1.

Tuazon vs CA

EMILIO TUASON, petitioner, vs. COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents. DECISION PUNO, J.: This petition for review on certiorari seeks to annul and set aside the decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 denying petitioners appeal from an order of the Regional Trial Court, Branch 149, Makati in Civil Case No. 3769. This case arose from the following facts: In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional Trial Court, Branch 149, Makati a petition for annulment or declaration of nullity of her marriage to petitioner Emilio R. Tuason. In her complaint, private respondent alleged that she and petitioner were married on June 3, 1972 and from this union, begot two children; that at the time of the marriage, petitioner was already psychologically incapacitated to comply with his essential marital obligations which became manifest afterward and resulted in violent fights between husband and wife; that in one of their fights, petitioner inflicted physical injuries on private respondent which impelled her to file a criminal case for physical injuries against him; that petitioner used prohibited drugs, was apprehended by the authorities and sentenced to a one-year suspended penalty and has not been rehabilitated; that petitioner was a womanizer, and in 1984, he left the conjugal home and cohabited with three women in succession, one of whom he presented to the public as his wife; that after he left the conjugal dwelling, petitioner gave minimal support to the family and even refused to pay for the tuition fees of their children compelling private respondent to accept donations and dole-outs from her family and friends; that petitioner likewise became a spendthrift and abused his administration of the conjugal partnership by alienating some of their assets and incurring large obligations with banks, credit card companies and other financial institutions, without private respondents consent; that attempts at reconciliation were made but they all failed because of petitioners refusal to reform. In addition to her prayer for annulment of marriage, private respondent prayed for powers of administration to save the conjugal properties from further dissipation.[1] Petitioner answered denying the imputations against him. As affirmative defense, he claimed that he and private respondent were a normal married couple during the first ten years of their marriage and actually begot two children during this period; that it was only in 1982 that they began to have serious personal differences when his wife did not accord the respect and dignity due him as a husband but treated him like apersona non grata; that due to the extreme animosities between them, he temporarily left the conjugal home for a cooling-off period in 1984; that it is private respondent who had been taking prohibited drugs and had a serious affair with another man; that petitioners work as owner and operator of a radio and television station exposed him to malicious gossip linking him to various women in

media and the entertainment world; and that since 1984, he experienced financial reverses in his business and was compelled, with the knowledge of his wife, to dispose of some of the conjugal shares in exclusive golf and country clubs. Petitioner petitioned the court to allow him to return to the conjugal home and continue his administration of the conjugal partnership. After the issues were joined, trial commenced on March 30, 1990. Private respondent presented four witnesses, namely, herself; Dr. Samuel Wiley, a Canon Law expert and marriage counselor of both private respondent and petitioner; Ms. Adelita Prieto, a close friend of the spouses, and Any. Jose F. Racela IV, private respondents counsel. Private respondent likewise submitted documentary evidence consisting of newspaper articles of her husbands relationship with other women, his apprehension by the authorities for illegal possession of drugs; and copies of a prior church annulment decree.[2] The parties marriage was clerically annulled by the Tribunal Metropolitanum Matrimoniale which was affirmed by the National Appellate Matrimonial Tribunal in 1986.[3] During presentation of private respondents evidence, petitioner, on April 18, 1990, filed his Opposition to private respondents petition for appointment as administratrix of the conjugal partnership of gains. After private respondent rested her case, the trial court scheduled the reception of petitioners evidence on May 11, 1990. On May 8, 1990, two days before the scheduled hearing, a counsel for petitioner moved for a postponement on the ground that the principal counsel was out of the country and due to return on the first week of June. [4] The court granted the motion and reset the hearing to June 8, 1990.[5] On June 8, 1990, petitioner failed to appear. On oral motion of private respondent, the court declared petitioner to have waived his right to present evidence and deemed the case submitted for decision on the basis of the evidence presented. On June 29, 1990, the trial court rendered judgment declaring the nullity of private respondents marriage to petitioner and awarding custody of the children to private respondent. The court ruled: WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria L. Tuason and Emilio R. Tuason on June 3, 1972 is declared null and void oh initio on the ground of psychological incapacity on the part of the defendant under Sec. 36 of the Family Code. Let herein judgment of annulment be recorded in the registry of Mandaluyong, Metro Manila where the marriage was contracted and in the registry of Makati, Metro Manila where the marriage is annulled. The custody of the two (2) legitimate children of the plaintiff and the defendant is hereby awarded to the plaintiff. The foregoing judgment is without prejudice to the application of the other effects of annulment as provided for under Arts. 50 and 51 of the Family Code of the Philippines.[6]

Counsel for petitioner received a copy of this decision on August 24, 1990. No appeal was taken from the decision. On September 24, 1990, private respondent filed a Motion for Dissolution of Conjugal Partnership of Gains and Adjudication to Plaintiff of the Conjugal Properties.[7] Petitioner opposed the motion on October 17, 1990[8] Also on the same day, October 17, 1990, petitioner, through new counsel, filed with the trial court a petition for relief from judgment of the June 29, 1990 decision. The trial court denied the petition on August 8, 1991.[9] Petitioner appealed before the Court of Appeals the order of the trial court denying his petition for relief from judgment. On July 29, 1994, the Court of Appeals dismissed the appeal and affirmed the order of the trial court.[10] Hence this petition. The threshold issue is whether a petition for relief from judgment is warranted under the circumstances of the case. We rule in the negative. A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of Court which provides: Section 2. Petition to Court of First Instance for relief from judgment or other proceedings thereof. - When a judgment or order is entered, or any other proceeding is taken, against a party in a court of first instance through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same cause praying that the judgment, order or proceeding be set aside. Under the rules, a final and executory judgment or order of the Regional Trial Court may be set aside on the ground of fraud, accident, mistake or excusable negligence. In addition, the petitioner must assert facts showing that he has a good, substantial and meritorious defense or cause of action.[11] If the petition is granted, the court shall proceed to hear and determine the case as if a timely motion for new trial had been granted therein.[12] In the case at bar, the decision annulling petitioners marriage to private respondent had already become final and executory when petitioner failed to appeal during the reglementary period. Petitioner however claims that the decision of the trial court was null and void for violation of his right to due process. He contends he was denied due process when, after failing to appear on two scheduled hearings, the trial court deemed him to have waived his right to present evidence and rendered judgment on the basis of the evidence for private respondent. Petitioner justifies his absence at the hearings on the ground that he was then confined for medic al and/or rehabilitation reasons.[13] In his affidavit of merit before the trial court, he attached a certification by Lt. Col. Plaridel F. Vidal, Director of the Narcotics Command, Drug Rehabilitation Center which states that on March 27, 1990 petitioner was admitted for treatment of drug dependency at the Drug Rehabilitation Center at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila of the Philippine Constabulary-Integrated

National Police.[14] The records, however, show that the former counsel of petitioner did not inform the trial court of this confinement. And when the court rendered its decision, the same counsel was out of the country for which reason the decision became final and executory as no appeal was taken therefrom.[15] The failure of petitioners counsel to notify him on time of the adverse judgment to enable him to appeal therefrom is negligence which is not excusable. Notice sent to counsel of record is binding upon the client and the neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of his right to appeal is not a ground for setting aside a judgment valid and regular on its face.[16] Similarly inexcusable was the failure of his former counsel to inform the trial court of petitioners confinement and medical treatment as the reason for his non appearance at the scheduled hearings. Petitioner has not given any reason why his former counsel, intentionally or unintentionally, did not inform the court of this fact. This led the trial court to order the case deemed submitted for decision on the basis of the evidence presented by the private respondent alone. To compound the negligence of petitioners counsel, the order of the trial court was never assailed via a motion for reconsideration. Clearly, petitioner cannot now claim that he was deprived of due process. He may have lost his right to present evidence but he was not denied his day in court. As the records show, petitioner, through counsel, actively participated in the proceedings below. He filed his answer to the petition, cross-examined private respondents witnesses and even submitted his opposition to private respondents motion for dissolution of the conjugal partnership of gains.[17] A petition for relief from judgment is an equitable remedy; it is allowed only in exceptional cases where there is no other available or adequate remedy. When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition.[18] Indeed, relief will not be granted to a party who seeks avoidance from the effects of the judgment when the loss of the remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to appeal which had been lost thru inexcusable negligence.[19] Petitioner also insists that he has a valid and meritorious defense. He cites the Family Code which provides that in actions for annulment of marriage or legal separation, the prosecuting officer should intervene for the state because the law looks with disfavor upon the haphazard declaration of annulment of marriages by default. He contends that when he failed to appear at the scheduled he arings, the trial court should have ordered the prosecuting officer to intervene for the state and inquire as to the reason for his non-appearance.[20] Articles 48 and 60 of the Family Code read as follows: Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecution attorney or fiscal assigned to it to appear on behalf

of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. xxx xxx xxx

Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed.[21] A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion.[22] Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the state for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties.[23] The prosecuting attorney or fiscal may oppose the application for legal separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated.[24] Our Constitution is committed to the policy of strengthening the family as a basic social institution.[25] Our family law is based on the policy that marriage is not a mere contract, but a social institution in which the state is vitally interested. The state can find no stronger anchor than on good, solid and happy families. The break up of families weakens our social and moral fabric and, hence, their preservation is not the concern alone of the family members. The facts in the case at bar do not call for the strict application of Articles 48 and 60 of the Family Code. For one, petitioner was not declared in default by the trial court for failure to answer. Petitioner filed his answer to the complaint and contested the cause of action alleged by private respondent. He actively participated in the proceedings below by filing several pleadings and cross-examining the witnesses of private respondent. It is crystal clear that every stage of the litigation was characterized by a no-holds barred contest and not by collusion. The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation proceedings is to determine whether collusion exists between the parties and to take care that the evidence is not suppressed or fabricated. Petitioners vehement opposition to the annulment proceedings negates the conclusion that collusion existed between the parties. There is no allegation by the petitioner that evidence was suppressed or fabricated by any of the parties. Under these circumstances, we are convinced that the non-intervention of a prosecuting attorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in the trial court.

Petitioner also refutes the testimonies of private respondents witnesses, particularly Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible and hearsay. Petitioner alleges that if he were able to present his evidence, he could have testified that he was not psychologically incapacitated at the time of the marriage as indicated by the fact that during their first ten years, he and private respondent lived together with their children as one normal and happy family, that he continued supporting his family even after he left the conjugal dwelling and that his work as owner and operator of a radio and television corporation places him in the public eye and makes him a good subject for malicious gossip linking him with various women. These facts, according to petitioner, should disprove the ground for annulment of his marriage to petitioner. Suffice it to state that the finding of the trial court as to the existence or nonexistence of petitioners psychological incapacity at the time of the marriage is final and binding on us.[26] Petitioner has not sufficiently shown that the trial courts factual findings and evaluation of the testimonies of private respondents witnesses vis-avis petitioners defenses are clearly and manifestly erroneous.[27] IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 is affirmed. SO ORDERED.

2. Santos vs CA G.R. No. 112019 January 4, 1995 LEOUEL SANTOS, petitioner, vs. THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIASANTOS, respondents.

training program under the auspices of the Armed Forces of the Philippines from 01 April up to 25 August 1990, he desperately tried to locate, or to somehow get in touch with, Julia but all his efforts were of no avail. Having failed to get Julia to somehow come home, Leouel filed with the regional trial Court of Negros Oriental, Branch 30, a complaint for "Voiding of marriage Under Article 36 of the Family Code" (docketed, Civil Case No. 9814). Summons was served by publication in a newspaper of general circulation in Negros Oriental. On 31 May 1991, respondent Julia, in her answer (through counsel), opposed the complaint and denied its allegations, claiming, in main, that it was the petitioner who had, in fact, been irresponsible and incompetent. A possible collusion between the parties to obtain a decree of nullity of their marriage was ruled out by the Office of the Provincial Prosecutor (in its report to the court). On 25 October 1991, after pre-trial conferences had repeatedly been set, albeit unsuccessfully, by the court, Julia ultimately filed a manifestation, stating that she would neither appear nor submit evidence. On 06 November 1991, the court a quo finally dismissed the complaint for lack of merit. 3 Leouel appealed to the Court of Appeal. The latter affirmed the decision of the trial court. 4 The petition should be denied not only because of its non-compliance with Circular 28-91, which requires a certification of non-shopping, but also for its lack of merit. Leouel argues that the failure of Julia to return home, or at the very least to communicate with him, for more than five years are circumstances that clearly show her being psychologically incapacitated to enter into married life. In his own words, Leouel asserts: . . . (T)here is no leave, there is no affection for (him) because respondent Julia Rosario Bedia-Santos failed all these years to communicate with the petitioner. A wife who does not care to inform her husband about her whereabouts for a period of five years, more or less, is psychologically incapacitated. The family Code did not define the term "psychological incapacity." The deliberations during the sessions of the Family Code Revision Committee, which has drafted the Code, can, however, provide an insight on the import of the provision.

VITUG, J.: Concededly a highly, if not indeed the most likely, controversial provision introduced by the Family Code is Article 36 (as amended by E.O. No. 227 dated 17 July 1987), which declares: Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. The present petition for review on certiorari, at the instance of Leouel Santos ("Leouel"), brings into fore the above provision which is now invoked by him. Undaunted by the decisions of the court a quo 1 and the Court of Appeal, 2 Leouel persists in beseeching its application in his attempt to have his marriage with herein private respondent, Julia Rosario Bedia-Santos ("Julia"), declared a nullity. It was in Iloilo City where Leouel, who then held the rank of First Lieutenant in the Philippine Army, first met Julia. The meeting later proved to be an eventful day for Leouel and Julia. On 20 September 1986, the two exchanged vows before Municipal Trial Court Judge Cornelio G. Lazaro of Iloilo City, followed, shortly thereafter, by a church wedding. Leouel and Julia lived with the latter's parents at the J. Bedia Compound, La Paz, Iloilo City. On 18 July 1987, Julia gave birth to a baby boy, and he was christened Leouel Santos, Jr. The ecstasy, however, did not last long. It was bound to happen, Leouel averred, because of the frequent interference by Julia's parents into the young spouses family affairs. Occasionally, the couple would also start a "quarrel" over a number of other things, like when and where the couple should start living independently from Julia's parents or whenever Julia would express resentment on Leouel's spending a few days with his own parents. On 18 May 1988, Julia finally left for the United Sates of America to work as a nurse despite Leouel's pleas to so dissuade her. Seven months after her departure, or on 01 January 1989, Julia called up Leouel for the first time by long distance telephone. She promised to return home upon the expiration of her contract in July 1989. She never did. When Leouel got a chance to visit the United States, where he underwent a

Art. 35. The following marriages shall be void from the beginning:

xxx xxx xxx

Art. 36. . . .
(7) Those marriages contracted by any party who, at the time of the celebration, was wanting in the sufficient use of reason or judgment to understand the essential nature of marriage or was psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration. On subparagraph (7), which as lifted from the Canon Law, Justice (Jose B.L.) Reyes suggested that they say "wanting in sufficient use," but Justice (Eduardo) Caguioa preferred to say "wanting in the sufficient use." On the other hand, Justice Reyes proposed that they say "wanting in sufficient reason." Justice Caguioa, however, pointed out that the idea is that one is not lacking in judgment but that he is lacking in the exercise of judgment. He added that lack of judgment would make the marriage voidable. Judge (Alicia Sempio-) Diy remarked that lack of judgment is more serious than insufficient use of judgment and yet the latter would make the marriage null and void and the former only voidable. Justice Caguioa suggested that subparagraph (7) be modified to read: "That contracted by any party who, at the time of the celebration, was psychologically incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration." Justice Caguioa explained that the phrase "was wanting in sufficient use of reason of judgment to understand the essential nature of marriage" refers to defects in the mental faculties vitiating consent, which is not the idea in subparagraph (7), but lack of appreciation of one's marital obligations. Judge Diy raised the question: Since "insanity" is also a psychological or mental incapacity, why is "insanity" only a ground for annulment and not for declaration or nullity? In reply, Justice Caguioa explained that in insanity, there is the appearance of consent, which is the reason why it is a ground for voidable marriages, while subparagraph (7) does not refer to consent but to the very essence of marital obligations. Prof. (Araceli) Baviera suggested that, in subparagraph (7), the word "mentally" be deleted, with which Justice Caguioa concurred. Judge Diy, however, prefers to retain the word "mentally."

Justice Caguioa remarked that subparagraph (7) refers to psychological impotence. Justice (Ricardo) Puno stated that sometimes a person may be psychologically impotent with one but not with another. Justice (Leonor Ines-) Luciano said that it is called selective impotency. Dean (Fortunato) Gupit stated that the confusion lies in the fact that in inserting the Canon Law annulment in the Family Code, the Committee used a language which describes a ground for voidable marriages under the Civil Code. Justice Caguioa added that in Canon Law, there are voidable marriages under the Canon Law, there are no voidable marriages Dean Gupit said that this is precisely the reason why they should make a distinction. Justice Puno remarked that in Canon Law, the defects in marriage cannot be cured. Justice Reyes pointed out that the problem is: Why is "insanity" a ground for void ab initio marriages? In reply, Justice Caguioa explained that insanity is curable and there are lucid intervals, while psychological incapacity is not. On another point, Justice Puno suggested that the phrase "even if such lack or incapacity is made manifest" be modified to read "even if such lack or incapacity becomes manifest." Justice Reyes remarked that in insanity, at the time of the marriage, it is not apparent. Justice Caguioa stated that there are two interpretations of the phrase "psychological or mentally incapacitated" in the first one, there is vitiation of consent because one does not know all the consequences of the marriages, and if he had known these completely, he might not have consented to the marriage. xxx xxx xxx Prof. Bautista stated that he is in favor of making psychological incapacity a ground for voidable marriages since otherwise it will encourage one who really understood the consequences of marriage to claim that he did not and to make excuses for invalidating the marriage by acting as if he did not understand the obligations of marriage. Dean Gupit added that it is a loose way of providing for divorce. xxx xxx xxx

Justice Caguioa explained that his point is that in the case of incapacity by reason of defects in the mental faculties, which is less than insanity, there is a defect in consent and, therefore, it is clear that it should be a ground for voidable marriage because there is the appearance of consent and it is capable of convalidation for the simple reason that there are lucid intervals and there are cases when the insanity is curable. He emphasized that psychological incapacity does not refer to mental faculties and has nothing to do with consent; it refers to obligations attendant to marriage. xxx xxx xxx On psychological incapacity, Prof. (Flerida Ruth P.) Romero inquired if they do not consider it as going to the very essence of consent. She asked if they are really removing it from consent. In reply, Justice Caguioa explained that, ultimately, consent in general is effected but he stressed that his point is that it is not principally a vitiation of consent since there is a valid consent. He objected to the lumping together of the validity of the marriage celebration and the obligations attendant to marriage, which are completely different from each other, because they require a different capacity, which is eighteen years of age, for marriage but in contract, it is different. Justice Puno, however, felt that psychological incapacity is still a kind of vice of consent and that it should not be classified as a voidable marriage which is incapable of convalidation; it should be convalidated but there should be no prescription. In other words, as long as the defect has not been cured, there is always a right to annul the marriage and if the defect has been really cured, it should be a defense in the action for annulment so that when the action for annulment is instituted, the issue can be raised that actually, although one might have been psychologically incapacitated, at the time the action is brought, it is no longer true that he has no concept of the consequence of marriage. Prof. (Esteban) Bautista raised the question: Will not cohabitation be a defense? In response, Justice Puno stated that even the bearing of children and cohabitation should not be a sign that psychological incapacity has been cured. Prof. Romero opined that psychological incapacity is still insanity of a lesser degree. Justice Luciano suggested that they invite a psychiatrist, who is the expert on this matter. Justice Caguioa, however, reiterated that psychological incapacity is not a defect in the mind but in the understanding of the consequences of marriage, and therefore, a psychiatrist will not be a help.

Prof. Bautista stated that, in the same manner that there is a lucid interval in insanity, there are also momentary periods when there is an understanding of the consequences of marriage. Justice Reyes and Dean Gupit remarked that the ground of psychological incapacity will not apply if the marriage was contracted at the time when there is understanding of the consequences of marriage. 5 xxx xxx xxx Judge Diy proposed that they include physical incapacity to copulate among the grounds for void marriages. Justice Reyes commented that in some instances the impotence that in some instances the impotence is only temporary and only with respect to a particular person. Judge Diy stated that they can specify that it is incurable. Justice Caguioa remarked that the term "incurable" has a different meaning in law and in medicine. Judge Diy stated that "psychological incapacity" can also be cured. Justice Caguioa, however, pointed out that "psychological incapacity" is incurable. Justice Puno observed that under the present draft provision, it is enough to show that at the time of the celebration of the marriage, one was psychologically incapacitated so that later on if already he can comply with the essential marital obligations, the marriage is still void ab initio. Justice Caguioa explained that since in divorce, the psychological incapacity may occur after the marriage, in void marriages, it has to be at the time of the celebration of marriage. He, however, stressed that the idea in the provision is that at the time of the celebration of the marriage, one is psychologically incapacitated to comply with the essential marital obligations, which incapacity continues and later becomes manifest. Justice Puno and Judge Diy, however, pointed out that it is possible that after the marriage, one's psychological incapacity become manifest but later on he is cured. Justice Reyes and Justice Caguioa opined that the remedy in this case is to allow him to remarry. 6 xxx xxx xxx Justice Puno formulated the next Article as follows: Art. 37. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated, to comply with the essential obligations of marriage shall likewise be void from the beginning even if such incapacity becomes manifest after its solemnization.

Justice Caguioa suggested that "even if" be substituted with "although." On the other hand, Prof. Bautista proposed that the clause "although such incapacity becomes manifest after its solemnization" be deleted since it may encourage one to create the manifestation of psychological incapacity. Justice Caguioa pointed out that, as in other provisions, they cannot argue on the basis of abuse. Judge Diy suggested that they also include mental and physical incapacities, which are lesser in degree than psychological incapacity. Justice Caguioa explained that mental and physical incapacities are vices of consent while psychological incapacity is not a species of vice or consent. Dean Gupit read what Bishop Cruz said on the matter in the minutes of their February 9, 1984 meeting: "On the third ground, Bishop Cruz indicated that the phrase "psychological or mental impotence" is an invention of some churchmen who are moralists but not canonists, that is why it is considered a weak phrase. He said that the Code of Canon Law would rather express it as "psychological or mental incapacity to discharge . . ." Justice Caguioa remarked that they deleted the word "mental" precisely to distinguish it from vice of consent. He explained that "psychological incapacity" refers to lack of understanding of the essential obligations of marriage. Justice Puno reminded the members that, at the last meeting, they have decided not to go into the classification of "psychological incapacity" because there was a lot of debate on it and that this is precisely the reason why they classified it as a special case. At this point, Justice Puno, remarked that, since there having been annulments of marriages arising from psychological incapacity, Civil Law should not reconcile with Canon Law because it is a new ground even under Canon Law. Prof. Romero raised the question: With this common provision in Civil Law and in Canon Law, are they going to have a provision in the Family Code to the effect that marriages annulled or declared void by the church on the ground of psychological incapacity is automatically annulled in Civil Law? The other members replied negatively.

Justice Puno and Prof. Romero inquired if Article 37 should be retroactive or prospective in application. Justice Diy opined that she was for its retroactivity because it is their answer to the problem of church annulments of marriages, which are still valid under the Civil Law. On the other hand, Justice Reyes and Justice Puno were concerned about the avalanche of cases. Dean Gupit suggested that they put the issue to a vote, which the Committee approved. The members voted as follows: (1) Justice Reyes, Justice Puno and Prof. Romero were for prospectivity. (2) Justice Caguioa, Judge Diy, Dean Gupit, Prof. Bautista and Director Eufemio were for retroactivity. (3) Prof. Baviera abstained. Justice Caguioa suggested that they put in the prescriptive period of ten years within which the action for declaration of nullity of the marriage should be filed in court. The Committee approved the suggestion. 7 It could well be that, in sum, the Family Code Revision Committee in ultimately deciding to adopt the provision with less specificity than expected, has in fact, so designed the law as to allow some resiliency in its application. Mme. Justice Alicia V. Sempio-Diy, a member of the Code Committee, has been quoted by Mr. Justice Josue N. Bellosillo in Salita vs. Hon. Magtolis (G.R. No. 106429, 13 June 1994); thus: 8 The Committee did not give any examples of psychological incapacity for fear that the giving of examples would limit the applicability of the provision under the principle of ejusdem generis. Rather, the Committee would like the judge to interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law. A part of the provision is similar to Canon 1095 of the New Code of Canon Law, 9 which reads:

Canon 1095. They are incapable of contracting marriage: 1. who lack sufficient use of reason; 2. who suffer from a grave defect of discretion of judgment concerning essentila matrimonial rights and duties, to be given and accepted mutually; 3. who for causes of psychological nature are unable to assume the essential obligations of marriage. (Emphasis supplied.) Accordingly, although neither decisive nor even perhaps all that persuasive for having no juridical or secular effect, the jurisprudence under Canon Law prevailing at the time of the code's enactment, nevertheless, cannot be dismissed as impertinent for its value as an aid, at least, to the interpretation or construction of the codal provision. One author, Ladislas Orsy, S.J., in his treaties, 10 giving an account on how the third paragraph of Canon 1095 has been framed, states: The history of the drafting of this canon does not leave any doubt that the legislator intended, indeed, to broaden the rule. A strict and narrow norm was proposed first: Those who cannot assume the essential obligations of marriage because of a grave psycho-sexual anomaly (ob gravem anomaliam psychosexualem) are unable to contract marriage (cf. SCH/1975, canon 297, a new canon, novus); then a broader one followed: . . . because of a grave psychological anomaly (ob gravem anomaliam psychicam) . . . (cf. SCH/1980, canon 1049); then the same wording was retained in the text submitted to the pope (cf. SCH/1982, canon 1095, 3); finally, a new version was promulgated: because of causes of a psychological nature (ob causas naturae psychiae). So the progress was from psycho-sexual to psychological anomaly, then the term anomaly was altogether eliminated. it would be,

however, incorrect to draw the conclusion that the cause of the incapacity need not be some kind of psychological disorder; after all, normal and healthy person should be able to assume the ordinary obligations of marriage. Fr. Orsy concedes that the term "psychological incapacity" defies any precise definition since psychological causes can be of an infinite variety. In a book, entitled "Canons and Commentaries on Marriage," written by Ignatius Gramunt, Javier Hervada and LeRoy Wauck, the following explanation appears: This incapacity consists of the following: (a) a true inability to commit oneself to the essentials of marriage. Some psychosexual disorders and other disorders of personality can be the psychic cause of this defect, which is here described in legal terms. This particular type of incapacity consists of a real inability to render what is due by the contract. This could be compared to the incapacity of a farmer to enter a binding contract to deliver the crops which he cannot possibly reap; (b) this inability to commit oneself must refer to the essential obligations of marriage: the conjugal act, the community of life and love, the rendering of mutual help, the procreation and education of offspring; (c) the inability must be tantamount to a psychological abnormality. The

mere difficulty of assuming these obligations, which could be overcome by normal effort, obviously does not constitute incapacity. The canon contemplates a true psychological disorder which incapacitates a person from giving what is due (cf. John Paul

II, Address to R. Rota, Feb. 5, 1987). However, if the marriage is to be declared invalid under this incapacity, it must be proved not only that the person is afflicted by a psychological defect, but that the defect did in fact deprive the person, at the moment of giving consent, of the ability to assume the essential duties of marriage and consequently of the possibility of being bound by these duties. Justice Sempio-Diy 11 cites with approval the work of Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila (Branch 1), who opines that psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. The incapacity must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in marriage; it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved. It should be obvious, looking at all the foregoing disquisitions, including, and most importantly, the deliberations of the Family Code Revision Committee itself, that the use of the phrase "psychological incapacity" under Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses as, likewise

mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances (cited in Fr. Artemio Baluma's "Void and Voidable Marriages in the Family Code and their Parallels in Canon Law," quoting from the Diagnostic Statistical Manual of Mental Disorder by the American Psychiatric Association; Edward Hudson's "Handbook II for Marriage Nullity Cases"). Article 36 of the Family Code cannot be taken and construed independently of, but must stand in conjunction with, existing precepts in our law on marriage. Thus correlated, "psychological incapacity" should refer to 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 intensitivity or inability to give meaning and significance to the marriage. This pschologic condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be "legitimate." The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions of the Code, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity. Until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree, extent, and other conditions of that incapacity must, in every case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity is peremptorily decreed. The well-considered opinions of psychiatrists, psychologists, and persons with expertise in psychological disciplines might be helpful or even desirable. Marriage is not an adventure but a lifetime commitment. We should continue to be reminded that innate in our society, then enshrined in our Civil Code, and even now still indelible in Article 1 of the Family Code, is that Art. 1. Marriage is a special contract of permanent union between a man a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the

property relations during the marriage within the limits provided by this Code. (Emphasis supplied.) Our Constitution is no less emphatic: Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. (Article XV, 1987 Constitution). The above provisions express so well and so distinctly the basic nucleus of our laws on marriage and the family, and they are doubt the tenets we still hold on to. The factual settings in the case at bench, in no measure at all, can come close to the standards required to decree a nullity of marriage. Undeniably and understandably, Leouel stands aggrieved, even desperate, in his present situation. Regrettably, neither law nor society itself can always provide all the specific answers to every individual problem. WHEREFORE, the petition is DENIED. SO ORDERED.

