Domingo v. CA

7/29/2019 Domingo v. CA

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Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 104818 September 17, 1993ROBERTO DOMINGO, petitioner,vs.COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her Attorney-in-Fact MOISES R. AVERA, respondents.

Jose P.O. Aliling IV for petitioner.

De Guzman, Meneses & Associates for private respondent.

ROMERO, J.:

The instant petition seeks the reversal of respondent court's ruling finding no graveabuse of discretion in the lower court's order denying petitioner's motion to dismiss thepetition for declaration of nullity of marriage and separation of property.

On May 29, 1991, private respondent Delia Soledad A. Domingo filed a petition beforethe Regional Trial Court of Pasig entitled "Declaration of Nullity of Marriage andSeparation of Property" against petitioner Roberto Domingo. The petition which wasdocketed as Special Proceedings No. 1989-J alleged among others that: they weremarried on November 29, 1976 at the YMCA Youth Center Bldg., as evidenced by aMarriage Contract Registry No. 1277K-76 with Marriage License No. 4999036 issued atCarmona, Cavite; unknown to her, he had a previous marriage with one Emerlina delaPaz on April 25, 1969 which marriage is valid and still existing; she came to know ofthe prior marriage only sometime in 1983 when Emerlina dela Paz sued them forbigamy; from January 23 1979 up to the present, she has been working in Saudi Arabiaand she used to come to the Philippines only when she would avail of the one-monthannual vacation leave granted by her foreign employer since 1983 up to the present, hehas been unemployed and completely dependent upon her for support and subsistence;out of her personal earnings, she purchased real and personal properties with a totalamount of approximately P350,000.00, which are under the possession andadministration of Roberto; sometime in June 1989, while on her one-month vacation,she discovered that he was cohabiting with another woman; she further discovered thathe had been disposing of some of her properties without her knowledge or consent; she

confronted him about this and thereafter appointed her brother Moises R. Avera as her

attorney-in-fact to take care of her properties; he failed and refused to turn over thepossession and administration of said properties to her brother/attorney-in-fact; and he isnot authorized to administer and possess the same on account of the nullity of theirmarriage. The petition prayed that a temporary restraining order or a writ of preliminaryinjunction be issued enjoining Roberto from exercising any act of administration andownership over said properties; their marriage be declared null and void and of no forceand effect; and Delia Soledad be declared the sole and exclusive owner of all propertiesacquired at the time of their void marriage and such properties be placed under the

proper management and administration of the attorney- in-fact.Petitioner filed a Motion to Dismiss on the ground that the petition stated no cause ofaction. The marriage being void ab initio, the petition for the declaration of its nullity is,therefore, superfluous and unnecessary. It added that private respondent has no propertywhich is in his possession.

On August 20, 1991, Judge Maria Alicia M. Austria issued an Order denying the motionto dismiss for lack of merit. She explained:

Movant argues that a second marriage contracted after a first marriage by a man withanother woman is illegal and void (citing the case of Yap v. Court of Appeals, 145SCRA 229) and no judicial decree is necessary to establish the invalidity of a voidmarriage (citing the cases of People v. Aragon, 100 Phil. 1033; People v. Mendoza, 95Phil. 845). Indeed, under the Yap case there is no dispute that the second marriagecontracted by respondent with herein petitioner after a first marriage with anotherwoman is illegal and void. However, as to whether or not the second marriage shouldfirst be judicially declared a nullity is not an issue in said case. In the case of Vda. deConsuegra v. GSIS, the Supreme Court ruled in explicit terms, thus:

And with respect to the right of the second wife, this Court observed that although thesecond marriage can be presumed to be void ab initio as it was celebrated while the firstmarriage was still subsisting, still there is need for judicial declaration of its nullity. (37SCRA 316, 326)

The above ruling which is of later vintage deviated from the previous rulings of theSupreme Court in the aforecited cases of Aragon and Mendoza.

Finally, the contention of respondent movant that petitioner has no property in hispossession is an issue that may be determined only after trial on the merits. 1

A motion for reconsideration was filed stressing the erroneous application of Vda. deConsuegra v. GSIS 2 and the absence of justiciable controversy as to the nullity of themarriage. On September 11, 1991, Judge Austria denied the motion for reconsiderationand gave petitioner fifteen (15) days from receipt within which to file his answer.


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Instead of filing the required answer, petitioner filed a special civil action of certiorariand mandamus on the ground that the lower court acted with grave abuse of discretionamounting to lack of jurisdiction in denying the motion to dismiss.

On February 7, 1992, the Court of Appeals 3 dismissed the petition. It explained that thecase of Yap v. CA 4 cited by petitioner and that of Consuegra v. GSIS relied upon bythe lower court do not have relevance in the case at bar, there being no identity of factsbecause these cases dealt with the successional rights of the second wife while the

instant case prays for separation of property corollary with the declaration of nullity ofmarriage. It observed that the separation and subsequent distribution of the propertiesacquired during the union can be had only upon proper determination of the status of themarital relationship between said parties, whether or not the validity of the first marriageis denied by petitioner. Furthermore, in order to avoid duplication and multiplicity ofsuits, the declaration of nullity of marriage may be invoked in this proceeding togetherwith the partition and distribution of the properties involved. Citing Articles 48, 50 and52 of the Family Code, it held that private respondent's prayer for declaration ofabsolute nullity of their marriage may be raised together with other incidents of theirmarriage such as the separation of their properties. Lastly, it noted that since the Courthas jurisdiction, the alleged error in refusing to grant the motion to dismiss is merely oneof law for which the remedy ordinarily would have been to file an answer, proceed withthe trial and in case of an adverse decision, reiterate the issue on appeal. The motion forreconsideration was subsequently denied for lack of merit. 5

Hence, this petition.

The two basic issues confronting the Court in the instant case are the following.

First, whether or not a petition for judicial declaration of a void marriage is necessary. Ifin the affirmative, whether the same should be filed only for purposes of remarriage.

Second, whether or not SP No. 1989-J is the proper remedy of private respondent torecover certain real and personal properties allegedly belonging to her exclusively.

Petitioner, invoking the ruling in People v. Aragon 6 and People v. Mendoza, 7 contendsthat SP. No. 1989-J for Declaration of Nullity of Marriage and Separation of Propertyfiled by private respondent must be dismissed for being unnecessary and superfluous.Furthermore, under his own interpretation of Article 40 of the Family Code, he submitsthat a petition for declaration of absolute nullity of marriage is required only forpurposes of remarriage. Since the petition in SP No. 1989-J contains no allegation ofprivate respondent's intention to remarry, said petition should therefore , be dismissed.

On the other hand, private respondent insists on the necessity of a judicial declaration ofthe nullity of their marriage, not for purposes of remarriage, but in order to provide abasis for the separation and distribution o f the properties acquired during coverture.

There is no question that the marriage of petitioner and private respondent celebratedwhile the former's previous marriage with one Emerlina de la Paz was still subsisting, isbigamous. As such, it is from the beginning. 8 Petitioner himself does not dispute theabsolute nullity of their marriage. 9

The cases of People v. Aragon and People v. Mendoza relied upon by petitioner arecases where the Court had earlier ruled that no judicial decree is necessary to establishthe invalidity of a void, bigamous marriage. It is noteworthy to observe that Justice Alex

Reyes, however, dissented on these occasions stating that:Though the logician may say that where the former marriage was void there would benothing to dissolve, still it is not for the spouses to judge whether that marriage was voidor not. That judgment is reserved to the courts. . . . 10

This dissenting opinion was adopted as the majority position in subsequent casesinvolving the same issue. Thus, in Gomez v. Lipana, 11 the Court abandoned its earlierruling in the Aragon and Mendoza cases. In reversing the lower court's order forfeitingthe husband's share of the disputed property acquired during the second marriage, theCourt stated that "if the nullity, or annulment of the marriage is the basis for theapplication of Article 1417, there is need for a judicial declaration thereof, which ofcourse contemplates an action for that purpose."

Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra v.Government Service Insurance System, that "although the second marriage can bepresumed to be void ab initio as it was celebrated while the first marriage was stillsubsisting, still there is need for judicial declaration of such nullity."

In Tolentino v. Paras, 12 however, the Court turned around and applied the Aragon andMendoza ruling once again. In granting the prayer of the first wife asking for adeclaration as the lawful surviving spouse and the correction of the death certificate ofher deceased husband, it explained that "(t)he second marriage that he contracted withprivate respondent during the lifetime of his first spouse is null and void from thebeginning and of no force and effect. No judicial decree is necessary to establish theinvalidity of a void marriage."

However, in the more recent case of Wiegel v. Sempio-Diy 13 the Court reverted to theConsuegra case and held that there was "no need of introducing evidence about theexisting prior marriage of her first husband at the time they married each other, for thensuch a marriage though void still needs according to this Court a judicial declaration ofsuch fact and for all legal intents and purposes she would still be regarded as a marriedwoman at the time she contracted her marriage with respondent Karl Heinz Wiegel."

Came the Family Code which settled once and for all the conflicting jurisprudence onthe matter. A declaration of the absolute nullity of a marriage is now explicitly requiredeither as a cause of action or a ground for defense. 14 Where the absolute nullity of a

previous marriage is sought to be invoked for purposes of contracting a second


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marriage, the sole basis acceptable in law for said projected marriage be free from legalinfirmity is a final judgment declaring the previous marriage void. 15

The Family Law Revision Committee and the Civil Code Revision Committee 16 whichdrafted what is now the Family Code of the Philippines took the position that parties to amarriage should not be allowed to assume that their marriage is void even if such be thefact but must first secure a judicial declaration of the nullity of their marriage beforethey can be allowed to marry again. This is borne out by the following minutes of the152nd Joint Meeting of the Civil Code and Family Law Committees where the presentArticle 40, then Art. 39, was discussed.

B. Article 39.

The absolute nullity of a marriage may be invoked only on the basis of a final judgmentdeclaring the marriage void, except as provided in Article 41.

Justice Caguioa remarked that the above provision should include not only void but alsovoidable marriages. He then suggested that the above provision be modified as follows:

The validity of a marriage may be invoked only . . .

Justice Reyes (J.B.L. Reyes), however, proposed that they say:

The validity or invalidity of a marriage may be invokedonly . . .

On the other hand, Justice Puno suggested that they say:

The invalidity of a marriage may be invoked only . . .

Justice Caguioa explained that his idea is that one cannot determine for himself whetheror not his marriage is valid and that a court action is needed. Justice Puno accordinglyproposed that the provision be modified to read:

The invalidity of a marriage may be invoked only on the basis of a final judgmentannulling the marriage or declaring the marriage void, except as provided in Article 41.

Justice Caguioa remarked that in annulment, there is no question. Justice Puno,however, pointed out that, even if it is a judgment of annulment, they still have toproduce the judgment.

Justice Caguioa suggested that they say:

The invalidity of a marriage may be invoked only on the basis of a final judgmentdeclaring the marriage invalid, except as provided in Article 41.

Justice Puno raised the question: When a marriage is declared invalid, does it includethe annulment of a marriage and the declaration that the marriage is void? JusticeCaguioa replied in the affirmative. Dean Gupit added that in some judgments, even ifthe marriage is annulled, it is declared void. Justice Puno suggested that this matter bemade clear in the provision.

Prof. Baviera remarked that the original idea in the provision is to require first a judicialdeclaration of a void marriage and not annullable marriages, with which the othermembers concurred. Judge Diy added that annullable marriages are presumed valid untila direct action is filed to annul it, which the other members affirmed. Justice Punoremarked that if this is so, then the phrase "absolute nullity" can stand since it mightresult in confusion if they change the phrase to "invalidity" if what they are referring toin the provision is the declaration that the marriage is void.

Prof. Bautista commented that they will be doing away with collateral defense as well ascollateral attack. Justice Caguioa explained that the idea in the provision is that thereshould be a final judgment declaring the marriage void and a party should not declarefor himself whether or not the marriage is void, while the other members affirmed.Justice Caguioa added that they are, therefore, trying to avoid a collateral attack on thatpoint. Prof. Bautista stated that there are actions which are brought on the assumptionthat the marriage is valid. He then asked: Are they depriving one of the right to raise thedefense that he has no liability because the basis of the liability is void? Prof. Bautistaadded that they cannot say that there will be no judgment on the validity or invalidity ofthe marriage because it will be taken up in the same proceeding. It will not be aunilateral declaration that, it is a void marriage. Justice Caguioa saw the point of Prof.Bautista and suggested that they limit the provision to remarriage. He then proposed thatArticle 39 be reworded as follows:

The absolute nullity of a marriage for purposes of remarriage may be invoked only onthe basis of final judgment . . .

Justice Puno suggested that the above be modified as follows:

The absolute nullity of a previous marriage may be invoked for purposes of establishingthe validity of a subsequent marriage only on the basis of a final judgment declaringsuch previous marriage void, except as provided in Article 41.

Justice Puno later modified the above as follows:

For the purpose of establishing the validity of a subsequent marriage, the absolutenullity of a previous marriage may only be invoked on the basis of a final judgmentdeclaring such nullity, except as provided in Article 41.

Justice Caguioa commented that the above provision is too broad and will not solve theobjection of Prof. Bautista. He proposed that they say:


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For the purpose of entering into a subsequent marriage, the absolute nullity of a previousmarriage may only be invoked on the basis of a final judgment declaring such nullity,except as provided in Article 41.

Justice Caguioa explained that the idea in the above provision is that if one enters into asubsequent marriage without obtaining a final judgment declaring the nullity of aprevious marriage, said subsequent marriage is void ab initio.

After further deliberation, Justice Puno suggested that they go back to the originalwording of the provision as follows:

The absolute nullity of a previous marriage may be invoked for purposes of remarriageonly on the basis of a final judgment declaring such previous marriage void, except asprovided in Article 41. 17

In fact, the requirement for a declaration of absolute nullity of a marriage is also for theprotection of the spouse who, believing that his or her marriage is illegal and void,marries again. With the judicial declaration of the nullity of his or her first marriage, theperson who marries again cannot be charged with bigamy. 18

Just over a year ago, the Court made the pronouncement that there is a necessity for adeclaration of absolute nullity of a prior subsisting marriage before contracting anotherin the recent case of Terre v. Terre. 19 The Court, in turning down the defense ofrespondent Terre who was charged with grossly immoral conduct consisting ofcontracting a second marriage and living with another woman other than complainantwhile his prior marriage with the latter remained subsisting, said that "for purposes ofdetermining whether a person is legally free to contract a second marriage, a judicialdeclaration that the first marriage was null and void ab initio is essential."

As regards the necessity for a judicial declaration of absolute nullity of marriage,petitioner submits that the same can be maintained only if it is for the purpose ofremarriage. Failure to allege this purpose, according to petitioner's theory, will warrantdismissal of the same.

