Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M. No. 02-11-11-SC

(c) Attempt of respondent to corrupt or induce the petitioner, a

common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or inducement;

March 4, 2003

RE: PROPOSED RULE ON LEGAL SEPARATION

RE SOLUTION
Acting on the letter of the Chairman of the Committee on Revision of the
Rules of Court submitting for this Court's consideration and approval the Proposed
Rule on Legal Separation, the Court Resolved to APPROVED the same.
The Rule shall take effect on March 15, 2003 following its publication in a
newspaper of general circulation not later than March 7, 2003
March 4, 2003

(d) Final judgment sentencing the respondent to imprisonment of

more than six years, even if pardoned;
(e) Drug addiction or habitual alcoholism of the respondent;
(f) Lesbianism or homosexuality of the respondent;
(g) Contracting by the respondent of a subsequent bigamous
marriage, whether in or outside the Philippines;
(h) Sexual infidelity or perversion of the respondent;
(i) Attempt on the life of petitioner by the respondent; or

Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing,

Sandoval Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr. and
Azcuna, JJ.
Ynares-Santiago, on leave,
Corona, officially on leave.
RULE ON LEGAL SEPARATION
Section 1. Scope. - This Rule shall govern petitions for legal separation under the
Family Code of the Philippines.
The Rules of Court shall apply suppletorily.
Section 2. Petition. - (a) Who may and when to file. - (1) A petition for legal
separation may be filed only by the husband or the wife, as the case may be within
five years from the time of the occurrence of any of the following causes:
(a) Repeated physical violence or grossly abusive conduct directed
against the petitioner, a common child, or a child of the petitioner;

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(b) Physical violence or moral pressure to compel the petitioner to

change religious or political affiliation;

(j) Abandonment of petitioner by respondent without justifiable

cause for more than one year.
(b) Contents and form. - The petition for legal separation shall:
(1) Allege the complete facts constituting the cause of action.
(2) State the names and ages of the common children of the parties,
specify the regime governing their property relations, the
properties involved, and creditors, if any. If there is no adequate
provision in a written agreement between the parties, the petitioner
may apply for a provisional order for spousal support, custody and
support of common children, visitation rights, administration of
community or conjugal property, and other similar matters
requiring urgent action,
(3) Be verified and accompanied by a certification against forum
shopping. The verification and certification must be personally
signed by the petitioner. No petition may be filed solely by counsel
or through an attorney-in-fact. 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 viceconsul or consular agent in said country
(4) Be filed in six copies. The petitioner shall, within five days
from such filing, furnish a copy of the petition to the City or
Provincial Prosecutor and the creditors, if any, and submit to the
court proof of such service within the same period.
Failure to comply with the preceding requirements may be a
ground for immediate dismissal of the petition.
(c) 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 a non-resident
respondent, where he may be found in the Philippines, at the election of the
petitioner.
Section 3. Summons. - The service of summons shall be governed by Rule 14 of the
Rules of Court and by the following rules:
(a) 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 place as the court may
order. In addition, a copy of the summons shall be served on respondent at
his last known address by registered mail or by any other means the court
may deem sufficient.
(b) The summons to be published shall be contained in an order of the court
with the following data; (1) title of the case; (2) docket number; (3) nature
of the petition; (4) principal grounds of the petition and the reliefs prayed
for, and (5) a directive for respondent to answer within thirty days from the
last issue of publication.
Section 4. 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 5. Answer. - (a) The respondent shall file his answer within fifteen days from
receipt 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 respondent
himself and not by counsel or attorney-in-fact.
(b) If the respondent fails to file an answer, the court shall not declare him
in default.
(c) 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 6. Investigation Report of Public Prosecutor. - (a) Within one one month
after receipt of the court order mentioned in paragraph (c) of the preceeding section,
the public prosecutor shall submit a report to the court on whether the parties are in
collusion and serve copies on the parties and their respective counsels, if any.
(b) If the public prosecutor finds that collusion exists, he shall state the basis
thereof in his report. The parties shall file their respective comments on the
finding of collusion within ten days from receipt of copy of the report. The
court shall set the report for hearing and if convinced that parties are in
collusion,-it shall dismiss the petition.
(c) 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 7. Social Worker. - The court may require a social worker to conduct a case
study and to submit the corresponding report at least three days before the pre-trial.
The court may also require a case study at any stage of the case whenever necessary,
Section 8. Pre-trial. (a) 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 on a date not earlier than six months
from date of the filing of the petition.
(b) Notice of Pre-trial.-(1) The notice of pre-trial shall contain:
(a) the date of pre-trial conference; and

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(b) 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.
(2) 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.
(3) 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.

(2) If the respondent filed his answer but fails to appear, the court shall
proceed with the pre-trial and require the public prosecutor to investigate
the non-appearance of the respondent and submit within fifteen days 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 11. Pre-trial conference. - At the pre-trial conference, the court 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.

Section 9. Contents of pre-trial brief. - The pre-trial brief shall contain the following:
(1) A statement of the willingness of the parties to enter into agreements as
may be allowed by law, indicating the desired terms thereof;
(2) A concise statement of their respective claims together with the
applicable laws and authorities;
(3) Admitted facts and proposed stipulations of facts, as well as the disputed
factual and legal issues;
(4) All the evidence to be presented, including expert opinion, if any, briefly
stating or describing the nature and purpose thereof;
(5) The number and names of the witnesses and their respective affidavits;
and
(6) Such other matters as the court may require.
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 section.
Section 10. Effect of failure to appear at the pre-trial. - (1) 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.

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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 matters as may aid in the prompt
disposition of the petition.
Section 12. 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 legal
separation, 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 13 of this Rule;
(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.

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.
(c) The parties 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.
(d) The parties shall have five days from receipt of the pre-trial order to
propose corrections or modifications.
Section 13. Prohibited compromise. - The court shall not allow compromise on
prohibited matters, such as the following:
(1) The civil status of persons;
(2) The validity of a marriage or of a legal separation;

ascertainment of truth; would cause to the party psychological harm or

inability to effectively communicate due to embarrassment, fear, or timidity;
would violate the party's right to privacy; or would be offensive to decency
(d) 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 15. Memoranda. - The court may require the parties and the public
prosecutor to file their respective memoranda in support of their claims within fifteen
days from the date the trial is terminated. 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 16. Decision. - (a) The court shall deny the petition on any of the following
grounds:
(1) The aggrieved party has condoned the offense or act
complained of or has consented to the commission of the offense
or act complained of;

(3) Any ground lor legal separation;

(2) There is connivance in the commission of the offense-or act

constituting the ground for legal separation;

(4) Future support;

(3) Both parties have given ground for legal separation;

(5) The jurisdiction of courts; and

(4) There is collusion between the parties to obtain the decree of

legal separation; or

(6) Future legitime.

Section 14. Trial. - (a) 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.
(b) The grounds for legal separation must be proved. No judgment on the
pleadings, summary judgment, or confession of judgment shall be allowed.
(c) 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 othat
requiring a party to testify in open court would not enhance the

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(5) The action is barred by prescription.

(b) If the court renders a decision granting the petition, it shall declare
therein that the Decree of Legal Separation shall be issued by the court only
after full compliance with liquidation under the Family Code.
However, in the absence of any property of.the parties, the court shall
forthwith issue a Decree of Legal Separation which shall be registered in the
Civil Registry where the marriage was recorded and in the Civil Registry
where the Family Court granting the legal separation is located.
(c) The decision shall likewise declare that:

(1) The spouses are entitled to live separately from each other but
the marriage bond is not severed;

celebrated and in the Civil Registry where the Family Court is

located; and

(2) The obligation of mutual support between the spouses ceases;

and

(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.

(3) The offending spouse is disqualified from inheriting from the

innocent spouse by intestate succession, and provisions in favor of
the offending spouse made in the will of the innocent spouse are
revoked by operation of law.
(d) 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 also be published once in a
newspaper of general circulation.
Section 17. Appeal. (a) 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.
(b) 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 upon the adverse parties.
Section 18. Liquidation, partition and distribution, custody, and support of minor
children. - 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 and support of
common children, under the Family Code unless such matters had been adjudicated
in previous judicial proceedings.
Section 19. Issuance of Decree of Legal Separation. - (a) The court shall issue the
Decree of Legal Separation after:
(1) registration of the entry of judgment granting the petition tor
legal separation in the Civil Registry where the marriage was

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(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.
Section 20. Registration and publication of the Decree of Legal Separation; decree
as best evidence. (a) Registration of decree.-The prevailing party shall cause the registration
of the Decree in the Civil Registry where the marriage was registered, in the
Civil Registry of the place where the Family Court is situated, and in the
National Census and Statistics Office. He shall report to the court
compliance with this requirement within thirty days iron receipt of the copy
of the Decree.
(b) Publication of decree.-- 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) Best evidence.-The registered Decree shall be the best evidence to prove
the legal separation of the parties and shall serve as notice to third persons
concerning the properties of petitioner and respondent.
Section 21. Effect of death of a party; duty of the Family Court or Appellate Court. (a) In case a party dies at any stage of me proceedings before the entry of judgment,
the court shall order the case closed and terminated without prejudice to the
settlement of estate proper proceedings in the regular courts.
(b) If the party dies after the entry of judgment, the same shall be binding
upon the parties and their successors in interest in the settlement of the
estate in the regular courts.
Section 22. Petition for revocation of donations. - (a) Within five (5) years from the
date the decision granting the petition for legal separation has become final, the
innocent spouse may file a petition under oath the same proceeding for legal
separation to revoke the donations in favor of the offending spouse.

(b)The revocation of the donations shall be recorded in the Register of

Deeds of Deeds in the places where the properties are located.
(c)Alienations, liens, and encumbrances registered in good faith. before the
recording of the petition for revocation in the registries of property shall be
respected.
(d)After the issuance of the Decree of Legal Separation, the innocent spouse
may revoke the designation of the offending spouse as a beneficiary in any
insurance policy even if such designation be stipulated as irrevocable. The
revocation or change shall take effect upon written notification thereof to
the insurer.
Section 23. Decree of Reconciliation. - (a) If the spouses had reconciled, a joint
manifestation under oath, duly signed by the spouses, may be filed in the same
proceeding for legal separation.
(b) If the reconciliation occurred while the proceeding for legal separation is
pending, the court shall immediately issue an order terminating the
proceeding.
(c) If the reconciliation occurred after the rendition of the judgment granting
the petition for legal separation but before the issuance of the Decree, the
spouses shall express in their manifestation whether or not they agree to
revive the former regime of their property relations or choose a new regime.
The court shall immediately issue a Decree of Reconciliation
declaring that the legal separation proceeding is set aside and specifying the
regime of property relations under which the spouses shall be covered.
(d) If the spouses reconciled after the issuance of the Decree, the court,
upon proper motion, shall issue a decree of reconciliation declaring therein
that the Decree is set aside but the separation of property and any forfeiture
of the share of the guilty spouse already effected subsists, unless the spouses
have agreed to revive their former regime of property relations or adopt a
new regime.
(e) In case of paragraphs (b), (c), and (d). if the reconciled spouses choose
to adopt a regime of property relations different from that which they had
prior to the filing of the petition for legal separation, the spouses shall
comply with Section 24 hereof.

