THIRD DIVISION
G.R. No. 167109
February 6, 2007
2
SO ORDERED.11
After the motion for reconsideration was denied, petitioner filed
the instant petition for review raising the following issues:
I.
WHETHER PETITIONER HAS THE REQUIRED STANDING
IN COURT TO QUESTION THE NULLITY OF THE
MARRIAGE BETWEEN RESPONDENTS;
II.
WHETHER THE FAILURE OF THE COURT OF APPEALS TO
DECLARE THE QUESTIONED MARRIAGE VOID
CONSTITUTES REVERSIBLE ERROR.12
Petitioner contends that the bigamous marriage of the
respondents, which brought embarrassment to her and her
children, confers upon her an interest to seek judicial remedy
to address her grievances and to protect her family from
further embarrassment and humiliation. She claims that the
Court of Appeals committed reversible error in not declaring
the marriage void despite overwhelming evidence and the
state policy discouraging illegal and immoral marriages.13
The main issue to be resolved is whether petitioner has the
personality to file a petition for the declaration of nullity of
marriage of the respondents on the ground of bigamy.
However, this issue may not be resolved without first
determining the corollary factual issues of whether the
petitioner and respondent Orlando had indeed become
naturalized American citizens and whether they had actually
been judicially granted a divorce decree.
While it is a settled rule that the Court is not a trier of facts and
does not normally undertake the re-examination of the
evidence presented by the contending parties during the trial
of the case,14 there are, however, exceptions to this rule, like
when the findings of facts of the RTC and the Court of Appeals
are conflicting, or when the findings are conclusions without
citation of specific evidence on which they are based.15
Both the RTC and the Court of Appeals found that petitioner
and respondent Orlando were naturalized American citizens
and that they obtained a divorce decree in April 1988.
However, after a careful review of the records, we note that
other than the allegations in the complaint and the testimony
during the trial, the records are bereft of competent evidence
to prove their naturalization and divorce.
The Court of Appeals therefore had no basis when it held:
In light of the allegations of Felicitas complaint and the
documentary and testimonial evidence she presented, we
deem it undisputed that Orlando and Felicitas are American
citizens and had this citizenship status when they secured
their divorce decree in April 1988. We are not therefore dealing
in this case with Filipino citizens whose marital status is
governed by the Family Code and our Civil Code, but with
American citizens who secured their divorce in the U.S. and
who are considered by their national law to be free to contract
another marriage. x x x16
Further, the Court of Appeals mistakenly considered the failure
of the petitioner to refute or contest the allegation in
respondents brief, that she and respondent Orlando were
American citizens at the time they secured their divorce in April
1988, as sufficient to establish the fact of naturalization and
divorce.17 We note that it was the petitioner who alleged in her
complaint that they acquired American citizenship and that
3
respondent Orlando obtained a judicial divorce decree.18 It is
settled rule that one who alleges a fact has the burden of
proving it and mere allegation is not evidence.19
Divorce means the legal dissolution of a lawful union for a
cause arising after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce or a vinculo
matrimonii and (2) limited divorce or a mensa et thoro. The first
kind terminates the marriage, while the second suspends it
and leaves the bond in full force.20 A divorce obtained abroad
by an alien may be recognized in our jurisdiction, provided
such decree is valid according to the national law of the
foreigner.21 However, before it can be recognized by our
courts, the party pleading it must prove the divorce as a fact
and demonstrate its conformity to the foreign law allowing it,
which must be proved considering that our courts cannot take
judicial notice of foreign laws.22
Without the divorce decree and foreign law as part of the
evidence, we cannot rule on the issue of whether petitioner
has the personality to file the petition for declaration of nullity
of marriage. After all, she may have the personality to file the
petition if the divorce decree obtained was a limited divorce
or a mensa et thoro; or the foreign law may restrict remarriage
even after the divorce decree becomes absolute.23 In such
case, the RTC would be correct to declare the marriage of the
respondents void for being bigamous, there being already in
evidence two existing marriage certificates, which were both
obtained in the Philippines, one in Mabini, Pangasinan dated
December 21, 1959 between Eusebio Bristol and respondent
Merope,24 and the other, in Calasiao, Pangasinan dated June
16, 1988 between the respondents.25
However, if there was indeed a divorce decree obtained and
which, following the national law of Orlando, does not restrict
remarriage, the Court of Appeals would be correct in ruling that
4
2
xxxx
Records, p. 4.
Id. at 1.
Id. at 5.
Id. at 1-3.
Id. at 10-12.
Id. at 19.
10
Id. at 167-168.
11
Rollo, p. 54.
12
Id. at 6-7.
13
Id. at 8-9.
14
Id.
16
17
Id. at 22.
18
Records, p. 1.
5
19
21
22
24
Records, p. 7.
25
Id. at 5.
26
Rollo, p. 23.
27
28
29
THIRD DIVISION
G.R. No. 94053 March 17, 1993
6
contract expired. On 15 January 1982, respondent married
Janet Monica Parker in San Jose, Antique, in Catholic rites
officiated by Fr. Henry van Tilborg in the Cathedral of San
Jose.
Respondent Nolasco further testified that after the marriage
celebration, he obtained another employment contract as a
seaman and left his wife with his parents in San Jose, Antique.
Sometime in January 1983, while working overseas,
respondent received a letter from his mother informing him
that Janet Monica had given birth to his son. The same letter
informed him that Janet Monica had left Antique. Respondent
claimed he then immediately asked permission to leave his
ship to return home. He arrived in Antique in November 1983.
Respondent further testified that his efforts to look for her
himself whenever his ship docked in England proved fruitless.
He also stated that all the letters he had sent to his missing
spouse at No. 38 Ravena Road, Allerton, Liverpool, England,
the address of the bar where he and Janet Monica first met,
were all returned to him. He also claimed that he inquired from
among friends but they too had no news of Janet Monica.
On cross-examination, respondent stated that he had lived
with and later married Janet Monica Parker despite his lack of
knowledge as to her family background. He insisted that his
wife continued to refuse to give him such information even
after they were married. He also testified that he did not report
the matter of Janet Monica's disappearance to the Philippine
government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as
his witness. She testified that her daughter-in-law Janet
Monica had expressed a desire to return to England even
before she had given birth to Gerry Nolasco on 7 December
1982. When asked why her daughter-in-law might have
7
1. The Court of Appeals erred in affirming the trial
court's finding that there existed a well-founded belief
on the part of Nolasco that Janet Monica Parker was
already dead; and
2. The Court of Appeals erred in affirming the trial
Court's declaration that the petition was a proper case
of the declaration of presumptive death under Article
41, Family Code. 5
The issue before this Court, as formulated by petitioner is
"[w]hether or not Nolasco has a well-founded belief that his
wife is already dead." 6
The present case was filed before the trial court pursuant to
Article 41 of the Family Code which provides that:
Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a wellfounded belief that the absent spouse was already
dead. In case of disappearance where there is danger
of death under the circumstances set forth in the
provision of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as
provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. (Emphasis
supplied).
8
Respondent naturally asserts that he had complied with all
these requirements. 11
Petitioner's argument, upon the other hand, boils down to this:
that respondent failed to prove that he had complied with the
third requirement, i.e., the existence of a "well-founded belief"
that the absent spouse is already dead.
Court:
How did you do that?
A I secured another contract with the ship and we had
a trip to London and I went to London to look for her I
could not find her (sic). 15 (Emphasis supplied)
Respondent's testimony, however, showed that he confused
London for Liverpool and this casts doubt on his supposed
efforts to locate his wife in England. The Court of Appeal's
justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily
know the geographical difference between London and
Liverpool, for a humble seaman like Gregorio the two
places could mean one place in England, the port
where his ship docked and where he found Janet. Our
own provincial folks, every time they leave home to visit
relatives in Pasay City, Kalookan City, or Paraaque,
would announce to friends and relatives, "We're going
to Manila." This apparent error in naming of places of
destination does not appear to be fatal. 16
is not well taken. There is no analogy between Manila and its
neighboring cities, on one hand, and London and Liverpool, on
the other, which, as pointed out by the Solicitor-General, are
9
around three hundred fifty (350) kilometers apart. We do not
consider that walking into a major city like Liverpool or London
with a simple hope of somehow bumping into one particular
person there which is in effect what Nolasco says he did
can be regarded as a reasonably diligent search.
The Court also views respondent's claim that Janet Monica
declined to give any information as to her personal
background even after she had married respondent 17 too
convenient an excuse to justify his failure to locate her. The
same can be said of the loss of the alleged letters respondent
had sent to his wife which respondent claims were all returned
to him. Respondent said he had lost these returned letters,
under unspecified circumstances.
Neither can this Court give much credence to respondent's
bare assertion that he had inquired from their friends of her
whereabouts, considering that respondent did not identify
those friends in his testimony. The Court of Appeals ruled that
since the prosecutor failed to rebut this evidence during trial, it
is good evidence. But this kind of evidence cannot, by its
nature, be rebutted. In any case, admissibility is not
synonymous with credibility. 18 As noted before, there are
serious doubts to respondent's credibility. Moreover, even if
admitted as evidence, said testimony merely tended to show
that the missing spouse had chosen not to communicate with
their common acquaintances, and not that she was dead.
