ALAIN M. DIO , G.R. No.

178044 The Antecedent Facts

Petitioner,

Present: Alain M. Dio (petitioner) and Ma. Caridad L. Dio (respondent) were childhood friends and
sweethearts. They started living together in 1984 until they decided to separate in 1994. In 1996,
petitioner and respondent decided to live together again. On 14 January 1998, they were
married before Mayor Vergel Aguilar of Las Pias City.

CARPIO, J.,
Chairperson,

On 30 May 2001, petitioner filed an action for Declaration of Nullity of Marriage against
- versus - NACHURA,
respondent, citing psychological incapacity under Article 36 of the Family Code. Petitioner
alleged that respondent failed in her marital obligation to give love and support to him, and had
PERALTA, abandoned her responsibility to the family, choosing instead to go on shopping sprees and
gallivanting with her friends that depleted the family assets. Petitioner further alleged that
respondent was not faithful, and would at times become violent and hurt him.
ABAD, and

MENDOZA, JJ.

Extrajudicial service of summons was effected upon respondent who, at the time of the filing of
MA. CARIDAD L. DIO, Promulgated:
the petition, was already living in the United States of America. Despite receipt of the summons,
respondent did not file an answer to the petition within the reglementary period. Petitioner later
Respondent. January 19, 2011 learned that respondent filed a petition for divorce/dissolution of her marriage with petitioner,
which was granted by the Superior Court of California on 25 May 2001. Petitioner also learned
that on 5 October 2001, respondent married a certain Manuel V. Alcantara.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

On 30 April 2002, the Office of the Las Pias prosecutor found that there were no indicative facts
of collusion between the parties and the case was set for trial on the merits.

DECISION

Dr. Nedy L. Tayag (Dr. Tayag), a clinical psychologist, submitted a psychological report
establishing that respondent was suffering from Narcissistic Personality Disorder which was
CARPIO, J.: deeply ingrained in her system since her early formative years. Dr. Tayag found that
respondents disorder was long-lasting and by nature, incurable.

In its 18 October 2006 Decision, the trial court granted the petition on the ground that
respondent was psychologically incapacited to comply with the essential marital obligations at
The Case the time of the celebration of the marriage.

Before the Court is a petition for review1 assailing the 18 October 2006 Decision2 and the 12 The Decision of the Trial Court
March 2007 Order3 of the Regional Trial Court of Las Pias City, Branch 254 (trial court) in Civil
Case No. LP-01-0149.
The trial court ruled that based on the evidence presented, petitioner was able to establish
respondents psychological incapacity. The trial court ruled that even without
Dr. Tayagspsychological report, the allegations in the complaint, substantiated in the witness
stand, clearly made out a case of psychological incapacity against respondent. The trial court
found that respondent committed acts which hurt and embarrassed petitioner and the rest of the
family, and that respondent failed to observe mutual love, respect and fidelity required of her
under Article 68 of the Family Code. The trial court also ruled that respondent abandoned
petitioner when she obtained a divorce abroad and married another man.
The dispositive portion of the trial courts decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Declaring the marriage between plaintiff ALAIN M. DIO and
defendant MA. CARIDAD L. DIO on January 14, 1998, and all its
effects under the law, as NULL and VOID from the beginning; and
2. Dissolving the regime of absolute community of property.
A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall only be issued upon
compliance with Article[s] 50 and 51 of the Family Code.
Let copies of this Decision be furnished the parties, the Office of the Solicitor General,
Office of the City Prosecutor, Las Pias City and the Office of the Local Civil Registrar
of Las Pias City, for their information and guidance.
SO ORDERED.4
Petitioner filed a motion for partial reconsideration questioning the dissolution of the absolute
community of property and the ruling that the decree of annulment shall only be issued upon
compliance with Articles 50 and 51 of the Family Code.
In its 12 March 2007 Order, the trial court partially granted the motion and modified its 18
October 2006 Decision as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1) Declaring the marriage between plaintiff ALAIN M. DIO and defendant MA.
CARIDAD L. DIO on January 14, 1998, and all its effects under the law, as NULL and
VOID from the beginning; and
2) Dissolving the regime of absolute community of property.
A DECREE OF ABSOLUTE NULLITY OF MARRIAGE shall be issued after
liquidation, partition and distribution of the parties properties under Article 147 of the
Family Code.
Let copies of this Order be furnished the parties, the Office of the Solicitor General,
the Office of the City Prosecutor of Las Pias City and the Local Civil Registrar of
Las Pias City, for their information and guidance.5
Hence, the petition before this Court.
The Issue
The sole issue in this case is whether the trial court erred when it ordered that a decree of
absolute nullity of marriage shall only be issued after liquidation, partition, and distribution of the
parties properties under Article 147 of the Family Code.
The Ruling of this Court
The petition has merit.
Petitioner assails the ruling of the trial court ordering that a decree of absolute nullity of marriage
shall only be issued after liquidation, partition, and distribution of the parties properties under
Article 147 of the Family Code. Petitioner argues that Section 19(1) of the Rule on Declaration of
Absolute Nullity of Null Marriages and Annulment of Voidable Marriages6 (the Rule) does not
apply to Article 147 of the Family Code.
We agree with petitioner.
The Court has ruled in Valdes v. RTC, Branch 102, Quezon City that in a void marriage, 1. The man and the woman must be capacitated to marry each other;
regardless of its cause, the property relations of the parties during the period of cohabitation is 2. They live exclusively with each other as husband and wife; and
governed either by Article 147 or Article 148 of the Family Code. 7 Article 147 of the Family Code
applies to union of parties who are legally capacitated and not barred by any impediment to
contract marriage, but whose marriage is nonetheless void,8 such as petitioner and respondent 3. Their union is without the benefit of marriage, or their marriage is void.9
in the case before the Court.

Article 147 of the Family Code provides:

All these elements are present in this case and there is no question that Article 147 of the Family
Code applies to the property relations between petitioner and respondent.

Article 147. When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the benefit of marriage or
under a void marriage, their wages and salaries shall be owned by them in equal
shares and the property acquired by both of them through their work or industry shall
be governed by the rules on co-ownership.
We agree with petitioner that the trial court erred in ordering that a decree of absolute nullity of
marriage shall be issued only after liquidation, partition and distribution of the parties properties
under Article 147 of the Family Code. The ruling has no basis because Section 19(1) of the Rule
does not apply to cases governed under Articles 147 and 148 of the Family Code. Section 19(1)
of the Rule provides:

In the absence of proof to the contrary, properties acquired while they lived together
shall be presumed to have been obtained by their joint efforts, work or industry, and
shall be owned by them in equal shares. For purposes of this Article, a party who did
Sec. 19. Decision. - (1) If the court renders a decision granting the petition, it shall
not participate in the acquisition by the other party of any property shall be deemed to
declare therein that the decree of absolute nullity or decree of annulment shall be
have contributed jointly in the acquisition thereof if the formers efforts consisted in the
issued by the court only after compliance with Articles 50 and 51 of the Family Code
care and maintenance of the family and of the household.
as implemented under the Rule on Liquidation, Partition and Distribution of Properties.

Neither party can encumber or dispose by acts inter vivos of his or her share in the
property acquired during cohabitation and owned in common, without the consent of
the other, until after the termination of their cohabitation.
The pertinent provisions of the Family Code cited in Section 19(1) of the Rule are:

When only one of the parties to a void marriage is in good faith, the share of the party
in bad faith in the co-ownership shall be forfeited in favor of their common children. In Article 50. The effects provided for in paragraphs (2), (3), (4) and (5) of Article 43 and
case of default of or waiver by any or all of the common children or their descendants, in Article 44 shall also apply in proper cases to marriages which are declared
each vacant share shall belong to the respective surviving descendants. In the void ab initio or annulled by final judgment under Articles 40 and 45.10
absence of descendants, such share shall belong to the innocent party. In all cases,
the forfeiture shall take place upon termination of the cohabitation.

The final judgment in such cases shall provide for the liquidation, partition and
distribution of the properties of the spouses, the custody and support of the common
children, and the delivery of their presumptive legitimes, unless such matters had
been adjudicated in previous judicial proceedings.
For Article 147 of the Family Code to apply, the following elements must be present:

All creditors of the spouses as well as of the absolute community of the conjugal
partnership shall be notified of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated, shall be
adjudicated in accordance with the provisions of Articles 102 and 129.
Article 45 of the Family Code, on the other hand, refers to voidable marriages, meaning,
marriages which are valid until they are set aside by final judgment of a competent court in an
action for annulment.12 In both instances under Articles 40 and 45, the marriages are governed
either by absolute community of property13 or conjugal partnership of gains14 unless the parties
agree to a complete separation of property in a marriage settlement entered into before the
marriage. Since the property relations of the parties is governed by absolute community of
property or conjugal partnership of gains, there is a need to liquidate, partition and distribute the
properties before a decree of annulment could be issued. That is not the case for annulment of
marriage under Article 36 of the Family Code because the marriage is governed by the ordinary
rules on co-ownership.

Article 51. In said partition, the value of the presumptive legitimes of all common
children, computed as of the date of the final judgment of the trial court, shall be
delivered in cash, property or sound securities, unless the parties, by mutual
agreement judicially approved, had already provided for such matters.
The children of their guardian, or the trustee of their property, may ask for the
enforcement of the judgment.
In this case, petitioners marriage to respondent was declared void under Article 3615 of the
Family Code and not under Article 40 or 45. Thus, what governs the liquidation of properties
owned in common by petitioner and respondent are the rules on co-ownership. In Valdes, the
Court ruled that the property relations of parties in a void marriage during the period of
cohabitation is governed either by Article 147 or Article 148 of the Family Code.16 The rules on
co-ownership apply and the properties of the spouses should be liquidated in accordance with
the Civil Code provisions on co-ownership. Under Article 496 of the Civil Code, [p]artition may be
made by agreement between the parties or by judicial proceedings. x x x. It is not necessary to
liquidate the properties of the spouses in the same proceeding for declaration of nullity of
marriage.

The delivery of the presumptive legitimes herein prescribed shall in no way prejudice
the ultimate successional rights of the children accruing upon the death of either or
both of the parents; but the value of the properties already received under the decree
of annulment or absolute nullity shall be considered as advances on their legitime. WHEREFORE, we AFFIRM the Decision of the trial court with the MODIFICATION that the
decree of absolute nullity of the marriage shall be issued upon finality of the trial courts decision
without waiting for the liquidation, partition, and distribution of the parties properties under Article
147 of the Family Code.

It is clear from Article 50 of the Family Code that Section 19(1) of the Rule applies only to
marriages which are declared void ab initio or annulled by final judgment under Articles 40 and
45 of the Family Code. In short, Article 50 of the Family Code does not apply to marriages
which are declared void ab initio under Article 36 of the Family Code, which should be declared
void without waiting for the liquidation of the properties of the parties.

Article 40 of the Family Code contemplates a situation where a second or bigamous marriage
was contracted. Under Article 40, [t]he absolute nullity of a previous marriage may be invoked
for purposes of remarriage on the basis solely of a final judgment declaring such previous
marriage void. Thus we ruled:

x x x where the absolute nullity of a previous marriage is sought to be invoked for

purposes of contracting a second marriage, the sole basis acceptable in law, for said
projected marriage to be free from legal infirmity, is a final judgment declaring a
previous marriage void.11
G.R. No. 1056 March 13, 1907
AGUEDA BENEDICTO DE LA RAMA, appellee,
vs.
ESTEBAN DE LA RAMA, appellant.
Ledesma, Sumulong & Quintos for appellant.
Coudert Brothers, Aylett R. Cotton & Lionel D. Hargis for appellee.
WILLARD, J.:
On July 5, 1902, the Court of First Instance of the Province of Iloilo entered a final judgment in
this case, decreeing a divorce to the plaintiff on the ground of the husband's adultery, as well as
the payment of 81,042.76 pesos due her as her unpaid share of the property belonging to the
conjugal partnership, as well as the sum of 3,200 pesos as an allowance for their support since
the date on which the action was instituted.
From the judgment the defendant appealed to this court, which, on December 8, 1903, reversed
the decree of the Court of First Instance, incorporated in its opinion certain findings of fact, and
ordered judgment absolute that the complaint be dismissed. (Benedicto vs. De la Rama, 3 Phil.
Rep., 34.) Thereafter the plaintiff appealed to the Supreme Court of the United States, which on
April 2, 1906, reversed the judgment of this Court. (De la Rama, vs. De la Rama, 201, U. S.,
303.) The opinion of the supreme court of the United States concludes as follows:
We have reached the conclusion that there is no such preponderance of evidence in
favor of the theory of plaintiffs guilt as authorized the Supreme Court to set aside the
conclusions of the court below upon the ground that these findings were plainly and
manifestly against the weight of the evidence. In this connection it is proper to bear in
mind that the trial judge had all these witnesses before him and doubtless formed his
conclusions largely from their appearance on the stand, their manner of giving
testimony, and their apparent credibility. Under the circumstances we think the
Supreme Court should have affirmed rather than reversed the action of the lower
court.
While the right of the plaintiff to her proportion of the original property, to alimony
pending suit, and to other allowances claimed is the basis of our jurisdiction, the
decree of the Supreme Court in dismissing plaintiff's petition renders it unnecessary to
review the action of the Court of First Instance in fixing the amount that it held plaintiff
was entitled to recover. We are, therefore, of the opinion that the decree of the
Supreme Court dismissing the action must be reversed and the cause remanded to
that court for further proceedings not inconsistent with this opinion.
After the case had been remanded to this court, and on the 2d of November, 1906, the plaintiff
made a motion that the judgment of the Court of First Instance be affirmed an order was made
for the submission of printed briefs upon certain questions of adultery. This court sustained
those assignments and said:
Our conclusion is that neither one of the parties is entitled to a divorce. The result
makes in unnecessary to consider that part of the judgment which relates to the
settlement of the conjugal partnership.
The action of this court upon those four assignment of error relating to adultery was reversed by
the Supreme Court of the United States, and by the decision of that court there were definitely
disposed of. The other assignment of error relate to that part of the decision of the Court of First
Instance with treats of the division of the conjugal property, the allowance of alimony, and the
order of the court below that the case be referred to the fiscal for criminal proceedings against
the defendant. As has been said, these assignments of error were not considered by this court in
view of the result which it reached upon the other assignments. Nor were they discussed by the
Supreme Court of the United States.
The claim of the appellant now is, however, that the whole case was finally disposed of by the
decision of the latter court, and that the only thing remaining for this court as to do is to affirm the
judgment of the Court of First Instance in its entirely.
With this view we can not agree. The only thing considered by the Supreme Court of the United
States was that part of the decision of the Court of First Instance which related to the right of the
plaintiff to a divorce. It did not pass upon the division of the conjugal property. Its order was that
the case be remanded to this court for further proceedings not inconsistent with its opinion. If the
contention of the plaintiff is true, it seems that the order of that court and affirming that of the
Court of First Instance. By remanding the case to this court for further proceedings not
inconsistent with the opinion of the Supreme Court, it seems to have been the intention of that
court that this court should dispose of the assignments of error not already of.
The fifth assignment of error is as follows:
Se ha infringido el articulo 1418 y otros del Codigo Civil al admitir el Juzgado, dentro
del presente juicio, el avaluo y division efectiva de los supuestos bienes gananciales.
It was claimed by this defendant, in his brief in his original appeal to this court in support of this
assignment of error, that it was not proper to settle the affairs of the conjugal partnership in
divorce proceedings, and that no such settlement of a conjugal partnership could ever be made
until there had been a final judgment ordering the divorce, from which no appeal had been
taken, or as to which the time to appeal had expired, and in his argument in this court in the
motion presented on the 2ds of November, 1906, the repeats the same claim.
In our opinion, however, this assignment of error was disposed of by the decision of the
Supreme Court of the United States. As was said in that decision , the jurisdiction of that court
depended entirely upon that part of the judgment of the Court of First Instance which directed
the payment of 81,000 pesos. If the Court of First Instance had no jurisdiction to make any order
for the payment of money in a divorce proceeding, that part of the judgment would have to be
eliminated. In taking jurisdiction of the case the Supreme Court of the United States necessarily
held that a liquidation of the affairs of the conjugal partnership could be had in a divorce
proceeding. The fifth assignment of error, therefore, can not be urged by the defendant.
The sixth assignment of error was as follows:
Ha incurrido en error en cuanto fija la cuantia de la mitad de dichos supuestos bienes
gananciales en 81,042 pesos y 75 centimos, sin haber tenido a la vista los
antecedentes y datos necesarios y sin haber tenido en cuenta ademas las perdidas
sufridas y las deudas contraidas por la razon social Hijos de I. de la Rama.
This assignment of error not having been considered either by the Supreme Court of the United
States or by his court, be sustained. The Civil Code states in detail the manner in which the
affairs of a conjugal partnership shall be settled after the same has been dissolved. Article 1418
provides, except in certain cases not here important, that an inventory shall at once be made.
We have held in the case of Alfonso vs. Natividad 1 (4 Off. Gaz., 461), that when the partnership
is dissolved by the death of the husband this inventory be made in the proceedings for the
settlement of his estate. And in the case of Prado vs. Lagera 2 (5 Off. Gaz., 146), that the The other assignments of error were not urged in the last brief presented by the appellant and in
inventory thus formed must include the bienes parafernales of the wife. It is very evident from any event we do not think they can be sustained.
the provisions of the Civil Code that the inventory includes the capital of the husband, the dowry
of the wife, in the second place the bienes parafernales of the wife, in the third place the debts
The result is that part of the judgment of the Court of First Instance ordering the divorce,
and obligations of the conjugal partnership, and in the fourth place the capital of the husband.
ordering the payment of 3,200 pesos, Mexican currency, by the defendant to the plaintiff, and
Articles 1424 and 1426 then provide as follows:
the costs of the action, is affirmed. That part of it ordering the payment by the defendant to the
plaintiff of 81,042.76 pesos, Mexican currency, is set aside, and the case is remanded to the
ART. 1424. After the deductions from the inventoried estate specified in the three court below for the purpose of liquidating in this action the affairs of the conjugal partnership
preceding articles have been made, the remainder of the same estate shall constitute (considering the same to have been dissolved on the 5th of July, 1902) in accordance with the
the assets of the conjugal partnership. rules laid down in the Civil Code, and a judgment will be entered in that court for the amount
which appears from such liquidation to be due from the defendant to the plaintiff. No costs will be
allowed to either party in this court.
ART. 1426. The net remainder of the partnership property shall be divided, share and
share alike, between the husband and wife, or their respective heirs.
After the expiration of twenty days let judgment be entered in accordance herewith, and ten days
thereafter the record be remanded to the court from whence it came for execution. So ordered.
It is thus seen that the conjugal property which is to be divided when the partnership is
dissolved, is determined not with reference to the income or profits, which may have been
received during the partnership by the spouses but rather by the amount of the actual property Arellano, C.J., Torres, Mapa and Tracey, JJ., concur.
possessed by them at such dissolution after making the deductions and payments aforesaid.
This is positively provided by article 1424.

An examination of the decision of the Court of First Instance shows that no attempt was made to
comply with any of these statutory provisions. No inventory of the partnership property existing
at the time of the trial, at which the liquidation was made, was ever formed. No provision was
made for paying to the wife the sum of 2,000 pesos, which was either the dowry or bienes
parafernales of the wife. No provision was made for returning to the husband his capital in the
partnership, which amounted to at least one third of the assets of the firm of hijos de I. de la
Rama, which assets, according to the inventory made January 30, 1901, amounted to 1,130,568
pesos. The court below rejected entirely the method prescribed and in fact liquidated it, as
appears from the decision, upon an entirely different basis. He determined in the first place the
income which each person had received from his or her property, during the partnership, finding
that the wife during that time had received from her property 345 pesos as income and that the
husband had received 162,430.53 pesos. He then says:

The total value therefore of the conjugal partnership existing between the plaintiff and
the defendant in the present case amounts to 162,775,53 pesos. The words of the
statute say that the same must be divided share and share alike. The means that each
should have 81,387.76 pesos. The wife already having in her possession 345 pesos of
this sum, she is entitled to receive from the husband 81,042.76 pesos as being the
sum necessary to equalize the holdings of the property which, according to the
statute, must be regarded as belonging to the conjugal partnership.

It needs no argument to show that this manner of liquidating the affairs of the conjugal
partnership is entirely unwarranted by the law. The Theory of the Civil Code is that the conjugal
property is the actual property which is left at the dissolution of the partnership. It, can therefore,
never be determined by adding up the profits, which had been made each year during its
existence, and then saying that the result is the conjugal property. The difference between the
two systems of liquidation is well illustrated in this case., The court below found that the profits of
the partnership of Hijos de I. de la Rama from the time of its organization up to June 30, 1901,
amounted to 290,101,31 pesos. The evidence in this case shows, however, that the capital with
which the firm started was 1,058.192 pesos, and that on June 30, 1901, the value of its entire
property was 1,130,568 pesos, an increase of only 72,376 pesos. Taking the method adopted by
the court below, if the conjugal partnership had been dissolved on June 30, 1901, it would have
had as an asset one fourth of this sum of 290,101.31 pesos, but following the rule laid by the
Civil Code it would have only had one fourth of 72,376 pesos, the difference between the value
of the property of said firm when it was organized and its value of the 39th of June, 1901.
 FIRST DIVISION
[G.R. No. 139789. May 12, 2000]
ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO,
JOHN DOE and JANE DOE, respondents. Mesm
[G.R. No. 139808. May 12, 2000]
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA ILUSORIO, petitioners,
vs. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents.
DECISION
PARDO, J.:
May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal
bliss? The answer is no. Marital rights including coverture and living in conjugal dwelling may not
be enforced by the extra-ordinary writ of habeas corpus.
A writ of habeas corpus extends to all cases of illegal confinement or detention,[1] or by which the
rightful custody of a person is withheld from the one entitled thereto. [2] Slx
"Habeas corpus is a writ directed to the person detaining another, commanding him to produce
the body of the prisoner at a designated time and place, with the day and cause of his capture
and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ
shall consider in that behalf."[3]
It is a high prerogative, common-law writ, of ancient origin, the great object of which is the
liberation of those who may be imprisoned without sufficient cause. [4] It is issued when one is
deprived of liberty or is wrongfully prevented from exercising legal custody over another
person.[5]
The petition of Erlinda K. Ilusorio[6] is to reverse the decision[7] of the Court of Appeals and its
resolution[8] dismissing the application for habeas corpus to have the custody of her husband,
lawyer Potenciano Ilusorio and enforce consortium as the wife.
On the other hand, the petition of Potenciano Ilusorio[9] is to annul that portion of the decision of
the Court of Appeals giving Erlinda K. Ilusorio visitation rights to her husband and to enjoin
Erlinda and the Court of Appeals from enforcing the visitation rights.
The undisputed facts are as follows: Scslx
Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.
Potenciano Ilusorio is about 86 years of age possessed of extensive property valued at millions
of pesos. For many years, lawyer Potenciano Ilusorio was Chairman of the Board and President
of Baguio Country Club.
On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony and lived
together for a period of thirty (30) years. In 1972, they separated from bed and board for
undisclosed reasons. Potenciano lived at Urdaneta Condominium, Ayala Ave., Makati City when
he was in Manila and at Ilusorio Penthouse, Baguio Country Club when he was in Baguio City.
On the other hand, Erlinda lived in Antipolo City.
Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio (age 55); Erlinda
Ilusorio Bildner (age 52); Maximo (age 50); Sylvia (age 49); Marietta (age 48); and Shereen (age
39).
On December 30, 1997, upon Potencianos arrival from the United States, he stayed with Erlinda
for about five (5) months in Antipolo City. The children, Sylvia and Erlinda (Lin), alleged that
during this time, their mother gave Potenciano an overdose of 200 mg instead of 100 mg Zoloft,
an antidepressant drug prescribed by his doctor in New York, U.S.A. As a consequence,
Potencianos health deteriorated.
On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City a petition[10] for
guardianship over the person and property of Potenciano Ilusorio due to the latters advanced
age, frail health, poor eyesight and impaired judgment.
On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano Ilusorio did not
return to Antipolo City and instead lived at Cleveland Condominium, Makati. Slxsc
On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas corpus to have
the custody of lawyer Potenciano Ilusorio. She alleged that respondents [11] refused petitioners
demands to see and visit her husband and prohibited Potenciano from returning to Antipolo City.
After due hearing, on April 5, 1999, the Court of Appeals rendered decision the dispositive
portion of which reads:
"WHEREFORE, in the light of the foregoing disquisitions, judgment is
hereby rendered:
"(1) Ordering, for humanitarian consideration and upon petitioners
manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia Ilusorio-
Yap, the administrator of Cleveland Condominium or anywhere in its place,
his guards and Potenciano Ilusorios staff especially Ms. Aurora Montemayor
to allow visitation rights to Potenciano Ilusorios wife, Erlinda Ilusorio and all
her children, notwithstanding any list limiting visitors thereof, under penalty
of contempt in case of violation of refusal thereof; xxx
"(2) ORDERING that the writ of habeas corpus previously issued be
recalled and the herein petition for habeas corpus be DENIED DUE
COURSE, as it is hereby DISMISSED for lack of unlawful restraint or
detention of the subject of the petition.
"SO ORDERED."[12]
Hence, the two petitions, which were consolidated and are herein jointly decided.
As heretofore stated, a writ of habeas corpus extends to all cases of illegal confinement or
detention,[13] or by which the rightful custody of a person is withheld from the one entitled thereto.
It is available where a person continues to be unlawfully denied of one or more of his
constitutional freedoms, where there is denial of due process, where the restraints are not
merely involuntary but are unnecessary, and where a deprivation of freedom originally valid has
later become arbitrary.[14] It is devised as a speedy and effectual remedy to relieve persons from
unlawful restraint, as the best and only sufficient defense of personal freedom.[15] Jksm
The essential object and purpose of the writ of habeas corpus is to inquire into all manner of
involuntary restraint, and to relieve a person therefrom if such restraint is illegal.[16]
To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary
deprivation of freedom of action.[17] The illegal restraint of liberty must be actual and effective,
not merely nominal or moral.[18]
No court is empowered as a judicial authority to compel a husband to live with his wife.
Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or
by any other mesne process. That is a matter beyond judicial authority and is best left to the
man and womans free choice.
WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack of merit. No
costs.
In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision of the Court of
Appeals insofar as it gives visitation rights to respondent Erlinda K. Ilusorio. No costs.
SO ORDERED.

The evidence shows that there was no actual and effective detention or deprivation of lawyer
Potenciano Ilusorios liberty that would justify the issuance of the writ. The fact that lawyer
Potenciano Ilusorio is about 86 years of age, or under medication does not necessarily render
him mentally incapacitated. Soundness of mind does not hinge on age or medical condition but
on the capacity of the individual to discern his actions.

After due hearing, the Court of Appeals concluded that there was no unlawful restraint on his
liberty.

The Court of Appeals also observed that lawyer Potenciano Ilusorio did not request the
administrator of the Cleveland Condominium not to allow his wife and other children from seeing
or visiting him. He made it clear that he did not object to seeing them.

As to lawyer Potenciano Ilusorios mental state, the Court of Appeals observed that he was of
sound and alert mind, having answered all the relevant questions to the satisfaction of the court.

