VI R G I LI O M AQ U I LA N P etit io ner , v ers u s D I T A M AQU I LA N, P r o mu l g at ed : Re sp o n d en t.

J u ne 8 , 2 0 0 7 D E C I S I O N

1. In p ar ti al s et tle me n t of p art ner s h ip o f ga i ns , the p ar ti es fo llo wi n g :

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AU S TR IA - M ART I N E Z, J .:

B efo r e t h e Co ur t i s a P eti tio n fo r Re vi e w o n C er tio ra ri u nd er R ul e 4 5 o f th e R u le s o f Co ur t a ss a ili n g t he De ci sio n [ 1 ] d a ted Au g u st 3 0 , 2 0 0 2 p ro mu l gat ed b y t he Co ur t o f Ap p ea ls ( C A) i n C A - G .R . S P No . 6 9 6 8 9 , wh i c h a f fir med t he J ud g me n t o n Co mp r o mi se Ag r ee me nt d at ed J a n uar y 2 , 2 0 0 2 o f t he Re g io n al T ri al Co ur t (RT C), B ra n c h 3 , Nab u n t ur a n, Co mp o s t ela Va lle y, a nd t he R T C Ord er s d ated J a n u ar y 2 1 , 2 0 0 2 and F eb r uar y 7 , 2 0 0 2 (O RD E RS) i n C i vi l Ca se N o . 6 5 6 . T he fac t s o f t he c a se, as fo u nd b y t he C A, are as fo llo ws : Her e i n p e ti tio n er a nd he r ei n p r i va te r e sp o nd e nt are sp o u se s wh o o nc e ha d a b li s s f ul marr ied l i fe and o u t o f wh i c h wer e b le s sed to h a ve a so n. Ho we v er, t heir o nc e s u g ar co a ted ro m an ce t ur n ed b it te r wh en p eti tio n er d i sco ver ed t ha t p r i va te r e sp o nd e n t was ha v i n g i lli ci t s e x ua l af f air wi t h h er p ar a mo u r , wh ic h t h us , p r o mp ted th e p et it io ner to fil e a cas e of ad ul ter y a g ai n s t p r i v ate r e sp o nd e nt a nd t he lat te rs p ar a mo ur. Co n s eq ue nt l y, b o t h t he p r i va te re s p o nd e n t a nd her p ara m o ur we r e co n v ic ted o f t he cr i me c h ar ged a nd were s e nte n ced to s u ffe r a n i mp r i so n me n t r a n gi n g fr o m o n e ( 1 ) ye ar , ei g ht (8 ) mo n t hs , mi n i mu m o f p r i sio n co rrec cio n al a s mi n i mu m p e n al t y, to thr ee (3 ) ye ars , s i x (6 ) mo n t hs a nd t we n t y o ne ( 2 1 ) d a ys , med i u m o f p r is io n co r rec cio n al a s ma x i mu m p e na lt y. T her ea fter, p r i va te r e s p o nd e n t, t hr o u g h co u n se l, fi led a P e ti tio n fo r Dec lara tio n o f N u ll it y o f Mar r ia g e, D is so l ut io n a nd Liq uid a tio n o f Co nj u g al P art ne rs h ip o f Ga i n s a nd Da ma g e s o n J u ne 1 5 , 2 0 0 1 wi t h th e Re g io na l T rial Co ur t , B r a nc h 3 o f Nab u nt u ra n, Co mp o s tel a V al l e y, d o ck eted a s C i vi l C as e No . 6 5 6 , i mp u ti n g p s yc ho l o gic al i nc ap ac it y o n th e p ar t o f t he p et it io ner . 2. D ur i n g t he p re -tr ia l o f t he sa id c as e, p e ti tio n er a nd p r i vat e re sp o nd en t en te r ed i n to a C OMP RO MI SE AG REEM ENT i n t he fo l lo wi n g t er ms , to wit:

a. P 5 0 0 ,0 0 0 .0 0 o f t h e mo n e y d ep o si ted in t he b a n k j o i nt l y i n th e n a me o f t he sp o u se s s ha ll b e wi t hd r a wn a nd d ep o s ited in fa vo r a nd i n tr us t o f t hei r co m mo n ch ild , Nei l M aq ui la n, wi t h t h e d ep o s it i n th e j o i nt ac co u nt o f t he p arti es . T he b ala n ce o f s uc h d ep o si t, wh i c h p res e ntl y s ta nd s at P 1 ,3 1 8 ,0 4 3 .3 6 , s h all b e wi t h d ra wn a nd d i v id e d e q u al l y b y t he p arti es ; b . T he s to re t ha t i s n o w b ei n g o cc up ied b y t h e p l ai n ti ff s ha ll b e al lo t ted to h er wh i le t h e b o d e ga s ha ll b e fo r t he d efe nd a n t. T h e d e fe nd a nt s ha ll b e p aid t he s u m o f P 5 0 ,0 0 0 .0 0 as hi s s har e i n t h e sto c ks o f t h e s to re i n fu ll se tt le me n t th ereo f. T he p l ai n ti ff s h al l b e allo wed to o c c up y th e b o d e g a u nt il t he ti me t he o wn e r o f th e lo t o n wh ic h it sta nd s s hal l co n s tr uct a b u ild i n g t h er eo n ; c. T h e mo to rc yc le s s ha ll b e d i vid ed b et we e n t he m s uc h t ha t th e Ka wa s a ki s h all b e o wn ed b y t h e p la i nt i ff wh i le t he Ho nd a Drea m s h al l b e fo r t he d efe nd a n t; d . T he p as se n g er j eep s ha ll b e fo r t he p lai n ti ff wh o s h al l p a y th e d e fe nd a n t t he s u m o f P 7 5 ,0 0 0 .0 0 as h i s s h are t h ereo n a nd in ful l set tl e me n t t h ereo f; e. T h e ho u se a nd lo t s h al l b e to t h e co m mo n c h ild . T hi s s et tle me nt is o nl y p a rti al, i.e., wit ho ut p rej ud i ce to t he li ti g at io n o f o t her co nj u g al p ro p erti e s t h at h a ve no t b ee n me n tio n ed ; x x x x

T he said Co m p r o mi se Agre e me n t wa s g i ve n j ud i ci al i mp ri ma t ur by t he r e sp o nd e n t j ud ge in the as sa iled J u dg me nt O n Co mp ro mi s e Ag ree ment , wh i c h wa s erro neo u sl y d ated J a n ua r y 2 , 2 0 0 2 . [ 2 ] Ho we ver , p et it io ner f il ed a n O mn i b u s Mo tio n d ated J a n uar y 1 5 , 2 0 0 2 , p r a yi n g fo r t h e r ep ud ia tio n o f t he Co mp ro mi s e Agr ee me n t and t h e reco n sid er a tio n o f t he J ud g me n t o n Co mp ro mi s e Agre e me n t b y t h e re sp o nd e n t j ud ge o n t h e gr o u nd s t ha t hi s p rev io u s la wyer d id no t i nt el li ge n tl y a nd j u d icio u s l y ap p ri se h i m o f t h e co n seq ue n ti al effec ts o f t h e Co mp r o mi se Ag r e e me nt . T he r e sp o nd e nt J ud ge i n t he a ss ai led O rde r da te d J a n ua ry 2 1 , 2 0 0 2 , d e n ied t he a fo r e me nt io ned O mn i b us M o tio n. D isp le as ed , p e ti t io n er f il ed a Mo t io n fo r Re co n sid er at io n o f th e a fo re sa id Or d e r , b u t the sa me wa s d e ni ed i n the a s sa il ed O r de r da te d F eb rua ry 7 , 2 0 0 2 . [ 3 ] ( E mp ha s i s s up p li ed ) T he p et itio n e r f il ed a P e ti tio n f o r Ce rt i o ra ri a nd P ro hib it io n wit h t he C A u nd er R u le 6 5 o f t he R u le s o f Co ur t c lai mi n g t h at t he RT C co m mi tt ed g rav e erro r and ab us e o f d i scr et io n a mo u n ti n g to l ac k o r ex ce s s o f j ur isd ic ti o n (1 ) i n up ho ld i n g t h e val id i t y o f t h e Co mp r o mi s e Agre e me nt d a ted J a n u ar y 1 1 , 2 0 0 2 ; (2 ) wh e n it he ld i n it s Or d e r d ated Feb r u ar y 7 , 2 0 0 2 tha t t he Co mp ro mi s e Ag ree me n t wa s ma d e wi t h i n t he co o li n g -o f f p er io d ; ( 3 ) wh en i t d e ni ed p et it io ner s Mo tio n to Rep ud ia te Co mp ro mi s e Ag r ee me n t a nd to R eco n sid er It s J u d g me n t o n C o mp ro mi s e Ag r ee me n t ; a nd (4 ) wh e n i t co nd u ct ed t he p ro ce ed i n g s wi t ho ut t h e ap p e ara nce a nd p ar ti cip at io n o f t he O f fi ce o f t he So lic ito r Ge ne ral a nd /o r t h e P ro v i nci al P r o sec u to r. [ 4 ] O n Au g u s t 3 0 , 2 0 0 2 , t he C A d is mi s s ed t he P et itio n fo r lac k o f me ri t. T h e C A h eld t ha t t h e co n v ict io n o f t h e r e sp o nd e nt o f t he cri me o f ad ul ter y d o e s no t ip so fa cto d i sq ual i f y her fr o m s h ar i n g i n th e co nj u g al p ro p ert y, esp e cia ll y co n s id eri n g t ha t she h ad o nl y been se n te nced wi t h t he p e nal t y o f p r is io n co r rec cio n a l, a p en al t y t ha t d o es no t carr y t he a cce s so r y p en al t y o f ci vi l i nterd ic tio n wh i c h d ep r i ve s t he p er so n o f t he r i g ht s to ma n a ge h er p ro p er t y and to d i sp o se o f s uc h p r o p er t y in te r vi vo s; t ha t Arti cl es 4 3 a nd 6 3 o f th e Fa mi l y Co d e, wh i c h p ert ai n to th e e f f ec t s o f a n ul li fie d marri a ge a nd t he e ffe ct s o f le ga l sep a r at io n, re sp ec ti v el y , d o no t ap p l y, co n sid e ri n g, to o , t ha t t he P et it io n fo r t h e Dec lara tio n o f t he N u ll i t y o f Mar r ia ge f iled b y th e re sp o nd e n t i n vo ki n g Ar ti cl e 3 6 o f t he Fa mi l y Co d e h as ye t to b e d ec id ed , a nd , he n ce, it is p re ma t ure to ap p l y Ar t icl es 4 3 a nd 6 3 o f t he Fa mi l y Co d e; t h at, alt ho u g h ad u lte r y is a gro u nd fo r le ga l sep arat io n, no net h ele s s, Ar t ic le 6 3 f i nd s no ap p l ica tio n i n t h e i n st a nt ca se si n ce no p e ti tio n to t hat e f fec t wa s fi led b y t he p eti tio n er a g ai n st t he r esp o nd e n t; th at t he sp o us e s vo l u nt ar il y sep ar a ted t h eir p r o p ert y t hro u g h t he ir C o mp ro mi s e Ag r ee me n t wi t h co ur t ap p r o v al u nd er Ar t ic le 1 3 4 o f t h e Fa mi l y Co d e; t hat t h e

