INCESTUOUS MARRIAGES Family Code Article 37: Marriages between the following are incestuous and void from

the beginning, whether relationship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and (2) Between brothers and sisters, whether of the full or half blood. New Civil Code Articles 963-967 Art. 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. Art. 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants. A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. Art. 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. Art. 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor. In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the greatgrandparent. In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his

uncle, who is the brother of his father, four from his first cousin, and so forth. Art. 967. Full blood relationship is that existing between persons who have the same father and the same mother. MARRIAGES AGAINST PUBLIC POLICY Family Code Article 38: The following marriages shall be void from the beginning for reasons of public policy: (1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; (2) Between step-parents and step-children; (3) Between parents-in-law and children-in-law; (4) Between the adopting parent and the adopted child; (5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; and (9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. New Civil Code Article 80: The following marriages shall be void from the beginning: (1) Those contracted under the ages of sixteen and fourteen years by the male and female respectively, even with the consent of the parents; (2) Those solemnized by any person not legally authorized to perform marriages; (3) Those solemnized without a marriage license, save marriages of exceptional character; (4) Bigamous or polygamous marriages not falling under Article 83, Number 2; (5) Incestuous marriages mentioned in Article 81; (6) Those where one or both contracting parties have been found guilty of the killing of the spouse of either of them; (7) Those between stepbrothers and stepsisters and other marriages specified in Article 82. New Civil Code Article 82: The following marriages shall also be void from the beginning:

(1) Between stepfathers and stepdaughters, and stepmothers and stepsons; (2) Between the adopting father or mother and the adopted, between the latter and the surviving spouse of the former, and between the former and the surviving spouse of the latter; (3) Between the legitimate children of the adopter and the adopted. Revised Penal Code Article 246: Parricide. Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death. NONCOMPLIANCE UNDER FC 53 Sections 21, 22, and 23, AM 02-11-10-SC: Section 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. - Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings. Section 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage." (a) The court shall issue the Decree after; (1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located; (2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and (3) The delivery of the children's presumptive legitimes in cash, property, or sound securities.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition. Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected. Section 23. Registration and publication of the decree; decree as best evidence. (a) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report td the court compliance with this requirement within thirty days from receipt of the copy of the Decree. (b) In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation. (c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children. Who Can Invoke Nullity Family Code Article 36: A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. Family Code Article 39: The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by Executive Order 227 and Republic Act No. 8533; The phrase "However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after this Code shall taken effect"

has been deleted by Republic Act No. 8533 [Approved February 23, 1998]). Family Code Article 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 previous marriage void. Section 2, AM 02-11-10-SC: Petition for declaration of absolute nullity of void marriages. (a) Who may file. - A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (b) Where to file. - The petition shal be filed in the Family Court. (c) Imprecriptibility ofaction or defense. - An Action or defense for the declaration of absolute nullity of void marriage shall not prescribe. (d) What to allege. - A petition under Article 36 of Family Code shall specially allege te complete facts showing the either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriages at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. Ninal vs Bayadog FACTS: Pepito Ninal was married with Teodulfa Bellones on September 26, 1974. They had 3 children namely Babyline, Ingrid and Archie, petitioners. Due to the shot inflicted by Pepito to Teodulfa, the latter died on April 24, 1985 leaving the children under the guardianship of Engrace Ninal. 1 year and 8 months later, Pepito and Norma Badayog got married without any marriage license. They instituted an affidavit stating that they had lived together for at least 5 years exempting from securing

the marriage license. Pepito died in a car accident on February 19, 1977. After his death, petitioners filed a petition for declaration of nullity of the marriage of Pepito and Norma alleging that said marriage was void for lack of marriage license. ISSUES: 1. Whether or not the second marriage of Pepito was void? 2. Whether or not the heirs of the deceased may file for the declaration of the nullity of Pepitos marriage after his death? HELD: The marriage of Pepito and Norma is void for absence of the marriage license. They cannot be exempted even though they instituted an affidavit and claimed that they cohabit for at least 5 years because from the time of Pepitos first marriage was dissolved to the time of his marriage with Norma, only about 20 months had elapsed. Albeit, Pepito and his first wife had separated in fact, and thereafter both Pepito and Norma had started living with each other that has already lasted for five years, the fact remains that their five-year period cohabitation was not the cohabitation contemplated by law. Hence, his marriage to Norma is still void. Void marriages are deemed to have not taken place and cannot be the source of rights. It can be questioned even after the death of one of the parties and any proper interested party may attack a void marriage.

Catalan vs CA FACTS: Petitioner Felicitas Amor-Catalan married respondent Orlando on June 4, 1950 in Mabini, Pangasinan. Thereafter, they migrated to the United States of America and allegedly became naturalized citizens thereof. After 38 years of marriage, Felicitas and Orlando divorced in April 1988. On June 16, 1988, Orlando married respondent Merope in Calasiao, Pangasinan. Petitioner contends that said marriage was bigamous since Merope had a prior subsisting marriage with Eusebio Bristol. She filed a petition for declaration of

nullity of marriage with damages in the RTC of Dagupan City against Orlando and Merope. ISSUE: Whether or not petitioner has the personality to file a petition for the declaration of nullity of marriage of the respondents on the ground of bigamy? RULING: A petition to declare the nullity of marriage, like any other actions, must be prosecuted or defended in the name of the real party in interest and must be based on a cause of action. A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. Petitioners personality to file the petition to declare the nullity of marriage cannot be ascertained because of the absence of the divorce decree and the foreign law allowing it. After all, she may have the personality to file the petition if the divorce decree obtained was a limited divorce or a mensa et thoro; or the foreign law may restrict remarriage even after the divorce decree becomes absolute. We note that it was the petitioner who alleged in her complaint that they acquired American citizenship and that respondent Orlando obtained a judicial divorce decree. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence Hence, a remand of the case to the trial court for reception of additional evidence is necessary to determine whether respondent Orlando was granted a divorce decree and whether the foreign law which granted the same allows or restricts remarriage. If it is proved that a valid divorce decree was obtained and the same did not allow respondent Orlandos remarriage, then the trial court should declare respondents marriage as bigamous and void ab initio. Enrico vs Heirs of Medinaceli FACTS: On 17 March 2005, respondents, heirs of Spouses Eulogio B. Medinaceli (Eulogio) and Trinidad Catli-Medinaceli (Trinidad) filed with the RTC, an action for declaration of nullity of marriage of Eulogio and petitioner Lolita D. Enrico. Substantially, the complaint alleged, inter alia, that Eulogio and Trinidad were married on 14 June 1962, in Lal-lo, Cagayan.[3] They begot seven children. On 1 May2004, Trinidad died.[5] On 26, in her Answer,

petitioner maintained that she and Eulogio lived together as husband and wife under one roof for 21 years openly and publicly; hence, they were exempted from the requirement of a marriage license. From their union were born Elvin Enrico and Marco Enrico, all surnamed Medinaceli, on 28 October 1988and 30 October 1991, respectively. She further contended that the marriage ceremony was performed in the Municipal Hall of Lal-lo, Cagayan, and solemnized by the Municipal Mayor. As an affirmative defense, she sought the dismissal of the action on the ground that it is only the contracting parties while living who can file an action for declaration of nullity of marriage. ISSUE: Whether or not A.M. No. 02-11-10-SC governs the instant case. HELD: Respondents clearlyhave no cause of action before the court a quo. Nonetheless, all is not lost for respondents. While A.M. No. 02-11-10SC declares that a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife, it does not mean that the compulsory or intestate heirs are already without any recourse under the law. They can still protect their successional right, for, as stated in the Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders, compulsory or intestate heirs can still question the validity of the marriage of the spouses, not in a proceeding for declaration of nullity, but upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. WHEREFORE, the Petition is GRANTED. Civil Case No. II-4057 filed before the Regional Trial Court of Aparri, Cagayan, Branch 6, is ORDERED DISMISSED without prejudice to challenging the validity of the marriage of Lolita D. Enrico to Eulogio B. Medinaceli in a proceeding for the settlement of the estate of the latter. No costs. Carlos vs Sandoval Teofilo Carlos and petitioner Juan De Dios Carlos were brothers who each have three parcels of land by virtue of inheritance. Later Teofilo died intestate. He was survived