Being of sound mind, he is thus possessed with the capacity to make choices. In this case, the
crucial choices revolve on his residence and the people he opts to see or live with. The choices
he made may not appeal to some of his family members but these are choices which exclusively
belong to Potenciano. He made it clear before the Court of Appeals that he was not prevented
from leaving his house or seeing people. With that declaration, and absent any true restraint on
his liberty, we have no reason to reverse the findings of the Court of Appeals.

With his full mental capacity coupled with the right of choice, Potenciano Ilusorio may not be the
subject of visitation rights against his free choice. Otherwise, we will deprive him of his right to
privacy. Needless to say, this will run against his fundamental constitutional right. Es m

The Court of Appeals exceeded its authority when it awarded visitation rights in a petition
for habeas corpus where Erlinda never even prayed for such right. The ruling is not consistent
with the finding of subjects sanity.

When the court ordered the grant of visitation rights, it also emphasized that the same shall be
enforced under penalty of contempt in case of violation or refusal to comply. Such assertion of
raw, naked power is unnecessary.

The Court of Appeals missed the fact that the case did not involve the right of a parent to visit a
minor child but the right of a wife to visit a husband. In case the husband refuses to see his wife
for private reasons, he is at liberty to do so without threat of any penalty attached to the exercise
of his right.
AYALA INVESTMENT & DEVELOPMENT CORP. and ABELARDO MAGSAJO, petitioners,
vs. COURT OF APPEALS and SPOUSES ALFREDO & ENCARNACION
CHING, respondents.
DECISION
MARTINEZ, J.:
Under Article 161 of the Civil Code, what debts and obligations contracted by the husband
alone are considered for the benefit of the conjugal partnership which are chargeable against
the conjugal partnership? Is a surety agreement or an accommodation contract entered into by
the husband in favor of his employer within the contemplation of the said provision?
These are the issues which we will resolve in this petition for review.
The petitioner assails the decision dated April 14, 1994 of the respondent Court of
Appeals in Spouses Alfredo and Encarnacion Ching vs. Ayala Investment and Development
Corporation, et. al., docketed as CA-G.R. CV No. 29632,[1] upholding the decision of the
Regional Trial Court of Pasig, Branch 168, which ruled that the conjugal partnership of gains of
respondents-spouses Alfredo and Encarnacion Ching is not liable for the payment of the debts
secured by respondent-husband Alfredo Ching.
A chronology of the essential antecedent facts is necessary for a clear understanding of
the case at bar.
Philippine Blooming Mills (hereinafter referred to as PBM) obtained a P50,300,000.00 loan
from petitioner Ayala Investment and Development Corporation (hereinafter referred to as
AIDC). As added security for the credit line extended to PBM, respondent Alfredo Ching,
Executive Vice President of PBM, executed security agreements on December 10, 1980 and on
March 20, 1981 making himself jointly and severally answerable with PBMs indebtedness to
AIDC.
PBM failed to pay the loan. Thus, on July 30, 1981, AIDC filed a case for sum of money
against PBM and respondent-husband Alfredo Ching with the then Court of First Instance of
Rizal (Pasig), Branch VIII, entitled Ayala Investment and Development Corporation vs. Philippine
Blooming Mills and Alfredo Ching, docketed as Civil Case No. 42228.
After trial, the court rendered judgment ordering PBM and respondent-husband Alfredo
Ching to jointly and severally pay AIDC the principal amount of P50,300,000.00 with interests.
Pending appeal of the judgment in Civil Case No. 42228, upon motion of AIDC, the lower
court issued a writ of execution pending appeal. Upon AIDCs putting up of an P8,000,000.00
bond, a writ of execution dated May 12, 1982 was issued. Thereafter, petitioner Abelardo
Magsajo, Sr., Deputy Sheriff of Rizal and appointed sheriff in Civil Case No. 42228, caused the
issuance and service upon respondents-spouses of a notice of sheriff sale dated May 20, 1982
on three (3) of their conjugal properties. Petitioner Magsajo then scheduled the auction sale of
the properties levied.
On June 9, 1982, private respondents filed a case of injunction against petitioners with the
then Court of First Instance of Rizal (Pasig), Branch XIII, to enjoin the auction sale alleging that
petitioners cannot enforce the judgment against the conjugal partnership levied on the ground
that, among others, the subject loan did not redound to the benefit of the said conjugal
partnership.[2] Upon application of private respondents, the lower court issued a temporary
restraining order to prevent petitioner Magsajo from proceeding with the enforcement of the writ
of execution and with the sale of the said properties at public auction.
[3]
AIDC filed a petition for certiorari before the Court of Appeals, questioning the order of
the lower court enjoining the sale. Respondent Court of Appeals issued a Temporary Restraining
Order on June 25, 1982, enjoining the lower court[4] from enforcing its Order of June 14, 1982,
thus paving the way for the scheduled auction sale of respondents-spouses conjugal properties.
On June 25, 1982, the auction sale took place. AIDC being the only bidder, was issued a
Certificate of Sale by petitioner Magsajo, which was registered on July 2, 1982. Upon expiration
of the redemption period, petitioner sheriff issued the final deed of sale on August 4, 1982 which
was registered on August 9, 1983.
In the meantime, the respondent court, on August 4, 1982, decided CA-G.R. SP No.
14404, in this manner:
WHEREFORE, the petition for certiorari in this case is granted and the challenged
order of the respondent Judge dated June 14, 1982 in Civil Case No. 46309 is
hereby set aside and nullified. The same petition insofar as it seeks to enjoin the
respondent Judge from proceeding with Civil Case No. 46309 is, however,
denied. No pronouncement is here made as to costs. x x x x.[5]
On September 3, 1983, AIDC filed a motion to dismiss the petition for injunction filed
before Branch XIII of the CFI of Rizal (Pasig) on the ground that the same had become moot
and academic with the consummation of the sale. Respondents filed their opposition to the
motion arguing, among others, that where a third party who claims ownership of the property
attached or levied upon, a different legal situation is presented; and that in this case, two (2) of
the real properties are actually in the name of Encarnacion Ching, a non-party to Civil Case No.
42228.
The lower court denied the motion to dismiss. Hence, trial on the merits
proceeded. Private respondents presented several witnesses. On the other hand, petitioners did
not present any evidence.
On September 18, 1991, the trial court promulgated its decision declaring the sale on
execution null and void. Petitioners appealed to the respondent court, which was docketed as
CA-G.R. CV No. 29632.
On April 14, 1994, the respondent court promulgated the assailed decision, affirming the
decision of the regional trial court. It held that:
The loan procured from respondent-appellant AIDC was for the advancement and
benefit of Philippine Blooming Mills and not for the benefit of the conjugal
partnership of petitioners-appellees.
xxxxxxxxx
As to the applicable law, whether it is Article 161 of the New Civil Code or Article
1211 of the Family Code-suffice it to say that the two provisions are substantially
the same.Nevertheless, We agree with the trial court that the Family Code is the
applicable law on the matter x x x x x x.
Article 121 of the Family Code provides that The conjugal partnership shall be
liable for: x x x (2) All debts and obligations contracted during the marriage by the
designated Administrator-Spouse for the benefit of the conjugal partnership of
gains x x x. The burden of proof that the debt was contracted for the benefit of the
conjugal partnership of gains, lies with the creditor-party litigant claiming as
such. In the case at bar, respondent-appellant AIDC failed to prove that the debt
was contracted by appellee-husband, for the benefit of the conjugal partnership of
gains.
The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered
DISMISSING the appeal. The decision of the Regional Trial Court is
AFFIRMED in toto.[6]
 Petitioner filed a Motion for Reconsideration which was denied by the respondent court in
a Resolution dated November 28, 1994.[7]
Hence, this petition for review. Petitioner contends that the respondent court erred in ruling
that the conjugal partnership of private respondents is not liable for the obligation by the
respondent-husband.
Specifically, the errors allegedly committed by the respondent court are as follows:
I. RESPONDENT COURT ERRED IN RULING THAT THE OBLIGATION
INCURRED BY RESPONDENT HUSBAND DID NOT REDOUND TO THE
BENEFIT OF THE CONJUGAL PARTNERSHIP OF THE PRIVATE
RESPONDENT.
II RESPONDENT COURT ERRED IN RULING THAT THE ACT OF RESPONDENT
HUSBAND IN SECURING THE SUBJECT LOAN IS NOT PART OF HIS
INDUSTRY, BUSINESS OR CAREER FROM WHICH HE SUPPORTS HIS
FAMILY.
Petitioners in their appeal point out that there is no need to prove that actual benefit
redounded to the benefit of the partnership; all that is necessary, they say, is that the transaction
was entered into for the benefit of the conjugal partnership. Thus, petitioners aver that:
The wordings of Article 161 of the Civil Code is very clear: for the partnership to
be held liable, the husband must have contracted the debt for the benefit of the
partnership, thus:
Art. 161. The conjugal partnership shall be liable for:
1) all debts and obligations contracted by the
husband for the benefit of the conjugal
partnership x x x.
There is a difference between the phrases: redounded to the benefit of or
benefited from (on the one hand) and for the benefit of (on the other). The former
require that actual benefit must have been realized; the latter requires only that
the transaction should be one which normally would produce benefit to the
partnership, regardless of whether or not actual benefit accrued. [8]
We do not agree with petitioners that there is a difference between the terms redounded to
the benefit of or benefited from on the one hand; and for the benefit of on the other. They mean
one and the same thing. Article 161 (1) of the Civil Code and Article 121 (2) of the Family Code
are similarly worded, i.e., both use the term for the benefit of. On the other hand, Article 122 of
the Family Code provides that The payment of personal debts by the husband or the wife before
or during the marriage shall not be charged to the conjugal partnership except insofar as they
redounded to the benefit of the family. As can be seen, the terms are used interchangeably.
Petitioners further contend that the ruling of the respondent court runs counter to the
pronouncement of this Court in the case of Cobb-Perez vs. Lantin,[9] that the husband as head of
the family and as administrator of the conjugal partnership is presumed to have contracted
obligations for the benefit of the family or the conjugal partnership.
Contrary to the contention of the petitioners, the case of Cobb-Perez is not applicable in
the case at bar. This Court has, on several instances, interpreted the term for the benefit of the
conjugal partnership.
In the cases of Javier vs. Osmea,[10] Abella de Diaz vs. Erlanger & Galinger, Inc.,[11] Cobb-
Perez vs. Lantin[12] and G-Tractors, Inc. vs. Court of Appeals,[13] cited by the petitioners, we held
that:
The debts contracted by the husband during the marriage relation, for and in the
exercise of the industry or profession by which he contributes toward the support
of his family, are not his personal and private debts, and the products or income
from the wifes own property, which, like those of her husbands, are liable for the
payment of the marriage expenses, cannot be excepted from the payment of such
debts. (Javier)
The husband, as the manager of the partnership (Article 1412, Civil Code), has a
right to embark the partnership in an ordinary commercial enterprise for gain, and
the fact that the wife may not approve of a venture does not make it a private and
personal one of the husband. (Abella de Diaz)
Debts contracted by the husband for and in the exercise of the industry or
profession by which he contributes to the support of the family, cannot be deemed
to be his exclusive and private debts. (Cobb-Perez)
x x x if he incurs an indebtedness in the legitimate pursuit of his career or
profession or suffers losses in a legitimate business, the conjugal partnership
must equally bear the indebtedness and the losses, unless he deliberately acted
to the prejudice of his family. (G-Tractors)
However, in the cases of Ansaldo vs. Sheriff of Manila, Fidelity Insurance & Luzon
Insurance Co.,[14] Liberty Insurance Corporation vs. Banuelos,[15] and Luzon Surety Inc. vs. De
Garcia,[16] cited by the respondents, we ruled that:
The fruits of the paraphernal property which form part of the assets of the
conjugal partnership, are subject to the payment of the debts and expenses of the
spouses, but not to the payment of the personal obligations (guaranty
agreements) of the husband, unless it be proved that such obligations were
productive of some benefit to the family. (Ansaldo; parenthetical phrase ours.)
When there is no showing that the execution of an indemnity agreement by the
husband redounded to the benefit of his family, the undertaking is not a conjugal
debt but an obligation personal to him. (Liberty Insurance)
In the most categorical language, a conjugal partnership under Article 161 of the
new Civil Code is liable only for such debts and obligations contracted by the
husband for the benefit of the conjugal partnership. There must be the requisite
showing then of some advantage which clearly accrued to the welfare of the
spouses. Certainly, to make a conjugal partnership respond for a liability that
should appertain to the husband alone is to defeat and frustrate the avowed
objective of the new Civil Code to show the utmost concern for the solidarity and
well-being of the family as a unit. The husband, therefore, is denied the power to
assume unnecessary and unwarranted risks to the financial stability of the
conjugal partnership. (Luzon Surety, Inc.)
From the foregoing jurisprudential rulings of this Court, we can derive the following
conclusions:
(A) If the husband himself is the principal obligor in the contract, i.e., he directly received the
money and services to be used in or for his own business or his own profession, that contract
falls within the term x x x x obligations for the benefit of the conjugal partnership. Here, no actual
benefit may be proved. It is enough that the benefit to the family is apparent at the time of the
signing of the contract. From the very nature of the contract of loan or services, the family stands
to benefit from the loan facility or services to be rendered to the business or profession of the
husband. It is immaterial, if in the end, his business or profession fails or does not
succeed. Simply stated, where the husband contracts obligations on behalf of the family
business, the law presumes, and rightly so, that such obligation will redound to the benefit of the
conjugal partnership.
(B) On the other hand, if the money or services are given to another person or entity, and the
husband acted only as a surety or guarantor, that contract cannot, by itself, alone be categorized
as falling within the context of obligations for the benefit of the conjugal partnership. The contract
of loan or services is clearly for the benefit of the principal debtor and not for the surety or his
family. No presumption can be inferred that, when a husband enters into a contract of surety or
accommodation agreement, it is for the benefit of the conjugal partnership.Proof must be
presented to establish benefit redounding to the conjugal partnership.
Thus, the distinction between the Cobb-Perez case, and we add, that of the three other
companion cases, on the one hand, and that of Ansaldo, Liberty Insurance and Luzon Surety, is
that in the former, the husband contracted the obligation for his own business; while in the latter,
the husband merely acted as a surety for the loan contracted by another for the latters business.
The evidence of petitioner indubitably show that co-respondent Alfredo Ching signed as
surety for the P50M loan contracted on behalf of PBM. Petitioner should have adduced evidence
to prove that Alfredo Chings acting as surety redounded to the benefit of the conjugal
partnership. The reason for this is as lucidly explained by the respondent court:
The loan procured from respondent-appellant AIDC was for the advancement
and benefit of Philippine Blooming Mills and not for the benefit of the conjugal
partnership of petitioners-appellees. Philippine Blooming Mills has a personality
distinct and separate from the family of petitioners-appellees - this despite the
fact that the members of the said family happened to be stockholders of said
corporate entity.
xxxxxxxxx
x x x. The burden of proof that the debt was contracted for the benefit of the
conjugal partnership of gains, lies with the creditor-party litigant claiming as
such. In the case at bar, respondent-appellant AIDC failed to prove that the debt
was contracted by appellee-husband, for the benefit of the conjugal partnership of
gains. What is apparent from the facts of the case is that the judgment debt was
contracted by or in the name of the Corporation Philippine Blooming Mills and
appellee-husband only signed as surety thereof. The debt is clearly a corporate
debt and respondent-appellants right of recourse against appellee-husband as
surety is only to the extent of his corporate stockholdings. It does not extend to
the conjugal partnership of gains of the family of petitioners-appellees. x x x x x
x. [17]
Petitioners contend that no actual benefit need accrue to the conjugal partnership. To
support this contention, they cite Justice J.B.L. Reyes authoritative opinion in the Luzon Surety
Company case:
I concur in the result, but would like to make of record that, in my opinion, the
words all debts and obligations contracted by the husband for the benefit of the
conjugal partnership used in Article 161 of the Civil Code of the Philippines in
describing the charges and obligations for which the conjugal partnership is liable
do not require that actual profit or benefit must accrue to the conjugal partnership
from the husbands transaction; but it suffices that the transaction should be one
that normally would produce such benefit for the partnership. This is the ratio
behind our ruling in Javier vs. Osmea, 34 Phil. 336, that obligations incurred by
the husband in the practice of his profession are collectible from the conjugal
partnership.
The aforequoted concurring opinion agreed with the majority decision that the conjugal
partnership should not be made liable for the surety agreement which was clearly for the benefit
of a third party. Such opinion merely registered an exception to what may be construed as a
sweeping statement that in all cases actual profit or benefit must accrue to the conjugal
partnership. The opinion merely made it clear that no actual benefits to the family need be
proved in some cases such as in the Javier case. There, the husband was the principal obligor
himself. Thus, said transaction was found to be one that would normally produce x x x benefit for
the partnership. In the later case of G-Tractors, Inc., the husband was also the principal obligor -
not merely the surety. This latter case, therefore, did not create any precedent. It did not also
supersede the Luzon Surety Company case, nor any of the previous accommodation contract
cases, where this Court ruled that they were for the benefit of third parties.
But it could be argued, as the petitioner suggests, that even in such kind of contract of
accommodation, a benefit for the family may also result, when the guarantee is in favor of the
husbands employer.
In the case at bar, petitioner claims that the benefits the respondent family would
reasonably anticipate were the following:
(a) The employment of co-respondent Alfredo Ching would be prolonged and he
would be entitled to his monthly salary of P20,000.00 for an extended length of
time because of the loan he guaranteed;
(b) The shares of stock of the members of his family would appreciate if the PBM
could be rehabilitated through the loan obtained;
(c) His prestige in the corporation would be enhanced and his career would be
boosted should PBM survive because of the loan.
However, these are not the benefits contemplated by Article 161 of the Civil Code. The
benefits must be one directly resulting from the loan. It cannot merely be a by-product or a spin-
off of the loan itself.
In all our decisions involving accommodation contracts of the husband, [18] we underscored
the requirement that: there must be the requisite showing x x x of some advantage which clearly
accrued to the welfare of the spouses or benefits to his family or that such obligations are
productive of some benefit to the family. Unfortunately, the petition did not present any proof to
show: (a) Whether or not the corporate existence of PBM was prolonged and for how many
months or years; and/or (b) Whether or not the PBM was saved by the loan and its shares of
stock appreciated, if so, how much and how substantial was the holdings of the Ching family.
Such benefits (prospects of longer employment and probable increase in the value of
stocks) might have been already apparent or could be anticipated at the time the
accommodation agreement was entered into. But would those benefits qualify the transaction as
one of the obligations x x x for the benefit of the conjugal partnership? Are indirect and remote
probable benefits, the ones referred to in Article 161 of the Civil Code? The Court of Appeals in
denying the motion for reconsideration, disposed of these questions in the following manner:
No matter how one looks at it, the debt/credit extended by respondents-appellants
is purely a corporate debt granted to PBM, with petitioner-appellee-husband
merely signing as surety. While such petitioner-appellee-husband, as such surety,
is solidarily liable with the principal debtor AIDC, such liability under the Civil
Code provisions is specifically restricted by Article 122 (par. 1) of the Family
Code, so that debts for which the husband is liable may not be charged against
conjugal partnership properties. Article 122 of the Family Code is explicit The
payment of personal debts contracted by the husband or the wife before or during
the marriage shall not be charged to the conjugal partnership except insofar as
they redounded to the benefit of the family.
Respondents-appellants insist that the corporate debt in question falls under the
exception laid down in said Article 122 (par. one). We do not agree. The loan
procured from respondent-appellant AIDC was for the sole advancement and
benefit of Philippine Blooming Mills and not for the benefit of the conjugal
partnership of petitioners-appellees.
 x x x appellee-husband derives salaries, dividends benefits from Philippine Here, the property in dispute also involves the family home. The loan is a corporate loan
Blooming Mills (the debtor corporation), only because said husband is an not a personal one. Signing as a surety is certainly not an exercise of an industry or profession
employee of said PBM.These salaries and benefits, are not the benefits nor an act of administration for the benefit of the family.
contemplated by Articles 121 and 122 of the Family Code. The benefits
contemplated by the exception in Article 122 (Family Code) is that benefit derived On the basis of the facts, the rules, the law and equity, the assailed decision should be
directly from the use of the loan. In the case at bar, the loan is a corporate loan upheld as we now uphold it. This is, of course, without prejudice to petitioners right to enforce
extended to PBM and used by PBM itself, not by petitioner-appellee-husband or the obligation in its favor against the PBM receiver in accordance with the rehabilitation program
his family. The alleged benefit, if any, continuously harped by respondents- and payment schedule approved or to be approved by the Securities & Exchange Commission.
appellants, are not only incidental but also speculative.[19]
WHEREFORE, the petition for review should be, as it is hereby, DENIED for lack of merit.
We agree with the respondent court. Indeed, considering the odds involved in
guaranteeing a large amount (P50,000,000.00) of loan, the probable prolongation of
employment in PBM and increase in value of its stocks, would be too small to qualify the
transaction as one for the benefit of the suretys family. Verily, no one could say, with a degree of
certainty, that the said contract is even productive of some benefits to the conjugal partnership.

We likewise agree with the respondent court (and this view is not contested by the
petitioners) that the provisions of the Family Code is applicable in this case. These provisions
highlight the underlying concern of the law for the conservation of the conjugal partnership; for
the husbands duty to protect and safeguard, if not augment, not to dissipate it.

This is the underlying reason why the Family Code clarifies that the obligations entered
into by one of the spouses must be those that redounded to the benefit of the family and that the
measure of the partnerships liability is to the extent that the family is benefited.[20]

These are all in keeping with the spirit and intent of the other provisions of the Civil Code
which prohibits any of the spouses to donate or convey gratuitously any part of the conjugal
property.[21] Thus, when co-respondent Alfredo Ching entered into a surety agreement he, from
then on, definitely put in peril the conjugal property (in this case, including the family home) and
placed it in danger of being taken gratuitously as in cases of donation.

In the second assignment of error, the petitioner advances the view that acting as surety is
part of the business or profession of the respondent-husband.

This theory is new as it is novel.

The respondent court correctly observed that:

Signing as a surety is certainly not an exercise of an industry or profession, hence

the cited cases of Cobb-Perez vs. Lantin; Abella de Diaz vs. Erlanger & Galinger;
G-Tractors, Inc. vs. CA do not apply in the instant case. Signing as a surety is not
embarking in a business.[22]

We are likewise of the view that no matter how often an executive acted or was persuaded to
act, as a surety for his own employer, this should not be taken to mean that he had thereby
embarked in the business of suretyship or guaranty.

This is not to say, however, that we are unaware that executives are often asked to stand
as surety for their companys loan obligations. This is especially true if the corporate officials
have sufficient property of their own; otherwise, their spouses signatures are required in order to
bind the conjugal partnerships.

The fact that on several occasions the lending institutions did not require the signature of
the wife and the husband signed alone does not mean that being a surety became part of his
profession. Neither could he be presumed to have acted for the conjugal partnership.

Article 121, paragraph 3, of the Family Code is emphatic that the payment of personal
debts contracted by the husband or the wife before or during the marriage shall not be charged
to the conjugal partnership except to the extent that they redounded to the benefit of the family.
CYNTHIA S. BOLOS, G.R. No. 186400
Petitioner, A copy of said decision was received by Danilo on August 25, 2006. He timely filed the Notice of
Present: Appeal on September 11, 2006.
CARPIO, J., Chairperson,
NACHURA, In an order dated September 19, 2006, the RTC denied due course to the appeal for Danilos
LEONARDO-DE CASTRO,*
- versus - PERALTA, and failure to file the required motion for reconsideration or new trial, in violation of Section 20 of the
MENDOZA, JJ.
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages.

On November 23, 2006, a motion to reconsider the denial of Danilos appeal was likewise
DANILO T. BOLOS,
Respondent. Promulgated: denied.
October 20, 2010
x -----------------------------------------------------------------------------------------------------x
On January 16, 2007, the RTC issued the order declaring its August 2, 2006 decision final and
DECISION executory and granting the Motion for Entry of Judgment filed by Cynthia.

MENDOZA, J.: Not in conformity, Danilo filed with the CA a petition for certiorari under Rule 65
seeking to annul the orders of the RTC as they were rendered with grave abuse of discretion

This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking a review of amounting to lack or in excess of jurisdiction, to wit: 1) the September 19, 2006 Order which

the December 10, 2008 Decision[1] of the Court of Appeals (CA) in an original action denied due course to Danilos appeal; 2) the November 23, 2006 Order which denied the motion

for certiorari under Rule 65 entitled Danilo T. Bolos v. Hon. Lorifel Lacap Pahimna and Cynthia to reconsider the September 19, 2006 Order; and 3) the January 16, 2007 Order which declared

S. Bolos, docketed as CA-G.R. SP. No. 97872, reversing the January 16, 2007 Order of the the August 2, 2006 decision as final and executory.Danilo also prayed that he be declared

Regional Trial Court of Pasig City, Branch 69 (RTC), declaring its decision pronouncing the psychologically capacitated to render the essential marital obligations to Cynthia, who should be

nullity of marriage between petitioner and respondent final and executory. declared guilty of abandoning him, the family home and their children.

On July 10, 2003, petitioner Cynthia Bolos (Cynthia) filed a petition for the declaration
of nullity of her marriage to respondent Danilo Bolos (Danilo) under Article 36 of the Family As earlier stated, the CA granted the petition and reversed and set aside the assailed orders of

Code, docketed as JDRC No. 6211.
After trial on the merits, the RTC granted the petition for annulment in a Decision,
dated August 2, 2006, with the following disposition:
WHEREFORE, judgment is hereby rendered declaring the
marriage between petitioner CYNTHIA S. BOLOS and respondent DANILO
T. BOLOS celebrated on February 14, 1980 as null and void ab initio on the
ground of psychological incapacity on the part of both petitioner and
respondent under Article 36 of the Family Code with all the legal
consequences provided by law.
the RTC. The appellate court stated that the requirement of a motion for reconsideration as a
prerequisite to appeal under A.M. No. 02-11-10-SC did not apply in this case as the marriage
between Cynthia and Danilo was solemnized on February 14, 1980 before the Family Code took
effect. It relied on the ruling of this Court in Enrico v. Heirs of Sps. Medinaceli[3] to the effect that
the coverage [of A.M. No. 02-11-10-SC] extends only to those marriages entered into during the
effectivity of the Family Code which took effect on August 3, 1988.
Cynthia sought reconsideration of the ruling by filing her Manifestation with Motion for Extension

Furnish the Local Civil Registrar of San Juan as well as the of Time to File Motion for Reconsideration and Motion for Partial Reconsideration [of the
National Statistics Office (NSO) copy of this decision. Honorable Courts Decision dated December 10, 2008]. The CA, however, in its February 11,
2009 Resolution,[4] denied the motion for extension of time considering that the 15-day
SO ORDERED.[2] reglementary period to file a motion for reconsideration is non-extendible, pursuant to Section 2,
Rule 40, 1997 Rules on Civil Procedure citing Habaluyas v. Japson, 142 SCRA 208. The motion
for partial reconsideration was likewise denied.
Hence, Cynthia interposes the present petition via Rule 45 of the Rules of Court
raising the following
III
THE TENETS OF JUSTICE AND FAIR PLAY, THE NOVELTY AND
IMPORTANCE OF THE ISSUE AND THE SPECIAL CIRCUMSTANCES IN
THIS CASE JUSTIFY AND WARRANT A LIBERAL VIEW OF THE RULES
IN FAVOR OF THE PETITIONER. MOREOVER, THE INSTANT PETITION
IS MERITORIOUS AND NOT INTENDED FOR DELAY.[5]

ISSUES From the arguments advanced by Cynthia, the principal question to be resolved is
whether or not A.M. No. 02-11-10-SC entitled Rule on Declaration of Absolute Nullity of Void

I Marriages and Annulment of Voidable Marriages, is applicable to the case at bench.