Co mp ro mi s e Agre e me n t , wh ic h e mb o d ie s t he v o lu n tar y sep ar at io n o f p ro p ert y, i s va lid a nd b i nd i n g i n al l resp ec t s b eca u se i t h a d b een vo l u n tar il y e nt e red in to b y th e p art ie s; t h at, fur t her mo r e, e ve n i f i t wer e tr ue t h at t h e p et it io ner was no t d ul y in fo r med b y hi s p re v i o u s co u n sel ab o ut t h e le gal e ffec t s o f t he Co mp ro mi s e Ag ree me n t, t h i s p o i n t i s u n te nab le s i nce t h e m is ta ke o r n e gl i ge nc e o f th e la wyer b in d s hi s cl ie n t, u nle s s s uc h mi s ta ke o r n e gl i ge nc e a mo u nt s to gro s s ne gl i ge n ce o r d ep ri va tio n o f d ue p ro c es s o n t he p ar t o f h is cl ie nt ; t h at t he se e xcep tio n s ar e no t p res e nt i n t he i n sta n t c ase ; t ha t t h e Co mp ro mi se Ag re e me n t wa s p l ai n l y wo rd ed and wr it te n i n si mp le lan g u a ge, wh i c h a p e rso n o f o rd i nar y i n tel l ig e nce c a n d is cer n t he co n seq ue n c es t her eo f, h e nce, p e tit i o ner s cl ai m t h at h i s c o n se n t wa s vi ti at ed i s h i g hl y i ncr ed ib le ; t h at t he Co mp ro mi se Ag re e me n t wa s mad e d ur i n g t h e ex i ste n ce o f t h e mar ria ge o f t h e p ar ti e s s i nce it wa s s ub mi tted d uri n g th e p e nd e nc y o f t he p e tit io n fo r d ec lar at io n o f n u ll it y o f ma rri a ge ; t h at t he ap p li cat io n o f Ar ti cle 2 0 3 5 o f t h e C i vi l Co d e is mi sp la ced ; t ha t t he c o o li n g -o ff p erio d u nd er Art icl e 5 8 o f t h e Fa mi l y Co d e h a s no b ear i n g o n t he va li d it y o f t h e Co mp ro mi s e Ag ree me n t ; t ha t t he Co mp ro mi s e Ag ree me n t i s no t co ntr ar y to la w, mo r al s, go o d c u sto ms , p ub l ic o rd er, a nd p ub lic p o lic y; t hat t h is a gre e m en t ma y no t b e lat er d i so wn e d s i mp l y b ec a us e o f a c ha n ge o f mi nd ; t h at t h e p res e nc e o f t he So l ici to r G e nera l o r hi s d ep u t y i s no t i nd isp e n s ab le to t he e xe c ut io n a n d va lid it y o f t h e Co mp ro mi se Agr ee me n t, s i nce t h e p u rp o se o f h i s p re se nc e is to cur ta il a n y co ll u s io n b e t we e n t h e p arti es a nd to see to it t h at e v id e nc e i s no t fab ri cated , a nd , wi t h t hi s i n mi n d , no t hi n g i n t he Co mp ro mi s e Agree me nt to uc he s o n t h e ver y me ri ts o f t he ca se o f d e clar at io n o f n u ll it y o f m arria g e fo r t he co ur t to b e wa r y o f an y p o ss ib l e co l l us io n; and , fi nal l y, t h at t he Co mp ro mi s e Agre e me n t i s me rel y a n agr ee me n t b e t we e n t he p artie s to sep arat e t he ir co nj u g al p ro p er ti e s p art ia ll y wi t h o ut p r ej ud ice to t h e o u tco me o f t he p e nd i n g ca se o f d e cla rat io n o f n u ll it y o f ma rria g e. He n ce, here i n P et itio n , p ur el y o n q u es ti o n s o f l a w, ra i si n g t h e fo l lo wi n g is s ue s : I. W HET HE R O F NOT A SP OU SE C ON VI CT ED OF EIT HE R CO N CUB I N AGE O R ADU LT E RY, C AN ST I L L SH AR E I N T HE CO NJ U G AL P ART NE R SHIP ; II W HET HE R OR N OT A CO MP R OMI SE AG R EEME NT ENT ER ED INT O B Y SP O USE S, ONE O F W H OM W AS C ON VI CT ED O F AD U LT ER Y, GIV IN G T HE C ON VI CT ED SP OU SE A S H ARE IN T HE C ONJ U G AL P R OP ERT Y, V ALID AN D LE G AL; III

W HET HE R O R NOT A J UD GM E NT F OR AN NU LME NT AN D LE G AL SEP AR AT I ON I S A P RE - R EQ UIS IT E B EFO R E A SP O US E CO NV ICT ED O F E I T HER C ON C UB IN AG E O R AD U LT ER Y, B E DIS QU ALI FI E D AND P RO HI B I T ED F RO M SH AR IN G I N T HE CO NJ U G AL P R OP E RT Y; IV W HET HE R O R N OT T HE DI SQ U ALIFI C AT I ON OF A C ON VI CT ED SP OU SE O F ADU LT E RY F RO M SH AR IN G IN A CO NJ U G AL P ROP E RT Y, C ON ST I TUT ES CI VI L INT E RDI C T ION. [ 5 ] T he p et it io ner ar g ue s t ha t t he Co mp ro mi s e Agre e me nt s ho uld no t ha v e b e e n gi v e n j ud ic i al i mp r i mat ur si nc e it is a ga i n st la w a nd p ub lic p o lic y; t ha t t h e p r o ceed in g s wh er e it wa s ap p ro ved is n u ll a nd vo id , t h ere b ei n g no ap p eara n ce a nd p ar ti cip at io n o f t h e So l ic ito r Ge ner al o r th e P r o vi n cia l P ro se c uto r ; th at i t wa s t i me l y r ep ud iat ed ; a nd t h at th e r esp o nd e nt, h a vi n g b ee n co n v ic ted o f ad ul ter y, i s t h ere fo re d i sq ua li fied fr o m s h ari n g i n t he co nj u ga l p r o p er t y. T he P e ti tio n mu s t fa il . T he e s se nt ia l q ue s tio n i s wh et h er t he p art i al vo l u n tar y sep a rat io n o f p r o p er t y mad e b y t he sp o u se s p e nd i n g t he p et it io n fo r d ecla rat io n o f n u ll it y o f ma rria g e i s va lid . Fi r st. T he p e ti tio ner co nt e nd s t ha t t h e Co mp ro mi s e Ag ree me nt i s vo id b eca u se it c irc u mv e n t s t he l a w t ha t p r o h ib i t s t h e g u il t y sp o u se, wh o wa s co n vi ct ed o f e it h er ad ul ter y o r co nc ub i na ge , fr o m s h ari n g i n t he co nj u gal p ro p e rt y. Si n ce th e r e sp o nd e n t wa s co n vi ct ed o f ad u lte r y, t h e p et it io ner a r g ue s t h a t her s har e s ho uld b e fo r fe it ed i n fa vo r o f t he co m mo n chi ld u nd er Ar ti cle s 4 3 (2 ) [ 6 ] a nd 6 3 [ 7 ] o f t he F a mi l y Co d e . T o t h e p e ti tio n er , it i s t h e c lear i n t e n tio n o f t he la w to d i sq ua li f y th e sp o u se co n v ic ted o f ad ul ter y f r o m s har i n g i n t he co nj u g al p ro p er t y; a nd b eca u se t h e Co mp ro mi s e Ag ree me nt is vo id , it n e ver b eca me fi nal a nd e x ec u to r y. Mo reo v er, t he p et itio n er c ite s Ar ti cl e 2 0 3 5 [ 8 ] o f t he Ci v il Co d e and a r g ue s th at s i nce ad ul ter y is a gr o u nd fo r le g al sep a rat io n , t h e Co mp ro mi s e Ag ree me n t i s th er e fo r e vo id . T he se ar g u me n t s ar e sp e cio u s. T he fo re go i n g p ro v is io n s o f t h e l a w are in ap p l icab le to t he i ns ta nt ca se . Art ic le 4 3 o f t he F a mil y C o d e r e f er s to Ar t icl e 4 2 , to wi t : Ar ti cle 4 2 . T h e s ub seq ue n t marr ia g e re ferred to i n t he p reced i n g Ar ti cle [ 9 ] s h all b e a u to ma tic al l y ter mi n at ed b y t he

reco rd i n g o f t h e a ffid a vi t o f r eap p e ara nc e o f t he ab s e nt sp o u se, u nl e ss t here is a j ud g me n t a n n u ll i n g t he p r ev io u s marr ia ge o r d ecla ri n g it vo id a b in i ti o . A s wo r n s tat e me n t o f t h e fact a n d cir c u ms ta n ce s o f reap p ear a nce s ha ll b e re co rd ed i n t he c i vi l re gi s tr y o f t h e re sid e n ce o f t h e p art ie s to t he s ub seq ue n t marr ia ge a t th e i n st a nce o f a n y in ter es ted p e rso n , wi t h d ue no tic e to t he sp o u s es o f t h e s ub seq u e nt ma rria g e a nd wi t ho u t p rej ud i ce to t he fa ct o f reap p e ara nc e b e i n g j ud ic ia ll y d eter mi ned i n ca se s uc h fac t i s d isp u t ed . wh ere a s ub seq u e nt ma rria ge i s t er mi n at ed b eca us e o f t he reap p eara nc e o f a n ab se n t sp o us e; wh i l e Art icl e 6 3 ap p l ie s to th e e ffe ct s o f a d e cre e o f le ga l sep a r at io n. T he p re se n t ca se i n vo l ve s a p ro c eed i n g wh e re t h e n ul li t y o f t he ma rria g e i s so u g h t to b e d ecl ared u nd er t h e gro u nd o f p s yc h o lo g ica l cap aci t y. Art ic le 2 0 3 5 o f t h e C i vi l Co d e i s al so c le arl y i n ap p l icab le. T he Co mp ro mi s e Ag ree me n t p ar tia ll y d i v id ed t he p ro p ert ie s o f t he co nj u gal p ar t ner s hip o f ga i ns b et we e n t he p ar ti es a n d d o es no t d ea l wi t h t he v al id i t y o f a ma rri a ge o r le g al sep a r at io n. I t is no t a m o n g t ho s e t h at are e xp re s s l y p ro h ib i ted b y Ar tic l e 2 0 3 5 . Mo reo v er, t he co n te nt io n t h at t h e Co mp ro mi s e Agr ee me n t i s t a nt a mo u n t to a circ u mv e n t io n o f t he l a w p ro h ib i ti n g t he g u i lt y sp o u se fro m s har i n g i n t h e co nj u ga l p ro p er ti es i s mi sp la ced . E xi st i n g l a w a nd j uri sp r ud e n ce d o no t i mp o se s uc h d i sq ual i fi ca tio n. U nd er Ar ti cle 1 4 3 o f t he Fa mi l y C o d e , s ep ara tio n o f p ro p ert y ma y b e effec ted vo l u ntar il y o r fo r s u ffic ie nt ca u se, s ub j ect to j ud ic ia l ap p ro va l. T h e q ue s tio ned Co mp ro mi se Ag ree me n t wh ic h wa s j ud i ci al l y ap p ro ve d i s e x act l y s u c h a s ep ara tio n o f p ro p er t y allo wed u nd er t h e l a w. T hi s co nc l u sio n ho ld s t rue e ve n i f th e p ro ceed i n g s fo r the d e cla rat io n o f n ul li t y o f mar ria g e wa s st il l p end i n g. H o w ev er, t he Co urt mu st s tre s s th a t thi s v o l unta ry se pa ra tio n o f pro perty i s s u bje ct to t he r ig hts o f a ll cre d ito rs o f t he co nj ug a l pa rt ner s hi p o f g a in s a n d o th er pe r so n s w ith p ec un ia ry i nte re st p ur s ua nt to Art ic le 1 3 6 o f the Fa mi ly Co d e. S eco n d . P et itio n er s cl ai m t ha t s i nc e t he p ro ceed i n gs b e fo re t h e RT C we re vo i d i n t he ab se nc e o f t he p ar ti cip a tio n o f t h e p ro v i nci al p ro sec u to r o r so li ci to r, th e vo l u n tar y sep ar at io n mad e d ur i n g t h e p e nd en c y o f t he ca se i s a lso vo id . T he p ro ceed i n gs p ert ai n i n g to t he Co mp ro mi se Ag ree me n t i n vo l v ed t h e co nj u g al p ro p erti e s o f t he sp o u se s . T he se tt le me n t h ad no re la tio n to t he q u es tio n s s urro u nd i n g t he va lid it y o f t he ir ma rri a ge. N o r d id t he se tt le me n t a mo u n t to a co ll u s io n b e t we e n t h e p arti es . Art ic le 4 8 o f t he F a mil y C o d e st ate s :