by respondents Felicidad Sandoval and their son, Teofilo Carlos II. Upon Teofilos death, two parcels of land were registered in the name of Felicidad and Teofilo II. In August 1995, Carlos commenced an action against respondents before the court a quo. In his complaint, Carlos asserted that the marriage between his late brother and Felicidad was a nullity in view of the absence of the required marriage license. He likewise maintained that his deceased brother was neither the natural nor the adoptive father of Teofilo Carlos II. He argued that the properties covered by such certificates of title, including the sums received by respondents as proceeds, should be reconveyed to him. HELD: The grounds for declaration of absolute nullity of marriage must be proved. Neither judgment on the pleadings nor summary judgment is allowed. So is confession of judgment disallowed. Carlos argues that the CA should have applied Rule 35 of the Rules of Court governing summary judgment, instead of the rule on judgment on the pleadings. Petitioner is misguided. Whether it is based on judgment on the pleadings or summary judgment, the CA was correct in reversing the summary judgment rendered by the trial court. Both the rules on judgment on the pleadings and summary judgments have no place in cases of declaration of absolute nullity of marriage and even in annulment of marriage. A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or wife. Exceptions: (1) Nullity of marriage cases commenced before the effectivity of A.M. No. 02-11-10-SC; and (2) Marriages celebrated during the effectivity of the Civil Code. Under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, the petition for declaration of absolute nullity of marriage may not be filed by any party outside of the marriage. A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of absolute nullity of void marriages. Such

petition cannot be filed by compulsory or intestate heirs of the spouses or by the State. The Committee is of the belief that they do not have a legal right to file the petition. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and, hence, can only question the validity of the marriage of the spouses upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. On the other hand, the concern of the State is to preserve marriage and not to seek its dissolution. The Rule extends only to marriages entered into during the effectivity of the Family Code which took effect on August 3, 1988. The advent of the Rule on Declaration of Absolute Nullity of Void Marriages marks the beginning of the end of the right of the heirs of the deceased spouse to bring a nullity of marriage case against the surviving spouse. But the Rule never intended to deprive the compulsory or intestate heirs of their successional rights. While A.M. No. 02-11-10-SC declares that a petition for declaration of absolute nullity of marriage may be filed solely by the husband or the wife, it does not mean that the compulsory or intestate heirs are without any recourse under the law. They can still protect their successional right, for, as stated in the Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, compulsory or intestate heirs can still question the validity of the marriage of the spouses, not in a proceeding for declaration of nullity but upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. It is emphasized, however, that the Rule does not apply to cases already commenced before March 15, 2003 although the marriage involved is within the coverage of the Family Code. This is so, as the new Rule which became effective on March 15, 2003 is prospective in its application. Petitioner commenced the nullity of marriage case against respondent Felicidad in 1995. The marriage in controversy was celebrated on May 14, 1962. Which law would govern depends upon when the marriage took place.

The marriage having been solemnized prior to the effectivity of the Family Code, the applicable law is the Civil Code which was the law in effect at the time of its celebration. But the Civil Code is silent as to who may bring an action to declare the marriage void. Does this mean that any person can bring an action for the declaration of nullity of marriage? True, under the New Civil Code which is the law in force at the time the respondents were married, or even in the Family Code,there is no specific provision as to who can file a petition to declare the nullity of marriage; however, only a party who can demonstrate proper interest can file the same. A petition to declare the nullity of marriage, like any other actions, must be prosecuted or defended in the name of the real party-in-interest and must be based on a cause of action. Thus, in Nial v. Badayog, the Court held that the children have the personality to file the petition to declare the nullity of marriage of their deceased father to their stepmother as it affects their successional rights. Ablaza vs Republic FACTS: On October 17, 2000, the petitioner filed in the RTC Masbate a petition for the declaration of the absolute nullity of the marriage contracted on December 26, 1949 between his late brother A and B. The petitioner alleged that the marriage between A and B had been celebrated without a marriage license, due to such license being issued only on January 9, 1950, thereby rendering the marriage void ab initio for having been solemnized without a marriage license. ISSUE: Whether a person may bring an action for the declaration of the absolute nullity of the marriage of his deceased brother solemnized under the regime of the OLD Civil Code? RULING: YES. Before anything more, the Court has to clarify the impact to the issue posed herein of Administrative Matter (A.M.) No. 02-11-10-SC (Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages), which took effect on March 15, 2003.

Section 2, paragraph (a), of A.M. No. 02-11-10-SC explicitly provides the limitation that a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or wife. Such limitation demarcates a line to distinguish between marriages covered by the Family Code and those solemnized under the regime of the Civil Code. Specifically, A.M. No. 0211-10-SC extends only to marriages covered by the Family Code, which took effect on August 3, 1988, but, being a procedural rule that is prospective in application, is confined only to proceedings commenced after March 15, 2003. Based on Carlos v. Sandoval, the following actions for declaration of absolute nullity of a marriage are excepted from the limitation, to wit: Those commenced before March 15, 2003, the effectivity date of A.M. No. 02-11-10-SC; and Those filed vis--vis marriages celebrated during the effectivity of the Civil Code and, those celebrated under the regime of the Family Code prior to March 15, 2003. Considering that the marriage between A and B was contracted on December 26, 1949, the applicable law was the old Civil Code, the law in effect at the time of the celebration of the marriage. Hence, the rule on the exclusivity of the parties to the marriage as having the right to initiate the action for declaration of nullity of the marriage under A.M. No. 02-11-10-SC had absolutely no application to the petitioner. When to File Action for Declaration of Nullity Family Code Article 39 Family Code Article 26(2): All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter

validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 227) Family Code Article 42(2): 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. Family Code Article 237: The annulment or declaration of nullity of the marriage of a minor or of the recorded agreement mentioned in the foregoing. Articles 234 and 235 shall revive the parental authority over the minor but shall not affect acts and transactions that took place prior to the recording of the final judgment in the Civil Register. Family Code Article 236: Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life. RA 6809: AN ACT LOWERING THE AGE OF MAJORITY FROM TWENTY-ONE TO EIGHTEEN YEARS, AMENDING FOR THE PURPOSE EXECUTIVE ORDER NUMBERED TWO HUNDRED NINE, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Section 1. Article 234 of Executive Order No. 209, the Family Code of the Philippines, is hereby amended to read as follows:

"Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of eighteen years." Section 2. Articles 235 and 237 of the same Code are hereby repealed. Section 3. Article 236 of the same Code is also hereby amended to read as follows: "Art. 236. Emancipation shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exceptions established by existing laws in special cases. "Contracting marriage shall require parental consent until the age of twenty-one. "Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 of the Civil Code." Section 4. Upon the effectivity of this Act, existing wills, bequests, donations, grants, insurance policies and similar instruments containing references and provisions favorable to minors will not retroact to their prejudice. Section 5. This Act shall take effect upon completion of its publication in at least two (2) newspapers of general circulation. Procedure in Actions for Declaration of Nullity Safeguards Against Collusion Family Code Article 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 evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment.

Sin vs Sin FACTS: Florence, the petitioner, was married with Philipp, a Portuguese citizen in January 1987. Florence filed in September 1994, a complaint for the declaration of nullity of their marriage. Trial ensued and the parties presented their respective documentary and testimonial evidence. In June 1995, trial court dismissed Florences petition and throughout its trial, the State did not participate in the proceedings. While Fiscal Jabson filed with the trial court a manifestation dated November 1994 stating that he found no collusion between the parties, he did not actively participated therein. Other than having appearance at certain hearings, nothing more was heard of him. ISSUE: Whether the declaration of nullity may be declared even with the absence of the participation of the State in the proceedings. HELD: Article 48 of the Family Code states that 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 evidence is not fabricated or suppressed. The trial court should have ordered the prosecuting attorney or fiscal and the Solicitor-General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification briefly stating his reasons for his agreement or opposition as the case may be, to the petition. The records are bereft of an evidence that the State participated in the prosecution of the case thus, the case is remanded for proper trial. Ancheta vs Ancheta FACTS: Petitioner Marietta Ancheta and respondent Rodolfo Ancheta were married on March 5, 1959 and had eight children. After 33 years of marriage the petitioner left the respondent and their children. Their conjugal properties were later separated through a court-sanctioned compromise agreement where the petitioner got among others a resort in Cavite. When the husband wanted to