Article 40 of the Family Code provides:

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes ofremarriage on the basis solely of a final judgment declaring such previous marriagevoid. (n)

Crucial to the proper interpretation of Article 40 is the position in the provision of theword "solely." As it is placed, the same shows that it is meant to qualify "final judgmentdeclaring such previous marriage void." Realizing the need for careful craftsmanship inconveying the precise intent of the Committee members, the provision in question, as itfinally emerged, did not state "The absolute nullity of a previous marriage may be

invoked solely for purposes of remarriage . . .," in which case "solely" would clearly

qualify the phrase "for purposes of remarriage." Had the phraseology been such, theinterpretation of petitioner would have been correct and, that is, that the absolute nullityof a previous marriage may be invoked solely for purposes of remarriage, thus renderingirrelevant the clause "on the basis solely of a final judgment declaring such previousmarriage void."

That Article 40 as finally formulated included the significant clause denotes that suchfinal judgment declaring the previous marriage void need not be obtained only forpurposes of remarriage. Undoubtedly, one can conceive of other instances where a partymight well invoke the absolute nullity of a previous marriage for purposes other thanremarriage, such as in case of an action for liquidation, partition, distribution andseparation of property between the erstwhile spouses, as well as an action for thecustody and support of their common children and the delivery of the latters'presumptive legitimes. In such cases, evidence needs must be adduced, testimonial ordocumentary, to prove the existence of grounds rendering such a previous marriage anabsolute nullity. These need not be limited solely to an earlier final judgment of a courtdeclaring such previous marriage void. Hence, in the instance where a party who haspreviously contracted a marriage which remains subsisting desires to enter into anothermarriage which is legally unassailable, he is required by law to prove that the previousone was an absolute nullity. But this he may do on the basis solely of a final judgmentdeclaring such previous marriage void.

This leads us to the question: Why the distinction? In other words, for purposes ofremarriage, why should the only legally acceptable basis for declaring a previousmarriage an absolute nullity be a final judgment declaring such previous marriage void?Whereas, for purposes other than remarriage, other evidence is acceptable?

Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable socialinstitution, is the foundation of the family;" as such, it "shall be protected by the State."20 In more explicit terms, the Family Code characterizes it as "a special contract ofpermanent union between a man and a woman entered into in accordance with law forthe establishment of conjugal, and family life." 21 So crucial are marriage and thefamily to the stability and peace of the nation that their "nature, consequences, andincidents are governed by law and not subject to stipulation . . ." 22 As a matter ofpolicy, therefore, the nullification of a marriage for the purpose of contracting anothercannot be accomplished merely on the basis of the perception of both parties or of onethat their union is so defective with respect to the essential requisites of a contract ofmarriage as to render it void ipso jure and with no legal effect and nothing more.Were this so, this inviolable social institution would be reduced to a mockery and wouldrest on very shaky foundations indeed. And the grounds for nullifying marriage wouldbe as diverse and far-ranging as human ingenuity and fancy could conceive. For such asocial significant institution, an official state pronouncement through the courts, andnothing less, will satisfy the exacting norms of society. Not only would such an openand public declaration by the courts definitively confirm the nullity of the contract ofmarriage, but the same would be easily verifiable through records accessible to

everyone.


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That the law seeks to ensure that a prior marriage is no impediment to a second soughtto be contracted by one of the parties may be gleaned from new information required inthe Family Code to be included in the application for a marriage license, viz, "Ifpreviously married, how, when and where the previous marriage was dissolved andannulled." 23

Reverting to the case before us, petitioner's interpretation of Art. 40 of the Family Codeis, undoubtedly, quite restrictive. Thus, his position that private respondent's failure tostate in the petition that the same is filed to enable her to remarry will result in thedismissal of SP No. 1989-J is untenable. His misconstruction of Art. 40 resulting fromthe misplaced emphasis on the term "solely" was in fact anticipated by the members ofthe Committee.

Dean Gupit commented the word "only" may be misconstrued to refer to "for purposesof remarriage." Judge Diy stated that "only" refers to "final judgment." Justice Punosuggested that they say "on the basis only of a final judgment." Prof. Baviera suggestedthat they use the legal term "solely" instead of "only," which the Committee approved.24 (Emphasis supplied)

Pursuing his previous argument that the declaration for absolute nullity of marriage isunnecessary, petitioner suggests that private respondent should have filed an ordinarycivil action for the recovery of the properties alleged to have been acquired during theirunion. In such an eventuality, the lower court would not be acting as a mere specialcourt but would be clothed with jurisdiction to rule on the issues of possession andownership. In addition, he pointed out that there is actually nothing to separate orpartition as the petition admits that all the properties were acquired with privaterespondent's money.

The Court of Appeals disregarded this argument and concluded that "the prayer fordeclaration of absolute nullity of marriage may be raised together with the other incidentof their marriage such as the separation of their properties."

When a marriage is declared void ab initio, the law states that the final judgment thereinshall provide for "the liquidation, partition and distribution of the properties of thespouses, the custody and support of the common children, and the delivery of theirpresumptive legitimes, unless such matters had been adjudicated in previous judicialproceedings." 25 Other specific effects flowing therefrom, in proper cases, are thefollowing:

Art. 43. xxx xxx xxx

(2) The absolute community of property or the conjugal partnership, as the casemay be, shall be dissolved and liquidated, but if either spouse contracted said marriagein bad faith, his or her share of the net profits of the community property or conjugal

partnership property shall be forfeited in favor of the common children or, if there are

none, the children of the guilty spouse by a previous marriage or, in default of children,the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the doneecontracted the marriage in bad faith, such donations made to said donee are revoked byoperation of law;

(4) The innocent spouse may revoke the designation of the other spouse who actedin bad faith as a beneficiary in any insurance policy, even if such designation bestipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall bedisqualified to inherit from the innocent spouse by testate and intestate succession. (n)

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriageshall be void ab initio and all donations by reason of marriage and testamentarydisposition made by one in favor of the other are revoked by operation of law. (n) 26

Based on the foregoing provisions, private respondent's ultimate prayer for separation ofproperty will simply be one of the necessary consequences of the judicial declaration ofabsolute nullity of their marriage. Thus, petitioner's suggestion that in order for theirproperties to be separated, an ordinary civil action has to be instituted for that purpose isbaseless. The Family Code has clear ly provided the effects of the declaration of nullityof marriage, one of which is the separation of property according to the regime ofproperty relations governing them. It stands to reason that the lower court before whomthe issue of nullity of a first marriage is brought is likewise clothed with jurisdiction todecide the incidental questions regarding the couple's properties. Accordingly, therespondent court committed no reversible error in finding that the lower courtcommitted no grave abuse of discretion in denying petitioner's motion to dismiss SP No.1989-J.

WHEREFORE, the instant petition is hereby DENIED. The decision of respondentCourt dated February 7, 1992 and the Resolution dated March 20, 1992 areAFFIRMED.

SO ORDERED.


SECOND DIVISION

G.R. No. L-53703 August 19, 1986

LILIA OLIVA WIEGEL, petitioner,


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vs.THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge of the Juvenile andDomestic Relations Court of Caloocan City) and KARL HEINZ WIEGEL, respondents.

Dapucanta, Dulay & Associates for petitioner.

Siguion Reyna, Montecillo and Ongsiako Law Office for private respondent.

