 hectares, registered in the name of Enrico Pacete and
also covered by Tax Declaration No. 5781 (74) in the name of Enrico Pacete and which parcel of
land he acquired last September 25, 1962 from Conchita dela Torre, as shown by Exhibit "P-1".

9. A parcel of land covered by Transfer Certificate of Title No. T-10301, situated at Linao,
Matalam, North Cotabato, with an area of 7.2547 hectares, registered in the name of Enrico
Pacete and also covered by Tax Declaration No. 8716 (74) also in the name of Enrico Pacete
which Enrico Pacete acquired from Agustin Bijo last July 16, 1963, as shown by Exhibit "N-1".

21
 10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the name of the
defendant, Enrico L. Pacete, with an area of 10.9006 hectares, situated at Linao, Matalam, North
Cotabato and is also covered by Tax Declaration No. 5745 (74) in the name of Enrico Pacete, as
shown on Exhibit "O" and which Enrico Pacete acquired last December 31, 1963 from Eliseo
Pugni, as shown on Exhibit "0-1".

3. Ordering the Cancellation of Original Certificate of Title No. P-34243 covering Lot No. 1066,
issued in the name of Evelina Pacete, situated at Kiab, Matalam, North Cotabato, and ordering
the registration of the same in the joint name of Concepcion (Conchita) Alanis Pacete and Enrico
L. Pacete as their conjugal property, with address on the part of Concepcion (Conchita) Alanis
Pacete at Parang, Maguindanao and on the part of Enrico L. Pacete at Kidapawan, North
Cotabato.

4. Ordering likewise the cancellation of Original Certificate of Title No. V-20101, covering Lot No.
77, in the name of Eduardo C. Pacete, situated at New Lawaan, Mlang, North Cotabato, and the
issuance of a new Transfer Certificate of Title in the joint name of (half and half) Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete.

5. Ordering likewise the cancellation of Original Certificate of Title No. P-29890, covering Lot
1068, situated at Kiab, Matalam, North Cotabato, with an area of 12.1031 hectares, in the name
of Emelda C. Pacete and the issuance of a new Transfer Certificate of Title in the joint name (half
and half) of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete; and declaring that the
fishpond situated at Barrio Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares and
covered by Fishpond Lease Agreement of Emelda C. Pacete, dated July 29, 1977 be cancelled and
in lieu thereof, the joint name of Concepcion (Conchita) Alanis Pacete and her husband, Enrico L.
Pacete, be registered as their joint property, including the 50 hectares fishpond situated in the
same place, Barrio Timanan, Bislig, Surigao del Sur.

6. Ordering the following motor vehicles to be the joint properties of the conjugal partnership of
Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, viz:

a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T137-20561; Chassis No.
83920393, and Type, Mcarrier;

b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214-229547; Chassis No.
10D-1302-C; and Type, Mcarrier;

c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW-116188; Chassis No.
HOCC-GPW-1161-88-C; Type, Jeep;

d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU5-11111; Chassis No.
HOCC-GPW-1161188-G; Type, Stake;

e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED300-45758; Chassis No.
KB222-22044; Type, Stake; and

f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv; Chassis No. 10F-
13582-K; Type, Stake.

7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of P46,950.00 which is the
share of the plaintiff in the unaccounted income of the ricemill and corn sheller for three years
from 1971 to 1973.

8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the monetary equipment
of 30% of whether the plaintiff has recovered as attorney's fees;

9. Declaring the subsequent marriage between defendant Enrico L. Pacete and Clarita de la
Concepcion to be void ab initio; and

10. Ordering the defendants to pay the costs of this suit. 4

Hence, the instant special civil action of certiorari.

Under ordinary circumstances, the petition would have outrightly been dismissed, for, as also pointed out by
private respondents, the proper remedy of petitioners should have instead been either to appeal from the
judgment by default or to file a petition for relief from judgment.5 This rule, however, is not inflexible; a petition
for certiorari is allowed when the default order is improperly declared, or even when it is properly declared, where
grave abuse of discretion attended such declaration.6 In these exceptional instances, the special civil action

22
of certiorari to declare the nullity of a judgment by default is available. 7 In the case at bench, the default order
unquestionably is not legally sanctioned. The Civil Code provides:

Art. 101. No decree of legal separation shall be promulgated upon a stipulation of facts or by
confession of judgment.

In case of non-appearance of the defendant, the court shall order the prosecuting attorney to
inquire whether or not a collusion between the parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the State in order to take care that the evidence for the
plaintiff is not fabricated.

The provision has been taken from Article 30 of the California Civil Code,8 and it is, in substance, reproduced in
Article 60 of the Family Code.9

Article 101 reflects the public policy on marriages, and it should easily explain the mandatory tenor of the law.
In Brown v. Yambao, 10 the Court has observed:

The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys
in case of uncontested proceedings for legal separation (and of annulment of marriages, under
Article 88), is to emphasize that marriage is more than a mere contract; that it is a social
institution in which the state is vitally interested, so that its continuation or interruption can not
be made to depend upon the parties themselves (Civil Code, Article 52; Adong vs. Cheong Gee,
43 Phil. 43; Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with
this policy that the inquiry by the Fiscal should be allowed to focus upon any relevant matter that
may indicate whether the proceedings for separation or annulment are fully justified or not.

Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that an action for legal
separation must "in no case be tried before six months shall have elapsed since the filing of the petition," obviously
in order to provide the parties a "cooling-off" period. In this interim, the court should take steps toward getting the
parties to reconcile.

The significance of the above substantive provisions of the law is further underscored by the inclusion of the
following provision in Rule 18 of the Rules of Court:

Sec. 6. No defaults in actions for annulments of marriage or for legal separation. — If the
defendant in an action for annulment of marriage or for legal separation fails to answer, the
court shall order the prosecuting attorney to investigate whether or not a collusion between the
parties exists, and if there is no collusion, to intervene for the State in order to see to it that the
evidence submitted is not fabricated.