Respondent testified that immediately after receiving his
mother's letter sometime in January 1983, he cut short his
employment contract to return to San Jose, Antique. However,
he did not explain the delay of nine (9) months from January
1983, when he allegedly asked leave from his captain, to
November 1983 when be finally reached San Jose.
Respondent, moreover, claimed he married Janet Monica
Parker without inquiring about her parents and their place of
10
. . . Marriage is a special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of conjugal
and family life. It is the foundation of the family and
an inviolable social institution whose nature,
consequences, and incidents are governed by law
and not subject to stipulation, except that marriage
settlements may fix the property relations during the
marriage within the limits provided by this Code.
(Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly
the need to protect.
. . . the basic social institutions of marriage and the
family in the preservation of which the State bas the
strongest interest; the public policy here involved is of
the most fundamental kind. In Article II, Section 12 of
the Constitution there is set forth the following basic
state policy:
The State recognizes the sanctity of family life
and shall protect and strengthen the family as a
basic autonomous social institution. . . .
The same sentiment bas been expressed in the Family
Code of the Philippines in Article 149:
The family, being the foundation of the nation, is
a basic social institution which public policy
cherishes and protects. Consequently, family
relations are governed by law and no custom,
practice or agreement destructive of the family
shall be recognized or given effect. 24
In fine, respondent failed to establish that he had the wellfounded belief required by law that his absent wife was already
dead that would sustain the issuance of a court order declaring
Janet Monica Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23
February 1990, affirming the trial court's decision declaring
Janet Monica Parker presumptively dead is hereby
REVERSED and both Decisions are hereby NULLIFIED and
SET ASIDE. Costs against respondent.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
Gutierrez, Jr. J., is on leave.
# Footnotes
1 Petition, p. 2; Record, p. 7.
2 Records, p. 13.
3 Records, p. 14.
4 Trial Court Decision, p. 4; Records, p. 39.
5 Petition, p. 9; Rollo, p. 13.
6 Id.
7 Pertinent portions of Article 83 of the Civil
Code reads:
Art. 83. Any marriage subsequently contracted
by any person during the lifetime of the first
spouse of such person with any other person
other than such first spouse shall be illegal and
void from its performance, unless:
xxx xxx xxx
(2) The first spouse had been absent for seven
consecutive years at the time of the second
marriage without the spouse present having
news of the absentee being alive, or if the
absentee, though he has been absent for less
than seven years, is generally considered as
dead and believed to be so by the spouse
11
present at the time of the contracting such
subsequent marriage, or if the absentee is
presumed dead according to articles 390 and
391. The marriage so contracted shall be valid
in any of the three cases until declared null and
void by a competent court.
8 See A. V. Sempio Diy, Handbook on the
Family Code of the Philippines (1988),
p. 48.
9 See generally Jones v. Hortiguela, 64 Phil.
179 (1937).
10 Petition, p. 11; Rollo; p. 15.
11 Memorandum for Respondent, p. 4.
12 25 Phil. 71 (1913).
13 25 Phil. at 73.
14 TSN, 28 September 1988, p. 16.
15 Id., p. 8.
16 Court of Appeal's Decision, p. 6.
17 TSN, 28 September 1988, p. 14.
18 See generally Ramos v. Sandiganbayan,
191 SCRA 671 (1990).
19 TSN, 28 September 1988, p. 10.
20 35 Phil. 252 (1919).
21 35 Phil. at 254.
22 81 Phil. 461 (1948).
23 203 SCRA 750 (1991).
24 203 SCRA at 761.
FIRST DIVISION
MELENCIO-HERRERA, J.:
The reversal of respondent Court's Order, dismissing
petitioner's suit for her "declaration ... as the lawful surviving
spouse of deceased Amado Tolentino and the correction of the
death certificate of the same", is sought in this Petition for
Review on Certiorari.
The records disclose that Amado Tolentino had contracted a
second marriage with private respondent herein, Maria
Clemente, at Paombong, Bulacan, on November 1, 1948
(Annex "C", Petition), while his marriage with petitioner, Serafia
G. Tolentino, celebrated on July 31, 1943, was still subsisting
(Annex "A", Petition).
Petitioner charged Amado with Bigamy in Criminal Case No.
2768 of the Court of First Instance of Bulacan, Branch II, which
Court, upon Amado's plea of guilty, sentenced him to suffer the
corresponding penalty. After Amado had served the prison
sentence imposed on him, he continued to live with private
12
respondent until his death on July 25, 1974. His death
certificate carried the entry "Name of Surviving Spouse
Maria Clemente."
In Special Proceedings No. 1587-M for Correction of Entry,
petitioner sought to correct the name of the surviving spouse
in the death certificate from "Maria Clemente" to "Serafia G.
Tolentino", her name. The lower Court dismissed the petition
"for lack of the proper requisites under the law" and indicated
the need for a more detailed proceeding,
Conformably thereto, petitioner filed the case below against
private respondent and the Local Civil Registrar of Paombong,
Bulacan, for her declaration as the lawful surviving spouse,
and the correction of the death certificate of Amado. In an
Order, dated October 21, 1976, respondent Court, upon
private respondent's instance, dismissed the case, stating:
The Motion to Dismiss filed by the defendants in this
case, thru counsel Atty. Hernan E. Arceo, for the
reasons therein mentioned, is hereby GRANTED.
Further: (1) the correction of the entry in the Office of
the Local Civil Registrar is not the proper remedy
because the issue involved is marital relationship; (2)
the Court has not acquired proper jurisdiction because
as prescribed under Art. 108, read together with Art.
412 of the Civil Code publication is needed in a case
like this, and up to now, there has been no such
publication; and (3) in a sense, the subject matter of
this case has been aptly discussed in Special
Proceeding No. 1587-M, which this Court has already
dismissed, for lack of the proper requisites under the
law.
In view of the above dismissal, all other motions in this
case are hereby considered MOOT and ACADEMIC.
SO ORDERED. 1
Thus, petitioner's present recourse mainly challenging the
grounds relied upon by respondent Court in ordering
dismissal.
We rule for petitioner.
First, for the remedy. Although petitioner's ultimate objective is
the correction of entry contemplated in Article 412 of the Civil
Code and Rule 108 of the Rules of Court, she initially seeks a
judicial declaration that she is the lawful surviving spouse of
the deceased, Amado, in order to lay the basis for the
correction of the entry in the death certificate of said
deceased. The suit below is a proper remedy. It is of an
adversary character as contrasted to a mere summary
proceeding. A claim of right is asserted against one who has
an interest in contesting it. Private respondent, as the
individual most affected; is a party defendant, and has
appeared to contest the petition and defend her interests. The
Local Civil Registrar is also a party defendant. The publication
required by the Court below pursuant to Rule 108 of the Rules
of Court is not absolutely necessary for no other parties are
involved. After all, publication is required to bar indifferently all
who might be minded to make an objection of any sort against
the right sought to be established. 2 Besides, even assuming
that this is a proceeding under Rule 108, it was the Court that
was caned upon to order the publication, 3 but it did not. in the
ultimate analysis, Courts are not concerned so much with the
form of actions as with their substance. 4
Second, for the merits. Considering that Amado, upon his own
plea, was convicted for Bigamy, that sentence furnishes the
necessary proof of the marital status of petitioner and the
deceased. There is no better proof of marriage than the
admission by the accused of the existence of such
13
marriage. 5 The second marriage that he contracted with
private respondent during the lifetime of his first spouse is null
and void from the beginning and of no force and effect. 6 No
judicial decree is necessary to establish the invalidity of a void
marriage. 7 It can be safely concluded, then, without need of
further proof nor remand to the Court below, that private
respondent is not the surviving spouse of the deceased
Amado, but petitioner. Rectification of the erroneous entry in
the records of the Local Civil Registrar may, therefore, be
validly made.
Having arrived at the foregoing conclusion, the other issues
raised need no longer be discussed.
In fine, since there is no question regarding the invalidity of
Amado's second marriage with private respondent and that the
entry made in the corresponding local register is thereby
rendered false, it may be corrected. 8 While document such as
death and birth certificates, are public and entries therein are
presumed to be correct, such presumption is merely
disputable and will have to yield to more positive evidence
establishing their inaccuracy. 9
WHEREFORE, the Order, dated October 21, 1975, of
respondent Court is hereby set aside and petitioner, Serafia G.
Tolentino, hereby declared the surviving spouse of the
deceased Amado Tolentino. Let the corresponding correction
be made in the latter's death certificate in the records of the
Local Civil Registrar of Paombong, Bulacan.
No costs.
SO ORDERED.