PARAS, J.:

In an action (Family Case No. 483) filed before the erstwhile Juvenile and DomesticRelations Court of Caloocan City, herein respondent Karl Heinz Wiegel (plaintifftherein) asked for the declaration of Nullity of his marriage (celebrated on July, 1978 atthe Holy Catholic Apostolic Christian Church Branch in Makati, Metro Manila) withherein petitioner Lilia Oliva Wiegel (Lilia, for short, and defendant therein) on theground of Lilia's previous existing marriage to one Eduardo A. Maxion, the ceremonyhaving been performed on June 25, 1972 at our Lady of Lourdes Church in QuezonCity. Lilia, while admitting the existence of said prior subsisting marriage claimed thatsaid marriage was null and void, she and the first husband Eduardo A. Maxion havingbeen allegedly forced to enter said marital union. In the pre-trial that ensued, the issueagreed upon by both parties was the status of the first marriage (assuming the presenceof force exerted against both parties): was said prior marriage void or was it merelyvoidable? Contesting the validity of the pre-trial order, Lilia asked the respondent courtfor an opportunity to present evidence-

(1) that the first marriage was vitiated by force exercised upon both her and thefirst husband; and

(2) that the first husband was at the time of the marriage in 1972 already marriedto someone else.

Respondent judge ruled against the presentation of evidence because the existence offorce 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 submitthe case for resolution based on "agreed facts;" and

(2) the Order dated April 14, 1980, denying petitioner's motion to allow her topresent 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 forcecommitted against both parties because assuming this to be so, the marriage will not bevoid but merely viodable (Art. 85, Civil Code), and therefore valid until annulled. Sinceno annulment has yet been made, it is clear that when she married respondent she wasstill validly married to her first husband, consequently, her marriage to respondent isVOID (Art. 80, Civil Code).

There is likewise no need of introducing evidence about the existing prior marriage ofher first husband at the time they married each other, for then such a marriage thoughvoid still needs according to this Court a judicial declaration 1 of such fact and for alllegal intents and purposes she would still be regarded as a married woman at the timeshe contracted her marriage with respondent Karl Heinz Wiegel); accordingly, themarriage of petitioner and respondent would be regarded VOID under the law.

WHEREFORE, this petition is hereby DISMISSED, for lack of merit, and the Orderscomplained of are hereby AFFIRMED. Costs against petitioner.

SO ORDERED.


FIRST DIVISION

G.R. No. 122749 July 31, 1996

ANTONIO A. S. VALDEZ, petitioner,vs.REGIONAL TRIAL COURT, BRANCH 102, QUEZON CITY, and CONSUELO M.GOMEZ-VALDEZ, respondents.

VITUG, J.:p

The petition for new bewails, purely on the question of law, an alleged error committedby the Regional Trial Court in Civil Case No. Q-92-12539. Petitioner avers that thecourt a quo has failed to apply the correct law that should govern the disposition of afamily dwelling in a situation where a marriage is declared void ab initio because ofpsychological incapacity on the part of either or both parties in the contract.

The pertinent facts giving rise to this incident are, by large, not in dispute.


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Antonio Valdez and Consuelo Gomez were married on 05 January 1971. Begottenduring the marriage were five children. In a petition, dated 22 June 1992, Valdez soughtthe declaration of nullity of the marriage pursuant to Article 36 of the Family code(docketed Civil Case No. Q-92-12539, Regional Trial Court of Quezon City, Branch102). After the hearing the parties following the joinder of issues, the trial court, 1 in itsdecision of 29 July 1994, granted the petition, viz:

WHEREFORE, judgment is hereby rendered as follows:

(1) The marriage of petitioner Antonio Valdez and respondent Consuelo Gomez-Valdez is hereby declared null and void under Article 36 of the Family Code on theground of their mutual psychological incapacity to comply with their essential maritalobligations;

(2) The three older children, Carlos Enrique III, Antonio Quintin and AngelaRosario shall choose which parent they would want to stay with.

Stella Eloisa and Joaquin Pedro shall be placed in the custody of their mother, hereinrespondent Consuelo Gomez-Valdes.

The petitioner and respondent shall have visitation rights over the children who are inthe custody of the other.

(3) The petitioner and the respondent are directed to start proceedings on theliquidation of their common properties as defined by Article 147 of the Family Code,and to comply with the provisions of Articles 50, 51, and 52 of the same code, withinthirty (30) days from notice of this decision.

Let a copy of this decision be furnished the Local Civil Registrar of Mandaluyong,Metro Manila, for proper recording in the registry of marriages. 2 (Emphasis ours.)

Consuelo Gomez sought a clarification of that portion of the decision directingcompliance with Articles 50, 51 and 52 of the Family Code. She asserted that the Family

Code contained no provisions on the procedure for the liquidation of common propertyin "unions without marriage." Parenthetically, during the hearing of the motion, thechildren filed a joint affidavit expressing their desire to remain with their father, AntonioValdez, herein petitioner.

In an order, dated 05 May 1995, the trial court made the following clarification:

Consequently, considering that Article 147 of the Family Code explicitly provides thatthe property acquired by both parties during their union, in the absence of proof to thecontrary, are presumed to have been obtained through the joint efforts of the parties andwill be owned by them in equal shares, plaintiff and defendant will own their "familyhome" and all their properties for that matter in equal shares.

In the liquidation and partition of properties owned in common by the plaintiff anddefendant, the provisions on ownership found in the Civil Code shall apply. 3 (Emphasissupplied.)

In addressing specifically the issue regarding the disposition of the family dwelling, thetrial court said:

Considering that this Court has already declared the marriage between petitioner andrespondent as null and void ab initio, pursuant to Art. 147, the property regime ofpetitioner and respondent shal l be governed by the rules on ownership.

The provisions of Articles 102 and 129 of the Family Code finds no application sinceArticle 102 refers to the procedure for the liquidation of the conjugal partnershipproperty and Article 129 refers to the procedure for the liquidation of the absolutecommunity of property. 4

Petitioner moved for a reconsideration of the order. The motion was denied on 30October 1995.

In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of the FamilyCode should be held controlling: he argues that:

I

Article 147 of the Family Code does not apply to cases where the parties arepsychologically incapacitated.

II

Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code govern thedisposition of the family dwelling in cases where a marriage is declared void ab initio,including a marriage declared void by reason of the psychological incapacity of thespouses.

III

Assuming arguendo that Article 147 applies to marriages declared void ab initio on theground of the psychological incapacity of a spouse, the same may be read consistentlywith Article 129.

IV

It is necessary to determine the parent with whom majority of the children wish to stay.5


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The trial court correctly applied the law. In a void marriage, regardless of the causethereof, the property relations of the parties during the period of cohabitation isgoverned by the provisions of Article 147 or Article 148, such as the case may be, of theFamily Code. Article 147 is a remake of Article 144 of the Civil Code as interpreted andso applied in previous cases; 6 it provides:

Art. 147. When a man and a woman who are capacitated to marry each other, liveexclusively with each other as husband and wife without the benefit of marriage orunder a void marriage, their wages and salaries shall be owned by them in equal sharesand the property acquired by both of them through their work or industry shall begoverned by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived togethershall be presumed to have been obtained by their joint efforts, work or industry, andshall be owned by them in equal shares. For purposes of this Article, a party who did notparticipate in the acquisition by the other par ty of any property shall be deemed to havecontributed jointly in the acquisition thereof in the former's efforts consisted in the careand maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in theproperty acquired during cohabitation and owned in common, without the consent of theother, until after the termination of their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party inbad faith in the ownership shall be forfeited in favor of their common children. In caseof default of or waiver by any or all of the common children or their descendants, eachvacant share shall belong to the innocent party. In all cases, the forfeiture shall takeplace upon the termination of the cohabitation.