The special prescriptions on actions that can put the integrity of marriage to possible jeopardy are impelled by no
less than the State's interest in the marriage relation and its avowed intention not to leave the matter within the
exclusive domain and the vagaries of the parties to alone dictate.

It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That other remedies, whether
principal or incidental, have likewise been sought in the same action cannot dispense, nor excuse compliance, with
any of the statutory requirements aforequoted.

WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings below, including the Decision of
17 March 1980 appealed from, are NULLIFIED and SET ASIDE. No costs.

SO ORDERED.

G.R. No. 82606 December 18, 1992

PRIMA PARTOSA-JO, petitioner,

CRUZ, J.:

The herein private respondent, Jose Jo, admits to having cohabited with three women and fathered fifteen
children. The first of these women, the herein petitioner, claims to be his legal wife whom he begot a daughter,
Monina Jo. The other women and their respective offspring are not parties of these case.

23
In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal property, docketed as Civil
Case No. 51, in addition to an earlier action for support, also against him and docketed as Civil Case No. 36, in the
Regional Trial Court of Negros Oriental, Branch 35.

The two cases were consolidated and tried jointly. On November 29, 1983, Judge German G. Lee, Jr. rendered an
extensive decision, the dispositive portion of which read:

WHEREFORE, in view of all the foregoing arguments and considerations, this court hereby holds
that the plaintiff Prima Partosa was legally married to Jose Jo alias Ho Hang, alias Consing, and,
therefore, is entitled to support as the lawfully wedded wife and the defendant is hereby
ordered to give a monthly support of P500.00 to the plaintiff Prima Partosa, to be paid on or
before the 5th day of every month, and to give to the plaintiff the amount of P40,000.00 for the
construction of the house in Zamboanguita, Negros Oriental where she may live separately from
the defendant being entitled under the law to separate maintenance being the innocent spouse
and to pay the amount of P19,200.00 to the plaintiff by way of support in arrears and to pay the
plaintiff the amount of P3,000.00 in the concept of attorney's fees.

As will be noticed, there was a definite disposition of the complaint for support but none of the complaint for
judicial separation of conjugal property.

Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the trial court in the complaint for
support. 1 The complaint for judicial separation of conjugal property was dismissed for lack of a cause of action and
on the ground that separation by agreement was not covered by Article 178 of the Civil Code.

When their motions for reconsideration were denied, both parties came to this Court for relief. The private
respondent's petition for review on certiorari was dismissed for tardiness in our resolution dated February 17,
1988, where we also affirmed the legality of the marriage between Jose and Prima and the obligation of the
former to support her and her daughter.

This petition deals only with the complaint for judicial separation of conjugal property.

It is here submitted that the Court of Appeals erred in holding that: a) the judicial separation of conjugal property
sought was not allowed under Articles 175, 178 and 191 of the Civil Code; and b) no such separation was decreed
by the trial court in the dispositive portion of its decision.

The private respondent contends that the decision of the trial court can longer be reviewed at this time because it
has a long since become final and executory. As the decretal portion clearly made no disposition of Civil Case No.
51, that case should be considered impliedly dismissed. The petitioner should have called the attention of the trial
court to the omission so that the proper rectification could be made on time. Not having done so, she is now
concluded by the said decision, which can no longer be corrected at this late hour.

We deal first with the second ground.

While admitting that no mention was made of Civil Case No. 51 in the dispositive portion of the decision of the trial
court, the petitioner argues that a disposition of the case was nonetheless made in the penultimate paragraph of
the decision reading as follows:

It is, therefore, hereby ordered that all properties in question are considered properties of Jose
Jo, the defendant in this case, subject to separation of property under Article 178, third
paragraph of the Civil Code, which is subject of separate proceedings as enunciated herein.

The petitioner says she believed this to be disposition enough and so did not feel it was necessary for her to
appeal, particularly since the order embodied in that paragraph was in her favor. It was only when the respondent
court observed that there was no dispositive portion regarding that case and so ordered its dismissal that she
found it necessary to come to this Court for relief.

The petitioner has a point.

The dispositive portion of the decision in question was incomplete insofar as it carried no ruling on the complaint
for judicial separation of conjugal property although it was extensively discussed in the body of the decision. The
drafting of the decision was indeed not exactly careful. The petitioner's counsel, noting this, should have taken
immediate steps for the rectification for the omission so that the ruling expressed in the text of the decision could
have been embodied in the decretal portion. Such alertness could have avoided this litigation on a purely technical
issue.

Nevertheless, the technicality invoked in this case should not be allowed to prevail over considerations of
substantive justive. After all, the technical defect is not insuperable. We have said time and again that where there
is an ambiguity caused by an omission or a mistake in the dispositive portion of the decision, this Court may clarify

24
such an ambiguity by an amendment even after the judgment have become final. 2 In doing so, the Court may
resort to the pleading filed by the parties and the findings of fact and the conclusions of law expressed in the text
or body of the decision. 3

The trial court made definite findings on the complaint for judicial separation of conjugal property, holding that the
petitioner and the private respondent were legally married and that the properties mentioned by the petitioner
were acquired by Jo during their marriage although they were registered in the name of the apparent dummy.

There is no question therefore that the penultimate paragraph of the decision of the trial court was a ruling based
upon such findings and so should have been embodied in the dispositive portion. The respondent court should
have made the necessary modification instead of dismissing Civil Case No. 51 and thus upholding mere form over
substance.

In the interest of substantive justice, and to expedite these proceedings, we hereby make such modification.

And now to the merits of Civil Case No. 51.