3. Republic vs Cagandahan QUISUMBING, J.: Michael the

To prove her claim, respondent testified and presented the testimony of Dr. Sionzon of the Department of Psychiatry, University of Dr. Sionzon issued a medical certificate

stating that respondents condition is known as CAH. He explained that genetically This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and seeking a reversal of the Decision[1] dated January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for Correction of Entries in Birth Certificate filed by Jennifer B. Cagandahan and ordered the following changes of entries in Cagandahans birth certificate: (1) the name Jennifer Cagandahan changed to Jeff Cagandahan and (2) gender from female to male. respondent is female but because her body secretes male hormones, her female organs did not develop normally and she has two sex organs female and male. He testified that this condition is very rare, that respondents uterus is not fully developed because of lack of female hormones, and that she has no monthly period. He further testified that respondents condition is permanent and recommended the change of gender because respondent has made up her mind, adjusted to her chosen role as male, and the gender change would be advantageous to her. The facts are as follows. On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth Certificate[2] before the RTC, Branch 33 of Siniloan, Laguna. In her petition, she alleged that she was born on January 13, 1981 and was registered as a female in the Certificate of Live Birth but while growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female characteristics. She further alleged that she was diagnosed to have clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had minimized, she has stopped growing and she has no breast or menstrual development. She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. Thus, she prayed that her birth certificate be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff. The petition was published in a newspaper of general circulation for three (3) consecutive weeks and was posted in conspicuous places by the sheriff of the court. The Solicitor General entered his appearance and authorized the Assistant Provincial Prosecutor to appear in his behalf. The RTC granted respondents petition in a Decision dated January 12, 2005 which reads: The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs prayed [for]. Petitioner has adequately presented to the Court very clear and convincing proofs for the granting of his petition. It was medically proven that petitioners body produces male hormones, and first his body as well as his action and feelings are that of a male. He has chosen to be male. He is a normal person and wants to be acknowledged and identified as a male. WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to make the following corrections in the birth [c]ertificate of Jennifer Cagandahan upon payment of the prescribed fees: a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and b) MALE. By changing the gender from female to

It is likewise ordered that petitioners school records, voters registry, baptismal certificate, and other pertinent records are hereby amended to conform with the foregoing corrected data. SO ORDERED.[3]

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned ruling. The issues raised by petitioner are: THE TRIAL COURT CONSIDERING THAT: ERRED IN GRANTING I. THE PETITION

copy of the Petition, the Order to publish on December 16, 2003 and all pleadings, orders or processes in the course of the proceedings,[8] respondent is actually a male person and hence his birth certificate has to be corrected to reflect his true sex/gender,[9] change of sex or gender is allowed under Rule 108,[10] and respondent substantially complied with the requirements of Rules 103 and 108 of the Rules of Court.[11] Rules 103 and 108 of the Rules of Court provide:

THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN COMPLIED WITH; AND, II. CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF SEX OR GENDER IN THE BIRTH CERTIFICATE, WHILE RESPONDENTS MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT MAKE HER A MALE.[4]

Rule 103 CHANGE OF NAME SECTION 1. Venue. A person desiring to change his name shall present the petition to the Regional Trial Court of the province in which he resides, [or, in the City of Manila, to the Juvenile and Domestic Relations Court]. SEC. 2. Contents of petition. A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf, and shall set forth: (a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing; (b) The cause for which petitioner's name is sought; (c) The name asked for. the change of the

Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the birth certificate of respondent to change her sex or gender, from female to male, on the ground of her medical condition known as CAH, and her name from Jennifer to Jeff, under Rules 103 and 108 of the Rules of Court. The OSG contends that the petition below is fatally defective for noncompliance with Rules 103 and 108 of the Rules of Court because while the local civil registrar is an indispensable party in a petition for cancellation or correction of entries under Section 3, Rule 108 of the Rules of Court, respondents petition before the court a quo did not implead the local civil registrar.[5]The OSG further contends respondents petition is fatally defective since it failed to state that respondent is a bona fide resident of the province where the petition was filed for at least three (3) years prior to the date of such filing as mandated under Section 2(b), Rule 103 of the Rules of Court.[6] The OSG argues that Rule 108 does not allow change of sex or gender in the birth certificate and respondents claimed medical condition known as CAH does not make her a male.[7] On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna was not formally named a party in the Petition for Correction of Birth Certificate, nonetheless the Local Civil Registrar was furnished a

SEC. 3. Order for hearing. If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice. SEC. 4. Hearing. Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.

SEC. 5. Judgment. Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition. SEC. 6. Service of judgment. Judgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality or city where the court issuing the same is situated, who shall forthwith enter the same in the civil register. Rule 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY SECTION 1. Who may file petition. Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Regional Trial Court of the province where the corresponding civil registry is located. SEC. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name. SEC. 3. Parties. When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province.

SEC. 5. Opposition. The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto. SEC. 6. Expediting proceedings. The court in which the proceedings is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings. SEC. 7. Order. After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record.

The OSG argues that the petition below is fatally defective for noncompliance with Rules 103 and 108 of the Rules of Court because respondents petition did not implead the local civil registrar. Section 3, Rule 108 provides that the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceedings. Likewise, the local civil registrar is required to be made a party in a proceeding for the correction of name in the civil registry. He is an indispensable party without whom no final determination of the case can be had.[12] Unless all possible indispensable parties were duly notified of the proceedings, the same shall be considered as falling much too short of the requirements of the rules.[13] The corresponding petition should also implead as respondents the civil registrar and all other persons who may have or may claim to have any interest that would be affected thereby.[14] Respondent, however, invokes Section 6,[15] Rule 1 of the Rules of Court which states that courts shall construe the Rules liberally to promote their objectives of securing to the parties a just, speedy and inexpensive disposition of the matters brought before it. We agree that there is substantial compliance with Rule 108 when respondent furnished a copy of the petition to the local civil registrar. The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look to the statutes. In this connection, Article 412 of the Civil Code provides: ART. 412. No entry in a civil register shall be changed or corrected without a judicial order.

(2) normal internal structures of the female reproductive tract such as the ovaries, Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No. 9048[17] in so far asclerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now applies only to substantial changes and corrections in entries in the civil register.[18] Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.[19] The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code: ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. ART. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name. uterus and fallopian tubes; as the child grows older, some features start to appear male, such as deepening of the voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born with CAH. CAH is one of many conditions[21] that involve intersex anatomy. During the twentieth century, medicine adopted the term intersexuality to apply to human beings who cannot be classified as either male or female. [22] The term is now of widespread use. According to Wikipedia, intersexuality is the state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither exclusively male nor female. An organism with intersexmay have biological characteristics of both male and female sexes. Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals have been expected to conform to either a male or female gender role.[23] Since the rise of modern medical science in Western societies, someintersex people with ambiguous external genitalia have had their genitalia surgically modified to resemble either male or female genitals.[24] More commonly, an intersex individual is considered as suffering from a disorder which is almost always recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold the individual as neatly as possible into the category of either male or female. In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial. It has been suggested that there is some middle ground between the sexes, a no-mans land for those individuals who are neither truly male nor truly The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.[20] Respondent undisputedly has CAH. This condition causes the early or inappropriate appearance of male characteristics. A person, like respondent, with this condition produces too much androgen, a male hormone. A newborn who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral opening at the base, an ambiguous genitalia often appearing more male than female; In the instant case, if we determine respondent to be a female, then there is no basis for a change in the birth certificate entry for gender. But if we determine, female.[25] The current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification.

based

on

medical

testimony

and

scientific

development

this gender of the human species. Respondent is the one who has to live with his intersexanatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. In the absence of evidence that respondent is an incompetent[27] and in the absence of evidence to show that classifying respondent as a male will harm other members of society who are equally entitled to protection under the law, the Court affirms as valid and justified the respondents position and his personal judgment of being a male. In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out. In other words, we respect respondents congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. As for respondents change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow. [28] The trial courts grant of respondents change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that

showing the respondent to be other than female, then a change in the subjects birth certificate entry is in order. Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor consistently and categorically male) composition. Respondent has female (XX) chromosomes. However, respondents body system naturally produces high levels of male hormones (androgen). As a result, respondent has ambiguous genitalia and the phenotypic features of a male. Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed. Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong medication,
[26]

respondents change of name merely recognizes his preferred gender, we find merit in respondents change of name. Such a change will conform with the change of the entry in his birth certificate from female to male. WHEREFORE, the Republics petition is DENIED. The Decision

to force his body into dated January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs. SO ORDERED.

the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in respondents development to reveal more fully his male characteristics. In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as ones sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH. The Court will not consider respondent as having erred in not choosing to undergo treatment in order to become or remain as a female. Neither will the Court force respondent to undergo treatment and to take medication in order to fit the mold of a female, as society commonly currently knows

4. Silverio vs Republic G.R. No. 174689 October 22, 2007

reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the procedure. From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female." An order setting the case for initial hearing was published in the Peoples Journal Tonight, a newspaper of general circulation in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila. On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made. During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fianc, Richard P. Edel, as witnesses. On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. The sole issue here is whether or not petitioner is entitled to the relief asked for. The [c]ourt rules in the affirmative.

ROMMEL JACINTO DANTES SILVERIO, petitioner, vs. REPUBLIC OF THE PHILIPPINES, respondent. DECISION CORONA, J.:

When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2) Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and the other was a female. Amihan named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a persons sex? May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery? On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent. Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male." He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had always identified himself with girls since childhood.1 Feeling trapped in a mans body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual [reassignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioners misfortune to be trapped in a mans body is not his own doing and should not be in any way taken against him. Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her [fianc] and the realization of their dreams. Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioners first name from "Rommel Jacinto" to MELY and petitioners gender from "Male" to FEMALE. 5 On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration. On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial courts decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republics petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition. Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10 The petition lacks merit. A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial court: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. (emphasis supplied) Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil registry changes sought. We disagree. The State has an interest in the names borne by individuals and entities for purposes of identification.11 A change of name is a privilege, not a right.12 Petitions for change of name are controlled by statutes.13 In this connection, Article 376 of the Civil Code provides: ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048 provides: SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial. RA 9048 likewise provides the grounds for which change of first name may be allowed: SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first name or nickname may be allowed in any of the following cases: (1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or (3) The change will avoid confusion. Petitioners basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter ones legal capacity or civil status.18 RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioners first name for his declared purpose may only create grave complications in the civil registry and the public interest.

Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the use of his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was not within that courts primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioners petition in so far as the change of his first name was concerned. No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look to the statutes.21 In this connection, Article 412 of the Civil Code provides: ART. 412. No entry in the civil register shall be changed or corrected without a judicial order. Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the civil register.23 Section 2(c) of RA 9048 defines what a "clerical or typographical error" is: SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean: xxx xxx xxx

to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (emphasis supplied) Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court. The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code:24 ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. ART. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name. The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment. To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace something with something else of the same kind or with something that serves as a substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary. Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly.

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of his age, nationality and his family membership.27 The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied) A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal capacity and civil status. In this connection, Article 413 of the Civil Code provides: ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws. But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioners cause. Moreover, Section 5 of Act 3753 (the Civil Register Law) provides: SEC. 5. Registration and certification of births. The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child. In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to be issued. xxx xxx xxx (emphasis supplied)

reassignment, the determination of a persons sex made at the time of his or her birth, if not attended by error,30 is immutable.31 When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a male from a female"32 or "the distinction between male and female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category "female." For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate. Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong. The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioners first step towards his eventual marriage to his male fianc. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman.37 One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women,39 certain felonies under the Revised Penal Code40 and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court,41 among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioners petition were to be granted.

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it. In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based. To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege. It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress. Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams." No argument about that. The Court recognizes that there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the courts. WHEREFORE, the petition is hereby DENIED. Costs against petitioner. SO ORDERED.

5. Beso vs Daguman FIRST DIVISION [A.M. No. MTJ-99-1211. January 28, 2000] ZENAIDA S. BESO, complainant, vs. Judge JUAN DAGUMAN, MCTC, Sta. Margarita-Tarangan-Pagsanjan, Samar,respondent. DECISION YNARES-SANTIAGO, J.: In this administrative complaint, respondent Judge stands charged with Neglect of Duty and Abuse of Authority. In a Complaint-Affidavit dated December 12, 1997, Zenaida S. Beso charged Judge Juan J. Daguman, Jr. with solemnizing marriage outside of his jurisdiction and of negligence in not retaining a copy and not registering the marriage contract with the office of the Local Civil Registrar alleging "a. That on August 28, 1997, I and my fiancee (sic) BERNARDITO A. YMAN got married and our marriage was solemnized by judge (sic) Juan Daguman in his residence in J.P.R. Subdivision in

h. That no copy was retained by Judge Daguman; i. That I believe that the respondent judge committed acts prejudicial to my interest such as: 1. Solemnizing our marriage outside his jurisdiction; 2. Negligence in not retaining a copy and not registering our marriage before the office of the Local Civil Registrar." The Affidavit-Complaint was thereafter referred to respondent Judge for comment. In his Comment, respondent Judge averred that: 1. The civil marriage of complainant Zenaida Beso and Bernardito Yman had to be solemnized by respondent in Calbayog City though outside his territory as municipal Judge of Sta. Margarita, Samar due to the following and pressing circumstances: 1.1. On August 28, 1997 respondent was physically indisposed and unable to report to his station in Sta. Margarita. In the forenoon of that date, without prior appointment, complainant Beso and Mr. Yman unexpectedly came to the residence of respondent in said City, urgently requesting the celebration of their marriage right then and there, first, because complainants said she must leave that same day to be able to fly from Manila for abroad as scheduled; second, that for the parties to go to another town for the marriage would be expensive and would entail serious problems of finding a solemnizing officer and another pair of witnesses or sponsors, while in fact former Undersecretary Pacifico Maghacot, Sangguniang Panglunsod [member] Ramon Dean were already with them as sponsors; third, if they failed to get married on August 28, 1997, complainant would be out of the country for a long period and their marriage license would lapse and necessitate another publication of notice; fourth, if the parties go beyond their plans for the scheduled marriage, complainant feared it would complicate her employment abroad; and, last, all other alternatives as to date and venue of marriage were considered impracticable by the parties; 1.2. The contracting parties were ready with the desired cocuments (sic) for a valid marriage, which respondent found all in order.

b. That the ceremony was attended by PACIFICO MAGHACOT who acted as our principal sponsor and spouses RAMON DEAN and TERESITA DEAN; xxx c. That after our wedding, my husband BERNARDITO YMAN abandoned me without any reason at all; d. That I smell something fishy; so what I did was I went to Calbayog City and wrote the City Civil Registrar to inquire regarding my Marriage Contract; e. That to my surprise, I was informed by the Local Civil Registrar

f. That upon advisement of the Local Civil Registrar, I wrote Judge Juan Daguman, to inquire; g. That to my second surprise, I was informed by Judge Daguman that all the copies of the Marriage Contract were taken by Oloy (Bernardito A. Yman);

1.3. Complainant bride is an accredited Filipino overseas worker, who, respondent realized, deserved more than ordinary official attention under present Government policy. 2. At the time respondent solemnized the marriage in question, he believed in good faith that by so doing he was leaning on the side of liberality of the law so that it may be not be too expensive and complicated for citizens to get married. 3. Another point brought up in the complaint was the failure of registration of the duplicate and triplicate copies of the marriage certificate, which failure was also occasioned by the following circumstances beyond the control of respondent: 3.1. After handing to the husband the first copy of the marriage certificate, respondent left the three remaining copies on top of the desk in his private office where the marriage ceremonies were held, intending later to register the duplicate and triplicate copies and to keep the forth (sic) in his office. 3.2. After a few days following the wedding, respondent gathered all the papers relating to the said marriage but notwithstanding diligent search in the premises and private files, all the three last copies of the certificate were missing. Promptly, respondent invited by subpoena xxx Mr. Yman to shed light on the missing documents and he said he saw complainant Beso put the copies of the marriage certificate in her bag during the wedding party. Unfortunately, it was too late to contact complainant for a confirmation of Mr. Ymans claim. 3.3. Considering the futility of contracting complainant now that she is out of the country, a reasonable conclusion can be drawn on the basis of the established facts so far in this dispute. If we believe the claim of complainant that after August 28, 1997 marriage her husband, Mr. Yman, abandoned her without any reason xxx but that said husband admitted "he had another girl by the name of LITA DANGUYAN" xxx it seems reasonably clear who of the two marriage contracting parties probably absconded with the missing copies of the marriage

all possible means to recover custody of the missing documents in some amicable way during the expected hearing of the above mentioned civil case in the City of Marikina, failing to do which said respondent would confer with the Civil Registrar General for possible registration of reconstituted copies of said documents. The Office of the Court Administrator (OCA) in an evaluation report dated August 11, 1998 found that respondent Judge " committed non-feasance in office" and recommended that he be fined Five Thousand Pesos (P5,000.00) with a warning that the commission of the same or future acts will be dealt with more severely pointing out that: "As presiding judge of the MCTC Sta. Margarita TarangnanPagsanjan, Samar, the authority to solemnize marriage is only limited to those municipalities under his jurisdiction. Clearly, Calbayog City is no longer within his area of jurisdiction. Additionally, there are only three instances, as provided by Article 8 of the Family Code, wherein a marriage may be solemnized by a judge outside his chamber[s] or at a place other than his sala, to wit: (1) when either or both of the contracting parties is at the point of death; (2) when the residence of either party is located in a remote place; (3) where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. The foregoing circumstances are unavailing in the instant case. Moreover, as solemnizing officer, respondent Judge neglected his duty when he failed to register the marriage of complainant to Bernardito Yman. Such duty is entrusted upon him pursuant to Article 23 of the Family Code which provides: "It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the

3.4. Under the facts above stated, respondent has no other recourse but to protect the public interest by trying

original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificates not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. xxx" (underscoring ours) It is clearly evident from the foregoing that not only has the respondent Judge committed non-feasance in office, he also undermined the very foundation of marriage which is the basic social institution in our society whose nature, consequences and incidents are governed by law. Granting that respondent Judge indeed failed to locate the duplicate and triplicate copies of the marriage certificate, he should have exerted more effort to locate or reconstitute the same. As a holder of such a sensitive position, he is expected to be conscientious in handling official documents. His imputation that the missing copies of the marriage certificate were taken by Bernardito Yman is based merely on conjectures and does not deserve consideration for being devoid of proof." After a careful and thorough examination of the evidence, the Court finds the evaluation report of the OCA well-taken.

solemnized at a house or place designated by them in a sworn statement to that effect." (Italics ours)
As the above-quoted provision clearly states, a marriage can be held outside the judges chambers or courtroom only in the following instances: 1.] at the point of death; 2.] in remote places in accordance with Article 29, or 3.] upon the request of both parties in writing in a sworn statement to this effect. In this case, there is no pretense that either complainant Beso or her fiance Yman was at the point of death or in a remote place. Neither was there a sworn written request made by the contracting parties to respondent Judge that the marriage be solemnized outside his chambers or at a place other than his sala. What, in fact, appears on record is that respondent Judge was prompted more by urgency to solemnize the marriage of Beso and Yman because complainant was "[a]n overseas worker, who, respondent realized deserved more than ordinary official attention under present Government policy." Respondent Judge further avers that in solemnizing the marriage in question, "[h]e believed in good faith that by doing so he was leaning on the side of liberality of the law so that it may not be too expensive and complicated for citizens to get married." A person presiding over a court of law must not only apply the law but must also live and abide by it and render justice at all times without resorting to shortcuts clearly uncalled for.[2] A judge is not only bound by oath to apply the law;[3] he must also be conscientious and thorough in doing so.[4] Certainly, judges, by the very delicate nature of their office should be more circumspect in the performance of their duties.[5] If at all, the reasons proffered by respondent Judge to justify his hurried solemnization of the marriage in this case only tends to degrade the revered position enjoyed by marriage in the hierarchy of social institutions in the country. They also betray respondents cavalier proclivity on its significance in our culture which is more disposed towards an extended period of engagement prior to marriage and frowns upon hasty, ill-advised and illAn elementary regard for the sacredness of laws let alone that enacted in order to preserve so sacrosanct an inviolable social institution as marriage and the stability of judicial doctrines laid down by superior authority should have given respondent judge pause and made him more vigilant in the exercise of his authority and the performance of his duties as a solemnizing officer. A judge is, furthermore, presumed to know the constitutional limits of the authority or jurisdiction of his court.[6]Thus respondent Judge should be reminded that A priest who is commissioned and allowed by his ordinary to marry the faithful, is authorized to do so only within the area of the diocese or place allowed by his Bishop. An appellate court justice or a Justice of this Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the venue, as long as the

Jimenez v. Republic[1] underscores the importance of marriage as a social institution

thus: "[M]arriage in this country is an institution in which the community is deeply interested. The state has surrounded it with safeguards to maintain its purity, continuity and permanence. The security and stability of the state are largely dependent upon it. It is the interest and duty of each and every member of the community to prevent the bringing about of a condition that would shake its foundation and ultimately lead to its destruction." With regard to the solemnization of marriage, Article 7 of the Family Code provides, among others, that "ART. 7. Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the courts jurisdiction; xxx" (Italics ours) In relation thereto, Article 8 of the same statute mandates that: ART. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages

contracted at the point of death or in remote places in accordance with Article 29 of this Code, or where both parties request the solemnizing officer in writing in which case the marriage may be

requisites of the law are complied with. However, Judges who are

appointed to specific jurisdictions may officiate in weddings only within said areas and not beyond. Where a judge solemnizes a

WHEREFORE, in view of all the foregoing, respondent Judge is hereby FINED Five Thousand Pesos (P5,000.00) and STERNLY WARNED that a repetition of the same or similar infractions will be dealt with more severely. SO ORDERED.

marriage outside his courts jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability.[7] Considering that respondent Judges jurisdiction covers the municipality of Sta. Margarita-Tarangan-Pagsanjan, Samar only, he was not clothed with authority to solemnize a marriage in the City of Calbayog.[8] Furthermore, from the nature of marriage, aside from the mandate that a judge should exercise extra care in the exercise of his authority and the performance of his duties in its solemnization, he is likewise commanded to observe extra precautions to ensure that the event is properly documented in accordance with Article 23 of the Family Code which states in no uncertain terms that ART. 23. - It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties, the original of the marriage contract referred to in Article 6 and to send the

duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the original of the marriage license and, in proper cases,

the affidavit of the contracting party regarding the solemnization of the marriage in a place other than those mentioned in Article 8. (Italics supplied) In view of the foregoing, we agree with the evaluation of the OCA that respondent Judge was less than conscientious in handling official documents. A judge is charged with exercising extra care in ensuring that the records of the cases and official documents in his custody are intact. There is no justification for missing records save fortuitous events.[9] However, the records show that the loss was occasioned by carelessness on respondent Judges part. This Court reiterates that judges must adopt a system of record management and organize their dockets in order to bolster the prompt and efficient dispatch of business.[10] It is, in fact, incumbent upon him to devise an efficient recording and filing system in his court because he is after all the one directly responsible for the proper discharge of his official functions.[11] In the evaluation report, the OCA recommended that respondent Judge be fined Five Thousand Pesos (P5,000.00) and warned that a repetition of the same or similar acts will be dealt with more severely. This Court adopts the recommendation of the OCA.

6. Cosca vs Palaypayon Jr. JUVY N. COSCA, EDMUNDO B. PERALTA, RAMON C. SAMBO, and APOLLO A. VILLAMORA, complainants, vs. HON. LUCIO P. PALAYPAYON, JR., Presiding Judge, and NELIA B. ESMERALDA-BAROY, Clerk of Court II, both of the Municipal Trial Court of Tinambac, Camarines Sur, respondents. PER CURIAM, J.: Complainants Juvy N. Cosca, Edmundo B. Peralta, Ramon C. Sambo, and Apollo Villamora, are Stenographer I, Interpreter I, Clerk II, and Process Server, respectively, of the Municipal Trial Court of Tinambac, Camarines Sur. Respondents Judge Lucio P. Palaypayon, Jr. and Nelia B. Esmeralda-Baroy are respectively the Presiding Judge and Clerk of Court II of the same court. In an administrative complaint filed with the Office of the Court Administrator on October 5, 1992, herein respondents were charged with the following offenses, to wit: (1) illegal solemnization of marriage; (2) falsification of the monthly reports of cases; (3) bribery in consideration of an appointment in the court; (4) non-issuance of receipt for cash bond received; (5) infidelity in the custody of detained prisoners; and (6) requiring payment of filing fees from exempted entities. 1 Pursuant to a resolution issued by this Court respondents filed their respective Comments. 2 A Reply to Answers of Respondents was filed by complainants. 3 The case was thereafter referred to Executive Judge David C. Naval of the Regional Trial Court, Naga City, for investigation report and recommendation. The case was however transferred to First Assistant Executive Judge Antonio N. Gerona when Judge Naval inhibited himself for the reason that his wife is a cousin of respondent Judge Palaypayon, Jr. 4 The contending versions of the parties regarding the factual antecedents of this administrative matter, as culled from the records thereof, are set out under each particular charge against respondents. 1. Illegal solemnization of marriage Complainants allege that respondent judge solemnized marriages even without the requisite marriage license. Thus, the following couples were able to get married by the simple expedient of paying the marriage fees to respondent Baroy, despite the absence of a marriage license, viz.: Alano P. Abellano and Nelly Edralin, Francisco Selpo and Julieta Carrido, Eddie Terrobias and Maria Gacer, Renato Gamay and Maricris Belga, Arsenio Sabater and Margarita Nacario, and Sammy Bocaya and Gina Bismonte. As a consequence, their marriage contracts (Exhibits B, C, D, F, G, and A, respectively) did not reflect any marriage license number. In addition, respondent judge did not sign their marriage contracts and did not indicate the date of

solemnization, the reason being that he allegedly had to wait for the marriage license to be submitted by the parties which was usually several days after the ceremony. Indubitably, the marriage contracts were not filed with the local civil registrar. Complainant Ramon Sambo, who prepares the marriage contracts, called the attention of respondents to the lack of marriage licenses and its effect on the marriages involved, but the latter opted to proceed with the celebration of said marriages. Respondent Nelia Baroy claims that when she was appointed Clerk of Court II, the employees of the court were already hostile to her, especially complainant Ramon Sambo who told her that he was filing a protest against her appointment. She avers that it was only lately when she discovered that the court had a marriage Register which is in the custody of Sambo; that it was Sambo who failed to furnish the parties copies of the marriage contract and to register these with the local civil registrar; and that apparently Sambo kept these marriage contracts in preparation for this administrative case. Complainant Sambo, however, claims that all file copies of the marriage contracts were kept by respondent Baroy, but the latter insists that she had instructed Sambo to follow up the submission by the contracting parties of their marriage licenses as part of his duties but he failed to do so. Respondent Judge Palaypayon, Jr. contends that the marriage between Alano P. Abellano and Nelly Edralin falls under Article 34 of the Civil Code, hence it is exempt from the marriage license requirement; that he gave strict instructions to complainant Sambo to furnish the couple a copy of the marriage contract and to file the same with the civil registrar, but the latter failed to do so; that in order to solve the problem, the spouses subsequently formalized their marriage by securing a marriage license and executing their marriage contract, a copy of which was filed with the civil registrar; that the other five marriages alluded to in the administrative complaint were not illegally solemnized because the marriage contracts were not signed by him and they did not contain the date and place of marriage; that copies of these marriage contracts are in the custody of complainant Sambo; that the alleged marriage of Francisco Selpo and Julieta Carrido, Eddie Terrobias and Maria Emma Gaor, Renato Gamay and Maricris Belga, and of Arsenio Sabater and Margarita Nacario were not celebrated by him since he refused to solemnize them in the absence of a marriage license; that the marriage of Samy Bocaya and Gina Bismonte was celebrated even without the requisite license due to the insistence of the parties in order to avoid embarrassment to their guests but that, at any rate, he did not sign their marriage contract which remains unsigned up to the present. 2. Falsification of monthly report for July, 1991 regarding the

number of marriages solemnized and the number of documents notarized.

It is alleged that respondent judge made it appear that he solemnized seven (7) marriages in the month of July, 1992, when in truth he did not do so or at most those marriages were null and void; that respondents likewise made it appear that they have notarized only six (6) documents for July, 1992, but the Notarial Register will show that there were one hundred thirteen (113) documents which were notarized

during that month; and that respondents reported a notarial fee of only P18.50 for each document, although in fact they collected P20.00 therefor and failed to account for the difference. Respondent Baroy contends, however, that the marriage registry where all marriages celebrated by respondent judge are entered is under the exclusive control and custody of complainant Ramon Sambo, hence he is the only one who should be held responsible for the entries made therein; that the reported marriages are merely based on the payments made as solemnization fees which are in the custody of respondent Baroy. She further avers that it is Sambo who is likewise the custodian of the Notarial Register; that she cannot be held accountable for whatever alleged difference there is in the notarial fees because she is liable only for those payments tendered to her by Sambo himself; that the notarial fees she collects are duly covered by receipts; that of the P20.00 charged, P18.50 is remitted directly to the Supreme Court as part of the Judiciary Development Fund and P150 goes to the general fund of the Supreme Court which is paid to the Municipal Treasurer of Tinambac, Camarines Sur. Respondent theorizes that the discrepancies in the monthly report were manipulated by complainant Sambo considering that he is the one in charge of the preparation of the monthly report. Respondent Judge Palaypayon avers that the erroneous number of marriages celebrated was intentionally placed by complainant Sambo; that the number of marriages solemnized should not be based on solemnization fees paid for that month since not all the marriages paid for are solemnized in the same month. He claims that there were actually only six (6) documents notarized in the month of July, 1992 which tallied with the official receipts issued by the clerk of court; that it is Sambo who should be held accountable for any unreceipted payment for notarial fees because he is the one in charge of the Notarial Register; and that this case filed by complainant Sambo is merely in retaliation for his failure to be appointed as the clerk of court. Furthermore, respondent judge contends that he is not the one supervising or preparing the monthly report, and that he merely has the ministerial duty to sign the same.

Respondent judge contends that he endorsed all the applications for the position of clerk of court to the Supreme Court which has the sole authority over such appointments and that he had no hand in the appointment of respondent Baroy. He contends that the air-conditioning unit was bought from his co-respondent on installment basis on May 29, 1992, eight (8) months after Baroy had been appointed clerk of court. He claims that he would not be that naive to exhibit to the public as item which could not be defended as a matter of honor and prestige.

4. Cash bond issued without a receipt

It is alleged that in Criminal Case No. 5438, entitled "People vs. Mendeza, et al., "bondswoman Januaria Dacara was allowed by respondent judge to change her property bond to cash bond; that she paid the amount of P1,000.00 but was never issued a receipt therefor nor was it made to appear in the records that the bond has been paid; that despite the lapse of two years, the money was never returned to the bondswoman; and that it has not been shown that the money was turned over to the Municipal Treasurer of Tinambac. Respondent Baroy counters that the cash bond was deposited with the former clerk of court, then turned over to the acting clerk of court and, later, given to her under a corresponding receipt; that the cash bond is deposited with the bank; and that should the bondswoman desire to withdraw the same, she should follow the proper procedure therefor. Respondent judge contends that Criminal Case No. 5438 was archieved for failure of the bondsman to deliver the body of the accused in court despite notice; and that he has nothing to do with the payment of the cash bond as this is the duty of the clerk of court.

5. Infidelity in the custody of prisoners

Complainants contend that respondent judge usually got detention prisoners to work in his house, one of whom was Alex Alano, who is accused in Criminal Case No. 5647 for violation of the Dangerous Drugs Act; that while Alano was in the custody of respondent judge, the former escaped and was never recaptured; that in order to conceal this fact, the case was archived pursuant to an order issued by respondent judge dated April 6, 1992. Respondent judge denied the accusation and claims that he never employed detention prisoners and that he has adequate household help; and that he had to order the case archived because it had been pending for more than six (6) months and the accused therein remained at large.

3. Bribery in consideration of an appointment in the court

Complainants allege that because of the retirement of the clerk of court, respondent judge forwarded to the Supreme Court the applications of Rodel Abogado, Ramon Sambo, and Jessell Abiog. However, they were surprised when respondent Baroy reported for duty as clerk of court on October 21, 1991. They later found out that respondent Baroy was the one appointed because she gave a brand-new airconditioning unit to respondent judge. Respondent Baroy claims that when she was still in Naga City she purchased an airconditioning unit but when she was appointed clerk of court she had to transfer to Tinambac and, since she no longer needed the air conditioner, she decided to sell the same to respondent judge. The installation and use thereof by the latter in his office was with the consent of the Mayor of Tinambac.