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(f) The decree of reconciliation shall be recorded in the Civil Registries

where the marriage and the Decree had been registered.
Section 24. Revival of property regime or adoption of another. (a) In case of reconciliation under Section 23, paragraph (c) above, the
parties shall file a verified motion for revival of regime of property relations
or the adoption of another regime of property relations in the same
proceeding for legal separation attaching to said motion their agreement for
the approval of the court.
(b) The agreement which shall be verified shall specify the following:
(1) The properties to be contributed to the restored or new regime;
(2) Those to be retained as separate properties of each spouse; and
(3) The names of all their known creditors, their addresses, and the
amounts owing to each.
(c) The creditors shall be furnished with copies of the motion and the
agreement.
(d) The court shall require the spouses to cause the publication of their
verified motion for two consecutive weeks in a newspaper of general
circulation.
(e) After due hearing, and the court decides to grant the motion, it shall
issue an order directing the parties to record the order in the proper
registries of property within thirty days from receipt of a copy of the order
and submit proof of compliance within the same period.
Section 25. Effectivity. - This Rule shall take effect on March 15,2003 following its
publication in a newspaper of general circulation not later than March 7, 2003.

The Respondent in his own behalf.

Office of the Solicitor-General Hilado for the Government.
MALCOLM, J.:
These proceedings looking to the disbarment of the respondent attorney are before us
on the representations of the Solicitor-General that the respondent appear and show
cause, if any he has, why he should not be proceeded against for professional
malpractice. The respondent admits that, in his capacity as notary public he legalized
the document which is the basis of the complaint against him, and that the document
contains provisions contrary to law, morals and good customs, but by way of defense
disclaims any previous knowledge of the illegal character of the document.
On November 25, 1931, Alejandro Pabro and Juana Mappala husband and wife,
subscribed a contract before the notary public Elias Borromeo, who was at that time
a regularly admitted member of the Philippine Bar. The contract in question had been
prepared by the municipal secretary of Naguilian, Isabela. Attorney Borromeo
cooperated in the execution of the document and had, at lease, some knowledge of its
contents, although he may not have been fully informed because of a difference in
dialect. The contract in substance purported to formulate an agreement between the
husband and the wife which permitted the husband to take unto himself a concubine
and the wife to live in adulterous relationship with another man, without opposition
from either one of them.
Two questions are suggested by the record. The first concerns the points of whether
or not the contract sanctioned an illicit and immoral purpose. The second concerns
the point, on the supposition that the contract did sanction an illicit and immoral
purpose, of whether a lawyer may be disciplined for misconduct as a notary public.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
Panganiban

September 9, 1933

JOSE R. PAGANIBAN, complainant,

vs.
ELIAS BORROMEO, respondent.

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The contract of the spouses, it will be recalled, was executed at a time when the
Spanish Penal Code, as modified by Act No. 1773 was in force. Conceding, however,
that the more liberal provisions of the Revised Penal Code should be given
application, it is herein provided that the consent or pardon given by the offended
party constitutes a bar to prosecution for adultery or concubinage. In this instance, if
the spouses should retain their present frame of mind, no prosecution of either one by
the other could be expected. Nevertheless, we think it far from the purpose of the
Legislature to legalize adultery and concubinage. They still remain crimes, with the
qualification that prosecution cannot be instituted if the offended party consent to the
act or pardon the offender. This is a matter of future contingency and is not matter for
legalization in wanton disregard of good morals. We hold the contract to contain
provisions contrary to law, morals and public order, and as a consequence not
judicially recognizable.

Passing to the second question, we think there can be no question as to the right of
the court to discipline an attorney who, in his capacity as notary public, has been
guilty of misconduct. To the office of notary public there is not attached such
importance under present conditions as under the Spanish administration. Even so,
the notary public exercise duties calling for carefulness and faithfulness. It is for the
notary to inform himself of the facts to which he intends to certify, and to take part in
no illegal enterprise. The notary public is usually a person who has been admitted to
the practice of law, and such, in the commingling of his duties as notary and lawyer,
must be held responsible for both. We are led to hold that a member of the bar who
performs an act as a notary public of a disgraceful or immoral character may be held
to account by the court even to the extent of disbarment. (See 2 Thornton on
Attorneys At Law, pp. 1258, 1259; In re Chappell [1909], 115 N.Y.S., 868; In re
Bernard [1912], 136 N.Y.S., 185; In re Arctander [1879], 1 N.W., 43; In re Terrell
[1903], 2 Phil., 266; In re Adriatico [1906], 7 Phil., 173; U.S. vs. Kilayko [1916], 34
Phil., 796; De la Cruz vs. Capinpin and Albea [1918], 38 Phil., 492.)
It now becomes necessary to pronounce sentence. As mitigating circumstances, there
may be taken into consideration (1) that the attorney may not have realized the full
purport of the document to which he took acknowledgment, (2) that no falsification
of facts was attempted, and (3) that the commission of the respondent as a notary
public has been revoked. Accordingly, we are disposed in this case to exercise
clemency and to confine our discipline of the respondent to severe censure. So
ordered.

G.R. No. L-38672 1

October 27, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ALFONSO GUINUCUD and ROSARIO TAGAYUN, defendants-appellants.
Primitivo P. Cammayo for appellants.
Office of the Solicitor-General Hilado for appellee.

BUTTE, J.:
This is an appeal from a decision of the Court of First Instance of Isabela, convicting
the appellants of the crime of adultery. The prosecution was instituted by the
complaint of the husband of Rosario Tagayun, named Ramon Palattao.
Upon arraignment, the accused pleaded not guilty but on the hearing, admitted the
facts alleged in the information but presented evidence to prove that Ramon Palattao
consented to the adultery, which fact, if established, bars any prosecution under
article 344 of the Revised Penal Code. The pertinent paragraphs of said article are as
follows:
ART. 344. Prosecution of all crimes of adultery, concubinage, seduction,
abduction, rape and acts of lasciviousness. The crimes of adultery and
concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse.
The offended party cannot institute criminal prosecution without including
both the guilty parties, if they are both alive, nor, in any case, if he shall
have consented or pardoned the offenders.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

8 | Page

It appears from the evidence in this case that the husband, Ramon Palattao, in April
1930, abandoned and deserted his wife, Rosario Tagayun, then aged 21, and their
child. After that abandonment, Rosario lived with her mother but made repeated
efforts to win back her husband. She went to the justice of the peace of San Pablo,
Mariano Castaeda, who testified that he called Ramon and endeavored to persuade
Ramon to take his wife back, but Ramon refused. Thereafter, at the request of the
mother of Rosario, the barrio lieutenant, Mariano Tumaliuan, took Rosario and her
child to Ramon's house but she was refused admission by the said Ramon.
Thereafter, on July 3, 1930, the husband, Ramon, induced his wife, Rosario, to sign
the document which appears in the record as Exhibit 1. He brought the document in

duplicate to the house of Rosario's mother where both of them signed both copies, he
keeping the original and leaving her the carbon copy. Exhibit 1 is as follows:
COUPLE'S AGREEMENT
We, Ramon Palattao and Rosario Tagayun, man and wife, enter into the
following agreement:
That in view of the fact that, I, Ramon Palattao, the man, cannot stay and
live with the parent of Rosario Tagayun in barrio Lattu; and that in view of
the fact that I, Rosario Tagayun, the woman, cannot live with the parent of
Ramon Palattao in barrio Auitan;
We mutually agree by this present to separate from each other and that
Ramon Palattao can and I gave him the privilege to love or marry another
woman; so also Rosario Tagayun can accept or be married to another man;
We also agree that, as to the baby Leslie who is our child, it is our right to
have him by turn and we are bound to support him jointly;
Finally we state also that each of us has to find his or her means of existence
and neither of us has the right to bother the other as to his or her livelihood;
In witness whereof we sign at barrio Lattu in the municipality of San Pablo,
province of Isabela, this 3rd day of July, 1930.
(Sgd.) ROSARIO TAGAYUN

(Sgd.) RAMON PALATTAO

At the time said Exhibit 1 was signed, Rosario and her child were living with
Rosario's mother and there is no evidence of any misconduct on her part at that time
or that she contemplated any illicit relations with any other man. On the other hand,
we are convinced from the conduct of the husband Ramon that he solicited the
signature of Rosario to said agreement in his own interest and because he desired to
have "the privilege to love or to marry another woman". At the trial of this case, he
denied that the signature in Exhibit 1 was his signature. This was a palpable
falsehood as a comparison with his signatures on other documents in the files plainly
shows. He even had the effrontery to deny his signature to a motion for continuance
which he filed in the justice of the peace court.
He admitted on cross-examination that, for more than a year before he filed the
complaint in this case, he knew that his wife Rosario and her coaccused Alfonso
were living together in the same house. During all that time he took no action

9 | Page

whatever to vindicate the honor or his name or to resent the open offense to the
integrity of his home, doubtless, because he felt bound by the alleged agreement to
give his consent to Rosario's conduct or because he expected her to reciprocate. As
this court stated in the case of People vs. Sensano and Ramos (p. 73, ante), he was
"assuming a mere pose when he signed the complaint as the 'offended spouse," and
his conduct as shown by the evidence in this case warrants the inference that he
consented to, and acquiesced in, the adulterous relations existing between the
accused, and he is, therefore, not authorized by law to institute this criminal
proceeding.
The agreement above referred to (Exhibit 1) is void in law. (Cf. People vs. Tolentino,
G.R. No. 34145, promulgated October 22, 1931.) 2
Whilst the agreement, Exhibit 1, is void in law, it is nevertheless competent evidence
to explain the husband's inaction after he knew of his wife's living with the
coaccused and to show that he acquiesced in her conduct. The expression "if he shall
have consented" in article 344 of the Revised Penal Code, which bars the "offended"
husband from instituting a prosecution, has no reference to any consent or agreement
prior to the commission of the offense but relates to an express or implied
acquiescence subsequent to the offense. This consent or acquiescence need not be
express but may be inferred from the conduct or the long continued inaction of the
husband after learning of the offense. The husband who is truly "offended", within
the meaning of the statute, will not sit passively by and allow his name and the honor
of his family to be flagrantly sullied by the notorious adultery of his wife. Apart from
that, the fact that he abandoned and deserted his wife and child, in spite of all her
efforts to maintain their home intact, shows a callous indifference to every moral
duty imposed upon him as her husband and the father of their child. In this case, the
very thing happened which he might have foreseen and probably did foresee when he
abandoned his wife and deceived her into believing that she was free when she
signed the said agreement a year and a half before the offense was committed. His
consent to the offense before it was committed was void but his tolerance of and
acquiescence in the offense after it was committed demonstrate that it is a
hypocritical pretense for him now to appear in court as the "offended party" and bar
his right to prosecute his wife.1awphil.net
Very apt in this connection are the following paragraphs in Groizard's commentaries
on similar provisions in the Codigo Penal of Spain:

A su vez, transigir un marido con su deshonor, consentir el adulterio y luego

ir a los tribunales querellandose de la mujer y de su complice, es ser dos
veces indigno: la primera, al conocer y no vindicar la ofensa recibida, y la
segunda, haciendola publica, con dao de toda la familia, despues de haber
demostrado que personalmente le afectaba en poco. (Page 48, Groizard's
Codigo Penal, Vol. 5.)
A las limitaciones de que acabamos de hablar, nosotros aadiriamos otra
que encontramos establecida en algunos codigos que en las concordancias
figuran. Fijariamos un plazo, mas o menos largo, para la presentacion de la
querella, pasado el cual, negariamos al marido el derecho de producirla. El
marido que tiene conocimiento de la violacion de la fe conyugal, y deja
pasar cuatro o sees meses sin acudir a los tribunales demandado reparacion
de las injurias, debe suponerse que tacitamente las ha perdonado. Espacio
ha tenido suficiente, cuando la herida chorreaba sangre, para ejercer el
derecho que la ley le daba; si no lo hizo en un termino prudencial, no es
justo que indefinidamente tenga a la mujer bajo la amenaza de un castigo
vergonzoso que cohiba perpetuamente su espiritu, impidiendo su
arrepentimiento y dificultando la conciliacion conyugal, y con ella la paz de
la familia. (Page 49, Groizard's Codigo Penal, Vol. 5.)
The judgment below is reversed with costs de oficio.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 82606 December 18, 1992
PRIMA PARTOSA-JO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE
JO and CONSING), respondents.