THE COURT OF APPEALS GRAVELY ERRED IN ISSUING THE
QUESTIONED DECISION DATED DECEMBER 10, 2008 CONSIDERING
THAT: Petitioner argues that A.M. No. 02-11-10-SC is also applicable to marriages
solemnized before the effectivity of the Family Code. According to Cynthia, the CA erroneously
A. THE PRONOUNCEMENT OF THE HONORABLE
COURT IN ENRICO V. SPS. MEDINACELI IS anchored its decision to an obiter dictum in the aforecited Enrico case, which did not even
NOT APPLICABLE TO THE INSTANT CASE
CONSIDERING THAT THE FACTS AND THE involve a marriage solemnized before the effectivity of the Family Code.
ISSUE THEREIN ARE NOT SIMILAR TO THE
INSTANT CASE. She added that, even assuming arguendo that the pronouncement in the said case
B. ASSUMING ARGUENDO THAT THE constituted a decision on its merits, still the same cannot be applied because of the substantial
PRONOUNCEMENT OF THE HONORABLE
COURT IS APLLICABLE TO THE INSTANT disparity in the factual milieu of the Enrico case from this case. In the said case, both the
CASE, ITS RULING IN ENRICO V. SPS.
marriages sought to be declared null were solemnized, and the action for declaration of nullity
MEDINACELI IS PATENTLY ERRONEOUS
BECAUSE THE PHRASE UNDER THE FAMILY was filed, after the effectivity of both the Family Code in 1988 and of A.M. No. 02-11-10-SC in
CODE IN A.M. NO. 02-11-10-SC PERTAINS TO
THE WORD PETITIONS RATHER THAN TO THE 2003. In this case, the marriage was solemnized before the effectivity of the Family Code and
WORD MARRIAGES.
A.M. No. 02-11-10-SC while the action was filed and decided after the effectivity of both.
C. FROM THE FOREGOING, A.M. NO. 02-11-10-SC
ENTITLED RULE ON DECLARATION OF Danilo, in his Comment,[6] counters that A.M. No. 02-11-10-SC is not applicable because his
ABSOLUTE NULLITY OF VOID MARRIAGES
AND ANNULMENT OF VOIDABLE MARRIAGES marriage with Cynthia was solemnized on February 14, 1980, years before its effectivity. He
IS APPLICABLE TO MARRIAGES
SOLEMNIZED BEFORE THE EFFECTIVITY OF further stresses the meritorious nature of his appeal from the decision of the RTC declaring their
THE FAMILY CODE. HENCE, A MOTION FOR marriage as null and void due to his purported psychological incapacity and citing the mere
RECONSIDERATION IS A PRECONDITION FOR
AN APPEAL BY HEREIN RESPONDENT. failure of the parties who were supposedly remiss, but not incapacitated, to render marital

D. CONSIDERING THAT HEREIN RESPONDENT obligations as required under Article 36 of the Family Code.
REFUSED TO COMPLY WITH A
PRECONDITION FOR APPEAL, A RELAXATION The Court finds the petition devoid of merit.
OF THE RULES ON APPEAL IS NOT PROPER
IN HIS CASE. Petitioner insists that A.M. No. 02-11-10-SC governs this case. Her stance is unavailing. The
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages
II
THE COURT OF APPEALS GRAVELY ERRED IN ISSUING THE as contained in A.M. No. 02-11-10-SC which the Court promulgated on March 15, 2003, is
QUESTIONED RESOLUTION DATED FEBRUARY 11,
explicit in its scope. Section 1 of the Rule, in fact, reads:
2009 CONSIDERING THE FOREGOING AND THE FACTUAL
CIRCUMSTANCES OF THIS CASE. Section 1. Scope This Rule shall govern petitions for declaration of absolute
nullity of void marriages and annulment of voidable marriages under the
Family Code of the Philippines.
 The Rules of Court shall apply suppletorily.
The categorical language of A.M. No. 02-11-10-SC leaves no room for doubt. The coverage
extends only to those marriages entered into during the effectivity of the Family Code which took
effect on August 3, 1988.[7] The rule sets a demarcation line between marriages covered by the
Family Code and those solemnized under the Civil Code.[8]
The Court finds Itself unable to subscribe to petitioners interpretation that the phrase under the
Family Code in A.M. No. 02-11-10-SC refers to the word petitions rather than to the word
marriages.
A cardinal rule in statutory construction is that when the law is clear and free from any
doubt or ambiguity, there is no room for construction or interpretation. There is only room for
application.[9] As the statute is clear, plain, and free from ambiguity, it must be given its literal
meaning and applied without attempted interpretation. This is what is known as the plain-
meaning rule or verba legis. It is expressed in the maxim, index animi sermo, or speech is the
index of intention. Furthermore, there is the maxim verba legis non est recedendum, or from the
words of a statute there should be no departure.[10]
There is no basis for petitioners assertion either that the tenets of substantial justice,
the novelty and importance of the issue and the meritorious nature of this case warrant a
relaxation of the Rules in her favor. Time and again the Court has stressed that the rules of
procedure must be faithfully complied with and should not be discarded with the mere
expediency of claiming substantial merit.[11] As a corollary, rules prescribing the time for doing
specific acts or for taking certain proceedings are considered absolutely indispensable to
prevent needless delays and to orderly and promptly discharge judicial business. By their very
nature, these rules are regarded as mandatory.[12]
The appellate court was correct in denying petitioners motion for extension of time to
file a motion for reconsideration considering that the reglementary period for filing the said
motion for reconsideration is non-extendible. As pronounced in Apex Mining Co., Inc. v.
[13]
Commissioner of Internal Revenue,
The rule is and has been that the period for filing a motion for
reconsideration is non-extendible. The Court has made this clear as early as
1986 in Habaluyas Enterprises vs. Japzon. Since then, the Court has
consistently and strictly adhered thereto.
Given the above, we rule without hesitation that the appellate
courts denial of petitioners motion for reconsideration is justified, precisely
because petitioners earlier motion for extension of time did not suspend/toll
the running of the 15-day reglementary period for filing a motion for
reconsideration. Under the circumstances, the CA decision has already
attained finality when petitioner filed its motion for reconsideration. It follows
that the same decision was already beyond the review jurisdiction of this
Court.
In fine, the CA committed no reversible error in setting aside the RTC decision which denied due
course to respondents appeal and denying petitioners motion for extension of time to file a
motion for reconsideration.
Appeal is an essential part of our judicial system. Its purpose is to bring up for review a final
judgment of the lower court. The courts should, thus, proceed with caution so as not to deprive a
party of his right to appeal.[14] In the recent case of Almelor v. RTC of Las Pinas City, Br.
254,[15] the Court reiterated: While the right to appeal is a statutory, not a natural right,
nonetheless it is an essential part of our judicial system and courts should proceed with caution
so as not to deprive a party of the right to appeal, but rather, ensure that every party-litigant has
the amplest opportunity for the proper and just disposition of his cause, free from the constraints
of technicalities.
In the case at bench, the respondent should be given the fullest opportunity to
establish the merits of his appeal considering that what is at stake is the sacrosanct institution of
marriage.
No less than the 1987 Constitution recognizes marriage as an inviolable social institution. This
constitutional policy is echoed in our Family Code. Article 1 thereof emphasizes its permanence
and inviolability, thus:
Article 1. Marriage is a special contract of permanent union
between a man and a woman entered into in accordance with law for the
establishment of conjugal and family life. It is the foundation of the family
and an inviolable social institution whose nature, consequences, and
incidents are governed by law and not subject to stipulation, except that
marriage settlements may fix the property relations during the marriage
within the limits provided by this Code.
This Court is not unmindful of the constitutional policy to protect and strengthen the family as the
basic autonomous social institution and marriage as the foundation of the family. [16]
 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 finds 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.[17]
WHEREFORE, the petition is DENIED.
ELNA MERCADO-FEHR, petitioner, vs. BRUNO FEHR, respondent.
DECISION
PUNO, J.:
This case arose from a petition for declaration of nullity of marriage on the ground of
psychological incapacity to comply with the essential marital obligations under Article 36 of the
Family Code filed by petitioner Elna Mercado-Fehr against respondent Bruno Fehr before the
Regional Trial Court of Makati in March 1997.[1]
After due proceedings, the trial court declared the marriage between petitioner and
respondent void ab initio under Article 36 of the Family Code and ordered the dissolution of their
conjugal partnership of property.[2] The dispositive portion of the Decision dated January 30,
1998 states:
WHEREFORE, in the light of the foregoing, the marriage between Elna D. Mercado and Bruno
F. Fehr on March 14, 1985 is hereby declared null and void on the ground of psychological
incapacity on the part of respondent to perform the essential obligations of marriage under
Article 36 of the Family Code.
Accordingly, the conjugal partnership of property existing between the parties is dissolved and in
lieu thereof, a regime of complete separation of property between the said spouses is
established in accordance with the pertinent provisions of the Family Code, without prejudice to
the rights previously acquired by creditors.
Custody over the two minor children, MICHAEL BRUNO MERCADO FEHR and PATRICK
FRANZ FEHR, is hereby awarded to petitioner, she being the innocent spouse.
Let a copy of this Decision be duly recorded in the proper civil and property registries in
accordance with Article 52 of the Family Code.
SO ORDERED.[3]
On August 24, 1999, the trial court issued an Order resolving the various motions[4] filed by
respondent after the case had been decided. The Order pertained to the properties held by the
parties, thus:
xxxxxxxxx
After a careful scrutiny of the inventory of properties submitted by both parties, the Court finds
the following properties to be excluded from the conjugal properties, namely:
a) the Bacolod property covered by Transfer Certificate of Title No. T-137232, considering that
the same is owned by petitioners parents, Herminio Mercado and Catalina D. Mercado xxx and
b) Suite 204 of the LCG Condominium covered by Condominium Certificate of Title No. 14735,
considering that the same was purchased on installment basis by respondent with his exclusive
funds prior to his marriage, as evidenced by a Contract to Sell dated July 26, 1983. xxx
Accordingly, the conjugal properties of the petitioner and respondent shall be distributed in the
following manner:
TO PETITIONER ELNA MERCADO:
a. Ground Floor, LCG Condominium, with an area of 671.84 sq. m., covered by Condominium
Certificate of Title No. 14734; and
b. Tamaraw FX (1995 model)
TO RESPONDENT BRUNO FRANZ FEHR:
a. Upper Basement, LCG Condominium, with an area of 180.81 sq. m. and covered by
Condominium Certificate of Title No. 14733; and
b. Nissan Sentra with Plate No. FDJ-533 (1994 model)
Furthermore, Suite 204, LCG Condominium with an area of 113.54 sq. m. and covered by
Condominium Certificate of Title NO. 14735 is hereby declared the EXCLUSIVE PROPERTY of
respondent, BRUNO FRANZ FEHR. Accordingly, petitioner is hereby directed to transfer
ownership of Suite 204 in the name of respondent, covered by Condominium Certificate of Title
No. 14735, being respondents exclusive property, acquired prior to his marriage.
Anent the monthly rentals prior to the issuance of this Order of the subject properties, namely
the Ground Floor Front (Fridays Club), Ground Floor Rear Apartment and Upper Basement at
LGC Condominium, all leased by Bar 4 Corporation, the same shall be shared by the parties in
common, in proportion to one-half each or share and share alike, after deducting all expenses
for Income Taxes, Business Permits, Realty Taxes, Municipal License fees, clearances,
etc. Accordingly, petitioner is hereby directed to deliver to respondent the following: a) the
balance of his share of the monthly rentals from February 1998 to May 1998; and b) his one-half
share (1/2) of the monthly rentals of the aforesaid properties from June 1998 up to this
date. Thereafter, the parties shall own and enjoy their respective share of the monthly rentals
derived from the properties adjudicated to them as stated above.
The Petitioner and Respondent are further enjoined to jointly support their minor children,
Michael and Patrick Fehr, for their education, uniforms, food and medical expenses.[5]
Petitioner filed a motion for reconsideration of said Order with respect to the adjudication
of Suite 204, LCG Condominium and the support of the children. Petitioner alleged
that Suite204 was purchased on installment basis at the time when petitioner and respondent
were living exclusively with each other as husband and wife without the benefit of marriage,
hence the rules on co-ownership should apply in accordance with Article 147 of the Family
Code. Petitioner further claimed that it would not be in the best interests of the children if she
would be made to demand periodically from respondent his share in the support of the children.
She instead proposed that the Upper Basement and the Lower Ground Floor of the LCG
Condominium be adjudicated to her so that she could use the income from the lease of said
premises for the support of the children.[6]
Resolving said motion, the trial court held in an Order dated October 5, 2000 that since the
marriage between petitioner and respondent was declared void ab intio, the rules on co-
ownership should apply in the liquidation and partition of the properties they own in common
pursuant to Article 147 of the Family Code. The court, however, noted that the parties have
already agreed in principle to divide the properties and/or proceeds from the sale thereof
proportionately among them and their children as follows: 1/3 for petitioner, 1/3 for respondent
and 1/3 for the children. It also affirmed its previous ruling that Suite 204 of LCG Condominium
was acquired prior to the couples cohabitation and therefore pertained solely to respondent.[7]
 On November 28, 2000, petitioner filed a notice of appeal questioning the October 5,
2000 Order of the trial court.[8] Respondent filed an Opposition to the Notice of
Appeal.[9] On January 12, 2001, petitioner withdrew the notice of appeal[10] and instead filed on
the following day a special civil action for certiorari and prohibition with the Court of Appeals,
questioning the findings of the trial court in its Order dated October 5, 2000.[11]
The Court of Appeals, in its Decision dated October 26, 2001, dismissed the petition
for certiorari for lack of merit. The appellate court stated that petitioner has not shown any
reason to warrant the issuance of a writ of certiorari as the errors she raised were mere errors of
judgment which were the proper subject of an ordinary appeal, not a petition for certiorari.[12]
Petitioner filed a motion for reconsideration of said Decision, which was also denied by the
appellate court.[13]
Hence this petition. Petitioner raises the following arguments:
1) Petitioner correctly filed a petition for certiorari and prohibition against the
Regional Trial Court of Makati, Branch 149 in the Court of Appeals in view of the
fact that the questioned orders were issued with grave abuse of discretion
amounting to excess of or lack of jurisdiction.
2) The Court of Appeals erred in ruling that the questioned orders were errors of
judgment and not of jurisdiction.[14]
We shall first address the procedural issue, whether the Court of Appeals erred in
dismissing the special civil action for certiorari filed by petitioner.
Petitioner argues that the filing of a petition for certiorari with the Court of Appeals was
proper because the trial court committed grave abuse of discretion in the issuance of its Order
dated October 5, 2000, and there were no other speedy and adequate remedies available. She
asserts that the trial court committed grave abuse of discretion when it held that Suite 204 of the
LCG Condominium was the exclusive property of respondent, although it was established that
they lived together as husband and wife beginning March 1983, before the execution of the
Contract to Sell on July 26, 1983. Furthermore, the trial courts ruling dividing their properties into
three, instead of two as provided under Article 147 of the Family Code, or four, as allegedly
agreed by the parties during a conference with the trial court judge on May 3, 2000, also
constituted grave abuse of discretion.[15]
Respondent, on the other hand, contends that petitioner may no longer avail of any
remedy, whether an appeal or a petition for certiorari, as she had lost all the right to appeal from
the time the Decision of January 30, 1998 became final and executory. He argues that the Order
of the trial court dated October 5, 2000 is no longer assailable because it was merely issued to
execute the final and executory Decision of January 30, 1998. He also submits that the division
of the properties into three and the distribution of 1/3 share each to the petitioner, the
respondent, and their children was proper, in accordance with Articles 50, 51, 147 and 148 of
the Family Code mandating the delivery of the presumptive legitime of the common children
upon dissolution of the property regime. Respondent further claims Suite 204 of LCG
Condominium to be his exclusive property as it was acquired on July 26, 1983, prior to their
marriage on March 14, 1985.[16]
A petition for certiorari is the proper remedy when any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction and there is no appeal, nor any
plain speedy, and adequate remedy at law. Grave abuse of discretion is defined as the
capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. As
a general rule, a petition for certiorari will not lie if an appeal is the proper remedy such as when
an error of judgment or procedure is involved. As long as a court acts within its jurisdiction and
does not gravely abuse its discretion in the exercise thereof, any supposed error committed by it
will amount to nothing more than an error of judgment reviewable by a timely appeal and not
assailable by a special civil action of certiorari. However, in certain exceptional cases, where
the rigid application of such rule will result in a manifest failure or miscarriage of justice, the
provisions of the Rules of Court which are technical rules may be relaxed. Certiorari has been
deemed to be justified, for instance, in order to prevent irreparable damage and injury to a party
where the trial judge has capriciously and whimsically exercised his judgment, or where there
may be danger of clear failure of justice, or where an ordinary appeal would simply be
inadequate to relieve a party from the injurious effects of the judgment complained of.[17]
The exception applies to the case at bar. We reject respondents submission that all the
appellate remedies of petitioner have been foreclosed when the Decision dated January 30,
1998 became final and executory. What is being questioned in this petition is not the January 30,
1998 Decision of the trial court declaring the marriage between petitioner and respondent
void ab initio on the ground of psychological incapacity, but the Order of the trial court dated
October 5, 2000 dividing the common properties of petitioner and respondent into three1/3 to
petitioner, 1/3 to respondent and 1/3 to their children, and affirming its previous ruling that Suite
204 of LCG Condominium is the exclusive property of respondent. The issue on the validity of
the marriage of petitioner and respondent has long been settled in the main Decision and may
no longer be the subject of review. There were, however, incidental matters that had to be
addressed regarding the dissolution of the property relations of the parties as a result of the
declaration of nullity of their marriage. The questioned Order pertained to the division and
distribution of the common properties of petitioner and respondent, pursuant to the courts
directive in its main decision to dissolve the conjugal partnership. Said Order is a final Order as it
finally disposes of the issues concerning the partition of the common properties of petitioner and
respondent, and as such it may be appealed by the aggrieved party to the Court of Appeals via
ordinary appeal. However, considering the merits of the case, the Court believes that a blind
adherence to the general rule will result in miscarriage of justice as it will divest the petitioner of
her just share in their common property, and thus, deprive her of a significant source of income
to support their children whom the court had entrusted to her care. We have held that where a
rigid application of the rule that certiorari cannot be a substitute for appeal will result in a
manifest failure or miscarriage of justice, the provisions of the Rules of Court which are technical
rules may be relaxed.[18]
We now go to the substantive issues. The crux of the petition is the ownership
of Suite 204 of LCG Condominium and how the properties acquired by petitioner and respondent
should be partitioned.
It appears from the facts, as found by the trial court, that in March 1983, after two years of
long-distance courtship, petitioner left Cebu City and moved in with respondent in the latters
residence in Metro Manila. Their relations bore fruit and their first child, Michael Bruno Fehr, was
born on December 3, 1983. The couple got married on March 14, 1985. In the meantime, they
purchased on installment a condominium unit, Suite 204, at LCG Condominium, as evidenced
by a Contract to Sell dated July 26, 1983 executed by respondent as the buyer and J.V. Santos
Commercial Corporation as the seller. Petitioner also signed the contract as witness, using the
name Elna Mercado Fehr. Upon completion of payment, the title to the condominium unit was
issued in the name of petitioner.[19]
In light of these facts, we give more credence to petitioners submission that Suite 204 was
acquired during the parties cohabitation. Accordingly, under Article 147 of the Family Code, said
property should be governed by the rules on co-ownership. The Family Code provides:
Article 147. When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the benefit of marriage or under
a void marriage, their wages and salaries shall be owned by them in equal shares and the
property acquired by both of them through their work or industry shall be governed by
the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall
be presumed to have been obtained by their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes of this Article, a party who did not
participate in the acquisition by the other party of any property shall be deemed to have the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void
contributed jointly to the acquisition thereof if the formers efforts consisted in the care marriage before the latter is judicially declared void.[22]
and maintenance of their family and of the household.
In sum, we rule in favor of the petitioner. We hold that Suite 204 of LCG Condominium is a
common property of petitioner and respondent and the property regime of the parties should be
Neither party can encumber or dispose by acts inter vivos of his or her share in the property divided in accordance with the law on co-ownership.
acquired during cohabitation and owned in common, without the consent of the other, until after
the termination of their cohabitation. IN VIEW WHEREOF, the petition is GRANTED. The case is hereby REMANDED to the
Regional Trial Court of Makati, Branch 149 for liquidation of the properties of petitioner and
respondent in accordance with this Courts ruling.
When only one of the parties to a void marriage is in good faith, the share of the party in bad
faith in the co-ownership shall be forfeited in favor of their common children. In case of default of
or waiver by any or all of the common children or their descendants, each vacant share shall
belong to the respective surviving descendants. (emphasis supplied)

Article 147 applies to unions of parties who are legally capacitated and not barred by any
impediment to contract marriage, but whose marriage is nonetheless void, [20] as in the case at
bar. This provision creates a co-ownership with respect to the properties they acquire during
their cohabitation.

We held in Valdes vs. Regional Trial Court, Br. 102, Quezon City:[21]

This peculiar kind of co-ownership applies when a man and a woman, suffering no legal
impediment to marry each other, so exclusively live together as husband and wife under a void
marriage or without the benefit of marriage. The term capacitated in the provision (in the first
paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any male or
female of the age of eighteen years or upwards not under any of the impediments mentioned in
Article 37 and 38 of the Code.

Under this property regime, property acquired by both spouses through their work and industry
shall be governed by the rules on equal co-ownership. Any property acquired during the union
is prima faciepresumed to have been obtained through their joint efforts. A party who did not
participate in the acquisition of the property shall still be considered as having contributed
thereto jointly if said partys efforts consisted in the care and maintenance of the family
household.

Thus, for Article 147 to operate, the man and the woman: (1) must be capacitated to marry
each other; (2) live exclusively with each other as husband and wife; and (3) their union is
without the benefit of marriage or their marriage is void. All these elements are present in the
case at bar. It has not been shown that petitioner and respondent suffered any impediment to
marry each other. They lived exclusively with each other as husband and wife when petitioner
moved in with respondent in his residence and were later united in marriage. Their marriage,
however, was found to be void under Article 36 of the Family Code because of respondents
psychological incapacity to comply with essential marital obligations.

The disputed property, Suite 204 of LCG Condominium, was purchased on installment
basis on July 26, 1983, at the time when petitioner and respondent were already living together.
Hence, it should be considered as common property of petitioner and respondent.

As regards the settlement of the common properties of petitioner and respondent, we hold
that the Civil Code provisions on co-ownership should apply. There is nothing in the records that
support the pronouncement of the trial court that the parties have agreed to divide the properties
into three1/3 share each to the petitioner, the respondent and their children. Petitioner, in fact,
alleges in her petition before this Court that the parties have agreed on a four-way division of the
properties1/4 share each to the petitioner and the respondent, and 1/4 share each to their two
children. Moreover, respondents argument that the three-way partition is in accordance with
Articles 50 and 51 of the Family Code does not hold water as said provisions relate only to
voidable marriages and exceptionally to void marriages under Article 40 of the Family Code, i.e.,

G.R. No. 112019 January 4, 1995
LEOUEL SANTOS, petitioner,
vs.
THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIA-
SANTOS, respondents.
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 quo1 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 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.
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
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

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
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

Justice Puno formulated the next Article as follows:
prospective in application.

Art. 37. A marriage contracted by any party who, at the

Justice Diy opined that she was for its retroactivity because it is their answer
time of the celebration, was psychologically
to the problem of church annulments of marriages, which are still valid
incapacitated, to comply with the essential obligations
under the Civil Law. On the other hand, Justice Reyes and Justice Puno
of marriage shall likewise be void from the beginning
were concerned about the avalanche of cases.
even if such incapacity becomes manifest after its
solemnization.
Dean Gupit suggested that they put the issue to a vote, which the
Committee approved.
Justice Caguioa suggested that "even if" be substituted with "although." On
the other hand, Prof. Bautista proposed that the clause "although such
 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.
10
One author, Ladislas Orsy, S.J., in his treaties, 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 Our Constitution is no less emphatic:
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
Sec. 1. The State recognizes the Filipino family as the foundation of the
the history of the party antedating the marriage, although the overt manifestations may emerge
nation. Accordingly, it shall strengthen its solidarity and actively promote its
only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be
total development.
beyond the means of the party involved.

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the

It should be obvious, looking at all the foregoing disquisitions, including, and most importantly,
family and shall be protected by the State. (Article XV, 1987 Constitution).
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, The above provisions express so well and so distinctly the basic nucleus of our laws on marriage
extremely low intelligence, immaturity, and like circumstances (cited in Fr. Artemio Baluma's and the family, and they are doubt the tenets we still hold on to.
"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 The factual settings in the case at bench, in no measure at all, can come close to the standards
Code cannot be taken and construed independently of, but must stand in conjunction with, 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
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 always provide all the specific answers to every individual problem.
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 WHEREFORE, the petition is DENIED.
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 SO ORDERED.
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 Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno Kapunan
does not evidently envision, upon the other hand, an inability of the spouse to have sexual and Mendoza, JJ., concur.
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." Feliciano, J., is on leave.

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. Separate Opinions

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 PADILLA, J., dissenting:
persons with expertise in psychological disciplines might be helpful or even desirable.
It is difficult to dissent from a well-written and studied opinion as Mr. Justice Vitug's ponencia.
Marriage is not an adventure but a lifetime commitment. We should continue to be reminded that But, after an extended reflection on the facts of this case, I cannot see my way clear into holding,
innate in our society, then enshrined in our Civil Code, and even now still indelible in Article 1 of as the majority do, that there is no ground for the declaration of nullity of the marriage between
the Family Code, is that petitioner and private respondent.