marry again, he filed before the Regional Trial Court a petition for the declaration of nullity of his marriage with the petitioner on the ground of psychological incapacity on June 5, 1995. Although he knew that the petitioner was already residing at the resort in Cavite, he alleged in his petition that the petitioner was residing at Las Pias, Metro Manila, such that summons never reached her. Nevertheless substituted service was rendered to their son at his residence in Cavite. Petitioner was then declared in default for failing to answer the said petition. Just over a month after it was filed, the trial court granted the petition and declared the marriage of the parties void ab initio. Five years later, petitioner challenged the trial courts order declaring as void ab initio her marriage with respondent Rodolfo, citing extrinsic fraud and lack of jurisdiction over her person, among others. She alleged that the respondent lied on her real address in his petition so she never received summons on the case, hence depriving her of her right to be heard. The Court of Appeals dismissed her petition so she now comes to the Supreme Court for review on certiorari. ISSUE: Whether or not the declaration of nullity of marriage was valid? HELD: NO. The trial court and the public prosecutor defied Article 48 of the Family Code and Rule 18, Section 6 of the 1985 Rules of Court (now Rule 9, Section 3[e] of the 1997 Rules of Civil Procedure). A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion, says the Court. Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the State for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant-spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties. The prosecuting attorney or fiscal may oppose the application for legal

separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated. Here, the trial court immediately received the evidence of the respondent ex-parte and rendered judgment against the petitioner without a whimper of protest from the public prosecutor who even did not challenge the motion to declare petitioner in default. The Supreme Court reiterates: The task of protecting marriage as an inviolable social institution requires vigilant and zealous participation and not mere proforma compliance. The protection of marriage as a sacred institution requires not just the defense of a true and genuine union but the exposure of an invalid one as well. Petition is GRANTED. Salmingo vs Rubica FACTS: The following facts spawned the filing of the administrative complaint at bar, for disbarment against Atty. Rodney K. Rubica (respondent), by herein complainant Ignacio J. Salmingo which he transmitted to the Chief Justice by letter of September 27, 2004. Respondent filed on January 9,2003 before the Regional Trial Court (RTC) of Negros Occidental a complaint for declaration of nullity of his marriage with Liza Jane Estao (Liza Jane). Complainant alleged that the respondent failed to comply with the procedural requirements in the declaration of nullity case which subsequently denied by therespondent. The complainant alleges that in prosecuting the annulment case, respondent deliberately concealed Liza Janes address so that she could not be served with summons, that respondent caused the publication of summons only in a newspaper of local circulation; that respondent did not serve a copy of his petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor; and that he did not cause the registration of the decree of nullity in the Civil Registry. ISSUE: Whether or not respondent failed to comply with the provisions of the Rule on Declaration of Absolute

Nullity of Void Marriages and Annulment of Voidable Marriages which took effect on March15, 2003? HELD: At the time respondent filed his petition for declaration of the nullity of marriage, what applied was the Rules of Court under which he was not required to file his petition in six copies and to serve copies on the Office of the Solicitor General and that of the City or Provincial Prosecutor. Neither was he required to cause the registration and publication of the decree of nullity. Respondent did comply with the procedure in the Rules of Court on service by publication on a respondent whose whereabouts are unknown, which procedure requires only publication in a newspaper of general circulation and in such places and for such time as the court may order, as opposed to a newspaper of general circulation in the Philippines and in such places as the court may order required by the above-quoted Section 6 (1) of the Rule On Declaration Of Absolute Nullity Of Void Marriages And Annulment Of Voidable Marriages. WHEREFORE, the petition is DENIED. The dismissal of the complaint by the Integrated Bar of the Philippines is upheld. AM 02-11-10-SC. March 4, 2003 RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARIAGES AND ANNULMENT OF VOIDABLE MARRIAGES Section 1. Scope - This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of the Philippines. The Rules of Court shall apply suppletorily. Section 2. Petition for declaration of absolute nullity of void marriages. (a) Who may file. - A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (b) Where to file. - The petition shal be filed in the Family Court.

(c) Imprecriptibility ofaction or defense. - An Action or defense for the declaration of absolute nullity of void marriage shall not prescribe. (d) What to allege. - A petition under Article 36 of Family Code shall specially allege the complete facts showing the either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriages at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. Section 3. Petition for annulment of voidable marriages. (a) Who may file. - The following persons may file a petition for annulment of voidable marriage based on any of the grounds under article 45 of the Family Code and within the period herein indicated: (1) The contracting party whose parent, or guardian, or person exercising substitute parental authority did not give his or her consent, within five years after attaining the age of twenty-one unless, after attaining the age of twenty-one, such party freely cohabitated with the other as husband or wife; or the parent, guardian or person having legal charge of the contracting party , at any time before such party has reached the age of twenty-one; (2) The sane spouse who had no knowledge of the other's insanity; or by any relative, guardian, or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during the a lucid interval or after regaining sanity, provided that the petitioner , after coming to reason, has not freely cohabited with the other as husband or wife; (3) The injured party whose consent was obtained by fraud, within five years after the discovery of the fraud, provided that said party, with full knowledge of the facts constituting the fraud, has not freely cohabited with the other as husband or wife; (4) The injured party whose consent was obtained by force, intimidation, or undue influence, within five years from the time the force intimidation, or undue influence disappeared or ceased, provided that the

force, intimidation, or undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other as husband or wife; (5) The injured party where the other spouse is physically incapable of consummating the marriage with the other and such incapability continues and appears to be incurable, within five years after the celebration of marriage; and (6) The injured party where the other party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable, within five years after the celebration of marriage. (b) Where to file. - The petition shall be filed in the Family Court. Section 4. Venue. - The Petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing. Or in the case of nonresident respondent, where he may be found in the Philippines, at the election of the petitioner. Section 5. Contents and form of petition. (1) The petition shall allege the complete facts constituting the cause of action. (2) It shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved. If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, the custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiring urgent action. (3) It must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by the petitioner. No petition may be filed solely by counsel or through an attorney-infact. If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the

Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country. (4) it shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period. Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of the petition. Section 6. Summons. - The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules: (1) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such places as the court may order In addition, a copy of the summons shall be served on the respondent at his last known address by registered mail or any other means the court may deem sufficient. (2) The summons to be published shall be contained in an order of the court with the following data: (a) title of the case; (b) docket number; (c) nature of the petition; (d) principal grounds of the petition and the reliefs prayed for; and (e) a directive for the respondent to answer within thirty days from the last issue of publication. Section 7. Motion to dismiss. - No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer. Section 8. Answer.

(1) The respondent shall file his answer within fifteen days from service of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by the respondent himself and not by counsel or attorney-infact. (2) If the respondent fails to file an answer, the court shall not declare him or her in default. (3) Where no answer is filed or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties. Section 9. Investigation report of public prosecutor. (1) Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any. (2) If the public prosecutor finds that collusion exists, he shall state the on the finding of collusion within ten days from receipt of a copy of a report The court shall set the report for hearing and If convinced that the parties are in collusion, it shall dismiss the petition. (3) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial. Section 10. Social worker. - The court may require a social worker to conduct a case study and submit the corresponding report at least three days before the pretrial. The court may also require a case study at any stage of the case whenever necessary. Section 11. Pre-trial. (1) Pre-trial mandatory. - A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties. (2) Notice of pre-trial.

(a) The notice of pre-trial shall contain: (1) the date of pre-trial conference; and (2) an order directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure the receipt thereof by the adverse party at least three days before the date of pre-trial. (b) The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial. (c) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address. Section 12. Contents of pre-trial brief. The pre-trial brief shall contain the following: (a) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof; (b) A concise statement of their respective claims together with the applicable laws and authorities; (c) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues; (d) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof; (e) The number and names of the witnesses and their respective affidavits; and (f) Such other matters as the court may require.

(a) If the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. (b) If the respondent has filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the nonappearance of the respondent and submit within fifteen days thereafter a report to the court stating whether his non-appearance is due to any collusion between the parties. If there Is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence. Section 14. Pre-trial conference. At the pre-trial conference, the court: (a) May refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law. The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one month. (b) In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other makers as may aid in the prompt disposition of the petition. Section 15. Pre-trial order. (a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall Issue a pre-trial order which shall recite in detail the matters taken up In the conference, the action taken thereon, the amendments allowed on the pleadings, and except as to the ground of declaration of nullity or annulment, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that may be necessary or agreed upon by the parties. (b) Should the action proceed to trial, the order shall contain a recital of the following; (1) Facts undisputed, admitted, and those which need not be proved subject to Section 16 of this Rule;

Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pre-trial under the succeeding paragraphs. Section 13. Effect of failure to appear at the pre-trial.