SECOND DIVISION
PARAS, J.:
In an action (Family Case No. 483) filed before the erstwhile
Juvenile and Domestic Relations Court of Caloocan City,
herein respondent Karl Heinz Wiegel (plaintiff therein) asked
for the declaration of Nullity of his marriage (celebrated on
July, 1978 at the Holy Catholic Apostolic Christian Church
Branch in Makati, Metro Manila) with herein petitioner Lilia
Oliva Wiegel (Lilia, for short, and defendant therein) on the
ground of Lilia's previous existing marriage to one Eduardo A.
Maxion, the ceremony having been performed on June 25,
1972 at our Lady of Lourdes Church in Quezon City. Lilia,
while admitting the existence of said prior subsisting marriage
claimed that said marriage was null and void, she and the first
husband Eduardo A. Maxion having been allegedly forced to
enter said marital union. In the pre-trial that ensued, the issue
agreed upon by both parties was the status of the first
marriage (assuming the presence of force exerted against
both parties): was said prior marriage void or was it merely
voidable? Contesting the validity of the pre-trial order, Lilia
14
asked the respondent court for an opportunity to present
evidence(1) that the first marriage was vitiated by force exercised upon
both her and the first husband; and
(2) that the first husband was at the time of the marriage in
1972 already married to someone else.
Respondent judge ruled against the presentation of evidence
because the existence of force exerted on both parties of the
first marriage had already been agreed upon. Hence, the
present petition for certiorari assailing the following Orders of
therespondent Judge-
(1) the Order dated March 17, 1980 in which the parties were
compelled to submit the case for resolution based on "agreed
facts;" and
Footnotes
(2) the Order dated April 14, 1980, denying petitioner's motion
to allow her to present evidence in her favor.
We find the petition devoid of merit.
There is no need for petitioner to prove that her first marriage
was vitiated by force committed against both parties because
assuming this to be so, the marriage will not be void but
merely voidable (Art. 85, Civil Code), and therefore valid until
annulled. Since no annulment has yet been made, it is clear
that when she married respondent she was still validly married
to her first husband, consequently, her marriage to respondent
is VOID (Art. 80, Civil Code).
There is likewise no need of introducing evidence about the
existing prior marriage of her first husband at the time they
married each other, for then such a marriage though void still
15
G.R. No. L-53642 April 15, 1988
LEONILO C. DONATO, petitioners,
vs.
HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF
FIRST INSTANCE OF MANIIA, BRANCH XXXII HON. JOSE
FLAMINIANO, CITY FISCAL OF MANILA; PAZ B.
ABAYAN, respondents.
Leopoldo P. Dela Rosa for petitioner.
Emiterio C. Manibog for private respondent.
City Fiscal of Manila for public respondent.
GANCAYCO, J.:
In this petition for certiorari and prohibition with preliminary
injunction, the question for the resolution of the Court is
whether or not a criminal case for bigamy pending before the
Court of First Itance of Manila should be suspended in view of
a civil case for annulment of marriage pending before the
Juvenile and Domestic Relations Court on the ground that the
latter constitutes a prejudicial question. The respondent judge
ruled in the negative. We sustain him.
EN BANC
16
On September 28, 1979, before the petitioner's arraignment,
private respondent filed with the Juvenile and Domestic
Relations Court of Manila a civil action for declaration of nullity
of her marriage with petitioner contracted on September 26,
1978, which action was docketed as Civil Case No. E-02627.
Said civil case was based on the ground that private
respondent consented to entering into the marriage, which
was petitioner Donato's second one, since she had no
previous knowledge that petitioner was already married to a
certain Rosalinda R. Maluping on June 30, 1978. Petitioner
Donato's answer in the civil case for nullity interposed the
defense that his second marriage was void since it was
solemnized without a marriage license and that force,
violence, intimidation and undue influence were employed by
private respondent to obtain petitioner's consent to the
marriage. Prior to the solemnization of the subsequent or
second marriage, petitioner and private respondent had lived
together and deported themselves as husband and wife
without the benefit of wedlock for a period of at least five years
as evidenced by a joint affidavit executed by them on
September 26, 1978, for which reason, the requisite marriage
license was dispensed with pursuant to Article 76 of the New
Civil Code pertaining to marriages of exceptional character.
Prior to the date set for the trial on the merits of Criminal Case
No. 43554, petitioner filed a motion to suspend the
proceedings of said case contending that Civil Case No. E02627 seeking the annulment of his second marriage filed by
private respondent raises a prejudicial question which must
first be determined or decided before the criminal case can
proceed.
17
guilt or innocence in the crime of bigamy. Furthermore, it was
petitioner's second wife, the herein private respondent Paz B.
Abayan who filed the complaint for annulment of the second
marriage on the ground that her consent was obtained through
deceit.
Petitioner Donato raised the argument that the second
marriage should have been declared null and void on the
ground of force, threats and intimidation allegedly employed
against him by private respondent only sometime later when
he was required to answer the civil action for anulment of the
second marriage. The doctrine elucidated upon by the case
of Landicho vs. Relova 6 may be applied to the present case.
Said case states that:
The mere fact that there are actions to annul
the marriages entered into by the accused in a
bigamy case does not mean that "prejudicial
questions" are automatically raised in civil
actions as to warrant the suspension of the
case. In order that the case of annulment of
marriage be considered a prejudicial question to
the bigamy case against the accused, it must
be shown that the petitioner's consent to such
marriage must be the one that was obtained by
means of duress, force and intimidation to show
that his act in the second marriage must be
involuntary and cannot be the basis of his
conviction for the crime of bigamy. The situation
in the present case is markedly different. At the
time the petitioner was indicted for bigamy on
February 27, 1963, the fact that two marriage
ceremonies had been contracted appeared to
be indisputable. And it was the second spouse,
not the petitioner who filed the action for nullity
on the ground of force, threats and intimidation.
18
ground of duress, as contra-distinguished from the present
case wherein it was private respondent Paz B. Abayan,
petitioner's second wife, who filed a complaint for annulment of
the second marriage on the ground that her consent was
obtained through deceit since she was not aware that
petitioner's marriage was still subsisting. Moreover, in De la
Cruz, a judgment was already rendered in the civil case that
the second marriage of De la Cruz was null and void, thus
determinative of the guilt or innocence of the accused in the
criminal case. In the present case, there is as yet no such
judgment in the civil case.
Pursuant to the doctrine discussed in Landicho vs. Relova,
petitioner Donato cannot apply the rule on prejudicial
questions since a case for annulment of marriage can be
considered as a prejudicial question to the bigamy case
against the accused only if it is proved that the petitioner's
consent to such marriage was obtained by means of duress,
violence and intimidation in order to establish that his act in the
subsequent marriage was an involuntary one and as such the
same cannot be the basis for conviction. The preceding
elements do not exist in the case at bar.
Obviously, petitioner merely raised the issue of prejudicial
question to evade the prosecution of the criminal case. The
records reveal that prior to petitioner's second marriage on
September 26, 1978, he had been living with private
respondent Paz B. Abayan as husband and wife for more than
five years without the benefit of marriage. Thus, petitioner's
averments that his consent was obtained by private
respondent through force, violence, intimidation and undue
influence in entering a subsequent marriage is belled by the
fact that both petitioner and private respondent executed an
affidavit which stated that they had lived together as husband
and wife without benefit of marriage for five years, one month
and one day until their marital union was formally ratified by
Footnotes
19
1 22 SCRA 731.
2 68 SCRA 1.
PER CURIAM:
20
about her prior marriage, Dorothy drove him out of their
conjugal residence; that Dorothy had mockingly told him of her
private meetings with Merlito A. Bercenilla and that the child
she was then carrying (i.e., Jason Terre) was the son of
Bercenilla; that believing in good faith that his marriage to
complainant was null and void ab initio, he contracted
marriage with Helina Malicdem at Dasol, Pangasinan. 4
In her Reply, complainant Dorothy denied that Jason Terre was
the child of Merlito A. Bercenilla and insisted that Jason was
the child of respondent Jordan Terre, as evidenced by Jason's
Birth Certificate and physical resemblance to respondent.
Dorothy further explained that while she had given birth to
Jason Terre at the PAFGH registered as a dependent of
Merlito Bercenilla, she had done so out of extreme necessity
and to avoid risk of death or injury to the fetus which happened
to be in a difficult breech position. According to Dorothy, she
had then already been abandoned by respondent Jordan
Terre, leaving her penniless and without means to pay for the
medical and hospital bills arising by reason of her pregnancy.
The Court denied respondent's Motion to Set Aside or Lift the
Suspension Order and instead referred; by a Resolution dated
6 January 1986, the complaint to the Office of the Solicitor
General for investigation, report and recommendation. 5
Then Solicitor Pio C. Guerrero was appointed investigator by
the Office of the Solicitor General. He set the case for hearing
on 7 July 1986 with notice to both parties. On 7 July 1986,
complainant Dorothy appeared and presented her evidence ex
parte, since respondent did not so appear. 6 The Investigating
Solicitor scheduled and held another hearing on 19 August
1986, where he put clarificatory questions to the complainant;
respondent once again did not appear despite notice to do so.