The Court of Appeals dismissed the complaint on the ground that the separation of the parties was due to their
agreement and not because of abondonment. The respondent court relied mainly on the testimony of the
petitioner, who declared under oath that she left Dumaguete City, where she and Jo were living together "because
that was our agreement." It held that a agreement to live separately without just cause was void under Article 221
of the Civil Code and could not sustain any claim of abandonment by the aggrieved spouse. Its conclusion was that
the only remedy availabe to the petitioner was legal separation under Article 175 of the Civil Code, 4 by virtue of
which the conjugal partnership of property would be terminated.

The petitioner contends that the respondent court has misinterpreted Articles 175, 178 and 191 of the Civil Code.
She submits that the agreement between her and the private respondent was for her to temporarily live with her
parents during the initial period of her pregnancy and for him to visit and support her. They never agreed to
separate permanently. And even if they did, this arrangement was repudiated and ended in 1942, when she
returned to him at Dumaguete City and he refused to accept her.

The petitioner invokes Article 178 (3) of the Civil Code, which reads:

Art. 178. The separation in fact between husband and wife without judicial approval, shall not
affect the conjugal partnership, except that:

xxx xxx xxx

(3) If the husband has abandoned the wife without just cause for at least one year, she may
petition the court for a receivership, or administration by her of the conjugal partnership
property or separation of property.

The above-quoted provision has been superseded by Article 128 of the Family Code, which states:

Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her
obligations to the family, the aggrieved spouse may petition the court for receivership, for
judicial separation of property, of for authority to be the sole administrator of the conjugal
partnership property, subject to such precautionary conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer to martial, parental or
property relations.

A spouse is deemed to have abondoned the other when he or she has left the conjugal dwelling
without any intention of returning. The spouse who has left the conjugal dwelling for a period of
three months or has failed within the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no intention of returning to the conjugal
dwelling.

Under the this provision, the aggrieved spouse may petition for judicial separation on either of these grounds:

1. Abondonment by a spouse of the other without just cause; and

2. Failure of one spouse to comply with his or her obligations to the family without just cause,
even if she said spouse does not leave the other spouse.

Abandonment implies a departure by one spouse with the avowed intent never to return, followed by prolonged
absence without just cause, and without in the meantime providing in the least for one's family although able to
do so. 5 There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual

25
separation. 6 This idea is clearly expressed in the above-quoted provision, which states that "a spouse is deemed to
have abandoned the other when he or she has left the conjugal dwelling without any intention of returning."

The record shows that as early as 1942, the private respondent had already rejected the petitioner, whom he
denied admission to their conjugal home in Dumaguete City when she returned from Zamboanguita. The fact that
she was not accepted by Jo demonstrates all too clearly that he had no intention of resuming their conjugal
relationship. Moreover, beginning 1968 until the determination by this Court of the action for support in 1988, the
private respondent refused to give financial support to the petitioner. The physical separation of the parties,
coupled with the refusal by the private respondent to give support to the petitioner, sufficed to constitute
abandonment as a ground for the judicial separation of their conjugal property.

In addition, the petitioner may also invoke the second ground allowed by Article 128, for the fact is that he has
failed without just cause to comply with his obligations to the family as husband or parent. Apart form refusing to
admit his lawful wife to their conjugal home in Dumaguete City, Jo has freely admitted to cohabiting with other
women and siring many children by them. It was his refusal to provide for the petitioner and their daughter that
prompted her to file the actions against him for support and later for separation of the conjugal property, in which
actions, significantly, he even denied being married to her. The private respondent has not established any just
cause for his refusal to comply with his obligations to his wife as dutiful husband.

Their separation thus falls also squarely under Article 135 of the Family Code, providing as follows:

Art. 135. Any of the following shall be considered sufficient cause for judicial separation of
property:

xxx xxx xxx

(6) That at the time of the petition, the spouse have been separated in fact for at least one year
and reconciliation is highly improbable.

The amendments introduced in the Family Code are applicable to the case before us although they became
effective only on August 3, 1988. As we held in Ramirez v. Court of Appeals: 7

The greater weight of authority is inclined to the view that an appellate court, in reviewing a
judgment on appeal, will dispose of a question according to the law prevailing at the term of such
disposition, and not according to the law prevailing at the time of rendition of the appealed
judgement. The court will therefore reverse a judgement which was correct at the time it was
originally rendered where, by statute, there has been an intermediate change in the law which
renders such judgement erroneous at the time the case was finally disposed of on appeal.

The order of judicial separation of the properties in question is based on the finding of both the trial and
respondent courts that the private respondent is indeed their real owner. It is these properties that should now be
divided between him and the petitioner, on the assumption that they were acquired during coverture and so
belong to the spouses half and half. As the private respondent is a Chinese citizen, the division must include such
properties properly belonging to the conjugal partnership as may have been registered in the name of other
persons in violation of the Anti-Dummy Law.

The past has caught up with the private respondent. After his extramarital flings and a succession of illegitimate
children, he must now make an accounting to his lawful wife of the properties he denied her despite his promise to
their of his eternal love and care.

WHEREFORE, the petition is GRANTED and the assailed decision of the respondent court is MODIFIED. Civil Case
No. 51 is hereby decided in favor the plaintiff, the petitioner herein, and the conjugal property of the petitioner
and the private respondent is hereby ordered divided between them, share and share alike. This division shall be
implemented by the trial court after determination of all the properties pertaining to the said conjugal partnership,
including those that may have been illegally registered in the name of the persons.

SO ORDERED.

G.R. No. 169900 March 18, 2010

MARIO SIOCHI, Petitioner,

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 169977

26
INTER-DIMENSIONAL REALTY, INC., Petitioner,
vs.
MARIO SIOCHI, ELVIRA GOZON, ALFREDO GOZON, and WINIFRED GOZON, Respondents.

RESOLUTION

CARPIO, J.:

This is a consolidation of two separate petitions for review,1 assailing the 7 July 2005 Decision2 and the 30
September 2005 Resolution3 of the Court of Appeals in CA-G.R. CV No. 74447.