6. Unlawful collection of docket fees

Finally, respondents are charged with collecting docket fees from the Rural Bank of Tinambac, Camarines Sur, Inc. although such entity is exempt by law from the payment of said fees, and that while the corresponding receipt was issued, respondent Baroy failed to remit the amount to the Supreme Court and, instead, she deposited the same in her personal account. Respondents Baroy contends that it was Judge-Designate Felimon Montenegro (because respondent judge was on sick leave) who instructed her to demand payment of docket fees from said rural bank; that the bank issued a check for P800.00; that she was not allowed by the Philippine National Bank to encash the check and, instead, was instructed to deposit the same in any bank account for clearing; that respondent deposited the same in her account; and that after the check was cleared, she remitted P400.00 to the Supreme Court and the other P400.00 was paid to the Municipal Treasurer of Tinambac. On the basis of the foregoing contentions, First Vice-Executive Judge Antonio N. Gerona prepared and submitted to us his Report and Recommendations dated May 20, 1994, together with the administrative matter. We have perspicaciously reviewed the same and we are favorably impressed by the thorough and exhaustive presentation and analysis of the facts and evidence in said report. We commend the investigating judge for his industry and perspicacity reflected by his findings in said report which, being amply substantiated by the evidence and supported by logical illations, we hereby approve and hereunder reproduce at length the material portions thereof. xxx xxx xxx The first charge against the respondents is illegal solemnization of marriage. Judge Palaypayon is charged with having solemnized without a marriage license the marriage of Sammy Bocaya and Gina Besmonte (Exh. A). Alano Abellano and Nelly Edralin (Exh. B), Francisco Selpo and Julieta Carrido (Exh. C), Eddie Terrobias and Maria Emma Gaor (Exh. D), Renato Gamay and Maricris Belga (Exh. F) and Arsenio Sabater and Margarita Nacario (Exh. G). In all these aforementioned marriages, the blank space in the marriage contracts to show the number of the marriage was solemnized as required by Article 22 of the Family Code were not filled up. While the contracting parties and their witnesses signed their marriage contracts, Judge Palaypayon did not affix his signature in the marriage contracts, except that of Abellano and Edralin when Judge Palaypayon signed their marriage certificate as he claims that he solemnized this marriage under Article 34 of the Family Code of the Philippines. In said marriages the contracting parties were not furnished a copy of their marriage contract and the Local Civil Registrar was not sent either a copy of the marriage certificate as required by Article 23 of the Family Code.

The marriage of Bocaya and Besmonte is shown to have been solemnized by Judge Palaypayon without a marriage license. The testimonies of Bocay himself and Pompeo Ariola, one of the witnesses of the marriage of Bocaya and Besmonte, and the photographs taken when Judge Palaypayon solemnized their marriage (Exhs. K-3 to K-9) sufficiently show that Judge Palaypayon really solemnized their marriage. Bocaya declared that they were advised by Judge Palaypayon to return after ten (10) days after their marriage was solemnized and bring with them their marriage license. In the meantime, they already started living together as husband and wife believing that the formal requisites of marriage were complied with. Judge Palaypayon denied that he solemnized the marriage of Bocaya and Besmonte because the parties allegedly did not have a marriage license. He declared that in fact he did not sign the marriage certificate, there was no date stated on it and both the parties and the Local Civil Registrar did not have a copy of the marriage certificate. With respect to the photographs which show that he solemnized the marriage of Bocaya and Besmonte, Judge Palaypayon explains that they merely show as if he was solemnizing the marriage. It was actually a simulated solemnization of marriage and not a real one. This happened because of the pleading of the mother of one of the contracting parties that he consent to be photographed to show that as if he was solemnizing the marriage as he was told that the food for the wedding reception was already prepared, visitors were already invited and the place of the parties where the reception would be held was more than twenty (20) kilometers away from the poblacion of Tinambac. The denial made by Judge Palaypayon is difficult to believe. The fact alone that he did not sign the marriage certificate or contract, the same did not bear a date and the parties and the Local Civil Registrar were not furnished a copy of the marriage certificate, do not by themselves show that he did not solemnize the marriage. His uncorroborated testimony cannot prevail over the testimony of Bocaya and Ariola who also declared, among others, that Bocaya and his bride were advised by Judge Palaypayon to return after ten (10) days with their marriage license and whose credibility had not been impeached. The pictures taken also from the start of the wedding ceremony up to the signing of the marriage certificate in front of Judge Palaypayon and on his table (Exhs. K-3, K-3-a, K-3-b, K-3-c, K-4, K4-a, K-4-b, K-4-c, K-4-d, K-5, K-5-a, K-5-b, K-6, K-7, K-8, K-8-a and K-9), cannot

possibly be just to show a simulated solemnization of marriage. One or two pictures may convince a person of the explanation of Judge Palaypayon, but not all those pictures. Besides, as a judge it is very difficult to believe that Judge Palaypayon would allows himself to be photographed as if he was solemnizing a marriage on a mere pleading of a person whom he did not even know for the alleged reasons given. It would be highly improper and unbecoming of him to allow himself to be used as an instrument of deceit by making it appear that Bocaya and Besmonte were married by him when in truth and in fact he did not solemnize their marriage. With respect to the marriage of Abellano and Edralin (Exh. B), Judge Palaypayon admitted that he solemnized their marriage, but he claims that it was under Article 34 of the Family Code, so a marriage license was not required. The contracting parties here executed a joint affidavit that they have been living together as husband and wife for almost six (6) years already (Exh. 12; Exh. AA). In their marriage contract which did not bear any date either when it was solemnized, it was stated that Abellano was only eighteen (18) years, two (2) months and seven (7) days old. If he and Edralin had been living together as husband and wife for almost six (6) years already before they got married as they stated in their joint affidavit, Abellano must ha(ve) been less than thirteen (13) years old when he started living with Edralin as his wife and this is hard to believe. Judge Palaypayon should ha(ve) been aware of this when he solemnized their marriage as it was his duty to ascertain the qualification of the contracting parties who might ha(ve) executed a false joint affidavit in order to have an instant marriage by avoiding the marriage license requirement. On May 23, 1992, however, after this case was already filed, Judge Palaypayon married again Abellano and Edralin, this time with a marriage license (Exh. BB). The explanation given by Judge Palaypayon why he solemnized the marriage of the same couple for the second time is that he did not consider the first marriage he solemnized under Article 34 of the Family Code as (a) marriage at all because complainant Ramon Sambo did not follow his instruction that the date should be placed in the marriage certificate to show when he solemnized the marriage and that the contracting parties were not furnished a copy of their marriage certificate. This act of Judge Palaypayon of solemnizing the marriage of Abellano and Edralin for the second time with a marriage license

already only gave rise to the suspicion that the first time he solemnized the marriage it was only made to appear that it was solemnized under exceptional character as there was not marriage license and Judge Palaypayon had already signed the marriage certificate. If it was true that he solemnized the first marriage under exceptional character where a marriage license was not required, why did he already require the parties to have a marriage license when he solemnized their marriage for the second time? The explanation of Judge Palaypayon that the first marriage of Abellano and Edralin was not a marriage at all as the marriage certificate did not state the date when the marriage was solemnized and that the contracting parties were not furnished a copy of their marriage certificate, is not well taken as they are not any of those grounds under Article(s) 35, 36, 37 and 38 of the Family Code which declare a marriage void from the beginning. Even if no one, however, received a copy of the marriage certificate, the marriage is still valid (Jones vs. H(o)rtiguela, 64 Phil. 179). Judge Palaypayon cannot just absolve himself from responsibility by blaming his personnel. They are not the guardian(s) of his official function and under Article 23 of the Family Code it is his duty to furnish the contracting parties (a) copy of their marriage contract. With respect to the marriage of Francisco Selpo and Julieta Carrido (Exh. C), and Arsenio Sabater and Margarita Nacario (Exh. G), Selpo and Carrido and Sabater and Nacarcio executed joint affidavits that Judge Palaypayon did not solemnize their marriage (Exh. 13-A and Exh. 1). Both Carrido and Nacario testified for the respondents that actually Judge Palaypayon did not solemnize their marriage as they did not have a marriage license. On crossexamination, however, both admitted that they did not know who prepared their affidavits. They were just told, Carrido by a certain Charito Palaypayon, and Nacario by a certain Kagawad Encinas, to just go to the Municipal building and sign their joint affidavits there which were already prepared before the Municipal Mayor of Tinambac, Camarines Sur. With respect to the marriage of Renato Gamay and Maricris Belga (Exh. f), their marriage contract was signed by them and by their two (2) witnesses, Atty. Elmer Brioso and respondent Baroy (Exhs. F-1 and F-2). Like the other aforementioned marriages, the solemnization fee was also paid as shown by a receipt dated June 7, 1992 and signed by respondent Baroy (Exh. F-4). Judge Palaypayon also denied having solemnized the marriage of Gamay and Belga allegedly because there was no marriage license. On her part, respondent Baroy at first denied that the marriage was

solemnized. When she was asked, however, why did she sign the marriage contract as a witness she answered that she thought the marriage was already solemnized (TSN, p. 14; 10-28-93). Respondent Baroy was, and is, the clerk of court of Judge Palaypayon. She signed the marriage contract of Gamay and Belga as one of the two principal sponsors. Yet, she wanted to give the impression that she did not even know that the marriage was solemnized by Judge Palaypayon. This is found very difficult to believe. Judge Palaypayon made the same denial of having solemnized also the marriage of Terrobias and Gaor (Exh. D). The contracting parties and their witnesses also signed the marriage contract and paid the solemnization fee, but Judge Palaypayon allegedly did not solemnize their marriage due to lack of marriage license. Judge Palaypayon submitted the affidavit of William Medina, Vice-Mayor of Tinambac, to corroborate his testimony (Exh. 14). Medina, however, did not testify in this case and so his affidavit has no probative value. Judge Palaypayon testified that his procedure and practice have been that before the contracting parties and their witnesses enter his chamber in order to get married, he already required complainant Ramon Sambo to whom he assigned the task of preparing the marriage contract, to already let the parties and their witnesses sign their marriage contracts, as what happened to Gamay and Belga, and Terrobias and Gaor, among others. His purpose was to save his precious time as he has been solemnizing marriages at the rate of three (3) to four (4) times everyday (TSN, p. 12; 2-1-94). This alleged practice and procedure, if true, is highly improper and irregular, if not illegal, because the contracting parties are supposed to be first asked by the solemnizing officer and declare that they take each other as husband and wife before the solemnizing officer in the presence of at least two (2) witnesses before they are supposed to sign their marriage contracts (Art. 6, Family Code). The uncorroborated testimony, however, of Judge Palaypayon as to his alleged practice and procedure before solemnizing a marriage, is not true as shown by the picture taken during the wedding of Bocaya and Besmonte (Exhs. K-3 to K-9) and by the testimony of respondent Baroy herself who declared that the practice of Judge Palaypayon ha(s) been to let the contracting parties and their witnesses sign the marriage contract only after Judge Palaypayon

has solemnized 10-28-93).

their

marriage

(TSN,

p.

53;

Judge Palaypayon did not present any evidence to show also that he was really solemnizing three (3) to four (4) marriages everyday. On the contrary his monthly report of cases for July, 1992 shows that his court had only twenty-seven (27) pending cases and he solemnized only seven (7) marriages for the whole month (Exh. E). His monthly report of cases for September, 1992 shows also that he solemnized only four (4) marriages during the whole month (Exh. 7). In this first charge of having illegally solemnized marriages, respondent Judge Palaypayon has presented and marked in evidence several marriage contracts of other persons, affidavits of persons and certification issued by the Local Civil Registrar (Exhs. 12-B to 12-H). These persons who executed affidavits, however, did not testify in this case. Besides, the marriage contracts and certification mentioned are immaterial as Judge Palaypayon is not charged of having solemnized these marriages illegally also. He is not charged that the marriages he solemnized were all illegal. The second charge against herein respondents, that of having falsified the monthly report of cases submitted to the Supreme Court and not stating in the monthly report the actual number of documents notarized and issuing the corresponding receipts of the notarial fees, have been sufficiently proven by the complainants insofar as the monthly report of cases for July and September, 1992 are concerned. The monthly report of cases of the MTC of Tinambac, Camarines Sur for July, 1992 both signed by the respondents, show that for said month there were six (6) documents notarized by Judge Palaypayon in his capacity as Ex-Officio Notary Public (Exhs. H to H-1-b). The notarial register of the MTC of Tinambac, Camarines Sur, however, shows that there were actually one hundred thirteen (113) documents notarized by Judge Palaypayon for the said month (Exhs. Q to Q-45). Judge Palaypayon claims that there was no falsification of the monthly report of cases for July, 1992 because there were only six (6) notarized documents that were paid (for) as shown by official receipts. He did not, however, present evidence of the alleged official receipts showing that the notarial fee for the six (6) documetns were paid. Besides, the monthly report of cases with respect to the number of documents notarized should not be based on how many notarized documents were paid of the notarial fees,

but the number of documents placed or recorded in the notarial register. Judge Palaypayon admitted that he was not personally verifying and checking anymore the correctness of the monthly reports because he relies on his co-respondent who is the Clerk of Court and whom he has assumed to have checked and verified the records. He merely signs the monthly report when it is already signed by respondent Baroy. The explanation of Judge Palaypayon is not well taken because he is required to have close supervision in the preparation of the monthly report of cases of which he certifies as to their correctness. As a judge he is personally responsible for the proper discharge of his functions (The Phil. Trial Lawyer's Asso. Inc. vs. Agana, Sr., 102 SCRA 517). In Nidera vs. Lazaro, 174 SCRA 581, it was held that "A judge cannot take refuge behind the inefficiency or mismanagement of his court personnel." On the part of respondent Baroy, she puts the blame of the falsification of the monthly report of cases on complainant Sambo whom she allegedly assigned to prepare not only the monthly report of cases, but the preparation and custody of marriage contracts, notarized documents and the notarial register. By her own admission she has assigned to complainant Sambo duties she was supposed to perform, yet according to her she never bother(ed) to check the notarial register of the court to find out the number of documents notarized in a month (TSN, p. 30; 11-23-93). Assuming that respondent Baroy assigned the preparation of the monthly report of cases to Sambo, which was denied by the latter as he claims that he only typed the monthly report based on the data given to him by her, still it is her duty to verify and check whether the report is correct. The explanation of respondent Baroy that Sambo was the one in custody of marriage contracts, notarized documents and notarial register, among other things, is not acceptable not only because as clerk of court she was supposed to be in custody, control and supervision of all court records including documents and other properties of the court (p. 32, Manual for Clerks of Court), but she herself admitted that from January, 1992 she was already in full control of all the records of the court including receipts (TSN, p. 11; 11-23-93). The evidence adduced in this cases in connection with the charge of falsification, however, also shows that respondent Baroy did not

account for what happened to the notarial fees received for those documents notarized during the month of July and September, 1992. The evidence adduced in this case also sufficiently show that she received cash bond deposits and she did not deposit them to a bank or to the Municipal Treasurer; and that she only issued temporary receipts for said cash bond deposits. For July, 1992 there were only six (6) documents reported to have been notarized by Judge Palaypayon although the documents notarized for said month were actually one hundred thirteen (113) as recorded in the notarial register. For September, 1992, there were only five (5) documents reported as notarized for that month, though the notarial register show(s) that there were fifty-six (56) documents actually notarized. The fee for each document notarized as appearing in the notarial register was P18.50. Respondent Baroy and Sambo declared that what was actually being charged was P20.00. Respondent Baroy declared that P18.50 went to the Supreme Court and P1.50 was being turned over to the Municipal Treasurer. Baroy, however, did not present any evidence to show that she really sent to the Supreme Court the notarial fees of P18.50 for each document notarized and to the Municipal Treasurer the additional notarial fee of P1.50. This should be fully accounted for considering that Baroy herself declared that some notarial fees were allowed by her at her own discretion to be paid later. Similarly, the solemnization fees have not been accounted for by Baroy considering that she admitted that even (i)n those instances where the marriages were not solemnized due to lack of marriage license the solemnization fees were not returned anymore, unless the contracting parties made a demand for their return. Judge Palaypayon declared that he did not know of any instance when solemnization fee was returned when the marriage was not solemnized due to lack of marriage license. Respondent Baroy also claims that Ramon Sambo did not turn over to her some of the notarial fees. This is difficult to believe. It was not only because Sambo vehemently denied it, but the minutes of the conference of the personnel of the MTC of Tinambac dated January 20, 1992 shows that on that date Baroy informed the personnel of the court that she was taking over the functions she assigned to Sambo, particularly the collection of legal fees (Exh. 7). The notarial fees she claims that Sambo did not turn over to her were for those documents notarized (i)n July and September, 1992 already. Besides there never was any demand she made for Sambo to turn over some notarial fees supposedly in his possession. Neither was there any memorandum she issued on this matter, in spite of the fact that she has been holding meetings and issuing

memoranda to the personnel of the court (Exhs. V, W, FF, FF-1, FF-2, FF-3; Exhs. 4-A (supplement(s), 5-8, 6-S, 7-S and 8-S). It is admitted by respondent Baroy that on October 29, 1991 a cash bond deposit of a certain Dacara in the amount of One Thousand (P1,000.00) Pesos was turned over to her after she assumed office and for this cash bond she issued only a temporary receipt (Exh. Y). She did not deposit this cash bond in any bank or to the Municipal Treasurer. She just kept it in her own cash box on the alleged ground that the parties in that case where the cash bond was deposited informed her that they would settle the case amicably. Respondent Baroy declared that she finally deposited the aforementioned cash bond of One Thousand (P1,000.00) Pesos with the Land Bank of the Philippines (LBP) in February, 1993, after this administrative case was already filed (TSN, pp. 27-28; 12-2293). The Pass Book, however, shows that actually Baroy opened an account with the LBP, Naga Branch, only on March 26, 1993 when she deposited an amount of Two Thousand (P2,000.00) Pesos (Exhs. 8 to 8-1-a). She claims that One Thousand (P1,000.000) Pesos of the initial deposit was the cash bond of Dacara. If it were true, it was only after keeping to herself the cash bond of One Thousand (P1,000.00) Pesos for around one year and five months when she finally deposited it because of the filing of this case. On April 29, 1993, or only one month and two days after she finally deposited the One Thousand (P1,000.00) Pesos cash bond of Dacara, she withdrew it from the bank without any authority or order from the court. It was only on July 23, 1993, or after almost three (3) months after she withdrew it, when she redeposited said cash bond (TSN, p. 6; 1-4-94). The evidence presented in this case also show that on February 28, 1993 respondent Baroy received also a cash bond of Three Thousand (P3,000.00) Pesos from a certain Alfredo Seprones in Crim. Case No. 5180. For this cash bond deposit, respondent Baroy issued only an annumbered temporary receipt (Exh. X and X-1). Again Baroy just kept this Three Thousand (P3,000.00) Pesos cash bond to herself. She did not deposit it either (in) a bank or (with) the Municipal Treasurer. Her explanation was that the parties in Crim. Case No. 5180 informed her that they would settle the case amicably. It was on April 26, 1993, or almost two months later when Judge Palaypayon issued an order for the release of said cash bond (Exh. 7). Respondent Baroy also admitted that since she assumed office on October 21, 1991 she used to issue temporary receipt only for cash

bond deposits and other payments and collections she received. She further admitted that some of these temporary receipts she issued she failed to place the number of the receipts such as that receipt marked Exhibit X (TSN, p. 35; 11-23-93). Baroy claims that she did not know that she had to use the official receipts of the Supreme Court. It was only from February, 1993, after this case was already filed, when she only started issuing official receipts. The next charge against the respondents is that in order to be appointed Clerk of Court, Baroy gave Judge Palaypayon an air conditioner as a gift. The evidence adduced with respect to this charge, show that on August 24, 1991 Baroy bought an air conditioner for the sum of Seventeen Thousand Six Hundred (P17,600.00) Pesos (Exhs. I and I-1). The same was paid partly in cash and in check (Exhs. I-2 and I-3). When the air conditioner was brought to court in order to be installed in the chamber of Judge Palaypayon, it was still placed in the same box when it was bought and was not used yet. The respondents claim that Baroy sold it to Judge Palaypayon for Twenty Thousand (P20,00.00) Pesos on installment basis with a down payment of Five Thousand (P5,000.00) Pesos and as proof thereof the respondents presented a typewritten receipt dated May 29, 1993 (Exh. 22). The receipt was signed by both respondents and by the Municipal Mayor of Tinambac, Camarines Sur and another person as witness. The alleged sale between respondents is not beyond suspicion. It was bought by Baroy at a time when she was applying for the vacant position of Clerk of Court (to) which she was eventually appointed in October, 1991. From the time she bought the air conditioner on August 24, 1991 until it was installed in the office of Judge Palaypayon it was not used yet. The sale to Judge Palaypayon was only evidenced by a mere typewritten receipt dated May 29, 1992 when this case was already filed. The receipt could have been easily prepared. The Municipal Mayor of Tinambac who signed in the receipt as a witness did not testify in this case. The sale is between the Clerk of Court and the Judge of the same court. All these circumstances give rise to suspicion of at least impropriety. Judges should avoid such action as would subject (them) to suspicion and (their) conduct should be free from the appearance of impropriety (Jaagueta vs. Boncasos, 60 SCRA 27). With respect to the charge that Judge Palaypayon received a cash bond deposit of One Thousand (P1,000.00) Pesos from Januaria Dacara without issuing a receipt, Dacara executed an affidavit regarding this charge that Judge Palaypayon did not give her a receipt for the P1,000.00 cash bond she deposited (Exh. N). Her

affidavit, however, has no probative value as she did not show that this cash bond of P1,000.00 found its way into the hands of respondent Baroy who issued only a temporary receipt for it and this has been discussed earlier. Another charge against Judge Palaypayon is the getting of detention prisoners to work in his house and one of them escaped while in his custody and was never found again. To hide this fact, the case against said accused was ordered archived by Judge Palaypayon. The evidence adduced with respect to this particular charge, show that in Crim. Case No. 5647 entitled People vs. Stephen Kalaw, Alex Alano and Allan Adupe, accused Alex Alano and Allan Adupe were arrested on April 12, 1991 and placed in the municipal jail of Tinambac, Camarines Sur (Exhs. 0, 0-1, 0-2 and 03; Exh. 25). The evidence presented that Alex Alano was taken by Judge Palaypayon from the municipal jail where said accused was confined and that he escaped while in custody of Judge Palaypayon is solely testimonial, particularly that of David Ortiz, a former utility worker of the MTC of Tinambac. Herein investigator finds said evidence not sufficient. The complainants should have presented records from the police of Tinambac to show that Judge Palaypayon took out from the municipal jail Alex Alano where he was under detention and said accused escaped while in the custody of Judge Palaypayon. The order, however, of Judge Palaypayon dated April 6, 1992 in Crim. Case No. 5047 archiving said case appears to be without basis. The order states: "this case was filed on April 12, 1991 and the records show that the warrant of arrest (was) issued against the accused, but up to this moment there is no return of service for the warrant of arrest issued against said accused" (Exh. 0-4). The records of said case, however, show that in fact there was a return of the service of the warrant of arrest dated April 12, 1991 showing that Alano and Adupe were arrested (Exh. 0-3). Judge Palaypayon explained that his order dated April 6, 1992 archiving Crim. Case No. 5047 referred only to one of the accused who remained at large. The explanation cannot be accepted because the two other accused, Alano and Adupe, were arrested. Judge Palaypayon should have issued an order for the arrest of Adupe who allegedly jumped bail, but Alano was supposed to be confined in the municipal jail if his claim is true that he did not take custody of Alano. The explanation also of Judge Palaypayon why he ordered the case archived was because he heard from the police that Alano escaped. This explanation is not acceptable either. He should ha(ve) set the

case and if the police failed to bring to court Alano, the former should have been required to explain in writing why Alano was not brought to court. If the explanation was that Alano escaped from jail, he should have issued an order for his arrest. It is only later on when he could not be arrested when the case should have been ordered archived. The order archiving this case for the reason that he only heard that Alano escaped is another circumstance which gave rise to a suspicion that Alano might have really escaped while in his custody only that the complainants could not present records or other documentary evidence to prove the same. The last charge against the respondents is that they collected filing fees on collection cases filed by the Rural Bank of Tinambac, Camarines Sur which was supposed to be exempted in paying filing fees under existing laws and that the filing fees received was deposited by respondent Baroy in her personal account in the bank. The evidence presented show that on February 4, 1992 the Rural Bank of Tinambac filed ten (10) civil cases for collection against farmers and it paid the total amount of Four Hundred (P400.00) Pesos representing filing fees. The complainants cited Section 14 of Republic Act 720, as amended, which exempts Rural Banks (from) the payment of filing fees on collection of sums of money cases filed against farmers on loans they obtained. Judge Palaypayon, however, had nothing to do with the payment of the filing fees of the Rural Bank of Tinambac as it was respondent Baroy who received them and besides, on February 4, 1992, he was on sick leave. On her part Baroy claims that the bank paid voluntarily the filing fees. The records, however, shows that respondent Baroy sent a letter to the manager of the bank dated January 28, 1992 to the effect that if the bank would not pay she would submit all Rural Bank cases for dismissal (Annex 6, comment by respondent Baroy). Respondent Baroy should have checked whether the Rural Bank of Tinambac was really exempt from the payment of filing fees pursuant to Republic Act 720, as amended, instead of threatening the bank to have its cases be submitted to the court in order to have them dismissed. Here the payment of the filing fees was made on February 4, 1992, but the Four Hundred (P400.00) Pesos was only turned over to the Municipal Treasurer on March 12, 1992. Here, there is an undue delay again in complying with her obligation as accountable officer. In view of the foregoing findings that the evidence presented by the complainants sufficiently show that respondent Judge Lucio P. Palaypayon, Jr. had solemnized marriages, particularly that of Sammy Bocaya and Gina Besmonte, without a marriage license,

and that it having been shown that he did not comply with his duty in closely supervising his clerk of court in the preparation of the monthly report of cases being submitted to the Supreme Court, particularly for the months of July and September, 1992 where it has been proven that the reports for said two (2) months were falsified with respect to the number of documents notarized, it is respectfully recommended that he be imposed a fine of TEN THOUSAND (P10,000.00) PESOS with a warning that the same or similar offenses will be more severely dealt with. The fact that Judge Palaypayon did not sign the marriage contracts or certificates of those marriages he solemnized without a marriage license, there were no dates placed in the marriage contracts to show when they were solemnized, the contracting parties were not furnished their marriage contracts and the Local Civil Registrar was not being sent any copy of the marriage contract, will not absolve him from liability. By solemnizing alone a marriage without a marriage license he as the solemnizing officer is the one responsible for the irregularity in not complying (with) the formal requ(i)sites of marriage and under Article 4(3) of the Family Code of the Philippines, he shall be civilly, criminally and administratively liable. Judge Palaypayon is likewise liable for his negligence or failure to comply with his duty of closely supervising his clerk of court in the performance of the latter's duties and functions, particularly the preparation of the monthly report of cases (Bendesula vs. Laya, 58 SCRA 16). His explanation that he only signed the monthly report of cases only when his clerk of court already signed the same, cannot be accepted. It is his duty to closely supervise her, to check and verify the records if the monthly reports prepared by his clerk of court do not contain false statements. It was held that "A judge cannot take refuge behind the inefficiency or incompetence of court personnel (Nidua vs. Lazaro, 174 SCRA 158). In view also of the foregoing finding that respondent Nelia Esmeralda-Baroy, the clerk of court of the Municipal Trial Court of Tinambac, Camarines Sur, has been found to have falsified the monthly report of cases for the months of July and September, 1992 with respect to the number of documents notarized, for having failed to account (for) the notarial fees she received for said two (2) months period; for having failed to account (for) the solemnization fees of those marriages allegedly not solemnized, but the solemnization fees were not returned; for unauthorized issuance of temporary receipts, some of which were issued unnumbered; for receiving the cash bond of Dacara on October 29, 1991 in the amount of One Thousand (P1,000.00) Pesos for which she issued only a temporary receipt (Exh. Y) and for depositing it

with the Land Bank of the Philippines only on March 26, 1993, or after one year and five months in her possession and after this case was already filed; for withdrawing said cash bond of One Thousand (P1,000.00) Pesos on April 29, 1993 without any court order or authority and redepositing it only on July 23, 1993; for receiving a cash bond of Three Thousand (P3,000.00) Pesos from Alfredo Seprones in Crim. Case No. 5180, MTC, Tinambac, Camarines Sur, for which she issued only an unnumbered temporary receipt (Exhs. X and X-1) and for not depositing it with a bank or with the Municipal Treasurer until it was ordered released; and for requiring the Rural Bank of Tinambac, Camarines Sur to pay filing fees on February 4, 1992 for collection cases filed against farmers in the amount of Four Hundred (P400.00) Pesos, but turning over said amount to the Municipal Treasurer only on March 12, 1992, it is respectfully recommended that said respondent clerk of court Nelia Esmeralda-Baroy be dismissed from the service. It is provided that "Withdrawal of court deposits shall be by the clerk of court who shall issue official receipt to the provincial, city or municipal treasurer for the amount withdrawn. Court deposits cannot be withdrawn except by order of the court, . . . ." (Revised Manual of Instructions for Treasurers, Sec. 183, 184 and 626; p. 127, Manual for Clerks of Court). A circular also provides that the Clerks of Court shall immediately issue an official receipt upon receipt of deposits from party litigants and thereafter deposit intact the collection with the municipal, city or provincial treasurer and their deposits, can only be withdrawn upon proper receipt and order of the Court (DOJ Circular No. 52, 26 April 1968; p. 136, Manual for Clerks of Court). Supreme Court Memorandum Circular No. 5, 25 November 1982, also provides that "all collections of funds of fiduciary character including rental deposits, shall be deposited immediately by the clerk of court concerned upon receipt thereof with City, Municipal or Provincial Treasurer where his court is located" and that "no withdrawal of any of such deposits shall be made except upon lawful order of the court exercising jurisdiction over the subject matter. Respondent Baroy had either failed to comply with the foregoing circulars, or deliberately disregarded, or even intentionally violated them. By her conduct, she demonstrated her callous unconcern for the obligations and responsibility of her duties and functions as a clerk of court and accountable officer. The gross neglect of her duties shown by her constitute(s) a serious misconduct which warrant(s) her removal from office. In the case of Belen P. Ferriola vs. Norma Hiam, Clerk of Court, MTCC, Branch I, Batangas City; A.M. No. P-90-414; August 9, 1993, it was held that "The clerk of court is not authorized to keep funds in his/her custody; monies received by him/her shall be deposited immediately upon receipt thereof with the City, Municipal or Provincial Treasurer. Supreme

Court Circular Nos. 5 dated November 25, 1982 and 5-A dated December 3, 1982. Respondent Hiam's failure to remit the cash bail bonds and fine she collected constitutes serious misconduct and her misappropriation of said funds constitutes dishonesty. "Respondent Norma Hiam was found guilty of dishonesty and serious misconduct prejudicial to the best interest of the service and (the Court) ordered her immediate dismissal (from) the service. xxx xxx xxx We here emphasize once again our adjuration that the conduct and behavior of everyone connected with an office charged with the dispensation of justice, from the presiding judge to the lowliest clerk, should be circumscribed with the heavy burden of responsibility. His conduct, at all times, must not only be characterized by propriety and decorum but, above all else, must be beyond suspicion. Every employee should be an example of integrity, uprightness and honesty. 5 Integrity in a judicial office is more than a virtue, it is a necessity. 6 It applies, without qualification as to rank or position, from the judge to the least of its personnel, they being standard-bearers of the exacting norms of ethics and morality imposed upon a Court of justice. On the charge regarding illegal marriages the Family Code pertinently provides that the formal requisites of marriage are, inter alia, a valid marriage license except in the cases provided for therein. 7 Complementarily, it declares that the absence of any of the essential or formal requisites shall generally render the marriage void ab initio and that, while an irregularity in the formal requisites shall not affect the validity of the marriage, the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. 8 The civil aspect is addressed to the contracting parties and those affected by the illegal marriages, and what we are providing for herein pertains to the administrative liability of respondents, all without prejudice to their criminal responsibility. The Revised Penal Code provides that "(p)riests or ministers of any religious denomination or sect, or civil authorities who shall perform or authorize any illegal marriage ceremony shall be punished in accordance with the provisions of the Marriage Law." 9 This is of course, within the province of the prosecutorial agencies of the Government. The recommendation with respect to the administrative sanction to be imposed on respondent judge should, therefore, be modified. For one, with respect to the charge of illegal solemnization of marriages, it does appear that he had not taken to heart, but actually trifled with, the law's concern for the institution of marriage and the legal effects flowing from civil status. This, and his undeniable participation in the other offenses charged as hereinbefore narrated in detail, approximate such serious degree of misconduct and of gross negligence in the performance of judicial duties as to ineludibly require a higher penalty.

