Republic of the Philippines Alfonso Lacson (hereinafter referred to as the petitioner (a) There will be separation of property — petitioner

There will be separation of property — petitioner Carmen

spouse) and Carmen San Jose-Lacson (hereinafter referred to San Jose-Lacson hereby waiving any and all claims for a share in
SUPREME COURTManila as the respondent spouse) were married on February 14, 1953. property that may be held by petitioner Alfonso Lacson since
EN BANC To them were born four children, all alive. they have acquired no property of any consequence.

G.R. No. L-23482 August 30, 1968

ALFONSO LACSON, petitioner,vs. On January 9, 1963 the respondent spouse left the conjugal (b) Hereafter, each of them shall own, dispose of, possess,
home in Santa Clara Subdivision, Bacolod City, and commenced administer and enjoy such separate estate as they may acquire
CARMEN SAN JOSE-LACSON and THE COURT OF APPEALS, to reside in Manila. She filed on March 12, 1963 a complaint without the consent of the other and all earnings from any
respondents. docketed as civil case E-00030 in the Juvenile and Domestic profession, business or industry as may be derived by each
Relations Court of Manila (hereinafter referred to as the JDRC) petitioner shall belong to that petitioner exclusively.
----------------------------- for custody of all their children as well as support for them and
G.R. No. L-23767 August 30, 1968 herself.
(c) The custody of the two elder children named Enrique and
CARMEN SAN JOSE-LACSON, plaintiff-appellant,vs. Maria Teresa shall be awarded to petitioner Alfonso Lacson
ALFONSO LACSON, defendant-appellee. However, the spouses, thru the assistance of their respective and the custody of the younger children named Gerrard and
attorneys, succeeded in reaching an amicable settlement Ramon shall be awarded to petitioner Carmen San Jose-Lacson.
----------------------------- respecting custody of the children, support, and separation of
property. On April 27, 1963 they filed a joint petition dated
G.R. No. L-24259 August 30, 1968 April 21, 1963, docketed as special proceeding 6978 of the (d) Petitioner Alfonso Lacson shall pay petitioner Carmen San
Court of First Instance of Negros Occidental (hereinafter Jose-Lacson a monthly allowance of P300.00 for the support of
ALFONSO LACSON, petitioner-appellee,vs.
referred to as the CFI). the children in her custody.
CARMEN SAN JOSE-LACSON, petitioner-appellant.