This case involves a 30,000 sq.m. parcel of land (property) covered by TCT No. 5357.4 The property is situated in
Malabon, Metro Manila and is registered in the name of "Alfredo Gozon (Alfredo), married to Elvira Gozon
(Elvira)."

On 23 December 1991, Elvira filed with the Cavite City Regional Trial Court (Cavite RTC) a petition for legal
separation against her husband Alfredo. On 2 January 1992, Elvira filed a notice of lis pendens, which was then
annotated on TCT No. 5357.

On 31 August 1993, while the legal separation case was still pending, Alfredo and Mario Siochi (Mario) entered into
an Agreement to Buy and Sell5 (Agreement) involving the property for the price of ₱18 million. Among the
stipulations in the Agreement were that Alfredo would: (1) secure an Affidavit from Elvira that the property is
Alfredo’s exclusive property and to annotate the Agreement at the back of TCT No. 5357; (2) secure the approval
of the Cavite RTC to exclude the property from the legal separation case; and (3) secure the removal of the notice
of lis pendens pertaining to the said case and annotated on TCT No. 5357. However, despite repeated demands
from Mario, Alfredo failed to comply with these stipulations. After paying the ₱5 million earnest money as partial
payment of the purchase price, Mario took possession of the property in September 1993. On 6 September 1993,
the Agreement was annotated on TCT No. 5357.

Meanwhile, on 29 June 1994, the Cavite RTC rendered a decision 6 in the legal separation case, the dispositive
portion of which reads:

WHEREFORE, judgment is hereby rendered decreeing the legal separation between petitioner and respondent.
Accordingly, petitioner Elvira Robles Gozon is entitled to live separately from respondent Alfredo Gozon without
dissolution of their marriage bond. The conjugal partnership of gains of the spouses is hereby declared DISSOLVED
and LIQUIDATED. Being the offending spouse, respondent is deprived of his share in the net profits and the same is
awarded to their child Winifred R. Gozon whose custody is awarded to petitioner.

Furthermore, said parties are required to mutually support their child Winifred R. Gozon as her needs arises.

SO ORDERED.7

As regards the property, the Cavite RTC held that it is deemed conjugal property.

On 22 August 1994, Alfredo executed a Deed of Donation over the property in favor of their daughter, Winifred
Gozon (Winifred). The Register of Deeds of Malabon, Gil Tabije, cancelled TCT No. 5357 and issued TCT No. M-
105088 in the name of Winifred, without annotating the Agreement and the notice of lis pendens on TCT No. M-
10508.

On 26 October 1994, Alfredo, by virtue of a Special Power of Attorney9 executed in his favor by Winifred, sold the
property to Inter-Dimensional Realty, Inc. (IDRI) for ₱18 million.10 IDRI paid Alfredo ₱18 million, representing full
payment for the property.11 Subsequently, the Register of Deeds of Malabon cancelled TCT No. M-10508 and
issued TCT No. M-1097612 to IDRI.

Mario then filed with the Malabon Regional Trial Court (Malabon RTC) a complaint for Specific Performance and
Damages, Annulment of Donation and Sale, with Preliminary Mandatory and Prohibitory Injunction and/or
Temporary Restraining Order.

On 3 April 2001, the Malabon RTC rendered a decision,13 the dispositive portion of which reads:

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

01. On the preliminary mandatory and prohibitory injunction:

1.1 The same is hereby made permanent by:

27
 1.1.1 Enjoining defendants Alfredo Gozon, Winifred Gozon, Inter-Dimensional Realty,
Inc. and Gil Tabije, their agents, representatives and all persons acting in their behalf
from any attempt of commission or continuance of their wrongful acts of further
alienating or disposing of the subject property;

1.1.2. Enjoining defendant Inter-Dimensional Realty, Inc. from entering and fencing the
property;

1.1.3. Enjoining defendants Alfredo Gozon, Winifred Gozon, Inter-Dimensional Realty,

02. The Agreement to Buy and Sell dated 31 August 1993, between plaintiff and defendant Alfredo Gozon
is hereby approved, excluding the property and rights of defendant Elvira Robles-Gozon to the undivided
one-half share in the conjugal property subject of this case.

03. The Deed of Donation dated 22 August 1994, entered into by and between defendants Alfredo Gozon
and Winifred Gozon is hereby nullified and voided.

04. The Deed of Absolute Sale dated 26 October 1994, executed by defendant Winifred Gozon, through
defendant Alfredo Gozon, in favor of defendant Inter-Dimensional Realty, Inc. is hereby nullified and
voided.

05. Defendant Inter-Dimensional Realty, Inc. is hereby ordered to deliver its Transfer Certificate of Title
No. M-10976 to the Register of Deeds of Malabon, Metro Manila.

06. The Register of Deeds of Malabon, Metro Manila is hereby ordered to cancel Certificate of Title Nos.
10508 "in the name of Winifred Gozon" and M-10976 "in the name of Inter-Dimensional Realty, Inc.," and
to restore Transfer Certificate of Title No. 5357 "in the name of Alfredo Gozon, married to Elvira Robles"
with the Agreement to Buy and Sell dated 31 August 1993 fully annotated therein is hereby ordered.

07. Defendant Alfredo Gozon is hereby ordered to deliver a Deed of Absolute Sale in favor of plaintiff over
his one-half undivided share in the subject property and to comply with all the requirements for
registering such deed.

08. Ordering defendant Elvira Robles-Gozon to sit with plaintiff to agree on the selling price of her
undivided one-half share in the subject property, thereafter, to execute and deliver a Deed of Absolute
Sale over the same in favor of the plaintiff and to comply with all the requirements for registering such
deed, within fifteen (15) days from the receipt of this DECISION.

09. Thereafter, plaintiff is hereby ordered to pay defendant Alfredo Gozon the balance of Four Million
Pesos (₱4,000,000.00) in his one-half undivided share in the property to be set off by the award of
damages in plaintiff’s favor.