Art. 1. Marriage is a special contract of permanent union between a man a To my mind, it is clear that private respondent has been shown to be psychologically
woman entered into in accordance with law for the establishment of incapacitated to comply with at least one essential marital obligation, i.e. that of living and
conjugal and family life. It is the foundation of the family and an inviolable cohabiting with her husband, herein petitioner. On the other hand, it has not been shown that
social institution whose nature, consequences, and incidents are governed petitioner does not deserve to live and cohabit with his wife, herein private respondent.
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.)
There appears to be no disagreement that the term "psychological incapacity" defies precision in
definition. But, as used in Article 36 of the Family Code as a ground for the declaration of nullity
of a marriage, the intent of the framers of the Code is evidently to expand and liberalize the
grounds for nullifying a marriage, as well pointed out by Madam Justice Flerida Ruth P. Romero
in her separate opinion in this case.
While it is true that the board term "psychological incapacity" can open the doors to abuse by
couples who may wish to have an easy way out of their marriage, there are, however, enough
safeguards against this contingency, among which, is the intervention by the State, through the
public prosecutor, to guard against collusion between the parties and/or fabrication of evidence.
In their case at bench, it has been abundantly established that private respondent Julia Rosario
Bedia-Santos exhibits specific behavior which, to my mind, shows that she is psychologically
incapacitated to fulfill her essential marital obligations, to writ:
a. It took her seven (7) months after she left for the United States to call up
her husband.
b. Julia promised to return home after her job contract expired in July 1989,
but she never did and neither is there any showing that she informed her
husband (herein petitioner) of her whereabouts in the U.S.A.
c. When petitioner went to the United States on a mission for the Philippine
Army, he exerted efforts to "touch base" with Julia; there were no similar
efforts on the part of Julia; there were no similar efforts on the part of Julia
to do the same.
d. When petitioner filed this suit, more than five (5) years had elapsed,
without Julia indicating her plans to rejoin the petitioner or her whereabouts.
e. When petitioner filed this case in the trial court, Julia, in her answer,
claimed that it is the former who has been irresponsible and incompetent.
f. During the trial, Julia waived her right to appear and submit evidence.
A spouse's obligation to live and cohabit with his/her partner in marriage is a basic ground rule in
marriage, unless there are overpowering compelling reasons such as, for instance, an incurable
contagious disease on the part of a spouse or cruelty of one partner, bordering on insanity.
There may also be instances when, for economic and practical reasons, husband and wife have
to live separately, but the marital bond between the spouses always remains. Mutual love and
respect for each other would, in such cases, compel the absent spouse to at least have regular
contracts with the other to inform the latter of his/her condition and whereabouts.
In the present case, it is apparent that private respondent Julia Rosario Bedia-Santos has no
intention of cohabiting with petitioner, her husband, or maintaining contact with him. In fact, her
acts eloquently show that she does not want her husband to know of her whereabouts and
neither has she any intention of living and cohabiting with him.
To me there appears to be, on the part of private respondent, an unmistakeable indication of
psychological incapacity to comply with her essential marital obligations, although these
indications were made manifest after the celebration of the marriage.
It would be a great injustice, I believe, to petitioner for this Court to give a much too restrictive
interpretation of the law and compel the petitioner to continue to be married to a wife who for
purposes of fulfilling her marital duties has, for all practical purposes, ceased to exist.
Besides, there are public policy considerations involved in the ruling the Court makes today. Is it
not, in effect directly or indirectly, facilitating the transformation of petitioner into a "habitual
tryster" or one forced to maintain illicit relations with another woman or women with emerging
problems of illegitimate children, simply because he is denied by private respondent, his wife,
the companionship and conjugal love which he has sought from her and to which he is legally
entitled?
I do not go as far as to suggest that Art. 36 of the Family Code is a sanction for absolute divorce
but I submit that we should not constrict it to non-recognition of its evident purpose and thus
deny to one like petitioner, an opportunity to turn a new leaf in his life by declaring his marriage a
nullity by reason of his wife's psychological incapacity to perform an essential marital obligation.
I therefore vote to GRANT the petition and to DECLARE the marriage between petitioner Leouel
Santos and private respondent Julia Rosario Bedia-Santos VOID on the basis of Article 36 of the
Family Code.
ROMERO, J., concurring:
I agree under the circumstances of the case, petitioner is not entitled to have his marriage
declared a nullity on the ground of psychological incapacity of private respondent.
However, as a member of both the Family Law Revision Committee of the Integrated Bar of the
Philippines and the Civil Code Revision Committee of the UP Law Center, I wish to add some
observations. The letter1 dated April 15, 1985 of then Judge Alicia V. Sempio-Diy written in
behalf of the Family Law and Civil Code Revision Committee to then Assemblywoman Mercedes
Cojuangco-Teodoro traced the background of the inclusion of the present Article 36 in the
Family Code.
During its early meetings, the Family Law Committee had thought of
including a chapter on absolute divorce in the draft of a new Family Code
(Book I of the Civil Code) that it had been tasked by the IBP and the UP
Law Center to prepare. In fact, some members of the Committee were in
favor of a no-fault divorce between the spouses after a number of years of
separation, legal or de-facto. Justice J.B.L. Reyes was then requested to
prepare a proposal for an action for dissolution of marriage and the effects
thereof based on two grounds: (a) five continuous years of separation
between the spouses, with or without a judicial decree of legal separation,
and (b) whenever a married person would have obtained a decree of
absolute divorce in another country. Actually, such a proposal is one for
absolute divorce but called by another name. Later, even the Civil Code
Revision Committee took time to discuss the proposal of Justice Reyes on
this matter.
Subsequently, however, when the Civil Code Revision Committee and
Family Law Committee started holding joint meetings on the preparation of
the draft of the New Family Code, they agreed and formulated the definition
of marriage as
"a special contract of permanent partnership between a
man and a woman entered into in accordance with law
 for the establishment of conjugal and family life. It is 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 law."
With the above definition, and considering the Christian traditional concept
of marriage of the Filipino people as a permanent, inviolable, indissoluble
social institution upon which the family and society are founded, and also
realizing the strong opposition that any provision on absolute divorce would
encounter from the Catholic Church and the Catholic sector of our citizenry
to whom the great majority of our people belong, the two Committees in
their joint meetings did not pursue the idea of absolute divorce and instead
opted for an action for judicial declaration of invalidity of marriage based on
grounds available in the Canon Law. It was thought that such an action
would not only be an acceptable alternative to divorce but would also solve
the nagging problem of church annulments of marriages on grounds not
recognized by the civil law of the State. Justice Reyes was thus requested
to again prepare a draft of provisions on such action for celebration of
invalidity of marriage. Still later, to avoid the overlapping of provisions on
void marriages as found in the present Civil Code and those proposed by
Justice Reyes on judicial declaration of invalidity of marriage on grounds
similar to the Canon Law, the two Committees now working as a Joint
Committee in the preparation of a New Family Code decided to consolidate
the present provisions on void marriages with the proposals of Justice
Reyes. The result was the inclusion of an additional kind of void marriage in
the enumeration of void marriages in the present Civil Code, to wit:
"(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."
as well as the following implementing provisions:
"Art. 32. The absolute nullity of a marriage may be
invoked or pleaded only on the basis of a final judgment
declaring the marriage void, without prejudice to the
provision of Article 34."
"Art. 33. The action or defense for the declaration of the
absolute nullity of a marriage shall not prescribe."
xxx xxx xxx
It is believed that many hopelessly broken marriages in our country today
may already dissolved or annulled on the grounds proposed by the Joint
Committee on declaration of nullity as well as annulment of marriages, thus
rendering an absolute divorce law unnecessary. In fact, during a conference
with Father Gerald Healy of the Ateneo University as well as another
meeting with Archbishop Oscar Cruz of the Archdiocese of Pampanga, the
Joint Committee was informed that since Vatican II, the Catholic Church has
been declaring marriages null and void on the ground of "lack of due
discretion" for causes that, in other jurisdictions, would be clear grounds for
divorce, like teen-age or premature marriages; marriage to a man who,
because of some personality disorder or disturbance, cannot support a
family; the foolish or ridiculous choice of a spouse by an otherwise perfectly
normal person; marriage to a woman who refuses to cohabit with her
husband or who refuses to have children. Bishop Cruz also informed the
Committee that they have found out in tribunal work that a lot of machismo
among husbands are manifestations of their sociopathic personality
anomaly, like inflicting physical violence upon their wives, constitutional
indolence or laziness, drug dependence or addiction, and psychological
anomaly. . . . (Emphasis supplied)
Clearly, by incorporating what is now Article 36 into the Family Code, the Revision Committee
referred to above intended to add another ground to those already listed in the Civil Code as
grounds for nullifying a marriage, thus expanding or liberalizing the same. Inherent in the
inclusion of the provision on psychological incapacity was the understanding that every petition
for declaration of nullity based on it should be treated on a case-to-case basis; hence, the
absence of a definition and an enumeration of what constitutes psychological incapacity.
Moreover, the Committee feared that the giving of examples would limit the applicability of the
provision under the principle of ejusdem generis. But the law requires that the same be existing
at the time of marriage although it be manifested later.
Admittedly, the provision on psychological incapacity, just like any other provision of law, is open
to abuse. To prevent this, "the court shall take order the prosecuting 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."2 Moreover, the judge, in interpreting
the provision on a case-to-case basis, must be 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 provisions was
taken from Canon Law."3
The constitutional and statutory provisions on the family4 will remain the lodestar which our
society will hope to achieve ultimately. Therefore, the inclusion of Article 36 is not to be taken as
an abandonment of the ideal which we all cherish. If at all, it is a recognition of the reality that
some marriages, by reason of the incapacity of one of the contracting parties, fall short of this
ideal; thus, the parties are constrained to find a way of putting an end to their union through
some legally-accepted means.
Any criticism directed at the way that judges have interpreted the provision since its enactment
as to render it easier for unhappily-married couples to separate is addressed, not to the wisdom
of the lawmakers but to the manner by which some members of the Bench have implemented
the provision. These are not interchangeable, each being separate and distinct from the other.
TEOFISTA BABIERA, petitioner, vs. PRESENTACION B. CATOTAL, respondent.
DECISION
PANGANIBAN, J.:
A birth certificate may be ordered cancelled upon adequate proof that it is fictitious. Thus, void is
a certificate which shows that the mother was already fifty-four years old at the time of the child's
birth and which was signed neither by the civil registrar nor by the supposed mother. Because
her inheritance rights are adversely affected, the legitimate child of such mother is a proper party
in the proceedings for the cancellation of the said certificate.
Statement of the Case
Submitted for this Courts consideration is a Petition for Review on Certiorari[1] under Rule 45 of
the Rules of Court, seeking reversal of the March 18, 1999 Decision[2] of the Court of
Appeals[3] (CA) in CA-GR CV No. 56031. Affirming the Regional Trial Court of Lanao del Norte in
Special Proceedings No. 3046, the CA ruled as follows:
"IN VIEW HEREOF, the appealed decision is hereby AFFIRMED.
Accordingly, the instant appeal is DISMISSED for lack of merit. Costs
against the defendant-appellant, TEOFISTA BABIERA, a.k.a. Teofista
Guinto."[4]
The dispositive portion of the affirmed RTC Decision reads:
"WHEREFORE, in view of the foregoing findings and pronouncements of
the Court, judgment is hereby rendered, to wit[:]
1) Declaring the Certificate of Birth of respondent Teofista Guinto as null
and void 'ab initio';
2) Ordering the respondent Local Civil Registrar of Iligan to cancel from the
registry of live birth of Iligan City BIRTH CERTIFICATE recorded as
Registry No. 16035;
Furnish copies of this decision to the Local Civil Registrar of Iligan City, the
City Prosecutor, counsel for private respondent Atty. Tomas Cabili and to
counsel for petitioner.
SO ORDERED."
The Facts
The undisputed facts are summarized by the Court of Appeals in this wise:
"Presentacion B. Catotal (hereafter referred to as PRESENTACION) filed
with the Regional Trial Court of Lanao del Norte, Branch II, Iligan City, a
petition for the cancellation of the entry of birth of Teofista Babiera (herafter
referred to as TEOFISTA) in the Civil Registry of Iligan City. The case was
docketed as Special Proceedings No. 3046.
"From the petition filed, PRESENTACION asserted 'that she is the only
surviving child of the late spouses Eugenio Babiera and Hermogena
Cariosa, who died on May 26, 1996 and July 6, 1990 respectively; that on
September 20, 1996 a baby girl was delivered by 'hilot' in the house of
spouses Eugenio and Hermogena Babiera and without the knowledge of
said spouses, Flora Guinto, the mother of the child and a housemaid of
spouses Eugenio and Hermogena Babiera, caused the
registration/recording of the facts of birth of her child, by simulating that she
was the child of the spouses Eugenio, then 65 years old and Hermogena,
then 54 years old, and made Hermogena Babiera appear as the mother by
forging her signature x x x; that petitioner, then 15 years old, saw with her
own eyes and personally witnessed Flora Guinto give birth to Teofista
Guinto, in their house, assisted by 'hilot'; that the birth certificate x x x of
Teofista Guinto is void ab initio, as it was totally a simulated birth, signature
of informant forged, and it contained false entries, to wit: a) The child is
made to appear as the legitimate child of the late spouses Eugenio Babiera
and Hermogena Cariosa, when she is not; b) The signature of Hermogena
Cariosa, the mother, is falsified/forged. She was not the informant; c) The
family name BABIERA is false and unlawful and her correct family name is
GUINTO, her mother being single; d) Her real mother was Flora Guinto and
her status, an illegitimate child; The natural father, the carpenter, did not
sign it; that the respondent Teofista Barbiera's birth certificate is void ab
initio, and it is patently a simulation of birth, since it is clinically and
medically impossible for the supposed parents to bear a child in 1956
because: a) Hermogena Cariosa Babiera, was already 54 years old; b)
Hermogena's last child birth was in the year 1941, the year petitioner was
born; c) Eugenio was already 65 years old, that the void and simulated birth
certificate of Teofista Guinto would affect the hereditary rights of petitioner
who inherited the estate of cancelled and declared void and theretofore she
prays that after publication, notice and hearing, judgment [be] render[ed]
declaring x x x the certificate of birth of respondent Teofista Guinto as
declared void, invalid and ineffective and ordering the respondent local civil
registrar of Iligan to cancel from the registry of live birth of Iligan City BIRTH
CERTIFICATE recorded as Registry No. 16035.
"Finding the petition to be sufficient in form and substance, the trial court
issued an order directing the publication of the petition and the date of
hearing thereof 'in a newspaper, the Local Civil Registrar of Iligan City, the
office of the City Prosecutor of Iligan City and TEOFISTA.
"TEOFISTA filed a motion to dismiss on the grounds that 'the petition states
no cause of action, it being an attack on the legitimacy of the respondent as
the child of the spouses Eugenio Babiera and Hermogena Cariosa Babiera;
that plaintiff has no legal capacity to file the instant petition pursuant to
Article 171 of the Family Code; and finally that the instant petition is barred
by prescription in accordance with Article 170 of the Family Code.' The trial
court denied the motion to dismiss.
"Subsequently, 'Attys. Padilla, Ulindang and Padilla appeared and filed an
answer/opposition in behalf of private respondent Teofista Babiera, [who]
was later on substituted by Atty. Cabili as counsel for private respondent.'
 "In the answer filed, TEOFISTA averred 'that she was always known as
Teofista Babiera and not Teofista Guinto; that plaintiff is not the only
surviving child of the late spouses Eugenio Babiera and Hermogena C.
Babiera, for the truth of the matter [is that] plantiff Presentacion B. V. Catotal
and [defendant] Teofista Babiera are sisters of the full-blood. Her Certificate
of Birth, signed by her mother Hermogena Babiera, x x x Certificate of
Baptism, x x x Student's Report Card x x x all incorporated in her answer,
are eloquent testimonies of her filiation. By way of special and affirmative
defenses, defendant/respondent contended that the petition states no cause
of action, it being an attack on the legitimacy of the respondent as the child
of the spouses Eugenio Babiera and Hermogena Carioza Babiera; that
plaintiff has no legal capacity to file the instant petition pursuant to Article
171 of the Family Code; and finally that the instant petition is barred by
prescription in accordance with Article 170 of the Family Code." [5]
Ruling of the Court of Appeals
The Court of Appeals held that the evidence adduced during trial proved that petitioner was not
the biological child of Hermogena Babiera. It also ruled that no evidence was presented to show
that Hermogena became pregnant in 1959. It further observed that she was already 54 years old
at the time, and that her last pregnancy had occurred way back in 1941. The CA noted that the
supposed birth took place at home, notwithstanding the advanced age of Hermogena and its
concomitant medical complications. Moreover, petitioner's Birth Certificate was not signed by the
local civil registrar, and the signature therein, which was purported to be that of Hermogena, was
different from her other signatures.
The CA also deemed inapplicable Articles 170 and 171 of the Family Code, which stated that
only the father could impugn the child's legitimacy, and that the same was not subject to a
collateral attack. It held that said provisions contemplated a situation wherein the husband or his
heirs asserted that the child of the wife was not his. In this case, the action involved the
cancellation of the childs Birth Certificate for being void ab initio on the ground that the child did
not belong to either the father or the mother.
Hence, this appeal.[6]
Issues
Petitioner presents the following assignment of errors:
"1) Respondent (plaintiff in the lower court a quo) does not have the legal
capacity to file the special proceeding of appeal under CA GR No. CV-
56031 subject matter of this review on certiorari;
2) The special proceeding on appeal under CA GR No. CV-56031 is
improper and is barred by [the] statute of limitation (prescription); [and]
3) The Honorable Court of Appeals, the fifteenth division utterly failed to
hold, that the ancient public record of petitioner's birth is superior to the self-
serving oral testimony of respondent."[7]
The Courts Ruling
The Petition is not meritorious.
First Issue: Subject of the Present Action
Petitioner contends that respondent has no standing to sue, because Article 171[8] of the Family
Code states that the child's filiation can be impugned only by the father or, in special
circumstances, his heirs. She adds that the legitimacy of a child is not subject to a collateral
attack.
This argument is incorrect. Respondent has the requisite standing to initiate the present action.
Section 2, Rule 3 of the Rules of Court, provides that a real party in interest is one "who stands
to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the
suit."[9] The interest of respondent in the civil status of petitioner stems from an action for
partition which the latter filed against the former.[10] The case concerned the properties inherited
by respondent from her parents.
Moreover, Article 171 of the Family Code is not applicable to the present case. A close reading
of this provision shows that it applies to instances in which the father impugns the legitimacy of
his wifes child. The provision, however, presupposes that the child was the undisputed offspring
of the mother. The present case alleges and shows that Hermogena did not give birth to
petitioner. In other words, the prayer herein is not to declare that petitioner is an illegitimate child
of Hermogena, but to establish that the former is not the latter's child at all. Verily, the present
action does not impugn petitioners filiation to Spouses Eugenio and Hermogena Babiera,
because there is no blood relation to impugn in the first place.
In Benitez-Badua v. Court of Appeals,[11] the Court ruled thus:
"Petitioners insistence on the applicability of Articles 164, 166, 170 and 171
of the Family Code to the case at bench cannot be sustained. These articles
provide:
x x x.....x x x.....x x x
"A careful reading of the above articles will show that they do not
contemplate a situation, like in the instant case, where a child is alleged not
to be the child of nature or biological child of a certain couple. Rather, these
articles govern a situation where a husband (or his heirs) denies as his own
a child of his wife. Thus, under Article 166, it is the husband who can
impugn the legitimacy of said child by proving: (1) it was physically
impossible for him to have sexual intercourse, with his wife within the first
120 days of the 300 days which immediately preceded the birth of the child;
(2) that for biological or other scientific reasons, the child could not have
been his child; (3) that in case of children conceived through artificial
insemination, the written authorization or ratification by either parent was
obtained through mistake, fraud, violence, intimidation or undue influence.
Articles 170 and 171 reinforce this reading as they speak of the prescriptive
period within which the husband or any of his heirs should file the action
impugning the legitimacy of said child. Doubtless then, the appellate court
did not err when it refused to apply these articles to the case at bench. For
the case at bench is not one where the heirs of the late Vicente are
contending that petitioner is not his child by Isabel. Rather, their clear
submission is that petitioner was not born to Vicente and Isabel. Our ruling
in Cabatbat-Lim vs. Intermediate Appellate Court, 166 SCRA 451, 457 cited
in the impugned decision is apropos, viz:
 Petitioners recourse to Article 263 of the New Civil records and doctors prescriptions, other than the Birth Certificate itself. In fact, no witness was
Code [now Art. 170 of the Family Code] is not well- presented to attest to the pregnancy of Hermogena during that time. Moreover, at the time of her
taken. This legal provision refers to an action to impugn supposed birth, Hermogena was already 54 years old. Even if it were possible for her to have
legitimacy. It is inapplicable to this case because this is given birth at such a late age, it was highly suspicious that she did so in her own home, when
not an action to impugn the legitimacy of a child, but an her advanced age necessitated proper medical care normally available only in a hospital.
action of the private respondents to claim their
inheritance as legal heirs of their childless deceased
The most significant piece of evidence, however, is the deposition of Hermogena Babiera which
aunt. They do not claim that petitioner Violeta Cabatbat
states that she did not give birth to petitioner, and that the latter was not hers nor her husband
Lim is an illegitimate child of the deceased, but that she
Eugenios. The deposition reads in part:
is not the decedents child at all. Being neither [a] legally
adopted child, nor an acknowledged natural child, nor a
child by legal fiction of Esperanza Cabatbat, Violeta is "q.....Who are your children?
not a legal heir of the deceased."[12] (Emphasis
supplied.)
a.....Presentation and Florentino Babiera.

Second Issue: Prescription

q.....Now, this Teofista Babiera claims that she is your legitimate child with
your husband Eugenio Babiera, what can you say about that?
Petitioner next contends that the action to contest her status as a child of the late Hermogena
Babiera has already prescribed. She cites Article 170 of the Family Code which provides the
a.....She is not our child.
prescriptive period for such action:

"Art. 170. The action to impugn the legitimacy of the child shall be brought x x x.....x x x.....x x x
within one year from the knowledge of the birth or its recording in the civil
register, if the husband or, in a proper case, any of his heirs, should reside q.....Do you recall where she was born?
in the city or municipality where the birth took place or was recorded.
a.....In our house because her mother was our house helper.
"If the husband or, in his default, all of his heirs do not reside at the place of
birth as defined in the first paragraph or where it was recorded, the period
shall be two years if they should reside in the Philippines; and three years if q.....Could you recall for how long if ever this Teofista Babiera lived with you
abroad. If the birth of the child has been concealed from or was unknown to in your residence?
the husband or his heirs, the period shall be counted from the discovery or
knowledge of the birth of the child or of the fact of registration of said birth, a.....Maybe in 1978 but she [would] always go ou[t] from time to time.
whichever is earlier."
q.....Now, during this time, do you recall if you ever assert[ed] her as your
This argument is bereft of merit. The present action involves the cancellation of petitioners Birth daughter with your husband?
Certificate; it does not impugn her legitimacy. Thus, the prescriptive period set forth in Article
170 of the Family Code does not apply. Verily, the action to nullify the Birth Certificate does not
prescribe, because it was allegedly void ab initio.[13] a.....No, sir."[15]

Third Issue: Presumption in Favor of the Birth Certificate Relying merely on the assumption of validity of the Birth Certificate, petitioner has presented no
other evidence other than the said document to show that she is really Hermogenas child.
Neither has she provided any reason why her supposed mother would make a deposition stating
Lastly, petitioner argues that the evidence presented, especially Hermogenas testimony that that the former was not the latter's child at all.
petitioner was not her real child, cannot overcome the presumption of regularity in the issuance
of the Birth Certificate.
All in all, we find no reason to reverse or modify the factual finding of the trial and the appellate
courts that petitioner was not the child of respondents parents.
While it is true that an official document such as petitioners Birth Certificate enjoys the
presumption of regularity, the specific facts attendant in the case at bar, as well as the totality of
the evidence presented during trial, sufficiently negate such presumption. First, there were WHEREFORE, the Petition is hereby DENIED and the assailed Decision AFFIRMED. Costs
already irregularities regarding the Birth Certificate itself. It was not signed by the local civil against petitioner.
registrar.[14] More important, the Court of Appeals observed that the mothers signature therein
was different from her signatures in other documents presented during the trial.

Second, the circumstances surrounding the birth of petitioner show that Hermogena is not the
former's real mother. For one, there is no evidence of Hermogenas pregnancy, such as medical
JESSE U. LUCAS, G.R. No. 190710
Petitioner, to accept respondents offer of support and decided to raise petitioner on her own. While
Present: petitioner was growing up, Elsie made several attempts to introduce petitioner to respondent, but
CARPIO, J., all attempts were in vain.
Chairperson,
- versus - NACHURA,
PERALTA,
Attached to the petition were the following: (a) petitioners certificate of live birth; (b) petitioners
ABAD, and
MENDOZA, JJ. baptismal certificate; (c) petitioners college diploma, showing that he graduated from Saint Louis

Promulgated: University in Baguio City with a degree in Psychology; (d) his Certificate of Graduation from the
JESUS S. LUCAS,
same school; (e) Certificate of Recognition from the University of the Philippines, College of
Respondent. June 6, 2011
Music; and (f) clippings of several articles from different newspapers about petitioner, as a
x----------------------------------------------------------------------------------------------x
musical prodigy.
Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the
petition to establish filiation. His counsel therefore went to the trial court on August 29, 2007 and
obtained a copy of the petition.
DECISION

NACHURA, J.:
Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition
for review on certiorari, we address this question to guide the Bench and the Bar in dealing with
a relatively new evidentiary tool. Assailed in this petition are the Court of Appeals (CA)
Decision[1] dated September 25, 2009 and Resolution dated December 17, 2009.
The antecedents of the case are, as follows:
Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on
September 3, 2007, the RTC, finding the petition to be sufficient in form and substance, issued
the Order[3] setting the case for hearing and urging anyone who has any objection to the petition
to file his opposition. The court also directed that the Order be published once a week for three
consecutive weeks in any newspaper of general circulation in the Philippines, and that the
Solicitor General be furnished with copies of the Order and the petition in order that he may
appear and represent the State in the case.
On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation filed a Special Appearance and Comment. He manifested inter alia that: (1) he did not receive
[2]
(with Motion for the Submission of Parties to DNA Testing) before the Regional Trial Court the summons and a copy of the petition; (2) the petition was adversarial in nature and therefore

(RTC), Branch 72, Valenzuela City. Petitioner narrated that, sometime in 1967, his mother, Elsie summons should be served on him as respondent; (3) should the court agree that summons was

Uy (Elsie), migrated to Manila from Davao and stayed with a certain Ate Belen (Belen) who required, he was waiving service of summons and making a voluntary appearance; and (4)

worked in a prominent nightspot in Manila. Elsie would oftentimes accompany Belen to work. On notice by publication of the petition and the hearing was improper because of the confidentiality

one occasion, Elsie got acquainted with respondent, Jesus S. Lucas, at Belens workplace, and of the subject matter.[4]

an intimate relationship developed between the two. Elsie eventually got pregnant and, on
March 11, 1969, she gave birth to petitioner, Jesse U. Lucas. The name of petitioners father was On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioners

not stated in petitioners certificate of live birth. However, Elsie later on told petitioner that his Very Urgent Motion to Try and Hear the Case. Respondent reiterated that the petition for

father is respondent. On August 1, 1969, petitioner was baptized at San Isidro Parish, Taft recognition is adversarial in nature; hence, he should be served with summons.