Complainant finally offered her evidence and rested her case.
The Solicitor set still another hearing for 2 October 1986,
21
[complainant's] objection, he [respondent] wrote
"single" as her status explaining that since her
marriage was void ab initio, there was no need to go to
court to declare it as such (ibid, 14-15); they were
married before Judge Priscilla Mijares of the City Court
of Manila on June 14, 1977 (Exhibit A; tsn, July 7,
1986, pp. 16-17); Jason Terre was born of their union
on June 25, 1981 (Exhibit B, tsn, July 7, 1986, p. 18);
all through their married state up to the time he
[respondent] disappeared in 1981, complainant
supported respondent, in addition to the allowance the
latter was getting from his parents (ibid, pp. 19-20); she
was unaware of the reason for his disappearance until
she found out later that respondent married a certain
Vilma [sic] Malicdem (Exhibit C, tsn, July 7, 1986, pp.
21-22); she then filed a case for abandonment of minor
with the City Fiscal of Pasay City (ibid, p. 23) which
was subsequently filed before Branch II of the City
Court of Pasay City as Criminal Case No. 816159
(Exhibit D; tsn, July 7, 1986, p. 24); she likewise filed a
case for bigamy against respondent and Helina
Malicdem with the office of the Provincial Fiscal of
Pangasinan, where a prima facie case was found to
exist (Exhibit E; tsn, July 7, pp. 25-26); additionally,
complainant filed an administrative case against
respondent with the Commission on Audit where he
was employed, which case however was considered
closed for being moot and academic when respondent
was considered automatically separated from the
service for having gone on absence without official
leave (Exhibit F; tsn, July 7, 1986, pp. 28-29). 7
There is no dispute over the fact that complainant Dorothy
Terre and respondent Jordan Terre contracted marriage on 14
July 1977 before Judge Priscilla Mijares. There is further no
dispute over the fact that on 3 May 1981, respondent Jordan
22
That the moral character of respondent Jordan Terre was
deeply flawed is shown by other circumstances. As noted, he
convinced the complainant that her prior marriage to Bercenilla
was null and void ab initio, that she was still legally single and
free to marry him. When complainant and respondent had
contracted their marriage, respondent went through law school
while being supported by complainant, with some assistance
from respondent's parents. After respondent had finished his
law course and gotten complainant pregnant, respondent
abandoned the complainant without support and without the
wherewithal for delivering his own child safely in a hospital.
Thus, we agree with the Solicitor General that respondent
Jordan Terre, by his actions, "eloquently displayed, not only his
unfitness to remain as a member of the Bar, but likewise his
inadequacy to uphold the purpose and responsibility of his
gender" because marriage is a basic social institution. 9
In Pomperada v. Jochico, 10 the Court, in rejecting a petition to
be allowed to take the oath as a member of the Bar and to
sign the Roll of Attorneys, said through Mme. Justice
Melencio-Herrera:
It is evident that respondent fails to meet the standard
of moral fitness for membership in the legal profession.
Whether the marriage was a joke as respondent
claims, or a trick played on her as claimed by
complainant, it does not speak well of respondent's
moral values. Respondent had made a mockery of
marriage, a basic social institution which public policy
cherishes and protects (Article 216, Civil Code). 11
In Bolivar v. Simbol, 12 the Court found the respondent there
guilty of "grossly immoral conduct" because he made a dupe
of complainant, living on her bounty and allowing her to spend
for his schooling and other personal necessities while dangling
23
2 Three (3) attempts were made by registered mail:
the first two (2), at respondent's address at Abelardo
Street, Cadiz City, Negros Occidental, and the third,
at respondent's employment address at Commission
on Audit, Cadiz City. Another attempt was made at
respondent's address at Bliss Project Daga, Cadig
City, through the assistance of the P.C. Command at
Bacolod City; and another at Lumbunao Calinog
Sugar Mill, Iloilo (Court's Resolution dated 24 April
1985, Rollo, p. 47).
3 Resolution, 24 April 1985. Rollo, p. 52.
4 Rollo, p. 53.
5 Id., p. 70.
6 In his Answer with Motion to Set Aside and/or Lift
Suspension Order, respondent Jordan Terre stated
his address as "c/o 4th Floor, PAIC Building, 105
Paseo de Roxas, Makati, Metro Manila." Court
papers sent to him at that address were, however,
returned unserved with the notation "not known at
given address" (Rollo, p. 63). It thus appears that
Jordan Terre once more submerged to evade service
of legal papers on him.
7 Rollo, p. 73.
8 Gomez v. Lipana, 33 SCRA 615 (1970); Vda. de
Consuegra v. Government Service Insurance
System, 37 SCRA 316 (1971); Wiegel v. Hon. Alicia
Sempio-Diy, etc., et al, 143 SCRA 499 (1986). This
rule has been cast into statutory form by Article 40 of
the Family Code (Executive Order No. 209, dated 6
July 1987).
9 Arroyo v. Court of Appeals, et al., G.R. Nos. 96602
and 96715, 19 November 1991.
10 133 SCRA 309 (1984).
11 133 SCRA at 316. See also Cordova v. Cordova,
179 SCRA 680 (1989) and Laguitan v. Tinio, 179
SCRA 837 (1989).
12 16 SCRA 623 (1966).
13 16 SCRA 630.
FIRST DIVISION
BELLOSILLO, J.:
Bigamy is an illegal marriage committed by contracting a
second or subsequent marriage before the first marriage has
been legally dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment
rendered in the proper proceedings. 1 Bigamy carries with it the
imposable penalty of prision mayor. Being punishable by an
afflictive penalty, this crime prescribes in fifteen (15)
years. 2 The fifteen-year prescriptive period commences to run
from the day on which the crime is discovered by the offended
party, the authorities, or their agents . . . 3
That petitioner contracted a bigamous marriage seems
impliedly admitted. 4 At least, it is not expressly denied. Thus
the only issue for resolution is whether his prosecution for
bigamy is already time-barred, which hinges on whether its
discovery is deemed to have taken place from the time the
offended party actually knew of the second marriage or from
the time the document evidencing the subsequent marriage
24
was registered with the Civil Registry consistent with the rule
on constructive notice.
The antecedents: In an information filed on 26 May 1992,
petitioner Jose C. Sermonia was charged with bigamy before
the Regional Trial Court of Pasig, Br. 151, for contracting
marriage with Ma. Lourdes Unson on 15 February 1975 while
his prior marriage to Virginia C. Nievera remained valid and
subsisting. 5
Petitioner moved to quash the information on the ground that
his criminal liability for bigamy has been extinguished by
prescription.
In the order of 1 October 1992, respondent judge denied the
motion to quash. On 27 October 1992, he likewise denied the
motion to reconsider his order of denial.
Petitioner challenged the above orders before the Court of
Appeals through a petition for certiorari and prohibition. In the
assailed decision of
21 January 1993, his petition was dismissed for lack of merit. 6
In this recourse, petitioner contends that his criminal liability for
bigamy has been obliterated by prescription. He avers that
since the second marriage contract was duly registered with
the Office of the Civil Registrar in 1975, 7such fact of
registration makes it a matter of public record and thus
constitutes notice to the whole world. The offended party
therefore is considered to have had constructive notice of the
subsequent marriage as of 1975; hence, prescription
commenced to run on the day the marriage contract was
registered. For this reason, the corresponding information for
bigamy should have been filed on or before 1990 and not only
in 1992.
25
order to conceal his legal impediment to contract
another marriage.
In the case of real property, the registration of any
transaction involving any right or interest therein is
made in the Register of Deeds of the place where the
said property is located. Verification in the office of the
Register of Deeds concerned of the transactions
involving the said property can easily be made by any
interested party. In the case of a bigamous marriage,
verification by the offended person or the authorities of
the same would indeed be quite difficult as such a
marriage may be entered into in a place where the
offender is not known to be still a married person.
Be it noted that in the criminal cases cited by the
petitioner wherein constructive notice was applied,
involved therein were land or property disputes and
certainly, marriage is not property.
The non-application to the crime of bigamy of the
principle of constructive notice is not contrary to the well
entrenched policy that penal laws should be construed
liberally in favor of the accused. To compute the
prescriptive period for the offense of bigamy from
registration thereof would amount to almost absolving
the offenders thereof for liability therefor. While the
celebration of the bigamous marriage may be said to be
open and made of public record by its registration, the
offender however is not truthful as he conceals from the
officiating authority and those concerned the existence
of his previous subsisting marriage. He does not reveal
to them that he is still a married person. He likewise
conceals from his legitimate spouse his bigamous
marriage. And for these, he contracts the bigamous
marriage in a place where he is not known to be still a
26
there is no legal basis for applying the constructive notice rule
to the documents registered in the Civil Register.