The important and pertinent portions of the petition, (e) Each petitioner shall have reciprocal rights of visitation of
Paredes, Poblador, Cruz and Nazareno for respondent- embodying their amicable settlement, read as follows: the children in the custody of the other at their respective
appellant Carmen San Jose-Lacson. residences and, during the summer months, the two children in
the custody of each petitioner shall be given to the other
Norberto Quisumbing for petitioner-appellee Alfonso Lacson.
3. Petitioners have separated last January 9, 1963 when except that, for this year's summer months, all four children
petitioner Carmen San Jose-Lacson left their conjugal home at shall be delivered to and remain with petitioner Carmen San
the Santa Clara Subdivision, Bacolod City, did not return, and Jose-Lacson until June 15, 1963 — on which date, she shall
CASTRO, J.: decided to reside in Manila. return the two elder children Enrique and Maria Teresa to
petitioner Alfonso Lacson — this judgment of course being
These three cases (G.R. L-23482, L-23767 and L-24259)
subject to enforcement by execution writ and contempt.
involving the same parties pose a common fundamental issue
the resolution of which will necessarily and inescapably resolve 4. Petitioners have mutually agreed upon the dissolution of
all the other issues. Thus their joinder in this decision. their conjugal partnership subject to judicial approval as
required by Article 191 of the Civil Code of the Philippines — 5. Petitioners have no creditors.
the particular terms and conditions of their mutual agreement
being as follows:
The antecedent facts are not disputed.
WHEREFORE, they respectfully pray that notice of this petition
be given to creditors and third parties pursuant to Article 191
of the Civil Code of the Philippines and thereafter that the
Court enter its judicial approval of the foregoing agreement for On October 14, 1964 the Court of Appeals certified the said The respondent spouse also instituted certiorari proceedings
the dissolution of their conjugal partnership and for separation appeal to the Supreme Court (G.R. No. L-23767), since "no before the Court of Appeals (CA-G.R. No. 32384R), now the
of property, except that the Court shall immediately approve hearing on the facts was ever held in the court below — no subject of an appeal by certiorari to this Court (G.R. No. L-
the terms set out in paragraph 4 above and embody the same evidence, testimonial or documentary, presented — only a 23482). In her petition for certiorari dated June 27, 1963, she
in a judgment immediately binding on the parties hereto to the question of law pends resolution in the appeal." . averred that the CFI (thru Judge Querubin) committed grave
end that any non-compliance or violation of its terms by one abuse of discretion and acted in excess of jurisdiction in
party shall entitle the other to enforcement by execution writ ordering the immediate execution of the compromise
and contempt even though the proceedings as to creditors The respondent spouse likewise filed a motion dated May 15, judgment in its order of June 22, 1963, thus in effect depriving
have not been terminated.". 1963 for reconsideration of the compromise judgment dated her of the right to appeal. She prayed for (1) the issuance of a
April 27, 1963 rendered in special proceeding 6978 of the CFI, writ of preliminary injunction enjoining the respondents
wherein she also alleged, among others, that she entered into therein and any person acting under them from enforcing, by
Finding the foregoing joint petition to be "conformable to law," the joint petition as the only means by which she could have contempt proceedings and other means, the writ of execution
the CFI (Judge Jose F. Fernandez, presiding) issued an order on immediate custody of her minor children, and thereafter issued pursuant to the order of the respondent Judge Querubin
April 27, 1963, rendering judgment (hereinafter referred to as prayed the CFI to reconsider its judgment pertaining to the dated June 22, 1963 in special proceeding 6978 of the CFI, (2)
the compromise judgment) approving and incorporating in toto custody and visitation of her minor children and to relieve her the setting aside, after hearing, of the compromise judgment
their compromise agreement. In compliance with paragraph 4 from the said agreement. The petitioner spouse opposed the dated April 27, 1963 and the order dated June 22, 1963, and (3)
(e) of their mutual agreement (par. 3[e] of the compromise said motion and, on June 1, 1963, filed a motion for execution the awarding of the custody of Enrique and Maria Teresa to
judgment), the petitioner spouse delivered all the four children of the compromise judgment and a charge for contempt. her, their mother.
to the respondent spouse and remitted money for their As prayed for, the Court of Appeals issued ex parte a writ of