CRUZ, J.:
The herein private respondent, Jose Jo, admits to having cohabited with three women
and fathered fifteen children. The first of these women, the herein petitioner, claims
to be his legal wife whom he begot a daughter, Monina Jo. The other women and
their respective offspring are not parties of these case.
In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal
property, docketed as Civil Case No. 51, in addition to an earlier action for support,
also against him and docketed as Civil Case No. 36, in the Regional Trial Court of
Negros Oriental, Branch 35.
The two cases were consolidated and tried jointly. On November 29, 1983, Judge
German G. Lee, Jr. rendered an extensive decision, the dispositive portion of which
read:
WHEREFORE, in view of all the foregoing arguments and
considerations, this court hereby holds that the plaintiff Prima
Partosa was legally married to Jose Jo alias Ho Hang, alias
Consing, and, therefore, is entitled to support as the lawfully
wedded wife and the defendant is hereby ordered to give a monthly
support of P500.00 to the plaintiff Prima Partosa, to be paid on or

10 | P a g e

before the 5th day of every month, and to give to the plaintiff the
amount of P40,000.00 for the construction of the house in
Zamboanguita, Negros Oriental where she may live separately
from the defendant being entitled under the law to separate
maintenance being the innocent spouse and to pay the amount of
P19,200.00 to the plaintiff by way of support in arrears and to pay
the plaintiff the amount of P3,000.00 in the concept of attorney's
fees.
As will be noticed, there was a definite disposition of the complaint for support but
none of the complaint for judicial separation of conjugal property.
Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the
trial court in the complaint for support. 1 The complaint for judicial separation of
conjugal property was dismissed for lack of a cause of action and on the ground that
separation by agreement was not covered by Article 178 of the Civil Code.
When their motions for reconsideration were denied, both parties came to this Court
for relief. The private respondent's petition for review on certiorari was dismissed
for tardiness in our resolution dated February 17, 1988, where we also affirmed the
legality of the marriage between Jose and Prima and the obligation of the former to
support her and her daughter.
This petition deals only with the complaint for judicial separation of conjugal
property.
It is here submitted that the Court of Appeals erred in holding that: a) the judicial
separation of conjugal property sought was not allowed under Articles 175, 178 and
191 of the Civil Code; and b) no such separation was decreed by the trial court in the
dispositive portion of its decision.
The private respondent contends that the decision of the trial court can longer be
reviewed at this time because it has a long since become final and executory. As the
decretal portion clearly made no disposition of Civil Case No. 51, that case should be
considered impliedly dismissed. The petitioner should have called the attention of the
trial court to the omission so that the proper rectification could be made on time. Not
having done so, she is now concluded by the said decision, which can no longer be
corrected at this late hour.
We deal first with the second ground.

11 | P a g e

While admitting that no mention was made of Civil Case No. 51 in the dispositive
portion of the decision of the trial court, the petitioner argues that a disposition of the
case was nonetheless made in the penultimate paragraph of the decision reading as
follows:
It is, therefore, hereby ordered that all properties in question are
considered properties of Jose Jo, the defendant in this case, subject
to separation of property under Article 178, third paragraph of the
Civil Code, which is subject of separate proceedings as enunciated
herein.
The petitioner says she believed this to be disposition enough and so did not feel it
was necessary for her to appeal, particularly since the order embodied in that
paragraph was in her favor. It was only when the respondent court observed that
there was no dispositive portion regarding that case and so ordered its dismissal that
she found it necessary to come to this Court for relief.
The petitioner has a point.
The dispositive portion of the decision in question was incomplete insofar as it
carried no ruling on the complaint for judicial separation of conjugal property
although it was extensively discussed in the body of the decision. The drafting of the
decision was indeed not exactly careful. The petitioner's counsel, noting this, should
have taken immediate steps for the rectification for the omission so that the ruling
expressed in the text of the decision could have been embodied in the decretal
portion. Such alertness could have avoided this litigation on a purely technical issue.
Nevertheless, the technicality invoked in this case should not be allowed to prevail
over considerations of substantive justive. After all, the technical defect is not
insuperable. We have said time and again that where there is an ambiguity caused by
an omission or a mistake in the dispositive portion of the decision, this Court may
clarify such an ambiguity by an amendment even after the judgment have become
final. 2 In doing so, the Court may resort to the pleading filed by the parties and the
findings of fact and the conclusions of law expressed in the text or body of the
decision. 3
The trial court made definite findings on the complaint for judicial separation of
conjugal property, holding that the petitioner and the private respondent were legally
married and that the properties mentioned by the petitioner were acquired by Jo
during their marriage although they were registered in the name of the apparent
dummy.

There is no question therefore that the penultimate paragraph of the decision of the
trial court was a ruling based upon such findings and so should have been embodied
in the dispositive portion. The respondent court should have made the necessary
modification instead of dismissing Civil Case No. 51 and thus upholding mere form
over substance.
In the interest of substantive justice, and to expedite these proceedings, we hereby
make such modification.

The above-quoted provision has been superseded by Article 128 of the Family Code,
which states:
Art. 128. If a spouse without just cause abandons the other or fails
to comply with his or her obligations to the family, the aggrieved
spouse may petition the court for receivership, for judicial
separation of property, of for authority to be the sole administrator
of the conjugal partnership property, subject to such precautionary
conditions as the court may impose.

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

The Court of Appeals dismissed the complaint on the ground that the separation of
the parties was due to their agreement and not because of abondonment. The
respondent court relied mainly on the testimony of the petitioner, who declared under
oath that she left Dumaguete City, where she and Jo were living together "because
that was our agreement." It held that a agreement to live separately without just cause
was void under Article 221 of the Civil Code and could not sustain any claim of
abandonment by the aggrieved spouse. Its conclusion was that the only remedy
availabe to the petitioner was legal separation under Article 175 of the Civil Code, 4
by virtue of which the conjugal partnership of property would be terminated.
The petitioner contends that the respondent court has misinterpreted Articles 175,
178 and 191 of the Civil Code. She submits that the agreement between her and the
private respondent was for her to temporarily live with her parents during the initial
period of her pregnancy and for him to visit and support her. They never agreed to
separate permanently. And even if they did, this arrangement was repudiated and
ended in 1942, when she returned to him at Dumaguete City and he refused to accept
her.
The petitioner invokes Article 178 (3) of the Civil Code, which reads:
Art. 178. The separation in fact between husband and wife without
judicial approval, shall not affect the conjugal partnership, except
that:
xxx xxx xxx
(3) If the husband has abandoned the wife without just cause for at
least one year, she may petition the court for a receivership, or
administration by her of the conjugal partnership property or
separation of property.

12 | P a g e

The obligations to the family mentioned in the preceding paragraph

refer to martial, parental or property relations.
A spouse is deemed to have abondoned the other when he or she
has left the conjugal dwelling without any intention of returning.
The spouse who has left the conjugal dwelling for a period of three
months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal
dwelling.
Under the this provision, the aggrieved spouse may petition for judicial separation on
either of these grounds:
1. Abondonment by a spouse of the other without just cause; and
2. Failure of one spouse to comply with his or her obligations to
the family without just cause, even if she said spouse does not
leave the other spouse.
Abandonment implies a departure by one spouse with the avowed intent never to
return, followed by prolonged absence without just cause, and without in the
meantime providing in the least for one's family although able to do so. 5 There must
be absolute cessation of marital relations, duties and rights, with the intention of
perpetual separation. 6 This idea is clearly expressed in the above-quoted provision,
which states that "a spouse is deemed to have abandoned the other when he or she
has left the conjugal dwelling without any intention of returning."
The record shows that as early as 1942, the private respondent had already rejected
the petitioner, whom he denied admission to their conjugal home in Dumaguete City
when she returned from Zamboanguita. The fact that she was not accepted by Jo
demonstrates all too clearly that he had no intention of resuming their conjugal

relationship. Moreover, beginning 1968 until the determination by this Court of the
action for support in 1988, the private respondent refused to give financial support to
the petitioner. The physical separation of the parties, coupled with the refusal by the
private respondent to give support to the petitioner, sufficed to constitute
abandonment as a ground for the judicial separation of their conjugal property.
In addition, the petitioner may also invoke the second ground allowed by Article 128,
for the fact is that he has failed without just cause to comply with his obligations to
the family as husband or parent. Apart form refusing to admit his lawful wife to their
conjugal home in Dumaguete City, Jo has freely admitted to cohabiting with other
women and siring many children by them. It was his refusal to provide for the
petitioner and their daughter that prompted her to file the actions against him for
support and later for separation of the conjugal property, in which actions,
significantly, he even denied being married to her. The private respondent has not
established any just cause for his refusal to comply with his obligations to his wife as
dutiful husband.
Their separation thus falls also squarely under Article 135 of the Family Code,
providing as follows:
Art. 135. Any of the following shall be considered sufficient cause
for judicial separation of property:

The order of judicial separation of the properties in question is based on the finding
of both the trial and respondent courts that the private respondent is indeed their real
owner. It is these properties that should now be divided between him and the
petitioner, on the assumption that they were acquired during coverture and so belong
to the spouses half and half. As the private respondent is a Chinese citizen, the
division must include such properties properly belonging to the conjugal partnership
as may have been registered in the name of other persons in violation of the AntiDummy Law.
The past has caught up with the private respondent. After his extramarital flings and
a succession of illegitimate children, he must now make an accounting to his lawful
wife of the properties he denied her despite his promise to their of his eternal love
and care.
WHEREFORE, the petition is GRANTED and the assailed decision of the
respondent court is MODIFIED. Civil Case No. 51 is hereby decided in favor the
plaintiff, the petitioner herein, and the conjugal property of the petitioner and the
private respondent is hereby ordered divided between them, share and share alike.
This division shall be implemented by the trial court after determination of all the
properties pertaining to the said conjugal partnership, including those that may have
been illegally registered in the name of the persons.
SO ORDERED.

xxx xxx xxx

Republic of the Philippines
SUPREME COURT
Manila

(6) That at the time of the petition, the spouse have been separated
in fact for at least one year and reconciliation is highly improbable.
The amendments introduced in the Family Code are applicable to the case before us
although they became effective only on August 3, 1988. As we held in Ramirez v.
Court of Appeals: 7
The greater weight of authority is inclined to the view that an
appellate court, in reviewing a judgment on appeal, will dispose of
a question according to the law prevailing at the term of such
disposition, and not according to the law prevailing at the time of
rendition of the appealed judgement. The court will therefore
reverse a judgement which was correct at the time it was originally
rendered where, by statute, there has been an intermediate change
in the law which renders such judgement erroneous at the time the
case was finally disposed of on appeal.