(2) Factual and legal issues to be litigated; (3) Evidence, including objects and documents, that have been marked and will be presented; (4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and (5) Schedule of the presentation of evidence. (c) The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits. (d) The parlies shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order. The order shall control the trial of the case, unless modified by the court to prevent manifest injustice. (e) The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications. Section 16. Prohibited compromise. - The court-shall not allow compromise on prohibited matters, such as the following: (a) The civil status of persons; (b) The validity of a marriage or of a legal separation; (c) Any ground for legal separation; (d) Future support; (e) The jurisdiction of courts; and (f) Future legitime. Section 17. Trial. (1) The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses. (2) The grounds for declaration of absolute nullity or annulment of marriage must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed. (3) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record

that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the right of a party to privacy; or would be offensive to decency or public morals. (4) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court. Section 18. Memoranda. - The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda. Section 19. Decision. (1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Article 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties. (2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation. (3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal Is filed by any of the parties the public prosecutor, or the Solicitor General.

(4) Upon the finality of the decision, the court shall forthwith issue the corresponding decree if the parties have no properties. If the parties have properties, the court shall observe the procedure prescribed in Section 21 of this Rule. The entry of judgment shall be registered in the Civil Registry where the marriage was recorded and In the Civil Registry where the Family Court'granting the petition for declaration of absolute nullity or annulment of marriage is located. Section 20. Appeal. (1) Pre-condition. - No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment. (2) Notice of appeal. - An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties. Section 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. - Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings. Section 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage." (a) The court shall issue the Decree after; (1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located;

(2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and (3) The delivery of the children's presumptive legitimes in cash, property, or sound securities. (b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition. Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected. Section 23. Registration and publication of the decree; decree as best evidence. (a) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report td the court compliance with this requirement within thirty days from receipt of the copy of the Decree. (b) In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation. (c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children. Section 24. Effect of death of a party; duty of the Family Court or Appellate Court. (a) In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated, without prejudice to the settlement of the estate in proper proceedings in the regular courts. (b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding upon the

parties and their successors in interest in the settlement of the estate in the regular courts. Section 25. Effectlvity. - This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003. Jocson vs Robles On February 4, 1963, Gloria G. Jocson commenced in the Juvenile & Domestic Relations Court an action for the annulment of her marriage to Ricardo R. Robles (Civ. Case No. E-00013), on the ground that it was bigamous. It was alleged in the amended complaint that previous to his marriage to plaintiff on May 27, 1958, defendant Robles had contracted a first marriage with Josefina Fausto, who had instituted a criminal action for Bigamy against the same defendant in the Court of First Instance of Manila (Crim. Case No. 64124). Plaintiff also demanded from the defendant moral and exemplary damages, attorneys' fees, and costs, claiming that during their cohabitation, she was subjected to physical maltreatment by her husband, resulting in the premature birth of their first child, who died three days later. In his answer, defendant also assailed the validity of the marriage. But he charged plaintiffs' parents with having compelled him by force, threat and intimidation, to contract that marriage with her, notwithstanding their knowledge that he is a married man; and that said threat and intimidation allegedly persisted until January, 1963 when he was finally able to get away and live apart from the plaintiff. Thereafter, defendant filed a motion for summary judgment, on the ground that no genuine issue of fact is involved in the case. It was claimed that defendant's contention, that his consent to the marriage was secured by force and intimidation employed upon his person by the relatives of plaintiff, was allegedly supported by the joint affidavit of plaintiff's father and brother, dated October 28, 1963, attached to the motion (pp. 22-32, Record on Appeal). Plaintiff, on the other hand, submitted the case for judgment on the pleadings. On December 23, 1963, defendant's motion for summary judgment was denied, the court ruling that before it can

pass upon plaintiff's prayer for the declaration of nullity of her marriage to defendant, there is necessity for proof that when he contracted marriage with plaintiff, defendant Robles had a previous and subsisting valid marriage. The evidentiary requirement to establish these facts, according to the court, was not met in the motion for summary judgment. Defendant's plea to have his marriage declared as having been brought about by force and intimidation, was also denied, the court finding indications of collusion between the parties in their attempt to secure the nullification of said marriage. Reconsideration of this order, sought by defendant, was denied on January 18, 1964. And, when both parties failed to appear at the scheduled hearing on March 9, 1964, the court directed the dismissal of the action. On April 17, 1964, defendant notified the court below of his intention to appeal to this Court from the abovementioned orders of December 23, 1963, January 18, 1964, and March 9, 1964. The appeal bond and amended record on appeal, dated April 15, 1964, were thereafter approved. It is noted that, as specified in the notice of appeal, defendant is taking exception from the lower court's orders of December 23, 1963, January 18, 1964, and March 9, 1964; however, there is no indication or certification or proof that the filing of the appeal notice, bond and record on appeal on April 17, 1964 were made within the reglementary period, as required by the provisions of Section 6, Revised Rule 41 of the Rules of Court. Thereunder, the record on appeal must contain, not only the full names of all the parties to the proceeding, as well as the pleadings, petitions, motions and orders related to the order or judgment subject of the appeal and which are necessary for the proper understanding of the issue involved therein, but also "such data as will show that the appeal was perfected on time." This requirement, incorporated in the new Rules of Court to enable the appellate courts to determine without protracted inquiry whether an appeal was timely made or not, was held to be jurisdictional, failure to comply with which shall cause 1 the dismissal of the appeal. There is here no showing that the present appeal was perfected within the reglementary period, which datum should have appeared in the record on appeal.

On the merits, we are satisfied that the Court of Domestic Relations correctly denied the motion for summary judgment in view of the first paragraph of Articles 88 and 1011 of the Civil Code of the Philippines, that expressly prohibit the rendition of a decree of annulment of a marriage upon a stipulation of facts or a confession of judgment. The affidavits annexed to the petition for summary judgment practically amount to these methods not countenanced by the Civil Code. FOR THE FOREGOING REASONS, this proceeding is hereby dismissed, conformable to Section (a) of Revised Rule 50 of the Rules of Court, and the judgment appealed from is affirmed. Costs against the appellant. Tolentino vs Villanueva Petitioner prays for the nullification of the order dated July 29, 1963 of the respondent Judge of the Juvenile and Domestic Relations Court of Manila. On April 26, 1962, petitioner Romulo Tolentino filed a suit for annulment of his marriage to private respondent Helen Villanueva, alleging that his consent was obtained through fraud because immediately after the marriage celebration, he discovered that private respondent was pregnant despite the fact that he had no sexual relations with her prior to the marriage ceremony; and that they did not live as husband and wife as immediately after the marriage celebration, Helen Villanueva left his house and her whereabouts remained unknown to him until January, 1962 when he discovered that she is residing in San Francisco, Cebu. Said marriage was solemnized by Quezon City Judge Mariano R. Virtucio on September 28, 1959. Said case was docketed as Civil Case No, 43347 of the Juvenile and Domestic Relations Court of Manila. Despite the fact that she was served with summons and copy of the complaint, Helen failed to file a responsive pleading, for which reason petitioner filed on June 13, 1962 a motion to declare her in default and to set the date for the presentation of his evidence. In an order dated June 28, 1962, respondent Judge declared private respondent in default, but, pursuant to the provision of Articles 88 and 101 of the Civil Code of the Philippines, referred the case to the City Fiscal of Manila for investigation to determine whether collusion

exists between the parties, directing the City Fiscal to submit his report within sixty (60) days from receipt thereof, and, in the event of a negative finding, to represent the State at the trial of the case to prevent fabrication of evidence; and likewise directed herein petitioner to furnish the City Fiscal with copies of the complaint and such other documents necessary for the City Fiscal's information and guidance. On July 3, 1962, thru counsel, petitioner submitted to the City Fiscal only a copy of his complaint. Assistant City Fiscal Rafael A. Jose, assigned to the case, issued a subpoena to petitioner's counsel requiring him to bring petitioner with him as well as copies of other documents in connection with the annulment case on August 27, 1962 at 10:00 A.M. Plaintiff's counsel, in a letter dated August 24, 1962, informed Assistant City Fiscal Jose that he could not comply with the subpoena for it will unnecessarily expose his evidence. In a motion dated and filed on October 29, 1962, petitioner, thru counsel, prayed the respondent Judge to set the date for the reception of his evidence on the ground that the City Fiscal had not submitted a report of his findings despite the lapse of sixty (60) days from July 10, 1962 when he submitted to the City Fiscal a copy of the complaint. On November 6, 1962, respondent Judge denied the aforesaid motion of petitioner unless he submits himself for interrogation by the City Fiscal to enable the latter to report whether or not there is collusion between the parties. In an order dated July 29, 1963, respondent Judge dismissed the complaint in view of the fact that petitioner is not willing to submit himself for interrogation by the City Fiscal pursuant to the provisions of the second paragraph of Article 101 of the New Civil Code. His motions for the reconsideration of the aforesaid order having been denied on July 29, 1963 and on April 11, 1964, petitioner now files his petition to annul said order of July 29, 1963 and to compel the respondent Judge to receive his evidence.