support. The CFI (Judge Jose R. Querubin, presiding), in its order dated
June 22, 1963, denied the respondent spouse's motion for preliminary injunction enjoining the enforcement of the order
reconsideration, granted the petitioner spouse's motion for dated June 22, 1963 for execution of the compromise
execution, and ordered that upon "failure on the part of judgment rendered in special proceeding 6978. The petitioner
On May 7, 1963 the respondent spouse filed in the JDRC a Carmen San Jose-Lacson to deliver the said children [i.e., to spouse filed an urgent motion dated July 5, 1963 for the
motion wherein she alleged that she "entered into and signed return the two older children Enrique and Maria Teresa in dissolution of the writ of preliminary injunction ex parte which
the ... Joint Petition as the only means by which she could have accordance with her agreement with Alfonso Lacson] to the urgent motion was denied by the Court of Appeals in its
immediate custody of the ... minor children who are all below special sheriff on or before June 29, 1963, she may be held for resolution dated July 9, 1963. The petitioner spouse likewise
the age of 7," and thereafter prayed that she "be considered contempt pursuant to the provisions of Rule 39 sections 9 and filed his answer. After hearing, the Court of Appeals on May 11,
relieved of the ... agreement pertaining to the custody and 10, and Rule 64 section 7 of the (old) Rules of Court." From the 1964 promulgated in said certiorari case (CA-G.R. No. 32384-R)
visitation of her minor children ... and that since all the children aforesaid compromise judgment dated April 27, 1963 and its decision granting the petition for certiorari and declaring
are now in her custody, the said custody in her favor be execution order dated June 22, 1963, the respondent spouse null and void both (a) the compromise judgment dated April
confirmed pendente lite." interposed an appeal to the Court of Appeals (CA-G.R. No. 27, 1963 in so far as it relates to the custody and right of
32798-R) wherein she likewise questioned the validity or visitation over the two children, Enrique and Teresa, and (b)
On May 24, 1963 the petitioner spouse opposed the said the order dated June 22, 1963 for execution of said judgment.
motion and moved to dismiss the complaint based, among legality of her agreement with the petitioner spouse respecting
custody of their children. On February 11, 1965 the Court of The petitioner spouse moved to reconsider, but his motion for
other things, on the grounds of res judicata and lis pendens. reconsideration was denied by the Court of Appeals in its
The JDRC on May 28, 1963, issued an order which sustained Appeals also certified the said appeal to the Supreme Court
(G.R. No. L-24259), since "no evidence of any kind was resolution dated July 31, 1964.
the petitioner spouse's plea of bar by prior judgment and lis
pendens, and dismissed the case. After the denial of her introduced before the trial court and ... appellant did not From the decision dated May 11, 1964 and the resolution
motion for reconsideration, the respondent spouse interposed specifically ask to be allowed to present evidence on her dated July 31, 1964, the petitioner spouse interposed an
an appeal to the Court of Appeals (CA-G.R. No. 32608-R) behalf." . appeal to this Court, as abovestated, and assigned the
wherein she raised, among others, the issue of validity or following errors:
legality of the compromise agreement in connection only with
the custody of their minor children. (1) The Court of Appeals erred in annulling thru certiorari the
lower court's order of execution of the compromise judgment.
(2) The Court of Appeals erred in resolving in the certiorari case court shall take such measures as may protect the creditors passion" without more — would be minded to separate from
the issue of the legality of the compromise judgment which is and other third persons. (Art. 191, par. 4, emphasis supplied). each other. In this jurisdiction, the husband and the wife are
involved in two appeals, instead of the issue of grave abuse of obliged to live together, observe mutual respect and fidelity,
discretion in ordering its execution. and render mutual help and support (art. 109, new Civil Code).
In the case at bar, the spouses obtained judicial imprimatur of There is, therefore, virtue in making it as difficult as possible
(3) The Court of Appeals erred in ruling that the compromise for married couples — impelled by no better cause than their
agreement upon which the judgment is based violates article their separation of property and the dissolution of their
conjugal partnership. It does not appeal that they have whims and caprices — to abandon each other's company.
363 of the Civil Code. 1äwphï1.ñët
creditors who will be prejudiced by the said arrangements.