13 | P a g e

EN BANC
G.R. No. L-19565

January 30, 1968

ESTRELLA DE LA CRUZ, plaintiff-appellee,

vs.
SEVERINO DE LA CRUZ, defendant-appellant.
Estacion and Paltriguera for plaintiff-appellee.
Manuel O. Soriano and Pio G. Villoso for defendant-appellant.
CASTRO, J.:

The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of
First Instance of Negros Occidental, alleging in essence that her husband, the
defendant Severino de la Cruz, had not only abandoned her but as well was
mismanaging their conjugal partnership properties, and praying for (1) separation of
property, (2) monthly support of P2,500 during the pendency of the action, and (3)
payment of P20,000 as attorney's fees, and costs.
The court a quo forthwith issued an order allowing the plaintiff the amount prayed
for as alimony pendente lite, which however, upon defendant's motion, was reduced
to P2,000.
On June 1, 1961 the trial court rendered judgment ordering separation and division of
the conjugal assets, and directing the defendant to pay to the plaintiff the sum of
P20,000 as attorney's fees, with legal interest from the date of the original complaint,
that is, from July 22, 1958, until fully paid, plus costs. From this judgment the
defendant appealed to the Court of Appeals, which certified the case to us, "it
appearing that the total value of the conjugal assets is over P500,000".
The basic facts are not controverted. The plaintiff and the defendant were married in
Bacolod City on February 1, 1938. Six children were born to them, namely, Zenia
(1939), Ronnie (1942), Victoria (1944), Jessie 1945), Bella (1946), and Felipe
(1948). During their coverture they acquired seven parcels of land of the Bacolod
Cadastre, all assessed at P45,429, and three parcels of the Silay Cadastre, all assessed
at P43,580. All these parcels are registered in their names. The hacienda in Silay
yielded for the year 1957 a net profit of P3,390.49.
They are also engaged in varied business ventures with fixed assets valued as of
December 31, 1956 at P496,006.92, from which they obtained for that year a net
profit of P75,655.78. The net gain of the Philippine Texboard Factory, the principal
business of the spouses, was P90,454.48 for the year 1957. As of December 31,
1959, the total assets of the various enterprises of the conjugal partnership were
valued at P1,021,407.68, not including those of the Top Service Inc., of which firm
the defendant has been the president since its organization in 1959 in Manila with a
paid-up capital of P50,000, P10,000 of which was contributed by him. This
corporation was the Beverly Hills Subdivision in Antipolo, Rizal, the Golden Acres
Subdivision and the Green Valley Subdivision in Las Pias, Rizal, and a lot and
building located at M. H. del Pilar, Manila purchased for P285,000, an amount
borrowed from the Manufacturer's Bank and Trust Company.
The spouses are indebted to the Philippine National Bank and the Development Bank
of the Philippines for loans obtained, to secure which they mortgaged the Philippine

14 | P a g e

Texboard Factory, the Silay hacienda, their conjugal house, and all their parcels of
land located in Bacolod City.
The essential issues of fact may be gleaned from the nine errors the defendant
imputes to the court a quo, namely,
1. In finding that the only visit, from May 15, 1955 to the rendition of the
decision, made by the defendant to the conjugal abode to see his wife was
on June 15, 1955;
2. In finding that the letter exh. 3 was written by one Nenita Hernandez and
that she and the defendant are living as husband and wife;
3. In finding that since 1951 the relations between the plaintiff and the
defendant were far from cordial, and that it was from 1948 that the former
has been receiving an allowance from the latter;
4. In finding that the defendant has abandoned the plaintiff;
5. In finding that the defendant since 1956 has not discussed with his wife
the business activities of the partnership, and that this silence constituted
"abuse of administration of the conjugal partnerships";
6. In declaring that the defendant mortgaged the conjugal assets without the
knowledge of the plaintiff and thru false pretences to which the latter was
prey;
7. In allowing the plaintiff, on the one hand, to testify on facts not actually
known by her, and, on the other hand, in not allowing the defendant to
establish his special defenses;
8. In ordering separation of the conjugal partnership properties; and
9. In sentencing the defendant to pay to the plaintiff attorney's fees in the
amount of P20,000, with interest at the legal rate.1wph1.t
Two issues of law as well emerge, requiring resolution petition: (1) Did the
separation of the defendant from the plaintiff constitute abandonment in law that
would justify a separation of the conjugal partnership properties? (2) Was the
defendant's failure and/or refusal to inform the plaintiff of the state of their business
enterprises such an abuse of his powers of administration of the conjugal partnership
as to warrant a division of the matrimonial assets?

The plaintiff's evidence may be summarized briefly. The defendant started living in
Manila in 1955, although he occasionally returned to Bacolod City, sleeping in his
office at the Philippine Texboard Factory in Mandalagan, instead of in the conjugal
home at 2nd Street, Bacolod City. Since 1955 the defendant had not slept in the
conjugal dwelling, although in the said year he paid short visits during which they
engaged in brief conversations. After 1955 up to the time of the trial, the defendant
had never visited the conjugal abode, and when he was in Bacolod, she was denied
communication with him. He has abandoned her and their children, to live in Manila
with his concubine, Nenita Hernandez. In 1949 she began to suspect the existence of
illicit relations between her husband and Nenita. This suspicion was confirmed in
1951 when she found an unsigned note in a pocket of one of her husband's polo shirt
which was written by Nenita and in which she asked "Bering" to meet her near the
church. She confronted her husband who forthwith tore the note even as he admitted
his amorous liaison with Nenita. He then allayed her fears by vowing to forsake his
mistress. Subsequently, in November 1951, she found in the iron safe of her husband
a letter, exh. C, also written by Nenita. In this letter the sender (who signed as "D")
apologized for her conduct, and expressed the hope that the addressee ("Darling")
could join her in Baguio as she was alone in the Patria Inn and lonely in "a place for
honeymooners". Immediately after her husband departed for Manila the following
morning, the plaintiff enplaned for Baguio, where she learned that Nenita had
actually stayed at the Patria Inn, but had already left for Manila before her arrival.
Later she met her husband in the house of a relative in Manila from whence they
proceeded to the Avenue Hotel where she again confronted him about Nenita. He
denied having further relations with this woman.
Celia Baez, testifying for the plaintiff, declared that she was employed as a cook in
the home of the spouses from May 15, 1955 to August 15, 1958, and that during the
entire period of her employment she saw the defendant in the place only once. This
declaration is contradicted, however, by the plaintiff herself who testified that in
1955 the defendant "used to have a short visit there," which statement implies more
than one visit.
The defendant, for his part, denied having abandoned his wife and children, but
admitted that in 1957, or a year before the filing of the action, he started to live
separately from his wife. When he transferred his living quarters to his office in
Mandalagan, Bacolod City, his intention was not, as it never has been, to abandon his
wife and children, but only to teach her a lesson as she was quarrelsome and
extremely jealous of every woman. He decided to live apart from his wife
temporarily because at home he could not concentrate on his work as she always
quarreled with him, while in Mandalagan he could pass the nights in peace. Since
1953 he stayed in Manila for some duration of time to manage their expanding
business and look for market outlets for their texboard products. Even the plaintiff
admitted in both her original and amended complaints that "sometime in 1953,

15 | P a g e

because of the expanding business of the herein parties, the defendant established an
office in the City of Manila, wherein some of the goods, effects and merchandise
manufactured or produced in the business enterprises of the parties were sold or
disposed of". From the time he started living separately in Mandalagan up to the
filing of the complaint, the plaintiff herself furnished him food and took care of his
laundry. This latter declaration was not rebutted by the plaintiff.
The defendant, with vehemence, denied that he has abandoned his wife and family,
averring that he has never failed, even for a single month, to give them financial
support, as witnessed by the plaintiff's admission in her original and amended
complaints as well as in open court that during the entire period of their
estrangement, he was giving her around P500 a month for support. In point of fact,
his wife and children continued to draw allowances from his office of a total ranging
from P1,200 to P1,500 a month. He financed the education of their children, two of
whom were studying in Manila at the time of the trial and were not living with the
plaintiff. While in Bacolod City, he never failed to visit his family, particularly the
children. His wife was always in bad need of money because she played mahjong, an
accusation which she did not traverse, explaining that she played mahjong to
entertain herself and forget the infidelities of her husband.
Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated
the testimony of the defendant on the matter of the support the latter gave to his
family, by declaring in court that since the start of his employment in 1950 as
assistant general manager, the plaintiff has been drawing an allowance of P1,000 to
P1,500 monthly, which amount was given personally by the defendant or, in his
absence, by the witness himself.
The defendant denied that he ever maintained a mistress in Manila. He came to know
Nenita Hernandez when she was barely 12 years old, but had lost track of her
thereafter. His constant presence in Manila was required by the pressing demands of
an expanding business. He denied having destroyed the alleged note which the
plaintiff claimed to have come from Nenita, nor having seen, previous to the trial, the
letter exh. C. The allegation of his wife that he had a concubine is based on mere
suspicion. He had always been faithful to his wife, and not for a single instance had
he been caught or surprised by her with another woman.
On the matter of the alleged abuse by the defendant of his powers of administration
of the conjugal partnership, the plaintiff declared that the defendant refused and
failed to inform her of the progress of their various business concerns. Although she
did not allege, much less prove, that her husband had dissipated the conjugal
properties, she averred nevertheless that her husband might squander and dispose of
the conjugal assets in favor of his concubine. Hence, the urgency of separation of
property.