WHEREFORE, the Court hereby imposes a FINE of P20,000.00 on respondent Judge Lucio P. Palaypayon. Jr., with a stern warning that any repetition of the same or similar offenses in the future will definitely be severely dealt with. Respondent Nelia Esmeralda-Baroy is hereby DISMISSED from the service, with forfeiture of all retirement benefits and with prejudice to employment in any branch, agency or instrumentality of the Government, including government-owned or controlled corporations. Let copies of this decision be spread on their records and furnished to the Office of the Ombudsman for appropriate action. SO ORDERED.

7. Navarro vs Domagtoy RODOLFO G. NAVARRO, complainant, DOMAGTOY, respondent. DECISION ROMERO, J.: The complainant in this administrative case is the Municipal Mayor of Dapa, Surigao del Norte, Rodolfo G. Navarro. He has submitted evidence in relation to two specific acts committed by respondent Municipal Circuit Trial Court Judge Hernando Domagtoy, which, he contends, exhibits gross misconduct as well as inefficiency in office and ignorance of the law. First, on September 27, 1994, respondent judge solemnized the wedding between Gaspar A. Tagadan and Arlyn F. Borga, despite the knowledge that the groom is merely separated from his first wife. Second, it is alleged that he performed a marriage ceremony between Floriano Dador Sumaylo and Gemma G. del Rosario outside his court's jurisdiction on October 27, 1994. Respondent judge holds office and has jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. The wedding was solemnized at the respondent judge's residence in the municipality of Dapa, which does not fall within his jurisdictional area of the municipalities of Sta. Monica and Burgos, located some 40 to 45 kilometers away from the municipality of Dapa, Surigao del Norte. In his letter-comment to the Office of the Court Administrator, respondent judge avers that the office and name of the Municipal Mayor of Dapa have been used by someone else, who, as the mayor's "lackey," is overly concerned with his actuations both as judge and as a private person. The same person had earlier filed Administrative Matter No. 94-980-MTC, which was dismissed for lack of merit on September 15, 1994, and Administrative Matter No. OCA-IPI-95-16, "Antonio Adapon v. Judge Hernando C. Domagtoy," which is still pending. In relation to the charges against him, respondent judge seeks exculpation from his act of having solemnized the marriage between Gaspar Tagadan, a married man separated from his wife, and Arlyn F. Borga by stating that he merely relied on the Affidavit issued by the Municipal Trial Judge of Basey, Samar, confirming the fact that Mr. Tagadan and his first wife have not seen each other for almost seven years.[1] With respect to the second charge, he maintains that in solemnizing the marriage between Sumaylo and del Rosario, he did not violate Article 7, paragraph 1 of the Family Code which states that: "Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the court's jurisdiction; and that Article 8 thereof applies to the case in question. The complaint was not referred, as is usual, for investigation, since the pleadings submitted were considered sufficient for a resolution of the case.[2] Since the countercharges of sinister motives and fraud on the part of complainant have not been sufficiently proven, they will not be dwelt upon. The acts

complained of and respondent judge's answer thereto will suffice and can be objectively assessed by themselves to prove the latter's malfeasance.

vs. JUDGE

HERNANDO

C.

The certified true copy of the marriage contract between Gaspar Tagadan and Arlyn Borga states that Tagadan's civil status is "separated." Despite this declaration, the wedding ceremony was solemnized by respondent judge. He presented in evidence a joint affidavit by Maurecio A. Labado, Sr. and Eugenio Bullecer, subscribed and sworn to before Judge Demosthenes C. Duquilla, Municipal Trial Judge of Basey, Samar.[3]The affidavit was not issued by the latter judge, as claimed by respondent judge, but merely acknowledged before him. In their affidavit, the affiants stated that they knew Gaspar Tagadan to have been civilly married to Ida D. Pearanda in September 1983; that after thirteen years of cohabitation and having borne five children, Ida Pearanda left the conjugal dwelling in Valencia, Bukidnon and that she has not returned nor been heard of for almost seven years, thereby giving rise to the presumption that she is already dead. In effect, Judge Domagtoy maintains that the aforementioned joint affidavit is sufficient proof of Ida Pearanda's presumptive death, and ample reason for him to proceed with the marriage ceremony. We do not agree. Article 41 of the Family Code expressly provides: "A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Articles 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse." (Emphasis added.) There is nothing ambiguous or difficult to comprehend in this provision. In fact, the law is clear and simple. Even if the spouse present has a well-founded belief that the absent spouse was already dead, a summary proceeding for the declaration of presumptive death is necessary in order to contract a subsequent marriage, a mandatory requirement which has been precisely incorporated into the Family Code to discourage subsequent marriages where it is not proven that the previous marriage has been dissolved or a missing spouse is factually or presumptively dead, in accordance with pertinent provisions of law. In the case at bar, Gaspar Tagadan did not institute a summary proceeding for the declaration of his first wife's presumptive death. Absent this judicial declaration, he remains married to Ida Pearanda. Whether wittingly, or unwittingly, it was manifest error on the part of respondent judge to have accepted the joint affidavit submitted by the groom. Such neglect or ignorance of the law has resulted in a

bigamous, and therefore void, marriage. Under Article 35 of the Family Code, "The following marriage shall be void from the beginning: (4) Those bigamous x x x marriages not falling under Article 41." The second issue involves the solemnization of a marriage ceremony outside the court's jurisdiction, covered by Articles 7 and 8 of the Family Code, thus: "Art. 7. (1) xxx Marriage may be solemnized by: Any incumbent member of the judiciary within the court's jurisdiction; xxx xxx (Emphasis supplied.)

may not affect the validity of the marriage, may subject the officiating official to administrative liability.[5] Inasmuch as respondent judge's jurisdiction covers the municipalities of Sta. Monica and Burgos, he was not clothed with authority to solemnize a marriage in the municipality of Dapa, Surigao del Norte. By citing Article 8 and the exceptions therein as grounds for the exercise of his misplaced authority, respondent judge again demonstrated a lack of understanding of the basic principles of civil law. Accordingly, the Court finds respondent to have acted in gross ignorance of the law. The legal principles applicable in the cases brought to our attention are elementary and uncomplicated, prompting us to conclude that respondent's failure to apply them is due to a lack of comprehension of the law. The judiciary should be composed of persons who, if not experts, are at least, proficient in the law they are sworn to apply, more than the ordinary laymen. They should be skilled and competent in understanding and applying the law. It is imperative that they be conversant with basic legal principles like the ones involved in instant case.[6] It is not too much to expect them to know and apply the law intelligently.[7] Otherwise, the system of justice rests on a shaky foundation indeed, compounded by the errors committed by those not learned in the law. While magistrates may at times make mistakes in judgment, for which they are not penalized, the respondent judge exhibited ignorance of elementary provisions of law, in an area which has greatly prejudiced the status of married persons. The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous and void, there being a subsisting marriage between Gaspar Tagadan and Ida Pearanda. The Office of the Court Administrator recommends, in its Memorandum to the Court, a six-month suspension and a stern warning that a repetition of the same or similar acts will be dealt with more severely. Considering that one of the marriages in question resulted in a bigamous union and therefore void, and the other lacked the necessary authority of respondent judge, the Court adopts said recommendation. Respondent is advised to be more circumspect in applying the law and to cultivate a deeper understanding of the law. IN VIEW OF THE FOREGOING, respondent Judge Hernando C. Domagtoy is hereby SUSPENDED for a period of six (6) months and given a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely. SO ORDERED.

Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect." Respondent judge points to Article 8 and its exceptions as the justifications for his having solemnized the marriage between Floriano Sumaylo and Gemma del Rosario outside of his court's jurisdiction. As the aforequoted provision states, a marriage can be held outside of the judge's chambers or courtroom only in the following instances: (1) at the point of death, (2) in remote places in accordance with Article 29 or (3) upon request of both parties in writing in a sworn statement to this effect. There is no pretense that either Sumaylo or del Rosario was at the point of death or in a remote place. Moreover, the written request presented addressed to the respondent judge was made by only one party, Gemma del Rosario.[4] More importantly, the elementary principle underlying this provision is the authority of the solemnizing judge. Under Article 3, one of the formal requisites of marriage is the "authority of the solemnizing officer." Under Article 7, marriage may be solemnized by, among others, "any incumbent member of the judiciary within the court's jurisdiction." Article 8, which is a directory provision, refers only to the venue of the marriage ceremony and does not alter or qualify the authority of the solemnizing officer as provided in the preceding provision. Non-compliance herewith will not invalidate the marriage. A priest who is commissioned and allowed by his local ordinary to marry the faithful, is authorized to do so only within the area of the diocese or place allowed by his Bishop. An appellate court Justice or a Justice of this Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the venue, as long as the requisites of the law are complied with. However, judges who are appointed to specific jurisdictions, may officiate in weddings only within said areas and not beyond. Where a judge solemnizes a marriage outside his court's jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which while it

8. Aranes vs Judge Occiano MERCEDITA MATA ARAES, petitioner, vs. JUDGE OCCIANO, respondent. DECISION PUNO, J.: Petitioner Mercedita Mata Araes charges respondent judge with Gross Ignorance of the Law via a sworn Letter-Complaint dated 23 May 2001. Respondent is the Presiding Judge of the Municipal Trial Court of Balatan, Camarines Sur. Petitioner alleges that on 17 February 2000, respondent judge solemnized her marriage to her late groom Dominador B. Orobia without the requisite marriage license and at Nabua, Camarines Sur which is outside his territorial jurisdiction. They lived together as husband and wife on the strength of this marriage until her husband passed away. However, since the marriage was a nullity, petitioners right to inherit the vast properties left by Orobia was not recognized. She was likewise deprived of receiving the pensions of Orobia, a retired Commodore of the Philippine Navy. Petitioner prays that sanctions be imposed against respondent judge for his illegal acts and unethical misrepresentations which allegedly caused her so much hardships, embarrassment and sufferings. On 28 May 2001, the case was referred by the Office of the Chief Justice to then Acting Court Administrator Zenaida N. Elepao for appropriate action. On 8 June 2001, the Office of the Court Administrator required respondent judge to comment. In his Comment dated 5 July 2001, respondent judge averred that he was requested by a certain Juan Arroyo on 15 February 2000 to solemnize the marriage of the parties on 17 February 2000. Having been assured that all the documents to the marriage were complete, he agreed to solemnize the marriage in his sala at the Municipal Trial Court of Balatan, Camarines Sur. However, on 17 February 2000, Arroyo informed him that Orobia had a difficulty walking and could not stand the rigors of travelling to Balatan which is located almost 25 kilometers from his residence in Nabua. Arroyo then requested if respondent judge could solemnize the marriage in Nabua, to which request he acceded. Respondent judge further avers that before he started the ceremony, he carefully examined the documents submitted to him by petitioner. When he discovered that the parties did not possess the requisite marriage license, he refused to solemnize the marriage and suggested its resetting to another date. However, due to the earnest pleas of the parties, the influx of visitors, and the delivery of provisions for the occasion, he proceeded to solemnize the marriage out of human compassion. He also feared that if he reset the wedding, it might aggravate the physical condition of Orobia who just suffered from a stroke. After the solemnization, he reiterated the necessity for the marriage license and admonished the parties that their failure to give it would render the marriage void. Petitioner and Orobia assured respondent judge that they would give the license to him in the afternoon of that same day. SALVADOR M.

When they failed to comply, respondent judge followed it up with Arroyo but the latter only gave him the same reassurance that the marriage license would be delivered to his sala at the Municipal Trial Court of Balatan, Camarines Sur. Respondent judge vigorously denies that he told the contracting parties that their marriage is valid despite the absence of a marriage license. He attributes the hardships and embarrassment suffered by the petitioner as due to her own fault and negligence. On 12 September 2001, petitioner filed her Affidavit of Desistance dated 28 August 2001 with the Office of the Court Administrator. She attested that respondent judge initially refused to solemnize her marriage due to the want of a duly issued marriage license and that it was because of her prodding and reassurances that he eventually solemnized the same. She confessed that she filed this administrative case out of rage. However, after reading the Comment filed by respondent judge, she realized her own shortcomings and is now bothered by her conscience. Reviewing the records of the case, it appears that petitioner and Orobia filed their Application for Marriage License on 5 January 2000. It was stamped in this Application that the marriage license shall be issued on 17 January 2000. However, neither petitioner nor Orobia claimed it. It also appears that the Office of the Civil Registrar General issued a Certification that it has no record of such marriage that allegedly took place on 17 February 2000. Likewise, the Office of the Local Civil Registrar of Nabua, Camarines Sur issued another Certification dated 7 May 2001 that it cannot issue a true copy of the Marriage Contract of the parties since it has no record of their marriage. On 8 May 2001, petitioner sought the assistance of respondent judge so the latter could communicate with the Office of the Local Civil Registrar of Nabua, Camarines Sur for the issuance of her marriage license. Respondent judge wrote the Local Civil Registrar of Nabua, Camarines Sur. In a letter dated 9 May 2001, a Clerk of said office, Grace T. Escobal, informed respondent judge that their office cannot issue the marriage license due to the failure of Orobia to submit the Death Certificate of his previous spouse. The Office of the Court Administrator, in its Report and Recommendation dated 15 November 2000, found the respondent judge guilty of solemnizing a marriage without a duly issued marriage license and for doing so outside his territorial jurisdiction. A fine of P5,000.00 was recommended to be imposed on respondent judge. We agree. Under the Judiciary Reorganization Act of 1980, or B.P.129, the authority of the regional trial court judges and judges of inferior courts to solemnize marriages is confined to their territorial jurisdiction as defined by the Supreme Court. The case at bar is not without precedent. In Navarro vs. Domagtoy,[1] respondent judge held office and had jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. However, he solemnized a wedding at his residence in the municipality of Dapa, Surigao del Norte which did

not fall within the jurisdictional area of the municipalities of Sta. Monica and Burgos. We held that: A priest who is commissioned and allowed by his local ordinance to marry the faithful is authorized to do so only within the area or diocese or place allowed by his Bishop. An appellate court Justice or a Justice of this Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the venue, as long as the requisites of the law are complied with. However, judges who are appointed to specific jurisdictions, may officiate in weddings only within said areas and not beyond. Where a judge solemnizes a marriage outside his courts jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability.[2] (Emphasis supplied.) In said case, we suspended respondent judge for six (6) months on the ground that his act of solemnizing a marriage outside his jurisdiction constitutes gross ignorance of the law. We further held that: The judiciary should be composed of persons who, if not experts, are at least, proficient in the law they are sworn to apply, more than the ordinary laymen. They should be skilled and competent in understanding and applying the law. It is imperative that they be conversant with basic legal principles like the ones involved in the instant case. x x x While magistrates may at times make mistakes in judgment, for which they are not penalized, the respondent judge exhibited ignorance of elementary provisions of law, in an area which has greatly prejudiced the status of married persons.[3] In the case at bar, the territorial jurisdiction of respondent judge is limited to the municipality of Balatan, Camarines Sur. His act of solemnizing the marriage of petitioner and Orobia in Nabua, Camarines Sur therefore is contrary to law and subjects him to administrative liability. His act may not amount to gross ignorance of the law for he allegedly solemnized the marriage out of human compassion but nonetheless, he cannot avoid liability for violating the law on marriage. Respondent judge should also be faulted for solemnizing a marriage without the requisite marriage license. In People vs. Lara,[4] we held that a marriage which preceded the issuance of the marriage license is void, and that the subsequent issuance of such license cannot render valid or even add an iota of validity to the marriage. Except in cases provided by law, it is the marriage license that gives the solemnizing officer the authority to solemnize a marriage. Respondent judge did not possess such authority when he solemnized the marriage of petitioner. In this respect, respondent judge acted in gross ignorance of the law. Respondent judge cannot be exculpated despite the Affidavit of Desistance filed by petitioner. This Court has consistently held in a catena of cases that the withdrawal of the complaint does not necessarily have the legal effect of exonerating respondent from disciplinary action. Otherwise, the prompt and fair administration of justice, as well as the discipline of court personnel, would be

undermined.[5] Disciplinary actions of this nature do not involve purely private or personal matters. They can not be made to depend upon the will of every complainant who may, for one reason or another, condone a detestable act. We cannot be bound by the unilateral act of a complainant in a matter which involves the Courts constitutional power to discipline judges. Otherwise, that power may be put to naught, undermine the trust character of a public office and impair the integrity and dignity of this Court as a disciplining authority.[6] WHEREFORE, respondent Judge Salvador M. Occiano, Presiding Judge of the Municipal Trial Court of Balatan, Camarines Sur, is fined P5,000.00 pesos with a STERN WARNING that a repetition of the same or similar offense in the future will be dealt with more severely. SO ORDERED.

9. Ninal vs Bayadog ENGRACE NIAL for Herself and as Guardian ad Litem of the minors BABYLINE NIAL, INGRID NIAL, ARCHIE NIAL & PEPITO NIAL, JR., petitioners, vs. NORMA BAYADOG, respondent. Ncmmis DECISION YNARES_SANTIAGO, J.: May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his death? Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. One year and 8 months thereafter or on December 11, 1986, Pepito and respondent Norma Badayog got married without any marriage license. In lieu thereof, Pepito and Norma executed an affidavit dated December 11, 1986 stating that they had lived together as husband and wife for at least five years and were thus exempt from securing a marriage license. On February 19, 1997, Pepito died in a car accident. After their fathers death, petitioners filed a petition for declaration of nullity of the marriage of Pepito to Norma alleging that the said marriage was void for lack of a marriage license. The case was filed under the assumption that the validity or invalidity of the second marriage would affect petitioners successional rights. Norma filed a motion to dismiss on the ground that petitioners have no cause of action since they are not among the persons who could file an action for "annulment of marriage" under Article 47 of the Family Code. Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59, dismissed the petition after finding that the Family Code is "rather silent, obscure, insufficient" to resolve the following issues: (1) Whether or not plaintiffs have a cause of action against defendant in asking for the declaration of the nullity of marriage of their deceased father, Pepito G. Nial, with her specially so when at the time of the filing of this instant suit, their father Pepito G. Nial is already dead; (2) Whether or not the second marriage of plaintiffs deceased father with defendant is null and void ab initio; (3) Whether or not plaintiffs are estopped from assailing the validity of the second marriage after it was dissolved due to their fathers death.[1]

Thus, the lower court ruled that petitioners should have filed the action to declare null and void their fathers marriage to respondent before his death, applying by analogy Article 47 of the Family Code which enumerates the time and the persons who could initiate an action for annulment of marriage.[2] Hence, this petition for review with this Court grounded on a pure question of law. Scnc m This petition was originally dismissed for non-compliance with Section 11, Rule 13 of the 1997 Rules of Civil Procedure, and because "the verification failed to state the basis of petitioners averment that the allegations in the petition are true and correct." It was thus treated as an unsigned pleading which produces no legal effect under Section 3, Rule 7, of the 1997 Rules.[3] However, upon motion of petitioners, this Court reconsidered the dismissal and reinstated the petition for review.[4] The two marriages involved herein having been solemnized prior to the effectivity of the Family Code (FC), the applicable law to determine their validity is the Civil Code which was the law in effect at the time of their celebration.[5] A valid marriage license is a requisite of marriage under Article 53 of the Civil Code, [6] the absence of which renders the marriage void ab initio pursuant to Article 80(3)[7] in relation to Article 58.[8] The requirement and issuance of marriage license is the States demonstration of its involvement and participation in every marriage, in the maintenance of which the general public is interested.[9] This interest proceeds from the constitutional mandate that the State recognizes the sanctity of family life and of affording protection to the family as a basic "autonomous social institution."[10] Specifically, the Constitution considers marriage as an "inviolable social institution," and is the foundation of family life which shall be protected by the State.[11] This is why the Family Code considers marriage as "a special contract of permanent union"[12] and case law considers it "not just an adventure but a lifetime commitment."[13] However, there are several instances recognized by the Civil Code wherein a marriage license is dispensed with, one of which is that provided in Article 76,[14] referring to the marriage of a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the marriage. The rationale why no license is required in such case is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicants name for a marriage license. The publicity attending the marriage license may discourage such persons from legitimizing their status.[15] To preserve peace in the family, avoid the peeping and suspicious eye of public exposure and contain the source of gossip arising from the publication of their names, the law deemed it wise to preserve their privacy and exempt them from that requirement. Sdaa miso There is no dispute that the marriage of petitioners father to respondent Norma was celebrated without any marriage license. In lieu thereof, they executed an affidavit stating that "they have attained the age of majority, and, being unmarried, have lived together as husband and wife for at least five years, and that we now desire to marry each other."[16] The only issue that needs to be resolved pertains to what nature of cohabitation is contemplated under Article 76 of the Civil Code to warrant the

counting of the five year period in order to exempt the future spouses from securing a marriage license. Should it be a cohabitation wherein both parties are capacitated to marry each other during the entire five-year continuous period or should it be a cohabitation wherein both parties have lived together and exclusively with each other as husband and wife during the entire five-year continuous period regardless of whether there is a legal impediment to their being lawfully married, which impediment may have either disappeared or intervened sometime during the cohabitation period? Working on the assumption that Pepito and Norma have lived together as husband and wife for five years without the benefit of marriage, that five-year period should be computed on the basis of a cohabitation as "husband and wife" where the only missing factor is the special contract of marriage to validate the union. In other words, the five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at any time within the 5 years and continuity that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law. The parties should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar.[17] The Civil Code provides:

Article 18 reads in part: "x x x. In case of any impediment known

to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license. x x x." This is the same reason why our civil laws, past or present, absolutely prohibited the concurrence of multiple marriages by the same person during the same period. Thus, any marriage subsequently contracted during the lifetime of the first spouse shall be illegal and void,[18] subject only to the exception in cases of absence or where the prior marriage was dissolved or annulled. The Revised Penal Code complements the civil law in that the contracting of two or more marriages and the having of extramarital affairs are considered felonies, i.e., bigamy and concubinage and adultery.[19] The law sanctions monogamy. In this case, at the time of Pepito and respondents marriage, it cannot be said that they have lived with each other as husband and wife for at least five years prior to their wedding day. From the time Pepitos first marriage was dissolved to the time of his marriage with respondent, only about twenty months had elapsed. Even assuming that Pepito and his first wife had separated in fact, and thereafter both Pepito and respondent had started living with each other that has already lasted for five years, the fact remains that their five-year period cohabitation was not the cohabitation contemplated by law. It should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract. Pepito had a subsisting marriage at the time when he started cohabiting with respondent. It is immaterial that when they lived with each other, Pepito had already been separated in fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of the filial companionship between the spouses cannot make any cohabitation by either spouse with any third party as being one as "husband and wife". Scs daad Having determined that the second marriage involved in this case is not covered by the exception to the requirement of a marriage license, it is void ab initio because of the absence of such element. The next issue to be resolved is: do petitioners have the personality to file a petition to declare their fathers marriage void after his death? Contrary to respondent judges ruling, Article 47 of the Family Code [20] cannot be applied even by analogy to petitions for declaration of nullity of marriage. The second ground for annulment of marriage relied upon by the trial court, which allows "the sane spouse" to file an annulment suit "at any time before the death of either party" is inapplicable. Article 47 pertains to the grounds, periods and persons who can file an annulment suit, not a suit for declaration of nullity of marriage. The Code is silent as to who can file a petition to declare the nullity of a marriage. Voidable and void marriages are not identical. A marriage that is annulable is valid until otherwise declared by the court; whereas a marriage that is void ab initio is considered as having never to have taken place[21] and cannot be the source of rights. The first can be generally ratified or confirmed by free cohabitation or prescription while the other

Article 63: "x x x. This notice shall request all persons having

knowledge of any impediment to the marriage to advice the local civil registrar thereof. x x x."

Article 64: "Upon being advised of any alleged impediment to the

marriage, the local civil registrar shall forthwith make an investigation, examining persons under oath. x x x" Sdaad This is reiterated in the Family Code thus:

Article 17 provides in part: "x x x. This notice shall request all

persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. x x x."

can never be ratified. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can be attacked collaterally. Consequently, void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid.[22] That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may attack a void marriage. Void marriages have no legal effects except those declared by law concerning the properties of the alleged spouses, regarding co-ownership or ownership through actual joint contribution,[23] and its effect on the children born to such void marriages as provided in Article 50 in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the Family Code. On the contrary, the property regime governing voidable marriages is generally conjugal partnership and the children conceived before its annulment are legitimate. Sup rema Contrary to the trial courts ruling, the death of petitioners father extinguished the alleged marital bond between him and respondent. The conclusion is erroneous and proceeds from a wrong premise that there was a marriage bond that was dissolved between the two. It should be noted that their marriage was void hence it is deemed as if it never existed at all and the death of either extinguished nothing. Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the nullity of a marriage.[24] "A void marriage does not require a judicial decree to restore the parties to their original rights or to make the marriage void but though no sentence of avoidance be absolutely necessary, yet as well for the sake of good order of society as for the peace of mind of all concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction."[25] "Under ordinary circumstances, the effect of a void marriage, so far as concerns the conferring of legal rights upon the parties, is as though no marriage had ever taken place. And therefore, being good for no legal purpose, its invalidity can be maintained in any proceeding in which the fact of marriage may be material, either direct or collateral, in any civil court between any parties at any time, whether before or after the death of either or both the husband and the wife, and upon mere proof of the facts rendering such marriage void, it will be disregarded or treated as non-existent by the courts." It is not like a voidable marriage which cannot be collaterally attacked except in direct proceeding instituted during the lifetime of the parties so that on the death of either, the marriage cannot be impeached, and is made good ab initio.[26] But Article 40 of the Family Code expressly provides that there must be a judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage [27] and such absolute nullity can be based only on a final judgment to that effect.[28] For the same reason, the law makes either the action or defense for the declaration of absolute nullity of marriage imprescriptible.[29] Corollarily, if the death of either party would extinguish the cause of action or the ground for defense, then the same cannot be considered imprescriptible. Juris

However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause "on the basis of a final judgment declaring such previous marriage void" in Article 40 of the Family Code connotes that such final judgment need not be obtained only for purpose of remarriage. WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial Court, Toledo City, Cebu, Branch 59, dismissing Civil Case No. T-639, is REVERSED and SET ASIDE. The said case is ordered REINSTATED. SO ORDERED.

10. Manzano vs Sanchez HERMINIA BORJA-MANZANO, petitioner, vs. JUDGE ROQUE R. SANCHEZ, MTC, Infanta, Pangasinan, respondent. RESOLUTION DAVIDE, JR., C.J.: The solemnization of a marriage between two contracting parties who were both bound by a prior existing marriage is the bone of contention of the instant complaint against respondent Judge Roque R. Sanchez, Municipal Trial Court, Infanta, Pangasinan. For this act, complainant Herminia Borja-Manzano charges respondent Judge with gross ignorance of the law in a sworn Complaint-Affidavit filed with the Office of the Court Administrator on 12 May 1999. Complainant avers that she was the lawful wife of the late David Manzano, having been married to him on 21 May 1966 in San Gabriel Archangel Parish, Araneta Avenue, Caloocan City.[1] Four children were born out of that marriage.[2] On 22 March 1993, however, her husband contracted another marriage with one Luzviminda Payao before respondent Judge.[3] When respondent Judge solemnized said marriage, he knew or ought to know that the same was void and bigamous, as the marriage contract clearly stated that both contracting parties were separated. Respondent Judge, on the other hand, claims in his Comment that when he officiated the marriage between Manzano and Payao he did not know that Manzano was legally married. What he knew was that the two had been living together as husband and wife for seven years already without the benefit of marriage, as manifested in their joint affidavit.[4] According to him, had he known that the late Manzano was married, he would have advised the latter not to marry again; otherwise, he (Manzano) could be charged with bigamy. He then prayed that the complaint be dismissed for lack of merit and for being designed merely to harass him. After an evaluation of the Complaint and the Comment, the Court Administrator recommended that respondent Judge be found guilty of gross ignorance of the law and be ordered to pay a fine of P2,000, with a warning that a repetition of the same or similar act would be dealt with more severely. On 25 October 2000, this Court required the parties to manifest whether they were willing to submit the case for resolution on the basis of the pleadings thus filed. Complainant answered in the affirmative. For his part, respondent Judge filed a Manifestation reiterating his plea for the dismissal of the complaint and setting aside his earlier Comment. He therein invites the attention of the Court to two separate affidavits[5] of the late Manzano and of Payao, which were allegedly unearthed by a member of his staff upon his instruction. In those affidavits, both David Manzano and Luzviminda Payao expressly stated that they were married to Herminia Borja and Domingo Relos, respectively; and that since their respective marriages had been marked by constant quarrels, they had both left their families and had never cohabited or communicated with their spouses anymore. Respondent Judge alleges that on the basis of those affidavits, he

agreed to solemnize the marriage in question in accordance with Article 34 of the Family Code. We find merit in the complaint. Article 34 of the Family Code provides: No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. For this provision on legal ratification of marital cohabitation to apply, the following requisites must concur: 1. The man and woman must have been living together as husband and wife for at least five years before the marriage; 2. The parties must have no legal impediment to marry each other; 3. The fact of absence of legal impediment between the parties must be present at the time of marriage; 4. The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other]; and 5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage.[6] Not all of these requirements are present in the case at bar. It is significant to note that in their separate affidavits executed on 22 March 1993 and sworn to before respondent Judge himself, David Manzano and Luzviminda Payao expressly stated the fact of their prior existing marriage. Also, in their marriage contract, it was indicated that both were separated. Respondent Judge knew or ought to know that a subsisting previous marriage is a diriment impediment, which would make the subsequent marriage null and void.[7] In fact, in his Comment, he stated that had he known that the late Manzano was married he would have discouraged him from contracting another marriage. And respondent Judge cannot deny knowledge of Manzanos and Payaos subsisting previous marriage, as the same was clearly stated in their separate affidavits which were subscribed and sworn to before him. The fact that Manzano and Payao had been living apart from their respective spouses for a long time already is immaterial. Article 63(1) of the Family Code allows spouses who have obtained a decree of legal separation to live separately from each other, but in such a case the marriage bonds are not severed. Elsewise stated, legal separation does not dissolve the marriage tie, much less authorize the

parties to remarry. This holds true all the more when the separation is merely de facto, as in the case at bar. Neither can respondent Judge take refuge on the Joint Affidavit of David Manzano and Luzviminda Payao stating that they had been cohabiting as husband and wife for seven years. Just like separation, free and voluntary cohabitation with another person for at least five years does not severe the tie of a subsisting previous marriage. Marital cohabitation for a long period of time between two individuals who are legally capacitated to marry each other is merely a ground for exemption from marriage license. It could not serve as a justification for respondent Judge to solemnize a subsequent marriage vitiated by the impediment of a prior existing marriage. Clearly, respondent Judge demonstrated gross ignorance of the law when he solemnized a void and bigamous marriage. The maxim ignorance of the law excuses no one has special application to judges,[8] who, under Rule 1.01 of the Code of Judicial Conduct, should be the embodiment of competence, integrity, and independence. It is highly imperative that judges be conversant with the law and basic legal principles.[9] And when the law transgressed is simple and elementary, the failure to know it constitutes gross ignorance of the law.[10] ACCORDINGLY, the recommendation of the Court Administrator is hereby ADOPTED, with the MODIFICATION that the amount of fine to be imposed upon respondent Judge Roque Sanchez is increased to P20,000. SO ORDERED.