#Footnotes
27
10 Art. 352. Performance of illegal marriage
ceremony. Priests or ministers of any
religious denomination or sect, or civil
authorities who shall perform or authorize any
illegal marriage ceremony shall be punished in
accordance with the provisions of the Marriage
Law (The Revised Penal Code).
SECOND DIVISION
[G.R. No. 145226. February 06, 2004]
28
In1984,LucioMorigowassurprisedtoreceiveacardfromLucia
BarretefromSingapore.Theformerrepliedandafteranexchangeof
letters,theybecamesweethearts.
In1986,LuciareturnedtothePhilippinesbutleftagainforCanada
toworkthere.WhileinCanada,theymaintainedconstant
communication.
In1990,LuciacamebacktothePhilippinesandproposedtopetition
appellanttojoinherinCanada.Bothagreedtogetmarried,thusthey
weremarriedonAugust30,1990attheIglesiadeFilipina
NacionalatCatagdaan,Pilar,Bohol.
OnSeptember8,1990,LuciareportedbacktoherworkinCanada
leavingappellantLuciobehind.
OnAugust19,1991,LuciafiledwiththeOntarioCourt(General
Division)apetitionfordivorceagainstappellantwhichwasgranted
bythecourtonJanuary17,1992andtotakeeffectonFebruary17,
1992.
OnOctober4,1992,appellantLucioMorigomarriedMariaJececha
Lumbago[4]attheVirgensaBarangayParish,TagbilaranCity,
Bohol.
OnSeptember21,1993,accusedfiledacomplaintforjudicial
declarationofnullityofmarriageintheRegionalTrialCourtof
Bohol,docketedasCivilCaseNo.6020.Thecomplaintseek(sic)
amongothers,thedeclarationofnullityofaccusedsmarriagewith
Lucia,onthegroundthatnomarriageceremonyactuallytookplace.
OnOctober19,1993,appellantwaschargedwithBigamyinan
Information[5]filedbytheCityProsecutorofTagbilaran[City],with
theRegionalTrialCourtofBohol.[6]
29
matrimonial status of the parties. As such, a divorce granted
by said court is not entitled to recognition anywhere.
Debunking Lucios defense of good faith in contracting the
second marriage, the trial court stressed that following People
v. Bitdu,[10] everyone is presumed to know the law, and the fact
that one does not know that his act constitutes a violation of
the law does not exempt him from the consequences thereof.
30
FAILINGTOAPPRECIATE[THE]PETITIONERSLACKOF
CRIMINALINTENTWHENHECONTRACTEDTHESECOND
MARRIAGE.
B.
WHETHERORNOTTHECOURTOFAPPEALSERREDIN
HOLDINGTHATTHERULINGINPEOPLEVS.BITDU(58
PHIL.817)ISAPPLICABLETOTHECASEATBAR.
C.
WHETHERORNOTTHECOURTOFAPPEALSERREDIN
FAILINGTOAPPLYTHERULETHATEACHANDEVERY
CIRCUMSTANCEFAVORINGTHEINNOCENCEOFTHE
ACCUSEDMUSTBETAKENINTOACCOUNT.[17]
To our mind, the primordial issue should be whether or not
petitioner committed bigamy and if so, whether his defense of
good faith is valid.
The petitioner submits that he should not be faulted for
relying in good faith upon the divorce decree of the Ontario
court. He highlights the fact that he contracted the second
marriage openly and publicly, which a person intent upon
bigamy would not be doing. The petitioner further argues that
his lack of criminal intent is material to a conviction or acquittal
in the instant case. The crime of bigamy, just like other felonies
punished under the Revised Penal Code, is mala in se, and
hence, good faith and lack of criminal intent are allowed as a
complete defense. He stresses that there is a difference
between the intent to commit the crime and the intent to
perpetrate the act. Hence, it does not necessarily follow that
his intention to contract a second marriage is tantamount to an
intent to commit bigamy.
31
WHEREFORE,premisesconsidered,judgmentisherebyrendered
decreeingtheannulmentofthemarriageenteredintobypetitioner
LucioMorigoandLuciaBarreteonAugust23,1990inPilar,Bohol
andfurtherdirectingtheLocalCivilRegistrarofPilar,Boholto
effectthecancellationofthemarriagecontract.
SOORDERED.[21]
Ajudicialdeclarationofnullityofapreviousmarriageisnecessary
beforeasubsequentonecanbelegallycontracted.Onewhoenters
intoasubsequentmarriagewithoutfirstobtainingsuchjudicial
declarationisguiltyofbigamy.Thisprincipleappliesevenifthe
earlierunionischaracterizedbystatutesasvoid. [26]
It bears stressing though that in Mercado, the first
marriage was actually solemnized not just once, but twice: first
before a judge where a marriage certificate was duly issued
and then again six months later before a priest in religious
rites. Ostensibly, at least, the first marriage appeared to have
transpired, although later declared void ab initio.
In the instant case, however, no marriage ceremony at all
was performed by a duly authorized solemnizing officer.
Petitioner and Lucia Barrete merely signed a marriage contract
on their own. The mere private act of signing a marriage
contract bears no semblance to a valid marriage and thus,
needs no judicial declaration of nullity. Such act alone, without
more, cannot be deemed to constitute an ostensibly valid
marriage for which petitioner might be held liable for bigamy
unless he first secures a judicial declaration of nullity before he
contracts a subsequent marriage.
32
The law abhors an injustice and the Court is mandated to
liberally construe a penal statute in favor of an accused and
weigh every circumstance in favor of the presumption of
innocence to ensure that justice is done. Under the
circumstances of the present case, we held that petitioner has
not committed bigamy. Further, we also find that we need not
tarry on the issue of the validity of his defense of good faith or
lack of criminal intent, which is now moot and academic.
WHEREFORE, the instant petition is GRANTED. The
assailed decision, dated October 21, 1999 of the Court of
Appeals in CA-G.R. CR No. 20700, as well as the resolution of
the appellate court dated September 25, 2000, denying herein
petitioners motion for reconsideration, is REVERSED and SET
ASIDE. The petitioner Lucio Morigo y Cacho is ACQUITTED
from the charge of BIGAMY on the ground that his guilt has
not been proven with moral certainty.
SO ORDERED.
Puno,
(Chairman),
Sr., and Tinga, JJ., concur.
[1]
Austria-Martinez,
Callejo,
[2]
[3]
[5]
[7]
Records, p. 119.
[8]
[9]
[10]
[11]
Rollo, p. 43.
[12]
33
dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the
proper proceedings.
[22]
[13]
Art. 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad.
[14]
Art. 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the
country in which they are executed.
[23]
[15]
[16]
Rollo, p. 51.
[24]
Rollo, p. 54.
[17]
Id. at 20-21.
[25]
[18]
[26]
Id. at 124.
[19]
[20]
Supra.
[21]
CA Rollo, p. 38.
THIRD DIVISION
[G.R. No. 136467. April 6, 2000]
34
ANTONIA ARMAS Y CALISTERIO, petitioner,
vs. MARIETTA CALISTERIO, respondent.
DECISION
VITUG, J.:
On 24 April 1992, Teodorico Calisterio died intestate, leaving
several parcels of land with an estimated value of
P604,750.00. Teodorico was survived by his wife, herein
respondent Marietta Calisterio.
Teodorico was the second husband of Marietta who had
previously been married to James William Bounds on 13
January 1946 at Caloocan City. James Bounds disappeared
without a trace on 11 February 1947. Teodorico and Marietta
were married eleven years later, or on 08 May 1958, without
Marietta having priorly secured a court declaration that James
was presumptively dead.
On 09 October 1992, herein petitioner Antonia Armas y
Calisterio, a surviving sister of Teodorico, filed with the
Regional Trial Court ("RTC") of Quezon City, Branch 104, a
petition entitled, "In the Matter of Intestate Estate of the
Deceased Teodorico Calisterio y Cacabelos, Antonia Armas,
Petitioner," claiming to be inter alia, the sole surviving heir of
Teodorico Calisterio, the marriage between the latter and
respondent Marietta Espinosa Calisterio being allegedly
bigamous and thereby null and void. She prayed that her son
Sinfroniano C. Armas, Jr., be appointed administrator, without
bond, of the estate of the deceased and that the inheritance be
adjudicated to her after all the obligations of the estate would
have been settled.
Respondent Marietta opposed the petition. Marietta stated that
her first marriage with James Bounds had been dissolved due
35
"3. The trial court erred in not holding that the
property situated at No. 32 Batangas Street,
San Francisco del Monte, Quezon City, is the
conjugal property of the oppositor-appellant and
the deceased Teodorico Calisterio.
"4. The trial court erred in holding that
oppositor-appellant is not a legal heir of
deceased Teodorico Calisterio.