The defendant's answer to the charge of mismanagement is that he has applied his
industry, channeled his ingenuity, and devoted his time, to the management,
maintenance and expansion of their business concerns, even as his wife threw money
away at the mahjong tables. Tangible proof of his endeavors is that from a single
cargo truck which he himself drove at the time of their marriage, he had built up one
business after another, the Speedway Trucking Service, the Negros Shipping Service,
the Bacolod Press, the Philippine Texboard Factory, and miscellaneous other
business enterprises worth over a million pesos; that all that the spouses now own
have been acquired through his diligence, intelligence and industry; that he has
steadily expanded the income and assets of said business enterprises from year to
year, contrary to the allegations of the complainant, as proved by his balance sheet
and profit and loss statements for the year 1958 and 1959 (exhibits 1 and 2); and that
out of the income of their enterprises he had purchased additional equipment and
machineries and has partially paid their indebtedness to the Philippine National Bank
and the Development Bank of the Philippines.
It will be noted that the plaintiff does not ask for legal separation. The evidence
presented by her to prove concubinage on the part of the defendant, while pertinent
and material in the determination of the merits of a petition for legal separation, must
in this case be regarded merely as an attempt to bolster her claim that the defendant
had abandoned her, which abandonment, if it constitutes abandonment in law, would
justify separation of the conjugal assets under the applicable provisions of article 178
of the new Civil Code which read: "The separation in fact between husband and wife
without judicial approval, shall not affect the conjugal partnership, except that . . . if
the husband has abandoned the wife without just cause for at least one year, she may
petition the court for a receivership, or administration by her of the conjugal
partnership property, or separation of property". In addition to abandonment as a
ground, the plaintiff also invokes article 167 of the new Civil Code in support of her
prayer for division of the matrimonial assets. This article provides that "In case of
abuse of powers of administration of the conjugal partnership property by the
husband, the courts, on the petition of the wife, may provide for a receivership, or
administration by the wife, or separation of property". It behooves us, therefore, to
inquire, in the case at bar, whether there has been abandonment, in the legal sense, by
the defendant of the plaintiff, and/or whether the defendant has abused his powers of
administration of the conjugal partnership property, so as to justify the plaintiff's plea
for separation of property.
We have made a searching scrutiny of the record, and it is our considered view that
the defendant is not guilty of abandonment of his wife, nor of such abuse of his
powers of administration of the conjugal partnership, as to warrant division of the
conjugal assets.

16 | P a g e

The extraordinary remedies afforded to the wife by article 178 when she has been
abandoned by the husband for at least one year are the same as those granted to her
by article 167 in case of abuse of the powers of administration by the husband. To
entitle her to any of these remedies, under article 178, there must be real
abandonment, and not mere separation. 1 The abandonment must not only be physical
estrangement but also amount to financial and moral desertion.
Although an all-embracing definition of the term "abandonment " is yet to be spelled
out in explicit words, we nevertheless can determine its meaning from the context of
the Law as well as from its ordinary usage. The concept of abandonment in article
178 may be established in relation to the alternative remedies granted to the wife
when she has been abandoned by the husband, namely, receivership, administration
by her, or separation of property, all of which are designed to protect the conjugal
assets from waste and dissipation rendered imminent by the husband's continued
absence from the conjugal abode, and to assure the wife of a ready and steady source
of support. Therefore, physical separation alone is not the full meaning of the term
"abandonment", if the husband, despite his voluntary departure from the society of
his spouse, neither neglects the management of the conjugal partnership nor ceases to
give support to his wife.
The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or
renounce utterly. 2 The dictionaries trace this word to the root idea of "putting under a
bar". The emphasis is on the finality and the publicity with which some thing or body
is thus put in the control of another, and hence the meaning of giving up absolutely,
with intent never again to resume or claim one's rights or interests. 3 When referring
to desertion of a wife by a husband, the word has been defined as "the act of a
husband in voluntarily leaving his wife with intention to forsake her entirely, never to
return to her, and never to resume his marital duties towards her, or to claim his
marital rights; such neglect as either leaves the wife destitute of the common
necessaries of life, or would leave her destitute but for the charity of others." 4 The
word "abandonment", when referring to the act of one consort of leaving the other, is
"the act of the husband or the wife who leaves his or her consort wilfully, and with an
intention of causing per perpetual separation." 5 Giving to the word "abandoned", as
used in article 178, the meaning drawn from the definitions above reproduced, it
seems rather clear that to constitute abandonment of the wife by the husband, there
must be absolute cessation of marital relations and duties and rights, with the
intention of perpetual separation.
Coming back to the case at bar, we believe that the defendant did not intend to leave
his wife and children permanently. The record conclusively shows that he continued
to give support to his family despite his absence from the conjugal home. This fact is
admitted by the complainant, although she minimized the amount of support given,
saying that it was only P500 monthly. There is good reason to believe, however, that

she and the children received more than this amount, as the defendant's claim that his
wife and children continued to draw from his office more than P500 monthly was
substantially corroborated by Marcos Ganaban, whose declarations were not rebutted
by the plaintiff. And then there is at all no showing that the plaintiff and the children
were living in want. On the contrary, the plaintiff admitted, albeit reluctantly, that she
frequently played mahjong, from which we can infer that she had money; to spare.

A. Why should I write a letter to her.

The fact that the defendant never ceased to give support to his wife and children
negatives any intent on his part not to return to the conjugal abode and resume his
marital duties and rights. In People v. Schelske, 6 it was held that where a husband,
after leaving his wife, continued to make small contributions at intervals to her
support and that of their minor child, he was not guilty of their "abandonment",
which is an act of separation with intent that it shall be perpetual, since contributing
to their support negatived such intent. In re Hoss' Estate, supra, it was ruled that a
father did not abandon his family where the evidence disclosed that he almost always
did give his wife part of his earnings during the period of their separation and that he
gradually paid some old rental and grocery bills.

Q. I am not asking you whether she writes very well or not but, my question
is this: In view of the fact that you have never received a letter from Nenita,
you have ot sent any letter to her, you are not familiar with her handwriting?

With respect to the allegation that the defendant maintained a concubine, we believe,
contrary to the findings of the court a quo, that the evidence on record fails to
preponderate in favor of the plaintiff's thesis. The proof that Nenita Hernandez was
the concubine of the defendant and that they were living as husband and wife in
Manila, is altogether too indefinite. Aside from the uncorroborated statement of the
plaintiff that she knew that Nenita Hernandez was her husband's concubine, without
demonstrating by credible evidence the existence of illicit relations between Nenita
and the defendant, the only evidence on record offered to link the defendant to his
alleged mistress is exh. C. The plaintiff however failed to connect authorship of the
said letter with Nenita, on the face whereof the sender merely signed as "D" and the
addressee was one unidentified "Darling". The plaintiff's testimony on crossexamination, hereunder quoted, underscores such failure:

Anent the allegation that the defendant had mismanaged the conjugal partnership
property, the record presents a different picture. There is absolutely no evidence to
show that he has squandered the conjugal assets. Upon the contrary, he proved that
through his industry and zeal, the conjugal assets at the time of the trial had increased
to a value of over a million pesos.

Q. You personally never received any letter from Nenita?

A. No.
Q. Neither have you received on any time until today from 1949 from
Nenita?
A. No.
Q. Neither have you written to her any letter yourself until now?

17 | P a g e

Q. In that case, Mrs. De la Cruz, you are not familiar with the handwriting
of Nenita. Is that right?
A. I can say that Nenita writes very well.

A. Yes.
Q. You have not seen her writing anybody?
A. Yes.

The lower court likewise erred in holding that mere refusal or failure of the husband
as administrator of the conjugal partnership to inform the wife of the progress of the
family businesses constitutes abuse of administration. For "abuse" to exist, it is not
enough that the husband perform an act or acts prejudicial to the wife. Nor is it
sufficient that he commits acts injurious to the partnership, for these may be the
result of mere inefficient or negligent administration. Abuse connotes willful and
utter disregard of the interests of the partnership, evidenced by a repetition of
deliberate acts and/or omissions prejudicial to the latter. 7
If there is only physical separation between the spouses (and nothing more),
engendered by the husband's leaving the conjugal abode, but the husband continues
to manage the conjugal properties with the same zeal, industry, and efficiency as he
did prior to the separation, and religiously gives support to his wife and children, as
in the case at bar, we are not disposed to grant the wife's petition for separation of
property. This decision may appear to condone the husband's separation from his
wife; however, the remedies granted to the wife by articles 167 and 178 are not to be
construed as condonation of the husband's act but are designed to protect the
conjugal partnership from waste and shield the wife from want. Therefore, a denial

of the wife's prayer does not imply a condonation of the husband's act but merely
points up the insufficiency or absence of a cause of action.1wph1.t

conjugal harmony may return and, on the basis of mutual respect and understanding,
endure.

Courts must need exercise judicial restraint and reasoned hesitance in ordering a
separation of conjugal properties because the basic policy of the law is homiletic, to
promote healthy family life and to preserve the union of the spouses, in person, in
spirit and in property.

ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the

conjugal properties, is reversed and set aside. Conformably to our observations,
however, the defendant is ordered to pay to the plaintiff, in the concept of support,
the amount of P3,000 per month, until he shall have rejoined her in the conjugal
home, which amount may, in the meantime, be reduced or increased in the discretion
of the court a quo as circumstances warrant. The award of attorney's fees to the
plaintiff is reduced to P10,000, without interest. No pronouncement as to costs.

Consistent with its policy of discouraging a regime of separation as not in

harmony with the unity of the family and the mutual affection and help
expected of the spouses, the Civil Code (both old and new) requires that
separation of property shall not prevail unless expressly stipulated in
marriage settlements before the union is solemnized or by formal judicial
decree during the existence of the marriage (Article 190, new Civil Code,
Article 1432, old Civil Code): and in the latter case, it may only be ordered
by the court for causes specified in Article 191 of the new Civil Code. 8
Furthermore, a judgment ordering the division of conjugal assets where there has
been no real abandonment, the separation not being wanton and absolute, may
altogether slam shut the door for possible reconciliation. The estranged spouses may
drift irreversibly further apart; the already broken family solidarity may be
irretrievably shattered; and any flickering hope for a new life together may be
completely and finally extinguished.
The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958,
long before the devaluation of the Philippine peso in 1962, should be increased to
P3,000.
On the matter of attorney's fees, it is our view that because the defendant, by leaving
the conjugal abode, has given cause for the plaintiff to seek redress in the courts, and
ask for adequate support, an award of attorney's fees to the plaintiff must be made.
Ample authority for such award is found in paragraphs 6 and 11 of article 2208 of
the new Civil Code which empower courts to grant counsel's fees "in actions for
legal support" and in cases "where the court deems it just and equitable that
attorney's fees . . . should be recovered." However, an award of P10,000, in our
opinion, is, under the environmental circumstances, sufficient.
This Court would be remiss if it did not, firstly, remind the plaintiff and the
defendant that the law enjoins husband and wife to live together, and, secondly,
exhort them to avail of mutually, earnestly and steadfastly all opportunities for
reconciliation to the end that their marital differences may be happily resolved, and

18 | P a g e

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-10033

December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant,

vs.
LEONILA GINEZ, defendant-appellee.
Florencio Dumapias for appellant.
Numeriano Tanopo, Jr. for appellee.