Articles 88 and 101 of the Civil Code of the Philippines expressly prohibit the rendition of a decision in suits for annulment of marriage and legal separation based on a stipulation of facts or by confession of judgment and direct that in case of non-appearance of defendant, the court shall order the prosecuting attorney to inquire whether or not collusion between the parties exists, and if none, said prosecuting attorney shall intervene for the State to prevent fabrication of evidence for the plaintiff. Thus, Articles 88 and 101 state: ART. 88. No judgment annulling a marriage shall be promulgated upon a stipulation of facts or by confession of judgment. In case of non-appearance of the defendant, the provisions of article 101, paragraph 2, shall be observed. 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. Even the 1940 Rules of Court, which preceded the 1950 Civil Code of the Philippines, direct that actions for the annulment of marriage or divorce shall not be decided unless the material facts alleged in the complaint are proved (Sec. 10, Rule 35, 1940 Rules of Court). The same rule is reiterated in Section 1 of Rule 19 of the 1964 Revised Rules, with "legal separation" being substituted for "divorce", obviously because the present Civil Code does not authorize absolute divorce. The prohibition expressed in the aforesaid laws and rules is predicated on the fact that the institutions of marriage and of the family are sacred and therefore are as much the concern of the State as of the spouses; because the State and the public have vital interest in the maintenance and preservation of these social institutions against desecration by collusion between the parties or by fabricated evidence. The prohibition against annulling a marriage based on the stipulation of facts or by confession

of judgment or by non-appearance of the defendant stresses the fact that marriage is more than a mere contract between the parties; and for this reason, when the defendant fails to appear, the law enjoins the court to direct the prosecuting officer to intervene for the State in order to preserve the integrity and sanctity of the marital bonds (De Ocampo vs. Florenciano, 107 Phil. 35, 38-40; Brown vs. Yambao, 102 Phil. 168, 172; Bigornia de Cardenas vs. Cardenas, et al., 98 Phil. 73, 78-79; Roque vs. Encarnacion, et al., 95 Phil. 643, 646). Hence, the inevitable conclusion is that the petition is without merit. WHEREFORE, THE ORDER DATED JULY 29, 1963 IS HEREBY AFFIRMED AND THE PETITION IS HEREBY DISMISSED. WITH COSTS AGAINST PETITIONER. Salcedo Ortanez vs Court of Appeals FACTS: Private respondent Rafael Ortanez filed with the Quezon City RTC a complaint for annulment of marriage with damages against petitioner Teresita Salcedo-Ortanez, on grounds of lack of marriage license and/or psychological incapacity of the petitioner. Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone conversations between petitioner and unidentified persons. Teresita submitted her Objection/Comment to Rafaels oral offer of evidence. However, the trial court admitted all of private respondents offered evidence and later on denied her motion for reconsideration, prompting petitioner to file a petition for certiorari with the CA to assail the admission in evidence of the aforementioned cassette tapes. These tape recordings were made and obtained when private respondent allowed his friends from the military to wire tap his home telephone. CA denied the petition because (1) Tape recordings are not inadmissible per se. They and any other variant thereof can be admitted in evidence for certain purposes, depending on how they are presented and offered and on how the trial judge utilizes them in the interest of truth and fairness and the even handed administration of

justice; and (2) A petition for certiorari is notoriously inappropriate to rectify a supposed error in admitting evidence adduced during trial. The ruling on admissibility is interlocutory; neither does it impinge on jurisdiction. If it is erroneous, the ruling should be questioned in the appeal from the judgment on the merits and not through the special civil action of certiorari. The error, assuming gratuitously that it exists, cannot be anymore than an error of law, properly correctible by appeal and not by certiorari. Petitioner then filed the present petition for review under Rule 45 of the Rules of Court. ISSUES: W/N the recordings of the telephone conversations are admissible in evidence W/N the remedy of certiorari under Rule 65 of the Rules of Court was properly availed of by the petitioner in the Court of Appeals HELD: 1. No. Rep. Act No. 4200 entitled An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communication, and for other purposes expressly makes such tape recordings inadmissible in evidence thus: Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkietalkie or tape-recorder, or however otherwise described. Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the

inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200. 2. Yes and no. The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a trial court. The proper remedy in such cases is an ordinary appeal from an adverse judgment, incorporating in said appeal the grounds for assailing the interlocutory order. However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of redress. EFFECTS OF PENDENCY OF ACTION FOR DECLARATION OF NULLITY Family Code Article 49: During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent. Family Code Article 213: In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. EFFECTS OF FINAL JUDGMENT IN DECLARING NULLITY In General Family Code Articles 50-54: Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129. Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian or the trustee of their property may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (n) Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n) Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void.chan robles virtual law library Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be

considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. Family Code Article 147: When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the coownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. Family Code Article 148: In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.

On Remarriage Family Code Article 40 Wiegel vs Sempio-Dy In an action (Family Case No. 483) filed before the erstwhile Juvenile and Domestic Relations Court of Caloocan City, herein respondent Karl Heinz Wiegel (plaintiff therein) asked for the declaration of Nullity of his marriage (celebrated on July, 1978 at the Holy Catholic Apostolic Christian Church Branch in Makati, Metro Manila) with herein petitioner Lilia Oliva Wiegel (Lilia, for short, and defendant therein) on the ground of Lilia's previous existing marriage to one Eduardo A. Maxion, the ceremony having been performed on June 25, 1972 at our Lady of Lourdes Church in Quezon City. Lilia, while admitting the existence of said prior subsisting marriage claimed that said marriage was null and void, she and the first husband Eduardo A. Maxion having been allegedly forced to enter said marital union. In the pre-trial that ensued, the issue agreed upon by both parties was the status of the first marriage (assuming the presence of force exerted against both parties): was said prior marriage void or was it merely voidable? Contesting the validity of the pre-trial order, Lilia asked the respondent court for an opportunity to present evidence(1) that the first marriage was vitiated by force exercised upon both her and the first husband; and (2) that the first husband was at the time of the marriage in 1972 already married to someone else. Respondent judge ruled against the presentation of evidence because the existence of force exerted on both parties of the first marriage had already been agreed upon. Hence, the present petition for certiorari assailing the following Orders of therespondent Judge(1) the Order dated March 17, 1980 in which the parties were compelled to submit the case for resolution based on "agreed facts;" and (2) the Order dated April 14, 1980, denying petitioner's motion to allow her to present evidence in her favor. We find the petition devoid of merit.

There is no need for petitioner to prove that her first marriage was vitiated by force committed against both parties because assuming this to be so, the marriage will not be void but merely viodable (Art. 85, Civil Code), and therefore valid until annulled. Since no annulment has yet been made, it is clear that when she married respondent she was still validly married to her first husband, consequently, her marriage to respondent is VOID (Art. 80, Civil Code). 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 1 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); accordingly, the marriage of petitioner and respondent would be regarded VOID under the law. WHEREFORE, this petition is hereby DISMISSED, for lack of merit, and the Orders complained of are hereby AFFIRMED. Costs against petitioner. SO ORDERED. Domingo vs Court of Appeals FACTS: Soledad Domingo, married with Roberto Domingo in 1976, filed a petition for the declaration of nullity of marriage and separation of property. She did not know that Domingo had been previously married to Emerlinda dela Paz in 1969. She came to know the previous marriage when the latter filed a suit of bigamy against her. Furthermore, when she came home from Saudi during her one-month leave from work, she discovered that Roberto cohabited with another woman and had been disposing some of her properties which is administered by Roberto. The latter claims that because their marriage was void ab initio, the declaration of such voidance is unnecessary and superfluous. On the other hand, Soledad insists the declaration of the nullity of marriage not for the purpose of remarriage, but in order to provide a basis for the separation and distribution of properties acquired during the marriage.