"5. The trial court erred in not holding that
letters of administration should be granted
solely in favor of oppositor-appellant."[2]
On 31 August 1998, the appellate court, through Mr. Justice
Conrado M. Vasquez, Jr., promulgated its now assailed
decision, thus:
"IN VIEW OF ALL THE FOREGOING, the
Decision appealed from is REVERSED AND
SET ASIDE, and a new one entered declaring
as follows:
"(a) Marietta Calisterio's marriage to Teodorico
remains valid;
"(b) The house and lot situated at #32 Batangas
Street, San Francisco del Monte, Quezon City,
belong to the conjugal partnership property with
the concomitant obligation of the partnership to
pay the value of the land to Teodorico's estate
as of the time of the taking;
"(c) Marietta Calisterio, being Teodorico's
compulsory heir, is entitled to one half of her
husband's estate, and Teodorico's sister, herein
36
Verily, the applicable specific provision in the instant
controversy is Article 83 of the New Civil Code which
provides: Kyle
"Art. 83. Any marriage subsequently contracted by any
person during the lifetime of the first spouse of such
person with any person other than such first spouse
shall be illegal and void from its performance, unless:
"(1) The first marriage was annulled or dissolved; or
"(2) The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the
absentee being alive, or if the absentee, though he has
been absent for less than seven years, is generally
considered as dead and believed to be so by the
spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed
dead according to articles 390 and 391. The marriage
so contracted shall be valid in any of the three cases
until declared null and void by a competent court."
Under the foregoing provisions, a subsequent marriage
contracted during the lifetime of the first spouse is illegal and
void ab initio unless the prior marriage is first annulled or
dissolved. Paragraph (2) of the law gives exceptions from the
above rule. For the subsequent marriage referred to in the
three exceptional cases therein provided, to be held valid, the
spouse present (not the absentee spouse) so contracting the
later marriage must have done so in good faith.[6] Bad faith
imports a dishonest purpose or some moral obliquity and
conscious doing of wrong - it partakes of the nature of fraud, a
breach of a known duty through some motive of interest or ill
will.[7] The Court does not find these circumstances to be here
extant.
37
dissolution with the death of Teodorico, the property should
rightly be divided in two equal portions -- one portion going to
the surviving spouse and the other portion to the estate of the
deceased spouse. The successional right in intestacy of a
surviving spouse over the net estate[11] of the deceased,
concurring with legitimate brothers and sisters or nephews and
nieces (the latter by right of representation), is one-half of the
inheritance, the brothers and sisters or nephews and nieces,
being entitled to the other half. Nephews and nieces, however,
can only succeed by right of representation in the presence of
uncles and aunts; alone, upon the other hand, nephews and
nieces can succeed in their own right which is to say that
brothers or sisters exclude nephews and nieces except only in
representation by the latter of their parents who predecease or
are incapacitated to succeed. The appellate court has thus
erred in granting, in paragraph (c) of the dispositive portion of
its judgment, successional rights, to petitioner's children, along
with their own mother Antonia who herself is invoking
successional rights over the estate of her deceased brother.
WHEREFORE, the assailed judgment of the Coin of Appeals
in CA G.R. CV No. 51574 is AFFIRMED except insofar only as
it decreed in paragraph (c) of the dispositive portion thereof
that the children of petitioner are likewise entitled, along with
her, to the other half of the inheritance, in lieu of which, it is
hereby DECLARED that said one-half share of the decedent's
estate pertains solely to petitioner to the exclusion of her own
children. No costs.
SO ORDERED.
Melo, (Chairman), Panganiban, Purisima, and GonzagaReyes, JJ., concur.
[1]
Rollo, p. 45.
Rollo, pp. 29-30.
[3]
Rollo, pp. 35-36.
[4]
Rollo, p. 15.
[5]
Article 256. This Code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired rights in accordance
with the Civil Code or other laws.
[6]
The good faith or bad faith of the other contracting party to the
subsequent marriage is not all that consequential (See Lapuz Sy vs.
Eufemio, 43 SCRA 177).
[7]
Commissioner of Internal Revenue vs. Court of Appeals, 267
SCRA 557.
[8]
Jones vs. Hortiguela, 64 Phil. 179.
[2]
[9]
38
THIRD DIVISION
39
the matter of Janet Monica's disappearance to the Philippine
government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as
his witness. She testified that her daughter-in-law Janet
Monica had expressed a desire to return to England even
before she had given birth to Gerry Nolasco on 7 December
1982. When asked why her daughter-in-law might have
wished to leave Antique, respondent's mother replied that
Janet Monica never got used to the rural way of life in San
Jose, Antique. Alicia Nolasco also said that she had tried to
dissuade Janet Monica from leaving as she had given birth to
her son just fifteen days before, but when she (Alicia) failed to
do so, she gave Janet Monica P22,000.00 for her expenses
before she left on 22 December 1982 for England. She further
claimed that she had no information as to the missing person's
present whereabouts.
The trial court granted Nolasco's petition in a Judgment dated
12 October 1988 the dispositive portion of which reads:
Wherefore, under Article 41, paragraph 2 of the Family
Code of the Philippines (Executive Order No. 209, July
6, 1987, as amended by Executive Order No. 227, July
17, 1987) this Court hereby declares as presumptively
dead Janet Monica Parker Nolasco, without prejudice
to her reappearance. 4
The Republic appealed to the Court of Appeals contending
that the trial court erred in declaring Janet Monica Parker
presumptively dead because respondent Nolasco had failed to
show that there existed a well founded belief for such
declaration.
40
For the purpose of contracting the subsequent
marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as
provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. (Emphasis
supplied).
When Article 41 is compared with the old provision of the Civil
Code, which it superseded, 7 the following crucial differences
emerge. Under Article 41, the time required for the
presumption to arise has been shortened to four (4) years;
however, there is need for a judicial declaration of presumptive
death to enable the spouse present to remarry. 8 Also, Article
41 of the Family Code imposes a stricter standard than the
Civil Code: Article 83 of the Civil Code merely requires either
that there be no news that such absentee is still alive; or the
absentee is generally considered to be dead and believed to
be so by the spouse present, or is presumed dead under
Article 390 and 391 of the Civil Code. 9 The Family Code, upon
the other hand, prescribes as "well founded belief" that the
absentee is already dead before a petition for declaration of
presumptive death can be granted.
As pointed out by the Solicitor-General, there are four (4)
requisites for the declaration of presumptive death under
Article 41 of the Family Code:
1. That the absent spouse has been missing for
four consecutive years, or two consecutive
years if the disappearance occurred where
there is danger of death under the
circumstances laid down in Article 391, Civil
Code;
2. That the present spouse wishes to remarry;
41
his suspicion was the fact that she had been
absent. . . . 13
In the case at bar, the Court considers that the investigation
allegedly conducted by respondent in his attempt to ascertain
Janet Monica Parker's whereabouts is too sketchy to form the
basis of a reasonable or well-founded belief that she was
already dead. When he arrived in San Jose, Antique after
learning of Janet Monica's departure, instead of seeking the
help of local authorities or of the British Embassy, 14 he
secured another seaman's contract and went to London, a
vast city of many millions of inhabitants, to look for her there.
Q After arriving here in San Jose, Antique, did you
exert efforts to inquire the whereabouts of your wife?
A Yes, Sir.
Court:
How did you do that?
A I secured another contract with the ship and we had
a trip to London and I went to London to look for her I
could not find her (sic). 15 (Emphasis supplied)
Respondent's testimony, however, showed that he confused
London for Liverpool and this casts doubt on his supposed
efforts to locate his wife in England. The Court of Appeal's
justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily
know the geographical difference between London and
Liverpool, for a humble seaman like Gregorio the two
places could mean one place in England, the port
where his ship docked and where he found Janet. Our
42
Respondent testified that immediately after receiving his
mother's letter sometime in January 1983, he cut short his
employment contract to return to San Jose, Antique. However,
he did not explain the delay of nine (9) months from January
1983, when he allegedly asked leave from his captain, to
November 1983 when be finally reached San Jose.
Respondent, moreover, claimed he married Janet Monica
Parker without inquiring about her parents and their place of
residence. 19 Also, respondent failed to explain why he did not
even try to get the help of the police or other authorities in
London and Liverpool in his effort to find his wife. The
circumstances of Janet Monica's departure and respondent's
subsequent behavior make it very difficult to regard the
claimed belief that Janet Monica was dead a well-founded
one.
In Goitia v. Campos-Rueda, 20 the Court stressed that:
. . . Marriage is an institution, the maintenance of which
in its purity the public is deeply interested. It is a
relationship for life and the parties cannot terminate it
at any shorter period by virtue of any contract they
make. . . . . 21 (Emphasis supplied)
By the same token, the spouses should not be allowed, by the
simple expedient of agreeing that one of them leave the
conjugal abode and never to return again, to circumvent the
policy of the laws on marriage. The Court notes that
respondent even tried to have his marriage annulled before
the trial court in the same proceeding.
In In Re Szatraw, 22 the Court warned against such collusion
between the parties when they find it impossible to dissolve
the marital bonds through existing legal means.