11. Republic vs Dayot DECISION CHICO-NAZARIO, J.: Before us are two consolidated petitions. G.R. No. 175581 and G.R. No. 179474 are Petitions for Review under Rule 45 of the Rules of Court filed by the Republic of the Philippines and Felisa Tecson-Dayot (Felisa), respectively, both challenging the Amended Decision[1] of the Court of Appeals, dated 7 November 2006, in CA-G.R. CV No. 68759, which declared the marriage between Jose Dayot (Jose) and Felisa void ab initio. The records disclose that on 24 November 1986, Jose and Felisa were married at the Pasay City Hall. The marriage was solemnized by Rev. Tomas V. Atienza.[2] In lieu of a marriage license, Jose and Felisa executed a sworn affidavit, [3] also dated 24 November 1986, attesting that both of them had attained the age of maturity, and that being unmarried, they had lived together as husband and wife for at least five years. On 7 July 1993, Jose filed a Complaint[4] for Annulment and/or Declaration of Nullity of Marriage with the Regional Trial Court (RTC), Bian, Laguna, Branch 25. He contended that his marriage with Felisa was a sham, as no marriage ceremony was celebrated between the parties; that he did not execute the sworn affidavit stating that he and Felisa had lived as husband and wife for at least five years; and that his consent to the marriage was secured through fraud. In his Complaint, Jose gave his version of the events which led to his filing of the same. According to Jose, he was introduced to Felisa in 1986. Immediately thereafter, he came to live as a boarder in Felisas house, the latter being his landlady. Some three weeks later, Felisa requested him to accompany her to the Pasay City Hall, ostensibly so she could claim a package sent to her by her brother from Saudi Arabia. At the Pasay City Hall, upon a pre-arranged signal from Felisa, a man bearing three folded pieces of paper approached them. They were told that Jose needed to sign the papers so that the package could be released to Felisa. He initially refused to do so. However, Felisa cajoled him, and told him that his refusal could get both of them killed by her brother who had learned about their relationship. Reluctantly, he signed the pieces of paper, and gave them to the man who immediately left. It was in February 1987 when he discovered that he had contracted marriage with Felisa. He alleged that he saw a piece of paper lying on top of the table at the sala of Felisas house. When he perused the same, he discovered that it was a copy of his marriage contract with Felisa. When he confronted Felisa, the latter feigned ignorance. In opposing the Complaint, Felisa denied Joses allegations and defended the validity of their marriage. She declared that they had maintained their relationship as man and wife absent the legality of marriage in the early part of 1980, but that she had deferred contracting marriage with him on account of their age difference.[5] In her pre-trial brief, Felisa expounded that while her marriage to Jose was subsisting, the

latter contracted marriage with a certain Rufina Pascual (Rufina) on 31 August 1990. On 3 June 1993, Felisa filed an action for bigamy against Jose. Subsequently, she filed an administrative complaint against Jose with the Office of the Ombudsman, since Jose and Rufina were both employees of the National Statistics and Coordinating Board.[6] The Ombudsman found Jose administratively liable for disgraceful and immoral conduct, and meted out to him the penalty of suspension from service for one year without emolument.[7] On 26 July 2000, the RTC rendered a Decision[8] dismissing the Complaint. It disposed: WHEREFORE, after a careful evaluation and analysis of the evidence presented by both parties, this Court finds and so holds that the [C]omplaint does not deserve a favorable consideration. Accordingly, the above-entitled case is hereby ordered DISMISSED with costs against [Jose].[9] The RTC ruled that from the testimonies and evidence presented, the marriage celebrated between Jose and Felisa on 24 November 1986 was valid. It dismissed Joses version of the story as implausible, and rationalized that: Any person in his right frame of mind would easily suspect any attempt to make him or her sign a blank sheet of paper. [Jose] could have already detected that something was amiss, unusual, as they were at Pasay City Hall to get a package for [Felisa] but it [was] he who was made to sign the pieces of paper for the release of the said package. Another indirect suggestion that could have put him on guard was the fact that, by his own admission, [Felisa] told him that her brother would kill them if he will not sign the papers. And yet it took him, more or less, three months to discover that the pieces of paper that he signed was [sic] purportedly the marriage contract. [Jose] does not seem to be that ignorant, as perceived by this Court, to be taken in for a ride by [Felisa.] [Joses] claim that he did not consent to the marriage was belied by the fact that he acknowledged Felisa Tecson as his wife when he wrote [Felisas] name in the duly notarized statement of assets and liabilities he filled up on May 12, 1988, one year after he discovered the marriage contract he is now claiming to be sham and false. [Jose], again, in his company I.D., wrote the name of [Felisa] as the person to be contacted in case of emergency. This Court does not believe that the only reason why her name was written in his company I.D. was because he was residing there then. This is just but a lame excuse because if he really considers her not his lawfully wedded wife, he would have written instead the name of his sister. When [Joses] sister was put into the witness stand, under oath, she testified that she signed her name voluntarily as a witness to the marriage in the marriage certificate (T.S.N., page 25, November 29, 1996) and she further testified that the signature appearing over the name of Jose Dayot was the signature of his [sic] brother that he voluntarily affixed in the marriage contract (page 26 of T.S.N. taken on November 29, 1996), and when she was asked by the Honorable Court if indeed she believed that Felisa Tecson was really chosen by her brother she answered yes. The testimony of

his sister all the more belied his claim that his consent was procured through fraud.[10] Moreover, on the matter of fraud, the RTC ruled that Joses action had prescribed. It cited Article 87[11] of the New Civil Code which requires that the action for annulment of marriage must be commenced by the injured party within four years after the discovery of the fraud. Thus: That granting even for the sake of argument that his consent was obtained by [Felisa] through fraud, trickery and machinations, he could have filed an annulment or declaration of nullity of marriage at the earliest possible opportunity, the time when he discovered the alleged sham and false marriage contract. [Jose] did not take any action to void the marriage at the earliest instance. x x x.[12] Undeterred, Jose filed an appeal from the foregoing RTC Decision to the Court of Appeals. In a Decision dated 11 August 2005, the Court of Appeals found the appeal to be without merit. The dispositive portion of the appellate courts Decision reads: WHEREFORE, the Decision appealed from is AFFIRMED.[13] The Court of Appeals applied the Civil Code to the marriage between Jose and Felisa as it was solemnized prior to the effectivity of the Family Code. The appellate court observed that the circumstances constituting fraud as a ground for annulment of marriage under Article 86[14] of the Civil Code did not exist in the marriage between the parties. Further, it ruled that the action for annulment of marriage on the ground of fraud was filed beyond the prescriptive period provided by law. The Court of Appeals struck down Joses appeal in the following manner: Nonetheless, even if we consider that fraud or intimidation was employed on Jose in giving his consent to the marriage, the action for the annulment thereof had already prescribed. Article 87 (4) and (5) of the Civil Code provides that the action for annulment of marriage on the ground that the consent of a party was obtained by fraud, force or intimidation must be commenced by said party within four (4) years after the discovery of the fraud and within four (4) years from the time the force or intimidation ceased. Inasmuch as the fraud was allegedly discovered by Jose in February, 1987 then he had only until February, 1991 within which to file an action for annulment of marriage. However, it was only on July 7, 1993 that Jose filed the complaint for annulment of his marriage to Felisa.[15] Likewise, the Court of Appeals did not accept Joses assertion that his marriage to Felisa was void ab initio for lack of a marriage license. It ruled that the marriage was solemnized under Article 76[16] of the Civil Code as one of exceptional character, with the parties executing an affidavit of marriage between man and woman who have lived together as husband and wife for at least five years. The Court of Appeals concluded that the falsity in the affidavit to the effect that Jose and Felisa had lived together as husband and wife for the period required by Article 76 did not affect the

validity of the marriage, seeing that the solemnizing officer was misled by the statements contained therein. In this manner, the Court of Appeals gave credence to the good-faith reliance of the solemnizing officer over the falsity of the affidavit. The appellate court further noted that on the dorsal side of said affidavit of marriage, Rev. Tomas V. Atienza, the solemnizing officer, stated that he took steps to ascertain the ages and other qualifications of the contracting parties and found no legal impediment to their marriage. Finally, the Court of Appeals dismissed Joses argument that neither he nor Felisa was a member of the sect to which Rev. Tomas V. Atienza belonged. According to the Court of Appeals, Article 56[17] of the Civil Code did not require that either one of the contracting parties to the marriage must belong to the solemnizing officers church or religious sect. The prescription was established only in Article 7[18] of the Family Code which does not govern the parties marriage. Differing with the ruling of the Court of Appeals, Jose filed a Motion for Reconsideration thereof. His central opposition was that the requisites for the proper application of the exemption from a marriage license under Article 76 of the Civil Code were not fully attendant in the case at bar. In particular, Jose cited the legal condition that the man and the woman must have been living together as husband and wife for at least five years before the marriage. Essentially, he maintained that the affidavit of marital cohabitation executed by him and Felisa was false. The Court of Appeals granted Joses Motion for Reconsideration and reversed itself. Accordingly, it rendered an Amended Decision, dated 7 November 2006, the fallo of which reads: WHEREFORE, the Decision dated August 11, 2005 is RECALLED and SET ASIDE and another one entered declaring the marriage between Jose A. Dayot and Felisa C. Tecson void ab initio. of Pasay City.[19] Furnish a copy of this Amended Decision to the Local Civil Registrar

In its Amended Decision, the Court of Appeals relied on the ruling of this Court in Nial v. Bayadog,[20] and reasoned that: In Nial v. Bayadog, where the contracting parties to a marriage solemnized without a marriage license on the basis of their affidavit that they had attained the age of majority, that being unmarried, they had lived together for at least five (5) years and that they desired to marry each other, the Supreme Court ruled as follows: x x x In other words, the five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at any time within the 5 years and continuity that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the

parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law. The parties should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar. Article 80(3) of the Civil Code provides that a marriage solemnized without a marriage license, save marriages of exceptional character, shall be void from the beginning. Inasmuch as the marriage between Jose and Felisa is not covered by the exception to the requirement of a marriage license, it is, therefore, void ab initio because of the absence of a marriage license.[21] Felisa sought reconsideration of the Amended Decision, but to no avail. The appellate court rendered a Resolution[22] dated10 May 2007, denying Felisas motion. Meanwhile, the Republic of the Philippines, through the Office of the Solicitor General (OSG), filed a Petition for Review before this Court in G.R. No. 175581, praying that the Court of Appeals Amended Decision dated 7 November 2006 be reversed and set aside for lack of merit, and that the marriage between Jose and Felisa be declared valid and subsisting. Felisa filed a separate Petition for Review, docketed as G.R. No. 179474, similarly assailing the appellate courts Amended Decision. On 1 August 2007, this Court resolved to consolidate the two Petitions in the interest of uniformity of the Court rulings in similar cases brought before it for resolution.[23] The Republic of the Philippines propounds the following arguments for the allowance of its Petition, to wit: I RESPONDENT FAILED TO OVERTHROW THE PRESUMPTION OF THE VALIDITY OF HIS MARRIAGE TO FELISA. II RESPONDENT DID NOT COME TO THE COURT WITH CLEAN HANDS AND SHOULD NOT BE ALLOWED TO PROFIT FROM HIS OWN FRAUDULENT CONDUCT. III

RESPONDENT IS ESTOPPED FROM ASSAILING THE LEGALITY OF HIS MARRIAGE FOR LACK OF MARRIAGE LICEN[S]E.[24] Correlative to the above, Felisa submits that the Court of Appeals misapplied Nial.[25] She differentiates the case at bar from Nial by reasoning that one of the parties therein had an existing prior marriage, a circumstance which does not obtain in her cohabitation with Jose. Finally, Felisa adduces that Jose only sought the annulment of their marriage after a criminal case for bigamy and an administrative case had been filed against him in order to avoid liability. Felisa surmises that the declaration of nullity of their marriage would exonerate Jose from any liability. For our resolution is the validity of the marriage between Jose and Felisa. To reach a considered ruling on the issue, we shall jointly tackle the related arguments vented by petitioners Republic of the Philippines and Felisa. The Republic of the Philippines asserts that several circumstances give rise to the presumption that a valid marriage exists between Jose and Felisa. For her part, Felisa echoes the claim that any doubt should be resolved in favor of the validity of the marriage by citing this Courts ruling in Hernandez v. Court of Appeals.[26] To buttress its assertion, the Republic points to the affidavit executed by Jose and Felisa, dated 24 November 1986, attesting that they have lived together as husband and wife for at least five years, which they used in lieu of a marriage license. It is the Republics position that the falsity of the statements in the affidavit does not affect the validity of the marriage, as the essential and formal requisites were complied with; and the solemnizing officer was not required to investigate as to whether the said affidavit was legally obtained. The Republic opines that as a marriage under a license is not invalidated by the fact that the license was wrongfully obtained, so must a marriage not be invalidated by the fact that the parties incorporated a fabricated statement in their affidavit that they cohabited as husband and wife for at least five years. In addition, the Republic posits that the parties marriage contract states that their marriage was solemnized under Article 76 of the Civil Code. It also bears the signature of the parties and their witnesses, and must be considered a primary evidence of marriage. To further fortify its Petition, the Republic adduces the following documents: (1) Joses notarized Statement of Assets and Liabilities, dated 12 May 1988 wherein he wrote Felisas name as his wife; (2) Certification dated 25 July 1993 issued by the Barangay Chairman 192, Zone ZZ, District 24 of Pasay City, attesting that Jose and Felisa had lived together as husband and wife in said barangay; and (3) Joses company ID card, dated 2 May 1988, indicating Felisas name as his wife. The first assignment of error compels this Court to rule on the issue of the effect of a false affidavit under Article 76 of the Civil Code. A survey of the prevailing rules is in order. It is beyond dispute that the marriage of Jose and Felisa was celebrated on 24 November 1986, prior to the effectivity of the Family Code. Accordingly, the Civil

Code governs their union. Article 53 of the Civil Code spells out the essential requisites of marriage as a contract: ART. 53. No marriage shall be solemnized unless all these requisites are complied with: (1) (2) (3) (4) ours.) Legal capacity of the contracting parties; Their consent, freely given; Authority of the person performing the marriage; and A marriage license, except in a marriage of exceptional character. (Emphasis

The reason for the law,[35] as espoused by the Code Commission, is that the publicity attending a marriage license may discourage such persons who have lived in a state of cohabitation from legalizing their status.[36] It is not contested herein that the marriage of Jose and Felisa was performed without a marriage license. In lieu thereof, they executed an affidavit declaring that they have attained the age of maturity; that being unmarried, they have lived together as husband and wife for at least five years; and that because of this union, they desire to marry each other.[37] One of the central issues in the Petition at bar is thus: whether the falsity of an affidavit of marital cohabitation, where the parties have in truth fallen short of the minimum five-year requirement, effectively renders the marriage void ab initio for lack of a marriage license. We answer in the affirmative. Marriages of exceptional character are, doubtless, the exceptions to the rule on the indispensability of the formal requisite of a marriage license. Under the rules of statutory construction, exceptions, as a general rule, should be strictly[38] but reasonably construed.[39] They extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than the exception.[40] Where a general rule is established by statute with exceptions, the court will not curtail the former or add to the latter by implication.[41] For the exception in Article 76 to apply, it is a sine qua non thereto that the man and the woman must have attained the age of majority, and that, being unmarried, they have lived together as husband and wife for at least five years. A strict but reasonable construction of Article 76 leaves us with no other expediency but to read the law as it is plainly written. The exception of a marriage license under Article 76 applies only to those who have lived together as husband and wife for at least five years and desire to marry each other. The Civil Code, in no ambiguous terms, places a minimum period requirement of five years of cohabitation. No other reading of the law can be had, since the language of Article 76 is precise. The minimum requisite of five years of cohabitation is an indispensability carved in the language of the law. For a marriage celebrated under Article 76 to be valid, this material fact cannot be dispensed with. It is embodied in the law not as a directory requirement, but as one that partakes of a mandatory character. It is worthy to mention that Article 76 also prescribes that the contracting parties shall state the requisite facts[42] in an affidavit before any person authorized by law to administer oaths; and that the official, priest or minister who solemnized the marriage shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties and that he found no legal impediment to the marriage. It is indubitably established that Jose and Felisa have not lived together for five years at the time they executed their sworn affidavit and contracted marriage. The Republic admitted that Jose and Felisa started living together only in June 1986, or barely five months before the celebration of their marriage.[43] The Court of Appeals also noted Felisas testimony that Jose was introduced to her by her neighbor, Teresita Perwel, sometime in February or March 1986 after the EDSA

Article 58[27] makes explicit that no marriage shall be solemnized without a license first being issued by the local civil registrar of the municipality where either contracting party habitually resides, save marriages of an exceptional character authorized by the Civil Code, but not those under Article 75.[28] Article 80(3)[29] of the Civil Code makes it clear that a marriage performed without the corresponding marriage license is void, this being nothing more than the legitimate consequence flowing from the fact that the license is the essence of the marriage contract. [30] This is in stark contrast to the old Marriage Law,[31] whereby the absence of a marriage license did not make the marriage void. The rationale for the compulsory character of a marriage license under the Civil Code is that it is the authority granted by the State to the contracting parties, after the proper government official has inquired into their capacity to contract marriage.[32] Under the Civil Code, marriages of exceptional character are covered by Chapter 2, Title III, comprising Articles 72 to 79. To wit, these marriages are: (1) marriages in articulo mortis or at the point of death during peace or war, (2) marriages in remote places, (2) consular marriages,[33] (3) ratification of marital cohabitation, (4) religious ratification of a civil marriage, (5) Mohammedan or pagan marriages, and (6) mixed marriages.[34] The instant case pertains to a ratification of marital cohabitation under Article 76 of the Civil Code, which provides: ART. 76. No marriage license shall be necessary when a man and a woman who have attained the age of majority and who, being unmarried, have lived together as husband and wife for at least five years, desire to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The official, priest or minister who solemnized the marriage shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties and that he found no legal impediment to the marriage.

Revolution.[44] The appellate court also cited Felisas own testimony that it was only in June 1986 when Jose commenced to live in her house.[45] Moreover, it is noteworthy that the question as to whether they satisfied the minimum five-year requisite is factual in nature. A question of fact arises when there is a need to decide on the truth or falsehood of the alleged facts.[46] Under Rule 45, factual findings are ordinarily not subject to this Courts review.[47] It is already wellsettled that: The general rule is that the findings of facts of the Court of Appeals are binding on this Court. A recognized exception to this rule is when the Court of Appeals and the trial court, or in this case the administrative body, make contradictory findings. However, the exception does not apply in every instance that the Court of Appeals and the trial court or administrative body disagree. The factual findings of the Court of Appeals remain conclusive on this Court if such findings are supported by the record or based on substantial evidence.[48] Therefore, the falsity of the affidavit dated 24 November 1986, executed by Jose and Felisa to exempt them from the requirement of a marriage license, is beyond question. We cannot accept the insistence of the Republic that the falsity of the statements in the parties affidavit will not affect the validity of marriage, since all the essential and formal requisites were complied with. The argument deserves scant merit. Patently, it cannot be denied that the marriage between Jose and Felisa was celebrated without the formal requisite of a marriage license. Neither did Jose and Felisa meet the explicit legal requirement in Article 76, that they should have lived together as husband and wife for at least five years, so as to be excepted from the requirement of a marriage license. Anent petitioners reliance on the presumption of marriage, this Court holds that the same finds no applicability to the case at bar. Essentially, when we speak of a presumption of marriage, it is with reference to the prima facie presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage.[49] Restated more explicitly, persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married.[50] The present case does not involve an apparent marriage to which the presumption still needs to be applied. There is no question that Jose and Felisa actually entered into a contract of marriage on 24 November 1986, hence, compelling Jose to institute a Complaint for Annulment and/or Declaration of Nullity of Marriage, which spawned the instant consolidated Petitions. In the same vein, the declaration of the Civil Code[51] that every intendment of law or fact leans towards the validity of marriage will not salvage the parties marriage, and extricate them from the effect of a violation of the law. The marriage of Jose and Felisa was entered into without the requisite marriage license or compliance with the stringent requirements of a marriage under exceptional circumstance. The

solemnization of a marriage without prior license is a clear violation of the law and would lead or could be used, at least, for the perpetration of fraud against innocent and unwary parties, which was one of the evils that the law sought to prevent by making a prior license a prerequisite for a valid marriage.[52] The protection of marriage as a sacred institution requires not just the defense of a true and genuine union but the exposure of an invalid one as well.[53] To permit a false affidavit to take the place of a marriage license is to allow an abject circumvention of the law. If this Court is to protect the fabric of the institution of marriage, we must be wary of deceptive schemes that violate the legal measures set forth in our laws. Similarly, we are not impressed by the ratiocination of the Republic that as a marriage under a license is not invalidated by the fact that the license was wrongfully obtained, so must a marriage not be invalidated by a fabricated statement that the parties have cohabited for at least five years as required by law. The contrast is flagrant. The former is with reference to an irregularity of the marriage license, and not to the absence of one. Here, there is no marriage license at all. Furthermore, the falsity of the allegation in the sworn affidavit relating to the period of Jose and Felisas cohabitation, which would have qualified their marriage as an exception to the requirement for a marriage license, cannot be a mere irregularity, for it refers to a quintessential fact that the law precisely required to be deposed and attested to by the parties under oath. If the essential matter in the sworn affidavit is a lie, then it is but a mere scrap of paper, without force and effect. Hence, it is as if there was no affidavit at all. In its second assignment of error, the Republic puts forth the argument that based on equity, Jose should be denied relief because he perpetrated the fabrication, and cannot thereby profit from his wrongdoing. This is a misplaced invocation. It must be stated that equity finds no room for application where there is a law.[54] There is a law on the ratification of marital cohabitation, which is set in precise terms under Article 76 of the Civil Code. Nonetheless, the authorities are consistent that the declaration of nullity of the parties marriage is without prejudice to their criminal liability.[55] The Republic further avers in its third assignment of error that Jose is deemed estopped from assailing the legality of his marriage for lack of a marriage license. It is claimed that Jose and Felisa had lived together from 1986 to 1990, notwithstanding Joses subsequent marriage to Rufina Pascual on 31 August 1990, and that it took Jose seven years before he sought the declaration of nullity; hence, estoppel had set in. This is erroneous. An action for nullity of marriage is imprescriptible.[56] Jose and Felisas marriage was celebrated sans a marriage license. No other conclusion can be reached except that it is void ab initio. In this case, the right to impugn a void marriage does not prescribe, and may be raised any time. Lastly, to settle all doubts, jurisprudence has laid down the rule that the five-year common-law cohabitation period under Article 76 means a five-year period computed back from the date of celebration of marriage, and refers to a period of legal union had it not been for the absence of a marriage.[57] It covers the years immediately

preceding the day of the marriage, characterized by exclusivity - meaning no third party was involved at any time within the five years - and continuity that is unbroken.[58] WHEREFORE, the Petitions are DENIED. The Amended Decision of the Court of Appeals, dated 7 November 2006 in CA-G.R. CV No. 68759, declaring the marriage of Jose Dayot to Felisa Tecson-Dayot void ab initio, is AFFIRMED, without prejudice to their criminal liability, if any. No costs. SO ORDERED.

12. Villanueva vs CA SPOUSES JAIME AND vs. THE HONORABLE COURT SANCHEZ, respondents. TEODORA OF APPEALS VILLANUEVA, petitioners, and CATALINA I.

said that Roberto Sanchez was "under serious emotional stress and intensely angry" when he reluctantly signed the document after he had lost the case to them, "with the added fact that they only wanted to accept his lot for P500.00 and not for the settlement of the entire obligation of P1,300.00." At that, he said there were really no fundamental differences between the signatures compared. Moreover, the signatures examined were from 1970 to 1982 and did not include those written by Roberto Sanchez in 1968. The decision also noted that Roberto Sanchez did not take any step to annul the deed of sale although he had knowledge thereof as early as 1968. He thus allowed his action to prescribe under Article 1431 of the Civil Code. As for the contract of a marriage submitted by the private respondent, this should also be rejected because although the document was dated September 21, 1964, the Torrens certificate issued to Roberto Sanchez over the subject land on August 25, 1965, described his civil status as "single." It was also doubtful if she could bring the action for reconveyance alone, even assuming she was the surviving spouse of Roberto Sanchez, considering that he left illegitimate children and collateral relatives who were also entitled to share in his estate. As earlier stated, the decision was reversed by the Court of Appeals, 5 which held that the trial court did err, as contended by the appellant, in holding that the deed of sale was not spurious; that the action to annul it had already prescribed; that Catalina Sanchez was not the widow of Roberto Sanchez; and that she had no capacity to institute the complaint. Before us now, the petitioners fault the respondent court for: a) upholding the testimony of the expert witnesses against the findings of fact of the trial court; b) annulling the deed of sale; c) declaring that the action to annul the deed of sale had not yet prescribed; d) not declaring the private respondent guilty of estoppel; and e) not sustaining the decision of the trial court. We see no reason to disturb the judgment of the Court of Appeals. It is consonant with the evidence of record and the applicable law and jurisprudence. The Court notes at the outset that Catalina Sanchez has proved her status as the widow of Roberto Sanchez with her submission of the marriage contract denominated as Exhibit "A." 6 That evidence rendered unnecessary the presumption that "a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage" and may also explain why Roberto Sanchez could not marry the woman by whom he supposedly had two illegitimate children, assuming these persons did exist. It is strange that the trial court should reject Exhibit "A" in favor of the Transfer Certificate of Title describing Roberto Sanchez as "single," 7 disregarding the elementary principle that the best documentary evidence of a marriage is the marriage contract itself. A Torrens certificate is the best evidence of ownership of registered land, not of the civil status of the owner.

Franco L. Loyola for petitioners.

CRUZ, J.:p The Regional Trial Court of Cavite dismissed a complaint for the annulment of a deed of sale, holding that it was not spurious. It was reversed by the Court of Appeals, which found that the vendor's signature on the questioned document had indeed been forged. The petitioners are now before us and urge that the decision of the trial court be reinstated. In her complaint below, herein private respondent Catalina Sanchez, claiming to be the widow of Roberto Sanchez, averred that her husband was the owner of a 275 sq. meter parcel of land located at Rosario, Cavite, which was registered without her knowledge in the name of the herein petitioners on the strength of an alleged deed of sale executed in their favor by her late husband on February 7, 1968. Involving the report of a handwriting expert from the Philippine Constabulary Criminal Investigation Service, who found that the signature on the document was written by another person, she prayed that the deed of sale be annulled, that the registration of the lot in the name of the petitioners be cancelled, and that the lot be reconveyed to her. 1 In their answer, the petitioners questioned the personality of the private respondent to file the complaint, contending that the late Roberto Sanchez was never married but had a common-law wife by whom he had two children. On the merits, they claimed that Roberto Sanchez had deeded over the lot to them in 1968 for the sum of P500.00 in partial settlement of a judgment they had obtained against him. They had sued him after he had failed to pay a P1,300.00 loan they had secured for him and which they had been forced to settle themselves to prevent foreclosure of the mortgage on their property. 2 On the petitioner's motion, the trial court required the examination of the deed of sale by the National Bureau of Investigation to determine if it was a forgery. Trial proceeded in due time, with the presentation by the parties of their testimonial and documentary evidence. On June 25, 1986, Judge Alejandro C. Silapan rendered judgment in favor of the petitioners. In his decision, 3 the trial judge rejected the testimony of the handwriting experts from the PC and the NBI, who had both testified that the standard signature of the late Roberto Sanchez and the one written on the alleged deed of sale "were written by two different people." He cited Go Fay v. Bank of the Philippine Islands 4 in support of his action. Explaining the supposed differences between the signatures, he

As the surviving spouse of Roberto Sanchez, the private respondent could validly file the complaint for the recovery of her late husband's property, without prejudice to the succession rights of his other heirs. Parenthetically, (and curiously), although the supposed common-law wife and her illegitimate children were never presented at the trial, their existence was readily accepted by the trial court on the basis alone of the petitioner's unsupported statements. Coming now to the questioned signature, we find it significant that the examination by the NBI was requested by the petitioners themselves but in the end it was the private respondent who presented the NBI handwriting expert as her own witness. 8 The explanation is obvious. The petitioners hoped to refute the findings of the PC handwriting expert with the findings of the NBI handwriting expert, but as it turned out the findings of the two witnesses coincided. Both PC Examiner Corazon Salvador and NBI Examiner Zenaida J. Torres expressed the informed view that the signature on the deed of sale was not written by Roberto Sanchez. 9 They did not conjure this conclusion out of thin air but supported it with knowledgeable testimony extensively given on direct and cross-examination on the various characteristics and differences of the signatures they had examined and compared. 10 The trial judge said the testimony of PC Examiner Salvador was not reliable because her examination of the document was "done under circumstance not so trustworthy before the action was instituted." But he did not consider the fact that her findings were corroborated by NBI Examiner Torres, who conducted her own examination at the instance of the petitioners themselves and after the action was instituted. It is worth noting that the competence of the two expert witnesses was never assailed by the petitioners nor was it questioned by the trial judge. The petitioners also did not present their own handwriting expert to refute the findings of the government handwriting experts. The Court has itself examined the signatures of Roberto Sanchez in the several instruments among the records of this case, including those dating back to before 1968 11 and is inclined to accept the findings of the handwriting experts. The case invoked by the petitioners is not applicable because the differences in the signatures compared in the case at bar were, as the trial judge found, caused not by time but by the tension gripping Roberto Sanchez when he signed the deed of sale. Incidentally, the petitioners have not sufficiently established the reason for such tension, which appears to be a mere conjecture of the trial judge. No proof was submitted about their filing of the complaint against Roberto Sanchez. Petitioner Jaime Villanueva himself admitted under oath that he did not read the decision in the case nor did he ask his lawyer how much had been awarded against the defendant. 12 Nobody testified about Roberto's state of mind when he allegedly signed the document, and in Manila at that although the persons were residing in Cavite. Even the witnesses to the Bilihan were not presented nor was any explanation for their absence offered. The explanation given by the petitioners for their delay in registering the deed of sale is not convincing. That delay lasted for all of thirteen years. The petitioners suggest

they are simple peasants and did not appreciate the need for the immediate transfer of the property in their name. They also say that they forgot. The evidence shows, however, that they understood the need for registering their property for purposes of using it as collateral in case they wanted to borrow money. It would appear that they thought of simulating the sale registering the subject lot when their own lands were insufficient to secure a P100,000.00 loan their daughter wanted to borrow. Concerning the question of prescription, we find that the applicable rule is not Article 1391 of the Civil Code but Article 1410. Article 1391 provides that the action for annulment of a contract prescribes in four years in cases where the vice consists of intimidation, violence, undue influence, mistake, fraud or lack capacity. The deed of sale in question does not suffer from any of these defects. The supposed vendee's signature having been proved to be a forgery, the instrument is totally void or inexistent as "absolutely simulated or fictitious" under Article 1409 of the Civil Code. According to Article 1410, "the action or defense for the declaration of the inexistence of a contract does not prescribe." Finally, petitioners invoke Article 1431 of the Civil Code and contend that the respondent court erred in not declaring the private respondent and her late husband estopped from questioning the deed of sale until after fourteen years from its execution. The inference that Roberto Sanchez and the private respondent knew about the instrument from that date has not been proved by the evidence of record. Moreover, we fail to see the applicability of Article 1431, which provides that "through estoppel an admission or representation is rendered conclusive upon the person making it and cannot be denied or disproved as against the person relying thereon." Neither the private respondent nor her late husband has made any admission or representation to the petitioners regarding the subject land that they are supposed to have relied upon. Our own finding is that the petitioners have not proved the validity and authenticity of the deed of sale or even the circumstances that supposedly led to its execution by the late Roberto Sanchez. On the contrary, we are convinced from the testimonies of the handwriting experts that his signature had been forged on the questioned document and that he had not conveyed the subject land to the petitioners. The deed of sale being a forgery, it was totally void or inexistent and so could be challenged at any time, the action for its nullification being imprescriptible. The private respondent, as the widow of Roberto Sanchez, has the capacity to sue for the recovery of the land in question and is not estopped from doing so. WHEREFORE, the petition is DENIED and the challenged decision is AFFIRMED, with costs against the petitioners. SO ORDERED.