10. Plaintiff is hereby ordered to pay the defendant Elvira Robles-Gozon the price they had agreed upon
for the sale of her one-half undivided share in the subject property.

11. Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are hereby ordered to pay the plaintiff,
jointly and severally, the following:

11.1 Two Million Pesos (₱2,000,000.00) as actual and compensatory damages;

11.2 One Million Pesos (₱1,000,000.00) as moral damages;

11.3 Five Hundred Thousand Pesos (₱500,000.00) as exemplary damages;

11.4 Four Hundred Thousand Pesos (₱400,000.00) as attorney’s fees; and

11.5 One Hundred Thousand Pesos (₱100,000.00) as litigation expenses.

11.6 The above awards are subject to set off of plaintiff’s obligation in paragraph 9 hereof.

12. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay Inter-Dimensional Realty,
Inc. jointly and severally the following:

12.1 Eighteen Million Pesos (₱18,000,000.00) which constitute the amount the former received
from the latter pursuant to their Deed of Absolute Sale dated 26 October 1994, with legal
interest therefrom;

28
 12.2 One Million Pesos (₱1,000,000.00) as moral damages;

12.3 Five Hundred Thousand Pesos (₱500,000.00) as exemplary damages; and

12.4 One Hundred Thousand Pesos (₱100,000.00) as attorney’s fees.

13. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay costs of suit.

SO ORDERED.14

On appeal, the Court of Appeals affirmed the Malabon RTC’s decision with modification. The dispositive portion of
the Court of Appeals’ Decision dated 7 July 2005 reads:

WHEREFORE, premises considered, the assailed decision dated April 3, 2001 of the RTC, Branch 74, Malabon is
hereby AFFIRMED with MODIFICATIONS, as follows:

1. The sale of the subject land by defendant Alfredo Gozon to plaintiff-appellant Siochi is declared null and
void for the following reasons:

a) The conveyance was done without the consent of defendant-appellee Elvira Gozon;

b) Defendant Alfredo Gozon’s one-half (½) undivided share has been forfeited in favor of his
daughter, defendant Winifred Gozon, by virtue of the decision in the legal separation case
rendered by the RTC, Branch 16, Cavite;

2. Defendant Alfredo Gozon shall return/deliver to plaintiff-appellant Siochi the amount of ₱5 Million
which the latter paid as earnest money in consideration for the sale of the subject land;

3. Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are hereby ordered to pay plaintiff-appellant
Siochi jointly and severally, the following:

a) ₱100,000.00 as moral damages;

b) ₱100,000.00 as exemplary damages;

c) ₱50,000.00 as attorney’s fees;

d) ₱20,000.00 as litigation expenses; and

e) The awards of actual and compensatory damages are hereby ordered deleted for lack of basis.

4. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay defendant-appellant IDRI
jointly and severally the following:

a) ₱100,000.00 as moral damages;

b) ₱100,000.00 as exemplary damages; and

c) ₱50,000.00 as attorney’s fees.

Defendant Winifred Gozon, whom the undivided one-half share of defendant Alfredo Gozon was awarded, is
hereby given the option whether or not to dispose of her undivided share in the subject land.

The rest of the decision not inconsistent with this ruling stands.

SO ORDERED.15

Only Mario and IDRI appealed the decision of the Court of Appeals. In his petition, Mario alleges that the
Agreement should be treated as a continuing offer which may be perfected by the acceptance of the other spouse
before the offer is withdrawn. Since Elvira’s conduct signified her acquiescence to the sale, Mario prays for the
Court to direct Alfredo and Elvira to execute a Deed of Absolute Sale over the property upon his payment of ₱9
million to Elvira.

On the other hand, IDRI alleges that it is a buyer in good faith and for value. Thus, IDRI prays that the Court should
uphold the validity of IDRI’s TCT No. M-10976 over the property.

29
We find the petitions without merit.

This case involves the conjugal property of Alfredo and Elvira. Since the disposition of the property occurred after
the effectivity of the Family Code, the applicable law is the Family Code. 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 the recourse to the court by the
wife for a proper remedy, which must be availed of within five years from the date of the 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 the
powers of disposition or encumbrance which must have the 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)

In this case, Alfredo was the sole administrator of the property because Elvira, with whom Alfredo was separated
in fact, was unable to participate in the administration of the conjugal property. However, as sole administrator of
the property, Alfredo still cannot sell the property without the written consent of Elvira or the authority of the
court. Without such consent or authority, the sale is void. 16 The absence of the consent of one of the spouse
renders the entire sale void, including the portion of the conjugal property pertaining to the spouse who
contracted the sale.17 Even if the other spouse actively participated in negotiating for the sale of the property, that
other spouse’s written consent to the sale is still required by law for its validity. 18 The Agreement entered into by
Alfredo and Mario was without the written consent of Elvira. Thus, the Agreement is entirely void. As regards
Mario’s contention that the Agreement is a continuing offer which may be perfected by Elvira’s acceptance before
the offer is withdrawn, the fact that the property was subsequently donated by Alfredo to Winifred and then sold
to IDRI clearly indicates that the offer was already withdrawn.

However, we disagree with the finding of the Court of Appeals that the one-half undivided share of Alfredo in the
property was already forfeited in favor of his daughter Winifred, based on the ruling of the Cavite RTC in the legal
separation case. The Court of Appeals misconstrued the ruling of the Cavite RTC that Alfredo, being the offending
spouse, is deprived of his share in the net profits and the same is awarded to Winifred.

The Cavite RTC ruling finds support in the following provisions of the Family Code:

Art. 63. The decree of legal separation shall have the following effects:

(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be
severed;

(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the
offending spouse shall have no right to any share of the net profits earned by the absolute community
or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2);

(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions
of Article 213 of this Code; and

The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession.
Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by
operation of law.