Avenue, Pasay City. Respondent allegedly extended financial support to Elsie and petitioner for After learning of the September 3, 2007 Order, respondent filed a motion for
[5]
a period of about two years. When the relationship of Elsie and respondent ended, Elsie refused reconsideration. Respondent averred that the petition was not in due form and substance
because petitioner could not have personally known the matters that were alleged therein. He
argued that DNA testing cannot be had on the basis of a mere allegation pointing to respondent
as petitioners father. Moreover, jurisprudence is still unsettled on the acceptability of DNA
evidence.
On July 30, 2008, the RTC, acting on respondents motion for reconsideration, issued an
Order[6] dismissing the case. The court remarked that, based on the case of Herrera v.
Alba,[7] there are four significant procedural aspects of a traditional paternity action which the
parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and
physical resemblance between the putative father and the child. The court opined that petitioner
must first establish these four procedural aspects before he can present evidence of paternity
and filiation, which may include incriminating acts or scientific evidence like blood group test and
DNA test results. The court observed that the petition did not show that these procedural
aspects were present. Petitioner failed to establish a prima facie case considering that (a) his
mother did not personally declare that she had sexual relations with respondent, and petitioners
statement as to what his mother told him about his father was clearly hearsay; (b) the certificate
of live birth was not signed by respondent; and (c) although petitioner used the surname of
respondent, there was no allegation that he was treated as the child of respondent by the latter
or his family. The court opined that, having failed to establish a prima facie case, respondent had
no obligation to present any affirmative defenses. The dispositive portion of the said Order
therefore reads:
WHEREFORE, for failure of the petitioner to establish compliance
with the four procedural aspects of a traditional paternity action in his
petition, his motion for the submission of parties to DNA testing to establish
paternity and filiation is hereby DENIED. This case is DISMISSED without
prejudice.
SO ORDERED.[8]
Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which
the RTC resolved in his favor. Thus, on October 20, 2008, it issued the Order [9]setting aside the
courts previous order, thus:
WHEREFORE, in view of the foregoing, the Order dated July 30,
2008 is hereby reconsidered and set aside.
Let the Petition (with Motion for the Submission of Parties to DNA
Testing) be set for hearing on January 22, 2009 at 8:30 in the morning.
xxxx
SO ORDERED.[10]
This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the
petition is premature considering that a full-blown trial has not yet taken place. The court
stressed that the petition was sufficient in form and substance. It was verified, it included a
certification against forum shopping, and it contained a plain, concise, and direct statement of
the ultimate facts on which petitioner relies on for his claim, in accordance with Section 1, Rule 8
of the Rules of Court. The court remarked that the allegation that the statements in the petition
were not of petitioners personal knowledge is a matter of evidence. The court also dismissed
respondents arguments that there is no basis for the taking of DNA test, and that jurisprudence
is still unsettled on the acceptability of DNA evidence. It noted that the new Rule on DNA
Evidence[11] allows the conduct of DNA testing, whether at the courts instance or upon
application of any person who has legal interest in the matter in litigation.
Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and
for Dismissal of Petition,[12] reiterating that (a) the petition was not in due form and substance as
no defendant was named in the title, and all the basic allegations were hearsay; and (b) there
was no prima facie case, which made the petition susceptible to dismissal.
The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the
[13]
hearing.
Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders
dated October 20, 2008 and January 19, 2009.
On September 25, 2009, the CA decided the petition for certiorari in favor of
respondent, thus:
WHEREFORE, the instant petition for certiorari is hereby
GRANTED for being meritorious. The assailed Orders dated October 20,
2008 and January 19, 2009 both issued by the Regional Trial Court, Branch
172 of Valenzuela City in SP. Proceeding Case No. 30-V-07 are
REVERSED and SET ASIDE. Accordingly, the case docketed as SP.
Proceeding Case No. 30-V-07 is DISMISSED.[14]
The CA held that the RTC did not acquire jurisdiction over the person of respondent,
as no summons had been served on him. Respondents special appearance could not be
considered as voluntary appearance because it was filed only for the purpose of questioning the
 NOT ACQUIRED OVER THE PERSON OF THE
jurisdiction of the court over respondent. Although respondent likewise questioned the courts RESPONDENT.
jurisdiction over the subject matter of the petition, the same is not equivalent to a waiver of his
I.B
right to object to the jurisdiction of the court over his person. WHETHER OR NOT THE COURT OF APPEALS
ERRED WHEN IT FAILED TO REALIZE THAT THE
RESPONDENT HAD ALREADY SUBMITTED
VOLUNTARILY TO THE JURISDICTION OF THE
The CA remarked that petitioner filed the petition to establish illegitimate filiation,
COURT A QUO.
specifically seeking a DNA testing order to abbreviate the proceedings. It noted that petitioner
I.C
failed to show that the four significant procedural aspects of a traditional paternity action had WHETHER OR NOT THE COURT OF APPEALS
ERRED WHEN IT ESSENTIALLY RULED THAT THE
been met. The CA further held that a DNA testing should not be allowed when the petitioner has
TITLE OF A PLEADING, RATHER THAN ITS BODY,
failed to establish a prima facie case, thus: IS CONTROLLING.

II.
While the tenor [of Section 4, Rule on DNA Evidence] appears to be absolute, the rule WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
could not really have been intended to trample on the substantive rights of the parties. ORDERED THE DISMISSAL OF THE PETITION BY REASON OF THE
It could have not meant to be an instrument to promote disorder, harassment, or MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO)
extortion. It could have not been intended to legalize unwarranted expedition to fish for FOR THE CONDUCT OF DNA TESTING.
evidence. Such will be the situation in this particular case if a court may at any time
order the taking of a DNA test. If the DNA test in compulsory recognition cases is II.A
immediately available to the petitioner/complainant without requiring first the WHETHER OR NOT THE COURT OF APPEALS
presentation of corroborative proof, then a dire and absurd rule would result. Such will ERRED WHEN IT ESSENTIALLY RULED THAT DNA
encourage and promote harassment and extortion. TESTING CAN ONLY BE ORDERED AFTER THE
PETITIONER ESTABLISHES PRIMA FACIE PROOF
xxxx OF FILIATION.

At the risk of being repetitious, the Court would like to stress that it sees the danger of III.
allowing an absolute DNA testing to a compulsory recognition test even if the WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS
plaintiff/petitioner failed to establish prima facie proof. x x x If at anytime, motu MISPLACED RELIANCE ON THE CASE OF HERRERA VS. ALBA,
proprio and without pre-conditions, the court can indeed order the taking of DNA test
in compulsory recognition cases, then the prominent and well-to-do members of our ESPECIALLY AS REGARDS THE FOUR SIGNIFICANT PROCEDURAL
society will be easy prey for opportunists and extortionists. For no cause at all, or even ASPECTS OF A TRADITIONAL PATERNITY ACTION.[17]
for [sic] casual sexual indiscretions in their younger years could be used as a means
to harass them. Unscrupulous women, unsure of the paternity of their children may
just be taking the chances-just in case-by pointing to a sexual partner in a long past
one-time encounter. Indeed an absolute and unconditional taking of DNA test for Petitioner contends that respondent never raised as issue in his petition for certiorari the courts
compulsory recognition case opens wide the opportunities for extortionist to prey on
victims who have no stomach for scandal.[15] lack of jurisdiction over his person. Hence, the CA had no legal basis to discuss the same,
because issues not raised are deemed waived or abandoned. At any rate, respondent had
already voluntarily submitted to the jurisdiction of the trial court by his filing of several motions
Petitioner moved for reconsideration. On December 17, 2009, the CA denied the
asking for affirmative relief, such as the (a) Motion for Reconsideration of the Order dated
motion for lack of merit.[16]
September 3, 2007; (b) Ex Parte Motion to Resolve Motion for Reconsideration of the Order
In this petition for review on certiorari, petitioner raises the following issues:
I. dated November 6, 2007; and (c) Motion for Reconsideration of the Order dated October 20,
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
2008 and for Dismissal of Petition. Petitioner points out that respondent even expressly admitted
RESOLVED THE ISSUE OF LACK OF JURISDICTION OVER THE
PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS NEVER that he has waived his right to summons in his Manifestation and Comment on Petitioners Very
RAISED IN THE PETITION FOR CERTIORARI.
Urgent Motion to Try and Hear the Case. Hence, the issue is already moot and academic.
I.A
WHETHER OR NOT THE COURT OF APPEALS
ERRED WHEN IT RULED THAT JURISDICTION WAS
Petitioner argues that the case was adversarial in nature. Although the caption of the petition
does not state respondents name, the body of the petition clearly indicates his name and his
known address. He maintains that the body of the petition is controlling and not the caption.
Finally, petitioner asserts that the motion for DNA testing should not be a reason for the
dismissal of the petition since it is not a legal ground for the dismissal of cases. If the CA
entertained any doubt as to the propriety of DNA testing, it should have simply denied the
[18]
motion. Petitioner points out that Section 4 of the Rule on DNA Evidence does not require that
there must be a prior proof of filiation before DNA testing can be ordered. He adds that the CA
erroneously relied on the four significant procedural aspects of a paternity case, as enunciated
in Herrera v. Alba.[19] Petitioner avers that these procedural aspects are not applicable at this
point of the proceedings because they are matters of evidence that should be taken up during
[20]
the trial.
In his Comment, respondent supports the CAs ruling on most issues raised in the petition
for certiorari and merely reiterates his previous arguments. However, on the issue of lack of
jurisdiction, respondent counters that, contrary to petitioners assertion, he raised the issue
before the CA in relation to his claim that the petition was not in due form and substance.
Respondent denies that he waived his right to the service of summons. He insists that the
alleged waiver and voluntary appearance was conditional upon a finding by the court that
summons is indeed required. He avers that the assertion of affirmative defenses, aside from lack
of jurisdiction over the person of the defendant, cannot be considered as waiver of the defense
of lack of jurisdiction over such person.
The petition is meritorious.
Primarily, we emphasize that the assailed Orders of the trial court were orders denying
respondents motion to dismiss the petition for illegitimate filiation. An order denying a motion to
dismiss is an interlocutory order which neither terminates nor finally disposes of a case, as it
leaves something to be done by the court before the case is finally decided on the merits. As
such, the general rule is that the denial of a motion to dismiss cannot be questioned in a special
civil action for certiorari, which is a remedy designed to correct errors of jurisdiction and not
errors of judgment. Neither can a denial of a motion to dismiss be the subject of an appeal
unless and until a final judgment or order is rendered. In a number of cases, the court has
granted the extraordinary remedy of certiorari on the denial of the motion to dismiss but only
when it has been tainted with grave abuse of discretion amounting to lack or excess of
jurisdiction.[21] In the present case, we discern no grave abuse of discretion on the part of the trial
court in denying the motion to dismiss.
The grounds for dismissal relied upon by respondent were (a) the courts lack of
jurisdiction over his person due to the absence of summons, and (b) defect in the form and
substance of the petition to establish illegitimate filiation, which is equivalent to failure to state a
cause of action.
We need not belabor the issues on whether lack of jurisdiction was raised before the
CA, whether the court acquired jurisdiction over the person of respondent, or whether
respondent waived his right to the service of summons. We find that the primordial issue here is
actually whether it was necessary, in the first place, to serve summons on respondent for the
court to acquire jurisdiction over the case. In other words, was the service of summons
jurisdictional? The answer to this question depends on the nature of petitioners action, that is,
whether it is an action in personam, in rem, or quasi in rem.
An action in personam is lodged against a person based on personal liability; an
action in rem is directed against the thing itself instead of the person; while an action quasi in
rem names a person as defendant, but its object is to subject that person's interest in a property
to a corresponding lien or obligation. A petition directed against the "thing" itself or the res, which
concerns the status of a person, like a petition for adoption, annulment of marriage, or correction
of entries in the birth certificate, is an action in rem.[22]
In an action in personam, jurisdiction over the person of the defendant is necessary for
the court to validly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction
over the person of the defendant is not a prerequisite to confer jurisdiction on the court, provided
that the latter has jurisdiction over the res. Jurisdiction over the resis acquired either (a) by the
seizure of the property under legal process, whereby it is brought into actual custody of the law,
or (b) as a result of the institution of legal proceedings, in which the power of the court is
recognized and made effective. [23]
 The herein petition to establish illegitimate filiation is an action in rem. By the simple
filing of the petition to establish illegitimate filiation before the RTC, which undoubtedly had
jurisdiction over the subject matter of the petition, the latter thereby acquired jurisdiction over the
case. An in rem proceeding is validated essentially through publication. Publication is notice to
the whole world that the proceeding has for its object to bar indefinitely all who might be minded
to make an objection of any sort to the right sought to be established. [24] Through publication, all
interested parties are deemed notified of the petition.
If at all, service of summons or notice is made to the defendant, it is not for the
purpose of vesting the court with jurisdiction, but merely for satisfying the due process
requirements.[25] This is but proper in order to afford the person concerned the opportunity to
protect his interest if he so chooses.[26] Hence, failure to serve summons will not deprive the
court of its jurisdiction to try and decide the case. In such a case, the lack of summons may be
excused where it is determined that the adverse party had, in fact, the opportunity to file his
opposition, as in this case. We find that the due process requirement with respect to respondent
has been satisfied, considering that he has participated in the proceedings in this case and he
has the opportunity to file his opposition to the petition to establish filiation.
To address respondents contention that the petition should have been adversarial in
form, we further hold that the herein petition to establish filiation was sufficient in form. It was
indeed adversarial in nature despite its caption which lacked the name of a defendant, the failure
to implead respondent as defendant, and the non-service of summons upon respondent. A
proceeding is adversarial where the party seeking relief has given legal warning to the other
party and afforded the latter an opportunity to contest it. [27] In this petitionclassified as an
action in remthe notice requirement for an adversarial proceeding was likewise satisfied by the
publication of the petition and the giving of notice to the Solicitor General, as directed by the trial
court.
The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8
of the Rules of Court, which requires the complaint to contain a plain, concise, and direct
statement of the ultimate facts upon which the plaintiff bases his claim. A fact is essential if it
cannot be stricken out without leaving the statement of the cause of action inadequate.[28] A
complaint states a cause of action when it contains the following elements: (1) the legal right of
plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission of the
defendant in violation of said legal right.[29]
The petition sufficiently states the ultimate facts relied upon by petitioner to establish
his filiation to respondent. Respondent, however, contends that the allegations in the petition
were hearsay as they were not of petitioners personal knowledge. Such matter is clearly a
matter of evidence that cannot be determined at this point but only during the trial when
petitioner presents his evidence.
In a motion to dismiss a complaint based on lack of cause of action, the question submitted to
the court for determination is the sufficiency of the allegations made in the complaint to
constitute a cause of action and not whether those allegations of fact are true, for said motion
must hypothetically admit the truth of the facts alleged in the complaint. [30]
The inquiry is confined to the four corners of the complaint, and no other. [31]
The test of the
sufficiency of the facts alleged in the complaint is whether or not, admitting the facts alleged, the
court could render a valid judgment upon the same in accordance with the prayer of the
complaint.[32]
If the allegations of the complaint are sufficient in form and substance but their veracity and
correctness are assailed, it is incumbent upon the court to deny the motion to dismiss and
require the defendant to answer and go to trial to prove his defense. The veracity of the
assertions of the parties can be ascertained at the trial of the case on the merits.[33]
The statement in Herrera v. Alba[34] that there are four significant procedural aspects in
a traditional paternity case which parties have to face has been widely misunderstood and
misapplied in this case. A party is confronted by these so-called procedural aspects during trial,
when the parties have presented their respective evidence. They are matters of evidence that
cannot be determined at this initial stage of the proceedings, when only the petition to establish
filiation has been filed. The CAs observation that petitioner failed to establish a prima
facie casethe first procedural aspect in a paternity caseis therefore misplaced. A prima
facie case is built by a partys evidence and not by mere allegations in the initiatory pleading.
Clearly then, it was also not the opportune time to discuss the lack of a prima
facie case vis--vis the motion for DNA testing since no evidence has, as yet, been presented by
petitioner. More essentially, it is premature to discuss whether, under the circumstances, a DNA subjected to DNA testing, but the results may require

testing order is warranted considering that no such order has yet been issued by the trial court. confirmation for good reasons;

In fact, the latter has just set the said case for hearing.
(c) The DNA testing uses a scientifically valid technique;

At any rate, the CAs view that it would be dangerous to allow a DNA testing without
(d) The DNA testing has the scientific potential to produce new
corroborative proof is well taken and deserves the Courts attention. In light of this observation,
information that is relevant to the proper resolution of the
we find that there is a need to supplement the Rule on DNA Evidence to aid the courts in
case; and
resolving motions for DNA testing order, particularly in paternity and other filiation cases. We,
thus, address the question of whether a prima facie showing is necessary before a court can (e) The existence of other factors, if any, which the court may
issue a DNA testing order. consider as potentially affecting the accuracy or integrity of
the DNA testing.
The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the
This Rule shall not preclude a DNA testing, without need of a prior
introduction and use of DNA evidence in the judicial system. It provides the prescribed
court order, at the behest of any party, including law enforcement agencies,
parameters on the requisite elements for reliability and validity (i.e., the proper procedures,
before a suit or proceeding is commenced.
protocols, necessary laboratory reports, etc.), the possible sources of error, the available
objections to the admission of DNA test results as evidence as well as the probative value of
DNA evidence. It seeks to ensure that the evidence gathered, using various methods of DNA
This does not mean, however, that a DNA testing order will be issued as a matter of
analysis, is utilized effectively and properly, [and] shall not be misused and/or abused and, more
right if, during the hearing, the said conditions are established.
importantly, shall continue to ensure that DNA analysis serves justice and protects, rather than
prejudice the public.[35]
In some states, to warrant the issuance of the DNA testing order, there must be a
show cause hearing wherein the applicant must first present sufficient evidence to establish
Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for
a prima facie case or a reasonable possibility of paternity or good cause for the holding of the
conditions that are aimed to safeguard the accuracy and integrity of the DNA testing. Section 4
test. [36] In these states, a court order for blood testing is considered a search, which, under their
states:
Constitutions (as in ours), must be preceded by a finding of probable cause in order to be valid.
Hence, the requirement of a prima facie case, or reasonable possibility, was imposed in civil
SEC. 4. Application for DNA Testing Order. The appropriate court may, at
actions as a counterpart of a finding of probable cause. The Supreme Court of Louisiana
any time, either motu proprio or on application of any person who has a
eloquently explained
legal interest in the matter in litigation, order a DNA testing. Such order
shall issue after due hearing and notice to the parties upon a showing of the Although a paternity action is civil, not criminal, the constitutional prohibition
following: against unreasonable searches and seizures is still applicable, and a proper
showing of sufficient justification under the particular factual circumstances
of the case must be made before a court may order a compulsory blood
(a) A biological sample exists that is relevant to the case; test. Courts in various jurisdictions have differed regarding the kind of
procedures which are required, but those jurisdictions have almost
universally found that a preliminary showing must be made before a court
(b) The biological sample: (i) was not previously subjected to the can constitutionally order compulsory blood testing in paternity cases. We
agree, and find that, as a preliminary matter, before the court may issue an
type of DNA testing now requested; or (ii) was previously order for compulsory blood testing, the moving party must show that there is
 a reasonable possibility of paternity. As explained hereafter, in cases in
which paternity is contested and a party to the action refuses to voluntarily
undergo a blood test, a show cause hearing must be held in which the court
can determine whether there is sufficient evidence to establish a prima
facie case which warrants issuance of a court order for blood testing.[37]

The same condition precedent should be applied in our jurisdiction to protect the
putative father from mere harassment suits. Thus, during the hearing on the motion for DNA
testing, the petitioner must present prima facie evidence or establish a reasonable possibility of
paternity.

Notwithstanding these, it should be stressed that the issuance of a DNA testing order
remains discretionary upon the court. The court may, for example, consider whether there is
absolute necessity for the DNA testing. If there is already preponderance of evidence to
establish paternity and the DNA test result would only be corroborative, the court may, in its
discretion, disallow a DNA testing.

WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals

Decision dated September 25, 2009 and Resolution dated December 17, 2009
are REVERSED and SET ASIDE. The Orders dated October 20, 2008 and January 19, 2009 of
the Regional Trial Court of Valenzuela City are AFFIRMED.
N RE: PETITION FOR G.R. Nos. 168992-93
ADOPTION OF MICHELLE P. Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner married Angel
LIM, Present: Olario (Olario), an American citizen.
MONINA P. LIM, PUNO, C.J., Chairperson,
Petitioner. CARPIO,
x - - - - - - - - - - - - - - - - - - - - - - - x CORONA,
LEONARDO-DE CASTRO, and Thereafter, petitioner decided to adopt the children by availing of the amnesty[5] given under
IN RE: PETITION FOR BERSAMIN, JJ.
Republic Act No. 8552[6] (RA 8552) to those individuals who simulated the birth of a child. Thus,
ADOPTION OF MICHAEL JUDE
P. LIM, on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael
Promulgated:
MONINA P. LIM, before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the
Petitioner. May 21, 2009
time of the filing of the petitions for adoption, Michelle was 25 years old and already married,
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
while Michael was 18 years and seven months old.

DECISION
Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of
Consent.[7] Michael also gave his consent to his adoption as shown in his Affidavit of
CARPIO, J.:
Consent.[8] Petitioners husband Olario likewise executed an Affidavit of Consent[9] for the

The Case adoption of Michelle and Michael.

This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside In the Certification issued by the Department of Social Welfare and Development (DSWD),

the Decision[1] dated 15 September 2004 of the Regional Trial Court, General Santos City, Michelle was considered as an abandoned child and the whereabouts of her natural parents

Branch 22 (trial court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without were unknown.[10] The DSWD issued a similar Certification for Michael. [11]

prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P. Lim.
The Ruling of the Trial Court
On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court

The Facts ruled that since petitioner had remarried, petitioner should have filed the petition jointly with her
new husband. The trial court ruled that joint adoption by the husband and the wife is mandatory

The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, citing Section 7(c), Article III of RA 8552 and Article 185 of the Family Code.

she married Primo Lim (Lim). They were childless. Minor children, whose parents were
unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the

child of their own, petitioner and Lim registered the children to make it appear that they were the Order dated 16 June 2005. In denying the motion, the trial court ruled that petitioner did not fall

childrens parents. The children[2] were named Michelle P. Lim (Michelle) and Michael Jude P. under any of the exceptions under Section 7(c), Article III of RA 8552. Petitioners argument that

Lim (Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She mere consent of her husband would suffice was untenable because, under the law, there are

was born on 15 March 1977.[3] Michael was 11 days old when Ayuban brought him to petitioners additional requirements, such as residency and certification of his qualification, which the

clinic. His date of birth is 1 August 1983.[4] husband, who was not even made a party in this case, must comply.

The spouses reared and cared for the children as if they were their own. They sent the children As to the argument that the adoptees are already emancipated and joint adoption is merely for

to exclusive schools. They used the surname Lim in all their school records and documents. the joint exercise of parental authority, the trial court ruled that joint adoption is not only for the

purpose of exercising parental authority because an emancipated child acquires certain rights
from his parents and assumes certain obligations and responsibilities.
Hence, the present petition.
Issue
Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who
has remarried, can singly adopt.
The Courts Ruling
Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the
court and the State to protect the paramount interest and welfare of the child to be adopted.
Petitioner argues that the legal maxim dura lex sed lex is not applicable to adoption cases. She
argues that joint parental authority is not necessary in this case since, at the time the petitions
were filed, Michelle was 25 years old and already married, while Michael was already 18 years
of age. Parental authority is not anymore necessary since they have been emancipated having
attained the age of majority.
We deny the petition.
Joint Adoption by Husband and Wife
It is undisputed that, at the time the petitions for adoption were filed, petitioner had already
remarried. She filed the petitions by herself, without being joined by her husband Olario. We
have no other recourse but to affirm the trial courts decision denying the petitions for
adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads:
SEC. 7. Who May Adopt. - The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil capacity and
legal rights, of good moral character, has not been convicted of any crime
involving moral turpitude, emotionally and psychologically capable of caring
for children, at least sixteen (16) years older than the adoptee, and who is in
a position to support and care for his/her children in keeping with the means
of the family. The requirement of sixteen (16) year difference between the
age of the adopter and adoptee may be waived when the adopter is the
biological parent of the adoptee, or is the spouse of the adoptees parent;
(b) Any alien possessing the same qualifications as above stated for Filipino
nationals: Provided, That his/her country has diplomatic relations with the
Republic of the Philippines, that he/she has been living in the Philippines for
at least three (3) continuous years prior to the filing of the application for
adoption and maintains such residence until the adoption decree is entered,
that he/she has been certified by his/her diplomatic or consular office or any
appropriate government agency that he/she has the legal capacity to adopt
in his/her country, and that his/her government allows the adoptee to enter
his/her country as his/her adopted son/daughter: Provided, further, That the
requirements on residency and certification of the aliens qualification to
adopt in his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the
fourth (4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her
Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt
jointly with his/her spouse a relative within the fourth (4th) degree
of consanguinity or affinity of the Filipino spouses; or
(c) The guardian with respect to the ward after the termination of the
guardianship and clearance of his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the
other; or
(ii) if one spouse seeks to adopt his/her own illegitimate
son/daughter: Provided, however, That the other spouse has
signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the illegitimate
son/daughter of the other, joint parental authority shall be exercised by the
spouses. (Emphasis supplied)
The use of the word shall in the above-quoted provision means that joint adoption by the
husband and the wife is mandatory. This is in consonance with the concept of joint parental
authority over the child which is the ideal situation. As the child to be adopted is elevated to the
level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also
insures harmony between the spouses.[12]
The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the
petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed
only by petitioner herself, without joining her husband, Olario, the trial court was correct in
denying the petitions for adoption on this ground.
Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the
children to be adopted are not the legitimate children of petitioner or of her husband Olario.
Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario
are not legally separated from each other.
The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does
not suffice. There are certain requirements that Olario must comply being an American citizen.
He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that
his country has diplomatic relations with the Republic of the Philippines; (2) he must have been
living in the Philippines for at least three continuous years prior to the filing of the application for
adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has
legal capacity to adopt in his own country; and (5) the adoptee is allowed to enter the adopters
country as the latters adopted child. None of these qualifications were shown and proved during
the trial.
These requirements on residency and certification of the aliens qualification to adopt cannot
likewise be waived pursuant to Section 7. The children or adoptees are not relatives within the
fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the
legitimate children of petitioner.
Effects of Adoption
Petitioner contends that joint parental authority is not anymore necessary since the children
have been emancipated having reached the age of majority. This is untenable.
Parental authority includes caring for and rearing the children for civic consciousness and
efficiency and the development of their moral, mental and physical character and well-
being.[13] The father and the mother shall jointly exercise parental authority over the persons of
their common children.[14] Even the remarriage of the surviving parent shall not affect the
parental authority over the children, unless the court appoints another person to be the guardian
[15]
of the person or property of the children.
It is true that when the child reaches the age of emancipation that is, when he attains the age of
majority or 18 years of age[16] emancipation terminates parental authority over the person and
property of the child, who shall then be qualified and responsible for all acts of civil
life.[17] However, parental authority is merely just one of the effects of legal adoption. Article V of
RA 8552 enumerates the effects of adoption, thus:
ARTICLE V
EFFECTS OF ADOPTION
SEC. 16. Parental Authority. - Except in cases where the biological parent is
the spouse of the adopter, all legal ties between the biological parent(s) and
the adoptee shall be severed and the same shall then be vested on the
adopter(s).
SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate
son/daughter of the adopter(s) for all intents and purposes and as such is
entitled to all the rights and obligations provided by law to legitimate
sons/daughters born to them without discrimination of any kind. To this end,
the adoptee is entitled to love, guidance, and support in keeping with the
means of the family.
SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and
the adoptee shall have reciprocal rights of succession without distinction
from legitimate filiation. However, if the adoptee and his/her biological
parent(s) had left a will, the law on testamentary succession shall govern.
Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s)
and the adoptee, except when the biological parent is the spouse of the adopter; (2) deem the
adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights
and obligations arising from the relationship of parent and child, including but not limited to: (i)
the right of the adopter to choose the name the child is to be known; and (ii) the right of the
adopter and adoptee to be legal and compulsory heirs of each other.[18] Therefore, even if
emancipation terminates parental authority, the adoptee is still considered a legitimate child of
the adopter with all the rights[19] of a legitimate child such as: (1) to bear the surname of the
father and the mother; (2) to receive support from their parents; and (3) to be entitled to the
legitime and other successional rights. Conversely, the adoptive parents shall, with respect to
the adopted child, enjoy all the benefits to which biological parents are entitled[20] such as
support[21] and successional rights.[22]
We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests
and welfare of the child to be of paramount consideration. They are designed to provide homes,
parental care and education for unfortunate, needy or orphaned children and give them the
protection of society and family, as well as to allow childless couples or persons to experience
the joys of parenthood and give them legally a child in the person of the adopted for the
manifestation of their natural parental instincts. Every reasonable intendment should be
sustained to promote and fulfill these noble and compassionate objectives of the law. [23] But, as
we have ruled in Republic v. Vergara:[24]

We are not unmindful of the main purpose of adoption statutes, which is the
promotion of the welfare of the children. Accordingly, the law should be
construed liberally, in a manner that will sustain rather than defeat said
purpose. The law must also be applied with compassion, understanding and
less severity in view of the fact that it is intended to provide homes, love,
care and education for less fortunate children. Regrettably, the Court is not
in a position to affirm the trial courts decision favoring adoption in the case at
bar, for the law is clear and it cannot be modified without violating the
proscription against judicial legislation. Until such time however, that the
law on the matter is amended, we cannot sustain the respondent-spouses
petition for adoption. (Emphasis supplied)
Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed
the petitions with her husband. We cannot make our own legislation to suit petitioner.

Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption
could no longer be possible because Olario has filed a case for dissolution of his marriage to
petitioner in the Los Angeles Superior Court.

We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is
of no moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there is
a judicial decree for the dissolution of the marriage between petitioner and Olario, the marriage
still subsists. That being the case, joint adoption by the husband and the wife is required. We
reiterate our ruling above that since, at the time the petitions for adoption were filed, petitioner
was married to Olario, joint adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of
the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and
1259. Costs against petitioner.
 SECOND DIVISION
G.R. No. 189516, June 08, 2016
EDNA MABUGAY-OTAMIAS, JEFFREN M. OTAMIAS AND MINOR JEMWEL M. OTAMIAS,
REPRESENTED BY THEIR MOTHER EDNA MABUGAY-OTAMIAS, Petitioners, v. REPUBLIC
OF THE PHILIPPINES, REPRESENTED BY COL. VIRGILIO O. DOMINGO, IN HIS CAPACITY
AS THE COMMANDING OFFICER OF THE PENSION AND GRATUITY MANAGEMENT
CENTER (PGMC) OF THE ARMED FORCES OF THE PHILIPPINES, Respondent.
DECISION
LEONEN, J.:
A writ of execution lies against the pension benefits of a retired officer of the Armed Forces of
the Philippines, which is the subject of a deed of assignment drawn by him granting support to
his wife and five (5) children. The benefit of exemption from execution of pension benefits is a
statutory right that may be waived, especially in order to comply with a husband's duty to provide
support under Article XV of the 1987 Constitution and the Family Code.
Petitioner Edna Mabugay-Otamias (Edna) and retired Colonel Francisco B. Otamias (Colonel
Otamias) were married on June 16, 1978 and had five (5) children. 1ChanRoblesVirtualawlibrary
On September 2000, Edna and Colonel Otamias separated due to his alleged infidelity. 2 Their
children remained with Edna.3ChanRoblesVirtualawlibrary
On August 2002, Edna filed a Complaint-Affidavit against Colonel Otamias before the Provost
Marshall Division of the Armed Forces of the Philippines.4 Edna demanded monthly support
equivalent to 75% of Colonel Otamias' retirement benefits.5 Colonel Otamias executed an
Affidavit, stating:chanRoblesvirtualLawlibrary
That sometime in August or September 2002, I was summoned at the Office of the Provost
Marshal, Philippine Army, in connection with a complaint affidavit submitted to said Office by my
wife Mrs. Edna M. Otamias signifying her intention 75% of my retirement benefits from the AFP;
That at this point, I can only commit 50% of my retirement benefits to be pro-rated among my
wife and five (5) children;
That in order to implement this compromise, I am willing to enter into Agreement with my wife
covering the same;
That I am executing this affidavit to attest to the truth of the foregoing facts and whatever legal
purpose it may serve.6cralawred
On February 26, 2003, Colonel Otamias executed a Deed of Assignment where he waived 50%
of his salary and pension benefits in favor of Edna and their children.7 The Deed of Assignment
was considered by the parties as a compromise agreement. 8 It
stated:chanRoblesvirtualLawlibrary
This Assignment, made and executed unto this 26th day of February 2003 at Fort Bonifacio,
Makati City, by the undersigned LTC Francisco B. Otamias, 0-0-111045 (INP) PA, of legal age,
married and presently residing at Dama De Noche St., Pembo, Makati City.
WITNESSETH
WHEREAS, the undersigned affiant is the legal husband of EDNA M. OTAMIAS and the father
of Julie Ann, Jonathan, Jennifer, Jeffren and Jemwel all residing at Patag, Cagayan de Oro City;
WHEREAS, the undersigned will be retiring from the military service and expects to receive
retirement benefits from the Armed Forces of the Philippines;
WHEREAS, the undersigned had expressed his willingness to give a share in his retirement
benefits to my wife and five (5) abovenamed children,
NOW, THEREFORE, for and in consideration of the foregoing premises, the undersigned hereby
stipulated the following:
1. That the undersigned will give to my legal wife and five (5) children FIFTY PERCENT (50%) of
my retirement benefits to be pro rated among them.
2. That a separate check(s) be issued and to be drawn and encash [sic] in the name of the legal
wife and five (5) children pro-rating the fifty (50%) percent of my retirement benefits.
IN WITNESS WHEREOF, I have hereunto set my hand this 26th day of February 2003 at Fort
Bonifacio, Makati City.9cralawred
Colonel Otamias retired on April 1, 2003.10ChanRoblesVirtualawlibrary
The agreement was honored until January 6, 2006.11 Edna alleged that "the A[rmed] F[orces] [of
the] Philippines] suddenly decided not to honor the agreement"12 between Colonel Otamias and
his legitimate family.
In a letter13 dated April 3, 2006, the Armed Forces of the Philippines Pension and Gratuity
Management Center (AFP PGMC) informed Edna that a court order was required for the AFP
PGMC to recognize the Deed of Assignment.14ChanRoblesVirtualawlibrary
In another letter15 dated April 17, 2006, the AFP PGMC reiterated that it could not act on Edna's
request to receive a portion of Colonel Otamias' pension "unless ordered by [the] appropriate
court."16ChanRoblesVirtualawlibrary
Heeding the advice of the AFP PGMC, Edna, on behalf of herself and Jeffren M. Otamias and
Jemwel M. Otamias (Edna, et al.), filed before the Regional Trial Court of Cagayan de Oro,
Misamis Oriental an action for support, docketed as F.C. Civil Case No. 2006-
039.17ChanRoblesVirtualawlibrary
The trial court's Sheriff tried to serve summons on Colonel Otamias several times, to no
avail.18Substituted service was resorted to.19 Colonel Otamias was subsequently declared in
default for failure to file a responsive pleading despite order of the trial
court.20ChanRoblesVirtualawlibrary
The trial court ruled in favor of Edna, et al. and ordered the automatic deduction of the amount of
support from the monthly pension of Colonel Otamias.21ChanRoblesVirtualawlibrary
The dispositive portion of the trial court's Decision stated:chanRoblesvirtualLawlibrary
ALL THE FOREGOING CONSIDERED, and in consonance with the legal obligation of the
defendant to the plaintiffs, the Armed Forces of the Philippines, through its Finance Center
and/or appropriate Finance Officer thereof, is thereby ordered to release to Edna Mabugay
Otamias and minor Jemwel M. Otamias, herein represented by his mother Edna, their fifty (50%)
per cent share of each of the monthly pension due to Colonel Francisco B. Otamias, AFP PA
(Retired).
Defendant Francisco Otamias is also ordered to pay plaintiff Edna M. Otamias, fifty (50%) per
cent of whatever retirement benefits he has already received from the Armed Forces of the
Philippines AND the arrears in support, effective January 2006 up to the time plaintiff receives
her share direct from the Finance Center of the Armed Forces of the Philippines.

IT IS SO ORDERED.22cralawred
The Armed Forces of the Philippines, through the Office of the Judge Advocate General, filed a
Manifestation/Opposition23 to the Decision of the trial court, but it was not given due course due
to its late filing.24ChanRoblesVirtualawlibrary
Edna, et al., through counsel, filed a Motion for Issuance of Writ of Execution25 dated February
22, 2008. The trial court granted the Motion, and a writ of execution was issued by the trial court
on April 10, 2008.26ChanRoblesVirtualawlibrary
The Armed Forces of the Philippines Finance Center (AFP Finance Center), tlirough the Office
of the Judge Advocate General, filed a Motion to Quash27 the writ of execution and argued that
the AFP Finance Center's duty to disburse benefits is ministerial. It releases benefits only upon
the AFP PGMC's approval.28ChanRoblesVirtualawlibrary
The trial court denied the Motion to Quash and held that:chanRoblesvirtualLawlibrary
Under the law and existing jurisprudence, the "right to support" is practically equivalent to the
"right to life." The "right to life" always takes precedence over "property rights." The "right to
support/life" is also a substantive right which always takes precedence over
technicalities/procedural rules. It being so, technical rules must yield to substantive justice.
Besides, this Court's Decision dated February 27, 2007 has long acquired finality, and as such,
is ripe for enforcement/execution.
THE FOREGOING CONSIDERED, the instant Motion is hereby DENIED.29cralawred
The AFP PGMC moved for reconsideration of the order denying the Motion to Quash, 30 but the
Motion was also denied by the trial court in the Order31 dated August 6, 2008.
A Notice of Garnishment was issued by the trial court on July 15, 2008 and was received by the
AFP PGMC on September 9, 2008.32ChanRoblesVirtualawlibrary
The AFP PGMC filed before the Court of Appeals a Petition for Certiorari and
Prohibition.33ChanRoblesVirtualawlibrary
The Court of Appeals granted34 the Petition for Certiorari and Prohibition and partially nullified
the trial court's Decision insofar as it directed the automatic deduction of support from the
pension benefits of Colonel Otamias.
The Court of Appeals discussed that Section 3135 of Presidential Decree No. 1638, otherwise
known as the AFP Military Personnel Retirement and Separation Decree of 1979, "provides for
the exemption of the monthly pension of retired military personnel from execution and
attachment[,]"36 while Rule 39, Section 13 of the Rules of Court
provides:chanRoblesvirtualLawlibrary
SEC. 13. Property exempt from execution. Except as otherwise expressly provided by law, the
following property, and no other, shall be exempt from execution:
....
(1) The right to receive legal support, or money or property obtained as such support, or any
pension or gratuity from the Government[.]cralawred
The Court of Appeals also cited Pacific Products, Inc. vs. Ong:37
[M]oneys sought to be garnished, as long as they remain in the hands of the disbursing officer of
the Government, belong to the latter, although the defendant in garnishment may be entitled to a
specific portion thereof. And still another reason which covers both of the foregoing is that every
consideration of public policy forbids it.38cralawred
In addition, the AFP PGMC was not impleaded as a party in the action for support; thus, it is not
bound by the Decision.39ChanRoblesVirtualawlibrary
The dispositive portion of the Court of Appeals Decision reads:chanRoblesvirtualLawlibrary
WHEREFORE, the petition is GRANTED. The assailed Decision of the Regional Trial Court,
Branch 19, Cagayan de Oro City dated February 27, 2007 in Civil Case No. 2006-039
is PARTIALLY NULLIFIED in so far as it directs the Armed Forces of the Philippines Finance
Center to automatically deduct the financial support in favor of private respondents, Edna
Otamias and her children Jeffren and Jemwel Otamias, from the pension benefits of Francisco
Otamias, a retired military officer. The Order dated June 10, 2008, Order dated August 6, 2008
and Writ of Execution dated April 10, 2008, all issued by the court a quoare likewise SET
ASIDE. Perforce, let a writ of permanent injunction issue enjoining the implementation of the
assailed Writ of Execution dated April 10, 2008 and the corresponding Notice of Garnishment
dated July 15, 2008. No pronouncement as to costs.
SO ORDERED.40 (Emphasis in the original)cralawred
Edna, et al. moved for reconsideration, but the Motion was denied by the Court of
Appeals.41ChanRoblesVirtualawlibrary
Edna, et al. filed before this Court a Petition for Review on Certiorari42 on November 11, 2009. In
the Resolution43 dated January 20, 2010, this Court required respondent to comment.
In the Resolution44 dated August 4, 2010, this Court noted the Comment filed by the Office of the
Solicitor General and required Edna, et al. to file a reply.45ChanRoblesVirtualawlibrary
A Reply46 was filed on September 27, 2010.
Edna, et al. argue that the Deed of Assignment Colonel Otamias executed Is valid and
legal.47ChanRoblesVirtualawlibrary
They claim that Section 31 of Presidential Decree No. 163848 "does not include
support";49 hence, the retirement benefits of Colonel Otamias can be executed upon.
Edna, et al. also argue that the Court of Appeals erred in granting respondent's Petition because
it effectively rendered the Deed of Assignment of no force and effect.50 On the other hand, the
trial court's Decision implements the Deed of Assignment and Edna, et al.'s right to
support.51ChanRoblesVirtualawlibrary
Further, the AFP PGMC had already recognized the validity of the agreement and had made
payments to them until it suddenly stopped payment.52 After Edna, et al. obtained a court order,
the AFP PGMC still refused to honor the Deed of Assignment.53ChanRoblesVirtualawlibrary
The Armed Forces of the Philippines, through the Office of the Solicitor General, argues that it
was not a party to the case filed by Edna, et al.54 Thus, "it cannot be compelled to release part of
the monthly pension benefits of retired Colonel Otamias in favor of [Edna, et
al]."55ChanRoblesVirtualawlibrary
The Office of the Solicitor General avers that the AFP PGMC never submitted itself to the
jurisdiction of the trial court.56 It was not a party to the case as the trial court never acquired
jurisdiction over the AFP PGMC.57ChanRoblesVirtualawlibrary
The Office of the Solicitor General also argues that Section 31 of Presidential Decree No. 1638
and Rule 39, Section 13(1) of the Rules of Court support the Court of Appeals Decision that
Colonel Otamias' pension benefits are exempt from execution.58ChanRoblesVirtualawlibrary
Section 31 of Presidential Decree No. 1638 "does not deprive the survivor/s of a retired or
separated officer or enlisted man of their right to support."59 Rather, "[w]hat is prohibited is for
respondent [AFP PGMC] to segregate a portion of the pension benefit in favor of the retiree's
family while still in the hands of the A[rmed] F[orces] [of the]
Philippines]."60ChanRoblesVirtualawlibrary
Thus, the AFP PGMC "cannot be compelled to directly give or issue a check in favor of [Edna, et
al.] out of the pension gratuity of Col. Otamias."61ChanRoblesVirtualawlibrary
In their Reply,62 Edna, et al. argue that the Armed Forces of the Philippines should not be
allowed to question the legal recourse they took because it was an officer of the Armed Forces
of the Philippines who had advised them to file an action for
support.63ChanRoblesVirtualawlibrary
They argue that the phrase "while in the active service" in Section 31 of Presidential Decree No.
1638 refers to the "time when the retired officer incurred his accountabilities in favor of a private
creditor[,]"64who is a third person. The phrase also "serves as a timeline designed to separate
the debts incurred by the retired officer after his retirement from those which he incurred prior
thereto."65ChanRoblesVirtualawlibrary
Further, the accountabilities referred to in Section 31 of Presidential Decree No. 1638 refer to
debts or loans, not to support.66ChanRoblesVirtualawlibrary
The issues for resolution are:
First, whether the Court of Appeals erred in ruling that the AFP Finance Center cannot be
directed to automatically deduct the amount of support needed by the legitimate family of
Colonel Otamias; and
Second, whether Colonel Otamias' pension benefits can be executed upon for the financial
support of his legitimate family.
The Petition is granted.
I ....
Article 6 of the Civil Code provides:chanRoblesvirtualLawlibrary
Article 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy,
morals or good customs, or prejudicial to a third person with a right recognized by law.cralawred
The concept of waiver has been defined by this Court as:chanRoblesvirtualLawlibrary
a voluntary and intentional relinquishment or abandonment of a known existing legal right,
advantage, benefit, claim or privilege, which except for such waiver the party would have
enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him
to exist, with the intent that such right shall be surrendered and such person forever deprived of
its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the
intentional doing of an act inconsistent with claiming it.67cralawred
In determining whether a statutory right can be waived, this Court is guided by the following
pronouncement:chanRoblesvirtualLawlibrary
[T]he doctrine of waiver extends to rights and privileges of any character, and, since the word
'waiver' covers every conceivable right, it is the general rule that a person may waive any matter
which affects his property, and any alienable right or privilege of which he is the owner or which
belongs to him or to which he is legally entitled, whether secured by contract, conferred with
statute, or guaranteed by constitution, provided such rights and privileges rest in the
individual, are intended for his sole benefit, do not infringe on the rights of others, and
further provided the waiver of the right or privilege is not forbidden by law, and does not
contravene public policy; and the principle is recognized that everyone has a right to waive,
and agree to waive, the advantage of a law or rule made solely for the benefit and protection of
the individual in his private capacity, if it can be dispensed with and relinquished without
infringing on any public right, and without detriment to the community at large[.] 68 (Emphasis in
the original)cralawred
When Colonel Otamias executed the Deed of Assignment, he effectively waived his right to
claim that his retirement benefits are exempt from execution. The right to receive retirement
benefits belongs to Colonel Otamias. His decision to waive a portion of his retirement benefits
does not infringe on the right of third persons, but even protects the right of his family to receive
support.
In addition, the Deed of Assignment should be considered as the law between the parties, and
its provisions should be respected in the absence of allegations that Colonel Otamias was
coerced or defrauded in executing it. The general rule is that a contract is the law between
parties and parties are free to stipulate terms and conditions that are not contrary to law, morals,
good customs, public order, or public policy.69ChanRoblesVirtualawlibrary
The Deed of Assignment executed by Colonel Otamias was not contrary to law; it was in
accordance with the provisions on support in the Family Code. Hence, there was no reason for
the AFP PGMC not to recognize its validity.
Further, this Court notes that the AFP PGMC granted the request for support of the wives of
other retired military personnel in a similar situation as that of petitioner in this case. Attached to
the Petition are the affidavits of the wives of retired members of the military, who have received
a portion of their husbands' pensions.70ChanRoblesVirtualawlibrary
One affidavit stated:chanRoblesvirtualLawlibrary
4. That when I consulted and appeared before the Office of PGMC, I was instructed to
submit a Special Power of Authority from my husband so they can release part of his
pension to me;
5. That my husband signed the Special Power of Attorney at the PGMC ceding 50% of
his pension to me; the SPA form was given to us by the PGMC and the same was
signed by my husband at the PGMC;. . .
7. That the amount was deposited directly to my account by the PGMC- Finance Center
AFP out of the pension of my husband;
8. That only the Special Power of Attorney was required by the PGMC in order for them
to segregate my share of my husband's pension and deposit the same to my
account[.]71
The other affidavit stated:chanRoblesvirtualLawlibrary
8. That my husband signed the Special Power of Attorney at the PGMC ceding 50% of
his pension to me; the SPA form was given to us by the PGMC and the same was
signed by my husband at the PGMC[.]72
In addition, the AFP PGMC's website informs the public of the following
procedure:chanRoblesvirtualLawlibrary
Tanong: My husband-retiree cut-off my allotment. How can I have it restored?
Sagot: Pension benefits are separate properties of the retiree and can not [sic] be subject of a
Ocurt [sic] Order for execution nor can they be assigned to any third party (Sec 31, PD 1638, as
amended). However, a valid Special Power of Attorney (SPA) by the retiree himself empowering
the AFP Finance Center to deduct certain amount from his lumpsum [sic] or pension pay as the
case maybe, as a rule, is a valid waiver of rights which can be effectively implemented by the
AFP F[inance] C[enter].73cralawred
Clearly, the AFP PGMC allows deductions from a retiree's pension for as long as the retiree
executes a Special Power of Attorney authorizing the AFP PGMC to deduct a certain amount for
the benefit of the retiree's beneficiary.
It is curious why Colonel Otamias was allowed to execute a Deed of Assignment by the
administering officer when, in the first place, the AFP PGMC's recognized procedure was to
execute a Special Power of Attorney, which would have been the easier remedy for Colonel
Otamias' family.
Instead, Colonel Otamias' family was forced to incur litigation expenses just to be able to receive
the financial support that Colonel Otamias was willing to give to Edna, et al.
II
Section 31 of Presidential Decree No. 1638 provides:chanRoblesvirtualLawlibrary
Section 31. The benefits authorized under this Decree, except as provided herein, shall not be
subject to attachment, garnishment, levy, execution or any tax whatsoever; neither shall they be
assigned, ceded, or conveyed to any third person: Provided, That if a retired or separated officer
or enlisted man who is entitled to any benefit under this Decree has unsettled money and/or
property accountabilities incurred while in the active service, not more than fifty per centum of
the pension gratuity or other payment due such officer or enlisted man or his survivors under this
Decree may be withheld and be applied to settle such accountabilities.cralawred
Under Section 31, Colonel Otamias' retirement benefits are exempt from execution. Retirement
benefits are exempt from execution so as to ensure that the retiree has enough funds to support
himself and his family.
On the other hand, the right to receive support is provided under the Family Code. Article 194 of
the Family Code defines support as follows:chanRoblesvirtualLawlibrary
Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing,
medical attendance, education and transportation, in keeping with the financial capacity of the
family.
The education of the person entitled to be supported referred to in the preceding paragraph shall
include his schooling or training for some profession, trade or vocation, even beyond the age of
majority. Transportation shall include expenses in going to and from school, or to and from place
of work.cralawred
The provisions of the Family Code also state who are obliged to give support,
thus:chanRoblesvirtualLawlibrary
Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support
each other to the whole extent set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter;
and
(5) Legitimate brothers and sisters, whether of the full or half- blood.
Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are
likewise bound to support each other to the full extent set forth in Article 194 except only when
the need for support of the brother or sister, being of age, is due to a cause imputable to the
claimant's fault or negligence.
Art. 197. For the support of legitimate ascendants; descendants, whether legitimate or
illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the
separate property of the person obliged to give support shall be answerable provided that in
case the obligor has no separate property, the absolute community or the conjugal partnership, if
financially capable, shall advance the support, which shall be deducted from the share of the
spouses obliged upon the liquidation of the absolute community or of the conjugal
partnership[.]cralawred
The provisions of Rule 39 of the Rules of Court that are applicable to this case are in apparent
conflict with each other. Section 4 provides that judgments in actions for support are immediately
executory. On the other hand, Section 13(1) provides that the right to receive pension from
government is exempt from execution, thus:chanRoblesvirtualLawlibrary
RULE 39
EXECUTION, SATISFACTION, AND EFFECT OF JUDGMENTS
....
SEC. 4. Judgments not stayed by appeal. Judgments in actions for injunction, receivership,
accounting and support, and such other judgments as are now or may hereafter be declared to
be immediately executory, shall be enforceable after their rendition and shall not, be stayed by
an appeal taken therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the
appellate court in its discretion may make an order suspending, modifying, restoring or granting
the injunction, receivership, accounting, or award of support.
The stay of execution shall be upon such terms as to bond or otherwise as may be considered
proper for the security or protection of the rights of the adverse party.
....
SEC. 13. Property exempt from execution. Except as otherwise expressly provided by law,
the following property, and no other, shall be exempt from execution:
....
(1) The right to receive legal support, or money or property obtained as such support, or
any pension or gratuity from the Government;
....
But no article or species of property mentioned in this section shall be exempt from execution
issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage
thereon. (Emphasis supplied)cralawred
Based on the Family Code, Colonel Otamias is obliged to give support to his family, petitioners
in this case. However, he retired in 2003, and his sole source of income is his pension.
Judgments in actions for support are immediately executory, yet under Section 31 of Presidential
Decree No. 1638, his pension cannot be executed upon.
However, considering that Colonel Otamias has waived a portion of his retirement benefits
through his Deed of Assignment, resolution on the conflict between the civil code provisions on
support and Section 31 of Presidential Decree No. 1638 should be resolved in a more
appropriate case.
III
Republic v. Yahon74 is an analogous case because it involved the grant of support to the spouse
of a retired member of the Armed Forces of the Philippines.
In Republic v. Yahon, Daisy R. Yahon filed a Petition for the Issuance of Protection Order under
Republic Act No. 9262.75 She alleged that she did not have any source of income because her
husband made her resign from her job.76 The trial court issued a temporary restraining order, a
portion of which stated:chanRoblesvirtualLawlibrary
To insure that petitioner [Daisy R. Yahon] can receive a fair share of respondent's
retirement and other benefits, the following agencies thru their heads are directed to
WITHHOLD any retirement, pension [,] and other benefits of respondent, S/SGT.
CHARLES A. YAHON, a member of the Armed Forces of the Philippines assigned at 4ID, Camp
Evangelista, Patag, Cagayan de Oro City until further orders from the
court:chanRoblesvirtualLawlibrary
1. Commanding General/Officer of the Finance Center of the Armed Forces of the Philippines,
Camp Emilio Aguinaldo, Quezon City;
2. The Management of RSBS, Camp Emilio Aguinaldo, Quezon City;
3. The Regional Manager of PAG-IBIG, Mortola St., Cagayan de Oro City.77(Emphasis in the
original)cralawred
The trial court subsequently granted Daisy's Petition and issued a permanent protection
order78 and held:chanRoblesvirtualLawlibrary
Pursuant to the order of the court dated February 6, 2007, respondent, S/Sgt. Charles A. Yahon
is directed to give it to petitioner 50% of whatever retirement benefits and other claims that may
be due or released to him from the government and the said share of petitioner shall be
automatically deducted from respondent's benefits and claims and be given directly to the
petitioner, Daisy R. Yahon.
Let copy of this decision be sent to the Commanding General/Officer of Finance Center of the
Armed Forces of the Philippines, Camp Emilio Aguinaldo, Quezon City; the Management of
RSBS, Camp Emilio Aguinaldo, Quezon City and the Regional Manager of PAG-IBIG, Mortola
St., Cagayan de Oro City for their guidance and strict compliance.79cralawred
In that case, the AFP Finance Center filed before the trial court a Manifestation and Motion
stating that "it was making a limited and special appearance" 80 and argued that the trial court did
not acquire jurisdiction over the Armed Forces of the Philippines. Hence, the Armed Forces of
the Philippines is not bound by the trial court's ruling.81ChanRoblesVirtualawlibrary
The Armed Forces of the Philippines also cited Pacific Products, where this Court ruled
that:chanRoblesvirtualLawlibrary
A rule, which has never been seriously questioned, is that money in the hands of public officers,
although it may be due government employees, is not liable to the creditors of these employees
in the process of garnishment. One reason is, that the State, by virtue of its sovereignty may not
be sued in its own courts except by express authorization by the Legislature, and to subject its
officers to garnishment would be to permit indirectly what is prohibited directly. Another reason is
that moneys sought to be garnished, as long as they remain in the hands of the disbursing
officer of the Government, belong to the latter, although the defendant in garnishment may be
entitled to a specific portion thereof. And still another reason which covers both of the foregoing
is that every consideration of public policy forbids it.82 (Citations omitted)cralawred
This Court in Republic v. Yahon denied the Petition and discussed that because Republic Act
No. 9262 is the later enactment, its provisions should prevail,83 thus:chanRoblesvirtualLawlibrary
We hold that Section 8(g) of R.A. No. 9262, being a later enactment, should be construed as
laying down an exception to the general rule above stated that retirement benefits are exempt
from execution. The law itself declares that the court shall order the withholding of a percentage
of the income or salary of the respondent by the employer, which shall be automatically remitted
directly to the woman "[n]otwithstanding other laws to the contrary"84 (Emphasis in the
original)cralawred
IV
The 1987 Constitution gives much importance to the family as the basic unit of society, such that
Article XV85 is devoted to it.
The passage of the Family Code further implemented Article XV of the Constitution. This Court
has recognized the importance of granting support to minor children, provided that the filiation of
the child is proven. In this case, the filiation of Jeffren M. Otamias and Jemwel M. Otamias was
admitted by Colonel Otamias in the Deed of Assignment.86ChanRoblesVirtualawlibrary
Even before the passage of the Family Code, this Court has given primary consideration to the
right of a child to receive support. In Samson v. Yatco,87 a petition for support was dismissed
with prejudice by the trial court on the ground that the minor asking for support was not present
in court during trial. An appeal was filed, but it was dismissed for having been filed out of time.
This Court relaxed the rules of procedure and held that "[i]f the order of dismissal with prejudice
of the petition for support were to stand, the petitioners would be deprived of their right to
present and nature support."88ChanRoblesVirtualawlibrary
In Gan v. Reyes,89 Augustus Caezar R. Gan (Gan) questioned the trial court's decision requiring
him to give support and claimed that that he was not the father of the minor seeking support. He
also argued that he was not given his day in court. This Court held that Gan's arguments were
meant to delay the execution of the judgment, and that in any case, Gan himself filed a Motion
for Leave to Deposit in Court Support Pendente Lite:chanRoblesvirtualLawlibrary
In all cases involving a child, his interest and welfare are always the paramount concerns. There
may be instances where, in view of the poverty of the child, it would be a travesty of justice to
refuse him support until the decision of the trial court attains finality while time continues to slip
away. An excerpt from the early case of De Leon v. Soriano is relevant,
thus:chanRoblesvirtualLawlibrary
The money and property adjudged for support and education should and must be given
presently and without delay because if it had to wait the final judgment, the children may in the
meantime have suffered because of lack of food or have missed and lost years in school
because of lack of funds. One cannot delay the payment of such funds for support and
education for the reason that if paid long afterwards, however much the accumulated amount, its
payment cannot cure the evil and repair the damage caused. The children with such belated
payment for support and education cannot act as gluttons and eat voraciously and unwisely,
afterwards, to make up for the years of hunger and starvation. Neither may they enrol in several
classes and schools and take up numerous subjects all at once to make up for the years they
missed in school, due to non-payment of the funds when needed.90cralawred
V
The non-inclusion of the AFP PGMC or the AFP Finance Center in the action for support was
proper, considering that both the AFP PGMC and the AFP Finance Center are not the persons
obliged to give support to Edna, et al. Thus, it was not a real party-in-interest.91 Nor was the AFP
PGMC a necessary party because complete relief could be obtained even without impleading
the AFP PGMC.92ChanRoblesVirtualawlibrary
WHEREFORE, the Petition is GRANTED. The Court of Appeals Decision dated May 22, 2009
and Resolution dated August 11, 2009 in CA-G.R. SP No. 02555-MIN are REVERSED and SET
ASIDE. The Regional Trial Court Decision dated February 27, 2007 in F.C. Civil Case No. 2006-
039 is REINSTATED.
SO ORDERED.chanroblesvirtuallawlibrary
 SECOND DIVISION
[G.R. No. 159966. March 30, 2005]
IN RE: PETITION FOR CHANGE OF NAME AND/OR CORRECTION/CANCELLATION OF
ENTRY IN CIVIL REGISTRY OF JULIAN LIN CARULASAN WANG also known as
JULIAN LIN WANG, to be amended/corrected as JULIAN LIN WANG, JULIAN LIN
WANG, duly represented by his mother ANNA LISA WANG, petitioner, vs. CEBU
CITY CIVIL REGISTRAR, duly represented by the Registrar OSCAR B.
MOLO, respondent.
DECISION
TINGA, J.:
I will not blot out his name out of the book of life.
Revelation 3:5
On 22 September 2002, petitioner Julian Lin Carulasan Wang, a minor, represented by his
mother Anna Lisa Wang, filed a petition dated 19 September 2002 for change of name and/or
correction/cancellation of entry in the Civil Registry of Julian Lin Carulasan Wang. Petitioner
sought to drop his middle name and have his registered name changed from Julian Lin
Carulasan Wang to Julian Lin Wang.
The petition was docketed as Special Proceedings Case No. 11458 CEB and raffled to the
Regional Trial Court (RTC) of Cebu City, Branch 57.
The RTC established the following facts:
Julian Lin Carulasan Wang was born in Cebu City on February 20, 1998 to parents Anna Lisa
Wang and Sing-Foe Wang who were then not yet married to each other. When his parents
subsequently got married on September 22, 1998, ...they executed a deed of legitimation of their
son so that the childs name was changed from Julian Lin Carulasan to Julian Lin Carulasan
Wang.
The parents of Julian Lin Carulasan Wang plan to stay in Singapore for a long time because
they will let him study there together with his sister named Wang Mei Jasmine who was born in
Singapore. Since in Singapore middle names or the maiden surname of the mother are not
carried in a persons name, they anticipate that Julian Lin Carulasan Wang will be discriminated
against because of his current registered name which carries a middle name. Julian and his
sister might also be asking whether they are brother and sister since they have different
surnames. Carulasan sounds funny in Singapores Mandarin language since they do not have
the letter R but if there is, they pronounce it as L. It is for these reasons that the name of Julian
Lin Carulasan Wang is requested to be changed to Julian Lin Wang.[1]
On 30 April 2003, the RTC rendered a decision denying the petition.[2] The trial court found
that the reason given for the change of name sought in the petitionthat is, that petitioner Julian
may be discriminated against when studies in Singapore because of his middle namedid not fall
within the grounds recognized by law. The trial court ruled that the change sought is merely for
the convenience of the child. Since the State has an interest in the name of a person, names
cannot be changed to suit the convenience of the bearers. Under Article 174 of the Family Code,
legitimate children have the right to bear the surnames of the father and the mother, and there is
no reason why this right should now be taken from petitioner Julian, considering that he is still a
minor. The trial court added that when petitioner Julian reaches the age of majority, he could
then decide whether he will change his name by dropping his middle name.[3]
Petitioner filed a motion for reconsideration of the decision but this was denied in a
resolution dated 20 May 2004.[4] The trial court maintained that the Singaporean practice of not
carrying a middle name does not justify the dropping of the middle name of a legitimate Filipino
child who intends to study there. The dropping of the middle name would be tantamount to
giving due recognition to or application of the laws of Singapore instead of Philippine law which
is controlling. That the change of name would not prejudice public interest or would not be for a
fraudulent purpose would not suffice to grant the petition if the reason for the change of name is
itself not reasonable.[5]
Petitioner then filed this Petition for Review on Certiorari (Under Rule 45)[6] arguing that
the trial court has decided a question of substance not theretofore determined by the Court, that
is: whether or not dropping the middle name of a minor child is contrary to Article 174 [7] of the
Family Code. Petitioner contends that [W]ith globalization and mixed marriages, there is a need
for the Supreme Court to rule on the matter of dropping of family name for a child to adjust to his
new environment, for consistency and harmony among siblings, taking into consideration the
best interest of the child.[8] It is argued that convenience of the child is a valid reason for
changing the name as long as it will not prejudice the State and others. Petitioner points out that
the middle name Carulasan will cause him undue embarrassment and the difficulty in writing or
pronouncing it will be an obstacle to his social acceptance and integration in the Singaporean
community. Petitioner also alleges that it is error for the trial court to have denied the petition for
change of name until he had reached the age of majority for him to decide the name to use,
contrary to previous cases[9] decided by this Court that allowed a minor to petition for change of
name.[10]
The Court required the Office of the Solicitor General (OSG) to comment on the petition.
The OSG filed its Comment[11] positing that the trial court correctly denied the petition for change
of name. The OSG argues that under Article 174 of the Family Code, legitimate children have
the right to bear the surnames of their father and mother, and such right cannot be denied by the
mere expedient of dropping the same. According to the OSG, there is also no showing that the
dropping of the middle name Carulasan is in the best interest of petitioner, since mere
convenience is not sufficient to support a petition for change of name and/or cancellation of
entry.[12] The OSG also adds that the petitioner has not shown any compelling reason to justify
the change of name or the dropping of the middle name, for that matter. Petitioners allegation
that the continued use of the middle name may result in confusion and difficulty is allegedly more
imaginary than real. The OSG reiterates its argument raised before the trial court that the
dropping of the childs middle name could only trigger much deeper inquiries regarding the true
parentage of petitioner. Hence, while petitioner Julian has a sister named Jasmine Wei Wang,
there is no confusion since both use the surname of their father, Wang. Even assuming that it is
customary in Singapore to drop the middle name, it has also not been shown that the use of
such middle name is actually proscribed by Singaporean law.[13]
We affirm the decision of the trial court. The petition should be denied.
The Court has had occasion to express the view that the State has an interest in the
names borne by individuals and entities for purposes of identification, and that a change of name
is a privilege and not a right, so that before a person can be authorized to change his name
given him either in his certificate of birth or civil registry, he must show proper or reasonable
cause, or any compelling reason which may justify such change. Otherwise, the request should
be denied.[14]
The touchstone for the grant of a change of name is that there be proper and reasonable
cause for which the change is sought.[15] To justify a request for change of name, petitioner must
show not only some proper or compelling reason therefore but also that he will be prejudiced by
the use of his true and official name. Among the grounds for change of name which have been
held valid are: (a) when the name is ridiculous, dishonorable or extremely difficult to write or
pronounce; (b) when the change results as a legal consequence, as in legitimation; (c) when the
change will avoid confusion; (d) when one has continuously used and been known since
childhood by a Filipino name, and was unaware of alien parentage; (e) a sincere desire to adopt
a Filipino name to erase signs of former alienage, all in good faith and without prejudicing
anybody; and (f) when the surname causes embarrassment and there is no showing that the
desired change of name was for a fraudulent purpose or that the change of name would
prejudice public interest.[16]
In granting or denying petitions for change of name, the question of proper and reasonable
cause is left to the sound discretion of the court. The evidence presented need only be
satisfactory to the court and not all the best evidence available. What is involved is not a mere
matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency
and propriety of the justifications advanced in support thereof, mindful of the consequent results
in the event of its grant and with the sole prerogative for making such determination being
lodged in the courts.[17]
The petition before us is unlike other petitions for change of name, as it does not simply
seek to change the name of the minor petitioner and adopt another, but instead seeks to drop
the middle name altogether. Decided cases in this jurisdiction involving petitions for change of
name usually deal with requests for change of surname. There are only a handful of cases
involving requests for change of the given name[18] and none on requests for changing or
dropping of the middle name. Does the law allow one to drop the middle name from his
registered name? We have to answer in the negative.
A discussion on the legal significance of a persons name is relevant at this point. We
quote, thus:
For all practical and legal purposes, a man's name is the designation by which he is known and
called in the community in which he lives and is best known. It is defined as the word or
combination of words by which a person is distinguished from other individuals and, also, as the
label or appellation which he bears for the convenience of the world at large addressing him, or
in speaking of or dealing with him. Names are used merely as one method of indicating the
identity of persons; they are descriptive of persons for identification, since, the identity is the
essential thing and it has frequently been held that, when identity is certain, a variance in, or
misspelling of, the name is immaterial.
The names of individuals usually have two parts: the given name or proper name, and the
surname or family name. The given or proper name is that which is given to the individual at
birth or baptism, to distinguish him from other individuals. The name or family name is that which
identifies the family to which he belongs and is continued from parent to child. The given name
may be freely selected by the parents for the child; but the surname to which the child is entitled
is fixed by law.
A name is said to have the following characteristics: (1) It is absolute, intended to protect the
individual from being confused with others. (2) It is obligatory in certain respects, for nobody can
be without a name. (3) It is fixed, unchangeable, or immutable, at least at the start, and may be
changed only for good cause and by judicial proceedings. (4) It is outside the commerce of man,
and, therefore, inalienable and intransmissible by act inter vivos or mortis causa. (5) It is
imprescriptible.[19]
This citation does not make any reference to middle names, but this does not mean that
middle names have no practical or legal significance. Middle names serve to identify the
maternal lineage or filiation of a person as well as further distinguish him from others who may
have the same given name and surname as he has.
Our laws on the use of surnames state that legitimate and legitimated children shall
principally use the surname of the father.[20] The Family Code gives legitimate children the right
to bear the surnames of the father and the mother, [21] while illegitimate children shall use the
surname of their mother, unless their father recognizes their filiation, in which case they may
bear the fathers surname.[22]
Applying these laws, an illegitimate child whose filiation is not recognized by the father
bears only a given name and his mothers surname, and does not have a middle name. The
name of the unrecognized illegitimate child therefore identifies him as such. It is only when the
illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by
the father in a public document or private handwritten instrument that he bears both his mothers
surname as his middle name and his fathers surname as his surname, reflecting his status as a
legitimated child or an acknowledged illegitimate child.
Accordingly, the registration in the civil registry of the birth of such individuals requires that
the middle name be indicated in the certificate. The registered name of a legitimate, legitimated
and recognized illegitimate child thus contains a given or proper name, a middle name, and a
surname.
Petitioner theorizes that it would be for his best interest to drop his middle name as this
would help him to adjust more easily to and integrate himself into Singaporean society. In
support, he cites Oshita v. Republic[23] and Calderon v. Republic,[24] which, however, are not
apropos both.
In Oshita, the petitioner therein, a legitimate daughter of a Filipino mother, Buena
Bartolome, and a Japanese father, Kishimatsu Oshita, sought to change her name from
Antonina B. Oshita to Antonina Bartolome. The Court granted her petition based on the following
considerations: she had elected Philippine citizenship upon reaching the age of majority; her
other siblings who had also elected Philippine citizenship have been using their mothers
surname; she was embarrassed to bear a Japanese surname there still being ill feeling against
the Japanese due to the last World War; and there was no showing that the change of name
was motivated by a fraudulent purpose or that it will prejudice public interest.
In Calderon, the Court allowed petitioner Gertrudes Josefina del Prado, an illegitimate
minor child acting through her mother who filed the petition in her behalf, to change her name to
Gertudes Josefina Calderon, taking the surname of her stepfather, Romeo C. Calderon, her
mothers husband. The Court held that a petition for change of name of an infant should be
granted where to do is clearly for the best interest of the child. The Court took into consideration
the opportunity provided for the minor petitioner to eliminate the stigma of illegitimacy which she
would carry if she continued to use the surname of her illegitimate father. The Court pronounced
that justice dictates that every person be allowed to avail of any opportunity to improve his social
standing as long as doing so he does not cause prejudice or injury to the interests of the State or
of other people.
Petitioner cites Alfon v. Republic,[25] in arguing that although Article 174 of the Family
Code gives the legitimate child the right to use the surnames of the father and the mother, it is
not mandatory such that the child could use only one family name, even the family name of the
mother. In Alfon, the petitioner therein, the legitimate daughter of Filomeno Duterte and Estrella
Alfon, sought to change her name from Maria Estrella Veronica Primitiva Duterte (her name as
registered in the Local Civil Registry) to Estrella S. Alfon (the name she had been using since
childhood, in her school records and in her voters registration). The trial court denied her petition
but this Court overturned the denial, ruling that while Article 364 of the Civil Code states that
she, as a legitimate child, should principally use the surname of her father, there is no legal
obstacle for her to choose to use the surname of herm other to which she is entitled. In addition,
the Court found that there was ample justification to grant her petition, i.e., to avoid confusion.
Weighing petitioners reason of convenience for the change of his name against the
standards set in the cases he cites to support his contention would show that his justification is
amorphous, to say the least, and could not warrant favorable action on his petition.
 The factual antecedents and unique circumstances of the cited cases are not at all
analogous to the case at bar. The instant case is clearly distinguishable from the cases
of Oshita and Alfon, where the petitioners were already of age when they filed their petitions for
change of name. Being of age, they are considered to have exercised their discretion and
judgment, fully knowing the effects of their decision to change their surnames. It can also be
unmistakably observed that the reason for the grant of the petitions for change of name in these
two cases was the presence of reasonable or compelling grounds therefore. The Court,
in Oshita, recognized the tangible animosity most Filipinos had during that time against the
Japanese as a result of World War II, in addition to the fact of therein petitioners election of
Philippine citizenship. In Alfon, the Court granted the petition since the petitioner had been
known since childhood by a name different from her registered name and she had not used her
registered name in her school records and voters registration records; thus, denying the petition
would only result to confusion.