43
The family, being the foundation of the nation, is
a basic social institution which public policy
cherishes and protects. Consequently, family
relations are governed by law and no custom,
practice or agreement destructive of the family
shall be recognized or given effect. 24
In fine, respondent failed to establish that he had the wellfounded belief required by law that his absent wife was already
dead that would sustain the issuance of a court order declaring
Janet Monica Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23
February 1990, affirming the trial court's decision declaring
Janet Monica Parker presumptively dead is hereby
REVERSED and both Decisions are hereby NULLIFIED and
SET ASIDE. Costs against respondent.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
Gutierrez, Jr. J., is on leave.
# Footnotes
1 Petition, p. 2; Record, p. 7.
2 Records, p. 13.
3 Records, p. 14.
4 Trial Court Decision, p. 4; Records, p. 39.
5 Petition, p. 9; Rollo, p. 13.
6 Id.
7 Pertinent portions of Article 83 of the Civil
Code reads:
Art. 83. Any marriage subsequently contracted
by any person during the lifetime of the first
spouse of such person with any other person
other than such first spouse shall be illegal and
void from its performance, unless:
xxx xxx xxx
44
SECOND DIVISION
REPUBLIC
OF
PHILIPPINES,
Petitioner,
- versus -
YOLANDA CADACIO
GRANADA,
Respondent.
THE
G. R. No. 187512
Present:
CARPIO, J., Chairperson,
BRION,
PEREZ,
SERENO, and
REYES, JJ.
Promulgated:
June 13, 2012
x-----------------------------------x
DECISION
SERENO, J.:
This is a Rule 45 Petition seeking the reversal of the Resolutions
dated 23 January 2009[1] and 3 April 2009[2] issued by the Court of
Appeals (CA), which affirmed the grant by the Regional Trial Court
(RTC) of the Petition for Declaration of Presumptive Death of the
absent spouse of respondent.
In May 1991, respondent Yolanda Cadacio Granada
(Yolanda) met Cyrus Granada (Cyrus) at Sumida Electric
Philippines,
an
electronics
company in Paranaque where both were then working. The two
eventually got married at the Manila City Hall on 3 March 1993.
Their marriage resulted in the birth of their son, Cyborg Dean
Cadacio Granada.
45
Family Code is a summary proceeding. Thus, judgment thereon is
immediately final and executory upon notice to the parties.
Petitioner moved for reconsideration, but its motion was
likewise denied by the CA in a Resolution dated 3 April 2009. [4]
Hence, the present Rule 45 Petition.
Issues
1.
Whether the CA seriously erred
in dismissing the Petition on the ground that the
Decision of the RTC in a summary proceeding for
the declaration of presumptive death is immediately
final and executory upon notice to the parties and,
hence, is not subject to ordinary appeal
2.
Whether the CA seriously erred
in affirming the RTCs grant of the Petition for
Declaration of Presumptive Death under Article 41
of the Family Code based on the evidence that
respondent presented
Our Ruling
1. On whether the CA seriously erred in dismissing
the Petition on the ground that the Decision of the
RTC in a summary proceeding for the declaration of
presumptive death is immediately final and executory
upon notice to the parties and, hence, is not subject to
ordinary appeal
In the assailed Resolution dated 23 January 2009, the CA
dismissed the Petition assailing the RTCs grant of the Petition for
Declaration of Presumptive Death of the absent spouse under Article
41 of the Family Code. Citing Republic v. Bermudez-Lorino,[5] the
appellate court noted that a petition for declaration of presumptive
46
Further, Title XI of the Family Code is entitled Summary
Judicial Proceedings in the Family Law. Subsumed thereunder are
Articles 238 and 247, which provide:
Art. 238. Until modified by the Supreme Court, the
procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court
proceedings. Such cases shall be decided in an
expeditious manner without regard to technical
rules.
xxx xxx xxx
Art. 247. The judgment of the court shall be
immediately final and executory.
Further, Article 253 of the Family Code reads:
ART. 253. The foregoing rules in Chapters 2 and 3
hereof shall likewise govern summary proceedings
filed under Articles 41, 51, 69, 73, 96, 124 and 217,
insofar as they are applicable.
Taken together, Articles 41, 238, 247 and 253 of the Family
Code provide that since a petition for declaration of presumptive
death is a summary proceeding, the judgment of the court therein
shall be immediately final and executory.
In Republic v. Bermudez-Lorino,[6] the Republic likewise
appealed the CAs affirmation of the RTCs grant of respondents
Petition for Declaration of Presumptive Death of her absent spouse.
The Court therein held that it was an error for the Republic to file a
Notice of Appeal when the latter elevated the matter to the CA, to
wit:
47
appealing special proceedings cases. The CA affirmed the RTC
ruling. In reversing the CA, this Court clarified that while an action
for declaration of death or absence under Rule 72, Section 1(m),
expressly falls under the category of special proceedings, a petition
for declaration of presumptive death under Article 41 of the Family
Code is a summary proceeding, as provided for by Article 238 of the
same Code. Since its purpose was to enable her to contract a
subsequent valid marriage, petitioners action was a summary
proceeding based on Article 41 of the Family Code, rather than a
special proceeding under Rule 72 of the Rules of Court. Considering
that this action was not a special proceeding, petitioner
was not required to file a record on appeal when it appealed the RTC
Decision to the CA.
We do not agree with the Republics argument that Republic
v. Jomoc superseded our ruling in Republic v. Bermudez-Lorino. As
observed by the CA, the Supreme Court in Jomoc did not expound
on the characteristics of a summary proceeding under the Family
Code. In contrast, the Court in Bermudez-Lorino expressly stated that
its ruling on the impropriety of an ordinary appeal as a vehicle for
questioning the trial courts Decision in a summary proceeding for
declaration of presumptive death under Article 41 of the Family
Code was intended to set the records straight and for the future
guidance of the bench and the bar.
At any rate, four years after Jomoc, this Court settled the rule
regarding appeal of judgments rendered in summary proceedings
under the Family Code when it ruled in Republic v. Tango:[9]
This case presents an opportunity for us to
settle the rule on appeal of judgments rendered in
summary proceedings under the Family Code and
accordingly, refine our previous decisions thereon.
Article 238 of the Family Code, under Title
XI: SUMMARY JUDICIAL PROCEEDINGS IN
48
trial court's judgment in a summary proceeding for
the declaration of presumptive death of an absent
spouse under Article 41 of the Family Code. It goes
without saying, however, that an aggrieved party
may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in
accordance with the Doctrine of Hierarchy of
Courts. To be sure, even if the Court's original
jurisdiction to issue a writ of certiorari is concurrent
with the RTCs and the Court of Appeals in certain
cases, such concurrence does not sanction an
unrestricted freedom of choice of court forum. From
the decision of the Court of Appeals, the losing party
may then file a petition for review on certiorari
under Rule 45 of the Rules of Court with the
Supreme Court. This is because the errors which the
court may commit in the exercise of jurisdiction are
merely errors of judgment which are the proper
subject of an appeal.
In sum, under Article 41 of the Family Code, the losing party
in a summary proceeding for the declaration of presumptive death
may file a petition for certiorari with the CA on the ground that, in
rendering judgment thereon, the trial court committed grave abuse of
discretion amounting to lack of jurisdiction. From the decision of the
CA, the aggrieved party may elevate the matter to this Court via a
petition for review on certiorari under Rule 45 of the Rules of Court.
Evidently then, the CA did not commit any error in
dismissing the Republics Notice of Appeal on the ground that the
RTC judgment on the Petition for Declaration of Presumptive Death
of respondents spouse was immediately final and executory and,
hence, not subject to ordinary appeal.
2.
On whether the CA seriously erred in affirming
the RTCs grant of the Petition for Declaration of
Presumptive Death under Article 41 of the Family
Code based on the evidence that respondent had
presented
Petitioner also assails the RTCs grant of the Petition for
Declaration of Presumptive Death of the absent spouse of respondent
on the ground that she had not adduced the evidence required to
establish a well-founded belief that her absent spouse was already
dead, as expressly required by Article 41 of the Family Code.
Petitioner cites Republic v. Nolasco,[10] United States v.
Biasbas[11] and Republic v. Court of Appeals and Alegro[12] as
authorities on the subject.
In Nolasco, petitioner Republic sought the reversal of the
CAs affirmation of the RTCs grant of respondents Petition for
Declaration of Presumptive Death of his absent spouse, a British
subject who left their home in the Philippines soon after giving birth
to their son while respondent was on board a vessel working as a
seafarer. Petitioner Republic sought the reversal of the ruling on the
ground that respondent was not able to establish
his well-founded belief that the absentee is already dead, as required
by Article 41 of the Family Code. In ruling thereon, this Court
recognized that this provision imposes more stringent requirements
than does Article 83 of the Civil Code. [13] The Civil Code provision
merely requires either that there be no news that the absentee is still
alive; or that the absentee is generally considered to be dead and is
believed to be so by the spouse present, or is presumed dead under
Articles 390 and 391 of the Civil Code. In comparison, the Family
Code provision prescribes a well-founded belief that the absentee is
already dead before a petition for declaration of presumptive death
can be granted. As noted by the Court in that case, the four requisites
for the declaration of presumptive death under the Family Code are
as follows:
49
1. That the absent spouse has been missing for four
consecutive years, or two consecutive years if
the disappearance occurred where there is
danger of death under the circumstances laid
down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief
that the absentee is dead; and
4. That the present spouse files a summary
proceeding for the declaration of presumptive
death of the absentee.