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the
following effects:

xxx

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall be forfeited in favor of the common children or, if
there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent
spouse; (Emphasis supplied)

Thus, among the effects of the decree of legal separation is that the conjugal partnership is dissolved and
liquidated and the offending spouse would have no right to any share of the net profits earned by the conjugal
partnership. It is only Alfredo’s share in the net profits which is forfeited in favor of Winifred. Article 102(4) of the
Family Code provides that "[f]or purposes of computing the net profits subject to forfeiture in accordance with

30
Article 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the
community property at the time of the celebration of the marriage and the market value at the time of its
dissolution." Clearly, what is forfeited in favor of Winifred is not Alfredo’s share in the conjugal partnership
property but merely in the net profits of the conjugal partnership property.

With regard to IDRI, we agree with the Court of Appeals in holding that IDRI is not a buyer in good faith. As found
by the RTC Malabon and the Court of Appeals, IDRI had actual knowledge of facts and circumstances which should
impel a reasonably cautious person to make further inquiries about the vendor’s title to the property. The
representative of IDRI testified that he knew about the existence of the notice of lis pendens on TCT No. 5357 and
the legal separation case filed before the Cavite RTC. Thus, IDRI could not feign ignorance of the Cavite RTC
decision declaring the property as conjugal.

Furthermore, if IDRI made further inquiries, it would have known that the cancellation of the notice of lis pendens
was highly irregular. Under Section 77 of Presidential Decree No. 1529, 19 the notice of lis pendens may be
cancelled (a) upon order of the court, or (b) by the Register of Deeds upon verified petition of the party who
caused the registration of the lis pendens. In this case, the lis pendens was cancelled by the Register of Deeds upon
the request of Alfredo. There was no court order for the cancellation of the lis pendens. Neither did Elvira, the
party who caused the registration of the lis pendens, file a verified petition for its cancellation.

Besides, had IDRI been more prudent before buying the property, it would have discovered that Alfredo’s donation
of the property to Winifred was without the consent of Elvira. Under Article 125 20 of the Family Code, a conjugal
property cannot be donated by one spouse without the consent of the other spouse. Clearly, IDRI was not a buyer
in good faith.1avvphi1

Nevertheless, we find it proper to reinstate the order of the Malabon RTC for the reimbursement of the ₱18
million paid by IDRI for the property, which was inadvertently omitted in the dispositive portion of the Court of
Appeals’ decision.

WHEREFORE, we DENY the petitions. We AFFIRM the 7 July 2005 Decision of the Court of Appeals in CA-G.R. CV
No. 74447 with the following MODIFICATIONS:

(1) We DELETE the portions regarding the forfeiture of Alfredo Gozon’s one-half undivided share in favor
of Winifred Gozon and the grant of option to Winifred Gozon whether or not to dispose of her undivided
share in the property; and

(2) We ORDER Alfredo Gozon and Winifred Gozon to pay Inter-Dimensional Realty, Inc. jointly and
severally the Eighteen Million Pesos (₱18,000,000) which was the amount paid by Inter-Dimensional
Realty, Inc. for the property, with legal interest computed from the finality of this Decision.

SO ORDERED.

G.R. NO. 155409 June 8, 2007

VIRGILIO MAQUILAN, petitioner,

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the
Decision1 dated August 30, 2002 promulgated by the Court of Appeals (CA) in CA-G.R. SP No. 69689, which
affirmed the Judgment on Compromise Agreement dated January 2, 2002 of the Regional Trial Court (RTC), Branch
3, Nabunturan, Compostela Valley, and the RTC Orders dated January 21, 2002 and February 7, 2002 (ORDERS) in
Civil Case No. 656.

The facts of the case, as found by the CA, are as follows:

Herein petitioner and herein private respondent are spouses who once had a blissful married life and out of which
were blessed to have a son. However, their once sugar coated romance turned bitter when petitioner discovered
that private respondent was having illicit sexual affair with her paramour, which thus, prompted the petitioner to
file a case of adultery against private respondent and the latter’s paramour. Consequently, both the private
respondent and her paramour were convicted of the crime charged and were sentenced to suffer an imprisonment
ranging from one (1) year, eight (8) months, minimum of prision correccional as minimum penalty, to three (3)
years, six (6) months and twenty one (21) days, medium of prision correccional as maximum penalty.

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Thereafter, private respondent, through counsel, filed a Petition for Declaration of Nullity of Marriage, Dissolution
and Liquidation of Conjugal Partnership of Gains and Damages on June 15, 2001 with the Regional Trial Court,
Branch 3 of Nabunturan, Compostela Valley, docketed as Civil Case No. 656, imputing psychological incapacity on
the part of the petitioner.

During the pre-trial of the said case, petitioner and private respondent entered into a COMPROMISE AGREEMENT
in the following terms, to wit:

1. In partial settlement of the conjugal partnership of gains, the parties agree to the following:

a. ₱500,000.00 of the money deposited in the bank jointly in the name of the spouses shall be withdrawn and
deposited in favor and in trust of their common child, Neil Maquilan, with the deposit in the joint account of the
parties.

The balance of such deposit, which presently stands at ₱1,318,043.36, shall be withdrawn and divided equally by
the parties;

b. The store that is now being occupied by the plaintiff shall be allotted to her while the bodega shall be for the
defendant. The defendant shall be paid the sum of ₱50,000.00 as his share in the stocks of the store in full
settlement thereof.

The plaintiff shall be allowed to occupy the bodega until the time the owner of the lot on which it stands shall
construct a building thereon;

c. The motorcycles shall be divided between them such that the Kawasaki shall be owned by the plaintiff while the
Honda Dream shall be for the defendant;

d. The passenger jeep shall be for the plaintiff who shall pay the defendant the sum of ₱75,000.00 as his share
thereon and in full settlement thereof;

e. The house and lot shall be to the common child.