This particular kind of co-ownership applies when a man and a woman, suffering noillegal impediment to marry each other, so exclusively live together as husband and wifeunder a void marriage or without the benefit of marriage. The term "capacitated" in theprovision (in the first paragraph of the law) refers to the legal capacity of a party to

contract marriage, i.e., any "male or female of the age of eighteen years or upwards notunder any of the impediments mentioned in Articles 37 and 38" 7 of the Code.

Under this property regime, property acquired by both spouses through their work andindustry shall be governed by the rules on equal co-ownership. Any property acquiredduring the union is prima facie presumed to have been obtained through their jointefforts. A party who did not participate in the acquisition of the property shall beconsidered as having contributed thereto jointly if said party's "efforts consisted in thecare and maintenance of the family household." 8 Unlike the conjugal partnership ofgains, the fruits of the couple's separate property are not included in the co-ownership.

Article 147 of the Family Code, in the substance and to the above extent, has clarified

Article 144 of the Civil Code; in addition, the law now expressly provides that

(a) Neither party can dispose or encumber by act intervivos his or her share in co-ownership property, without consent of the other, during the period of cohabitation; and

(b) In the case of a void marriage, any party in bad faith shall forfeit his or hershare in the co-ownership in favor of their common children; in default thereof orwaiver by any or all of the common children, each vacant share shall belong to therespective surviving descendants, or still in default thereof, to the innocent party. Theforfeiture shall take place upon the termination of the cohabitation 9 or declaration ofnullity of the marriage. 10

When the common-law spouses suffer from a legal impediment to marry or when theydo not live exclusively with each other (as husband and wife), only the propertyacquired by both of them through their actual joint contribution of money, property orindustry shall be owned in common and in proportion to their respective contributions.Such contributions and corresponding shares, however, are prima facie presumed to beequal. The share of any party who is married to another shall accrue to the absolutecommunity or conjugal partnership, as the case may be, if so existing under a validmarriage. If the party who has acted in bad faith is not validly married to another, his orher share shall be forfeited in the manner already heretofore expressed. 11

In deciding to take further cognizance of the issue on the settlement of the parties'common property, the trial court acted neither imprudently nor precipitately; a courtwhich has jurisdiction to declare the marriage a nullity must be deemed likewise clothedin authority to resolve incidental and consequential matters. Nor did it commit areversible error in ruling that petitioner and private respondent own the "family home"and all their common property in equal shares, as well as in concluding that, in theliquidation and partition of the property owned in common by them, the provisions onco-ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles102 and 129, 12 of the Family Code, should aptly prevail. The rules set up to govern theliquidation of either the absolute community or the conjugal partnership of gains, theproperty regimes recognized for valid and voidable marriages (in the latter case until thecontract is annulled), are irrelevant to the liquidation of the co-ownership that exists

between common-law spouses. The first paragraph of Articles 50 of the Family Code,applying paragraphs (2), (3), (4) and 95) of Article 43, 13 relates only, by its explicitterms, to voidable marriages and, exceptionally, to void marriages under Article 40 14of the Code, i.e., the declaration of nullity of a subsequent marriage contracted by aspouse of a prior void marriage before the latter is judicially declared void. The latter isa special rule that somehow recognizes the philosophy and an old doctrine that voidmarriages are inexistent from the very beginning and no judicial decree is necessary toestablish their nullity. In now requiring for purposes of remarriage, the declaration ofnullity by final judgment of the previously contracted void marriage, the present lawaims to do away with any continuing uncertainty on the status of the second marriage. Itis not then illogical for the provisions of Article 43, in relation to Articles 41 15 and 42,16 of the Family Code, on the effects of the termination of a subsequent marriage

contracted during the subsistence of a previous marriage to be made applicable pro hac


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vice. In all other cases, it is not to be assumed that the law has also meant to havecoincident property relations, on the one hand, between spouses in valid and voidablemarriages (before annulment) and, on the other, between common-law spouses orspouses of void marriages, leaving to ordain, on the latter case, the ordinary rules on co-ownership subject to the provisions of the Family Code on the "family home," i.e., theprovisions found in Title V, Chapter 2, of the Family Code, remain in force and effectregardless of the property regime of the spouses.

WHEREFORE, the questioned orders, dated 05 May 1995 and 30 October 1995, of thetrial court are AFFIRMED. No costs.


FIRST DIVISION

G.R. No. 132529. February 2, 2001

SUSAN NICDAO CARIO, petitioner,vs.SUSAN YEE CARIO, respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

The issue for resolution in the case at bar hinges on the validity of the two marriagescontracted by the deceased SPO4 Santiago S. Cario, whose death benefits is now the

subject of the controversy between the two Susans whom he married. 1wphi1.nt

Before this Court is a petition for review on certiorari seeking to set aside the decision 1of the Court of Appeals in CA-G.R. CV No. 51263, which affirmed in toto the decision

2 of the Regional Trial Court of Quezon City, Branch 87, in Civil Case No. Q-93-18632.

During the lifetime of the late SPO4 Santiago S. Cario, he contracted two marriages,the first was on June 20, 1969, with petitioner Susan Nicdao Cario (hereafter referredto as Susan Nicdao), with whom he had two offsprings, namely, Sahlee and SandeeCario; and the second was on November 10, 1992, with respondent Susan Yee Cario(hereafter referred to as Susan Yee), with whom he had no children in their almost tenyear cohabitation starting way back in 1982.

In 1988, SPO4 Santiago S. Cario became ill and bedridden due to diabetes complicatedby pulmonary tuberculosis. He passed away on November 23, 1992, under the care ofSusan Yee, who spent for his medical and burial expenses. Both petitioner and

respondent filed claims for monetary benefits and financial assistance pertaining to the

deceased from various government agencies. Petitioner Susan Nicdao was able to collecta total of P146,000.00 from MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag -ibig, 3 while respondent Susan Yee received a total of P21,000.00 from GSIS Life,

Burial (GSIS) and burial (SSS). 4

On December 14, 1993, respondent Susan Yee filed the instant case for collection ofsum of money against petitioner Susan Nicdao praying, inter alia, that petitioner beordered to return to her at least one-half of the one hundred forty-six thousand pesos(P146,000.00) collectively denominated as death benefits which she (petitioner)received from MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag -ibig. Despiteservice of summons, petitioner failed to file her answer, prompting the trial court todeclare her in default.

Respondent Susan Yee admitted that her marriage to the deceased took place during thesubsistence of, and without first obtaining a judicial declaration of nullity of, themarriage between petitioner and the deceased. She, however, claimed that she had noknowledge of the previous marriage and that she became aware of it only at the funeralof the deceased, where she met petitioner who introduced herself as the wife of thedeceased. To bolster her action for collection of sum of money, respondent contendedthat the marriage of petitioner and the deceased is void ab initio because the same wassolemnized without the required marriage license. In support thereof, respondentpresented: 1) the marriage certificate of the deceased and the petitioner which bears nomarriage license number; 5 and 2) a certification dated March 9, 1994, from the LocalCivil Registrar of San Juan, Metro Manila, which reads

This is to certify that this Office has no record of marriage license of the spousesSANTIAGO CARINO (sic) and SUSAN NICDAO, who are married in thismunicipality on June 20, 1969. Hence, we cannot issue as requested a true copy ortranscription of Marriage License number from the records of this archives.