13. De Loria vs Felix ARSENIO DE LORIA and vs. FELIPE APELAN FELIX, respondent. BENGZON, J.: Review of a decision of the Court of Appeals, involving the central issue of the validity of the marriage in articulo mortis between Matea de la Cruz and Felipe Apelan Felix. It appears that long before, and during the War of the Pacific, these two persons lived together as wife and husband at Cabrera Street, Pasay City. They acquired properties but had no children. In the early part of the liberation of Manila and surrounding territory, Matea be came seriously ill. Knowing her critical condition, two young ladies of legal age dedicated to the service of God, named Carmen Ordiales and Judith Vizcarra1 visited and persuaded her to go to confession. They fetched Father Gerardo Bautista, Catholic parish priest of Pasay. The latter, upon learning that the penitent had been living with Felipe Apelan Felix without benefit of marriage, asked both parties to ratify their union according to the rites of his Church. Both agreed. Whereupon the priest heard the confession of the bed-ridden old woman, gave her Holy Communion, administered the Sacrament of Extreme Unction and then solemnized her marriage with Felipe Apelan Felix in articulo mortis,2 Carmen Ordiales and Judith Vizcarra acting as sponsors or witnesses. It was then January 29 or 30, 1945. After a few months, Matea recovered from her sickness; but death was not to be denied, and in January 1946, she was interred in Pasay, the same Fr. Bautista performing the burial ceremonies. On May 12, 1952, Arsenio de Loria and Ricarda de Loria filed this complaint to compel defendant to an accounting and to deliver the properties left by the deceased. They are grandchildren of Adriana de la Cruz, sister of Matea, and claim to be the only surviving forced heirs of the latter. Felipe Apelan Felix resisted the action, setting up his rights as widower. They obtained favorable judgment in the court of first instance, but on appeal the Court of Appeals reversed and dismissed the complaint. Their request for review here was given due course principally to consider the legal question-which they amply discussed in their petition and printed brief whether the events which took place in January 1945 constituted, in the eyes of the law, a valid and binding marriage. According to the Court of Appeals: There is no doubt at all in the mind of this Court, that Fr. Gerardo Bautista, solemnized the marriage in articulo mortis of Defendant Apelan Felix and Matea de la Cruz, on January 29 and 30, 1945, under the circumstances set RICARDA DE LORIA, petitioners,

forth in the reverend's testimony in court. Fr. Bautista, a respectable old priest of Pasay City then, had no reason to side one or the other. . . . Notwithstanding this positive evidence on the celebration or performance of the marriage in question, Plaintiffs-Appellees contend that the same was not in articulo mortis, because Matea de la Cruz was not then on the point of death. Fr. Bautista clearly testified, however, that her condition at the time was bad; she was bed-ridden; and according to his observation, she might die at any moment (Exhibit 1), so apprehensive was he about her condition that he decided in administering to her the sacrament of extreme unction, after hearing her confession. . . . .The greatest objection of the Appellees and the trial court against the validity of the marriage under consideration, is the admitted fact that it was not registered. The applicable legal provisions are contained in the Marriage Law of 1929 (Act No. 3613) as amended by Commonwealth Act No. 114 (Nov. 1936) specially sections 1, 3, 20 and 21. There is no question about the officiating priest's authority to solemnize marriage. There is also no question that the parties had legal capacity to contract marriage, and that both declared before Fr. Bautista and Carmen Ordiales and Judith Vizcarra that "they took each other as husband and wife." The appellants' contention of invalidity rests on these propositions: (a) There was no "marriage contract" signed by the wedded couple the witnesses and the priest, as required by section 3 of the Marriage Law; and (b) The priest filed no affidavit, nor recorded the marriage with the local civil registry. The factual basis of the first proposition no signing may seriously be doubted. The Court of Appeals made no finding thereon. Indeed if anything, its decision impliedly held such marriage contract to have been executed, since it said "the marriage in articulo mortis was a fact", and the only question at issue was whether "the failure of Fr. Bautista to send copies of the certificate of marriage in question to the Local Civil Registrar and to register the said marriage in the Record of Marriages of the Pasay Catholic Church . . . renders the said marriage invalid." And such was the only issue tendered in the court of first instance. (See p. 14, 34, Record on Appeal.) However, we may as well face this second issue: Does the failure to sign the "marriage certificate or contract" constitute a cause for nullity? Marriage contract is the "instrument in triplicate" mentioned in sec. 3 of the Marriage Law which provides: Sec. 3. Mutual Consent. No particular form for the ceremony of marriage is required, but the parties with legal capacity to contract marriage must

declare, in the presence of the person solemnizing the marriage and of two witnesses of legal age, that they take each other as husband and wife. This declaration shall be set forth in an instrument in triplicate, signed by signature or mark by the contracting parties and said two witnesses and attested by the person solemnizing the marriage. . . . (Emphasis ours). In the first place, the Marriage Law itself, in sections 28, 29 and 30 enumerates the causes for annulment of marriage. Failure to sign the marriage contract is not one of them. In the second place, bearing in mind that the "essential requisites for marriage are the legal capacity of the contracting parties and their consent" (section 1), the latter being manifested by the declaration of "the parties" "in the presence of the person solemnizing the marriage and of two witnesses of legal age that they take each other as husband and wife" which in this case actually occurred.3 We think the signing of the marriage contract or certificate was required by the statute simply for the purpose of evidencing the act.4 No statutory provision or court ruling has been cited making it an essential requisite not the formal requirement of evidentiary value, which we believe it is. The fact of marriage is one thing; the proof by which it may be established is quite another.

In the third place, the law, imposing on the priest the duty to furnish to the parties copies of such marriage certificate (section 16) and punishing him for its omission (section 41) implies his obligation to see that such "certificate" is executed accordingly. Hence, it would not be fair to visit upon the wedded couple in the form of annulment, Father Bautista's omission, if any, which apparently had been caused by the prevailing disorder during the liberation of Manila and its environs. Identical remarks apply to the priest's failure to make and file the affidavit required by sections 20 and 21. It was the priest's obligation; non-compliance with it, should bring no serious consequences to the married pair, specially where as in this case, it was caused by the emergency. The mere fact that the parish priest who married the plaintiff's natural father and mother, while the latter was in articulo mortis, failed to send a copy of the marriage certificate to the municipal secretary, does not invalidate said marriage, since it does not appear that in the celebration thereof all requisites for its validity were not present, the forwarding of a copy of the marriage certificate not being one of the requisites. (Jones vs. Hortiguela, 64 Phil. 179.) See also Madridejo vs. De Leon, 55 Phil. 1. The law permits in articulo mortis marriages, without marriage license; but it requires the priest to make the affidavit and file it. Such affidavit contains the data usually required for the issuance of a marriage license. The first practically substitutes the latter. Now then, if a marriage celebrated without the license is not voidable (under Act 3613),5 this marriage should not also be voidable for lack of such affidavit. In line with the policy to encourage the legalization of the union of men and women who have lived publicly in a state of concubinage6, (section 22), we must hold this marriage to be valid. The widower, needless to add, has better rights to the estate of the deceased than the plaintiffs who are the grandchildren of her sister Adriana. "In the absence of brothers or sisters and of nephews, children of the former, . . . the surviving spouse . . . shall succeed to the entire estate of the deceased. (Art 952, Civil Code.) Wherefore, the Court of Appeals' decision is affirmed, with costs. So ordered.

Certificate and Record. Statutes relating to the solemnization of marriage

usually provide for the issuance of a certificate of marriage and for the registration or recording of marriage . . . Generally speaking, the registration or recording of a marriage is not essential to its validity, the statute being addressed to the officials issuing the license, certifying the marriage, and making the proper return and registration or recording. (Sec. 27 American Jurisprudence "Marriage" p. 197-198.)

Formal Requisites. . . . The general rule, however, is that statutes which

direct that a license must be issued and procured, that only certain persons shall perform the ceremony, that a certain number of witnesses shall be present, that a certificate of the marriage shall be signed, returned, and recorded, and that persons violating the conditions shall be guilty of a criminal offense, are addressed to persons in authority to secure publicity and to require a record to be made of the marriage contract. Such statutes do not void common-law marriages unless they do so expressly, even where such marriage are entered into without obtaining a license and are not recorded. It is the purpose of these statutes to discourage deception and seduction, prevent illicit intercourse under the guise of matrimony, and relieve from doubt the status of parties who live together as man and wife, by providing competent evidence of the marriage. . . . (Section 15 American Jurisprudence "Marriage" pp. 188-189.) Emphasis Ours. (See also Corpus Juris Secundum "Marriage" Sec. 33.) And our law says, "no marriage shall be declared invalid because of the absence of one or several formal requirements of this Act . . . ." (Section 27.)

14. Pugeda vs Trias FABIAN PUGEDA, plaintiff-appellee, vs. RAFAEL TRIAS, MIGUEL TRIAS, SOLEDAD TRIAS, assisted by her husband ANGEL SANCHEZ, CLARA TRIAS, assisted by her husband VICTORIANO SALVADOR, GABRIEL TRIAS, minors ROMULO VINIEGRA, GLORIA VINIEGRA and FERNANDO VINIEGRA, JR., assisted by guardian-ad-litem, RAFAEL TRIAS, TEOFILO PUGEDA, and VIRGINIA PUGEDA, assisted by her husband RAMON PORTUGAL,defendants-appellants. RESOLUTION LABRADOR, J.: This resolution concerns a motion for the reconsideration of the decision rendered by this Court. The main argument in support of the motion is that the lots not fully paid for at the time of the death of Miguel Trias, which lots were, by provision of the Friar Lands Act (Act No. 1120), subsequently transferred to the widow's name and later paid for by her out of the proceeds of the fruits of the lands purchased, and for which titles were issued in the name of the widow, belong to the latter as her exclusive paraphernal properties, and are not conjugal properties of her deceased husband and herself. In our decision we laid down the rule that upon the issuance of a certificate of sale to the husband of a lot in a friar lands estate, purchased by the Government from the friars, the land becomes the property of the husband and the wife, and the fact that the certificate of sale is thereafter transferred to the wife does not change the status of the property so purchased as conjugal property of the deceased husband and wife. The reason for this ruling is the provision of the Civil Code to the effect that properties acquired by husband and wife are conjugal properties. (Art. 1401, Civil Code of Spain). The provision of the Friar Lands Act to the effect that upon the death of the husband the certificate of sale is transferred to the name of the wife is merely an administrative device designed to facilitate the documentation of the transaction and the collection of installments; it does not produce the effect of destroying the character as conjugal property of the lands purchased. Hence, the issuance of the title, after completion of the installments, in the name of the widow does not make the friar lands purchased her own paraphernal property. The said lands, notwithstanding a certificate of sale, continue to be the conjugal property of her deceased husband and herself. The case of Arayata vs. Joya, et al., 51 Phil. 654, cited by the movants, is not applicable to the case at bar because it refers to the superior rights of the widow recognized in Section 16 of Act No. 1120 over transfers made by the husband which have not been approved by the Director of Lands. As a matter of fact the syllabus in said case is as follows:

Widow's rights. The widow of a holder of a certificate of sale of friar lands

acquired by the Government has an exclusive right to said lands and their fruits from her husband's death, provided that the deceased has not conveyed them to another during his lifetime and she fulfills the requirements prescribed by the law for the purchase of the same. A minor ground for the reconsideration is that the decision of Judge Lucero, having been set aside by the Court of Appeals, could not be affirmed by Us. The setting aside of the said decision was due to the fact that newly discovered evidence was found regarding the partition of the estate of the deceased. The setting aside of the decision was not aimed or directed at the judge's ruling that the properties acquired by the husband during his lifetime from the friar lands estate were conjugal properties of the husband and the wife.. The third ground raised is that the lots were never partitioned as conjugal assets of Mariano Trias and Maria C. Ferrer. One of the arguments adduced in favor of the claim of the movants that the properties in question, which were acquired during the lifetime of Mariano Trias, were never partitioned is that, according to the records of the Register of Deeds and according to the friar lands agents, the alleged partition of the said properties as conjugal properties of the deceased Mariano Trias and Maria C. Ferrer had not been registered in said offices. The failure to make the registration is perhaps due to the neglect the heirs. The fact, however, remains that the exhibits presented in Court, especially Exhibit "3-Trias" and Annex "E", which are the project of partition and the approval thereof, cannot be ignored by this Court. The neglect of the parties in not actually partitioning the properties do not argue in favor of the fact that partition was not a actually decreed. Adjudications may be made pro indivisowithout actual division or partition of the properties among the heirs. WHEREFORE, the motion for reconsideration is hereby denied and the judgment rendered declared final. So ordered.

15. Eugenio vs Velez TOMAS EUGENIO, SR., petitioner, vs. HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City, DEPUTY SHERIFF JOHNSON TAN, JR., Deputy Sheriff of Branch 20, Regional Trial Court, Cagayan de Oro City, and the Private Respondents, the petitioners in Sp. Proc. No. 88-55, for "Habeas Corpus", namely: CRISANTA VARGAS-SANCHEZ, SANTOS and NARCISA VARGAS-BENTULAN, respondents. PADILLA, J.: On 5 October 1988, petitioner came to this Court with a petition for certiorari and prohibition with application for restraining order and/or injunction (docketed as G.R. No. 85140) seeking to enjoin respondent Judge from proceeding with the H abeas Corpus case (Sp. Proc. No. 88- 55, RTC, Branch 20, Cagayan de Oro City), * the respondent Sheriff from enforcing and implementing the writ and orders of the respondent Judge dated 28, 29, and 30 September 1988, and to declare said writ and orders as null and void. In a resolution issued on 11 October 1988, this Court required comment from the respondents on the petition but denied the application for a temporary restraining order. The records disclose the following: Unaware of the death on 28 August 1988 of (Vitaliana Vargas Vitaliana for brevity), her full blood brothers and sisters, herein private respondents (Vargases', for brevity) filed on 27 September 1988, a petition for habeas corpus before the RTC of Misamis Oriental (Branch 20, Cagayan de Oro City) alleging that Vitaliana was forcibly taken from her residence sometime in 1987 and confined by herein petitioner in his palacial residence in Jasaan, Misamis Oriental. Despite her desire to escape, Vitaliana was allegedly deprived of her liberty without any legal authority. At the time the petition was filed, it was alleged that Vitaliana was 25 years of age, single, and living with petitioner Tomas Eugenio. The respondent court in an order dated 28 September 1988 issued the writ of habeas corpus, but the writ was returned unsatisfied. Petitioner refused to surrender the body of Vitaliana (who had died on 28 August 1988) to the respondent sheriff, reasoning that a corpse cannot be the subject of habeas corpus proceedings; besides, according to petitioner, he had already obtained a burial permit from the Undersecretary of the Department of Health, authorizing the burial at the palace quadrangle of the Philippine Benevolent Christian Missionary, Inc. (PBCM), a registered religious sect, of which he (petitioner) is the Supreme President and Founder. Petitioner also alleged that Vitaliana died of heart failure due to toxemia of pregnancy in his residence on 28 August 1988. As her common law husband, petitioner claimed

legal custody of her body. These reasons were incorporated in an explanation filed before the respondent court. Two (2) orders dated 29 and 30 September 1988 were then issued by respondent court, directing delivery of the deceased's body to a funeral parlor in Cagayan de Oro City and its autopsy. Petitioner (as respondent in the habeas corpus proceedings) filed an urgent motion to dismiss the petition therein, claiming lack of jurisdiction of the court over the nature of the action under sec. 1(b) of Rule 16 in relation to sec. 2, Rule 72 of the Rules of Court. 1 A special proceeding for habeas corpus, petitioner argued, is not applicable to a dead person but extends only to all cases of illegal confinement or detention of a live person. Before resolving the motion to dismiss, private respondents (as petitioners below) were granted leave to amend their petition. 2 Claiming to have knowledge of the death of Vitaliana only on 28 September 1988 (or after the filing of the habeas corpus petition), private respondents (Vargases') alleged that petitioner Tomas Eugenia who is not in any way related to Vitaliana was wrongfully interfering with their (Vargases') duty to bury her. Invoking Arts. 305 and 308 of the Civil Code, 3 the Vargases contended that, as the next of kin in the Philippines, they are the legal custodians of the dead body of their sister Vitaliana. An exchange of pleadings followed. The motion to dismiss was finally submitted for resolution on 21 October 1988. In the absence of a restraining order from this Court, proceedings continued before the respondent court; the body was placed in a coffin, transferred to the Greenhills Memorial Homes in Cagayan de Oro City, viewed by the presiding Judge of respondent court, and examined by a duly authorized government pathologist. 4 Denying the motion to dismiss filed by petitioner, the court a quo held in an order, 5 dated 17 November 1988, that: It should be noted from the original petition, to the first amended petition, up to the second amended petition that the ultimate facts show that if the person of Vitaliana Vargas turns out to be dead then this Court is being prayed to declare the petitioners as the persons entitled to the custody, interment and/or burial of the body of said deceased. The Court, considering the circumstance that Vitaliana Vargas was already dead on August 28, 1988 but only revealed to the Court on September 29, 1988 by respondent's counsel, did not lose jurisdiction over the nature and subject matter of this case because it may entertain this case thru the allegations in the body of the petition on the determination as to who is entitled to the custody of the dead body of the late Vitaliana Vargas as well as the burial or interment thereof, for the reason that under the provisions of Sec. 19 of Batas Pambansa Blg. 129, which reads as follows:

Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; xxx xxx xxx (5) In all actions involving the contract of marriage and marital relations; (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions: xxx xxx xxx it so provides that the Regional Trial Court has exclusive original jurisdiction to try this case. The authority to try the issue of custody and burial of a dead person is within the lawful jurisdiction of this Court because of Batas Pambansa Blg. 129 and because of the allegations of the pleadings in this case, which are enumerated in Sec. 19, pars. 1, 5 and 6 of Batas Pambansa Blg. 129. Thereafter, the court a quo proceeded as in or civil cases and, in due course, rendered a decision on 17 January 1989, 6 resolving the main issue of whether or not said court acquired jurisdiction over the case by treating it as an action for custody of a dead body, without the petitioners having to file a separate civil action for such relief, and without the Court first dismissing the original petition for habeas corpus. Citing Sections 19 and 20 Act of 1981), 7 Sections 5 308 in relation to Article Administrative Code, 9 the of Batas Pambansa Blg. 129 (the Judiciary Reorganization and 6 of Rule 135 of the Rules of Court 8 Articles 305 and 294 of the Civil Code and Section 1104 of the Revised decision stated:

Satisfied with its jurisdiction, the respondent court then proceeded to the matter of rightful custody over the dead body, (for purposes of burial thereof). The order of preference to give support under Art. 294 was used as the basis of the award. Since there was no surviving spouse, ascendants or descendants, the brothers and sisters were preferred over petitioner who was merely a common law spouse, the latter being himself legally married to another woman. 11 On 23 January 1989, a new petition for review with application for a temporary restraining order and/or preliminary injunction was filed with this Court (G.R. No. 86470). Raised therein were pure questions of law, basically Identical to those raised in the earlier petition (G.R. No. 85140); hence, the consolidation of both cases. 12 On 7 February 1989, petitioner filed an urgent motion for the issuance of an injunction to maintain status quo pending appeal, which this Court denied in a resolution dated 23 February 1989 stating that "Tomas Eugenio has so far failed to sufficiently establish a clear legal right to the custody of the dead body of Vitaliana Vargas, which now needs a decent burial." The petitions were then submitted for decision without further pleadings. Between the two (2) consolidated petitions, the following issues are raised: 1. propriety of a habeas corpus proceeding under Rule 102 of the Rules of Court to recover custody of the dead body of a 25 year old female, single, whose nearest surviving claimants are full blood brothers and sisters and a common law husband. 2. jurisdiction of the RTC over such proceedings and/or its authority to treat the action as one for custody/possession/authority to bury the deceased/recovery of the dead. 3. interpretation of par. 1, Art. 294 of the Civil Code (Art. 199 of the new Family Code) which states: Art. 294. The claim for support, when proper and two or more persons are obliged to give it, shall be made in the following order: (1) From the spouse; xxx xxx xxx Section 19, Batas Pambansa Blg. 129 provides for the exclusive original jurisdiction of the Regional Trial Courts over civil cases. Under Sec. 2, Rule 102 of the Rules of Court, the writ of habeas corpus may be granted by a Court of First Instance (now Regional Trial Court). It is an elementary rule of procedure that what controls is not the caption of the complaint or petition; but the allegations therein determine the

. . . . By a mere reading of the petition the court observed that the allegations in the original petition as well as in the two amended petitions show that Vitaliana Vargas has been restrained of her liberty and if she were dead then relief was prayed for the custody and burial of said dead person. The amendments to the petition were but elaborations but the ultimate facts remained the same, hence, this court strongly finds that this court has ample jurisdiction to entertain and sit on this case as an action for custody and burial of the dead body because the body of the petition controls and is binding and since this case was raffled to this court to the exclusion of all other courts, it is the primary duty of this court to decide and dispose of this case. . . . . 10

nature of the action, and even without the prayer for a specific remedy, proper relief may nevertheless be granted by the court if the facts alleged in the complaint and the evidence introduced so warrant. 13 When the petition for habeas corpus was filed before the court a quo, it was not certain whether Vitaliana was dead or alive. While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfimetory operation on the filing of the petition. Judicial discretion is exercised in its issuance, and such facts must be made to appear to the judge to whom the petition is presented as, in his judgment, prima facie entitle the petitioner to the writ. 14 While the court may refuse to grant the writ if the petition is insufficient in form and substance, the writ should issue if the petition complies with the legal requirements and its averments make a prima facie case for relief. However, a judge who is asked to issue a writ of habeas corpus need not be very critical in looking into the petition for very clear grounds for the exercise of this jurisdiction. The latter's power to make full inquiry into the cause of commitment or detention will enable him to correct any errors or defects in the petition. 15 In Macazo and Nunez vs. Nunez, 16 the Court frowned upon the dismissal of a habeas corpus petition filed by a brother to obtain custody of a minor sister, stating: All these circumstances notwithstanding, we believe that the case should not have been dismissed. The court below should not have overlooked that by dismissing the petition, it was virtually sanctioning the continuance of an adulterous and scandalous relation between the minor and her married employer, respondent Benildo Nunez against all principles of law and morality. It is no excuse that the minor has expressed preference for remaining with said respondent, because the minor may not chose to continue an illicit relation that morals and law repudiate. xxx xxx xxx The minor's welfare being the paramount consideration, the court below should not allow the technicality, that Teofilo Macazo was not originally made a party, to stand in the way of its giving the child full protection. Even in a habeas corpus proceeding the court had power to award temporary custody to the petitioner herein, or some other suitable person, after summoning and hearing all parties concerned. What matters is that the immoral situation disclosed by the records be not allowed to continue. 17 After the fact of Vitaliana's death was made known to the petitioners in the habeas corpus proceedings,amendment of the petition for habeas corpus, not dismissal, was proper to avoid multiplicity of suits. Amendments to pleadings are generally favored and should be liberally allowed in furtherance of justice in order that every case may

so far as possible be determined on its real facts and in order to expedite the trial of cases or prevent circuity of action and unnecessary expense, unless there are circumstances such as inexcusable delay or the taking of the adverse party by surprise or the like, which justify a refusal of permission to amend. 18 As correctly alleged by respondents, the writ of habeas corpus as a remedy became moot and academic due to the death of the person allegedly restrained of liberty, but the issue of custody remained, which the court a quo had to resolve. Petitioner claims he is the spouse contemplated under Art. 294 of the Civil Code, the term spouse used therein not being preceded by any qualification; hence, in the absence of such qualification, he is the rightful custodian of Vitaliana's body. Vitaliana's brothers and sisters contend otherwise. Indeed, Philippine Law does not recognize common law marriages. A man and woman not legally married who cohabit for many years as husband and wife, who represent themselves to the public as husband and wife, and who are reputed to be husband and wife in the community where they live may be considered legally mauled in common law jurisdictions but not in the Philippines.19 While it is true that our laws do not just brush aside the fact that such relationships are present in our society, and that they produce a community of properties and interests which is governed by law, 20 authority exists in case law to the effect that such form of co-ownership requires that the man and woman living together must not in any way be incapacitated to contract marriage. 21 In any case, herein petitioner has a subsisting marriage with another woman, a legal impediment which disqualified him from even legally marrying Vitaliana. In Santero vs. CFI of Cavite, 22 ,the Court, thru Mr. Justice Paras, interpreting Art. 188 of the Civil Code (Support of Surviving Spouse and Children During Liquidation of Inventoried Property) stated: "Be it noted however that with respect to 'spouse', the same must be the legitimate 'spouse' (not common-law spouses)." There is a view that under Article 332 of the Revised Penal Code, the term "spouse" embraces common law relation for purposes of exemption from criminal liability in cases of theft, swindling and malicious mischief committed or caused mutually by spouses. The Penal Code article, it is said, makes no distinction between a couple whose cohabitation is sanctioned by a sacrament or legal tie and another who are husband and wife de facto. 23 But this view cannot even apply to the facts of the case at bar. We hold that the provisions of the Civil Code, unless expressly providing to the contrary as in Article 144, when referring to a "spouse" contemplate a lawfully wedded spouse. Petitioner vis-a-vis Vitaliana was not a lawfully-wedded spouse to her; in fact, he was not legally capacitated to marry her in her lifetime. Custody of the dead body of Vitaliana was correctly awarded to her surviving brothers and sisters (the Vargases). Section 1103 of the Revised Administrative Code provides: Sec. 1103. Persons charged with duty of burial. The immediate duty of burying the body of a deceased person, regardless of the ultimate liability for the expense thereof, shall devolve upon the persons hereinbelow specified:

xxx xxx xxx (b) If the deceased was an unmarried man or woman, or a child, and left any kin, the duty of burial shall devolve upon the nearest of kin of the deceased, if they be adults and within the Philippines and in possession of sufficient means to defray the necessary expenses. WHEREFORE, the decision appealed from is AFFIRMED. Both petitions are hereby DISMISSED. No Costs. SO ORDERED.

16. Martinez vs Tan ROSALIA MARTINEZ, plaintiff-appellant, vs. ANGEL TAN, defendant-appellee

The only direct evidence in favor of the plaintiff is her own testimony that she never appeared before the justice of the peace and never was married to the defendant. She admits that she signed the document in question, but says that she signed it in her own home, without reading it, and at the request of the defendant, who told her that it was a paper authorizing him to ask the consent of her parents to the marriage. There is some indirect evidence which the plaintiff claims supports her case, but which we think, when properly considered, is not entitled to much weight. The plaintiff at the time was visiting, in the town of Palompon, her married brother and was there for about two weeks. The wife of her brother, Rosario Bayot, testified that the plaintiff never left the house except in her company. But she admitted on cross-examination that she herself went to school every morning and that on one occasion the plaintiff had gone to church unaccompanied. The testimony of this witness loses its force when the testimony of Pacita Ballori is considered. She says that at the request of the defendant on the day named, about 5 o'clock in the afternoon, she went to the store of a Chinese named Veles; that there she met the plaintiff and her mother; that she asked the mother of the plaintiff to allow the plaintiff to accompany her, the witness, to her own house for the purpose of examining some dress patterns; that the mother gave her consent and the two girls left the store, but instead of going to the house of the witness they went directly to the office of the justice of the peace where the ceremony took place; that after the ceremony had taken place, one came advising them that the mother was approaching, and that they thereupon hurriedly left the office of the justice and went to the house of Pacita Ballori, where the mother later found them. The other testimony of the plaintiff relating to certain statements made by the justice of the peace, who died after the ceremony was performed and before the trial, and certain statements made by Pacita Ballori, is not sufficient to overcome the positive testimony of the witnesses for the defendant. The testimony of Pacita Ballori is severely criticized by counsel for the appellant in his brief. It appears that during her first examination she was seized with an hysterical attack and practically collapsed at the trial. Her examination was adjourned to a future day and was completed in her house where she was sick in bed. It is claimed by counsel that her collapse was due to the fact that she recognized that she testified falsely in stating that the office of the justice of the peace was at the time in the municipal building, when, in fact, it was in a private house. We do not think that the record justifies the claim of the appellant. The statement as to the location of the office of the justice of the peace was afterwards corrected by the witness and we are satisfied that she told the facts substantially as they occurred. There is, moreover, in the case written evidence which satisfies us that the plaintiff was not telling the truth when she said she did not appear before the justice of the peace. This evidence consists of eight letters, which the defendant claims were all written by the plaintiff. The plaintiff admits that she wrote letters numbered 2 and 9. The authenticity of the others was proven. No. 9 is as follows:

DECISION WILLARD, J p: The only question in this case is whether or not the plaintiff and the defendant were married on the 25th day of September, 1907, before the justice of the peace, Jose Ballori, in the town of Palompon in the Province of Leyte. There was received in evidence at the trial what is called an expediente de matrimonio civil. It is written in Spanish and consists, first, of a petition

directed to the justice of the peace, dated on the 25th of September, 1907, signed by the plaintiff and the defendant, in which they state that they have mutually agreed to enter into a contract of marriage before the justice of the peace, and ask that the justice solemnize the marriage. Following this is a document dated on the same day, signed by the justice of the peace, by the plaintiff, by the defendant, and by Zacarias Esmero and Pacita Ballori. It states the presentation of the petition above mentioned; that the persons who signed it were actually present in the office of the justice on the day named; that they ratified under oath the contents of the petition, and that they insisted in that they had there asked for. It also stated that being required to produce witnesses of the marriage, they presented Zacarias Esmero as a witness for the husband and Pacita Ballori as a witness for the wife. Following this is a certificate of marriage signed by the justice of the peace and the witnesses Zacarias Esmero and Pacita Ballori, dated the 25th day of September, 1907, in which it is stated that the plaintiff and the defendant were legally married by the justice of the peace in the presence of the witnesses on that day. The court below decided the case in favor of the defendant, holding that the parties were legally married on the day named. The evidence in support of that decision is: First. The document itself, which the plaintiff admits that she signed. Second. The evidence of the defendant, who testifies that he and the plaintiff appeared before the justice of the peace at the time named, together with the witnesses Zacarias Esmero and Pacita Ballori, and that they all signed the document above mentioned. Third. The evidence of Zacarias Esmero, one of the above-named witnesses, who testifies that the plaintiff, the defendant, and Pacita Ballori appeared before the justice at the time named and did sign the document referred to. Fourth. The evidence of Pacita Ballori, who testified to the same effect. Fifth. The evidence of Jose Santiago, the bailiff of the court of the justice of the peace, who testified that the plaintiff, the defendant, the two witnesses above-named, and the justice of the peace were all present in the office of the justice of the peace at the time mentioned.