Ar t. 4 8 . I n al l c a se s o f a n n u l me n t o r d ec lara tio n o f ab so l u te n ul li t y o f mar r i a ge, t h e Co ur t s h al l o rd er t he p ro se c uti n g a tto r n e y o r fis cal as s i g ned to it to ap p ear o n b e hal f o f t h e S ta te to ta ke st ep s to prev e nt co l lu s io n bet w e en th e pa rti e s a nd to ta ke ca re tha t th e ev i de nce is no t f a b ric a t ed o r s u pp re s se d. (E mp h as i s s up p l ied ) Se ct io n 3 (e) o f R u le 9 o f t he 1 9 9 7 R ule s o f Co ur t p ro v id e s: S E C. 3 . De fa u l t; d ecla ra tio n o f. - x x x x x x x x (e) Wh e re n o d efa u lt s a llo wed . I f t h e d e fe nd in g p ar t y i n act io n fo r a n n u l me n t o r d ecl ar at io n o f n u ll it y o f ma rri a ge o r fo r le ga l se p ar a tio n fa il s to an s wer , t he co ur t sha ll o r de r th e pro sec ut ing a t t o rn ey t o inv e st ig a t e w h eth er o r no t a co ll us io n betw ee n t he pa rt ie s e x ist s if t her e i s n o co ll us io n, to int erv e ne fo r t he Sta t e i n o r der t o s ee t o it t ha t t he ev ide n ce s ub mi tte d i s no t fa br ica t e d. ( E mp ha si s s up p l ied T r ul y, t h e p u r p o s e o f t he a ct i ve p ar t ic ip a ti o n o f t he P ub l ic P ro se c uto r o r th e So l ici to r G e nera l i s to en s ur e t h at t h e i nt ere st o f t h e St at e i s rep re se n ted a nd p r o tec ted i n p ro c eed i n g s fo r a n n ul me n t a nd d ec lara tio n o f n ul li t y o f m arria g es b y p r ev e nt i n g co ll u s io n b e t we e n t he p ar t ie s, o r t he fab r ica tio n o r s up p r es sio n o f ev id e nc e. [ 1 0 ] W hi le t h e ap p ear a nc es o f t h e So lic ito r Ge ner al a nd /o r th e P ub lic P r o sec u to r are ma n d a to r y, t he fa il ur e o f t he RT C to r eq uire t he ir ap p e a ran ce d o e s no t p e r se n u ll i fy t he C o mp r o mi s e Ag r e e me n t. T hi s Co urt fu ll y co nc ur s wi t h t he f i nd i n g s o f t he C A: x x x. I t b ear s e mp ha s iz i n g t h at t he i n te nd me n t o f t he l a w i n req u iri n g t he p r e se nc e o f t he So l ic ito r Ge ner al a nd /o r St at e p ro se c uto r i n a ll p r o c ee d in g s o f l e gal sep a rat io n a nd a n n u l me n t o r d ecla rat io n o f n ul lit y o f mar r ia ge i s to c ur t ail o r p re v e nt a n y p o s sib ili t y o f co l l us io n b et we e n t he p a rt ie s a nd to s ee to i t t h at th eir e vid e nce r e sp e ct i n g t he ca se i s no t fab r ic ated . I n t he i ns ta n t cas e, t her e i s no e x i ge n c y fo r t h e p res e nce o f t he So l ici to r G e nera l and /o r t h e Sta te p r o se c u to r b ec a us e a s a lread y s tat ed , no t h i n g i n t he s ub j ect co mp r o mi se a gr ee me n t to uc hed i n to t h e ver y mer it s o f t he cas e o f d ec lar at io n o f n ul li t y o f ma r ria g e fo r t h e co urt to b e war y o f an y p o s s ib le co ll u sio n b et wee n t he p ar tie s. At t he ri s k o f b ei n g rep et it i[ ve] , t h e c o mp r o mi s e a gree me nt p erta i ns mer el y to a n agr ee me n t b e t we e n t he p eti tio ner a nd t he p r iv at e re sp o nd e nt to sep a rat e t he ir co nj u gal p r o p er ti e s p art ia ll y wi t h o ut p r ej ud ice to t he o ut co me o f t he p e nd in g ca se o f d ec lara ti o n o f n u ll it y o f ma rria g e. [ 1 1 ]

Th ird . T he co n v i ctio n o f ad ul ter y d o e s no t carr y t h e a cce s so r y o f c i vi l in terd ic tio n. Ar ti cle 3 4 o f t he R e vi sed P e nal C o d e p ro vid e s fo r t h e co n seq ue n ce s o f ci v il i nt erd ic tio n : Ar t. 3 4 . Ci vi l In te rd ic tio n . C i vi l i n ter d ict io n s ha ll d ep r i ve th e o ffe nd er d ur i n g t he t i me o f hi s se n te nc e o f t he ri g h ts o f p ar e nt al au t ho ri t y, o r g uard i a n s h ip , ei t her a s to t h e p erso n o r p ro p ert y o f a n y wa rd , o f mar it al a u t ho r i t y, o f t he r i g ht to ma na ge h is p ro p ert y a nd o f t he r i g ht to d i sp o se o f s uc h p ro p ert y b y a n y ac t o r a n y co n v e ya nc e in te r v ivo s. U nd er Art ic le 333 of t he s a me Co d e, the p e na lt y fo r ad ul ter y is p r is io n co r re ccio n a l i n it s me d i u m a nd ma xi mu m p er io d s. Ar ti cl e 3 3 3 s ho u ld b e read wi t h Art icl e 4 3 o f t he sa me Co d e. T he l att er p ro vid e s: Ar t. 4 3 . P r is io n co r re ccio n a l It s a cc es so ry p en a l ti es . T he p e nal t y o f p ri s io n co rrec cio na l s ha ll c arr y wi t h i t t ha t o f s u sp e n sio n fro m p ub lic o ffice, fro m t he r i g ht to fo l lo w a p ro fe ss io n o r call i n g, a nd t h at o f p erp et u al sp ec ial d isq u ali fic at io n fro m t he ri g ht o f s u ffr a ge, i f t h e d ura tio n o f s aid i mp ri s o n me n t s ha ll e x ceed ei g ht ee n mo nt h s. T he o ffe nd er s h a ll s u ffer t he d i sq ua li fic at io n p ro v id ed i n t hi s a rti cl e al t ho u g h p ard o ned a s to t he p r i ncip al p en al t y, u n le s s t he s a m e s hal l h a ve b ee n e xp re s sl y re mi t ted i n t he p ard o n . I t i s c lea r, t her e fo re, a nd a s co rr ect l y h eld b y t he C A, t hat t he cri me o f ad u lt er y d o e s no t carr y th e ac ce s so r y p e na lt y o f c i vi l i n terd ic tio n wh ic h d ep r i ve s th e p er so n o f t he r i g ht s to ma na ge h er p r o p ert y a nd to d isp o se o f s u c h p ro p ert y in te r vi vo s. Fo u r th . Ne it h er c o ul d i t b e sa id t hat t h e p eti tio n er wa s no t i nte ll ig e nt l y a nd j ud ic io u sl y i n fo r med o f t he co n seq u e nt ia l e ffe ct s o f t h e co mp ro mi s e agr ee me n t , and t ha t, o n t h is b as i s, he ma y rep ud i at e t he Co mp ro mi se Ag ree me n t. T he arg u me nt o f t h e p e ti tio ner t ha t h e wa s no t d u l y i n fo r med b y hi s p r e vi o u s co u n se l ab o u t t he le ga l e ffec t s o f t he vo l u n tar y se tt le m en t is no t co n vi n ci n g. Mi st a ke o r vi ti at io n o f co n se nt , a s no w cl ai med b y t he p e ti tio ner as h is b as i s fo r r ep ud ia ti n g th e set tl e me n t, co u ld hard l y b e sa id to b e ev id e n t. I n S a lo n g a v . Co u rt o f Ap p ea l s, [ 1 2 ] t h i s Co urt h eld : [I]t i s we ll - se tt l ed t ha t t he n e gl i ge nce o f co u ns el b i nd s t he cli e nt. T hi s is b as ed o n th e r ul e t ha t a n y ac t p e rfo r me d b y a l a wye r wi t h i n t h e sco p e o f h is ge n era l o r i mp l ied a u t h o rit y i s re ga rd ed a s an ac t o f h is cl ie n t. C o n seq ue n tl y, t h e mi s ta ke o r ne g li ge n ce o f p eti tio n ers ' co u n sel ma y re s ul t i n t h e re nd i tio n o f a n u n fa vo rab le j ud g me nt a ga i n st t he m.

E xc ep t io ns to t h e fo r e go i n g h a ve b ee n reco g ni zed b y t he Co ur t i n ca se s wh e r e r ec kle s s o r gro s s ne gl i ge n ce o f co u n se l d ep ri ve s t he c li e nt o f d ue p r o ce s s o f l a w, o r wh e n i t s ap p l ic at io n " res ul ts i n t he o u tr i g h t d ep r i vat io n o f o n e 's p ro p ert y t hro u g h a tec h n ica li t y." x x x x [ 1 3 ] No ne o f t he s e e xc e p tio n s ha s b ee n s u f fi ci e nt l y s ho wn i n t he p r es e n t ca se . WH E R EFO R E , t h e P eti tio n is D EN I E D . T he Dec i sio n o f t he Co urt o f Ap p ea ls is AFF I RM E D wi t h M O D IF IC A T IO N t h at t he s ub j ect Co mp ro mi s e Ag r ee me n t is V AL I D wit ho ut p r ej ud ice to t he rig h t s o f al l cred ito rs and o t he r p er so n s wi t h p ec u n iar y i nter e st i n t h e p r o p er t ie s o f t h e co nj u gal p ar tn er s hip o f ga i n s. SO O R DE R ED .

G.R. No. 122749 July 31, 1996 ANTONIO A. S. VALDEZ, petitioner, vs. REGIONAL TRIAL COURT, BRANCH 102, QUEZON CITY, and CONSUELO M. GOMEZVALDEZ, respondents.

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 directing compliance with Articles 50, 51 and 52 of the Family Code. She asserted that the Family Code contained no provisions on the procedure for the liquidation of common property in "unions without marriage." Parenthetically, during the hearing of the motion, the children filed a joint affidavit expressing their desire to remain with their father, Antonio Valdez, 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 that the property acquired by both parties during their union, in the absence of proof to the contrary, are presumed to have been obtained through the joint efforts of the parties and will be owned by them in equal shares, plaintiff and defendant will own their "family home" and all their properties for that matter in equal shares. In the liquidation and partition of properties owned in common by the plaintiff and defendant, the provisions on ownership found in the Civil Code shall apply. 3 (Emphasis supplied.) In addressing specifically the issue regarding the disposition of the family dwelling, the trial court said: Considering that this Court has already declared the marriage between petitioner and respondent as null and void ab initio, pursuant to Art. 147, the property regime of petitioner and respondent shall be governed by the rules on ownership. The provisions of Articles 102 and 129 of the Family Code finds no application since Article 102 refers to the procedure for the liquidation of the conjugal partnership property and Article 129 refers to the procedure for the liquidation of the absolute community of property. 4 Petitioner moved for a reconsideration of the order. The motion was denied on 30 October 1995.

VITUG, J.:p The petition for new bewails, purely on the question of law, an alleged error committed by the Regional Trial Court in Civil Case No. Q-92-12539. Petitioner avers that the court a quo has failed to apply the correct law that should govern the disposition of a family dwelling in a situation where a marriage is declared void ab initio because of psychological 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. Antonio Valdez and Consuelo Gomez were married on 05 January 1971. Begotten during the marriage were five children. In a petition, dated 22 June 1992, Valdez sought the 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, Branch 102). After the hearing the parties following the joinder of issues, the trial court, 1 in its decision 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 the ground of their mutual psychological incapacity to comply with their essential marital obligations; (2) The three older children, Carlos Enrique III, Antonio Quintin and Angela Rosario shall choose which parent they would want to stay with. Stella Eloisa and Joaquin Pedro shall be placed in the custody of their mother, herein respondent Consuelo Gomez-Valdes. The petitioner and respondent shall have visitation rights over the children who are in the custody of the other. (3) The petitioner and the respondent are directed to start proceedings on the liquidation 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, within thirty (30) days from notice of this decision.

In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of the Family Code should be held controlling: he argues that: I Article 147 of the Family Code does not apply to cases where the parties are psychologically incapacitated. II

Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code govern the disposition of the family dwelling in cases where a marriage is declared void ab initio, including a marriage declared void by reason of the psychological incapacity of the spouses. III Assuming arguendo that Article 147 applies to marriages declared void ab initio on the ground of the psychological incapacity of a spouse, the same may be read consistently with Article 129. IV It is necessary to determine the parent with whom majority of the children wish to stay.
5

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 not under 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 and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall be considered as having contributed thereto jointly if said party's "efforts consisted in the care and maintenance of the family household." 8 Unlike the conjugal partnership of gains, 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 her share in the coownership in favor of their common children; in default thereof or waiver by any or all of the common children, each vacant share shall belong to the respective surviving descendants, or still in default thereof, to the innocent party. The forfeiture shall take place upon the termination of the cohabitation 9 or declaration of nullity of the marriage. 10 When the common-law spouses suffer from a legal impediment to marry or when they do not live exclusively with each other (as husband and wife), only the property acquired by both of them through their actual joint contribution of money, property or industry shall be owned in common and in proportion to their respective contributions. Such contributions and corresponding shares, however, are prima facie presumed to be equal. The share of any party who is married to another shall accrue to the absolute community or conjugal partnership, as the case may be, if so existing under a valid marriage. If the party who has acted in bad faith is not validly married to another, his or her 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 court which has jurisdiction to declare the marriage a nullity must be deemed likewise clothed in authority to resolve incidental and consequential matters. Nor did it commit a reversible 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 the liquidation and partition of the property owned in common by them, the provisions on co-ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles 102 and 129, 12 of the Family Code, should aptly prevail. The rules set up to govern the liquidation of either the absolute community or the conjugal partnership of gains, the property regimes recognized for valid and voidable marriages (in the latter case until the contract 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 explicit terms, to voidable marriages and, exceptionally, to void marriages under Article 40 14 of the Code, i.e., the

The trial court correctly applied the law. In a void marriage, regardless of the cause thereof, the property relations of the parties during the period of cohabitation is governed by the provisions of Article 147 or Article 148, such as the case may be, of the Family Code. Article 147 is a remake of Article 144 of the Civil Code as interpreted and so applied in previous cases; 6 it provides: Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof in the former's efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the innocent party. In all cases, the forfeiture shall take place upon the termination of the cohabitation. This particular kind of co-ownership applies when a man and a woman, suffering no illegal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first

declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void. The latter is a special rule that somehow recognizes the philosophy and an old doctrine that void marriages are inexistent from the very beginning and no judicial decree is necessary to establish their nullity. In now requiring for purposes of remarriage, the declaration of nullity by final judgment of the previously contracted void marriage, the present law aims to do away with any continuing uncertainty on the status of the second marriage. It is 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 vice. In all other cases, it is not to be assumed that the law has also meant to have coincident property relations, on the one hand, between spouses in valid and voidable marriages (before annulment) and, on the other, between common-law spouses or spouses 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., the provisions found in Title V, Chapter 2, of the Family Code, remain in force and effect regardless of the property regime of the spouses. WHEREFORE, the questioned orders, dated 05 May 1995 and 30 October 1995, of the trial court are AFFIRMED. No costs.