FELIX, J.:
This is a case for legal separation filed in the Court of First Instance of Pangasinan
wherein on motion of the defendant, the case was dismissed. The order of dismissal
was appealed to the Court of Appeals, but said Tribunal certified the case to the
Court on the ground that there is absolutely no question of fact involved, the motion
being predicated on the assumption as true of the very facts testified to by plaintiffhusband.
The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a
serviceman in the United States Navy, was married to defendant Leonila Ginez on
August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately after
their marriage, the couple lived with their sisters who later moved to Sampaloc,
Manila. After some time, or about July, 1951, Leonila Ginez left the dwelling of her
sister-in-law and informed her husband by letter that she had gone to reside with her
mother in Asingan, Pangasinan, from which place she later moved to Dagupan City
to study in a local college there.

19 | P a g e

As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana
Polangco (plaintiff's sister-in-law) and some from anonymous writers(which were
not produced at the hearing) informing him of alleged acts of infidelity of his wife
which he did not even care to mention. On cross-examination, plaintiff admitted that
his wife also informed him by letter, which she claims to have destroyed, that a
certain "Eliong" kissed her. All these communications prompted him in October,
1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation
between him and his wife on account of the latter's alleged acts of infidelity, and he
was directed to consult instead the navy legal department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife
whom he met in the house of one Mrs. Malalang, defendant's godmother. She came
along with him and both proceeded to the house of Pedro Bugayong, a cousin of the
plaintiff-husband, where they stayed and lived for 2 nights and 1 day as husband and
wife. Then they repaired to the plaintiff's house and again passed the night therein as
husband and wife. On the second day, Benjamin Bugayong tried to verify from his
wife the truth of the information he received that she had committed adultery but
Leonila, instead of answering his query, merely packed up and left, which he took as
a confirmation of the acts of infidelity imputed on her. After that and despite such
belief, plaintiff exerted efforts to locate her and failing to find her, he went to
Bacarra, Ilocos Norte, "to soothe his wounded feelings".
On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of
Pangasinan a complaint for legal separation against his wife, Leonila Ginez, who
timely filed an answer vehemently denying the averments of the complaint and
setting up affirmative defenses. After the issues were joined and convinced that a
reconciliation was not possible, the court set the case for hearing on June 9, 1953.
Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiffhusband finished testifying in his favor, counsel for the defendant orally moved for
the dismissal of the complaint, but the Court ordered him to file a written motion to
that effect and gave plaintiff 10 days to answer the same.
The motion to dismiss was predicted on the following grounds: (1) Assuming
arguendo the truth of the allegations of the commission of "acts of rank infidelity
amounting to adultery", the cause of action, if any, is barred by the statute of
limitations; (2) That under the same assumption, the act charged have been
condoned by the plaintiff-husband; and (3) That the complaint failed to state a cause
of action sufficient for this court to render a valid judgment.
The motion to dismiss was answered by plaintiff and the Court, considering only the
second ground of the motion to dismiss i. e., condonation, ordered the dismissal of
the action. After the motion for reconsideration filed by plaintiff was denied, the case

was taken up for review to the Court of Appeals, appellant's counsel maintaining that
the lower court erred:
(a) In so prematurely dismissing the case;
(b) In finding that there were condonation on the part of plaintiff-appellant;
and
(c) In entertaining condonation as a ground for dismissal inasmuch as same
was not raised in the answer or in a motion to dismiss.
As the questions raised in the brief were merely questions of law, the Court of
Appeals certified the case to Superiority.
The Civil Code provides:
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage for the part of
the husband as defined on the Penal Code; or
(2) An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the innocent
spouse, provided there has been no condonation of or consent to the
adultery or concubinage. Where both spouses are offenders, a legal
separation cannot by either of them. Collusion between the parties to obtain
legal separation shall cause the dismissal of the petition.
ART. 102. An action for legal separation cannot be filed except within one
year from and after the date on which the plaintiff became cognizant of the
cause and within five years from and after the date when such cause
occurred.
As the only reason of the lower Court for dismissing the action was the alleged
condonation of the charges of adultery that the plaintiff-husband had preferred in the
complaint against his wife, We will disregard the other 2 grounds of the motion to
dismiss, as anyway they have not been raised in appellant's assignment of errors.
Condonation is the forgiveness of a marital offense constituting a ground for legal
separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the
"conditional forgiveness or remission, by a husband or wife of a matrimonial offense

20 | P a g e

which the latter has committed". It is to be noted, however, that in defendant's

answer she vehemently and vigorously denies having committed any act of infidelity
against her husband, and even if We were to give full weight to the testimony of the
plaintiff, who was the only one that had the chance of testifying in Court and link
such evidence with the averments of the complaint, We would have to conclude that
the facts appearing on the record are far from sufficient to establish the charge of
adultery, or, as the complaint states, of "acts of rank infidelity amounting to adultery"
preferred against the defendant. Certainly, the letter that plaintiff claims to have
received from his sister-in-law Valeriana Polangco, which must have been too vague
and indefinite as to defendant's infidelity to deserve its production in evidence; nor
the anonymous letters which plaintiff also failed to present; nor the alleged letter
that, according to plaintiff, his wife addressed to him admitting that she had been
kissed by one Eliong, whose identity was not established and which admission
defendant had no opportunity to deny because the motion to dismiss was filed soon
after plaintiff finished his testimony in Court, do not amount to anything that can be
relied upon.
But this is not a question at issue. In this appeal, We have to consider plaintiff's line
of conduct under the assumption that he really believed his wife guilty of adultery.
What did he do in such state of mind. In August, 1952, he went to Pangasinan and
looked for his wife and after finding her they lived together as husband and wife for
2 nights and 1 day, after which he says that he tried to verify from her the truth of the
news he had about her infidelity, but failed to attain his purpose because his wife,
instead of answering his query on the matter, preferred to desert him, probably
enraged for being subjected to such humiliation. And yet he tried to locate her,
though in vain. Now, do the husband's attitude of sleeping with his wife for 2 nights
despite his alleged belief that she was unfaithful to him, amount to a condonation of
her previous and supposed adulterous acts? In the order appealed from, the Court a
quo had the following to say on this point:
In the hearing of the case, the plaintiff further testified as follows:
Q. Now Mr. Bugayong, you have filed this action for legal separation from
your wife. Please tell this Hon. Court why you want to separate from your
wife? A. I came to know that my wife is committing adultery, I consulted
the chaplain and he told me to consult the legal adviser. (p. 11, t.s.n.)
Q. Did you finally locate her?--A. Four days later or on the fifth day since
my arrival she went to the house of our god-mother, and as a husband I went
to her to come along with me in our house but she refused. (p. 12,
t.s.n.)lawphil.net

Q. What happened next? A. I persuaded her to come along with me. She
consented but I did not bring her home but brought her to the house of my
cousin Pedro Bugayong. (p. 12, t.s.n.)
Q. How long did you remain in the house of your cousin Pedro Bugayong?
A. One day and one night. (p. 12. t.s.n.)
Q. That night when you stayed in the house of your cousin Pedro Bugayong
as husband and wife, did you slept together? A. Yes, sir. (p. 19, t.s.n.)
Q. On the next night, when you slept in your own house, did you sleep
together also as husband and wife? A. Yes, sir. (p. 19. t.s.n.)
Q. When was that? A. That was in August, 1952. (p. 19 t.s.n.)
Q. How many nights did you sleep together as husband and wife? A.
Only two nights. (p. 19, t.s.n.)
The New Civil Code of the Philippines, in its Art. 97, says:
A petition for legal separation may be filed:
(1) For adultery on the part of the wife and concubinage on the part of the
husband as defined on the Penal Code.
and in its Art. 100 it says:lawphil.net
The legal separation may be claimed only by the innocent spouse, provided
there has been no condonation of or consent to the adultery or concubinage.
Where both spouses are offenders, legal separation cannot be claimed by
either of them. Collusion between the parties to obtain legal separation shall
cause the dismissal of the petition.
A detailed examination of the testimony of the plaintiff-husband, especially
those portions quoted above, clearly shows that there was a condonation on
the part of the husband for the supposed "acts of rank infidelity amounting
to adultery" committed by defendant-wife. Admitting for the sake of
argument that the infidelities amounting to adultery were committed by the
defendant, a reconciliation was effected between her and the plaintiff. The
act of the latter in persuading her to come along with him, and the fact that
she went with him and consented to be brought to the house of his cousin
Pedro Bugayong and together they slept there as husband and wife for one

21 | P a g e

day and one night, and the further fact that in the second night they again
slept together in their house likewise as husband and wife all these facts
have no other meaning in the opinion of this court than that a reconciliation
between them was effected and that there was a condonation of the wife by
the husband. The reconciliation occurred almost ten months after he came to
know of the acts of infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held
that "condonation is implied from sexual intercourse after knowledge of the
other infidelity. such acts necessary implied forgiveness. It is entirely
consonant with reason and justice that if the wife freely consents to sexual
intercourse after she has full knowledge of the husband's guilt, her consent
should operate as a pardon of his wrong."
In Tiffany's Domestic and Family Relations, section 107 says:
Condonation. Is the forgiveness of a marital offense constituting a
ground for divorce and bars the right to a divorce. But it is on the
condition, implied by the law when not express, that the wrongdoer
shall not again commit the offense; and also that he shall thereafter
treat the other spouse with conjugal kindness. A breach of the
condition will revive the original offense as a ground for divorce.
Condonation may be express or implied.
It has been held in a long line of decisions of the various supreme courts of
the different states of the U. S. that 'a single voluntary act of sexual
intercourse by the innocent spouse after discovery of the offense is
ordinarily sufficient to constitute condonation, especially as against the
husband'. (27 Corpus Juris Secundum, section 61 and cases cited therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal
provisions above quoted, and of the various decisions above-cited, the
inevitable conclusion is that the present action is untenable.
Although no acts of infidelity might have been committed by the wife, We agree with
the trial judge that the conduct of the plaintiff-husband above narrated despite his
belief that his wife was unfaithful, deprives him, as alleged the offended spouse, of
any action for legal separation against the offending wife, because his said conduct
comes within the restriction of Article 100 of the Civil Code.
The only general rule in American jurisprudence is that any cohabitation with the
guilty party, after the commission of the offense, and with the knowledge or belief on

the part of the injured party of its commission, will amount to conclusive evidence of
condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73).
If there had been cohabitation, to what extent must it be to constitute condonation?
Single voluntary act of marital intercourse between the parties ordinarily is
sufficient to constitute condonation, and where the parties live in the same
house, it is presumed that they live on terms of matrimonial cohabitation
(27 C. J. S., section 6-d).
A divorce suit will not be granted for adultery where the parties continue to
live together after it was known (Land vs. Martin, 15 South 657; Day vs.
Day, 80 Pac. 974) or there is sexual intercourse after knowledge of adultery
(Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night
(Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185,
154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The
resumption of marital cohabitation as a basis of condonation will generally
be inferred, nothing appearing to the contrary, from the fact of the living
together as husband and wife, especially as against the husband (Marsh vs.
Marsh, 14 N. J. Eq. 315).
There is no ruling on this matter in our jurisprudence but we have no reason to depart
from the doctrines laid down in the decisions of the various supreme courts of the
United States above quoted.
There is no merit in the contention of appellant that the lower court erred in
entertaining condonation as a ground for dismissal inasmuch as same was not raised
in the answer or in a motion to dismiss, because in the second ground of the motion
to dismiss. It is true that it was filed after the answer and after the hearing had been
commenced, yet that motion serves to supplement the averments of defendant's
answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule
17 of the Rules of Court).
Wherefore, and on the strength of the foregoing, the order appealed from is hereby
affirmed, with costs against appellant. It is so ordered.

