G.R. No. 174689 October 22, 2007 During trial, petitioner testified for himself. He also presented Dr.
ing trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He created them male and
female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming
from inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said.
She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open.
Out came two human beings; one was a male and the other was a female. Amihan named
the man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas
and Maganda)
When is a man a man and when is a woman a woman? In particular, does the law
recognize the changes made by a physician using scalpel, drugs and counseling with regard
to a person’s sex? May a person successfully petition for a change of name and sex
appearing in the birth certificate to reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto DantesSilverio filed a petition for the
change of his first name and sex in his birth certificate in the Regional Trial Court of Manila,
Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of
Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila to the spouses
MelecioPetinesSilverio and Anita Aquino Dantes on April 4, 1962. His name was registered
as "Rommel Jacinto DantesSilverio" in his certificate of live birth (birth certificate). His sex
was registered as "male."
He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks
and acts as a female" and that he had always identified himself with girls since childhood.1
Feeling trapped in a man’s body, he consulted several doctors in the United States. He
underwent psychological examination, hormone treatment and breast augmentation. His
attempts to transform himself to a "woman" culminated on January 27, 2001 when he
underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined
by Dr. MarcelinoReysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines,
who issued a medical certificate attesting that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in fact engaged to be married. He then
sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely,"
and his sex from "male" to "female."
An order setting the case for initial hearing was published in the People’s Journal Tonight, a
newspaper of general circulation in Metro Manila, for three consecutive weeks.3 Copies of
the order were sent to the Office of the Solicitor General (OSG) and the civil registrar of
Manila.
On the scheduled initial hearing, jurisdictional requirements were established. No opposition
to the petition was made.
American fiancé, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant
portions read:
Petitioner filed the present petition not to evade any law or judgment or any infraction
thereof or for any unlawful motive but solely for the purpose of making his birth records
compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance
with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has
always felt, thought and acted like a woman, now possesses the physique of a female.
Petitioner’s misfortune to be trapped in a man’s body is not his own doing and should not be
in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or
the community in granting the petition. On the contrary, granting the petition would bring the
much-awaited happiness on the part of the petitioner and her [fiancé] and the realization of
their dreams.
Finally, no evidence was presented to show any cause or ground to deny the present
petition despite due notice and publication thereof. Even the State, through the [OSG] has
not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioner’s first name from "Rommel Jacinto" to MELY and petitioner’s
gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a
petition for certiorari in the Court of Appeals.6 It alleged that there is no law allowing the
change of entries in the birth certificate by reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic.
It ruled that the trial court’s decision lacked legal basis. There is no law allowing the change
of either name or sex in the certificate of birth on the ground of sex reassignment through
surgery. Thus, the Court of Appeals granted the Republic’s petition, set aside the decision of
the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for
reconsideration but it was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in his birth certificate is
allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court
and RA 9048.10
The petition lacks merit.
A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for change of name
and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or any infraction
thereof or for any unlawful motive but solely for the purpose of making his birth records
compatible with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a female, he became
entitled to the civil registry changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for purposes of
identification.11 A change of name is a privilege, not a right.12 Petitions for change of name
are controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular,
Section 1 of RA 9048 provides:
SECTION 1.Authority to Correct Clerical or Typographical Error and Change of First Name
or Nickname. – No entry in a civil register shall be changed or corrected without a judicial
order, except for clerical or typographical errors and change of first name or nickname which
can be corrected or changed by the concerned city or municipal civil registrar or consul
general in accordance with the provisions of this Act and its implementing rules and
regulations.
RA 9048 now governs the change of first name.14 It vests the power and authority to
entertain petitions for change of first name to the city or municipal civil registrar or consul
general concerned. Under the law, therefore, jurisdiction over applications for change of first
name is now primarily lodged with the aforementioned administrative officers. The intent and
effect of the law is to exclude the change of first name from the coverage of Rules 103
(Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the
Rules of Court, until and unless an administrative petition for change of name is first filed
and subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and
procedure. In sum, the remedy and the proceedings regulating change of first name are
primarily administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first name may be allowed:
SECTION 4.Grounds for Change of First Name or Nickname. – The petition for change of
first name or nickname may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously used by the
petitioner and he has been publicly known by that first name or nickname in the community;
or
(3) The change will avoid confusion.
Petitioner’s basis in praying for the change of his first name was his sex reassignment. He
intended to make his first name compatible with the sex he thought he transformed himself
into through surgery. However, a change of name does not alter one’s legal capacity or civil
status.18 RA 9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioner’s first name for his
declared purpose may only create grave complications in the civil registry and the public
interest.
Before a person can legally change his given name, he must present proper or reasonable
cause or any compelling reason justifying such change.19 In addition, he must show that he
will be prejudiced by the use of his true and official name.20 In this case, he failed to show,
or even allege, any prejudice that he might suffer as a result of using his true and official
name.