G.R. No. 127358

March 31, 2005

decision and one-half (1/2) of his outstanding shares of stock with Manila Memorial Park and Provident Group of Companies; 5) Ordering him to give a regular support in favor of his son Javy Singh Buenaventura in the amount ofP15,000.00 monthly, subject to modification as the necessity arises; 6) Awarding the care and custody of the minor Javy Singh Buenaventura to his mother, the herein defendant; and

NOEL BUENAVENTURA, Petitioner, vs. COURT OF APPEALS and ISABEL LUCIA SINGH BUENAVENTURA, respondents. x-------------------x G.R. No. 127449 March 31, 2005

NOEL BUENAVENTURA, Petitioner, vs. COURT OF APPEALS and ISABEL LUCIA SINGH BUENAVENTURA, Respondents. DECISION

7) Hereby authorizing the defendant to revert back to the use of her maiden family name Singh. Let copies of this decision be furnished the appropriate civil registry and registries of properties. SO ORDERED.2

AZCUNA, J.: These cases involve a petition for the declaration of nullity of marriage, which was filed by petitioner Noel Buenaventura on July 12, 1992, on the ground of the alleged psychological incapacity of his wife, Isabel Singh Buenaventura, herein respondent. After respondent filed her answer, petitioner, with leave of court, amended his petition by stating that both he and his wife were psychologically incapacitated to comply with the essential obligations of marriage. In response, respondent filed an amended answer denying the allegation that she was psychologically incapacitated. 1 On July 31, 1995, the Regional Trial Court promulgated a Decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered as follows: 1) Declaring and decreeing the marriage entered into between plaintiff Noel A. Buenaventura and defendant Isabel Lucia Singh Buenaventura on July 4, 1979, null and void ab initio; 2) Ordering the plaintiff to pay defendant moral damages in the amount of 2.5 million pesos and exemplary damages of 1 million pesos with 6% interest from the date of this decision plus attorneys fees ofP100,000.00; 3) Ordering the plaintiff to pay the defendant expenses of litigation of P50,000.00, plus costs; 4) Ordering the liquidation of the assets of the conjugal partnership property[,] particularly the plaintiffs separation/retirement benefits received from the Far East Bank [and] Trust Company[,] by ceding, giving and paying to her fifty percent (50%) of the net amount of P3,675,335.79 or P1,837,667.89 together with 12% interest per annum from the date of this Petitioner appealed the above decision to the Court of Appeals. While the case was pending in the appellate court, respondent filed a motion to increase the P15,000 monthly support pendente lite of their son Javy Singh Buenaventura. Petitioner filed an opposition thereto, praying that it be denied or that such incident be set for oral argument.3 On September 2, 1996, the Court of Appeals issued a Resolution increasing the support pendente lite toP20,000.4 Petitioner filed a motion for reconsideration questioning the said Resolution.5 On October 8, 1996, the appellate court promulgated a Decision dismissing petitioners appeal for lack of merit and affirming in toto the trial courts decision.6 Petitioner filed a motion for reconsideration which was denied. From the abovementioned Decision, petitioner filed the instant Petition for Review on Certiorari. On November 13, 1996, through another Resolution, the Court of Appeals denied petitioners motion for reconsideration of the September 2, 1996 Resolution, which increased the monthly support for the son.7 Petitioner filed a Petition for Certiorari to question these two Resolutions. On July 9, 1997, the Petition for Review on Certiorari8 and the Petition for Certiorari9 were ordered consolidated by this Court.10 In the Petition for Review on Certiorari petitioner claims that the Court of Appeals decided the case not in accord with law and jurisprudence, thus: 1. WHEN IT AWARDED DEFENDANT-APPELLEE MORAL DAMAGES IN THE AMOUNT OF P2.5 MILLION AND EXEMPLARY DAMAGES OF P1 MILLION, WITH 6% INTEREST FROM THE DATE OF ITS DECISION, WITHOUT ANY LEGAL AND MORAL BASIS;

2. WHEN IT AWARDED P100,000.00 ATTORNEYS FEES AND P50,000.00 EXPENSES OF LITIGATION, PLUS COSTS, TO DEFENDANT-APPELLEE, WITHOUT FACTUAL AND LEGAL BASIS; 3. WHEN IT ORDERED PLAINTIFF-APPELLANT NOEL TO PAY DEFENDANTAPPELLEE ONE-HALF ORP1,837,667.89 OUT OF HIS RETIREMENT BENEFITS RECEIVED FROM THE FAR EAST BANK AND TRUST CO., WITH 12% INTEREST THEREON FROM THE DATE OF ITS DECISION, NOTWITHSTANDING THAT SAID RETIREMENT BENEFITS ARE GRATUITOUS AND EXCLUSIVE PROPERTY OF NOEL, AND ALSO TO DELIVER TO DEFENDANT-APPELLEE ONE-HALF OF HIS SHARES OF STOCK WITH THE MANILA MEMORIAL PARK AND THE PROVIDENT GROUP OF COMPANIES, ALTHOUGH SAID SHARES OF STOCK WERE ACQUIRED BY NOEL BEFORE HIS MARRIAGE TO RESPONDENT ISABEL AND ARE, THEREFORE, AGAIN HIS EXCLUSIVE PROPERTIES; AND 4. WHEN IT AWARDED EXCLUSIVE CARE AND CUSTODY OVER THE PARTIES MINOR CHILD TO DEFENDANT-APPELLEE WITHOUT ASKING THE CHILD (WHO WAS ALREADY 13 YEARS OLD AT THAT TIME) HIS CHOICE AS TO WHOM, BETWEEN HIS TWO PARENTS, HE WOULD LIKE TO HAVE CUSTODY OVER HIS PERSON.11 In the Petition for Certiorari, petitioner advances the following contentions: THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION WHEN IT REFUSED TO SET RESPONDENTS MOTION FOR INCREASED SUPPORT FOR THE PARTIES SON FOR HEARING.12 THERE WAS NO NEED FOR THE COURT OF APPEALS TO INCREASE JAVYS MONTHLY SUPPORT OF P15,000.00 BEING GIVEN BY PETITIONER EVEN AT PRESENT PRICES.13 IN RESOLVING RESPONDENTS MOTION FOR THE INCREASE OF JAVYS SUPPORT, THE COURT OF APPEALS SHOULD HAVE EXAMINED THE LIST OF EXPENSES SUBMITTED BY RESPONDENT IN THE LIGHT OF PETITIONERS OBJECTIONS THERETO, INSTEAD OF MERELY ASSUMING THAT JAVY IS ENTITLED TO A P5,000 INCREASE IN SUPPORT AS SAID AMOUNT IS "TOO MINIMAL."14 LIKEWISE, THE COURT OF APPEALS SHOULD HAVE GIVEN PETITIONER AN OPPORTUNITY TO PROVE HIS PRESENT INCOME TO SHOW THAT HE CANNOT AFFORD TO INCREASE JAVYS SUPPORT.15 With regard to the first issue in the main case, the Court of Appeals articulated:

On Assignment of Error C, the trial court, after findings of fact ascertained from the testimonies not only of the parties particularly the defendant-appellee but likewise, those of the two psychologists, awarded damages on the basis of Articles 21, 2217 and 2229 of the Civil Code of the Philippines. Thus, the lower court found that plaintiff-appellant deceived the defendant-appellee into marrying him by professing true love instead of revealing to her that he was under heavy parental pressure to marry and that because of pride he married defendant-appellee; that he was not ready to enter into marriage as in fact his career was and always would be his first priority; that he was unable to relate not only to defendant-appellee as a husband but also to his son, Javy, as a father; that he had no inclination to make the marriage work such that in times of trouble, he chose the easiest way out, that of leaving defendantappellee and their son; that he had no desire to keep defendant-appellee and their son as proved by his reluctance and later, refusal to reconcile after their separation; that the aforementioned caused defendantappellee to suffer mental anguish, anxiety, besmirched reputation, sleepless nights not only in those years the parties were together but also after and throughout their separation. Plaintiff-appellant assails the trial courts decision on the ground that unlike those arising from a breach in ordinary contracts, damages arising as a consequence of marriage may not be awarded. While it is correct that there is, as yet, no decided case by the Supreme Court where damages by reason of the performance or non-performance of marital obligations were awarded, it does not follow that no such award for damages may be made. Defendant-appellee, in her amended answer, specifically prayed for moral and exemplary damages in the total amount of 7 million pesos. The lower court, in the exercise of its discretion, found full justification of awarding at least half of what was originally prayed for. We find no reason to disturb the ruling of the trial court. 16 The award by the trial court of moral damages is based on Articles 2217 and 21 of the Civil Code, which read as follows: ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission. ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. The trial court referred to Article 21 because Article 2219 17 of the Civil Code enumerates the cases in which moral damages may be recovered and it mentions Article 21 as one of the instances. It must be noted that Article 21 states that the individual must willfully cause loss or injury to another. There is a need that the act is willful and hence done in complete freedom. In granting moral damages, therefore, the trial court and the Court of Appeals could not but have assumed that the acts on which the moral

damages were based were done willfully and freely, otherwise the grant of moral damages would have no leg to stand on. On the other hand, the trial court declared the marriage of the parties null and void based on Article 36 of the Family Code, due to psychological incapacity of the petitioner, Noel Buenaventura. Article 36 of the Family Code states: A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. Psychological incapacity has been defined, thus: . . . no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. . . .18 The Court of Appeals and the trial court considered the acts of the petitioner after the marriage as proof of his psychological incapacity, and therefore a product of his incapacity or inability to comply with the essential obligations of marriage. Nevertheless, said courts considered these acts as willful and hence as grounds for granting moral damages. It is contradictory to characterize acts as a product of psychological incapacity, and hence beyond the control of the party because of an innate inability, while at the same time considering the same set of acts as willful. By declaring the petitioner as psychologically incapacitated, the possibility of awarding moral damages on the same set of facts was negated. The award of moral damages should be predicated, not on the mere act of entering into the marriage, but on specific evidence that it was done deliberately and with malice by a party who had knowledge of his or her disability and yet willfully concealed the same. No such evidence appears to have been adduced in this case. For the same reason, since psychological incapacity means that one is truly incognitive of the basic marital covenants that one must assume and discharge as a consequence of marriage, it removes the basis for the contention that the petitioner purposely deceived the private respondent. If the private respondent was deceived, it was not due to a willful act on the part of the petitioner. Therefore, the award of moral damages was without basis in law and in fact. Since the grant of moral damages was not proper, it follows that the grant of exemplary damages cannot stand since the Civil Code provides that exemplary damages are imposed in addition to moral, temperate, liquidated or compensatory damages.19 With respect to the grant of attorneys fees and expenses of litigation the trial court explained, thus:

Regarding Attorneys fees, Art. 2208 of the Civil Code authorizes an award of attorneys fees and expenses of litigation, other than judicial costs, when as in this case the plaintiffs act or omission has compelled the defendant to litigate and to incur expenses of litigation to protect her interest (par. 2), and where the Court deems it just and equitable that attorneys fees and expenses of litigation should be recovered. (par. 11) 20 The Court of Appeals reasoned as follows: On Assignment of Error D, as the award of moral and exemplary damages is fully justified, the award of attorneys fees and costs of litigation by the trial court is likewise fully justified.21 The acts or omissions of petitioner which led the lower court to deduce his psychological incapacity, and his act in filing the complaint for the annulment of his marriage cannot be considered as unduly compelling the private respondent to litigate, since both are grounded on petitioners psychological incapacity, which as explained above is a mental incapacity causing an utter inability to comply with the obligations of marriage. Hence, neither can be a ground for attorneys fees and litigation expenses. Furthermore, since the award of moral and exemplary damages is no longer justified, the award of attorneys fees and expenses of litigation is left without basis. Anent the retirement benefits received from the Far East Bank and Trust Co. and the shares of stock in the Manila Memorial Park and the Provident Group of Companies, the trial court said: The third issue that must be resolved by the Court is what to do with the assets of the conjugal partnership in the event of declaration of annulment of the marriage. The Honorable Supreme Court has held that the declaration of nullity of marriage carries ipso facto a judgment for the liquidation of property (Domingo v. Court of Appeals, et al., G.R. No. 104818, Sept. 17, 1993, 226 SCRA, pp. 572 573, 586). Thus, speaking through Justice Flerida Ruth P. Romero, it was ruled in this case: When a marriage is declared void ab initio, the law states that the final judgment therein shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children and the delivery of their presumptive legitimes, unless such matters had been adjudicated in the previous proceedings. The parties here were legally married on July 4, 1979, and therefore, all property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved (Art. 116, New Family Code; Art. 160, Civil Code). Art. 117 of the Family Code enumerates what are conjugal partnership properties. Among others they are the following: 1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses;

2) Those obtained from the labor, industry, work or profession of either or both of the spouses; 3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse. . . . Applying the foregoing legal provisions, and without prejudice to requiring an inventory of what are the parties conjugal properties and what are the exclusive properties of each spouse, it was disclosed during the proceedings in this case that the plaintiff who worked first as Branch Manager and later as Vice-President of Far East Bank & Trust Co. received separation/retirement package from the said bank in the amount of P3,701,500.00 which after certain deductions amounting to P26,164.21 gave him a net amount ofP3,675,335.79 and actually paid to him on January 9, 1995 (Exhs. 6, 7, 8, 9, 10, 11). Not having shown debts or obligations other than those deducted from the said retirement/separation pay, under Art. 129 of the Family Code "The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlement or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code." In this particular case, however, there had been no marriage settlement between the parties, nor had there been any voluntary waiver or valid forfeiture of the defendant wifes share in the conjugal partnership properties. The previous cession and transfer by the plaintiff of his one-half (1/2) share in their residential house and lot covered by T.C.T. No. S-35680 of the Registry of Deeds of Paraaque, Metro Manila, in favor of the defendant as stipulated in their Compromise Agreement dated July 12, 1993, and approved by the Court in its Partial Decision dated August 6, 1993, was actually intended to be in full settlement of any and all demands for past support. In reality, the defendant wife had allowed some concession in favor of the plaintiff husband, for were the law strictly to be followed, in the process of liquidation of the conjugal assets, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom their only child has chosen to remain (Art. 129, par. 9). Here, what was done was one-half (1/2) portion of the house was ceded to defendant so that she will not claim anymore for past unpaid support, while the other half was transferred to their only child as his presumptive legitime. Consequently, nothing yet has been given to the defendant wife by way of her share in the conjugal properties, and it is but just, lawful and fair, that she be given one-half (1/2) share of the separation/retirement benefits received by the plaintiff the same being part of their conjugal partnership properties having been obtained or derived from the labor, industry, work or profession of said defendant husband in accordance with Art. 117, par. 2 of the Family Code. For the same reason, she is entitled to one-half (1/2) of the outstanding shares of stock of the plaintiff husband with the Manila Memorial Park and the Provident Group of Companies.22 The Court of Appeals articulated on this matter as follows:

On Assignment of Error E, plaintiff-appellant assails the order of the trial court for him to give one-half of his separation/retirement benefits from Far East Bank & Trust Company and half of his outstanding shares in Manila Memorial Park and Provident Group of Companies to the defendant-appellee as the latters share in the conjugal partnership. On August 6, 1993, the trial court rendered a Partial Decision approving the Compromise Agreement entered into by the parties. In the same Compromise Agreement, the parties had agreed that henceforth, their conjugal partnership is dissolved. Thereafter, no steps were taken for the liquidation of the conjugal partnership. Finding that defendant-appellee is entitled to at least half of the separation/retirement benefits which plaintiff-appellant received from Far East Bank & Trust Company upon his retirement as Vice-President of said company for the reason that the benefits accrued from plaintiff appellants service for the bank for a number of years, most of which while he was married to defendant-appellee, the trial court adjudicated the same. The same is true with the outstanding shares of plaintiff-appellant in Manila Memorial Park and Provident Group of Companies. As these were acquired by the plaintiff-appellant at the time he was married to defendantappellee, the latter is entitled to one-half thereof as her share in the conjugal partnership. We find no reason to disturb the ruling of the trial court. 23 Since the present case does not involve the annulment of a bigamous marriage, the provisions of Article 50 in relation to Articles 41, 42 and 43 of the Family Code, providing for the dissolution of the absolute community or conjugal partnership of gains, as the case may be, do not apply. Rather, the general rule applies, which is that in case a marriage is declared void ab initio, the property regime applicable and to be liquidated, partitioned and distributed is that of equal co-ownership. In Valdes v. Regional Trial Court, Branch 102, Quezon City,24 this Court expounded on the consequences of a void marriage on the property relations of the spouses and specified the applicable provisions of law: The trial court correctly applied the law. In a void marriage, regardless of the cause thereof, the property relations of the parties during the period of cohabitation is governed by the provisions of Article 147 or Article 148, such as the case may be, of the Family Code. Article 147 is a remake of Article 144 of the Civil Code as interpreted and so applied in previous cases; it provides: ART. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did

not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. This peculiar kind of co-ownership applies when a man and a woman, suffering no legal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first paragraph of the law) refers to thelegal capacity of a party to contract marriage, i.e., any "male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38" of the Code. Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party's "efforts consisted in the care and maintenance of the family household." Unlike the conjugal partnership of gains, the fruits of the couple's separate property are not included in the co-ownership. Article 147 of the Family Code, in 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[s] inter vivos [of] his or her share in coownership property, without the 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 her share in the coownership in favor of their common children; in default thereof or waiver by any or all of the common children, each vacant share shall belong to the respective surviving descendants, or still in default thereof, to the innocent party. The forfeiture shall take place upon the termination of the cohabitation or declaration of nullity of the marriage.

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 court which had jurisdiction to declare the marriage a nullity must be deemed likewise clothed with authority to resolve incidental and consequential matters. Nor did it commit a reversible 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 the liquidation and partition of the property owned in common by them, the provisions on co-ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles 102 and 129, of the Family Code, should aptly prevail. The rules set up to govern the liquidation of either the absolute community or the conjugal partnership of gains, the property regimes recognized for valid and voidable marriages (in the latter case until the contract is annulled), are irrelevant to the liquidation of the co-ownership that exists between common-law spouses. The first paragraph of Article 50 of the Family Code, applying paragraphs (2), (3), (4) and (5) of Article 43, relates only, by its explicit terms, to voidable marriages and, exceptionally, to void marriages under Article 40 of the Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void. The latter is a special rule that somehow recognizes the philosophy and an old doctrine that void marriages are inexistent from the very beginning and no judicial decree is necessary to establish their nullity. In now requiring for purposes of remarriage, the declaration of nullity by final judgment of the previously contracted void marriage, the present law aims to do away with any continuing uncertainty on the status of the second marriage. It is not then illogical for the provisions of Article 43, in relation to Articles 41 and 42, 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 vice. In all other cases, it is not to be assumed that the law has also meant to have coincident property relations, on the one hand, between spouses in valid and voidable marriages (before annulment) and, on the other, between common-law spouses or spouses of void marriages, leaving to ordain, in the latter case, the ordinary rules on coownership subject to the provision of Article 147 and Article 148 of the Family Code. It must be stressed, nevertheless, even as it may merely state the obvious, that the provisions of the Family Code on the "family home," i.e., the provisions found in Title V, Chapter 2, of the Family Code, remain in force and effect regardless of the property regime of the spouses.25 Since the properties ordered to be distributed by the court a quo were found, both by the trial court and the Court of Appeals, to have been acquired during the union of the parties, the same would be covered by the co-ownership. No fruits of a separate property of one of the parties appear to have been included or involved in said distribution. The liquidation, partition and distribution of the properties owned in common by the parties herein as ordered by the court a quo should, therefore, be sustained, but on the basis of co-ownership and not of the regime of conjugal partnership of gains. As to the issue on custody of the parties over their only child, Javy Singh Buenaventura, it is now moot since he is about to turn twenty-five years of age on May 27, 200526 and has, therefore, attained the age of majority. With regard to the issues on support raised in the Petition for Certiorari, these would also now be moot, owing to the fact that the son, Javy Singh Buenaventura, as previously stated, has attained the age of majority.

WHEREFORE, the Decision of the Court of Appeals dated October 8, 1996 and its Resolution dated December 10, 1996 which are contested in the Petition for Review (G.R. No. 127449), are hereby MODIFIED, in that the award of moral and exemplary damages, attorneys fees, expenses of litigation and costs are deleted. The order giving respondent one-half of the retirement benefits of petitioner from Far East Bank and Trust Co. and one-half of petitioners shares of stock in Manila Memorial Park and in the Provident Group of Companies is sustained but on the basis of the liquidation, partition and distribution of the co-ownership and not of the regime of conjugal partnership of gains. The rest of said Decision and Resolution are AFFIRMED. The Petition for Review on Certiorari (G.R. No. 127358) contesting the Court of Appeals Resolutions of September 2, 1996 and November 13, 1996 which increased the support pendente lite in favor of the parties son, Javy Singh Buenaventura, is now MOOT and ACADEMIC and is, accordingly, DISMISSED. No costs.

G.R. No. 146294

July 31, 2006

1995 Juliet paid John the sum ofP232,397.66 by way of partial payment of his share, with the balance of P196,472.34 to be paid by Juliet in twelve monthly installment beginning November 1995. Juliet, however, failed to make good the balance. On account thereof, John demanded of her to vacate the annex structure housing the sari-sari store. Juliet refused, prompting John to file an ejectment suit against her before the MTC of Mankayan, Benguet. DECISION In his complaint, John alleged that he alone spent for the construction of the annex structure with his own funds and thru money he borrowed from his relatives. In fact, he added that the tax declaration for the structure was under his name. On this premise, John claimed exclusive ownership of the subject structure, which thereby gave him the right to eject Juliet therefrom upon the latter's failure to pay the agreed balance due him under the aforementioned Memorandum of Agreement. In her answer, Juliet countered that their original house was renovated thru their common funds and that the subject structure annexed thereto was merely an attachment or an extension of their original residential house, hence the same pertained to the two of them in common. In a decision2 dated March 15, 1997, the MTC, on its finding that the money used in the construction of the structure in question solely came from John, ruled that the same exclusively pertained to the latter, and accordingly ordered Juliet's eviction therefrom, including the sari-sari store thereat, and required her to surrender possession thereof to John, thus: WHEREFORE, judgment is rendered in favor of the plaintiff (John) and against the defendant (Juliet). Defendant is hereby ordered to vacate the premises of the store in litigation covered by Tax Declaration No. 96-001-00445 in the name of the Plaintiff and turn over possession thereof to the latter. Defendant is hereby further ordered to pay the Plaintiff the sum of P2,500.00 a month from the time she withheld possession of the store in litigation in June 1996 until she vacates the same and turn over possession thereof to the Plaintiff. Defendant is finally ordered, to pay the sum of P5,000.00 to the Plaintiff by way of Attorney's fees; and to pay the costs. SO ORDERED. On Juliet's appeal to the RTC, the latter, in its decision of July 29, 1995, affirmed that of the MTC. Undaunted, Juliet then went to the CA in CA-G.R. SP No. 48675. As stated at the threshold hereof, the CA, in its Decision of October 24, 2000, 3 reversed that of the RTC, to wit:

JOHN ABING, petitioner, vs. JULIET WAEYAN, respondent.