22 | P a g e

No. 426). The defendant-wife entered a plea of guilty and was sentenced to suffer
four months of arresto mayor which penalty she served. In the same court, on 17
September 1948, the offended husband filed another complaint for adulterous acts
committed by his wife and her paramour from 15 March 1947 to 17 September 1948,
the date of the filing of the second complaint (criminal case No. 735). On 21
February 1949, each of the defendants filed a motion to quash the complaint on the
ground that they would be twice put in jeopardy of punishment for the same offense.
The trial court upheld the contention of the defendants and quashed the second
complaint. From the order sustaining the motions to quash the prosecution has
appealed.
The trial court held that the adulterous acts charged in the first and second
complaints must be deemed one continuous offense, the defendants in both
complaints being the same and identical persons and the two sets of unlawful acts
having taken place continuously during the years 1946, 1947 and part of 1948, and
"that the acts or two sets of acts that gave rise to the crimes of adultery complained
of in both cases constitute one and the same offense, within the scope and meaning
of the constitutional provision that No person shall be twice put in jeopardy of
punishment for the same offense."

EN BANC
[G.R. No. L-3047. May 16, 1951.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, v. GUADALUPE
ZAPATA and DALMACIO BONDOC, Defendants-Appellees.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Jaime de los
Angeles, for Appellant.
Francisco M. Ramos and Moises Sevilla Ocampo, for appellee Dalmacio
Bondoc.
Hernandez & Laquian, for appellee Guadalupe Zapata.
In the Court of First Instance of Pampanga a complaint for adultery was filed by
Andres Bondoc against Guadalupe Zapata, his wife, and Dalmacio Bondoc, her
paramour, for cohabiting and having repeated sexual intercourse during the period
from the year 1946 to 14 March 1947, the date of the filing of the complaint,
Dalmacio Bondoc knowing his codefendant to be a married woman (criminal case

23 | P a g e

Adultery is a crime of result and not of tendency, as the Supreme Court of Spain has
held (S. 10 December 1945); it is an instantaneous crime which is consummated and
exhausted or completed at the moment of the carnal union. Each sexual intercourse
constitutes a crime of adultery (Cuello Caln, Derecho Penal, Vol. II, p. 569). True,
two or more adulterous acts committed by the same defendants are against the same
person the offended husband, the same status the union of the husband and
wife by their marriage, and the same community represented by the State for its
interest in maintaining and preserving such status. But this identity of the offended
party, status and society does not argue against the commission of the crime of
adultery as many times as there were carnal acts consummated, for as long as the
status remain unchanged, the nexus undissolved and unbroken, an encroachment or
trespass upon that status constitutes a crime. There is no constitutional or legal
provision which bars the filing of as many complaints for adultery as there were
adulterous acts committed, each constituting one crime.
The notion or concept of a continuous crime has its origin in the juridical fiction
favorable to the law transgressors and in many a case against the interest of society
(Cuello Caln, Derecho Penal, Vol. II, p. 521). For it to exist there should be plurality
of acts performed separately during a period of time; unity of penal provision
infringed upon or violated; and unity of criminal intent or purpose, which means that
two or more violations of the same penal provision are united in one and the same
intent leading to the perpetration of the same criminal purpose or aim (Ibid. p. 520).
In the instant case the last unity does not exist, because as already stated the culprits
perpetrate the crime in every sexual intercourse and they need not do another or other
adulterous acts to consummate it. After the last act of adultery had been committed
as charged in the first complaint, the defendants again committed adulterous acts not

included in the first complaint and for which the second complaint was filed. It was
held by the Supreme Court of Spain that another crime of adultery was committed, if
the defendants, after their provisional release during the pendency of the case in
which they were later on convicted, had sexual intercourse up to the time when they
were sent to prison to serve the penalty imposed upon them (S. 28 February 1906; 76
Jur. Crim. pp. 208-210).
Another reason why a second complaint charging the commission of adulterous acts
not included in the first complaint does not constitute a violation of the double
jeopardy clause of the constitution is that, if the second complaint places the
defendants twice in jeopardy of punishment for the same offense, the adultery
committed by the male defendant charged in the second complaint, should he be
absolved from, or acquitted of, the first charge upon the evidence that he did not
know that his codefendant was a married woman, would remain or go unpunished.
The defense set up by him against the first charge upon which he was acquitted
would no longer be available, because at the time of the commission of the crime
charged in the second complaint, he already knew that this codefendant was a
married woman and yet he continued to have carnal knowledge of her. Even if the
husband should pardon his adulterous wife, such pardon would not exempt the wife
and her paramour from criminal liability for adulterous acts committed after the
pardon was granted, because the pardon refers to previous and not to subsequent
adulterous acts (Viada [5th ed. ] Vol. 5, p. 208; Groizard [2nd ed. ] Vol. 5, pp. 57-58).
The order appealed from, which quashed the second complaint for adultery, is hereby
reversed and set aside, and the trial court directed to proceed with the trial of the
defendants in accordance with law, with costs against the appellees.
Republic of the Philippines
SUPREME COURT
Manila

Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed with the
Court of First Instance of Camarines Sur, on April 24, 1956, a complaint for legal
Separation and changed of surname against her husband defendant Zoilo Praxedes.
The allegations of the complaint were denied by defendant spouse, who interposed
the defense that it was plaintiff who left the conjugal home.
During the trial, wherein the plaintiff alone introduced oral as well as documentary
evidence, the following facts were established:.
Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines
Sur. For failure to agree on how they should live as husband and wife, the couple, on
May 30, 1944, agreed to live separately from each other, which status remained
unchanged until the present. On April 3, 1948, plaintiff and defendant entered into an
agreement (Exhibit B), the significant portions of which are hereunder reproduced..
. . . (a) That both of us relinquish our right over the other as legal husband
and wife.
(b) That both without any interference by any of us, nor either of us can
prosecute the other for adultery or concubinage or any other crime or suit
arising from our separation.
(c) That I, the, wife, is no longer entitled for any support from my husband
or any benefits he may received thereafter, nor I the husband is not entitled
for anything from my wife.
(d) That neither of us can claim anything from the other from the time we
verbally separated, that is from May 30, 1944 to the present when we made
our verbal separation into writing.

EN BANC
G.R. No. L-11766

October 25, 1960

SOCORRO MATUBIS, plaintiff-appellant,

vs.
ZOILO PRAXEDES, defendant-appellee.
Luis N. de Leon for appellant.
Lucio La. Margallo for appellee.
PAREDES, J.:

24 | P a g e

In January, 1955, defendant began cohabiting with one Asuncion Rebulado and on
September 1, 1955, said Asuncion gave birth to a child who was recorded as the
child of said defendant (Exh. C.).It was shown also that defendant and Asuncion
deported themselves as husband and wife and were generally reputed as such in the
community.
After the trial, without the defendant adducing any evidence, the court a quo
rendered judgment holding that the acts of defendant constituted concubinage, a
ground for legal separation. It however, dismissed the complaint by stating:

While this legal ground exist, the suit must be dismissed for two reasons,
viz:
Under Art. 102 of the new Civil Code, an action for legal separation cannot
be filed except within one year from and after the date on which the plaintiff
became cognizant of the cause and within five years from and after the date
when the cause occurred. The plaintiff became aware of the illegal
cohabitation of her husband with Asuncion Rebulado in January, 1955. The
complaint was filed on April 24, 1956. The present action was, therefore,
filed out of time and for that reason action is barred.
Article 100 of the new Civil Code provides that the legal separation may be
claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. As shown in
Exhibit B, the plaintiff has consented to the commission of concubinage by
her husband. Her consent is clear from the following stipulations:
(b) That both of us is free to get any mate and live with as husband
and wife without any interference by any of us, nor either of us can
prosecute the other for adultery or concubinage or any other crime
or suit arising from our separation. (Exh. B).
This stipulation is an unbridled license she gave her husband to commit
concubinage. Having consented to the concubinage, the plaintiff cannot
claim legal separation.
The above decision is now before us for review, plaintiff- appellant claiming that it
was error for the lower court to have considered that the period to bring the action
has already elapsed and that there was consent on the part of the plaintiff to the
concubinage. The proposition, therefore, calls for the interpretation of the provisions
of the law upon which the lower court based its judgment of dismissal.
Article 102 of the new Civil Code provides:
An action for legal separation cannot be filed except within one year from
and after the date on which the plaintiff became cognizant of the cause and
within five years from after the date when cause occurred.
The complaint was filed outside the periods provided for by the above Article. By the
very admission of plaintiff, she came to know the ground (concubinage) for the legal
separation in January, 1955. She instituted the complaint only on April 24, 1956. It is
to be noted that appellant did not even press this matter in her brief.

25 | P a g e

The very wording of the agreement Exhibit B. gives no room for interpretation other
than that given by the trial judge. Counsel in his brief submits that the agreement is
divided in two parts. The first part having to do with the act of living separately
which he claims to be legal, and the second part that which becomes a license to
commit the ground for legal separation which is admittedly illegal. We do not share
appellant's view. Condonation and consent on the part of plaintiff are necessarily the
import of paragraph 6(b) of the agreement. The condonation and consent here are not
only implied but expressed. The law (Art. 100 Civil Code), specifically provides that
legal separation may be claimed only by the innocent spouse, provided there has
been no condonation of or consent to the adultery or concubinage. Having condoned
and/or consented in writing, the plaintiff is now undeserving of the court's sympathy
(People vs. Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even agrees that the
complaint should be dismissed. He claims however, that the grounds for the
dismissal should not be those stated in the decision of the lower court, "but on the
ground that plaintiff and defendant have already been legally separated from each
other, but without the marital bond having been affected, long before the effectivity
of the new Civil Code" (appellants brief, pp. 7-8). Again, we cannot subscribed to
counsel's contention, because it is contrary to the evidence.
Conformably with the foregoing, we find that the decision appealed from is in
accordance with the evidence and the law on the matter. The same is hereby
affirmed, with costs.

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

ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C.
PACETE, EVELINA C. PACETE and EDUARDO C. PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA)
ALANIS PACETE, respondents.
Juan G. Sibug and Rodolfo B. Quiachon for petitioners.
Julio F. Andres, Jr. for private respondent.