In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first
name was not within that court’s primary jurisdiction as the petition should have been filed
with the local civil registrar concerned, assuming it could be legally done. It was an improper
remedy because the proper remedy was administrative, that is, that provided under RA
9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil
Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since
the use of his true and official name does not prejudice him at all. For all these reasons, the
Court of Appeals correctly dismissed petitioner’s petition in so far as the change of his first
name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of
Sex Reassignment
The determination of a person’s sex appearing in his birth certificate is a legal issue and the
court must look to the statutes.21 In this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so
far as clerical or typographical errors are involved. The correction or change of such matters
can now be made through administrative proceedings and without the need for a judicial
order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the
correction of such errors.22 Rule 108 now applies only to substantial changes and
corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2.Definition of Terms. – As used in this Act, the following terms shall mean:
xxxxxxxxx
(3) "Clerical or typographical error" refers to a mistake committed in the performance of
clerical work in writing, copying, transcribing or typing an entry in the civil register that is
harmless and innocuous, such as misspelled name or misspelled place of birth or the like,
which is visible to the eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or records: Provided, however, That no
correction must involve the change of nationality, age, status or sex of the petitioner.
(emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of sex is not a mere
clerical or typographical error. It is a substantial change for which the applicable procedure
is Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the
Rules of Court are those provided in Articles 407 and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include
even those that occur after birth.25 However, no reasonable interpretation of the provision
can justify the conclusion that it covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or error from" while to
change means "to replace something with something else of the same kind or with
something that serves as a substitute."26 The birth certificate of petitioner contained no
error. All entries therein, including those corresponding to his first name and sex, were all
correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as
legitimations, acknowledgments of illegitimate children and naturalization), events (such as
births, marriages, naturalization and deaths) and judicial decrees (such as legal separations,
annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss
or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of
name). These acts, events and judicial decrees produce legal consequences that touch
upon the legal capacity, status and nationality of a person. Their effects are expressly
sanctioned by the laws. In contrast, sex reassignment is not among those acts or events
mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly
or impliedly.
"Status" refers to the circumstances affecting the legal situation (that is, the sum total of
capacities and incapacities) of a person in view of his age, nationality and his family
membership.27
The status of a person in law includes all his personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not. The comprehensive term status… include such
matters as the beginning and end of legal personality, capacity to have rights in general,
family relations, and its various aspects, such as birth, legitimation, adoption, emancipation,
marriage, divorce, and sometimes even succession.28 (emphasis supplied)
A person’s sex is an essential factor in marriage and family relations. It is a part of a
person’s legal capacity and civil status. In this connection, Article 413 of the Civil Code
provides:
ART. 413. All other matters pertaining to the registration of civil status shall be governed by
special laws.
But there is no such special law in the Philippines governing sex reassignment and its
effects. This is fatal to petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5.Registration and certification of births. – The declaration of the physician or midwife
in attendance at the birth or, in default thereof, the declaration of either parent of the
newborn child, shall be sufficient for the registration of a birth in the civil register. Such
declaration shall be exempt from documentary stamp tax and shall be sent to the local civil
registrar not later than thirty days after the birth, by the physician or midwife in attendance at
the birth or by either parent of the newborn child.
In such declaration, the person above mentioned shall certify to the following facts: (a) date
and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of
parents or, in case the father is not known, of the mother alone; (d) civil status of parents;
(e) place where the infant was born; and (f) such other data as may be required in the
regulations to be issued.
xxxxxxxxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical record of the facts as they
existed at the time of birth.29 Thus, the sex of a person is determined at birth, visually done
by the birth attendant (the physician or midwife) by examining the genitals of the infant.
Considering that there is no law legally recognizing sex reassignment, the determination of
a person’s sex made at the time of his or her birth, if not attended by error,30 is
immutable.31
When words are not defined in a statute they are to be given their common and ordinary
meaning in the absence of a contrary legislative intent. The words "sex," "male" and
"female" as used in the Civil Register Law and laws concerning the civil registry (and even
all other laws) should therefore be understood in their common and ordinary usage, there
being no legislative intent to the contrary. In this connection, sex is defined as "the sum of
peculiarities of structure and function that distinguish a male from a female"32 or "the
distinction between male and female."33 Female is "the sex that produces ova or bears
young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing
ova."35 Thus, the words "male" and "female" in everyday understanding do not include
persons who have undergone sex reassignment. Furthermore, "words that are employed in
a statute which had at the time a well-known meaning are presumed to have been used in
that sense unless the context compels to the contrary."36 Since the statutory language of
the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be
argued that the term "sex" as used then is something alterable through surgery or
something that allows a post-operative male-to-female transsexual to be included in the
category "female."