ISSUE: Whether or not a petition for judicial declaration should only be filed for purposes of remarriage. HELD: The declaration of the nullity of marriage is indeed required for purposed of remarriage. However, it is also necessary for the protection of the subsequent spouse who believed in good faith that his or her partner was not lawfully married marries the same. With this, the said person is freed from being charged with bigamy. When a marriage is declared void ab initio, law states that final judgment shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. Soledads prayer for separation of property will simply be the necessary consequence of the judicial declaration of absolute nullity of their marriage. Hence, the petitioners suggestion that for their properties be separated, an ordinary civil action has to be instituted for that purpose is baseless. The Family Code has clearly provided the effects of the declaration of nullity of marriage, one of which is the separation of property according to the regime of property relations governing them. Cario vs Cario FACTS: SPO4 Santiago CArio married petitioner Susan Nicdao on June 20, 1969, with whom he had two children, Sahlee and Sandee. On November 10, 1982, SPO4 Cario also married respondent Susan Yee. In 1988, SPO4 Cario became bedridden due to diabetes and tuberculosis, and died on November 23, 1992, under the care of Susan Yee who spent for his medical and burial expenses. Both Susans filed claims for monetary benefits and financial assistance from various government agencies pertaining to the deceased. Nicdao was able to collect P146,000 from MBAI, PCCVI, commutation, NAPOLCOM and Pagibig, while Yee received a total of P21,000 from GSIS burial and SSS burial insurance. On December 14, 1993, Yee filed for collection of money against NIcdao, praying that Nicdao be ordered to return to her at least one-half of the P146,000 NIcdao had

collected. For failing to file her answer, Nicdao was declared in default. Yee admitted that her marriage to the deceased took place during the subsistence of and without first obtaining a judicial declaration of nullity of the marriage between Nicdao and Cario. But she claimed good faith, having no knowledge of the previous marriage until at the funeral where she met Nicdao who introduced herself as the wife of the deceased. Yee submitted that Carios marriage to Nicdao was void because it was solemnized without the required marriage license. ISSUES: 1. Whether or not the subsequent marriage is null and void; 2. Whether or not, if yes to above, the wife of the deceased is entitled to collect the death benefits from government agencies despite the nullity of their marriage. HELD: Under Article 40 of the Family Code, the nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such marriage void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous marriage void. However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. Under the Civil Code which was the law in force when the marriage of petitioner and the deceased was solemnized in 1969, a valid marriage license is a requisite of marriage, and the absence therof, subject to certain exceptions, renders the marriage void ab initio. It does not follow, however, that since the marriage of Nicdao and the deceased was void ab initio, the death

benefits would now be awarded to Yee. To reiterate, under Article 40 of the Family Code, for purposes of remarriage, there must be a prior judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage; otherwise, the second marriage would also be void. One of the effects of the declaration of nullity of marriage is the separation of the property. Bobis vs Bobis FACTS: Respondent was married to the petitioner on January 25, 1996. Unknown to the petitioner, her other half has contracted his first marriage with a Maria Dulce B. Javier on October 21, 1985 and has not been nullified. The respondent once again entered into marriage with a certain Julia Sally Hernandez. A case of bigamy was filed against the respondent on the Quezon City Regional Trial Court, consequently he initiated a civil action for the judicial declaration of his first marriage on the ground that it was celebrated without a license. Respondent has filed a motion to suspend the trial and has been granted. Petitioner filed for a motion for reconsideration but has been denied. ISSUE: Whether or not the subsequent declaration of nullity of a previous marriage constitutes a question to a criminal case for bigamy RULING: No, respondents subsequent declaration of nullity of a previous marriage constitutes a question to a criminal case for bigamy. During the time when he contracted his second marriage, he was considered already considered as a married man even if it was a marriage without a marriage license. Article 40 of the Family Code, which has already been promulgateSd on his second marriage, requires a prior judicial declaration of nullity of a previous marriage before the respondent could have married for the second time. Whether or not the first marriage was void for lack of a license is a matter of defense because there is still no declaration of its nullity at the time the second marriage was contracted. It is not for the parties, especially the accused to determine if his first marriage was null or void, but of a court. The respondents clear intent is to obtain a judicial declaration

of nullity of his first marriage in order to escape the bigamy charge by simply claiming that the first marriage is void and that the subsequent marriage is also void due to the absence of judicial declaration of nullity of the first. Thus, the decision in the civil action has been reversed and may proceed with the criminal case. Mercado vs Tan FACTS: Dr. Vicent Mercado was previously married with Thelma Oliva in 1976 before he contracted marriage with Consuelo Tan in 1991 which the latter claims she did not know. Tan filed bigamy against Mercado and after a month the latter filed an action for declaration of nullity of marriage against Oliva. The decision in 1993 declared marriage between Mercado and Oliva null and void. ISSUE: Whether Mercado committed bigamy in spite of filing the declaration of nullity of the former marriage. HELD: 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. In the case at bar, Mercado only filed the declaration of nullity of his marriage with Oliva right after Tan filed bigamy case. Hence, by then, the crime had already been consummated. He contracted second marriage without the judicial declaration of the nullity. The fact that the first marriage is void from the beginning is not a defense in a bigamy charge. Ty vs Court of Appeals FACTS: Private respondent, Edgardo Reyes, was married with Anna Villanueva in a civil ceremony in March 1977 in Manila and subsequently had a church wedding in August 1977. Both weddings were declared null and void ab initio for lack of marriage license and consent of the parties. Even before the decree nullifying the marriage was issued, Reyes wed Ofelia Ty herein petitioner on

April 1979 and had their church wedding in Makati on April 1982. The decree was only issued in August 1980. In January 1991, Reyes filed with RTC a complaint to have his marriage with petitioner be declared null and void. AC ruled that a judicial declaration of nullity of the prior marriage with Anna must first be secured before a subsequent marriage could be validly contracted. However, SC found that the provisions of the Family Code cannot be retroactively applied to the present case for doing so would prejudice the vested rights of the petitioner and of her children. ISSUE: Whether or not damages should be awarded to Ofelia Ty. HELD: SC is in the opinion of the lower courts that no damages should be awarded to the wife who sought damages against the husband for filing a baseless complaint causing her mental anguish, anxiety, besmirched reputation, social humiliation and alienation from her parents. Aside from the fact, that petitioner wants her marriage to private respondent held valid and subsisting. She is likewise suing to maintain her status as legitimate wife. To grant her petition for damages would result to a situation where the husband pays the wife damages from conjugal or common funds. To do so, would make the application of the law absurd. Moreover, Philippine laws do not comprehend an action for damages between husband and wife merely because of breach of a marital obligation. Hence, the petition was granted. Marriage between Ty and Reyes is declared valid and subsisting and the award of the amount of P15,000 is ratified and maintained as monthly support to their 2 children for as long as they are of minor age or otherwise legally entitled thereto. Morigo vs People FACTS: Lucio Morigo and Lucia Barrete were boardmates in Bohol. They lost contacts for a while but after receiving a card from Barrete and various exchanges of letters, they became sweethearts. They got married in 1990. Barrete went back to Canada for work and in 1991 she filed petition for divorce in Ontario Canada, which was granted. In 1992, Morigo married Lumbago. He

subsequently filed a complaint for judicial declaration of nullity on the ground that there was no marriage ceremony. Morigo was then charged with bigamy and moved for a suspension of arraignment since the civil case pending posed a prejudicial question in the bigamy case. Morigo pleaded not guilty claiming that his marriage with Barrete was void ab initio. Petitioner contented he contracted second marriage in good faith. ISSUE: Whether Morigo must have filed declaration for the nullity of his marriage with Barrete before his second marriage in order to be free from the bigamy case. HELD: Morigos marriage with Barrete is void ab initio considering that there was no actual marriage ceremony performed between them by a solemnizing officer instead they just merely signed a marriage contract. The petitioner does not need to file declaration of the nullity of his marriage when he contracted his second marriage with Lumbago. Hence, he did not commit bigamy and is acquitted in the case filed. Abunado vs People FACTS: On September 18, 1967, petitioner Salvador married Narcisa Arceo. In 1988 Narcisa left for Japan to work but returned to the Philippines in 1992 when she learned that her husband was having an extra-marital affair and has left their home. Narcisa found Salvador in Quezon City cohabiting with Fe Corazon Plato. She also discovered that on January 10, 1989 Salvador contracted a second marriage with Zenaida Bias. On January 19, 1995, an annulment case was filed by Salvador against Narcisa. On May 18, 1995, a case for bigamy was filed by Narcisa against Salvador and Zenaida. On May 18, 2001, the trial court convicted petitioner Salvador Abunado of bigamy. On appeal, the Court of Appeals affirmed with modification the decision of the trial court. ISSUE: Whether or not the petition for annulment is a prejudicial question to the proceedings in the bigamy case. HELD: No. The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the