GARCIA, J.: In this appeal by way of a petition for review under Rule 45 of the Rules of Court, petitioner John Abing (John, hereafter) seeks to set aside the Decision1 dated October 24, 2000 of the Court of Appeals (CA) in CA-G.R. SP No. 48675, reversing that of the Regional Trial Court (RTC) of Benguet, Branch 64, which affirmed an earlier decision of the Municipal Trial Court (MTC) of Mankayan, Benguet in an ejectment suit thereat commenced by the petitioner against the respondent. In the main, the controversy is between a man and a woman who, during the good old days, lived together as husband and wife without the benefit of marriage. During their cohabitation, they acquired properties. Later, they parted ways, and with it this litigation between them involving one of their common properties. The facts: Sometime in 1986, John and respondent Juliet Waeyan (Juliet, for short) met and fell in love with each other. In time, the duo cohabited as husband and wife without the benefit of marriage. Together, the couple bought a 2-storey residential house from one Benjamin Macua which was erected on a lot owned by a certain Alejandro Dio on Aurora Street, Mankayan, Benguet. Consequent to the purchase, the tax declaration of the 2-storey house was transferred in the name of Juliet. On December 2, 1991, Juliet left for overseas employment in Korea. She would send money to John who deposited the same in their joint bank account. In 1992, the original 2-storey residential house underwent renovation. To it was annexed a new structure which housed a sari-sari store. This new structure and the sari-sari store thereat are the properties involved in this case. In 1994, Juliet returned from Korea and continued to live with John. She managed the sari-sari store while John worked as a mine employee of the Lepanto Consolidated Mining, Inc. In 1995, the relationship between the two turned from bad to worse. Hence, they decided to partition their properties. For the purpose, they executed on October 7, 1995 a Memorandum of Agreement. Unfortunately, the document was left unsigned by the parties although signed by the witnesses thereto. Under their unsigned agreement, John shall leave the couples' dwelling with Juliet paying him the amount of P428,870.00 representing John's share in all their properties. On the same date October 7,

WHEREFORE, the petition is GRANTED. The assailed decision of the Regional Trial Court is hereby reversed and set aside. Petitioner, Juliet Waeyan is entitled to possess the property and maintain therein her business. SO ORDERED. Partly says the CA in its reversal disposition: It is undisputed that the parties lived together as husband and wife without the benefit of marriage from 1986 to 1995 and that they acquired certain properties which must be divided between them upon the termination of their common law relationship. xxx xxx xxx

Essentially, the issues raised center on the core question of whether or not the property subject of the suit pertains to the exclusive ownership of petitioner, John. Departing from the factual findings of the two courts before it, the CA found that the premises in dispute is owned in common by Juliet and John, the latter having failed to establish by the required quantum of proof that the money spent for the construction thereof solely came from him. Being a co-owner of the same structure, Juliet may not be ejected therefrom. While the question raised is essentially one of fact, of which the Court normally eschews from, yet, given the conflicting factual findings of the three courts below, the Court shall go by the exception 4 to the general rule and proceed to make its own assessment of the evidence. First and foremost, it is undisputed that the parties hereto lived together as husband and wife from 1986 to 1995 without the benefit of marriage. Neither is it disputed that sometime in December 1991, Juliet left for Korea and worked thereat, sending money to John which the latter deposited in their joint account. In fact, Juliet was still in Korea when the annex structure was constructed in 1992. Other than John's bare allegation that he alone, thru his own funds and money he borrowed from his relatives, spent for the construction of the annex structure, evidence is wanting to support such naked claim. For sure, John even failed to reveal how much he spent therefor. Neither did he divulge the names of the alleged relatives from whom he made his borrowings, let alone the amount of money he borrowed from them. All that petitioner could offer by way of reinforcing his claim of spending his own funds and borrowed money in putting up the subject structure was the affidavit executed by a certain Manuel Macaraeg to the effect that petitioner borrowedP30,000.00 from him. Even then, Macaraeg stated in his affidavit that it was sometime in 1990 when John borrowed said amount from him. With the petitioner's own admission that the subject structure was constructed only in 1992, or two years after he borrowed P30,000.00 from Macaraeg, it is even doubtful whether the amount he allegedly borrowed from the latter went into the construction of the structure in dispute. More, it is noted that while petitioner was able to present in evidence the Macaraeg affidavit, he failed to introduce similar affidavits, if any, of his close relatives from whom he claimed to have made similar borrowings. For sure, not a single relative came forward to confirm petitioner's tale. In short, there is a paucity of evidence, testimonial or documentary, to support petitioner's self-serving allegation that the annex structure which housed the sari-sari store was put up thru his own funds and/or money borrowed by him. Sure, petitioner has in his favor the tax declaration covering the subject structure. We have, however, ruled time and again that tax declarations do not prove ownership but at best an indicia of claims of ownership.5 Payment of taxes is not proof of ownership, any more than indicating possession in the concept of an owner.6 Neither tax receipts nor declaration of ownership for taxation purposes are evidence of ownership or of the right to possess realty when not supported by other effective proofs. 7 In this connection, Article 147 of the Family Code is instructive. It reads: Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

. . . their property relations cannot be governed by the provision of the Civil Code on conjugal partnership... but by the rule on co-ownership. xxx xxx xxx

. . . the parties' share in respect of the properties they have accumulated during their cohabitation shall be equal unless there is proof to the contrary. To the CA, John's evidence failed to establish that he alone spent for the construction of the annex structure. Hence, the same pertained to both, and being a co-owner herself, Juliet cannot be evicted therefrom, adding that if ever, John's cause of action should have been for a sum of money "because he claims that Juliet still owes him the payment for the extension." According to the CA, ejectment cannot lie against Juliet because Juliet's possession of the premises in dispute was not by virtue of a contract, express or implied, nor did she obtain such possession thru force, intimidation, threat, strategy or stealth. Hence, John's present recourse, submitting that the CA erred in 1. not giving effect to the parties' Memorandum of Agreement which should have been binding between them albeit unsigned by both; 2. in holding that the subject premises (annex structure housing the sari-sari store) is owned by the two of them in common; 3. in ruling that the parties should settle their common properties in a separate action for partition even as the community character of the subject premises has not been proven. We AFFIRM with modification.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. The law is clear. In the absence, as here, of proofs to the contrary, any property acquired by commonlaw spouses during their period of cohabitation is presumed to have been obtained thru their joint efforts and is owned by them in equal shares. Their property relationship is governed by the rules on co-ownership. And under this regime, they owned their properties in common "in equal shares." Being herself a co-owner of the structure in question, Juliet, as correctly ruled by the CA, may not be ejected therefrom. True it is that under Article 4878 of the Civil Code, a co-owner may bring an action for ejectment against a co-owner who takes exclusive possession and asserts exclusive ownership of a common property. It bears stressing, however, that in this case, evidence is totally wanting to establish John's or Juliet's exclusive ownership of the property in question. Neither did Juliet obtain possession thereof by virtue of a contract, express or implied, or thru intimidation, threat, strategy or stealth. As borne by the record, Juliet was in possession of the subject structure and the sari-sari store thereat by virtue of her being a co-owner thereof. As such, she is as much entitled to enjoy its possession and ownership as John. We, however, disagree with the ruling of the CA that the subject Memorandum of Agreement, being unsigned by Juliet and John, has no binding effect between them. It is a matter of record that pursuant to said Agreement, Juliet did pay John the amount of P232,397.66, as initial payment for John's share in their common properties, with the balance of P196,472.34 payable in twelve monthly installments beginning November 1995. It is also a matter of record that the Agreement was signed by the witnesses thereto. Hence, the irrelevant circumstances that the Agreement was left unsigned by Juliet and John cannot adversely affect its binding force or effect between them, as evidently, Juliet's initial payment ofP232,397.66 to John was in fulfillment of what the parties had agreed upon thereunder. However, and as correctly held by the CA, Juliet's failure to pay John the balance of the latter's share in their common properties could at best give rise to an action for a sum of money against Juliet, or for rescission of the said agreement and not for ejectment. WHEREFORE, the petition is DENIED and the assailed CA Decision is AFFIRMED, except that portion thereof denying effect to the parties' Memorandum of Agreement for being unsigned by both. Costs against petitioner. SO ORDERED. G.R. No. 163744 February 29, 2008

METROPOLITAN BANK AND TRUST CO., petitioner, vs. NICHOLSON PASCUAL a.k.a. NELSON PASCUAL, respondent. DECISION VELASCO, JR., J.:

Metrobank, in its Answer with Counterclaim and Cross-Claim,4 alleged that the disputed lot, being registered in Florencias name, was paraphernal. Metrobank also asserted having approved the mortgage in good faith. Florencia did not file an answer within the reglementary period and, hence, was subsequently declared in default. The RTC Declared the REM Invalid

Respondent Nicholson Pascual and Florencia Nevalga were married on January 19, 1985. During the union, Florencia bought from spouses Clarito and Belen Sering a 250-square meter lot with a threedoor apartment standing thereon located in Makati City. Subsequently, Transfer Certificate of Title (TCT) No. S-101473/T-510 covering the purchased lot was canceled and, in lieu thereof, TCT No. 1562831 of the Registry of Deeds of Makati City was issued in the name of Florencia, "married to Nelson Pascual" a.k.a. Nicholson Pascual. In 1994, Florencia filed a suit for the declaration of nullity of marriage under Article 36 of the Family Code, docketed as Civil Case No. Q-95-23533. After trial, the Regional Trial Court (RTC), Branch 94 in Quezon City rendered, on July 31, 1995, a Decision, 2 declaring the marriage of Nicholson and Florencia null and void on the ground of psychological incapacity on the part of Nicholson. In the same decision, the RTC, inter alia, ordered the dissolution and liquidation of the ex-spouses conjugal partnership of gains. Subsequent events saw the couple going their separate ways without liquidating their conjugal partnership. On April 30, 1997, Florencia, together with spouses Norberto and Elvira Oliveros, obtained a PhP 58 million loan from petitioner Metropolitan Bank and Trust Co. (Metrobank). To secure the obligation, Florencia and the spouses Oliveros executed several real estate mortgages (REMs) on their properties, including one involving the lot covered by TCT No. 156283. Among the documents Florencia submitted to procure the loan were a copy of TCT No. 156283, a photocopy of the marriage-nullifying RTC decision, and a document denominated as "Waiver" that Nicholson purportedly executed on April 9, 1995. The waiver, made in favor of Florencia, covered the conjugal properties of the ex-spouses listed therein, but did not incidentally include the lot in question. Due to the failure of Florencia and the spouses Oliveros to pay their loan obligation when it fell due, Metrobank, on November 29, 1999, initiated foreclosure proceedings under Act No. 3135, as amended, before the Office of the Notary Public of Makati City. Subsequently, Metrobank caused the publication of the notice of sale on three issues of Remate.3 At the auction sale on January 21, 2000, Metrobank emerged as the highest bidder. Getting wind of the foreclosure proceedings, Nicholson filed on June 28, 2000, before the RTC in Makati City, a Complaint to declare the nullity of the mortgage of the disputed property, docketed as Civil Case No. 00-789 and eventually raffled to Branch 65 of the court. In it, Nicholson alleged that the property, which is still conjugal property, was mortgaged without his consent.

After trial on the merits, the RTC rendered, on September 24, 2001, judgment finding for Nicholson. The falloreads: PREMISES CONSIDERED, the Court renders judgment declaring the real estate mortgage on the property covered by [TCT] No. 156283 of the Registry of Deeds for the City of Makati as well as all proceedings thereon null and void. The Court further orders defendants [Metrobank and Florencia] jointly and severally to pay plaintiff [Nicholson]: 1. PhP100,000.00 by way of moral damages; 2. PhP75,000.00 by way of attorneys fees; and 3. The costs. SO ORDERED.5 Even as it declared the invalidity of the mortgage, the trial court found the said lot to be conjugal, the same having been acquired during the existence of the marriage of Nicholson and Florencia. In so ruling, the RTC invoked Art. 116 of the Family Code, providing that "all property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved." To the trial court, Metrobank had not overcome the presumptive conjugal nature of the lot. And being conjugal, the RTC concluded that the disputed property may not be validly encumbered by Florencia without Nicholsons consent. The RTC also found the deed of waiver Florencia submitted to Metrobank to be fatally defective. For let alone the fact that Nicholson denied executing the same and that the signature of the notarizing officer was a forgery, the waiver document was allegedly executed on April 9, 1995 or a little over three months before the issuance of the RTC decision declaring the nullity of marriage between Nicholson and Florencia. The trial court also declared Metrobank as a mortgagee in bad faith on account of negligence, stating the observation that certain data appeared in the supporting contract documents, which, if properly

scrutinized, would have put the bank on guard against approving the mortgage. Among the data referred to was the date of execution of the deed of waiver. The RTC dismissed Metrobanks counterclaim and cross-claim against the ex-spouses. Metrobanks motion for reconsideration was denied. Undeterred, Metrobank appealed to the Court of Appeals (CA), the appeal docketed as CA-G.R. CV No. 74874. The CA Affirmed with Modification the RTCs Decision On January 28, 2004, the CA rendered a Decision affirmatory of that of the RTC, except for the award therein of moral damages and attorneys fees which the CA ordered deleted. The dispositive portion of the CAs Decision reads: WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED WITH MODIFICATION with respect to the award of moral damages and attorneys fees which is hereby DELETED. SO ORDERED.6 Like the RTC earlier held, the CA ruled that Metrobank failed to overthrow the presumption established in Art. 116 of the Family Code. And also decreed as going against Metrobank was Florencias failure to comply with the prescriptions of the succeeding Art. 124 of the Code on the disposition of conjugal partnership property. Art. 124 states: Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to recourse to the court by the wife for proper remedy x x x. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. As to the deletion of the award of moral damages and attorneys fees, the CA, in gist, held that Metrobank did not enter into the mortgage contract out of ill-will or for some fraudulent purpose, moral obliquity, or like dishonest considerations as to justify damages. Metrobank moved but was denied reconsideration by the CA.