"ANGEL: Up to this time I did not see my father; but I know that he is very angry and if he be informed that we have been married civilly, I am sure that he will turn me out of the house. "Do what you may deem convenient, as I don't know what to do. "Should I be able to go tomorrow to Merida, I shall do so, because I can not remain here. "Yours,ROSAL" Letter No. 6, which bears no date, but which undoubtedly was written on the morning of the 25th of September, is as follows: "Sr. D. ANGEL TAN. "ANGEL: It is impossible for me to go to the house of Veles this morning because my sister-in-law will not let me go there; if it suits you, I believe that this afternoon, about 5 or 6 o'clock, is the best hour. "Arrange everything, as I shall go there only for the purpose of signing, and have Pacita wait for me at the Chinese store, because I don't like to go without Pacita. "The house must be one belonging to prudent people, and no one should know anything about it. "Yours,ROSAL." It will be noticed that this corroborates completely the testimony of Pacita Ballori as to her meeting the plaintiff in the afternoon at the store of the Chinese, Veles. Letter No. 7 is also undated, but was evidently written after the marriage before the justice of the peace. It is as follows: "Sr. D. ANGEL TAN. "ANGEL: If you want to speak to my mother, who is also yours, come here by and by, at about 9 or 10, when you see that the tide is high because my brother will have to go to the boat for the purpose of loading lumber. "Don't tell her that we have been civilly married, but tell her at first that you are willing to celebrate the marriage at this time, because I don't like her to know to-day that we have been at the court-house, inasmuch as she told me this morning that she heard that we would go to the court, and that we must not cause her to be ashamed, and that if I insist on being married I must do it right. "Tell her also that you have asked me to marry you. "I send you herewith the letter of your brother, in order that you may do what he wishes. "Yours,ROSAL."

Letter No. 8 was also evidently written after the marriage and is in part as follows: "Sr. D. ANGEL TAN. "ANGEL: I believe it is better for you to go to Ormoc on Sunday on the steamer Rosa, for the purpose of asking my father's permission for our marriage, and in case he fails to give it, then we shall do what we deem proper, and, if he does not wish us to marry without his permission, you must request his consent. "Tell me who said that my sister-in-law knows that we are civilly married; my brother's ill treatment is a matter of no importance, as every thing may be carried out, with patience." It was proven at the trial that the defendant did go to Ormoc on the steamer Rosa as indicated in this letter, and that the plaintiff was on the same boat. The plaintiff testified, however, that she had no communication with the defendant during the voyage. The plaintiff and the defendant never lived together as husband and wife, and upon her arrival in Ormoc, after consulting with her family, she went to Cebu and commenced this action, which was brought for the purpose of procuring the cancellation of the certificate of marriage and for damages. The evidence strongly preponderates in favor of the decision of the court below to the effect that the plaintiff appeared before the justice of the peace at the time named. It is claimed by the plaintiff that what took place before the justice of the peace, even admitting all that the witnesses for the defendant testified to, did not constitute a legal marriage. General Orders, No. 68, section 6, is as follows: "No particular form for the ceremony of marriage is required, but the parties must declare, in the presence of the person solemnizing the marriage, that they take each other as husband and wife." Zacarias Esmero, one of the witnesses, testified that upon the occasion in question the justice of the peace said nothing until after the document was signed and then addressing himself to the plaintiff and the defendant said, "You are married." The petition signed by the plaintiff and defendant contained a positive statement that they had mutually agreed to be married and they asked the justice of the peace to solemnize the marriage. The document signed by the plaintiff, the defendant, and the justice of the peace, stated that they ratified under oath, before the justice, the contents of the petition and that witnesses of the marriage were produced. A marriage took place as shown by the certificate of the justice of the peace, signed by both contracting parties, which certificate gives rise to the presumption that the officer authorized the marriage in due form, the parties before the justice of the peace declaring that they took each other as husband and wife, unless the contrary is proved, such presumption being corroborated in this case by the admission of the woman to the effect that she had contracted the marriage certified to in the document signed by her,

which admission can only mean that the parties mutually agreed to unite in marriage when they appeared and signed the said document which so states before the justice of the peace who authorized the same. It was proven that both the plaintiff and the defendant were able to read and write the Spanish language, and that they knew the contents of the document which they signed; and under the circumstances in this particular case we are satisfied, and so hold, that what took place before the justice of the peace on this occasion amounted to a legal marriage. The defendant's original answer was a general denial of the allegations contained in the complaint. Among these allegations was a statement that the parties had agreed to be married on condition that the defendant obtain previously the consent of the plaintiff's parents. The defendant was afterwards allowed to amend his answer so that it was a denial of all the allegations of the complaint except that relating to the condition in regard to the consent of the parents. The plaintiff objected to the allowance of this amendment. After the trial had commenced the defendant was again allowed to amend his answer so that it should be an admission of paragraphs 2 and 3 of the complaint, except that part which related to the consent of the parents. It will be seen that this second amendment destroyed completely the first amendment and the defendant's lawyer stated that what he had alleged in his second amendment was what he intended to allege in his first amendment, but by reason of the haste with which the first amendment was drawn he had unintentionally made it exactly the opposite of what he had intended to state. After argument the court allowed the second amendment. We are satisfied that in this allowance there was no abuse of discretion and we do not see how the plaintiff was in any way prejudiced. She proceeded with the trial of the case without asking for a continuance. The judgment of the court below acquitting the defendant of the complaint is affirmed, with the costs of this instance against the appellant.

17. Enriquez vs Enriquez RAFAEL ENRIQUEZ, ET AL., plaintiffs-appellees, vs. FRANCISCO ENRIQUEZ, ET AL., defendants-appellants. WILLARD, J p: The plaintiffs brought this action on the 10th day of December, 1901, asking that a deed made by the defendant Francisco Enriquez as attorney in fact for his father, Antonio Enriquez, on the 12th day of March, 1884, conveying to Victoriano Reyes the property in question in this suit, and the deed executed by Victoriano Reyes on the 5th of April, 1884, conveying to the defendant Carmen de la Cavada, wife of the defendant Francisco Enriquez the same property, be declared fraudulent and void and be set aside. Judgment was entered in the court below in favor of the plaintiff Rafael Enriquez, as administrator of the estates of Antonio Enriquez and Ciriaca Villanueva, deceased, declaring the deeds above mentioned void and ordering judgment against the defendant Carmen de la Cavada for the rents and profits of the said real estate, amounting to more than 21,000 pesos. From this judgment the defendants Francisco Enriquez and Carmen de la Cavada have appealed. A former appeal in this case is reported in 3 Philippine Reports, 746. On the 5th day of March, 1883, Antonio Enriquez executed a general power of attorney in favor of his son, the defendant Francisco Enriquez, by which the latter was authorized to sell and convey the property of AntonioEnriquez. It was by virtue of that power that Francisco Enriquez, during the lifetime of his father, executed the first of the deeds above mentioned. The property therein conveyed is described as follows: "There tenement houses erected on land belonging to the owner thereof, made of brick and lumber and situated on Calle Riberita, corner of Barraca, in the district of Binondo." It is now known as numbers 76 to 84, Calle Numancia. The consideration stated in the deed executed by Francisco Enriquez was 2,500 pesos. The consideration stated in the deed executed three or four weeks later by Victoriano Reyes was the same amount, 2,500 pesos. A great deal of evidence was introduced in the court below relating to these two transactions, the plaintiffs claiming that no money was paid by Reyes to Francisco Enriquez, now was any money paid by Carmen de la Cavada to Reyes. A somewhat similar case (Naval vs. Enriquez, 3 Phil. Rep., 669) was decided in favor of the defendants. In this case, however, we do not find it necessary to resolve the question as to whether these two transactions werebona fide or not, for we think that the parties afterwards, and in 1897, so dealt with the property in question that the plaintiffs have now no interest therein. The property was acquired by Antonio Enriquez in 1881, during his marriage with Ciriaca Villanueva. She died in the lifetime of her husband, and the claim of the plaintiffs is that this property belonged to the conjugal partnership; that upon the death of the wife the ownership of one half thereof passed

immediately to her heirs, Antonio Enriquez being thereafter the owner only of the other undivided half, and that when after the death of Ciriaca Villanueva, Francisco Enriquez, as attorney in fact for his father, attempted to convey all of the property to Victoriano Reyes, he, in fact, only conveyed an undivided half thereof, even on the assumption that the sale was in good faith and for actual value received. The appellants claim that no property can be considered as conjugal property until after the affairs of the partnership are liquidated, and that, this liquidation not having taken place at the time of the conveyance in question, the property can not be considered as conjugal property. We do not find it necessary to decide this question and will assume, for the purpose of this case only, that the theory of the plaintiffs is correct and that upon the death of Ciriaca Villanueva her heirs became the owners of an undivided half of the land in question. The plaintiffs in this action are Rafael Enriquez, as administrator not only of the estate of his father, who died in 1884, but also of the estate of his mother, Ciriaca Villanueva, who died in 1882, and some of the heirs at law of both Ciriaca Villanueva and Antonio Enriquez. So far as the undivided half belonging to Antonio Enriquez is concerned, the action is in effect one brought by the heirs of a principal against his agent to recover property which it is claimed the agent sold in violation of the terms of his appointment, or, in other words, property which the agent pretended to have sold but which, in fact, he never did sell. So far as the undivided half belonging to the heirs of Ciriaca Villanueva is concerned, the action is in effect one brought by them to set aside a conveyance of their property made by a person who pretended to have authority to convey but who, in fact, had no such authority. In 1897 the present plaintiffs, or the persons whom they represent, were all of full age and capable of making contracts. It is very evident that, assuming all that is claimed by the plaintiffs, namely, that the sale of the undivided half of the property belonging to Antonio Enriquez was fraudulent, and that the sale of the undivided half belonging to Ciriaca Villanueva was made by a person who had no authority to make it, it is nevertheless true that the parties interested, being, as has been before said, of full age, with capacity to make contracts, might make a contract by virtue of which they surrendered their rights to the property in suit; and the important question in the case is whether they did make such a contract or not. It appears from the record that prior to 1891 the heirs had been in litigation among themselves over the estates left by their father and mother. On the 22d of April, 1891, a document was signed by which the heirs agreed to abandon litigation and proceed to the settlement of the estates in an amicable way. Prior to that time FranciscoEnriquez, the eldest son of Antonio Enriquez, had been, and then was, the executor of his father's will. The purpose of that document was to secure a liquidation of his accounts, their examination and approval. On the 25th of August, 1896, the defendant Francisco Enriquez and the plaintiffs Rafael Enriquez and Antonio Enriquez executed another public document in which they referred to the document of the 22d of April, 1891. The document of 1896 stated the rules which should be followed in connection with

the examination and approval of the accounts. In pursuance of these rules, the three brothers who signed the document met from time to time in the office or Moreno Lacalle. Minutes of these meetings were kept and signed and some of them were offered in evidence in this case. Among these minutes so offered is that of the meeting of the 3d day of November, 1897. The accounting and the examination was to, and did, include not only the estate of Antonio Enriquez but also the estate of Ciriaca Villanueva, and it included not only the accounts of Francisco Enriquez as executor of his father's will but also his accounts as attorney in fact of his father prior to his death. In the minute of the meeting of the 3d of November, 1897, signed by Francisco, Rafael, and Antonio Enriquez, it is stated that the accounts are finally and definitely approved, and in regard to the property still belonging to the two estates it is stated that "the inventory is approved in accordance with the terms of the aforesaid draft" ( proyecto de escritura). The fifth clause of this minute is as follows: "Fifth. Rafael and Antonio Enriquez stated that, according to their belief, the dwelling house No. 9 Calle David, the three tenement houses situated on Calle Barraca, all of them located in the district of Binondo, and another house located on Calle Baluarte (or Fundacion) belonged to the estate, and in consequence of such belief they requested that said property be included in the inventory. Francisco Enriquez replied that the house at No. 9 Calle David was sold by his late father to his wife in consideration of the sum of 8,000 pesos, by a deed executed on March 27, 1883, attested by Miguel Torres, a notary public, a copy of which is before the claimants. That the house on Calle Fundacion was likewise sold by his late father on a date which is unable to state on account of the lack of necessary data; that the tenement houses on Calle Barraca (or Riberita) were, on March 12, 1884, sold by Francisco, in his capacity of attorney in fact his father, to Victoriano de los Reyes, for the sum of 2,500 pesos, which amount, plus 500 pesos, was sent in a draft to his father through ManuelEnriquez. The letter of acknowledgment of the latter amounts as well as the deed of sale are at the disposition of the parties claimant. "In view of the above, it is agreed upon by the parties to include in the inventory neither the house No. 9 Calle David nor the tenement houses on Calle Barraca, inasmuch as the conveyance thereof was duly explained. It is, however, agreed that the purchase price of the latter property be entered in the debit column of the accounts of the administration, pending the presentation by Francisco of the vouchers relating to the amount of said purchase price; and, as regards the house on Calle Fundacion, it is resolved to obtain more data on which to act." The minute of this meeting was signed by Francisco, Rafael, and Antonio Enriquez. They thereby expressed their agreement therewith. On the

20th day of November, 1897, a public document was executed in due form before Enrique Barrera, a notary public of Manila. This document was signed by all of the present plaintiffs, or by the persons whom they represent, either personally or by attorneys in fact, duly authorized so to do. That document contains the following statement: "First. That by deed No. 537 granted in this city by the parties now appearing, Francisco, Rafael, and Antonio Enriquez, on the 25th day of August, 1896, before the notary of the College of Manila, Jose Engracio Monroy, which deed is hereby ratified by the said parties, each of them in their own behalf and on behalf of the persons whom they represent (as stated at the beginning of the present document) agreed to the fact that the estates of their deceased parents, Antonio Enriquez y Sequera and Ciriaca Villanueva, were pending the formation of an inventory of the same, subject, in the first place, to the examination and approval of the administrator's accounts by the parties interested in the said estate, and, in the second place, to the determination of the property belonging to said estates; and, in order to carry on both purposes and all other requisites necessary for the division of the estates, among other particulars they agreed: (1) That the said parties, Rafael and Antonio Enriquez, should proceed to examine the accounts of the estates corresponding to the period from 1884 to the 30th of June, 1896, submitted by Francisco Enriquez as executor of his father, and the account of 1883, submitted by the same person as administrator of his father during the above year, which examination should be verified within a certain term; and, should any objections arise, that the same should be settled in accordance with the rules laid down in the above- mentioned deed; and (2) that the said Francisco, as executor, should submit to his brothers a statement of the property, in order that the latter might examine it in the manner provided in the said deed. "Second. That both agreement have been executed by the said parties, the above-mentioned accounts having been duly examined by Rafael and Antonio Enriquez, who made some objections thereto which were treated according to the stipulations, the same having been resolved by mutual agreement; and agreeing likewise that the executor's accounts from 1884 up to the end of June, 1896, as well as those of the administration of the estate of the deceased Antonio Enriquez during the year of 1883, be condensed in the following form: ASSETS. 1.Amounts collected by Francisco Enriquez y Villanueva from the beginning of 1883 up to June 30, 1896, as adminis-

trator of his father, Antonio Enriquez, during the first year, and as executor of the same from 1884 up to the said month of June$216,401.97 2.Sale price of a property consisting of three tenement houses situated in the Riberita, Binondo, belonging to the deceased Antonio Enriquez, which sale was effected on March 12, 1884, by Francisco Enriquez, as administrator of the former2,500.00" This document contains also the following provision: "4.The parties interested in the estates of Antonio Enriquez y Sequera and Ciriaca Villanueva y Solis, and in the name of all of them, the parties now appearing, with the respective representation claimed by each of them, as stated, fully approve (errors and omissions excepted) the accounts of the administration of the estates of the former during 1883 and those of the intestate estates of both deceased persons from 1884 up to June 30, 1896, which service have been performed by Francisco Enriquez y Villanueva, as appears in the said accounts as submitted and condensed in the form shown in second clause of this deed." There follows in the document an inventory of the real and personal property belonging to the estates to be distributed among the heirs. The property here in question is not included therein. These documents were before the court in the case of Enriquez vs. Enriquez (5 Phil. Rep., 668). The transaction relating to the house in Calle David was before the court in the case of Enriquez vs. Enriquez 1 (5 Off. Gaz., 665), just decided. The documents of November 3 and November 20, 1897, evidence a contract between the parties thereto. By the terms of that contract the plaintiffs definitely gave up and surrendered all claim to the property here in question and accepted in lieu thereof the obligation of Francisco Enriquez to pay 2,500 pesos therefor. Francisco Enriquez, on his part by the document of the 3d of November, claimed that he had already paid the 2,500 pesos, but agreed that if he could not produce written evidence to show such payment he would pay it over again, and by the document of the 20th of November he definitely agreed to pay it, whether he had paid it before or not.

It is said by the plaintiffs in one of their briefs that the settlement contained in this contract was never carried out. So far as the approval of the accounts and the determination of the property still remaining undistributed, there was nothing to be carried out. The contract was a final settlement of those questions. By the terms of the document of the 20th of November it appears that there was a balance against Francisco Enriquez, the executor, of 77,028 pesos and 63 centavos, but the document also states that this balance was not in the possession of the executor because he had from time to time made advances to the plaintiffs and the other heirs, and it provided that he should submit statements of such advances, which would be examined for the purpose of determining the amount which each one of the heirs was entitled to. This is what remained to be done under the contract, but it has nothing whatever to do with the settlement of the question as to what property then belonged to the estate and nothing to do with the particular property here involved. Why the amount of the balance to which each one of the persons was entitled after deducting the advances was not determined does not appear in this case. This contract, made between persons capable of contracting, is binding upon them as any other contract is unless it can be set aside for fraud, misrepresentation, or other similar reason. The documents above referred to were set out in the answer of the defendants and parts of the same were copied therein. The plaintiffs did not, by an amended complaint or in any other way, attack the validity of the documents, nor allege that they were not binding on them or that they were obtained by fraud or misrepresentation, nor did they ask in any pleading to have them set aside and declared void. At the trial of the action Rafael Enriquez and Antonio Enriquez, the persons who signed these documents for themselves and in representation of the other plaintiffs, testified as witnesses. In their testimony the documents are not mentioned, nor was any claim made by them therein that they were in any way deceived or defrauded in the execution thereof or that such execution was obtained by any fraud or misrepresentation on the part of Francisco Enriquez. In fact the documents are not in any way mentioned in their testimony. It is suggested that while the deed from Francisco Enriquez to Victoriano Reyes was exhibited to them when the documents were signed, yet the deed from Victoriano Reyes to the defendant Carmen de la Cavada was not so exhibited. Upon this point these witnesses remain silent. They did not testify that at the time they signed these documents they did not know that the property had been conveyed to Carmen de la Cavada, nor did they testify as to when they first learned of this transaction. Rafael Enriquez said that he came here in 1896 and has remained here ever since, and, as we judge from his testimony, his only object in coming here was to settle these matters. It is apparent that he devoted practically his whole time from his arrival until November, 1897, in examining the affairs relating to the estates. In his testimony he does not in any way indicate that he did not know when he signed these documents all that he now knows. It was alleged in the complaint that the value of this property at the time it was sold in 1884 to Victoriano Reyes was 20,000 pesos. No evidence was offered by the plaintiffs in support of this allegation and no evidence whatever was offered by them relating to the value at that time of the property thus conveyed. It was, however, proven by the defendants that this same property

was, on the 20th day of December, 1880, sold at public auction to one Antonio Lorenzo Barretto for the sum of 1,367 pesos; that on the 7th day of January, 1881, Barretto transferred to Antonio Enriquez all his interest in that purchase, and that on the 18th day of January, 1882, the then judge of the Court of First Instance of Manila conveyed the property of Antonio Enriquez for the said sum of 1,367 pesos. Parol evidence was also offered by the defendants which showed that at the time the property was conveyed to Victoriano Reyes in 1884 the house thereon were in a ruinous condition and occupied by Chinese and that the entire property was worth no more than 2,500 pesos. The contracts executed on the 3d day of November and the 20th day of November, 1897, are now binding upon the plaintiffs. By the terms thereof they gave up and surrendered all their interest in the property here in question, and this action, therefore, can not be maintained. The judgment of the court below is reversed, without costs to either party in this court, and judgment is entered acquitting the defendants of the complaint, with the costs of the first instance against the plaintiffs and in favor of the defendants Francisco Enriquez and Carmen de la Cavada. So ordered.

18. US vs Dulay THE UNITED STATES, plaintiff-appellee, vs. PASCUAL DULAY, defendant-appellant. TORRES, J p:

"Do go and hear mass tomorrow, and I will wait for you because I have a very important thing to ask you to do; hear mass without fail so that you may know what you ought to do; I will do the same so that our intentions may not have bad results. "Your brother [among Ilocanos, this word is used when the parties are very intimate, or when they are lovers], "PASCUAL." The above facts are duly proven in this case, and constitute the crime of estupro (seduction), defined and punished by article 443 paragraph 3 of the Penal Code, inasmuch as, by reason of the intimate relations between the accused and the injured party, the latter was seduced by his repeated promises of marriage, and she permitted him to lie with her on various occasions from the latter part of December, 1905, to the last days of April, 1906; in consequence of these acts the girl became pregnant and gave birth to a child on the 20th of October the following. Without any just reason the accused has refused to comply with the promise of marriage made to Gregoria Pimentel; therefore, it is clear that he acted deceitfully when making the promise solely with the unlawful purpose of inducing her to yield to his desire, and upon pretext of her pregnancy he wrote to her parents stating that he declined to carry out his promise of marriage. A promise of marriage given to a woman over 12 and under 23 years of age, with the evil intent of committing an unlawful act and voluntarily abandoned without just cause, constitutes the deceit referred to in article 458 of the Code of Spain, equivalent to article 443 of that of the Philippines, according to the doctrine established by the supreme court of Spain, among other decisions in that of October 7, 1864. The culpability of the accused as the only author of the crime can not be denied, inasmuch as he acknowledged that he had maintained intimate relations with the aforenamed Gregoria Pimentel from May 1904 to the same month in 1906. No evidence is offered that would even indicate that the girl had maintained any such relations with any man other than the accused, and in view of her affirmation that Pascual Dulay was the only man who did lie with her on the several occasions, beginning with a certain night in December, 1905, and that the accused was the father of the child to which she gave birth on the 20th of October 1906, it is unquestionable that the accused is responsible for the crime and that he has incurred the penalty that the law imposes, because he managed to have intercourse with the injured girl on several occasions by means of deceit and committed the seduction under promise of marriage. The translation of the letter without date, hereinbefore inserted, shows that the accused addressed it to the injured girl while he was still in the pueblo of Aringay, and before coming to this city; that he wrote the same after he had sexual intercourse with the girl, and at a time when he was aware that she had conceived and was pregnant; it was for this reason that he compelled her to inform her father of the offense that they had committed. The defendant alleges that from the latter part of December, 1905, to the 25th of April, 1906, he had not returned to his pueblo where the injured girl

In the month of May 1904, Pascual Dulay, of about 23 years of age, began courting Gregoria Pimentel a girl of 16, residing in the pueblo of Aringay, San Fernando, La Union. Their relations became every day more intimate, on account of the promises of marriage made by the accused Dulay, and the girl was seduced. The defendant accomplished his desire for the first time on a certain night in the latter part of December, 1905. The act was repeated on various occasions from that time until the 28th of April the following year. On the 29th of the latter month, the accused, besides the promise previously given to the injured girl, informed her parents of his intention to marry her, and following the advice of the parents the marriage was postponed until the time when the accused was to complete his studies. However, in the month of June following, in view of the fact that his fiancee was pregnant, the defendant disregarded his promise of marriage, and denied being the author of the girl's pregnancy. The latter positively asserted that she never had sexual intercourse with any other man, and that during his courtship he sent to her several letters, cards, photographs of himself, handkerchiefs, and a ring, all of which were exhibited at the trial and recognized by him. He confessed that he had maintained friendly relations with her, but denied that he had ever had any sexual intercourse with her, or that he was the father of the child born on the 20th of October, 1906, which was produced at the trial. Among the letters exhibited, written in the dialect of the province, one appears at folio 44 of the record, the English translation of which taken from the Spanish translation is as follows: "GOYANG: "I can not stand my heart's grief because if I could help it I would not part from you; but, what can I do? I must leave for important reasons; however, although I am going away, some one will make arrangements for my return in the month of June; may Heaven grant this. Oh! my Gregoria, I feel uneasy; I don't know what to do; you do as I have told you to do; do it because I think it is more advisable that you should tell the old man (grandfather) the sin we have committed in the eyes of God, for if somebody else does it, or, if you wait until he notices the consequences thereof, it will be worse for you. Do it, do not fail to comply with what I am asking of you so that the old man may not become too angry.

resided, and that as her confinement only took place on the 20th of October of the latter year and the first carnal intercourse, according to her own statement, took place upon one of the last days of December, 1905, it thereby appears that the pregnancy of the injured party lasted about two hundred and ninety-eight days at least; that is , more than nine months. But by such data it is not shown that the accused is not the author of the pregnancy of the girl, who states positively that from December, 1905, to April, 1906, the accused repeatedly had sexual intercourse with her. If the ordinary average duration of the pregnancy of women is nine months and some days, a tardy birth is not an impossibility or an unusual to have a delayed or retarded conception, one of the inexplicable mysteries of nature, since the opinions of physicians upon the matter are conflicting; for this reason the Penal Code, by article 476, imposes punishment upon a widow who marries before three hundred and one days have elapsed from the death of her husband, a prohibition which is in accordance with other legal provisions, and which is intended to prevent confusion in connection with filiation and paternity, inasmuch as the widow might have conceived and become pregnant by her late husband. So that the law when fixing the said three hundred and one days, admits the possibility that a woman may be in pregnancy for more than nine months, and that the birth of a child taking place nine months after it was conceived is not an impossibility. In the commission of the crime in question no aggravating nor mitigating circumstance is present; therefore, the judgment appealed from is in accordance with the law. For the foregoing reasons, it is our opinion that the judgment appealed from, dated the 7th of March, 1907, sentencing Pascual Dulay to the penalty of four months of arresto mayor, to recognize and maintain the offspring, to indemnify the injured party, Gregoria Pimentel, in the sum of P1,000 and, in case of insolvency, to suffer subsidiary imprisonment which shall not exceed one-third of the principal penalty, and to pay the costs, should be affirmed with the costs against the appellant; provided, however, that the amount to be paid to the injured party for the subsistence of her child until the same shall reach his majority, shall be P15 monthly. So ordered.

19. People vs Rosal THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffappellant, vs. ANUNCIACION ROSAL (aliasMARIA A. ROSAL), defendant-appellee. VILLAMOR, J p: This is an appeal taken by the prosecution from another of the Court of First Instance of Ilocos Sur sustaining a demurrer filed by the defense to the following complaint: "That the said accused Anunciacion Rosal (alias Maria A. Rosal), having become the widow of Guillermo Rabe on June 29, 1925, did willfully, maliciously, illegally and criminally contract a second marriage with Justino Velasco on or about August 19, 1925, in the municipality of San Ildefonso, Province of Ilocos Sur, Philippine Islands, before the lapse of 301 days from the death of her first husband Guillermo Rabe, i. e., from June 29, 1925 to August 19, 1925 on which latter date, as aforesaid, she contracted a second marriage with Justino Velasco. Contrary to law." The demurrer is on the ground that the charge does not constitute a crime. The court, by order of February 26, 1926, sustained the contention of the defense and dismissed the case, with the costs de oficio. From this order the prosecuting attorney appealed to this court in accordance with section 44 of General Orders No. 58. It is alleged in support of this demurrer that article of the Penal Code is the penal sanction of article 45 of the Civil Code; and Title 4 of the Civil Code, which includes article 45, having been suspended, said article 476 of the Penal Code is not applicable for lack of subject-matter. As may be seen, the question submitted for our determination is whether or not article 476 of the Penal Code is in force. First of all, it must be observed that the Penal Code of the Philippine Islands was published in the Gazette of Manila on March 13, 1887 and went into effect four months after its publication, while the Civil Code was published and became effective as a law in the Philippine Islands on December 8, 1889. It is true, as Viada says in his commentaries on the Penal Code, that article 476 of the Penal Code of Spain is a sanction of article 45, paragraph 2, of the Civil Code. It is also true that the legal effects of Title 4 of Book 1 of our Civil Code, which includes article 45 was suspended by order of Governor-General Weyler on December 1, 1889. But the indisputable fact remains that article 476 of the Penal Code was already in force in the Philippine Islands before the promulgation of the Civil Code which shows that said article is not dependent for its existence upon the provisions of the latter code. It thus results that the suspension of a

part of the Civil Code cannot legally affect the provisions of the Penal Code under consideration. Furthermore, it must be borne in mind that the object of the penal sanction established in article 476 is as acknowledged by the trial court, to prevent doubtful paternity and therefore a marriage contracted in violation of its provisions is punishable. The fact that General Orders No. 68, in its second section, does not make a marriage illegal and void if contracted within the period by article 476 of the Penal Code, does not mean that this article has been repealed, for the reason that the sanction of the Penal Code does not declare such marriage contracted by a widow void or voidable; but that notwithstanding its validity, a widow who thus contracts marriage is criminally liable as committing an act in violation of the law. On the other hand, the Code of Civil Procedure which went into effect on October 1, 1901, may be said to supply the proof that article 476 of the Penal Code, based, as it is, on a sound principle of public policy, is in force. Section 333, paragraph 3, of the Code of Civil Procedure establishes the conclusive presumption that the issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate, if not born within the one hundred eighty days immediately succeeding the marriage, or after the expiration of three hundred days following its dissolution. Without the penal sanction of article 476 of the Penal Code such presumption might produce inconsistent effects Thus, a widow can contract a second marriage on the tenth day after becoming a widow and give birth to a child two hundred seventy-nine days after the second marriage. This child, having been born within three hundred days after the death of the first husband, might conclusively be presumed to be the legitimate child of the first husband; and, yet, for the very reason that it was born one hundred eighty days after the second marriage, the same child would unquestionably be presumed to be the legitimate child of the second husband. In order to avoid the possibility of such situation, it is necessary to apply article 476 of the Penal Code. In the case of United States vs. Dulay (10 Phil., 302), this court, although in an indirect manner, took occasion to express its opinion that article 476 of the Penal Code imposes a punishment upon a widow who marries before three hundred one days after the death of her husband, and that said prohibition is in harmony with other legal provisions and is intended to prevent confusion in connection with filiation and paternity inasmuch as the widow might have conceived and become pregnant by her late husband. For the foregoing we are of the opinion, and so hold, that article 476 of the Penal Code is in force and therefore the order appealed from must be, as it is hereby, revoked and the record is ordered remanded to the trial court for further proceedings in accordance with the law, with the costs de oficio. So ordered.

20. Villasanta vs Peralta In Re Charges of LILIAN F. VILLASANTA for Immorality, vs. HILARION M. PERALTA,respondent. PARAS, C. J p: G. R. No. L-9513 has a direct bearing on the present complaint. Said case originated from a criminal action filed in the Court of First Instance of Cagayan by the complainant against the respondent for a violation of Article 350 of the Revised Penal Code of which the respondent was found guilty. The verdict, when appealed to the Court of Appeals, was affirmed. The appeal by certiorari taken to this Court by the respondent was dismissed for lack of merit. The complaint seeks to disqualify the respondent, a 1954 successful bar candidate, from being admitted to the bar. The basic facts are the same as those found by the Court of Appeals, to wit: On April 16, 1939, the respondent was married to Rizalina E. Valdez in Rizal, Nueva Ecija. On or before March 8, 1951, he courted the complainant who fell in love with him. To have carnal knowledge of her, the respondent procured the preparation of a fake marriage contract which was then a blank document. He made her sign it on March 8, 1951. A week after, the document was brought back by the respondent to the complainant, signed by the Justice of the Peace and the Civil Registrar of San Manuel, Tarlac, and by two witnesses. Since then the complainant and the respondent lived together as husband and wife. Sometime later, the complainant insisted on a religious ratification of their marriage and on July 7, 1951, the corresponding ceremony was performed in Aparri by the parish priest of said municipality. The priest no longer required the production of a marriage license because of the civil marriage contract shown to him. After the ceremony in Aparri, the couple returned to Manila as husband and wife and lived with some friends. The complainant then discovered that the respondent was previously married to someone else; whereupon, she filed the criminal action for a violation of Article 350 of the Revised Penal Code in the Court of First Instance of Cagayan and the present complaint for immorality in this court. Upon consideration of the records of G. R. No. L-9513 and the complaint, this Court is of the opinion that the respondent is immoral. He made a mockery of marriage which is a sacred institution demanding respect and dignity. His conviction in the criminal case involves moral turpitude. The act of respondent in contracting the second marriage (even his act in making love to another woman while his first wife is still alive and their marriage still valid and existing) is contrary to honesty, justice, decency and morality. Thus lacking the good moral character required by the Rules of Court, the respondent is hereby declared disqualified from being admitted to the bar. So ordered.