declaration of nullity, the crime had already been consummated. Petitioners assertion would only delay the prosecution of bigamy cases considering that 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. The outcome of the civil case for annulment of petitioners marriage to Narcisa had no bearing upon the determination of petitioners innocence or guilt in the criminal case for bigamy. 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. A marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is both the first and the second marriage were subsisting before the first marriage was annulled. The petition is denied. Jarillo vs People FACTS: On November 1979, the accused Victoria S. Jarillo,being previously united in lawful marriage with Rafael M. Alocillo in 1974, and without the said marriage having been legally dissolved, contracted a second marriage with Emmanuel Ebora Santos Uy which marriage was only discovered in 1999. nd On the same year, Emmanuel Uy (2 husband) filed against the appellant a civil case for annulment of marriage before the RTC. Parenthetically, Jarillo filed for declaration of nullity of their marriage against Alocillo in 2000. For her defense, petitioner insisted that (1) her marriage to Alocillo was null and void because Alocillo was allegedly still married to a certain Loretta Tillman at the time of the celebration of their marriage; (2) her marriages to both Alocillo and Uy were null and void for lack of a valid marriage license; and (3) the action had prescribed, since Uy knew about her marriage to Alocillo as far back as 1978. Notwithstanding her defenses, the RTC found Jarillo guilty for the crime of bigamy in 2001 and was sentenced to suffer imprisonment of six years to ten years of prision mayor. On appeal to the CA, petitioners conviction was affirmed. It held that petitionercommitted bigamy when she contracted marriage with Emmanuel Santos Uy

because, at that time, her marriage to Rafael Alocillo had not yet been declared null and void by the court. This being so, the presumption is, her previous marriage to Alocillo was still existing at the time of her marriage to Uy. The CA also struck down, for lack of sufficient evidence, petitioners contentions that her marriages were celebrated without a marriage license, and that Uy had notice of her previous marriage as far back as 1978. In the meantime, the RTC rendered a decision in 2003, declaring petitioners 1974 marriage to Alocillo null and void ab initio on the ground of Alocillos psychological incapacity. Said decision became final and executory. In her motion for reconsideration, petitioner invoked said declaration of nullity as a ground for the reversal of her conviction. ISSUE: W/N CA committed a reversible error in affirming the conviction of Jarillo for the crime of bigamy despite the supervening proof that her marriage to Alocillo had been declared void. HELD: No. Jarillos conviction of the crime of bigamy must be affirmed. The subsequent judicial declaration of nullity of her marriage to Alocillo cannot be considered a valid defense in the crime of bigamy. The moment petitioner contracted a second marriage without the previous one having been judicially declared null and void, the crime of bigamy was already consummated. Under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. The outcome of the civil case for annulment of petitioners marriage to [private complainant] had no bearing upon the determination of petitioners 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. Without a judicial declaration of nullity of the first marriage, it is presumed to be subsisting. Any decision in the civil action for nullity would not erase the fact that the guilty party entered into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question.

Antone vs Beronilla FACTS: Myrna Antone alleged in her Affidavit-Complaint,filed in March 2007, that she and Leo were married in 1978. However, Leo contracted a second marriage with Cecile Maguillo in 1991. The prosecution filed the Information in the Regional Trial Court (RTC) in a criminal case of Bigamy. Pending the setting of the case for arraignment, Leo moved to quash the Information on the ground that the facts charged do not constitute an offense because his marriage with Myrna was declared null and void as of April 2007 and became final and executory on May 2007. Leo argues that since the marriage had been declared null and void from the beginning, there was actually no first marriage to speak of. Thus, absent the first marriage, the facts alleged in the Information do not constitute the crime of bigamy. The prosecution argued that the marriage of Myrna and Leo on 1978 was not severed prior to his second marriage on 1991, for which bigamy has already been committed before the court declared the first marriage null and void on 2007. The RTC sustained the motion to quash relying on Morigo v. People. Similarly, the Court of Appeals dismissed the petition for certiorari. ISSUE: Whether a subsequent declaration of nullity of the first marriage only aftercontracting the subsequent marriage is immaterial in the crime of bigamy. HELD: Yes. Article 40 of the Family Code has reversed the previous ruling of People v. Mendoza (under the Civil Code) declaring that: (a) a case for bigamy based on a void ab initio marriage will not prosper because there is no need fora judicial decree to establish that a void ab initio marriage is invalid; and (b) a marriage declared void ab initio has retroactive legal effect such that there would be no first valid marriage to speak of after all, which renders the elements of bigamy complete. In fact, this was exhaustively discussed in Mercado v. Tan. It stated that, under the Family Code a subsequent judicial declaration of the nullity of the first marriage is immaterial in a bigamy case because, by then the crime had already been consummated. Otherwise stated, a

person who contracts a subsequent marriage absent a prior judicial declaration of nullity of a previous marriage is guilty of bigamy. While, Morigo v. People was promulgated after Mercado, the facts are different. InMercado, the first marriage was actually solemnized, although later declared voidab initio. While in Mendoza, no marriage ceremony was performed by a duly authorized solemnizing officer, because what occurred was a mere signing of amarriage contract through a private act. Thus, there is no need to secure a judicial declaration of nullity before Morigo can contract a subsequent marriage. Theruling of Morigo is not applicable to this case. On the Property Regime of Marriage Family Code Article 50: The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129. Family Code Article 43: The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate; (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; (3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. Family Code Article 102: Upon dissolution of the absolute community regime, the following procedure shall apply: (1) An inventory shall be prepared, listing separately all the properties of the absolute community and the exclusive properties of each spouse. (2) The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94. (3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (4) The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share provided in this Code. For purpose of computing the net profits subject to forfeiture in accordance with Articles 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. (5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51. (6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there in no such majority, the court shall decide, taking into consideration the best interests of said children. [Compare with Property Regimes of Unions Without Marriage Family Code Article 147: When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the coownership shall be forfeited in favor of their common

children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. Family Code Article 148: In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith. ] Valdes vs QC-RTC

Gomez sought a clarification of that portion in the decision regarding the procedure for the liquidation of common property in unions without marriage. During the hearing on the motion, the children filed a joint affidavit expressing desire to stay with their father. ISSUE: Whether or not the property regime should be based on co-ownership. Arguments: Petitioner: Petitioner argues that: (1) Article 147 of the Family Code does not apply to cases where the parties are psychological incapacitated, (2) Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code govern the disposition of the family dwelling in cases where a marriage is declared void ab initio, including a marriage declared void by reason of the psychological incapacity of the spouses (3) Assuming arguendo that Article 147 applies to marriages declared void ab initio on the ground of the psychological incapacity of a spouse, the same may be read consistently with Article 129, (4) It is necessary to determine the parent with whom majority of the children wish to stay. Respondent: Consuelo Gomez sought a clarification of that portion of the decision directing compliance with Articles 50, 51 and 52 of the Family Code. She asserted that the Family Code contained no provisions on the procedure for the liquidation of common property in "unions without marriage." HELD: The Supreme Court ruled that in a void marriage, regardless of the cause thereof, the property relations of the parties are governed by the rules on co-ownership (Art 147 Family Code). Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall be considered as having contributed thereto jointly if said partys efforts consisted in the care and maintenance of the family.

FACTS: Antonio Valdez and Consuelo Gomez were married January 5, 1971. Begotten during the marriage were five children. In a petition, dated June 22, 1992, Valdez sought the declaration of nullity of marriage pursuant to Article 36 of the Family Code. The trial court granted the petition, thereby declaring their marriage null and void on the ground of mutual psychological incapacity. Stella and Joaquin were placed in the custody of their mother and the older children chose which parent they want to stay with. The petitioner and respondent are also directed to start proceedings in the liquidation of their property as defined by Article 147 of the Family Code and to comply to Articles 50, 51 and 52 of the same code.