This certification is issued upon the request of Mrs. Susan Yee Cario for whateverlegal purpose it may serve. 6

On August 28, 1995, the trial court ruled in favor of respondent, Susan Yee, holding asfollows:

WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum ofP73,000.00, half of the amount which was paid to her in the form of death benefitsarising from the death of SPO4 Santiago S. Cario, plus attorneys fees in the amount of

P5,000.00, and costs of suit.

IT IS SO ORDERED. 7

On appeal by petitioner to the Court of Appeals, the latter affirmed in toto the decisionof the trial court. Hence, the instant petition, contending that:


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I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMINGTHE FINDINGS OF THE LOWER COURT THAT VDA. DE CONSUEGRA VS.GSIS IS APPLICABLE TO THE CASE AT BAR.

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYINGEQUITY IN THE INSTANT CASE INSTEAD OF THE CLEAR ANDUNEQUIVOCAL MANDATE OF THE FAMILY CODE.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDINGTHE CASE OF VDA. DE CONSUEGRA VS GSIS TO HAVE BEEN MODIFIED,AMENDED AND EVEN ABANDONED BY THE ENACTMENT OF THE FAMILYCODE. 8

Under Article 40 of the Family Code, the absolute nullity of a previous marriage may beinvoked for purposes of remarriage on the basis solely of a final judgment declaringsuch previous marriage void. Meaning, where the absolute nullity of a previous marriageis sought to be invoked for purposes of contracting a second marriage, the sole basisacceptable in law, for said projected marriage to be free from legal infirmity, is a finaljudgment declaring the previous marriage void. 9 However, for purposes other thanremarriage, no judicial action is necessary to declare a marriage an absolute nullity. Forother purposes, such as but not limited to the determination of heirship, legitimacy orillegitimacy of a child, settlement of estate, dissolution of property regime, or a criminalcase for that matter, the court may pass upon the validity of marriage even after thedeath of the parties thereto, and even in a suit not directly instituted to question thevalidity of said marriage, so long as it is essential to the determination of the case. 10 Insuch instances, evidence must be adduced, testimonial or documentary, to prove theexistence of grounds rendering such a previous marriage an absolute nullity. These need

not be limited solely to an earlier final judgment of a court declaring such previousmarriage void. 11

It is clear therefore that the Court is clothed with sufficient authority to pass upon thevalidity of the two marriages in this case, as the same is essential to the determination ofwho is rightfully entitled to the subject death benefits of the deceased.

Under the Civil Code, which was the law in force when the marriage of petitioner SusanNicdao and the deceased was solemnized in 1969, a valid marriage license is a requisiteof marriage, 12 and the absence thereof, subject to certain exceptions, 13 renders themarriage void ab initio. 14

In the case at bar, there is no question that the marriage of petitioner and the deceaseddoes not fall within the marriages exempt from the license requirement. A marriagelicense, therefore, was indispensable to the validity of their marriage. Thisnotwithstanding, the records reveal that the marriage contract of petitioner and thedeceased bears no marriage license number and, as certified by the Local Civil Registrarof San Juan, Metro Manila, their office has no record of such marriage license. InRepublic v. Court of Appeals, 15 the Court held that such a certification is adequate toprove the non-issuance of a marriage license. Absent any circumstance of suspicion, asin the present case, the certification issued by the local civil registrar enjoys probativevalue, he being the officer charged under the law to keep a record of all data relative tothe issuance of a marriage license.

Such being the case, the presumed validity of the marriage of petitioner and thedeceased has been sufficiently overcome. It then became the burden of petitioner toprove that their marriage is valid and that they secured the required marriage license.Although she was declared in default before the trial court, petitioner could havesquarely met the issue and explained the absence of a marriage license in her pleadingsbefore the Court of Appeals and this Court. But petitioner conveniently avoided theissue and chose to refrain from pursuing an argument that will put her case in jeopardy.Hence, the presumed validity of their marriage cannot stand.

It is beyond cavil, therefore, that the marriage between petitioner Susan Nicdao and thedeceased, having been solemnized without the necessary marriage license, and not beingone of the marriages exempt from the marriage license requirement, is undoubtedly voidab initio.

It does not follow from the foregoing disquisition, however, that since the marriage ofpetitioner and the deceased is declared void ab initio, the death benefits under scrutiny

would now be awarded to respondent Susan Yee. To reiterate, under Article 40 of theFamily Code, for purposes of remarriage, there must first be a prior judicial declarationof the nullity of a previous marriage, though void, before a party can enter into a secondmarriage, otherwise, the second marriage would also be void.

Accordingly, the declaration in the instant case of nullity of the previous marriage of thedeceased and petitioner Susan Nicdao does not validate the second marriage of thedeceased with respondent Susan Yee. The fact remains that their marriage wassolemnized without first obtaining a judicial decree declaring the marriage of petitionerSusan Nicdao and the deceased void. Hence, the marriage of respondent Susan Yee andthe deceased is, likewise, void ab initio.

One of the effects of the declaration of nullity of marriage is the separation of theproperty of the spouses according to the applicable property regime. 16 Considering thatthe two marriages are void ab initio, the applicable property regime would not beabsolute community or conjugal partnership of property, but rather, be governed by theprovisions of Articles 147 and 148 of the Family Code on Property Regime of Unions

Without Marriage.


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Under Article 148 of the Family Code, which refers to the property regime of bigamousmarriages, adulterous relationships, relationships in a state of concubine, relationshipswhere both man and woman are married to other persons, multiple alliances of the samemarried man, 17 -

... [O]nly the properties acquired by both of the parties through their actual joint

contribution of money, property, or industry shall be owned by them in common inproportion to their respective contributions ...

In this property regime, the properties acquired by the parties through their actual jointcontribution shall belong to the co-ownership. Wages and salaries earned by each partybelong to him or her exclusively. Then too, contributions in the form of care of thehome, children and household, or spiritual or moral inspiration, are excluded in thisregime. 18

Considering that the marriage of respondent Susan Yee and the deceased is a bigamousmarriage, having been solemnized during the subsistence of a previous marriage thenpresumed to be valid (between petitioner and the deceased), the application of Article148 is therefore in order.

The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.],NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly renumerations,incentives and benefits from governmental agencies earned by the deceased as a policeofficer. Unless respondent Susan Yee presents proof to the contrary, it could not be saidthat she contributed money, property or industry in the acquisition of these monetarybenefits. Hence, they are not owned in common by respondent and the deceased, butbelong to the deceased alone and respondent has no right whatsoever to claim the same.By intestate succession, the said death benefits of the deceased shall pass to his legal

heirs. And, respondent, not being the legal wife of the deceased is not one of them.

As to the property regime of petitioner Susan Nicdao and the deceased, Article 147 ofthe Family Code governs. This article applies to unions of parties who are legally

capacitated and not barred by any impediment to contract marriage, but whose marriageis nonetheless void for other reasons, like the absence of a marriage license. Article 147of the Family Code reads -

Art. 147. When a man and a woman who are capacitated to marry each other, liveexclusively with each other as husband and wife without the benefit of marriage orunder a void marriage, their wages and salaries shall be owned by them in equal sharesand the property acquired by both of them through their work or industry shall begoverned by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived togethershall be presumed to have been obtained by their joint efforts, work or industry, and

shall be owned by them in equal shares. For purposes of this Article, a party who did not

participate in the acquisition by the other party of any property shall be deemed to havecontributed jointly in the acquisition thereof if the formers efforts consisted in the care

and maintenance of the family and of the household.

x x x

When only one of the parties to a void marriage is in good faith, the share of the party inbad faith in the co-ownership shall be forfeited in favor of their common children. Incase of default of or waiver by any or all of the common children or their descendants,each vacant share shall belong to the respective surviving descendants. In the absence ofdescendants, such share shall belong to the innocent party. In all cases, the forfeitureshall take place upon termination of the cohabitation.