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

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

26 | P a g e

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

The defendants were each served with summons on 15 November 1979. They filed a
motion for an extension of twenty (20) days from 30 November 1979 within which
to file an answer. The court granted the motion. On 18 December 1979, appearing
through a new counsel, the defendants filed a second motion for an extension of
another thirty (30) days from 20 December 1979. On 07 January 1980, the lower
court granted the motion but only for twenty (20) days to be counted from 20
December 1979 or until 09 January 1980. The Order of the court was mailed to
defendants' counsel on 11 January 1980. Likely still unaware of the court order, the
defendants, on 05 February 1980, again filed another motion (dated 18 January 1980)
for an extension of "fifteen (15) days counted from the expiration of the 30-day
period previously sought" within which to file an answer. The following day, or on
06 February 1980, the court denied this last motion on the ground that it was "filed
after the original period given . . . as first extension had expired." 1
The plaintiff thereupon filed a motion to declare the defendants in default, which the
court forthwith granted. The plaintiff was then directed to present her evidence. 2 The
court received plaintiff's evidence during the hearings held on 15, 20, 21 and 22
February 1980.
On 17 March 1980, the court 3 promulgated the herein questioned decision, disposing
of the case, thus
WHEREFORE, order is hereby issued ordering:
1. The issuance of a Decree of Legal Separation of the marriage
between, the plaintiff, Concepcion (Conchita) Alanis Pacete and
the herein defendants, Enrico L. Pacete, in accordance with the
Philippine laws and with consequences, as provided for by our
laws;
2. That the following properties are hereby declared as the conjugal
properties of the partnership of the plaintiff, Concepcion
(Conchita) Alanis Pacete and the defendant, Enrico L. Pacete, half
and half, to wit:
1. The parcel of land covered by TCT No. V-815 which is a parcel
of land situated in the barrio of Langcong, Municipality of
Matanog (previously of Parang), province of Maguindanao
(previously of Cotabato province) with an area of 45,265 square
meters registered in the name of Enrico Pacete, Filipino, of legal
age, married to Conchita Alanis as shown in Exhibits "B" and "B1" for the plaintiff.

27 | P a g e

2. A parcel of land covered by Transfer Certificate of Title No. T20442, with an area of 538 square meters and covered by Tax
Declaration No. 2650 (74) in the name of Enrico Pacete, situated in
the Poblacion of Kidapawan, North Cotabato, together with all its
improvements, which parcel of land, as shown by Exhibits "K-1"
was acquired by way of absolute deed of sale executed by Amrosio
Mondog on January 14, 1965.
3. A parcel of land covered by Transfer Certificate of Title No. T20424 and covered by Tax Declaration No. 803 (74), with an area
of 5.1670 hectares, more or less, as shown by Exhibit "R", the
same was registered in the name of Enrico Pacete and the same
was acquired by Enrico Pacete last February 17, 1967 from Ambag
Ampoy, as shown by Exhibit "R-1", situated at Musan, Kidapawan,
North Cotabato.
4. A parcel of land situated at Lanao, Kidapawan, North Cotabato,
with an area of 5.0567 hectares, covered by Tax Declaration No.
4332 (74), as shown by Exhibit "S", and registered in the name of
Enrico Pacete.
5. A parcel of land covered by Transfer Certificate of Title No. T9750, situated at Lika, Mlang, North Cotabato, with an area of
4.9841 hectares and the same is covered by Tax Declaration No.
803 (74) and registered in the name of Enrico Pacete and which
land was acquired by Enrico Pacete from Salvador Pacete on
September 24, 1962, as shown by Exhibit "Q-1".
6. A parcel of land covered by Transfer Certificate of Title No. T9944, with an area of 9.9566 and also covered by Tax Declaration
No. 8608 (74) and registered in the name of the defendant Enrico
L. Pacete which Enrico L. Pacete acquired from Sancho Balingcos
last October 22, 1962, as shown by Exhibit "L-1" and which parcel
of land is situated at (Kialab), Kiab, Matalam, North Cotabato.
7. A parcel of land covered by Transfer Certificate of Title No. T9227, situated at Kiab, Matalam, North Cotabato, with an area of
12.04339 hectares, more or less, and also covered by Tax
Declaration No. 8607 (74) both in the name of the defendant
Enrico L. Pacete which he acquired last October 15, 1962 from
Minda Bernardino, as shown by Exhibit "M-1".

8. A parcel of land covered by Transfer Certificate of Title No. T9228, situated at Kiab, Matalam, North Cotabato, with an area of
10.8908 hectares, registered in the name of Enrico Pacete and also
covered by Tax Declaration No. 5781 (74) in the name of Enrico
Pacete and which parcel of land he acquired last September 25,
1962 from Conchita dela Torre, as shown by Exhibit "P-1".
9. A parcel of land covered by Transfer Certificate of Title No. T10301, situated at Linao, Matalam, North Cotabato, with an area of
7.2547 hectares, registered in the name of Enrico Pacete and also
covered by Tax Declaration No. 8716 (74) also in the name of
Enrico Pacete which Enrico Pacete acquired from Agustin Bijo last
July 16, 1963, as shown by Exhibit "N-1".
10. A parcel of land covered by Transfer Certificate of Title No.
12728 in the name of the defendant, Enrico L. Pacete, with an area
of 10.9006 hectares, situated at Linao, Matalam, North Cotabato
and is also covered by Tax Declaration No. 5745 (74) in the name
of Enrico Pacete, as shown on Exhibit "O" and which Enrico
Pacete acquired last December 31, 1963 from Eliseo Pugni, as
shown on Exhibit "0-1".
3. Ordering the Cancellation of Original Certificate of Title No. P34243 covering Lot No. 1066, issued in the name of Evelina
Pacete, situated at Kiab, Matalam, North Cotabato, and ordering
the registration of the same in the joint name of Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal
property, with address on the part of Concepcion (Conchita) Alanis
Pacete at Parang, Maguindanao and on the part of Enrico L. Pacete
at Kidapawan, North Cotabato.
4. Ordering likewise the cancellation of Original Certificate of
Title No. V-20101, covering Lot No. 77, in the name of Eduardo C.
Pacete, situated at New Lawaan, Mlang, North Cotabato, and the
issuance of a new Transfer Certificate of Title in the joint name of
(half and half) Concepcion (Conchita) Alanis Pacete and Enrico L.
Pacete.
5. Ordering likewise the cancellation of Original Certificate of
Title No. P-29890, covering Lot 1068, situated at Kiab, Matalam,
North Cotabato, with an area of 12.1031 hectares, in the name of
Emelda C. Pacete and the issuance of a new Transfer Certificate of

28 | P a g e

Title in the joint name (half and half) of Concepcion (Conchita)

Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond
situated at Barrio Tumanan, Bislig, Surigao Del Sur, with an area
of 48 hectares and covered by Fishpond Lease Agreement of
Emelda C. Pacete, dated July 29, 1977 be cancelled and in lieu
thereof, the joint name of Concepcion (Conchita) Alanis Pacete
and her husband, Enrico L. Pacete, be registered as their joint
property, including the 50 hectares fishpond situated in the same
place, Barrio Timanan, Bislig, Surigao del Sur.
6. Ordering the following motor vehicles to be the joint properties
of the conjugal partnership of Concepcion (Conchita) Alanis
Pacete and Enrico L. Pacete, viz:
a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor
No. T137-20561; Chassis No. 83920393, and Type, Mcarrier;
b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor
No. T214-229547; Chassis No. 10D-1302-C; and Type, Mcarrier;
c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No.
GRW-116188; Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;
d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor
No. F70MU5-11111; Chassis No. HOCC-GPW-1161188-G; Type,
Stake;
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor
No. ED300-45758; Chassis No. KB222-22044; Type, Stake; and
f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor
No. LTC-780-Dv; Chassis No. 10F-13582-K; Type, Stake.
7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the
sum of P46,950.00 which is the share of the plaintiff in the
unaccounted income of the ricemill and corn sheller for three years
from 1971 to 1973.
8. Ordering the defendant, Enrico L. Pacete, to reimburse the
plaintiff the monetary equipment of 30% of whether the plaintiff
has recovered as attorney's fees;

9. Declaring the subsequent marriage between defendant Enrico L.

Pacete and Clarita de la Concepcion to be void ab initio; and

855; Goitia v. Campos, 35 Phil. 252). It is consonant with this

policy that the inquiry by the Fiscal should be allowed to focus
upon any relevant matter that may indicate whether the
proceedings for separation or annulment are fully justified or not.

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

Hence, the instant special civil action of certiorari.
Under ordinary circumstances, the petition would have outrightly been dismissed,
for, as also pointed out by private respondents, the proper remedy of petitioners
should have instead been either to appeal from the judgment by default or to file a
petition for relief from judgment. 5 This rule, however, is not inflexible; a petition for
certiorari is allowed when the default order is improperly declared, or even when it
is properly declared, where grave abuse of discretion attended such declaration. 6 In
these exceptional instances, the special civil action of certiorari to declare the nullity
of a judgment by default is available. 7 In the case at bench, the default order
unquestionably is not legally sanctioned. The Civil Code provides:

Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates
that an action for legal separation must "in no case be tried before six months shall
have elapsed since the filing of the petition," obviously in order to provide the parties
a "cooling-off" period. In this interim, the court should take steps toward getting the
parties to reconcile.
The significance of the above substantive provisions of the law is further
underscored by the inclusion of the following provision in Rule 18 of the Rules of
Court:
Sec. 6. No defaults in actions for annulments of marriage or for
legal separation. If the defendant in an action for annulment of
marriage or for legal separation fails to answer, the court shall
order the prosecuting attorney to investigate whether or not a
collusion between the parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the evidence
submitted is not fabricated.

Art. 101. No decree of legal separation shall be promulgated upon

a stipulation of facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall order
the prosecuting attorney to inquire whether or not a collusion
between the parties exists. If there is no collusion, the prosecuting
attorney shall intervene for the State in order to take care that the
evidence for the plaintiff is not fabricated.
The provision has been taken from Article 30 of the California Civil Code, 8 and it is,
in substance, reproduced in Article 60 of the Family Code. 9
Article 101 reflects the public policy on marriages, and it should easily explain the
mandatory tenor of the law. In Brown v. Yambao, 10 the Court has observed:
The policy of Article 101 of the new Civil Code, calling for the
intervention of the state attorneys in case of uncontested
proceedings for legal separation (and of annulment of marriages,
under Article 88), is to emphasize that marriage is more than a
mere contract; that it is a social institution in which the state is
vitally interested, so that its continuation or interruption can not be
made to depend upon the parties themselves (Civil Code, Article
52; Adong vs. Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42 Phil.

29 | P a g e

The special prescriptions on actions that can put the integrity of marriage to possible
jeopardy are impelled by no less than the State's interest in the marriage relation and
its avowed intention not to leave the matter within the exclusive domain and the
vagaries of the parties to alone dictate.
It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That
other remedies, whether principal or incidental, have likewise been sought in the
same action cannot dispense, nor excuse compliance, with any of the statutory
requirements aforequoted.
WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings
below, including the Decision of 17 March 1980 appealed from, are NULLIFIED
and SET ASIDE. No costs.
SO ORDERED.