Thus, Metrobank filed this Petition for Review on Certiorari under Rule 45, raising the following issues for consideration: a. Whether or not the [CA] erred in declaring subject property as conjugal by applying Article 116 of the Family Code. b. Whether or not the [CA] erred in not holding that the declaration of nullity of marriage between the respondent Nicholson Pascual and Florencia Nevalga ipso facto dissolved the regime of community of property of the spouses. c. Whether or not the [CA] erred in ruling that the petitioner is an innocent purchaser for value.7 Our Ruling A modification of the CAs Decision is in order. The Disputed Property is Conjugal It is Metrobanks threshold posture that Art. 160 of the Civil Code providing that "[a]ll property of the marriage is presumed to belong to the conjugal partnership, unless it be prove[n] that it pertains exclusively to the husband or to the wife," applies. To Metrobank, Art. 116 of the Family Code could not be of governing application inasmuch as Nicholson and Florencia contracted marriage before the effectivity of the Family Code on August 3, 1988. CitingManongsong v. Estimo,8 Metrobank asserts that the presumption of conjugal ownership under Art. 160 of the Civil Code applies when there is proof that the property was acquired during the marriage. Metrobank adds, however, that for the presumption of conjugal ownership to operate, evidence must be adduced to prove that not only was the property acquired during the marriage but that conjugal funds were used for the acquisition, a burden Nicholson allegedly failed to discharge. To bolster its thesis on the paraphernal nature of the disputed property, Metrobank cites Francisco v. Court of Appeals9 and Jocson v. Court of Appeals,10 among other cases, where this Court held that a property registered in the name of a certain person with a description of being married is no proof that the property was acquired during the spouses marriage. On the other hand, Nicholson, banking on De Leon v. Rehabilitation Finance Corporation11 and Wong v. IAC,12contends that Metrobank failed to overcome the legal presumption that the disputed property is conjugal. He asserts that Metrobanks arguments on the matter of presumption are misleading as only one postulate needs to be shown for the presumption in favor of conjugal ownership to arise, that is, the fact of acquisition during marriage. Nicholson dismisses, as inapplicable, Francisco and Jocson, noting that they are relevant only when there is no indication as to the exact date of acquisition of the property alleged to be conjugal.

As a final point, Nicholson invites attention to the fact that Metrobank had virtually recognized the conjugal nature of the property in at least three instances. The first was when the bank lumped him with Florencia in Civil Case No. 00-789 as co-mortgagors and when they were referred to as "spouses" in the petition for extrajudicial foreclosure of mortgage. Then came the published notice of foreclosure sale where Nicholson was again designated as co-mortgagor. And third, in its demand-letter13 to vacate the disputed lot, Metrobank addressed Nicholson and Florencia as "spouses," albeit the finality of the decree of nullity of marriage between them had long set in. We find for Nicholson. First, while Metrobank is correct in saying that Art. 160 of the Civil Code, not Art. 116 of the Family Code, is the applicable legal provision since the property was acquired prior to the enactment of the Family Code, it errs in its theory that, before conjugal ownership could be legally presumed, there must be a showing that the property was acquired during marriage using conjugal funds. Contrary to Metrobanks submission, the Court did not, inManongsong,14 add the matter of the use of conjugal funds as an essential requirement for the presumption of conjugal ownership to arise. Nicholson is correct in pointing out that only proof of acquisition during the marriage is needed to raise the presumption that the property is conjugal. Indeed, if proof on the use of conjugal is still required as a necessary condition before the presumption can arise, then the legal presumption set forth in the law would veritably be a superfluity. As we stressed in Castro v. Miat: Petitioners also overlook Article 160 of the New Civil Code. It provides that "all property of the marriage is presumed to be conjugal partnership, unless it be prove[n] that it pertains exclusively to the husband or to the wife." This article does not require proof that the property was acquired with funds of the partnership. The presumption applies even when the manner in which the property was acquired does not appear. 15 (Emphasis supplied.) Second, Francisco and Jocson do not reinforce Metrobanks theory. Metrobank would thrust on the Court, invoking the two cases, the argument that the registration of the property in the name of "Florencia Nevalga, married to Nelson Pascual" operates to describe only the marital status of the title holder, but not as proof that the property was acquired during the existence of the marriage. Metrobank is wrong. As Nicholson aptly points out, if proof obtains on the acquisition of the property during the existence of the marriage, then the presumption of conjugal ownership applies. The correct lesson of Franciscoand Jocson is that proof of acquisition during the marital coverture is a condition sine qua non for the operation of the presumption in favor of conjugal ownership. When there is no showing as to when the property was acquired by the spouse, the fact that a title is in the name of the spouse is an indication that the property belongs exclusively to said spouse. 16 The Court, to be sure, has taken stock of Nicholsons arguments regarding Metrobank having implicitly acknowledged, thus being in virtual estoppel to question, the conjugal ownership of the disputed lot, the bank having named the former in the foreclosure proceedings below as either the spouse of Florencia or her co-mortgagor. It is felt, however, that there is no compelling reason to delve into the matter of estoppel, the same having been raised only for the first time in this petition. Besides,

however Nicholson was designated below does not really change, one way or another, the classification of the lot in question. Termination of Conjugal Property Regime does not ipso facto End the Nature of Conjugal Ownership Metrobank next maintains that, contrary to the CAs holding, Art. 129 of the Family Code is inapplicable. Art. 129 in part reads: Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply: xxxx (7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code. Apropos the aforequoted provision, Metrobank asserts that the waiver executed by Nicholson, effected as it were before the dissolution of the conjugal property regime, vested on Florencia full ownership of all the properties acquired during the marriage. Nicholson counters that the mere declaration of nullity of marriage, without more, does not automatically result in a regime of complete separation when it is shown that there was no liquidation of the conjugal assets. We again find for Nicholson. While the declared nullity of marriage of Nicholson and Florencia severed their marital bond and dissolved the conjugal partnership, the character of the properties acquired before such declaration continues to subsist as conjugal properties until and after the liquidation and partition of the partnership. This conclusion holds true whether we apply Art. 129 of the Family Code on liquidation of the conjugal partnerships assets and liabilities which is generally prospective in application, or Section 7, Chapter 4, Title IV, Book I (Arts. 179 to 185) of the Civil Code on the subject, Conjugal Partnership of Gains. For, the relevant provisions of both Codes first require the liquidation of the conjugal properties before a regime of separation of property reigns. In Dael v. Intermediate Appellate Court, we ruled that pending its liquidation following its dissolution, the conjugal partnership of gains is converted into an implied ordinary co-ownership among the surviving spouse and the other heirs of the deceased.17 In this pre-liquidation scenario, Art. 493 of the Civil Code shall govern the property relationship between the former spouses, where:

Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the coownership. (Emphasis supplied.) In the case at bar, Florencia constituted the mortgage on the disputed lot on April 30, 1997, or a little less than two years after the dissolution of the conjugal partnership on July 31, 1995, but before the liquidation of the partnership. Be that as it may, what governed the property relations of the former spouses when the mortgage was given is the aforequoted Art. 493. Under it, Florencia has the right to mortgage or even sell her one-half (1/2) undivided interest in the disputed property even without the consent of Nicholson. However, the rights of Metrobank, as mortgagee, are limited only to the 1/2 undivided portion that Florencia owned. Accordingly, the mortgage contract insofar as it covered the remaining 1/2 undivided portion of the lot is null and void, Nicholson not having consented to the mortgage of his undivided half. The conclusion would have, however, been different if Nicholson indeed duly waived his share in the conjugal partnership. But, as found by the courts a quo, the April 9, 1995 deed of waiver allegedly executed by Nicholson three months prior to the dissolution of the marriage and the conjugal partnership of gains on July 31, 1995 bore his forged signature, not to mention that of the notarizing officer. A spurious deed of waiver does not transfer any right at all, albeit it may become the root of a valid title in the hands of an innocent buyer for value. Upon the foregoing perspective, Metrobanks right, as mortgagee and as the successful bidder at the auction of the lot, is confined only to the 1/2 undivided portion thereof heretofore pertaining in ownership to Florencia. The other undivided half belongs to Nicholson. As owner pro indiviso of a portion of the lot in question, Metrobank may ask for the partition of the lot and its property rights "shall be limited to the portion which may be allotted to [the bank] in the division upon the termination of the co-ownership."18 This disposition is in line with the well-established principle that the binding force of a contract must be recognized as far as it is legally possible to do soquando res non valet ut ago, valeat quantum valere potest.19 In view of our resolution on the validity of the auction of the lot in favor of Metrobank, there is hardly a need to discuss at length whether or not Metrobank was a mortgagee in good faith. Suffice it to state for the nonce that where the mortgagee is a banking institution, the general rule that a purchaser or mortgagee of the land need not look beyond the four corners of the title is inapplicable. 20 Unlike private individuals, it behooves banks to exercise greater care and due diligence before entering into a mortgage contract. The ascertainment of the status or condition of the property offered as security and the validity of the mortgagors title must be standard and indispensable part of the banks operation.21 A bank that failed to observe due diligence cannot be accorded the status of a bona fide mortgagee,22 as here.

But as found by the CA, however, Metrobanks failure to comply with the due diligence requirement was not the result of a dishonest purpose, some moral obliquity or breach of a known duty for some interest or ill-will that partakes of fraud that would justify damages. WHEREFORE, the petition is PARTLY GRANTED. The appealed Decision of the CA dated January 28, 2004, upholding with modification the Decision of the RTC, Branch 65 in Makati City, in Civil Case No. 00-789, isAFFIRMED with the MODIFICATION that the REM over the lot covered by TCT No. 156283 of the Registry of Deeds of Makati City is hereby declared valid only insofar as the pro indiviso share of Florencia thereon is concerned. As modified, the Decision of the RTC shall read: PREMISES CONSIDERED, the real estate mortgage on the property covered by TCT No. 156283 of the Registry of Deeds of Makati City and all proceedings thereon are NULL and VOID with respect to the undivided 1/2 portion of the disputed property owned by Nicholson, but VALID with respect to the other undivided 1/2 portion belonging to Florencia. The claims of Nicholson for moral damages and attorneys fees are DENIED for lack of merit. No pronouncement as to costs. SO ORDERED.

ALAIN M. DIO , PETITIONER, VS. MA. CARIDAD L. DIO, RESPONDENT. DECISION CARPIO, J.: The Case Before the Court is a petition for review[1] assailing the 18 October 2006 Decision[2]and the 12 March 2007 Order[3] of the Regional Trial Court of Las Pias City, Branch 254 (trial court) in Civil Case No. LP-01-0149. The Antecedent Facts

The Decision of the Trial Court

The trial court ruled that based on the evidence presented, petitioner was able to establish respondent's psychological incapacity. The trial court ruled that even without Dr. Tayag's psychological report, the allegations in the complaint, substantiated in the witness stand, clearly made out a case of psychological incapacity against respondent. The trial court found that respondent committed acts which hurt and embarrassed petitioner and the rest of the family, and that respondent failed to observe mutual love, respect and fidelity required of her under Article 68 of the Family Code. The trial court also ruled that respondent abandoned petitioner when she obtained a divorce abroad and married another man. The dispositive portion of the trial court's decision reads: WHEREFORE, in view of the foregoing, judgment is hereby rendered:

Alain M. Dio (petitioner) and Ma. Caridad L. Dio (respondent) were childhood friends and sweethearts. They started living together in 1984 until they decided to separate in 1994. In 1996, petitioner and respondent decided to live together again. On 14 January 1998, they were married before Mayor Vergel Aguilar of Las Pias City. On 30 May 2001, petitioner filed an action for Declaration of Nullity of Marriage against respondent, citing psychological incapacity under Article 36 of the Family Code. Petitioner alleged that respondent failed in her marital obligation to give love and support to him, and had abandoned her responsibility to the family, choosing instead to go on shopping sprees and gallivanting with her friends that depleted the family assets. Petitioner further alleged that respondent was not faithful, and would at times become violent and hurt him. Extrajudicial service of summons was effected upon respondent who, at the time of the filing of the petition, was already living in the United States of America. Despite receipt of the summons, respondent did not file an answer to the petition within the reglementary period. Petitioner later learned that respondent filed a petition for divorce/dissolution of her marriage with petitioner, which was granted by the Superior Court of California on 25 May 2001. Petitioner also learned that on 5 October 2001, respondent married a certain Manuel V. Alcantara. On 30 April 2002, the Office of the Las Pias prosecutor found that there were no indicative facts of collusion between the parties and the case was set for trial on the merits. Dr. Nedy L. Tayag (Dr. Tayag), a clinical psychologist, submitted a psychological report establishing that respondent was suffering from Narcissistic Personality Disorder which was deeply ingrained in her system since her early formative years. Dr. Tayag found that respondent's disorder was long-lasting and by nature, incurable. In its 18 October 2006 Decision, the trial court granted the petition on the ground that respondent was psychologically incapacited to comply with the essential marital obligations at the time of the celebration of the marriage.