Calderon, on the other hand, granted the petition for change of name filed by a mother in
behalf of her illegitimate minor child. Petitioner cites this case to buttress his argument that he
does not have to reach the age of majority to petition for change of name. However, it is
manifest in Calderon that the Court, in granting the petition for change of name, gave paramount
consideration to the best interests of the minor petitioner therein.

In the case at bar, the only reason advanced by petitioner for the dropping his middle
name is convenience. However, how such change of name would make his integration into
Singaporean society easier and convenient is not clearly established. That the continued use of
his middle name would cause confusion and difficulty does not constitute proper and reasonable
cause to drop it from his registered complete name.

In addition, petitioner is only a minor. Considering the nebulous foundation on which his
petition for change of name is based, it is best that the matter of change of his name be left to
his judgment and discretion when he reaches the age of majority.[26] As he is of tender age, he
may not yet understand and appreciate the value of the change of his name and granting of the
same at this point may just prejudice him in his rights under our laws.

WHEREFORE, in view of the foregoing, the Petition for Review on Certiorari is DENIED.

SO ORDERED.
JOEY D. BRIONES, petitioner, vs. MARICEL P. MIGUEL, FRANCISCA P. MIGUEL and
LORETA P. MIGUEL, respondents.
DECISION
PANGANIBAN, J.:
An illegitimate child is under the sole parental authority of the mother. In the exercise of
that authority, she is entitled to keep the child in her company. The Court will not deprive her of
custody, absent any imperative cause showing her unfitness to exercise such authority and care.
The Case
The Petition for Review[1] before the Court seeks to reverse and set aside the August 28,
2002 Decision[2] and the December 11, 2002 Resolution[3] of the Court of Appeals in CA-GR SP
No. 69400.[4] The dispositive portion of the assailed Decision reads as follows:
WHEREFORE, the petition is hereby DISMISSED. Respondent Loreta P. Miguel shall have
custody over the child Michael Kevin Pineda until he reaches ten (10) years of age. Once the
said child is beyond ten (10) years of age, the Court allows him to choose which parent he
prefers to live with pursuant to Section 6, Rule 99 of the 1997 Rules of Civil Procedure, as
amended. The petitioner, Joey D. Briones, shall help support the child, shall have visitorial rights
at least once a week, and may take the child out upon the written consent of the mother.
Acting on the petitioners Urgent Motion for a Hold Departure Order, and finding it to be without
merit, the same is DENIED.[5]
The challenged Resolution denied reconsideration.
The Facts
The CA summarized the antecedents of the case in this wise:
On March 5, 2002, petitioner Joey D. Briones filed a Petition for Habeas Corpus against
respondents Maricel Pineda Miguel and Francisca Pineda Miguel, to obtain custody of his minor
child Michael Kevin Pineda.
On April 25, 2002, the petitioner filed an Amended Petition to include Loreta P. Miguel, the
mother of the minor, as one of the respondents.
A Writ of Habeas Corpus was issued by this Court on March 11, 2002 ordering the respondents
to produce before this Court the living body of the minor Michael Kevin Pineda on March 21,
2002 at 2:00 oclock in the afternoon.
The petitioner alleges that the minor Michael Kevin Pineda is his illegitimate son with respondent
Loreta P. Miguel. He was born in Japan on September 17, 1996 as evidenced by his Birth
Certificate. The respondent Loreta P. Miguel is now married to a Japanese national and is
presently residing in Japan.
The petitioner further alleges that on November 4, 1998 he caused the minor child to be brought
to the Philippines so that he could take care of him and send him to school. In the school year
2000-2001, the petitioner enrolled him at the nursery school of Blessed Angels L.A. School, Inc.
in Caloocan City, where he finished the nursery course.
According to the petitioner, his parents, who are both retired and receiving monthly pensions,
assisted him in taking care of the child.
On May 2, 2001, respondents Maricel P. Miguel and Francisca P. Miguel came to the house of
the petitioner in Caloocan City on the pretext that they were visiting the minor child and
requested that they be allowed to bring the said child for recreation at the SM Department store.
They promised him that they will bring him back in the afternoon, to which the petitioner agreed.
However, the respondents did not bring him back as promised by them.
The petitioner went several times to respondent Maricel P. Miguel at Tanza, Tuguegarao City
but he was informed that the child is with the latters mother at Batal Heights, Santiago City.
When he went there, respondent Francisca P. Miguel told him that Michael Kevin Pineda is with
her daughter at Tuguegarao City.
He sought the assistance of the police and the Department of Social Welfare to locate his son
and to bring him back to him, but all his efforts were futile.
Hence, he was constrained to file a Petition for Habeas Corpus with the Regional Trial Court of
Caloocan City which was docketed as SPC No. 2711. However, the said case was
withdrawn ex-parte.
The petitioner prays that the custody of his son Michael Kevin Pineda be given to him as his
biological father and [as] he has demonstrated his capability to support and educate him.
On May 6, 2002, the respondents filed their Comment, in compliance with the May 2, 2002
Resolution of this Court.
In their Comment, the respondent Loreta P. Miguel denies the allegation of the petitioner that he
was the one who brought their child to the Philippines and stated that she was the one who
brought him here pursuant to their agreement.
Respondent Loreta P. Miguel likewise denies petitioners allegation that respondents Maricel P.
Miguel and Francisca P. Miguel were the ones who took the child from the petitioner or the
latters parents. She averred that she was the one who took Michael Kevin Pineda from the
petitioner when she returned to the Philippines and that the latter readily agreed and consented.
Respondent Loreta P. Miguel alleges that sometime in October 2001, the petitioner was
deported from Japan under the assumed name of Renato Juanzon when he was found to have
violated or committed an infraction of the laws of Japan. She further stated that since the time
the petitioner arrived in the Philippines, he has not been gainfully employed. The custody of the
child, according to respondent Loreta P. Miguel was entrusted to petitioners parents while they
were both working in Japan. She added that even before the custody of the child was given to
the petitioners parents, she has already been living separately from the petitioner in Japan
because the latter was allegedly maintaining an illicit affair with another woman until his
deportation.
She likewise stated in her Comment that her marriage to a Japanese national is for the purpose
of availing of the privileges of staying temporarily in Japan to pursue her work so she could be
able to send money regularly to her son in the Philippines. She further stated that she has no
intention of staying permanently in Japan as she has been returning to the Philippines every six
(6) months or as often as she could.
Respondent Loreta P. Miguel prays that the custody of her minor child be given to her and
invokes Article 213, Paragraph 2 of the Family Code and Article 363 of the Civil Code of the
Philippines.
Ruling of the Court of Appeals
Applying Article 213 (paragraph 2) of the Family Code, the CA awarded the custody of
Michael Kevin Pineda Miguel to his mother, Respondent Loreta P. Miguel. While acknowledging
that petitioner truly loved and cared for his son and considering the trouble and expense he had
spent in instituting the legal action for custody, it nevertheless found no compelling reason to
separate the minor from his mother. Petitioner, however, was granted visitorial rights.
Hence, this Petition.[6]
Issue
In his Memorandum, petitioner formulated the ultimate issue as follows: x x x
[w]hether or not [he], as the natural father, may be denied the custody and parental care of his
own child in the absence of the mother who is away.[7]
The Courts Ruling
The Petition has no merit. However, the assailed Decision should be modified in regard to
its erroneous application of Section 6 of Rule 99 of the Rules of Court.
Sole Issue
Who Should Have Custody of the Child?
Petitioner concedes that Respondent Loreta has preferential right over their minor child.
He insists, however, that custody should be awarded to him whenever she leaves for Japan and
during the period that she stays there. In other words, he wants joint custody over the minor,
such that the mother would have custody when she is in the country. But when she is abroad, he
-- as the biological father -- should have custody.
According to petitioner, Loreta is not always in the country. When she is abroad, she
cannot take care of their child. The undeniable fact, he adds, is that she lives most of the time in
Japan, as evidenced by her Special Power of Attorney dated May 28, 2001, [8] granting to her
sister temporary custody over the minor.
At present, however, the child is already with his mother in Japan, where he is
studying,[9] thus rendering petitioners argument moot. While the Petition for Habeas Corpus was
pending before the CA, petitioner filed on July 30, 2002, an Urgent Motion for a Hold Departure
Order,[10] alleging therein that respondents were preparing the travel papers of the minor so the
child could join his mother and her Japanese husband. The CA denied the Motion for lack of
merit.[11]
Having been born outside a valid marriage, the minor is deemed an illegitimate child of
petitioner and Respondent Loreta. Article 176 of the Family Code of the Philippines [12] explicitly
provides that illegitimate children shall use the surname and shall be under the parental authority
of their mother, and shall be entitled to support in conformity with this Code. This is the rule
regardless of whether the father admits paternity.[13]
Previously, under the provisions of the Civil Code, illegitimate children were generally
classified into two groups: (1) natural, whether actual or by legal fiction; and (2) spurious,
whether incestuous, adulterous or illicit.[14] A natural child is one born outside a lawful wedlock of
parents who, at the time of conception of the child, were not disqualified by any impediment to
marry each other.[15] On the other hand, a spurious child is one born of parents who, at the time
of conception, were disqualified to marry each other on account of certain legal impediments.[16]
Parental authority over recognized natural children who were under the age of majority
was vested in the father or the mother recognizing them.[17] If both acknowledge the child,
authority was to be exercised by the one to whom it was awarded by the courts; if it was
awarded to both, the rule as to legitimate children applied. In other words, in the latter case,
parental authority resided jointly in the father and the mother.[18]
The fine distinctions among the various types of illegitimate children have been eliminated
in the Family Code.[19] Now, there are only two classes of children -- legitimate (and those who,
like the legally adopted, have the rights of legitimate children) and illegitimate. All children
conceived and born outside a valid marriage are illegitimate, unless the law itself gives them
legitimate status.[20]
Article 54 of the Code provides these exceptions: Children conceived or born before the
judgment of annulment or absolute nullity of the marriage under Article 36 has become final and
executory shall be considered legitimate. Children conceived or born of the subsequent marriage
under Article 53 shall likewise be legitimate.
Under Article 176 of the Family Code, all illegitimate children are generally placed under
one category, without any distinction between natural and spurious.[21] The concept of natural
child is important only for purposes of legitimation.[22] Without the subsequent marriage, a natural
child remains an illegitimate child.
Obviously, Michael is a natural (illegitimate, under the Family Code) child, as there is
nothing in the records showing that his parents were suffering from a legal impediment to marry
at the time of his birth. Both acknowledge that Michael is their son. As earlier explained and
pursuant to Article 176, parental authority over him resides in his mother, Respondent Loreta,
notwithstanding his fathers recognition of him.
David v. Court of Appeals[23] held that the recognition of an illegitimate child by the father
could be a ground for ordering the latter to give support to, but not custody of, the child. The law
explicitly confers to the mother sole parental authority over an illegitimate child; it follows that
only if she defaults can the father assume custody and authority over the minor. Of course, the
putative father may adopt his own illegitimate child; [24] in such a case, the child shall be
considered a legitimate child of the adoptive parent.[25]
There is thus no question that Respondent Loreta, being the mother of and having sole
parental authority over the minor, is entitled to have custody of him. [26] She has the right to keep
him in her company.[27] She cannot be deprived of that right,[28] and she may not even renounce
or transfer it except in the cases authorized by law.[29]
 Not to be ignored in Article 213 of the Family Code is the caveat that, generally, no child
under seven years of age shall be separated from the mother, except when the court finds cause
to order otherwise.