In contrast to Article 148, under the foregoing article, wages and salaries earned byeither party during the cohabitation shall be owned by the parties in equal shares andwill be divided equally between them, even if only one party earned the wages and theother did not contribute thereto. 19 Conformably, even if the disputed death benefitswere earned by the deceased alone as a government employee, Article 147 creates a co-ownership in respect thereto, entitling the petitioner to share one-half thereof. As there isno allegation of bad faith in the present case, both parties of the first marriage arepresumed to be in good faith. Thus, one-half of the subject death benefits underscrutiny shall go to the petitioner as her share in the property regime, and the other halfpertaining to the deceased shall pass by, intestate succession, to his legal heirs, namely,his children with Susan Nicdao.

In affirming the decision of the trial court, the Court of Appeals relied on the case ofVda. de Consuegra v. Government Service Insurance System, 20 where the Courtawarded one-half of the retirement benefits of the deceased to the first wife and theother half, to the second wife, holding that:

... [S]ince the defendants first marriage has not been dissolved or declared void the

conjugal partnership established by that marriage has not ceased. Nor has the first wifelost or relinquished her status as putative heir of her husband under the new Civil Code,

entitled to share in his estate upon his death should she survive him. Consequently,whether as conjugal partner in a still subsisting marriage or as such putative heir she hasan interest in the husbands share in the property here in dispute.... And with respect to

the right of the second wife, this Court observed that although the second marriage canbe presumed to be void ab initio as it was celebrated while the first marriage was stillsubsisting, still there is need for judicial declaration of such nullity. And inasmuch as theconjugal partnership formed by the second marriage was dissolved before judicialdeclaration of its nullity, [t]he only just and equitable solution in this case would be to

recognize the right of the second wife to her share of one-half in the property acquiredby her and her husband, and consider the other half as pertaining to the conjugalpartnership of the first marriage. 21


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It should be stressed, however, that the aforecited decision is premised on the rule whichrequires a prior and separate judicial declaration of nullity of marriage. This is thereason why in the said case, the Court determined the rights of the parties in accordancewith their existing property regime.

In Domingo v. Court of Appeals, 22 however, the Court, construing Article 40 of theFamily Code, clarified that a prior and separate declaration of nullity of a marriage is anall important condition precedent only for purposes of remarriage. That is, if a party whois previously married wishes to contract a second marriage, he or she has to obtain first ajudicial decree declaring the first marriage void, before he or she could contract saidsecond marriage, otherwise the second marriage would be void. The same rule applieseven if the first marriage is patently void because the parties are not free to determinefor themselves the validity or invalidity or their marriage. However, for purposes otherthan to remarry, like for filing a case for collection of sum of money anchored on amarriage claimed to be valid, no prior and separate judicial declaration of nullity isnecessary. All that a party has to do is to present evidence, testimonial or documentary,that would prove that the marriage from which his or her rights flow is in fact valid.Thereupon, the court, if material to the determination of the issues before it, will rule onthe status of the marriage involved and proceed to determine the rights of the parties inaccordance with the applicable laws and jurisprudence. Thus, in Nial v. Bayadog, 23the Court explained:

[T]he court may pass upon the validity of marriage even in a suit not directly institutedto question the same so long as it is essential to the determination of the case. This iswithout prejudice to any issue that may arise in the case. When such need arises, a finaljudgment of declaration of nullity is necessary even if the purpose is other than toremarry. The clause on the basis of a final judgment declaring such previous marriage

void in Article 40 of the Family Code connoted that such final judgment need not be

obtained only for purpose of remarriage.

WHEREFORE, the petition is GRANTED, and the decision of the Court of Appeals inCA-G.R. CV No. 51263 which affirmed the decision of the Regional Trial Court ofQuezon City ordering petitioner to pay respondent the sum of P73,000.00 plusattorneys fees in the amount of P5,000.00, is REVERSED and SET ASIDE. Thecomplaint in Civil Case No. Q-93-18632, is hereby DISMISSED. No pronouncement asto costs.1wphi1.nt

SO ORDERED.

THIRD DIVISION[G.R. No. 137110. August 1, 2000]

VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner, vs.CONSUELO TAN, respondent.D E C I S I O N

PANGANIBAN, J.:

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

The Case

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

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

Costs against accused.[2]

The Facts

The facts are quoted by Court of Appeals (CA) from the trial courts judgment, as

follows: From the evidence adduced by the parties, there is no dispute th at accused Dr.Vincent Mercado and complainant Ma. Consuelo Tan got married on June 27, 1991before MTCC-Bacolod City Br. 7 Judge Gorgonio J. Ibaez [by reason of] which aMarriage Contract was duly executed and signed by the parties. As entered in saiddocument, the status of accused was single. There is no dispute either that at the timeof the celebration of the wedding with complainant, accused was actually a married

man, having been in lawful wedlock with Ma. Thelma Oliva in a marriage ceremonysolemnized on April 10, 1976 by Judge Leonardo B. Caares, CFI-Br. XIV, Cebu Cityper Marriage Certificate i ssued in connection therewith, which matrimony was furtherblessed by Rev. Father Arthur Baur on October 10, 1976 in religious rites at the SacredHeart Church, Cebu City. In the same manner, the civil marriage between accused andcomplainant was confirmed in a church ceremony on June 29, 1991 officiated by Msgr.Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages wereconsummated when out of the first consortium, Ma. Thelma Oliva bore accused twochildren, while a child, Vincent Paul, Jr. was sired by accused with complainant Ma.Consuelo Tan.

On October 5, 1992, a letter-complaint for bigamy was filed by complainant through

counsel with the City Prosecutor of Bacolod City, which eventually resulted [in] the


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institution of the present case before this Court against said accused, Dr. Vincent G.Mercado, on March 1, 1993 in an Information dated January 22, 1993.

On November 13, 1992, or more than a month after the bigamy case was lodged in the

Prosecutors Office, accused filed an action for Declaration of Nullity of Marriage

against Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City, and in a Decision dated May 6,1993 the marriage between Vincent G. Mercado and Ma. Thelma V. Oliva was declarednull and void.

Accused is charged [with] bigamy under Article 349 of the Revised Penal Code for

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

While acknowledging the existence of the two marriage[s], accused posited the

defense that his previous marriage ha[d] been judicially declared null and void and thatthe private complainant had knowledge of the first marriage of accused.

It is an admitted fact that when the second marriage was entered into with Ma.Consuelo Tan on June 27, 1991, accuseds prior marriage with Ma. Thelma V. Oliva

was subsisting, no judicial action having yet been initiated or any judicial declarationobtained as to the nullity of such prior marriage with Ma. Thelma V. Oliva. Since nodeclaration of the nullity of his first marriage ha[d] yet been made at the time of hissecond marriage, it is clear that accused was a married man when he contracted suchsecond marriage with complainant on June 27, 1991. He was still at the time validlymarried to his first wife.[3]

Ruling of the Court of Appeals

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

Under Article 40 of the Family Code, the absolute nullity o f a previous marriage maybe invoked for purposes of remarriage on the basis solely of a final judgment declaringsuch previous marriage void. But here, the final judgment declaring null and void

accuseds previous marriage came not before the celebration of the second marriage, butafter, when the case for bigamy against accused was already tried in court. And whatconstitutes the crime of bigamy is the act of any person who shall contract a secondsubsequent marriage before the former marriage has been legally dissolved.[4]

Hence, this Petition.[5]

The Issues

In his Memorandum, petitioner raises the following issues:

A

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

B

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

C

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

The Courts Ruling

The Petition is not meritorious.