21. Republic vs Orbecido REPUBLIC OF THE PHILIPPINES, petitioner, vs. CIPRIANO ORBECIDO III, respondent. QUISUMBING, J p: Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law? Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel question, presented as a pure question of law. In this petition for review, the Solicitor General assails the Decision 1 dated May 15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution 2 dated July 4, 2002 denying the motion for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads: WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason of the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under the Philippine Law. IT IS SO ORDERED. 3 The factual antecedents, as narrated by the trial court, are as follows. On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido. In 1986, Cipriano's wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as an American citizen. Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California. Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed.

Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied. In this petition, the OSG raises a pure question of law: WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE 4 The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for legal separation. 5 Furthermore, the OSG argues there is no law that governs respondent's situation. The OSG posits that this is a matter of legislation and not of judicial determination. 6 For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by operation of law pursuant to Section 12, Article II of the Constitution. 7 At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides: RULE DECLARATORY RELIEF AND SIMILAR REMEDIES 63

Section 1.Who may file petition Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. xxx xxx xxx The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination. 8 This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where one later acquired alien citizenship, obtained a

divorce decree, and remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of his second marriage. Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the intent of the legislators in its enactment? Brief Historical Background On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states: All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38. On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides: ART. 26.All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Noteworthy, in the Report of the Public Hearings 9 on the Family Code, the Catholic Bishops' Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26: 1.The rule is discriminatory. It discriminates against those whose

spouses are Filipinos who divorce them abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who validly divorce them abroad can.

2.This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can re-marry. We propose that this be deleted and made into law only after more widespread consultation. (Emphasis supplied.) Legislative Intent Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. AETcSa Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr. 10 The Van Dorncase involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law. Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization? The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals. 11 In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry. Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)
On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A.

obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent. 12

wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence. 13 Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. 14 Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved. 15 Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage. Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondent's bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made properly upon respondent's submission of the aforecited evidence in his favor. CcAHEI ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE. No pronouncement as to costs. SO ORDERED.

If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26. AHDTIE In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows: 1.There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and 2.A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. In this case, when Cipriano's wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the "divorced" Filipino spouse, should be allowed to remarry. We are also unable to sustain the OSG's theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse. However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondent's

22. Bayot vs CA MARIA REBECCA MAKAPUGAY BAYOT, petitioner, vs. THE HONORABLE COURT OF APPEALS and VICENTE MADRIGAL BAYOT, respondents. VELASCO, JR., J p: The Case Before us are these two petitions interposed by petitioner Maria Rebecca Makapugay Bayot impugning certain issuances handed out by the Court of Appeals (CA) in CAG.R. SP No. 68187. STDEcA In the first, a petition for certiorari 1 under Rule 65 and docketed as G.R. No. 155635, Rebecca assails and seeks to nullify the April 30, 2002 Resolution 2 of the CA, as reiterated in another Resolution of September 2, 2002, 3 granting a writ of preliminary injunction in favor of private respondent Vicente Madrigal Bayot staving off the trial court's grant of support pendente lite to Rebecca. The second, a petition for review under Rule 45, 4 docketed G.R. No. 163979, assails the March 25, 2004 Decision 5 of the CA, (1) dismissing Civil Case No. 01-094, a suit for declaration of absolute nullity of marriage with application for support commenced by Rebecca against Vicente before the Regional Trial Court (RTC) in Muntinlupa City; and (2) setting aside certain orders and a resolution issued by the RTC in the said case. Per its Resolution of August 11, 2004, the Court ordered the consolidation of both cases. The Facts Vicente and Rebecca were married on April 20, 1979 in Sanctuario de San Jose, Greenhills, Mandaluyong City. On its face, the Marriage Certificate 6 identified Rebecca, then 26 years old, to be an American citizen 7 born in Agaa, Guam, USA to Cesar Tanchiong Makapugay, American, and Helen Corn Makapugay, American. On November 27, 1982 in San Francisco, California, Rebecca gave birth to Marie Josephine Alexandra or Alix. From then on, Vicente and Rebecca's marital relationship seemed to have soured as the latter, sometime in 1996, initiated divorce proceedings in the Dominican Republic. Before the Court of the First Instance of the Judicial District of Santo Domingo, Rebecca personally appeared, while Vicente was duly represented by counsel. On February 22, 1996, the Dominican court issued Civil Decree No. 362/96, 8 ordering the dissolution of the couple's marriage and "leaving them to remarry after completing the legal requirements", but giving them

joint custody and guardianship over Alix. Over a year later, the same court would issue Civil Decree No. 406/97, 9 settling the couple's property relations pursuant to an Agreement 10 they executed on December 14, 1996. Said agreement specifically stated that the "conjugal property which they acquired during their marriage consist[s] only of the real property and all the improvements and personal properties therein contained at 502 Acacia Avenue, Alabang, Muntinlupa". 11 Meanwhile, on March 14, 1996, or less than a month from the issuance of Civil Decree No. 362/96, Rebecca filed with the Makati City RTC a petition 12 dated January 26, 1996, with attachments, for declaration of nullity of marriage, docketed as Civil Case No. 96-378. Rebecca, however, later moved 13 and secured approval 14 of the motion to withdraw the petition. TAHIED On May 29, 1996, Rebecca executed an Affidavit of Acknowledgment 15 stating under oath that she is an American citizen; that, since 1993, she and Vicente have been living separately; and that she is carrying a child not of Vicente. On March 21, 2001, Rebecca filed another petition, this time before the Muntinlupa City RTC, for declaration of absolute nullity of marriage 16 on the ground of Vicente's alleged psychological incapacity. Docketed as Civil Case No. 01-094 and entitled as Maria Rebecca Makapugay Bayot v. Vicente Madrigal Bayot, the petition was eventually raffled to Branch 256 of the court. In it, Rebecca also sought the dissolution of the conjugal partnership of gains with application for supportpendente lite for her and Alix. Rebecca also prayed that Vicente be ordered to pay a permanent monthly support for their daughter Alix in the amount of PhP220,000. On June 8, 2001, Vicente filed a Motion to Dismiss 17 on, inter alia, the grounds of lack of cause of action and that the petition is barred by the prior judgment of divorce. Earlier, on June 5, 2001, Rebecca filed and moved for the allowance of her application for support pendente lite. To the motion to dismiss, Rebecca interposed an opposition, insisting on her Filipino citizenship, as affirmed by the Department of Justice (DOJ), and that, therefore, there is no valid divorce to speak of. Meanwhile, Vicente, who had in the interim contracted another marriage, and Rebecca commenced several criminal complaints against each other. Specifically, Vicente filed adultery and perjury complaints against Rebecca. Rebecca, on the other hand, charged Vicente with bigamy and concubinage. Ruling of the RTC on the Motion to Dismiss and Motion for Support Pendente Lite On August 8, 2001, the RTC issued an Order 18 denying Vicente's motion to dismiss Civil Case No. 01-094 and granting Rebecca's application for support pendente lite, disposing as follows:

Wherefore, premises considered, the Motion to Dismiss filed by the respondent is DENIED. Petitioner's Application in Support of the Motion for Support Pendente Lite is hereby GRANTED. Respondent is hereby ordered to remit the amount of TWO HUNDRED AND TWENTY THOUSAND PESOS (Php220,000.00) a month to Petitioner as support for the duration of the proceedings relative to the instant Petition. HCITAS SO ORDERED. 19 The RTC declared, among other things, that the divorce judgment invoked by Vicente as bar to the petition for declaration of absolute nullity of marriage is a matter of defense best taken up during actual trial. As to the grant of support pendente lite, the trial court held that a mere allegation of adultery against Rebecca does not operate to preclude her from receiving legal support. Following the denial 20 of his motion for reconsideration of the above August 8, 2001 RTC order, Vicente went to the CA on a petition for certiorari, with a prayer for the issuance of a temporary restraining order (TRO) and/or writ of preliminary injunction. 21 His petition was docketed as CA-G.R. SP No. 68187. Grant of Writ of Preliminary Injunction by the CA On January 9, 2002, the CA issued the desired TRO. 22 On April 30, 2002, the appellate court granted, via a Resolution, the issuance of a writ of preliminary injunction, the decretal portion of which reads: IN VIEW OF ALL THE FOREGOING, pending final resolution of the petition at bar, let the Writ of Preliminary Injunction be ISSUED in this case, enjoining the respondent court from implementing the assailed Omnibus Order dated August 8, 2001 and the Order dated November 20, 2001, and from conducting further proceedings in Civil Case No. 01-094, upon the posting of an injunction bond in the amount of P250,000.00. SO ORDERED. 23 Rebecca moved 24 but was denied reconsideration of the aforementioned April 30, 2002 resolution. In the meantime, on May 20, 2002, the preliminary injunctive writ 25 was issued. Rebecca also moved for reconsideration of this issuance, but the CA, by Resolution dated September 2, 2002, denied her motion. The adverted CA resolutions of April 30, 2002 and September 2, 2002 are presently being assailed in Rebecca's petition for certiorari, docketed under G.R. No. 155635.

Ruling of the CA Pending resolution of G.R. No. 155635, the CA, by a Decision dated March 25, 2004, effectively dismissed Civil Case No. 01-094, and set aside incidental orders the RTC issued in relation to the case. The fallo of the presently assailed CA Decision reads: HSaIDc IN VIEW OF THE FOREGOING, the petition is GRANTED. The Omnibus Order dated August 8, 2001 and the Order dated November 20, 2001 are REVERSED and SET ASIDE and a new one entered DISMISSING Civil Case No. 01-094, for failure to state a cause of action. No pronouncement as to costs. SO ORDERED. 26 To the CA, the RTC ought to have granted Vicente's motion to dismiss on the basis of the following premises: (1)As held in China Road and Bridge Corporation v. Court of Appeals, the hypothetical-admission rule applies in determining whether a complaint or petition states a cause of action. 27 Applying said rule in the light of the essential elements of a cause of action, 28 Rebecca had no cause of action against Vicente for declaration of nullity of marriage. (2)Rebecca no longer had a legal right in this jurisdiction to have her marriage with Vicente declared void, the union having previously been dissolved on February 22, 1996 by the foreign divorce decree she personally secured as an American citizen. Pursuant to the second paragraph of Article 26 of the Family Code, such divorce restored Vicente's capacity to contract another marriage. CacEIS (3)Rebecca's contention about the nullity of a divorce, she being a Filipino citizen at the time the foreign divorce decree was rendered, was dubious. Her allegation as to her alleged Filipino citizenship was also doubtful as it was not shown that her father, at the time of her birth, was still a Filipino citizen. The Certification of Birth of Rebecca issued by the Government of Guam also did not indicate the nationality of her father. (4)Rebecca was estopped from denying her American citizenship, having professed to have that nationality status and having made representations to that effect during momentous events of her life, such as: (a) during her marriage; (b) when she applied for divorce; and (c) when she applied for and eventually secured an American passport on January 18, 1995, or a little over a year before she initiated the first but later withdrawn petition for nullity of her marriage (Civil Case No. 96-378) on March 14, 1996.

(5)Assuming that she had dual citizenship, being born of a purportedly Filipino father in Guam, USA which follows the jus soli principle, Rebecca's representation and assertion about being an American citizen when she secured her foreign divorce precluded her from denying her citizenship and impugning the validity of the divorce. Rebecca seasonably filed a motion for reconsideration of the above Decision, but this recourse was denied in the equally assailed June 4, 2004 Resolution. 29 Hence, Rebecca's Petition for Review on Certiorari under Rule 45, docketed underG.R. No. 163979. The Issues In G.R. No. 155635, Rebecca raises four (4) assignments of errors as grounds for the allowance of her petition, all of which converged on the proposition that the CA erred in enjoining the implementation of the RTC's orders which would have entitled her to support pending final resolution of Civil Case No. 01-094. cHaCAS In G.R. No. 163979, Rebecca urges the reversal of the assailed CA decision submitting as follows: I THE COURT OF APPEALS GRAVELY ERRED IN NOT MENTIONING AND NOT TAKING INTO CONSIDERATION IN ITS APPRECIATION OF THE FACTS THE FACT OF PETITIONER'S FILIPINO CITIZENSHIP AS CATEGORICALLY STATED AND ALLEGED IN HER PETITION BEFORE THE COURT A QUO. II THE COURT OF APPEALS GRAVELY ERRED IN RELYING ONLY ON ANNEXES TO THE PETITION IN RESOLVING THE MATTERS BROUGHT BEFORE IT. III THE COURT OF APPEALS GRAVELY ERRED IN FAILING TO CONSIDER THAT RESPONDENT IS ESTOPPED FROM CLAIMING THAT HIS MARRIAGE TO PETITIONER HAD ALREADY BEEN DISSOLVED BY VIRTUE OF HIS SUBSEQUENT AND CONCURRENT ACTS. IV

THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THERE WAS ABUSE OF DISCRETION ON THE PART OF THE TRIAL COURT, MUCH LESS A GRAVE ABUSE. 30 We shall first address the petition in G.R. No. 163979, its outcome being determinative of the success or failure of the petition in G.R. No. 155635. Three legal premises need to be underscored at the outset. First, a divorce obtained abroad by an alien married to a Philippine national may be recognized in the Philippines, provided the decree of divorce is valid according to the national law of the foreigner. 31 Second, the reckoning point is not the citizenship of the divorcing parties at birth or at the time of marriage, but their citizenship at the time a valid divorce is obtained abroad. And third, an absolute divorce secured by a Filipino married to another Filipino is contrary to our concept of public policy and morality and shall not be recognized in this jurisdiction. 32 Given the foregoing perspective, the determinative issue tendered in G.R. No. 155635, i.e., the propriety of the granting of the motion to dismiss by the appellate court, resolves itself into the questions of: first, whether petitioner Rebecca was a Filipino citizen at the time the divorce judgment was rendered in the Dominican Republic on February 22, 1996; and second, whether the judgment of divorce is valid and, if so, what are its consequent legal effects? AIDTSE The Court's Ruling The petition is bereft of merit. Rebecca an American Citizen in the Purview of This Case There can be no serious dispute that Rebecca, at the time she applied for and obtained her divorce from Vicente, was an American citizen and remains to be one, absent proof of an effective repudiation of such citizenship. The following are compelling circumstances indicative of her American citizenship: (1) she was born in Agaa, Guam, USA; (2) the principle of jus soli is followed in this American territory granting American citizenship to those who are born there; and (3) she was, and may still be, a holder of an American passport. 33 And as aptly found by the CA, Rebecca had consistently professed, asserted, and represented herself as an American citizen, particularly: (1) during her marriage as shown in the marriage certificate; (2) in the birth certificate of Alix; and (3) when she secured the divorce from the Dominican Republic. Mention may be made of the Affidavit of Acknowledgment 34 in which she stated being an American citizen. It is true that Rebecca had been issued by the Bureau of Immigration (Bureau) of Identification (ID) Certificate No. RC 9778 and a Philippine Passport. On its face, ID Certificate No. RC 9778 would tend to show that she has indeed been recognized as a Filipino citizen. It cannot be over-emphasized, however, that such recognition was

given only on June 8, 2000 upon the affirmation by the Secretary of Justice of Rebecca's recognition pursuant to the Order of Recognition issued by Bureau Associate Commissioner Edgar L. Mendoza. For clarity, we reproduce in full the contents of ID Certificate No. RC 9778: To Whom It May Concern: This is to certify that *MARIA REBECCA MAKAPUGAY BAYOT* whose photograph and thumbprints are affixed hereto and partially covered by the seal of this Office, and whose other particulars are as follows: Place of Birth: Guam, USA Date of Birth: March 5, 1953 Sex: female Civil Status: married Color of Hair:brown Color of Eyes: brown Distinguishing marks on face: none was recognized as a citizen of the Philippines as per pursuant to Article IV, Section 1, Paragraph 3 of the 1935 Constitution per order of Recognition JBL 95-213 signed by Associate Commissioner Jose B. Lopez dated October 6, 1995, and duly affirmed by Secretary of Justice Artemio G. Tuquero in his 1st Indorsement dated June 8, 2000. Issued for identification purposes only. NOT VALID for travel purposes. Given under my hand and seal this 11th day of October, 1995 (SGD.) EDGAR L. MENDOZA ASSO. COMMISSIONER Official Receipt No. 5939988 issued at Manila dated Oct. 10, 1995 for P2,000 From the text of ID Certificate No. RC 9778, the following material facts and dates may be deduced: (1) Bureau Associate Commissioner Jose B. Lopez issued the Order of Recognition on October 6, 1995; (2) the 1st Indorsement of Secretary of Justice Artemio G. Tuquero affirming Rebecca's recognition as a Filipino citizen was issued on June 8, 2000 or almost five years from the date of the order of recognition; and (3) ID Certificate No. RC 9778 was purportedly issued on October 11, 1995 after the payment of the PhP2,000 fee on October 10, 1995 per OR No. 5939988. AScHCD

What begs the question is, however, how the above certificate could have been issued by the Bureau on October 11, 1995 when the Secretary of Justice issued the required affirmation only on June 8, 2000. No explanation was given for this patent aberration. There seems to be no error with the date of the issuance of the 1st Indorsement by Secretary of Justice Tuquero as this Court takes judicial notice that he was the Secretary of Justice from February 16, 2000 to January 22, 2001. There is, thus, a strong valid reason to conclude that the certificate in question must be spurious. Under extant immigration rules, applications for recognition of Filipino citizenship require the affirmation by the DOJ of the Order of Recognition issued by the Bureau. Under Executive Order No. 292, also known as the 1987 Administrative Code, specifically in its Title III, Chapter 1, Sec. 3 (6), it is the DOJ which is tasked to "provide immigration and naturalization regulatory services and implement the laws governing citizenship and the admission and stay of aliens". Thus, the confirmation by the DOJ of any Order of Recognition for Filipino citizenship issued by the Bureau is required. Pertinently, Bureau Law Instruction No. RBR-99-002 35 on Recognition as a Filipino Citizen clearly provides: The Bureau [of Immigration] through its Records Section shall automatically furnish the Department of Justice an official copy of its Order of Recognition within 72 days from its date of approval by the way of indorsement for confirmation of the Order by the Secretary of Justice pursuant to Executive Order No. 292. No Identification Certificate shall be issued before the date of confirmation by the Secretary of Justice and any Identification Certificate issued by the Bureau pursuant to an Order of Recognition shall prominently indicate thereon the date of confirmation by the Secretary of Justice. (Emphasis ours.) Not lost on the Court is the acquisition by Rebecca of her Philippine passport only on June 13, 2000, or five days after then Secretary of Justice Tuquero issued the 1st Indorsement confirming the order of recognition. It may be too much to attribute to coincidence this unusual sequence of close events which, to us, clearly suggests that prior to said affirmation or confirmation, Rebecca was not yet recognized as a Filipino citizen. The same sequence would also imply that ID Certificate No. RC 9778 could not have been issued in 1995, as Bureau Law Instruction No. RBR-99-002 mandates that no identification certificate shall be issued before the date of confirmation by the Secretary of Justice. Logically, therefore, the affirmation or confirmation of Rebecca's recognition as a Filipino citizen through the 1st Indorsement issued only on June 8, 2000 by Secretary of Justice Tuquero corresponds to the eventual issuance of Rebecca's passport a few days later, or on June 13, 2000 to be exact. aEDCSI When Divorce Was Granted Rebecca, She Was not a Filipino Citizen and Was not Yet Recognized as One

The Court can assume hypothetically that Rebecca is now a Filipino citizen. But from the foregoing disquisition, it is indubitable that Rebecca did not have that status of, or at least was not yet recognized as, a Filipino citizen when she secured the February 22, 1996 judgment of divorce from the Dominican Republic. The Court notes and at this juncture wishes to point out that Rebecca voluntarily withdrew her original petition for declaration of nullity (Civil Case No. 96-378 of the Makati City RTC) obviously because she could not show proof of her alleged Filipino citizenship then. In fact, a perusal of that petition shows that, while bearing the date January 26, 1996, it was only filed with the RTC on March 14, 1996 or less than a month after Rebecca secured, on February 22, 1996, the foreign divorce decree in question. Consequently, there was no mention about said divorce in the petition. Significantly, the only documents appended as annexes to said original petition were: the Vicente-Rebecca Marriage Contract (Annex "A") and Birth Certificate of Alix (Annex "B"). If indeed ID Certificate No. RC 9778 from the Bureau was truly issued on October 11, 1995, is it not but logical to expect that this piece of document be appended to form part of the petition, the question of her citizenship being crucial to her case?

IN THIS ACTION FOR DIVORCE in which the parties expressly submit to the jurisdiction of this court, by reason of the existing incompatibility of temperaments . . . . The parties MARIA REBECCA M. BAYOT, of United States nationality, 42 years of age, married, domiciled and residing at 502 Acacia Ave., Ayala Alabang, Muntin Lupa, Philippines, . . ., who personally appeared before this court, accompanied by DR. JUAN ESTEBAN OLIVERO, attorney, . . . and VICENTE MADRIGAL BAYOT, of Philippine nationality, of 43 years of age, married and domiciled and residing at 502 Acacia Ave., Ayala Alabang, Muntin Lupa, Filipino, appeared before this court represented by DR. ALEJANDRO TORRENS, attorney, . . ., revalidated by special power of attorney given the 19th of February of 1996, signed before the Notary Public Enrico L. Espanol of the City of Manila, duly legalized and authorizing him to subscribe all the acts concerning this case. 37 (Emphasis ours.)

Third, being an American citizen, Rebecca was bound by the national laws of the United States of America, a country which allows divorce. Fourth, the property

As may be noted, the petition for declaration of absolute nullity of marriage under Civil Case No. 01-094, like the withdrawn first petition, also did not have the ID Certificate from the Bureau as attachment. What were attached consisted of the following material documents: Marriage Contract (Annex "A") and Divorce Decree. It was only through her Opposition (To Respondent's Motion to Dismiss dated 31 May 2001) 36 did Rebecca attach as Annex "C" ID Certificate No. RC 9778. At any rate, the CA was correct in holding that the RTC had sufficient basis to dismiss the petition for declaration of absolute nullity of marriage as said petition, taken together with Vicente's motion to dismiss and Rebecca's opposition to motion, with their respective attachments, clearly made out a case of lack of cause of action, which we will expound later. Validity of Divorce Decree Going to the second core issue, we find Civil Decree Nos. 362/96 and 406/97 valid. SETAcC

relations of Vicente and Rebecca were properly adjudicated through their Agreement 38 executed on December 14, 1996 after Civil Decree No. 362/96 was rendered on February 22, 1996, and duly affirmed by Civil Decree No. 406/97 issued on March 4, 1997. Veritably, the foreign divorce secured by Rebecca was valid. To be sure, the Court has taken stock of the holding in Garcia v. Recio that a foreign divorce can be recognized here, provided the divorce decree is proven as a fact and as valid under the national law of the alien spouse. 39 Be this as it may, the fact that Rebecca was clearly an American citizen when she secured the divorce and that divorce is recognized and allowed in any of the States of the Union, 40 the presentation of a copy of foreign divorce decree duly authenticated by the foreign court issuing said decree is, as here, sufficient. It bears to stress that the existence of the divorce decree has not been denied, but in fact admitted by both parties. And neither did they impeach the jurisdiction of the divorce court nor challenge the validity of its proceedings on the ground of collusion, fraud, or clear mistake of fact or law, albeit both appeared to have the opportunity to do so. The same holds true with respect to the decree of partition of their conjugal property. As this Court explained in Roehr v. Rodriguez: AETcSa Before our courts can give the effect of res judicata to a foreign judgment [of divorce] . . ., it must be shown that the parties opposed to the judgment had been given ample opportunity to do so on grounds allowed under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48, 1997 Rules of Civil Procedure), to wit:

First, at the time of the divorce, as above elucidated, Rebecca was still to be

recognized, assuming for argument that she was in fact later recognized, as a Filipino citizen, but represented herself in public documents as an American citizen. At the very least, she chose, before, during, and shortly after her divorce, her American citizenship to govern her marital relationship. Second, she secured personally said divorce as an American citizen, as is evident in the text of the Civil Decrees, which pertinently declared:

SEC. 50.Effect of foreign judgments. The effect of a judgment of a tribunal of a foreign country, having jurisdiction to pronounce the judgment is as follows: (a)In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing; (b)In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title; but the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of Court clearly provide that with respect to actions in personam, as distinguished from actions in rem, a foreign judgment merely constitutes prima facie evidence of the justness of the claim of a party and, as such, is subject to proof to the contrary. 41 As the records show, Rebecca, assisted by counsel, personally secured the foreign divorce while Vicente was duly represented by his counsel, a certain Dr. Alejandro Torrens, in said proceedings. As things stand, the foreign divorce decrees rendered and issued by the Dominican Republic court are valid and, consequently, bind both Rebecca and Vicente. Finally, the fact that Rebecca may have been duly recognized as a Filipino citizen by force of the June 8, 2000 affirmation by Secretary of Justice Tuquero of the October 6, 1995 Bureau Order of Recognition will not, standing alone, work to nullify or invalidate the foreign divorce secured by Rebecca as an American citizen on February 22, 1996. For as we stressed at the outset, in determining whether or not a divorce secured abroad would come within the pale of the country's policy against absolute divorce, the reckoning point is the citizenship of the parties at the time a valid divorce is obtained. 42 Legal Effects of the Valid Divorce Given the validity and efficacy of divorce secured by Rebecca, the same shall be given a res judicata effect in this jurisdiction. As an obvious result of the divorce decree obtained, the marital vinculum between Rebecca and Vicente is considered severed; they are both freed from the bond of matrimony. In plain language, Vicente and Rebecca are no longer husband and wife to each other. As the divorce court formally pronounced: "[T]hat the marriage between MARIA REBECCA M. BAYOT and VICENTE MADRIGAL BAYOT is hereby dissolved . . . leaving them free to remarry after completing the legal requirements". 43

Consequent to the dissolution of the marriage, Vicente could no longer be subject to a husband's obligation under the Civil Code. He cannot, for instance, be obliged to live with, observe respect and fidelity, and render support to Rebecca.44 The divorce decree in question also brings into play the second paragraph of Art. 26 of the Family Code, providing as follows: ISTCHE Art. 26.. . . Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. (As amended by E.O. 227) In Republic v. Orbecido III, we spelled out the twin elements for the applicability of the second paragraph of Art. 26, thus: . . . [W]e state the twin elements for the application of Paragraph 2 of Article 26 as follows: 1.There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and 2.A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.45 Both elements obtain in the instant case. We need not belabor further the fact of marriage of Vicente and Rebecca, their citizenship when they wed, and their professed citizenship during the valid divorce proceedings. Not to be overlooked of course is the fact that Civil Decree No. 406/97 and the Agreement executed on December 14, 1996 bind both Rebecca and Vicente as regards their property relations. The Agreement provided that the ex-couple's conjugal property consisted only their family home, thus: 9.That the parties stipulate that the conjugal property which they acquired during their marriage consists only of the real property and all the improvements and personal properties therein contained at 502 Acacia Avenue, Ayala Alabang, Muntinlupa, covered by TCT No. 168301 dated Feb. 7, 1990

issued by the Register of Deeds of Makati, Metro Manila registered in the name of Vicente M. Bayot, married to Rebecca M. Bayot, . . . . 46 (Emphasis ours.) This property settlement embodied in the Agreement was affirmed by the divorce court which, per its second divorce decree, Civil Decree No. 406/97 dated March 4, 1997, ordered that, "THIRD: That the agreement entered into between the parties dated 14th day of December 1996 in Makati City, Philippines shall survive in this Judgment of divorce by reference but not merged and that the parties are hereby ordered and directed to comply with each and every provision of said agreement". 47 aCHcIE Rebecca has not repudiated the property settlement contained in the Agreement. She is thus estopped by her representation before the divorce court from asserting that her and Vicente's conjugal property was not limited to their family home in Ayala Alabang. 48

To sustain a motion to dismiss for lack of cause of action, the movant must show that the claim for relief does not exist rather than that a claim has been defectively stated or is ambiguous, indefinite, or uncertain. 50 With the valid foreign divorce secured by Rebecca, there is no more marital tie binding her to Vicente. There is in fine no more marriage to be dissolved or nullified. The Court to be sure does not lose sight of the legal obligation of Vicente and Rebecca to support the needs of their daughter, Alix. The records do not clearly show how he had discharged his duty, albeit Rebecca alleged that the support given had been insufficient. At any rate, we do note that Alix, having been born on November 27, 1982, reached the majority age on November 27, 2000, or four months before her mother initiated her petition for declaration of nullity. She would now be 26 years old. Hence, the issue of back support, which allegedly had been partly shouldered by Rebecca, is best litigated in a separate civil action for reimbursement. In this way, the actual figure for the support of Alix can be proved as well as the earning capacity of both Vicente and Rebecca. The trial court can thus determine what Vicente owes, if any, considering that support includes provisions until the child concerned shall have finished her education. Upon the foregoing considerations, the Court no longer need to delve into the issue tendered in G.R. No. 155635, that is, Rebecca's right to support pendente lite. As it were, her entitlement to that kind of support hinges on the tenability of her petition under Civil Case No. 01-094 for declaration of nullity of marriage. The dismissal of Civil Case No. 01-094 by the CA veritably removed any legal anchorage for, and effectively mooted, the claim for support pendente lite. WHEREFORE, the petition for certiorari in G.R. No. 155635 is hereby DISMISSED on the ground of mootness, while the petition for review in G.R. No. 163979 is hereby DENIED for lack of merit. Accordingly, the March 25, 2004 Decision and June 4, 2004 Resolution of the CA in CA-G.R. SP No. 68187 are hereby AFFIRMED. Costs against petitioner. SO ORDERED.

No Cause of Action in the Petition for Nullity of Marriage Upon the foregoing disquisitions, it is abundantly clear to the Court that Rebecca lacks, under the premises, cause of action. Philippine Bank of Communications v. Trazo explains the concept and elements of a cause of action, thus: A cause of action is an act or omission of one party in violation of the legal right of the other. A motion to dismiss based on lack of cause of action hypothetically admits the truth of the allegations in the complaint. The allegations in a complaint are sufficient to constitute a cause of action against the defendants if, hypothetically admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer therein. A cause of action exists if the following elements are present, namely: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages. 49 One thing is clear from a perusal of Rebecca's underlying petition before the RTC, Vicente's motion to dismiss and Rebecca's opposition thereof, with the documentary evidence attached therein: The petitioner lacks a cause of action for declaration of nullity of marriage, a suit which presupposes the existence of a marriage.