'... For though in particular cases the repugnance of the law to

As heretofore adverted, the aforecited three appeals converge dissolve the obligations of matrimonial cohabitation may
on one focal issue: whether the compromise agreement It is likewise undisputed that the couple have been separated
in fact for at least five years - the wife's residence being in operate with great severity upon individuals, yet it must be
entered into by the parties and the judgment of the CFI carefully remembered that the general happiness of the
grounded on the said agreement, are conformable to law. Manila, and the husband's in the conjugal home in Bacolod
City. Therefore, inasmuch as a lengthy separation has married life is secured by its indissolubility. When people
supervened between them, the propriety of severing their understand that they must live together, except for a very few
financial and proprietary interests is manifest. reasons known to the law, they learn to soften by mutual
We hold that the compromise agreement and the judgment of accommodation that yoke which they know they cannot shake
the CFI grounded on the said agreement are valid with respect off; they become good husbands and good wives from the
to the separation of property of the spouses and the necessity of remaining husbands and wives; for necessity is a
dissolution of the conjugal partnership. Besides, this Court cannot constrain the spouses to live powerful master in teaching the duties which it imposes ..."
together, as (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.)
[I]t is not within the province of the courts of this country to (Arroyo vs. Vasquez de Arroyo, Id., pp. 58-59).
The law allows separation of property of the spouses and the attempt to compel one of the spouses to cohabit with, and
dissolution of their conjugal partnership provided judicial render conjugal rights to, the other. .. At best such an order can
sanction is secured beforehand. Thus the new Civil Code be effective for no other purpose than to compel the spouse to We now come to the question of the custody and support of
provides: live under the same roof; and the experience of those the children.
countries where the courts of justice have assumed to compel
the cohabitation of married couple shows that the policy of the
In the absence of an express declaration in the marriage practice is extremely questionable. (Arroyo v. Vasquez de It is not disputed that it was the JDRC which first acquired
settlements, the separation of property between spouses Arroyo, 42 Phil. 54, 60). jurisdiction over the matter of custody and support of the
during the marriage shall not take place save in virtue of a children. The complaint docketed as civil case E-00030 in the
judicial order. (Art. 190, emphasis supplied) JDRC was filed by the respondent spouse on March 12, 1963,
However, in so approving the regime of separation of property whereas the joint petition of the parties docketed as special
of the spouses and the dissolution of their conjugal proceeding 6978 in the CFI was filed on April 27, 1963.
The husband and the wife may agree upon the dissolution of partnership, this Court does not thereby accord recognition to However, when the respondent spouse signed the joint
the conjugal partnership during the marriage, subject to nor legalize the de facto separation of the spouses, which again petition on the same matter of custody and support of the
judicial approval. All the creditors of the husband and of the in the language of Arroyo v. Vasquez de Arroyo, supra — is a children and filed the same with the CFI of Negros Occidental,
wife, as well as of the conjugal partnership, shall be notified of "state which is abnormal and fraught with grave danger to all she in effect abandoned her action in the JDRC. The petitioner
any petition for judicial approval of the voluntary dissolution of concerned." We would like to douse the momentary seething spouse — who could have raised the issue of lis pendens in
the conjugal partnership, so that any such creditors may emotions of couples who, at the slightest ruffling of domestic abatement of the case filed in the CFI, but did not do so - had
appear at the hearing to safeguard his interests. Upon approval tranquility — brought about by "mere austerity of temper, the right, therefore, to cite the decision of the CFI and to ask
of the petition for dissolution of the conjugal partnership, the petulance of manners, rudeness of language, a want of civil for the dismissal of the action filed by the respondent spouse in
attention and accommodation, even occasional sallies of the JDRC, on the grounds of res judicata and lis pendens. And
the JDRC acted correctly and justifiably in dismissing the case in respect to the said legal provision, underscores its
for custody and support of the children based on those mandatory character. It prohibits in no uncertain: terms the
grounds. For it is no defense against the dismissal of the action separation of a mother and her child below seven years, unless It might be argued — and correctly — that since five years have
that the case before the CFI was filed later than the action such separation is grounded upon compelling reasons as elapsed since the filing of these cases in 1963, the ages of the
before the JDRC, considering:. determined by a court. four children should now be as follows: Enrique — 11, Maria
Teresa — 10, Gerrard — 9, and Ramon — 5. Therefore, the
issue regarding the award of the custody of Enrique and Maria
Teresa to the petitioner spouse has become moot and
... [T]hat the Rules do not require as a ground for dismissal of a The order dated April 27, 1963 of the CFI, in so far as it academic. The passage of time has removed the prop which
complaint that there is a prior pending action. They provide awarded custody of the two older children who were 6 and 5 supports the respondent spouse's position.
only that there is a pending action, not a pending prior action. years old, respectively, to the father, in effect sought to
1 separate them from their mother. To that extent therefore, it
was null and void because clearly violative of article 363 of the
Civil Code. Nonetheless, this Court is loath to uphold the couple's
agreement regarding the custody of the children. 1äwphï1.ñët
We agree with the Court of Appeals, however, that the CFI
erred in depriving the mother, the respondent spouse, of the
custody of the two older children (both then below the age of Neither does the said award of custody fall within the
7). exception because the record is bereft of any compelling Article 356 of the new Civil Code provides:
reason to support the lower court's order depriving the wife of
her minor children's company. True, the CFI stated in its order
The Civil Code specifically commands in the second sentence of dated June 22, 1963, denying the respondent spouse's motion Every child:
its article 363 that "No mother shall be separated from her for reconsideration of its order dated April 27, 1963, that .
(1) Is entitled to parental care;
child under seven years of age, unless the court finds
compelling reasons for such measure." The rationale of this (2) Shall receive at least elementary education;
new provision was explained by the Code Commission thus: ... If the parties have agreed to file a joint petition, it was
because they wanted to avoid the exposure of the bitter truths (3) Shall be given moral and civic training by the parents or
which serve as succulent morsel for scandal mongers and idle guardian;