1.

Declaring the marriage between plaintiff ALAIN M. DIO and defendant MA. CARIDAD L. DIO on January 14, 1998, and all its effects under the law, as NULL and VOID from the beginning; and Dissolving the regime of absolute community of property.

2.

A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall only be issued upon compliance with Article[s] 50 and 51 of the Family Code. Let copies of this Decision be furnished the parties, the Office of the Solicitor General, Office of the City Prosecutor, Las Pias City and the Office of the Local Civil Registrar of Las Pias City, for their information and guidance. SO ORDERED.[4] Petitioner filed a motion for partial reconsideration questioning the dissolution of the absolute community of property and the ruling that the decree of annulment shall only be issued upon compliance with Articles 50 and 51 of the Family Code. In its 12 March 2007 Order, the trial court partially granted the motion and modified its 18 October 2006 Decision as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1) Declaring the marriage between plaintiff ALAIN M. DIO and defendant MA. CARIDAD L. DIO on January 14, 1998, and all its effects under the law, as NULL and VOID from the beginning; and 2) Dissolving the regime of absolute community of property.

A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall be issued after liquidation, partition and distribution of the parties' properties under Article 147 of the Family Code. Let copies of this Order be furnished the parties, the Office of the Solicitor General, the Office of the City Prosecutor of Las Pias City and the Local Civil Registrar of Las Pias City, for their information and guidance.[5] Hence, the petition before this Court. The Issue

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. For Article 147 of the Family Code to apply, the following elements must be present:

The sole issue in this case is whether the trial court erred when it ordered that a decree of absolute nullity of marriage shall only be issued after liquidation, partition, and distribution of the parties' properties under Article 147 of the Family Code. The Ruling of this Court The petition has merit. Petitioner assails the ruling of the trial court ordering that a decree of absolute nullity of marriage shall only be issued after liquidation, partition, and distribution of the parties' properties under Article 147 of the Family Code. Petitioner argues that Section 19(1) of the Rule on Declaration of Absolute Nullity of Null Marriages and Annulment of Voidable Marriages[6] (the Rule) does not apply to Article 147 of the Family Code. We agree with petitioner. The Court has ruled in Valdes v. RTC, Branch 102, Quezon City that in a void marriage, regardless of its cause, the property relations of the parties during the period of cohabitation is governed either by Article 147 or Article 148 of the Family Code. [7] Article 147 of the Family Code applies to union of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void,[8] such as petitioner and respondent in the case before the Court. Article 147 of the Family Code provides: Article 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.

1. 2. 3.

The man and the woman must be capacitated to marry each other; They live exclusively with each other as husband and wife; and Their union is without the benefit of marriage, or their marriage is void. [9]

All these elements are present in this case and there is no question that Article 147 of the Family Code applies to the property relations between petitioner and respondent. We agree with petitioner that the trial court erred in ordering that a decree of absolute nullity of marriage shall be issued only after liquidation, partition and distribution of the parties' properties under Article 147 of the Family Code. The ruling has no basis because Section 19(1) of the Rule does not apply to cases governed under Articles 147 and 148 of the Family Code. Section 19(1) of the Rule provides: Sec. 19. Decision. - (1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties. The pertinent provisions of the Family Code cited in Section 19(1) of the Rule are: Article 50. The effects provided for in paragraphs (2), (3), (4) and (5) of Article 43 and in Article 44 shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45.[10] The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community of the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in

accordance with the provisions of Articles 102 and 129. Article 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children of their guardian, or the trustee of their property, may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either or both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. It is clear from Article 50 of the Family Code that Section 19(1) of the Rule applies only to marriages which are declared void ab initio or annulled by final judgmentunder Articles 40 and 45 of the Family Code. In short, Article 50 of the Family Code does not apply to marriages which are declared void ab initio under Article 36 of the Family Code, which should be declared void without waiting for the liquidation of the properties of the parties. Article 40 of the Family Code contemplates a situation where a second or bigamous marriage was contracted. Under Article 40, "[t]he absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void." Thus we ruled: x x x where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring a previous marriage void. [11] Article 45 of the Family Code, on the other hand, refers to voidable marriages, meaning, marriages which are valid until they are set aside by final judgment of a competent court in an action for annulment.[12] In both instances under Articles 40 and 45, the marriages are governed either by absolute community of property[13] or conjugal partnership of gains[14] unless the parties agree to a complete separation of property in a marriage settlement entered into before the marriage. Since the property relations of the parties is governed by absolute community of property or conjugal partnership of gains, there is a need to liquidate, partition and distribute the properties before a decree of annulment could be issued. That is not the case for annulment of marriage under Article 36 of the Family Code because the marriage is governed by the ordinary rules on co-ownership. In this case, petitioner's marriage to respondent was declared void under Article 36 [15] of the Family Code and not under Article 40 or 45. Thus, what governs the liquidation of properties owned in common by petitioner and respondent are the rules on co-ownership. In Valdes, the Court ruled that the property relations of parties in a void marriage during the period of cohabitation is governed either by Article 147 or Article 148 of the Family Code.[16] The rules on co-ownership apply and the properties of the spouses should be liquidated in accordance with the Civil Code provisions on co-ownership.

Under Article 496 of the Civil Code, "[p]artition may be made by agreement between the parties or by judicial proceedings. x x x." It is not necessary to liquidate the properties of the spouses in the same proceeding for declaration of nullity of marriage. WHEREFORE, we AFFIRM the Decision of the trial court with the MODIFICATIONthat the decree of absolute nullity of the marriage shall be issued upon finality of the trial court's decision without waiting for the liquidation, partition, and distribution of the parties' properties under Article 147 of the Family Code. SO ORDERED.

[G.R. No. 139789. May 12, 2000] ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm [G.R. No. 139808. May 12, 2000] POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA ILUSORIO, petitioners, vs. COURT OF APPEALS and ERLINDA K. ILUSORIO,respondents. DECISION PARDO, J.: May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss? The answer is no. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus. A writ of habeas corpus extends to all cases of illegal confinement or detention,[1] or by which the rightful custody of a person is withheld from the one entitled thereto. [2] Slx "Habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf."[3] It is a high prerogative, common-law writ, of ancient origin, the great object of which is the liberation of those who may be imprisoned without sufficient cause.[4] It is issued when one is deprived of liberty or is wrongfully prevented from exercising legal custody over another person. [5] The petition of Erlinda K. Ilusorio[6] is to reverse the decision[7] of the Court of Appeals and its resolution[8] dismissing the application for habeas corpus to have the custody of her husband, lawyer Potenciano Ilusorio and enforce consortium as the wife. On the other hand, the petition of Potenciano Ilusorio is to annul that portion of the decision of the Court of Appeals giving Erlinda K. Ilusorio visitation rights to her husband and to enjoin Erlinda and the Court of Appeals from enforcing the visitation rights. The undisputed facts are as follows: Scslx Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.
[9]

Potenciano Ilusorio is about 86 years of age possessed of extensive property valued at millions of pesos. For many years, lawyer Potenciano Ilusorio was Chairman of the Board and President of Baguio Country Club. On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony and lived together for a period of thirty (30) years. In 1972, they separated from bed and board for undisclosed reasons. Potenciano lived at Urdaneta Condominium, Ayala Ave., Makati City when he was in Manila and at Ilusorio Penthouse, Baguio Country Club when he was in Baguio City. On the other hand, Erlinda lived in Antipolo City. Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio (age 55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia (age 49); Marietta (age 48); and Shereen (age 39). On December 30, 1997, upon Potencianos arrival from the United States, he stayed with Erlinda for about five (5) months in Antipolo City. The children, Sylvia and Erlinda (Lin), alleged that during this time, their mother gave Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an antidepressant drug prescribed by his doctor in New York, U.S.A. As a consequence, Potencianos health deteriorated. On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City a petition [10] for guardianship over the person and property of Potenciano Ilusorio due to the latters advanced age, frail health, poor eyesight and impaired judgment. On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano Ilusorio did not return to Antipolo City and instead lived at Cleveland Condominium, Makati. Slxsc On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas corpus to have the custody of lawyer Potenciano Ilusorio. She alleged that respondents[11] refused petitioners demands to see and visit her husband and prohibited Potenciano from returning to Antipolo City. After due hearing, on April 5, 1999, the Court of Appeals rendered decision the dispositive portion of which reads: "WHEREFORE, in the light of the foregoing disquisitions, judgment is hereby rendered: "(1) Ordering, for humanitarian consideration and upon petitioners manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia Ilusorio-Yap, the administrator of Cleveland Condominium or anywhere in its place, his guards and Potenciano Ilusorios staff especially Ms. Aurora Montemayor to allow visitation rights to Potenciano Ilusorios wife, Erlinda Ilusorio and all her children, notwithstanding any list limiting visitors thereof, under penalty of contempt in case of violation of refusal thereof; xxx

"(2) ORDERING that the writ of habeas corpus previously issued be recalled and the herein petition for habeas corpus be DENIED DUE COURSE, as it is hereby DISMISSED for lack of unlawful restraint or detention of the subject of the petition. "SO ORDERED."[12] Hence, the two petitions, which were consolidated and are herein jointly decided. As heretofore stated, a writ of habeas corpus extends to all cases of illegal confinement or detention,[13] or by which the rightful custody of a person is withheld from the one entitled thereto. It is available where a person continues to be unlawfully denied of one or more of his constitutional freedoms, where there is denial of due process, where the restraints are not merely involuntary but are unnecessary, and where a deprivation of freedom originally valid has later become arbitrary. [14] It is devised as a speedy and effectual remedy to relieve persons from unlawful restraint, as the best and only sufficient defense of personal freedom.[15] Jksm The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint, and to relieve a person therefrom if such restraint is illegal.[16] To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action.[17] The illegal restraint of liberty must be actual and effective, not merely nominal or moral.[18] The evidence shows that there was no actual and effective detention or deprivation of lawyer Potenciano Ilusorios liberty that would justify the issuance of the writ. The fact that lawyer Potenciano Ilusorio is about 86 years of age, or under medication does not necessarily render him mentally incapacitated. Soundness of mind does not hinge on age or medical condition but on the capacity of the individual to discern his actions. After due hearing, the Court of Appeals concluded that there was no unlawful restraint on his liberty. The Court of Appeals also observed that lawyer Potenciano Ilusorio did not request the administrator of the Cleveland Condominium not to allow his wife and other children from seeing or visiting him. He made it clear that he did not object to seeing them. As to lawyer Potenciano Ilusorios mental state, the Court of Appeals observed that he was of sound and alert mind, having answered all the relevant questions to the satisfaction of the court. Being of sound mind, he is thus possessed with the capacity to make choices. In this case, the crucial choices revolve on his residence and the people he opts to see or live with. The choices he made may not appeal to some of his family members but these are choices which exclusively belong to Potenciano. He made it clear before the Court of Appeals that he was not prevented from leaving his house or seeing people. With that declaration, and absent any true restraint on his liberty, we have no reason to reverse the findings of the Court of Appeals.

With his full mental capacity coupled with the right of choice, Potenciano Ilusorio may not be the subject of visitation rights against his free choice. Otherwise, we will deprive him of his right to privacy. Needless to say, this will run against his fundamental constitutional right. Es m The Court of Appeals exceeded its authority when it awarded visitation rights in a petition for habeas corpus where Erlinda never even prayed for such right. The ruling is not consistent with the finding of subjects sanity. When the court ordered the grant of visitation rights, it also emphasized that the same shall be enforced under penalty of contempt in case of violation or refusal to comply. Such assertion of raw, naked power is unnecessary. The Court of Appeals missed the fact that the case did not involve the right of a parent to visit a minor child but the right of a wife to visit a husband. In case the husband refuses to see his wife for private reasons, he is at liberty to do so without threat of any penalty attached to the exercise of his right. No court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or by any other mesne process. That is a matter beyond judicial authority and is best left to the man and womans free choice. WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack of merit. No costs. In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision of the Court of Appeals insofar as it gives visitation rights to respondent Erlinda K. Ilusorio. No costs. SO ORDERED.