In evaluating whether the present spouse has been able to
prove the existence of a well-founded belief that the absent spouse is
already dead, the Court in Nolasco cited United States v. Biasbas,
[14]
which it found to be instructive as to the diligence required in
searching for a missing spouse.
In Biasbas, the Court held that defendant Biasbas failed to
exercise due diligence in ascertaining the whereabouts of his first
wife, considering his admission that that he only had a suspicion that
she was dead, and that the only basis of that suspicion was the fact of
her absence.
Similarly, in Republic v. Court of Appeals and Alegro,
petitioner Republic sought the reversal of the CA ruling affirming the
RTCs grant of the Petition for Declaration of Presumptive Death of
the absent spouse on the ground that the respondent therein had not
been able to prove a well-founded belief that his spouse was already
dead. The Court reversed the CA, granted the Petition, and provided
the following criteria for determining the existence of a well-founded
belief under Article 41 of the Family Code:
For the purpose of contracting the
subsequent marriage under the preceding paragraph,
50
inquiries to be drawn from a great many
circumstances occurring before and after the
disappearance of the absent spouse and the nature
and extent of the inquiries made by present spouse.
(Footnotes omitted, underscoring supplied.)
Applying the foregoing standards to the present case,
petitioner points out that respondent Yolanda did not initiate a
diligent search to locate her absent husband. While her brother
Diosdado Cadacio testified to having inquired about the whereabouts
of Cyrus from the latters relatives, these relatives were not presented
to corroborate Diosdados testimony. In short, respondent was
allegedly not diligent in her search for her husband. Petitioner argues
that if she were, she would have sought information from the
Taiwanese Consular Office or assistance from other government
agencies in Taiwan or the Philippines. She could have also utilized
mass media for this end, but she did not. Worse, she failed to explain
these omissions.
The Republics arguments are well-taken. Nevertheless, we
are constrained to deny the Petition.
The RTC ruling on the issue of whether respondent was able
to prove her well-founded belief that her absent spouse was already
dead prior to her filing of the Petition to declare him presumptively
dead is already final and can no longer be modified or reversed.
Indeed, [n]othing is more settled in law than that when a judgment
becomes final and executory, it becomes immutable and unalterable.
The same may no longer be modified in any respect, even if the
modification is meant to correct what is perceived to be an erroneous
conclusion of fact or law.[15]
WHEREFORE, premises considered, the assailed
Resolutions of the Court of Appeals dated 23 January 2009 and 3
April 2009 in CA-G.R. CV No. 90165 are AFFIRMED.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Associate Justice
[1]
[3]
[4]
[5]
[6]
Supra note 3.
[7]
[8]
51
or final order appealed from and serving a copy
thereof upon the adverse party. No record on appeal
shall be required except in special proceedings and
other cases of multiple or separate appeals where the
law or these Rules so require. In such cases, the
record -on appeal shall be filed and served in like
manner. (Underscoring supplied.)
[9]
[10]
[11]
25 Phil. 71 (1913).
[12]
[13]
[14]
52
THIRD DIVISION
SOCIAL SECURITY
SYSTEM, Petitioner,
Present:
QUISUMBING, Chairperson,*
CARPIO, Acting Chairperson,
CARPIO MORALES, and
TINGA, JJ.
-versus-
Promulgated:
Respondent.
x--------------------------------------------x
DECISION
53
Security Commission (SSC) in SSC Case No. 4-15149-01 are
challenged in the present petition for review on certiorari.
Close to 13 years after his wife Alice was declared
presumptively dead or on August 8, 1983, Bailon contracted
marriage with Teresita Jarque (respondent) in Casiguran, Sorsogon.
On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P.
Diaz (Alice) contracted marriage in Barcelona, Sorsogon.[6]
[8]
[10]
54
xxxx
In the meantime, on April 5, 1999, a certain Hermes P. Diaz,
claiming to be the brother and guardian of Aliz P. Diaz, filed before
the SSS a claim for death benefits accruing from Bailons death, [17] he
further attesting in a sworn statement [18] that it was Norma who
defrayed Bailons funeral expenses.
xxxx
55
his marriage to Teresita Jarque, for the second time
was void as it was bigamous. To require affidavit of
reappearance to terminate the second marriage is not
necessary as there is no disappearance of Aliz [ sic]
Diaz, the first wife, and a voidable marriage [sic], to
speak of.[21] (Underscoring supplied)
56
having an extramarital affair; and Bailon used to visit her even after
their separation.
SO ORDERED.[31] (Underscoring supplied)
By Resolution of April 2, 2003, the SSC found that the
marriage of respondent to Bailon was void and, therefore, she was
just a common-law-wife. Accordingly it disposed as follows,
quoted verbatim:
xxxx
57
As the declaration of presumptive death was
extracted by the deceased member using artifice and
by exerting fraud upon the unsuspecting court of
law, x x x it never had the effect of giving the
deceased member the right to marry anew. x x x [I]t
is clear that the marriage to the petitioner is void,
considering that the first marriage on April 25, 1955
to Alice Diaz was not previously annulled,
invalidated or otherwise dissolved during the
lifetime of the parties thereto. x x x as determined
through the investigation conducted by the SSS,
Clemente Bailon was the abandoning spouse, not
Alice Diaz Bailon.
xxxx
xxxx
58
the RTC, and on its own, declare the latters decision
to be bereft of any basis. On similar import, can
respondents SSS and Commission validly declare
the first marriage subsisting and the second marriage
null and void?
xxxx
xxxx
59
Reappearance with the Civil Registry where parties
to the subsequent marriage reside is already inutile,
the respondent SSS has now the authority to review
the decision of the RTC and consequently declare
the second marriage null and void.[36] (Emphasis and
underscoring supplied)
The SSC and the SSS separately filed their Motions for
Reconsideration[37] which were both denied for lack of merit.
for
review
on
The SSS submits that the observations and findings relative
to the CFI proceedings are of no moment to the present controversy,
as the same may be considered only as obiter dicta in view of the
SSCs finding of the existence of a prior and subsisting marriage
between Bailon and Alice by virtue of which Alice has a better right
to the death benefits.[41]
60
declared that the December 10, 1970 CFI Order was obtained
through fraud and subsequently disregarded the same, making its
own findings with respect to the validity of Bailon and Alices
marriage on the one hand and the invalidity of Bailon and
respondents marriage on the other.
In interfering with and passing upon the CFI Order, the SSC
virtually acted as an appellate court. The law does not give the SSC
unfettered discretion to trifle with orders of regular courts in the
exercise of its authority to determine the beneficiaries of the SSS.
61
declaration of her presumptive death, which judicial declaration was
not even a requirement then for purposes of remarriage. [46]
62
63
In the case at bar, as no step was taken to nullify, in
accordance with law, Bailons and respondents marriage prior to
the formers death in 1998, respondent is rightfully the dependent
spouse-beneficiary of Bailon.
On Official Leave.
[1]
[2]
[3]
Id. at 195.
[4]
Id. at 47-55.
[5]
Id. at 56.
[6]
[7]
Id. at 65-67.
[8]
[9]
Id. at 8-9.
No costs.
SO ORDERED.
[10]
[11]
CA rollo, p. 11.
[12]
[13]
Ibid.
[14]
Id. at 96-97.
[15]
Id. at 55.
64
[16]
Ibid.
[17]
Id. at 109.
[18]
Id. at 110.
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26]
[27]
Id. at 135-136.
Id. at 137.
Id. at 124.
Id. at 125.
Id. at 129-130.
Id. at 134.
CA rollo, pp. 12-14.
[28]
[29]
[30]
Id. at 144.
[31]
[32]
xxxx
1. Based on the interview conducted by our Account
Officer, Mr. Rolando G. Gomez to [sic] the relatives of Alice
(not Aliz) Diaz namely: Rogelio Del Prado and Emelita Diaz
at Poblacion Sur, Barcelona, Sorsogon they alleged that subject
deceased member and Alice live [sic] as husband and wife for
only a year. Alice never left Barcelona, Sorsogon since their
separation and is not dependent for support nor received support
from the deceased member. x x x
[33]
[34]
[35]
[36]
[37]
[38]
[39]
Id. at 22.
[40]
65
xxxx
[41]
Rollo, p. 28.
[42]
[48]
[43]
[45]
CA rollo, p. 8.
[46]
[47]
xxxx
[49]
[50]
Ibid.
[51]
Id. at 285-286.
[52]
[53]
66
[54]
Id. at 213.
[55]
[56]
Id. at 674.