The general rule is recommended in order to avoid many a gossipers and to save their children from embarrassment and (4) Has a right to live in an atmosphere conducive to his
tragedy where a mother has seen her baby torn away from her. inferiority complex which may inevitably stain their lives. .. physical, moral and intellectual development.
No man can sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception allowed by
the rule has to be for "compelling reasons" for the good of the If the parties agreed to submit the matter of custody of the It is clear that the abovequoted legal provision grants to every
child: those cases must indeed be rare, if the mother's heart is minor children to the Court for incorporation in the final child rights which are not and should not be dependent solely
not to be unduly hurt. If she has erred, as in cases of adultery, judgment, they purposely suppressed the "compelling reasons on the wishes, much less the whims and caprices, of his
the penalty of imprisonment and the (relative) divorce decree for such measure" from appearing in the public records. This is parents. His welfare should not be subject to the parents' say-
will ordinarily be sufficient punishment for her. Moreover, her for the sake and for the welfare of the minor children.". so or mutual agreement alone. Where, as in this case, the
moral dereliction will not have any effect upon the baby who is parents are already separated in fact, the courts must step in
as yet unable to understand the situation." (Report of the Code to determine in whose custody the child can better be assured
Commission, p. 12). But the foregoing statement is at best a mere hint that there the right granted to him by law. The need, therefore, to
were compelling reasons. The lower court's order is eloquently present evidence regarding this matter, becomes imperative. A
silent on what these compelling reasons are. Needless to state, careful scrutiny of the records reveals that no such evidence
The use of the word shall2 in article 363 of the Civil Code, courts cannot proceed on mere insinuations; they must be was introduced in the CFI. This latter court relied merely on the
coupled with the observations made by the Code Commission confronted with facts before they can properly adjudicate. mutual agreement of the spouses-parents. To be sure, this was
not a sufficient basis to determine the fitness of each parent to ACCORDINGLY, the decision dated May 11, 1964 and the App. 578. (39 Words and Phrases, Permanent Ed. P. 93.)"
be the custodian of the children. resolution dated July 31, 1964 of the Court of Appeals in CA- Diokno v. Rehabilitation Finance Corporation, G.R. No. L-4712,
G.R. 32384-R (subject matter of G.R. L-23482), and the orders July 11, 1952, 91 Phil. 608) (emphasis supplied).
dated May 28, 1963 and June 24, 1963 of the Juvenile and
Besides, at least one of the children — Enrique, the eldest — is Domestic Relations Court (subject matter of G.R. L-23767) are
now eleven years of age and should be given the choice of the affirmed. G.R. L-24259 is hereby remanded to the Court of First
parent he wishes to live with. This is the clear mandate of sec. Instance of Negros Occidental for further proceedings, in
6, Rule 99 of the Rules of Court which, states, inter alia: accordance with this decision. No pronouncement as to costs.

... When husband and wife are divorced or living separately Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar and
and apart from each other, and the question as to the care, Angeles, JJ., concur.
custody, and control of a child or children of their marriage is Sanchez and Fernando, JJ., took no part.
brought before a Court of First Instance by petition or as an
incident to any other proceeding, the court, upon hearing
testimony as may be pertinent, shall award the care, custody
and control of each such child as will be for its best interest Footnotes
permitting the child to choose which parent it prefers to live
with if it be over ten years of age, unless the parent so chosen
be unfit to take charge of the child by reason of moral 1Teodoro vs. Mirasol, 99 Phil. 150, 153.
depravity, habitual drunkenness, incapacity, or poverty...
(Emphasis supplied).
2"In common or ordinary parlance and in its ordinary
significance the term "shall" is a word of command, and one
One last point regarding the matter of support for the children which has always or which must be given a compulsory
— assuming that the custody of any or more of the children meaning, and it is generally imperative or mandatory. It has the
will be finally awarded to the mother. Although the spouses invariable significance of operating to impose a duty which may
have agreed upon the monthly support of P150 to be given by be enforced, particularly if public policy is in favor of this
the petitioner spouse for each child, still this Court must speak meaning or when public interest is involved, or where the
out its mind on the insufficiency of this amount. We, take public or persons have rights which ought to be exercised or
judicial notice of the devaluation of the peso in 1962 and the enforced, unless a contrary intent appears. People v. O'Rourke,
steady skyrocketing of prices of all commodities, goods, and 13 P. 2d. 989, 992, 124 Cal. App. 752, (30 Words, and Phrases,
services, not to mention the fact that all the children are Permanent Ed., p. 90).
already of school age. We believe, therefore, that the CFI may
increase this amount of P150 according to the needs of each
child. "The presumption is that the word "shall" in a statute is used in
an imperative, and not in a directory, sense. If a different
interpretation is sought, it must rest upon something in the
With the view that we take of this case, we find it unnecessary character of the legislation or in the context which will justify a
to pass upon the other errors assigned in the three appeals. different meaning. Haythron v. Van Keuren & Sons, 74 A 502,
504, 79 N.J.L. 101; Board of Finance of School City of Aurora v.
People's Nat. Bank of Lawrenceburg, 89 N.E. 904, 905, 44 Ind.