Only the most compelling of reasons, such as the mothers unfitness to exercise sole
parental authority, shall justify her deprivation of parental authority and the award of custody to
someone else.[30] In the past, the following grounds have been considered ample justification to
deprive a mother of custody and parental authority: neglect or abandonment, [31]unemployment,
immorality,[32] habitual drunkenness, drug addiction, maltreatment of the child, insanity, and
affliction with a communicable disease.

Bearing in mind the welfare and the best interest of the minor as the controlling
factor,[33] we hold that the CA did not err in awarding care, custody, and control of the child to
Respondent Loreta. There is no showing at all that she is unfit to take charge of him.

We likewise affirm the visitorial right granted by the CA to petitioner. In Silva v. Court of
Appeals,[34] the Court sustained the visitorial right of an illegitimate father over his children in
view of the constitutionally protected inherent and natural right of parents over their
children.[35] Even when the parents are estranged and their affection for each other is lost, their
attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts
allow this affinity to suffer, absent any real, grave or imminent threat to the well-being of the
child.

However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This
provision contemplates a situation in which the parents of the minor are married to each other,
but are separated either by virtue of a decree of legal separation or because they are living
separately de facto. In the present case, it has been established that petitioner and Respondent
Loreta were never married. Hence, that portion of the CA Decision allowing the child to choose
which parent to live with is deleted, but without disregarding the obligation of petitioner to
support the child.

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED with
the MODIFICATION that the disposition allowing the child, upon reaching ten (10) years of age,
to choose which parent to live with is DELETED for lack of legal basis. Costs against petitioner.
G.R. No. L-20089 December 26, 1964 On August 23, 1955 defendant failed to appear before court. Instead, on the following day his
counsel filed a motion to defer for two weeks the resolution on defendants petition for relief. The
counsel stated that he would confer with defendant in Cagayan de Oro City the latter's
BEATRIZ P. WASSMER, plaintiff-appellee,
residence on the possibility of an amicable element. The court granted two weeks counted
vs.
from August 25, 1955.
FRANCISCO X. VELEZ, defendant-appellant.

Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on
Jalandoni & Jamir for defendant-appellant.
September 8, 1955 but that defendant and his counsel had failed to appear.
Samson S. Alcantara for plaintiff-appellee.

BENGZON, J.P., J.:
The facts that culminated in this case started with dreams and hopes, followed by appropriate
planning and serious endeavors, but terminated in frustration and, what is worse, complete
public humiliation.
Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to
get married and set September 4, 1954 as the big day. On September 2, 1954 Velez left this
note for his bride-to-be:
Dear Bet
Will have to postpone wedding My mother opposes it. Am leaving on the
Convair today.
Please do not ask too many people about the reason why That would
only create a scandal.
Paquing
But the next day, September 3, he sent her the following telegram:
NOTHING CHANGED REST ASSURED RETURNING VERY SOON
APOLOGIZE MAMA PAPA LOVE .
PAKING
Thereafter Velez did not appear nor was he heard from again.
Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff
adduced evidence before the clerk of court as commissioner, and on April 29, 1955, judgment
was rendered ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.00 as
moral and exemplary damages; P2,500.00 as attorney's fees; and the costs.
On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings
and motion for new trial and reconsideration." Plaintiff moved to strike it cut. But the court, on
August 2, 1955, ordered the parties and their attorneys to appear before it on August 23, 1955
"to explore at this stage of the proceedings the possibility of arriving at an amicable settlement."
It added that should any of them fail to appear "the petition for relief and the opposition thereto
will be deemed submitted for resolution."
Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling
the parties and their attorneys to appear on July 13, 1956. This time. however, defendant's
counsel informed the court that chances of settling the case amicably were nil.
On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant
has appealed to this Court. In his petition of June 21, 1955 in the court a quo defendant alleged
excusable negligence as ground to set aside the judgment by default. Specifically, it was stated
that defendant filed no answer in the belief that an amicable settlement was being negotiated.
A petition for relief from judgment on grounds of fraud, accident, mistake or excusable
negligence, must be duly supported by an affidavit of merits stating facts constituting a valid
defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's affidavit of merits attached to his petition
of June 21, 1955 stated: "That he has a good and valid defense against plaintiff's cause of
action, his failure to marry the plaintiff as scheduled having been due to fortuitous event and/or
circumstances beyond his control." An affidavit of merits like this stating mere conclusions or
opinions instead of facts is not valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani
vs. P. Tarrachand Bros., L-15800, December 29, 1960.)
Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a
mere surplusage, because the judgment sought to be set aside was null and void, it having been
based on evidence adduced before the clerk of court. In Province of Pangasinan vs. Palisoc, L-
16519, October 30, 1962, this Court pointed out that the procedure of designating the clerk of
court as commissioner to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules
of Court. Now as to defendant's consent to said procedure, the same did not have to be
obtained for he was declared in default and thus had no standing in court (Velez vs. Ramas, 40
Phil. 787; Alano vs. Court of First Instance, L-14557, October 30, 1959).
In support of his "motion for new trial and reconsideration," defendant asserts that the judgment
is contrary to law. The reason given is that "there is no provision of the Civil Code authorizing"
an action for breach of promise to marry. Indeed, our ruling in Hermosisima vs. Court of
Appeals (L-14628, Sept. 30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30,
1960), is that "mere breach of a promise to marry" is not an actionable wrong. We pointed out
that Congress deliberately eliminated from the draft of the new Civil Code the provisions that
would have it so.
It must not be overlooked, however, that the extent to which acts not contrary to law may be
perpetrated with impunity, is not limitless for Article 21 of said Code provides that "any person
who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage."
The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to
contract marriage, which was subsequently issued (Exhs. A, A-1). Their wedding was set for
September 4, 1954. Invitations were printed and distributed to relatives, friends and
acquaintances (Tsn., 5; Exh. C). The bride-to-be's trousseau, party drsrses and other apparel for
the important occasion were purchased (Tsn., 7-8). Dresses for the maid of honor and the flower
girl were prepared. A matrimonial bed, with accessories, was bought. Bridal showers were given
and gifts received (Tsn., 6; Exh. E). And then, with but two days before the wedding, defendant,
who was then 28 years old,: simply left a note for plaintiff stating: "Will have to postpone
wedding My mother opposes it ... " He enplaned to his home city in Mindanao, and the next
day, the day before the wedding, he wired plaintiff: "Nothing changed rest assured returning
soon." But he never returned and was never heard from again.

Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise
to marry is not an actionable wrong. But to formally set a wedding and go through all the above-
described preparation and publicity, only to walk out of it when the matrimony is about to be
solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for
which defendant must be held answerable in damages in accordance with Article 21 aforesaid.

Defendant urges in his afore-stated petition that the damages awarded were excessive. No
question is raised as to the award of actual damages. What defendant would really assert
hereunder is that the award of moral and exemplary damages, in the amount of P25,000.00,
should be totally eliminated.

Per express provision of Article 2219 (10) of the New Civil Code, moral damages are
recoverable in the cases mentioned in Article 21 of said Code. As to exemplary damages,
defendant contends that the same could not be adjudged against him because under Article
2232 of the New Civil Code the condition precedent is that "the defendant acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner." The argument is devoid of merit as
under the above-narrated circumstances of this case defendant clearly acted in a "wanton ... ,
reckless [and] oppressive manner." This Court's opinion, however, is that considering the
particular circumstances of this case, P15,000.00 as moral and exemplary damages is deemed
to be a reasonable award.

PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is
hereby affirmed, with costs.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal, and
Zaldivar, JJ.,
G.R. No. 149498 May 20, 2004 The Civil Register of Bacoor, Cavite and the National Statistics Office are ordered to
make proper entries into the records of the afore-named parties pursuant to this
judgment of the Court.
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
LOLITA QUINTERO-HAMANO, respondent. SO ORDERED.4

DECISION In declaring the nullity of the marriage on the ground of Toshios psychological incapacity, the
trial court held that:
CORONA, J.:
It is clear from the records of the case that respondent spouses failed to fulfill his
obligations as husband of the petitioner and father to his daughter. Respondent
Before us is a petition for review of the decision1 dated August 20, 2001 of the Court of
remained irresponsible and unconcerned over the needs and welfare of his family.
Appeals2 affirming the decision3 dated August 28, 1997 of the Regional Trial Court of Rizal,
Such indifference, to the mind of the Court, is a clear manifestation of insensitivity and
Branch 72, declaring as null and void the marriage contracted between herein respondent Lolita
lack of respect for his wife and child which characterizes a very immature person.
M. Quintero-Hamano and her husband Toshio Hamano.
Certainly, such behavior could be traced to respondents mental incapacity and
disability of entering into marital life.5
On June 17, 1996, respondent Lolita Quintero-Hamano filed a complaint for declaration of nullity
of her marriage to her husband Toshio Hamano, a Japanese national, on the ground of
The Office of the Solicitor General, representing herein petitioner Republic of the Philippines,
psychological incapacity.
appealed to the Court of Appeals but the same was denied in a decision dated August 28, 1997,
the dispositive portion of which read:
Respondent alleged that in October 1986, she and Toshio started a common-law relationship in
Japan. They later lived in the Philippines for a month. Thereafter, Toshio went back to Japan
WHEREFORE, in view of the foregoing, and pursuant to applicable law and
and stayed there for half of 1987. On November 16, 1987, she gave birth to their child.
jurisprudence on the matter and evidence on hand, judgment is hereby rendered
denying the instant appeal. The decision of the court a quo is AFFIRMED. No costs.
On January 14, 1988, she and Toshio were married by Judge Isauro M. Balderia of the
Municipal Trial Court of Bacoor, Cavite. Unknown to respondent, Toshio was psychologically
SO ORDERED.6
incapacitated to assume his marital responsibilities, which incapacity became manifest only after
the marriage. One month after their marriage, Toshio returned to Japan and promised to return
by Christmas to celebrate the holidays with his family. After sending money to respondent for The appellate court found that Toshio left respondent and their daughter a month after the
two months, Toshio stopped giving financial support. She wrote him several times but he never celebration of the marriage, and returned to Japan with the promise to support his family and
responded. Sometime in 1991, respondent learned from her friends that Toshio visited the take steps to make them Japanese citizens. But except for two months, he never sent any
Philippines but he did not bother to see her and their child. support to nor communicated with them despite the letters respondent sent. He even visited the
Philippines but he did not bother to see them. Respondent, on the other hand, exerted all efforts
to contact Toshio, to no avail.
The summons issued to Toshio remained unserved because he was no longer residing at his
given address. Consequently, on July 8, 1996, respondent filed an ex parte motion for leave to
effect service of summons by publication. The trial court granted the motion on July 12, 1996. In The appellate court thus concluded that respondent was psychologically incapacitated to
August 1996, the summons, accompanied by a copy of the petition, was published in a perform his marital obligations to his family, and to "observe mutual love, respect and fidelity,
newspaper of general circulation giving Toshio 15 days to file his answer. Because Toshio failed and render mutual help and support" pursuant to Article 68 of the Family Code of the
to file a responsive pleading after the lapse of 60 days from publication, respondent filed a Philippines. The appellate court rhetorically asked:
motion dated November 5, 1996 to refer the case to the prosecutor for investigation. The trial
court granted the motion on November 7, 1996.
But what is there to preserve when the other spouse is an unwilling party to the
cohesion and creation of a family as a social inviolable institution? Why should
On November 20, 1996, prosecutor Rolando I. Gonzales filed a report finding that no collusion petitioner be made to suffer in a marriage where the other spouse is not around and
existed between the parties. He prayed that the Office of the Provincial Prosecutor be allowed to worse, left them without even helping them cope up with family life and assist in the
intervene to ensure that the evidence submitted was not fabricated. On February 13, 1997, the upbringing of their daughter as required under Articles 68 to 71 of the Family Code?7
trial court granted respondents motion to present her evidence ex parte. She then testified on
how Toshio abandoned his family. She thereafter offered documentary evidence to support her
The appellate court emphasized that this case could not be equated with Republic vs. Court of
testimony.
Appeals and Molina8and Santos vs. Court of Appeals.9 In those cases, the spouses were
Filipinos while this case involved a "mixed marriage," the husband being a Japanese national.
On August 28, 1997, the trial court rendered a decision, the dispositive portion of which read:
Hence, this appeal by petitioner Republic based on this lone assignment of error:
WHEREFORE, premises considered, the marriage between petitioner Lolita M.
Quintero-Hamano and Toshio Hamano, is hereby declared NULL and VOID.
I
 The Court of Appeals erred in holding that respondent was able to prove the
psychological incapacity of Toshio Hamano to perform his marital obligations, despite
respondents failure to comply with the guidelines laid down in the Molina case.10
According to petitioner, mere abandonment by Toshio of his family and his insensitivity to them
did not automatically constitute psychological incapacity. His behavior merely indicated simple
inadequacy in the personality of a spouse falling short of reasonable expectations. Respondent
failed to prove any severe and incurable personality disorder on the part of Toshio, in
accordance with the guidelines set in Molina.
The Office of the Public Attorney, representing respondent, reiterated the ruling of the
courts a quo and sought the denial of the instant petition.
We rule in favor of petitioner.
The Court is mindful of the policy of the 1987 Constitution to protect and strengthen the family as
the basic autonomous social institution and marriage as the foundation of the family. 11 Thus, any
doubt should be resolved in favor of the validity of the marriage. 12
Respondent seeks to annul her marriage with Toshio on the ground of psychological incapacity.
Article 36 of the Family Code of the Philippines provides that:
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.
In Molina, we came up with the following guidelines in the interpretation and application of Article
36 for the guidance of the bench and the bar:
(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any
doubt should be resolved in favor of the existence and continuation of the marriage
and against its dissolution and nullity. This is rooted in the fact that both our
Constitution and our laws cherish the validity of marriage and unity of the family. x x x
(2) The root cause of the psychological incapacity must be: (a) medically or
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by
experts and (d) clearly explained in the decision.Article 36 of the Family Code
requires that the incapacity must be psychological - not physical, although its
manifestations and/or symptoms may be physical. The evidence must convince the
court that the parties, or one of them, was mentally or psychically ill to such an extent
that the person could not have known the obligations he was assuming, or knowing
them, could not have given valid assumption thereof. Although no example of such
incapacity need be given here so as not to limit the application of the provision under
the principle of ejusdem generis (Salita vs. Magtolis, 233 SCRA 100, June 13, 1994),
nevertheless such root cause must be identified as a psychological illness and its
incapacitating nature fully explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at "the time of the celebration" of the
marriage. The evidence must show that the illness was existing when the parties
exchanged their "I dos." The manifestation of the illness need not be perceivable at
such time, but the illness itself must have attached at such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically permanent or
incurable. Such incurability may be absolute or even relative only in regard to the
other spouse, not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the exercise of a
profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may not be
psychologically capacitated to procreate, bear and raise his/her own children as an
essential obligation of marriage.
(5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. Thus, "mild characteriological
peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as
root causes. The illness must be shown as downright incapacity or inability, not a
refusal, neglect or difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person from really accepting and
thereby complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to 71
of the Family Code as regards the husband and wife as well as Articles 220, 221 and
225 of the same Code in regard to parents and their children. Such non-complied
marital obligation(s) must also be stated in the petition, proven by evidence and
included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not controlling or decisive, should be given great
respect by our courts. x x x
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall be handed down unless
the Solicitor General issues a certification, which will be quoted in the decision, briefly
stating therein his reasons for his agreement or opposition, as the case may be, to the
petition. The Solicitor-General, along with the prosecuting attorney, shall submit to the
court such certification within fifteen (15) days from the date the case is deemed
submitted for resolution of the court. The Solicitor-General shall discharge the
equivalent function of the defensor vinculi contemplated under Canon
1095.13 (emphasis supplied)
The guidelines incorporate the three basic requirements earlier mandated by the Court
in Santos: "psychological incapacity must be characterized by (a) gravity (b) juridical
antecedence and (c) incurability."14 The foregoing guidelines do not require that a physician
examine the person to be declared psychologically incapacitated. In fact, the root cause may be
"medically or clinically identified." What is important is the presence of evidence that can
adequately establish the partys psychological condition. For indeed, if the totality of evidence
presented is enough to sustain a finding of psychological incapacity, then actual medical
examination of the person concerned need not be resorted to. 15
We now proceed to determine whether respondent successfully proved Toshios psychological
incapacity to fulfill his marital responsibilities.
Petitioner showed that Toshio failed to meet his duty to live with, care for and support his family.
He abandoned them a month after his marriage to respondent. Respondent sent him several
letters but he never replied. He made a trip to the Philippines but did not care at all to see his
family.
We find that the totality of evidence presented fell short of proving that Toshio was
psychologically incapacitated to assume his marital responsibilities. Toshios act of
abandonment was doubtlessly irresponsible but it was never alleged nor proven to be due to
some kind of psychological illness. After respondent testified on how Toshio abandoned his
family, no other evidence was presented showing that his behavior was caused by a
psychological disorder. Although, as a rule, there was no need for an actual medical
examination, it would have greatly helped respondents case had she presented evidence that
medically or clinically identified his illness. This could have been done through an expert
witness. This respondent did not do.

We must remember that abandonment is also a ground for legal separation. 16 There was no
showing that the case at bar was not just an instance of abandonment in the context of legal
separation. We cannot presume psychological defect from the mere fact that Toshio abandoned
his family immediately after the celebration of the marriage. As we ruled in Molina, it is not
enough to prove that a spouse failed to meet his responsibility and duty as a married person; it is
essential that he must be shown to be incapable of doing so due to some psychological, not
physical, illness.17 There was no proof of a natal or supervening disabling factor in the person,
an adverse integral element in the personality structure that effectively incapacitates a person
from accepting and complying with the obligations essential to marriage. 18

According to the appellate court, the requirements in Molina and Santos do not apply here
because the present case involves a "mixed marriage," the husband being a Japanese national.
We disagree. In proving psychological incapacity, we find no distinction between an alien spouse
and a Filipino spouse. We cannot be lenient in the application of the rules merely because the
spouse alleged to be psychologically incapacitated happens to be a foreign national. The
medical and clinical rules to determine psychological incapacity were formulated on the basis of
studies of human behavior in general. Hence, the norms used for determining psychological
incapacity should apply to any person regardless of nationality.

In Pesca vs. Pesca,19 this Court declared that marriage is an inviolable social institution that the
State cherishes and protects. While we commiserate with respondent, terminating her marriage
to her husband may not necessarily be the fitting denouement.

WHEREFORE, the petition for review is hereby GRANTED. The decision dated August 28, 1997
of the Court of Appeals is hereby REVERSED and SET ASIDE.

SO ORDERED.
.R. No. L-27930 November 26, 1970
AURORA A. ANAYA, plaintiff-appellant,
vs.
FERNANDO O. PALAROAN, defendant-appellee.
Isabelo V. Castro for plaintiff-appellant.
Arturo A. Romero for defendant-appellee.
REYES, J.B.L., J.:
Appeal from an order of dismissal, issued motu proprio by the Juvenile & Domestic Relations
Court, Manila, of a complaint for annulment of marriage, docketed therein as Civil Case No. E-
00431, entitled "Aurora A. Anaya, plaintiff vs. Fernando O. Palaroan, defendant."
The complaint in said Civil Case No. E-00431 alleged, inter alia, that plaintiff Aurora and
defendant Fernando were married on 4 December 1953; that defendant Fernando filed an action
for annulment of the marriage on 7 January 1954 on the ground that his consent was obtained
through force and intimidation, which action was docketed in the Court of First Instance of
Manila as Civil Case No. 21589; that judgment was rendered therein on 23 September 1959
dismissing the complaint of Fernando, upholding the validity of the marriage and granting
Aurora's counterclaim; that (per paragraph IV) while the amount of the counterclaim was being
negotiated "to settle the judgment," Fernando had divulged to Aurora that several months prior
to their marriage he had pre-marital relationship with a close relative of his; and that "the non-
divulgement to her of the aforementioned pre-marital secret on the part of defendant that
definitely wrecked their marriage, which apparently doomed to fail even before it had hardly
commenced ... frank disclosure of which, certitude precisely precluded her, the Plaintiff herein
from going thru the marriage that was solemnized between them constituted 'FRAUD', in
obtaining her consent, within the contemplation of No. 4 of Article 85 of the Civil Code" (sic)
(Record on Appeal, page 3). She prayed for the annulment of the marriage and for moral
damages.
Defendant Fernando, in his answer, denied the allegation in paragraph IV of the complaint and
denied having had pre-marital relationship with a close relative; he averred that under no
circumstance would he live with Aurora, as he had escaped from her and from her relatives the
day following their marriage on 4 December 1953; that he denied having committed any fraud
against her. He set up the defenses of lack of cause of action and estoppel, for her having
prayed in Civil Case No. 21589 for the validity of the marriage and her having enjoyed the
support that had been granted her. He counterclaimed for damages for the malicious filing of the
suit. Defendant Fernando did not pray for the dismissal of the complaint but for its dismissal
"with respect to the alleged moral damages."
Plaintiff Aurora filed a reply with answer to the counterclaim, wherein she alleged:
(1) that prior to their marriage on 4 December 1953, he paid court to her,
and pretended to shower her with love and affection not because he really
felt so but because she merely happened to be the first girl available to
marry so he could evade marrying the close relative of his whose immediate
members of her family were threatening him to force him to marry her (the
close relative);
(2) that since he contracted the marriage for the reason intimated by him,
and not because he loved her, he secretly intended from the very beginning
not to perform the marital duties and obligations appurtenant thereto, and
furthermore, he covertly made up his mind not to live with her;
(3) that the foregoing clandestine intentions intimated by him were
prematurely concretized for him, when in order to placate and appease the
immediate members of the family of the first girl (referent being the close
relative) and to convince them of his intention not to live with plaintiff, carried
on a courtship with a third girl with whom, after gaining the latter's love
cohabited and had several children during the whole range of nine years
that Civil Case No. 21589, had been litigated between them (parties);
(Record on Appeal, pages 10-11)
Failing in its attempt to have the parties reconciled, the court set the case for trial on 26 August
1966 but it was postponed. Thereafter, while reviewing the expendiente, the court realized that
Aurora's allegation of the fraud was legally insufficient to invalidate her marriage, and, on the
authority of Brown vs. Yambao, 102 Phil. 168, holding:
It is true that the wife has not interposed prescription as a defense.
Nevertheless, the courts can take cognizance thereof, because actions
seeking a decree of legal separation, or annulment of marriage, involve
public interest, and it is the policy of our law that no such decree be issued if
any legal obstacles thereto appear upon the record.
the court a quo required plaintiff to show cause why her complaint should
not be dismissed. Plaintiff Aurora submitted a memorandum in compliance
therewith, but the court found it inadequate and thereby issued an order,
dated 7 October 1966, for the dismissal of the complaint; it also denied
reconsideration.
The main issue is whether or not the non-disclosure to a wife by her husband of his pre-marital
relationship with another woman is a ground for annulment of marriage.
We must agree with the lower court that it is not. For fraud as a vice of consent in marriage,
which may be a cause for its annulment, comes under Article 85, No. 4, of the Civil Code, which
provides:
ART. 85. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
xxx xxx xxx
(4) That the consent of either party was obtained by fraud, unless such party
afterwards, with full knowledge of the facts constituting the fraud, freely
cohabited with the other as her husband or his wife, as the case may be;
This fraud, as vice of consent, is limited exclusively by law to those kinds or
species of fraud enumerated in Article 86, as follows:
ART. 86. Any of the following circumstances shall constitute fraud referred
to in number 4 of the preceding article:
 (1) Misrepresentation as to the identity of one of the of action in the reply. Otherwise, the series of pleadings of the parties could become
contracting parties; interminable.

(2) Non-disclosure of the previous conviction of the
other party of a crime involving moral turpitude, and the
penalty imposed was imprisonment for two years or
more;
(3) Concealment by the wife of the fact that at the time
of the marriage, she was pregnant by a man other than
her husband.
On the merits of this second fraud charge, it is enough to point out that any secret intention on
the husband's part not to perform his marital duties must have been discovered by the wife soon
after the marriage: hence her action for annulment based on that fraud should have been
brought within four years after the marriage. Since appellant's wedding was celebrated in
December of 1953, and this ground was only pleaded in 1966, it must be declared already
barred.
FOR THE FOREGOING REASONS, the appealed order is hereby affirmed. No costs.

No other misrepresentation or deceit as to character, rank, fortune or Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ.,
chastity shall constitute such fraud as will give grounds for action for the concur.
annulment of marriage.
Dizon and Makasiar, JJ., are on leave.
The intention of Congress to confine the circumstances that can constitute fraud as ground for
annulment of marriage to the foregoing three cases may be deduced from the fact that, of all the
causes of nullity enumerated in Article 85, fraud is the only one given special treatment in a
subsequent article within the chapter on void and voidable marriages. If its intention were
otherwise, Congress would have stopped at Article 85, for, anyway, fraud in general is already
mentioned therein as a cause for annulment. But Article 86 was also enacted, expressly and
specifically dealing with "fraud referred to in number 4 of the preceding article," and proceeds by
enumerating the specific frauds (misrepresentation as to identity, non-disclosure of a previous
conviction, and concealment of pregnancy), making it clear that Congress intended to exclude all
other frauds or deceits. To stress further such intention, the enumeration of the specific frauds
was followed by the interdiction: "No other misrepresentation or deceit as to character, rank,
fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of
marriage."

Non-disclosure of a husband's pre-marital relationship with another woman is not one of the
enumerated circumstances that would constitute a ground for annulment; and it is further
excluded by the last paragraph of the article, providing that "no other misrepresentation or deceit
as to ... chastity" shall give ground for an action to annul a marriage. While a woman may detest
such non-disclosure of premarital lewdness or feel having been thereby cheated into giving her
consent to the marriage, nevertheless the law does not assuage her grief after her consent was
solemnly given, for upon marriage she entered into an institution in which society, and not
herself alone, is interested. The lawmaker's intent being plain, the Court's duty is to give effect to
the same, whether it agrees with the rule or not.

But plaintiff-appellant Anaya emphasizes that not only has she alleged "non-divulgement" (the
word chosen by her) of the pre-marital relationship of her husband with another woman as her
cause of action, but that she has, likewise, alleged in her reply that defendant Fernando paid
court to her without any intention of complying with his marital duties and obligations and
covertly made up his mind not to live with her. Plaintiff-appellant contends that the lower court
erred in ignoring these allegations in her reply.

This second set of averments which were made in the reply (pretended love and absence of
intention to perform duties of consortium) is an entirely new and additional "cause of action."
According to the plaintiff herself, the second set of allegations is "apart, distinct and separate
from that earlier averred in the Complaint ..." (Record on Appeal, page 76). Said allegations
were, therefore, improperly alleged in the reply, because if in a reply a party-plaintiff is not
permitted to amend or change the cause of action as set forth in his complaint (Calo vs. Roldan,
76 Phil. 445), there is more reason not to allow such party to allege a new and additional cause