2. This settlement is only partial, i.e., without prejudice to the litigation of other conjugal properties that have not
been mentioned;

xxxx

The said Compromise Agreement was given judicial imprimatur by the respondent judge in the assailed Judgment
On Compromise Agreement, which was erroneously dated January 2, 2002.2

However, petitioner filed an Omnibus Motion dated January 15, 2002, praying for the repudiation of the
Compromise Agreement and the reconsideration of the Judgment on Compromise Agreement by the respondent
judge on the grounds that his previous lawyer did not intelligently and judiciously apprise him of the consequential
effects of the Compromise Agreement.

The respondent Judge in the assailed Order dated January 21, 2002, denied the aforementioned Omnibus Motion.

Displeased, petitioner filed a Motion for Reconsideration of the aforesaid Order, but the same was denied in the
assailed Order dated February 7, 2002.3 (Emphasis supplied)

The petitioner filed a Petition for Certiorari and Prohibition with the CA under Rule 65 of the Rules of Court
claiming that the RTC committed grave error and abuse of discretion amounting to lack or excess of jurisdiction (1)
in upholding the validity of the Compromise Agreement dated January 11, 2002; (2) when it held in its Order dated
February 7, 2002 that the Compromise Agreement was made within the cooling-off period; (3) when it denied
petitioner’s Motion to Repudiate Compromise Agreement and to Reconsider Its Judgment on Compromise
Agreement; and (4) when it conducted the proceedings without the appearance and participation of the Office of
the Solicitor General and/or the Provincial Prosecutor.4

On August 30, 2002, the CA dismissed the Petition for lack of merit. The CA held that the conviction of the
respondent of the crime of adultery does not ipso facto disqualify her from sharing in the conjugal property,
especially considering that she had only been sentenced with the penalty of prision correccional, a penalty that
does not carry the accessory penalty of civil interdiction which deprives the person of the rights to manage her
property and to dispose of such property inter vivos; that Articles 43 and 63 of the Family Code, which pertain to
the effects of a nullified marriage and the effects of legal separation, respectively, do not apply, considering, too,
that the Petition for the Declaration of the Nullity of Marriage filed by the respondent invoking Article 36 of the
Family Code has yet to be decided, and, hence, it is premature to apply Articles 43 and 63 of the Family Code; that,
although adultery is a ground for legal separation, nonetheless, Article 63 finds no application in the instant case
since no petition to that effect was filed by the petitioner against the respondent; that the spouses voluntarily

32
separated their property through their Compromise Agreement with court approval under Article 134 of the
Family Code; that the Compromise Agreement, which embodies the voluntary separation of property, is valid and
binding in all respects because it had been voluntarily entered into by the parties; that, furthermore, even if it
were true that the petitioner was not duly informed by his previous counsel about the legal effects of the
Compromise Agreement, this point is untenable since the mistake or negligence of the lawyer binds his client,
unless such mistake or negligence amounts to gross negligence or deprivation of due process on the part of his
client; that these exceptions are not present in the instant case; that the Compromise Agreement was plainly
worded and written in simple language, which a person of ordinary intelligence can discern the consequences
thereof, hence, petitioner’s claim that his consent was vitiated is highly incredible; that the Compromise
Agreement was made during the existence of the marriage of the parties since it was submitted during the
pendency of the petition for declaration of nullity of marriage; that the application of Article 2035 of the Civil Code
is misplaced; that the cooling-off period under Article 58 of the Family Code has no bearing on the validity of the
Compromise Agreement; that the Compromise Agreement is not contrary to law, morals, good customs, public
order, and public policy; that this agreement may not be later disowned simply because of a change of mind; that
the presence of the Solicitor General or his deputy is not indispensable to the execution and validity of the
Compromise Agreement, since the purpose of his presence is to curtail any collusion between the parties and to
see to it that evidence is not fabricated, and, with this in mind, nothing in the Compromise Agreement touches on
the very merits of the case of declaration of nullity of marriage for the court to be wary of any possible collusion;
and, finally, that the Compromise Agreement is merely an agreement between the parties to separate their
conjugal properties partially without prejudice to the outcome of the pending case of declaration of nullity of
marriage.

Hence, herein Petition, purely on questions of law, raising the following issues:

I.

WHETHER OF NOT A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR ADULTERY, CAN STILL SHARE IN THE
CONJUGAL PARTNERSHIP;

II

WHETHER OR NOT A COMPROMISE AGREEMENT ENTERED INTO BY SPOUSES, ONE OF WHOM WAS CONVICTED OF
ADULTERY, GIVING THE CONVICTED SPOUSE A SHARE IN THE CONJUGAL PROPERTY, VALID AND LEGAL;

III

WHETHER OR NOT A JUDGMENT FOR ANNULMENT AND LEGAL SEPARATION IS A PRE-REQUISITE BEFORE A
SPOUSE CONVICTED OF EITHER CONCUBINAGE OR ADULTERY, BE DISQUALIFIED AND PROHIBITED FROM SHARING
IN THE CONJUGAL PROPERTY;

IV

WHETHER OR NOT THE DISQUALIFICATION OF A CONVICTED SPOUSE OF ADULTERY FROM SHARING IN A

The petitioner argues that the Compromise Agreement should not have been given judicial imprimatur since it is
against law and public policy; that the proceedings where it was approved is null and void, there being no
appearance and participation of the Solicitor General or the Provincial Prosecutor; that it was timely repudiated;
and that the respondent, having been convicted of adultery, is therefore disqualified from sharing in the conjugal
property.

The Petition must fail.

The essential question is whether the partial voluntary separation of property made by the spouses pending the
petition for declaration of nullity of marriage is valid.

First. The petitioner contends that the Compromise Agreement is void because it circumvents the law that
prohibits the guilty spouse, who was convicted of either adultery or concubinage, from sharing in the conjugal
property. Since the respondent was convicted of adultery, the petitioner argues that her share should be forfeited
in favor of the common child under Articles 43(2)6 and 637 of the Family Code.