Sales vs Sales The present controversy stemmed from Civil Case No. Q94-19236 filed by Marywin Albano Sales against her husband, Mayor Reynolan T. Sales, for the dissolution of the conjugal partnership and separation of properties, and Civil Case No. Q-97-32303 filed by Mayor Reynolan T. Sales for the declaration of nullity of their marriage. The two cases were consolidated and tried jointly. On January 4, 2000, the RTC rendered [5] judgment declaring the marriage of Marywin and Reynolan void on the ground of mutual psychological incapacity. It also ordered the dissolution of their conjugal partnership. The fallo of the decision reads: WHEREFORE, judgment is hereby rendered as follows: 1) The marriage between plaintiff/defendant Reynolan Sales and defendant/plaintiff Marywin Albano Sales is hereby declared void ab initio on the ground of mutual psychological incapacity of the parties pursuant to Article 36 of the Family Code; 2) The parties Reynolan Sales and Marywin Albano Sales are hereby directed to liquidate, partition and distribute their common property as defined in Article 147 of the Family Code within sixty (60) days from receipt of this decision, and to comply with the provisions of Articles 50, 51 and 52 of the Family Code insofar as they may be applicable; 3) Reynolan Sales and Marywin Sales shall share in the expenses for the support and education of their only child Maindryann Sales in proportion with their respective resources. On June 16, 2003, after the decision became final, Marywin filed a motion for execution and a manifestation listing her assets with Reynolan for the purpose of having them partitioned. Reynolan opposed the motion arguing that the RTC Decision had ordered the distribution of their common properties without specifying what they were. He also claimed that Marywin has no share in the properties she specified because said properties were the fruits solely of his industry. He added that their property relations should not be governed by the rules of coownership because they did not live together as husband

and wife. He also alleged that Marywin appropriated the rentals of his properties and even disposed one of them [7] without his consent, in violation of Article 147 of the Family Code. Accordingly, he prayed for the deferral of the resolution of the motion for execution, maintaining that no partition of properties can be had until after all the matters he raised are resolved after due notice and hearing. On November 24, 2003, Marywin filed a reiterative motion for execution to implement the decision and to [8] order partition of their common properties. She brought to the attention of the court the 12 units of townhouses at Xavierville Subdivision, Quezon City, four units of which were sold, leaving eight units for disposition between her and Reynolan. She proposed to give out two units to their son Maindryann and equally divide the remaining six units between her and Reynolan. She also alleged that she tried to obtain Reynolans approval on the proposed partition of properties, but to no avail. On November 28, 2003, the reiterative motion was heard in the absence of Reynolan and his counsel. On the same date, the RTC issued an order approving the proposed project of partition since the proposal appears to be reasonable and there has been no opposition or appearance from Reynolan despite several resetting of hearings. Consequently, the branch clerk of court was ordered to execute the necessary deeds of conveyance to distribute the eight townhouse units in accordance with the motion. On December 16, 2003, Reynolan moved to reconsider. In his motion, he alleged that the sudden grant of Marywins reiterative motion preempted the issues he previously raised, i.e., the alleged fraudulent sale and non-accounting of rentals of the townhouses, and whether their property relations is governed by the rules on co-ownership. Marywin opposed Reynolans motion and argued that the issues of alleged fraudulent sale and non-accounting of rentals were already waived by Reynolan when he failed to set them up as compulsory counterclaims in the case. She also contends that the court has ordered the liquidation and distribution of their common property; thus, the question on their property relations was already

a resolved issue. Reynolan replied that the reiterative motion was itself superfluous because the RTC had ordered the reception of evidence in its September 3, 2003 Order. On April 12, 2004, the RTC denied Reynolans motion for reconsideration. It ruled that reception of evidence is no longer necessary because the parties were legally married prior to its nullification and the fact that they begot a son whom they raised together proved that their connubial relations were more than merely transient. Aggrieved, Reynolan appealed to the Court of Appeals claiming that the RTC hastily and improvidently granted the reiterative motion without regard to its previous order calling for the reception of evidence before ordering the partition of their properties. In a Decision dated July 26, 2006, the Court of Appeals ruled in favor of Reynolan. The Court of Appeals held that the RTCs recall of its previous order for further reception of evidence deprives and violates Reynolans constitutional right to property. While the RTC is not prohibited from setting aside an interlocutory order, the Court of Appeals said that due process must still be observed. The Court of Appeals further held that the reiterative motion was an ingenious strategy to circumvent the September 3, 2003 Order of the RTC. It stated that there was nothing in the reiterative motion that calls for the review of the previous RTC order calling for further reception of evidence. Thus, when the RTC treated the reiterative motion as a motion for reconsideration when it was not such a motion, it had unwittingly denied Reynolan of his right to be heard which emanated from the RTCs September 3, 2003 Order. Accordingly, the Court of Appeals disposed of the case as follows: IN VIEW OF THE FOREGOING, the orders of November 28, 2003 and April 12, 2004 are SET ASIDE, and the case is remanded to the lower court for a hearing in accordance with its order of September 3, 2003. [10] SO ORDERED. Stated simply, the issue is: did the Court of Appeals err when it entertained respondents appeal from an order granting the issuance of a writ of execution?

Petitioner contends that the Court of Appeals exceeded its jurisdiction when it decided respondents appeal because [12] under Section 1, Rule 41 of the Rules of Court, no appeal can be taken from an order of execution. She further contends that respondent was not deprived of his right to due process when the RTC approved the project of partition of their common properties without prior hearing because the right to be heard does not only refer to the right to present verbal arguments in court, but also includes the right to be heard through ones pleadings. Respondents right to due process was not violated as he was given sufficient opportunity to submit his written opposition but failed to do so. Respondent counters that the RTC should not have granted the reiterative motion to implement the decision and order the partition of their common properties without prior hearing because its previous order calling for the reception of evidence had long become final and executory. He also posits that no partition can be had without proper accounting and determination of the extent of their common properties. He alleges that: (1) for 10 long years, petitioner had been collecting all the rentals from their townhouse units; (2) she had sold some units without his consent; and (3) she misappropriated the proceeds thereof. After carefully considering the parties contentions and submissions, we reject petitioners claim that the Court of Appeals erred when it entertained respondents appeal assailing the RTC Orders dated November 28, 2003 and April 12, 2004, which had reversed its previous Order dated September 3, 2003 and dispensed with the need for the reception of evidence before ordering the partition and liquidation of the parties common properties. To emphasize, what is being questioned by respondent was not really the January 4, 2000 Decision of the RTC declaring their marriage void ab initio on the ground of mutual psychological incapacity, but the Orders of the trial court dividing their common properties in accordance with the proposed project of partition without the benefit of a hearing. The issue on the validity of their marriage has long been settled in the main decision and may no longer be the subject of review.

The extent of properties due to respondent is not yet discernible without further presentation of evidence on the incidental matters he had previously raised before the RTC. Since the RTC resolved these matters in its Orders dated November 28, 2003 and April 12, 2004, disregarding its previous order calling for the reception of evidence, said orders became final orders as it finally disposes of the issues concerning the partition of the parties common properties. As such, it may be appealed by the aggrieved party to the Court of Appeals via [13] ordinary appeal. WHEREFORE, the Decision dated July 26, 2006 of the Court of Appeals in CA-G.R. CV No. 82869 is hereby AFFIRMED. The instant case is remanded to the lower court for further reception of evidence in accordance with the RTCs Order dated September 3, 2003. No pronouncement as to costs. SO ORDERED. Buenaventura vs Court of Appeals FACTS: Noel Buenaventura filed a position for the declaration of nullity of marriage on the ground that both he and his wife were psychologically incapacitated. The RTC in its decision, declared the marriage entered into between petitioner and respondent null and violation ordered the liquidation of the assets of the conjugal partnership property; ordered petitioner a regular support in favor of his son in the amount of 15,000 monthly, subject to modification as the necessity arises, and awarded the care and custody of the minor to his mother. Petitioner appealed before the CA. While the appeal was pending, the CA, upon respondents motion issued a resolution increasing the support pendants like to P20, 000. The CA dismissal petitioner appeal for lack of merit and affirmed in to the RTC decision. Petitioner motion for reconsideration was denied, hence this petition. ISSUE: Whether or not co-ownership is applicable to valid marriage.

HELD: Since the present case does not involve the annulment of a bigamous marriage, the provisions of article 50 in relation to articles 41, 42 and 43 of the Family Code, providing for the dissolution of the absolute community or conjugal partnership of gains, as the case maybe, do not apply. Rather the general rule applies, which is in case a marriage is declared void ab initio, the property regime applicable to be liquidated, partitioned and distributed is that of equal co-ownership. Since the properties ordered to be distributed by the court a quo were found, both by the RTC and the CA, to have been acquired during the union of the parties, the same would be covered by the co-ownership. No fruits of a separate property of one of the parties appear to have been included or involved in said distribution.