Main Issue:Effect of Nullity of Previous Marriage

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

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

The elements of this crime are as follows:

1. That the offender has been legally married;

2. That the marriage has not been legally dissolved or, in case his or her spouse isabsent, the absent spouse could not yet be presumed dead according to the Civil Code;

3. That he contracts a second or subsequent marriage;

4. That the second or subsequent marriage has all the essential requisites forvalidity.[7]


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

Petitioner contends, however, that he obtained a judicial declaration of nullity of his firstmarriage under Article 36 of the Family Code, thereby rendering it void ab initio.Unlike voidable marriages which are considered valid until set aside by a competentcourt, he argues that a void marriage is deemed never to have taken place at all.[8] Thus,he concludes that there is no first marriage to speak of. Petitioner also quotes thecommentaries[9] of former Justice Luis Reyes that it is now settled that if the first

marriage is void from the beginning, it is a defense in a bigamy charge. But if the firstmarriage is voidable, it is not a defense.

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

We agree with the respondent.

To be sure, jurisprudence regarding the need for a judicial declaration of nullity of theprevious marriage has been characterized as conflicting.[10] In People v.

Mendoza,[11] a bigamy case involving an accused who married three times, the Courtruled that there was no need for such declaration. In that case, the accused contracted asecond marriage during the subsistence of the first. When the first wife died, he marriedfor the third time. The second wife then charged him with bigamy. Acquitting him, theCourt held that the second marriage was void ab initio because it had been contractedwhile the first marriage was still in effect. Since the second marriage was obviouslyvoid and illegal, the Court ruled that there was no need for a judicial declaration of itsnullity. Hence, the accused did not commit bigamy when he married for the third time.

This ruling was affirmed by the Court in People v. Aragon,[12] which involvedsubstantially the same facts.

But in subsequent cases, the Court impressed the need for a judicial declaration ofnullity. In Vda de Consuegra v. GSIS,[13] Jose Consuegra married for the second timewhile the first marriage was still subsisting. Upon his death, the Court awarded one halfof the proceeds of his retirement benefits to the first wife and the other half to thesecond wife and her children, notwithstanding the manifest nullity of the secondmarriage. It held: And with respect to the right of the second wife, this Court observes

that although the second marriage can be presumed to be void ab initio as it wascelebrated while the first marriage was still subsisting, still there is need for judicialdeclaration of such nullity.

In Tolentino v. Paras,[14] however, the Court again held that judicial declaration ofnullity of a void marriage was not necessary. In that case, a man married twice. In hisDeath Certificate, his second wife was named as his surviving spouse. The first wifethen filed a Petition to correct the said entry in the Death Certificate. The Court ruled infavor of the first wife, holding that the second marriage t hat he contracted with privaterespondent during the lifetime of the first spouse is null and void from the beginning andof no force and effect. No judicial decree is necessary to establish the invalidity of avoid marriage.

In Wiegel v. Sempio-Diy,[15] the Court stressed the need for such declaration. In thatcase, Karl Heinz Wiegel filed an action for the declaration of nullity of his marriage toLilia Olivia Wiegel on the ground that the latter had a prior existing marriage. Afterpretrial, Lilia asked that she be allowed to present evidence to prove, among others, thather first husband had previously been married to another woman. In holding that therewas no need for such evidence, the Court ruled: x x x There is likewise no need ofintroducing evidence about the existing prior marriage of her first husband at the timethey married each other, for then such a marriage though void still needs, according tothis Court, a judicial declaration of such fact and for all legal intents and purposes shewould still be regarded as a married woman at the time she contracted her marriage withrespondent Karl Heinz Wiegel; x x x.

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

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

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

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

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


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(a) The first marriage was annulled or dissolved;

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

The Court held in those two cases that the said provision plainly makes a subsequent

marriage contracted by any person during the lifetime of his first spouse illegal and voidfrom its performance, and no judicial decree is necessary to establish its invalidity, asdistinguished from mere annulable marriages.[19]

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

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

In view of this provision, Domingo stressed that a final judgment declaring suchmarriage void was necessary. Verily, the Family Code and Domingo affirm the earlierruling in Wiegel. Thus, a Civil Law authority and member of the Civil Code RevisionCommitee has observed:

[Article 40] is also in line with the recent decisions of the Supreme Court that the

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

In this light, the statutory mooring of the ruling in Mendoza and Aragon that there isno need for a judicial declaration of nullity of a void marriage -- has been cast aside byArticle 40 of the Family Code. Such declaration is now necessary before one cancontract a second marriage. Absent that declaration, we hold that one may be chargedwith and convicted of bigamy.

The present ruling is consistent with our pronouncement in Terre v. Terre,[21] whichinvolved an administrative Complaint against a lawyer for marrying twice. In rejectingthe lawyers argument that he was free to enter into a second marriage because the first

one was void ab initio, the Court ruled: for purposes of determining whether a person is

legally free to contract a second marriage, a judicial declaration that the first marriage

was null and void ab initio is essential. The Court further noted that the said rule was

cast into statutory form by Article 40 of the Family Code. Significantly, it observed

that the second marriage, contracted without a judicial declaration that the first marriagewas void, was bigamous and criminal in character.

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

It is now settled that the fact that the first marriage is void from the beginning is not adefense in a bigamy charge. As with a voidable marriage, there must be a judicialdeclaration of the nullity of a marriage before contracting the second marriage. Article40 of the Family Code states that x x x. The Code Commission believes that the partiesto a marriage should not be allowed to assume that their marriage is void, even if such isthe fact, but must first secure a judicial declaration of nullity of their marriage beforethey should be allowed to marry again. x x x.

In the instant case, petitioner contracted a second marriage although there was yet nojudicial declaration of nullity of his first marriage. In fact, he instituted the Petition tohave the first marriage declared void only after complainant had filed a letter-complaintcharging him with bigamy. By contracting a second marriage while the first was still

subsisting, he committed the acts punishable under Article 349 of the Revised PenalCode.

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

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

Damages

In her Memorandum, respondent prays that the Court set aside the ruling of the Court ofAppeals insofar as it denied her claim of damages and attorneys fees.[23]

Her prayer has no merit. She did not appeal the ruling of the CA against her; hence, shecannot obtain affirmative relief from this Court.[24] In any event, we find no reason toreverse or set aside the pertinent ruling of the CA on this point, which we quotehereunder:

We are convinced from the totality of the evidence presented in this case that

Consuelo Tan is not the innocent victim that she claims to be; she was well aware of the

existence of the previous marriage when she contracted matrimony with Dr. Mercado.


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The testimonies of the defense witnesses prove this, and we find no reason to doubt saidtestimonies.

x x x x x x x x x

Indeed, the claim of Consuelo Tan that she was not aware of his previous marriage

does not inspire belief, especially as she had seen that Dr. Mercado had two (2) childrenwith him. We are convinced that she took the plunge anyway, relying on the fact thatthe first wife would no longer return to Dr. Mercado, she being by then already livingwith another man.

Consuelo Tan can therefore not claim damages in this case where she was fully

conscious of the consequences of her act. She should have known that she would sufferhumiliation in the event the truth [would] come out, as it did in this case, ironicallybecause of her personal instigation. If there are indeed damages caused to herreputation, they are of her own willful making.[25]

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

SO ORDERED.

Documents

Domingo v. CA