To the petitioner, it is the clear intention of the law to disqualify the spouse convicted of adultery from sharing in
the conjugal property; and because the Compromise Agreement is void, it never became final and executory.

Moreover, the petitioner cites Article 20358 of the Civil Code and argues that since adultery is a ground for legal
separation, the Compromise Agreement is therefore void.

These arguments are specious. The foregoing provisions of the law are inapplicable to the instant case.

33
Article 43 of the Family Code refers to Article 42, to wit:

Article 42. The subsequent marriage referred to in the preceding Article9 shall be automatically terminated by the
recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous
marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to
the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially
determined in case such fact is disputed.

where a subsequent marriage is terminated because of the reappearance of an absent spouse; while Article 63
applies to the effects of a decree of legal separation. The present case involves a proceeding where the nullity of
the marriage is sought to be declared under the ground of psychological capacity.

Article 2035 of the Civil Code is also clearly inapplicable. The Compromise Agreement partially divided the
properties of the conjugal partnership of gains between the parties and does not deal with the validity of a
marriage or legal separation. It is not among those that are expressly prohibited by Article 2035.

Moreover, the contention that the Compromise Agreement is tantamount to a circumvention of the law
prohibiting the guilty spouse from sharing in the conjugal properties is misplaced. Existing law and jurisprudence
do not impose such disqualification.

Under Article 143 of the Family Code, separation of property may be effected voluntarily or for sufficient cause,
subject to judicial approval. The questioned Compromise Agreement which was judicially approved is exactly such
a separation of property allowed under the law. This conclusion holds true even if the proceedings for the
declaration of nullity of marriage was still pending. However, the Court must stress that this voluntary separation
of property is subject to the rights of all creditors of the conjugal partnership of gains and other persons with
pecuniary interest pursuant to Article 136 of the Family Code.

Second. Petitioner’s claim that since the proceedings before the RTC were void in the absence of the participation
of the provincial prosecutor or solicitor, the voluntary separation made during the pendency of the case is also
void. The proceedings pertaining to the Compromise Agreement involved the conjugal properties of the spouses.
The settlement had no relation to the questions surrounding the validity of their marriage. Nor did the settlement
amount to a collusion between the parties.

Article 48 of the Family Code states:

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion
between the parties and to take care that the evidence is not fabricated or suppressed. (Emphasis supplied)

Section 3(e) of Rule 9 of the 1997 Rules of Court provides:

SEC. 3. Default; declaration of.- x x x x

xxxx

(e) Where no defaults allowed.— If the defending party in action for annulment or declaration of nullity of
marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists if there is no collusion, to intervene for the State in order to
see to it that the evidence submitted is not fabricated. (Emphasis supplied

Truly, the purpose of the active participation of the Public Prosecutor or the Solicitor General is to ensure that the
interest of the State is represented and protected in proceedings for annulment and declaration of nullity of
marriages by preventing collusion between the parties, or the fabrication or suppression of evidence. 10 While the
appearances of the Solicitor General and/or the Public Prosecutor are mandatory, the failure of the RTC to require
their appearance does not per se nullify the Compromise Agreement. This Court fully concurs with the findings of
the CA:

x x x. It bears emphasizing that the intendment of the law in requiring the presence of the Solicitor General and/or
State prosecutor in all proceedings of legal separation and annulment or declaration of nullity of marriage is to
curtail or prevent any possibility of collusion between the parties and to see to it that their evidence respecting the
case is not fabricated. In the instant case, there is no exigency for the presence of the Solicitor General and/or the
State prosecutor because as already stated, nothing in the subject compromise agreement touched into the very
merits of the case of declaration of nullity of marriage for the court to be wary of any possible collusion between
the parties. At the risk of being repetiti[ve], the compromise agreement pertains merely to an agreement between

34
the petitioner and the private respondent to separate their conjugal properties partially without prejudice to the
outcome of the pending case of declaration of nullity of marriage.11

Third. The conviction of adultery does not carry the accessory of civil interdiction. Article 34 of the Revised Penal
Code provides for the consequences of civil interdiction:

Art. 34. Civil Interdiction. – Civil interdiction shall deprive the offender during the time of his sentence of the rights
of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the
right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos.

Under Article 333 of the same Code, the penalty for adultery is prision correccional in its medium and maximum
periods. Article 333 should be read with Article 43 of the same Code. The latter provides:

Art. 43. Prision correccional – Its accessory penalties. – The penalty of prision correccional shall carry with it that of
suspension from public office, from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in this article although pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the pardon.

It is clear, therefore, and as correctly held by the CA, that the crime of adultery does not carry the accessory
penalty of civil interdiction which deprives the person of the rights to manage her property and to dispose of such
property inter vivos.

Fourth. Neither could it be said that the petitioner was not intelligently and judiciously informed of the
consequential effects of the compromise agreement, and that, on this basis, he may repudiate the Compromise
Agreement. The argument of the petitioner that he was not duly informed by his previous counsel about the legal
effects of the voluntary settlement is not convincing. Mistake or vitiation of consent, as now claimed by the
petitioner as his basis for repudiating the settlement, could hardly be said to be evident. In Salonga v. Court of
Appeals,12 this Court held:

[I]t is well-settled that the negligence of counsel binds the client. This is based on the rule that any act performed
by a lawyer within the scope of his general or implied authority is regarded as an act of his client. Consequently,
the mistake or negligence of petitioners' counsel may result in the rendition of an unfavorable judgment against
them.

Exceptions to the foregoing have been recognized by the Court in cases where reckless or gross negligence of
counsel deprives the client of due process of law, or when its application "results in the outright deprivation of
one's property through a technicality." x x x x13

None of these exceptions has been sufficiently shown in the present case.

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is AFFIRMED with MODIFICATION that
the subject Compromise Agreement is VALID without prejudice to the rights of all creditors and other persons with
pecuniary interest in the properties of the conjugal partnership of gains.

SO ORDERED.

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