For these reasons, while petitioner may have succeeded in altering his body and
appearance through the intervention of modern surgery, no law authorizes the change of
entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his
petition for the correction or change of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the
Ground of Equity
The trial court opined that its grant of the petition was in consonance with the principles of
justice and equity. It believed that allowing the petition would cause no harm, injury or
prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal and public policy
consequences. First, even the trial court itself found that the petition was but petitioner’s first
step towards his eventual marriage to his male fiancé. However, marriage, one of the most
sacred social institutions, is a special contract of permanent union between a man and a
woman.37 One of its essential requisites is the legal capacity of the contracting parties who
must be a male and a female.38 To grant the changes sought by petitioner will substantially
reconfigure and greatly alter the laws on marriage and family relations. It will allow the union
of a man with another man who has undergone sex reassignment (a male-to-female post-
operative transsexual). Second, there are various laws which apply particularly to women
such as the provisions of the Labor Code on employment of women,39 certain felonies
under the Revised Penal Code40 and the presumption of survivorship in case of calamities
under Rule 131 of the Rules of Court,41 among others. These laws underscore the public
policy in relation to women which could be substantially affected if petitioner’s petition were
to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to
render judgment by reason of the silence, obscurity or insufficiency of the law." However, it
is not a license for courts to engage in judicial legislation. The duty of the courts is to apply
or interpret the law, not to make or amend it.
In our system of government, it is for the legislature, should it choose to do so, to determine
what guidelines should govern the recognition of the effects of sex reassignment. The need
for legislative guidelines becomes particularly important in this case where the claims
asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of first name and for
correction or change of entries in the civil registry, where they may be filed, what grounds
may be invoked, what proof must be presented and what procedures shall be observed. If
the legislature intends to confer on a person who has undergone sex reassignment the
privilege to change his name and sex to conform with his reassigned sex, it has to enact
legislation laying down the guidelines in turn governing the conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on when a person may be
recognized as having successfully changed his sex. However, this Court has no authority to
fashion a law on that matter, or on anything else. The Court cannot enact a law where no
law exists. It can only apply or interpret the written word of its co-equal branch of
government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment
and [the] realization of their dreams." No argument about that. The Court recognizes that
there are people whose preferences and orientation do not fit neatly into the commonly
recognized parameters of social convention and that, at least for them, life is indeed an
ordeal. However, the remedies petitioner seeks involve questions of public policy to be
addressed solely by the legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.
G.R. No. L-68470 October 8, 1985
ALICE REYES VAN DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court
of the National Capital Region Pasay City and RICHARD UPTON respondents.
MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set
aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P,
issued by respondent Judge, which denied her Motion to Dismiss said case, and her Motion
for Reconsideration of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines while private
respondent is a citizen of the United States; that they were married in Hongkong in 1972;
that, after the marriage, they established their residence in the Philippines; that they begot
two children born on April 4, 1973 and December 18, 1975, respectively; that the parties
were divorced in Nevada, United States, in 1982; and that petitioner has re-married also in
Nevada, this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P
of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in
Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the parties, and asking
that petitioner be ordered to render an accounting of that business, and that private
respondent be declared with right to manage the conjugal property. Petitioner moved to
dismiss the case on the ground that the cause of action is barred by previous judgment in
the divorce proceedings before the Nevada Court wherein respondent had acknowledged
that he and petitioner had "no community property" as of June 11, 1982. The Court below
denied the Motion to Dismiss in the mentioned case on the ground that the property
involved is located in the Philippines so that the Divorce Decree has no bearing in the case.
The denial is now the subject of this certiorari proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject
to appeal. certiorari and Prohibition are neither the remedies to question the propriety of an
interlocutory order of the trial Court. However, when a grave abuse of discretion was
patently committed, or the lower Court acted capriciously and whimsically, then it devolves
upon this Court in a certiorari proceeding to exercise its supervisory authority and to correct
the error committed which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition
would then lie since it would be useless and a waste of time to go ahead with the
proceedings. 2 Weconsider the petition filed in this case within the exception, and we have
given it due course.
For resolution is the effect of the foreign divorce on the parties and their alleged conjugal
property in the Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged conjugal
property because of the representation he made in the divorce proceedings before the
American Court that they had no community of property; that the Galleon Shop was not
established through conjugal funds, and that respondent's claim is barred by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot
prevail over the prohibitive laws of the Philippines and its declared national policy; that the
acts and declaration of a foreign Court cannot, especially if the same is contrary to public
policy, divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property
relations between petitioner and private respondent, after their marriage, were upon
absolute or relative community property, upon complete separation of property, or upon any
other regime. The pivotal fact in this case is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over
petitioner who appeared in person before the Court during the trial of the case. It also
obtained jurisdiction over private respondent who, giving his address as No. 381 Bush
Street, San Francisco, California, authorized his attorneys in the divorce case, Karp & Gradt
Ltd., to agree to the divorce on the ground of incompatibility in the understanding that there
were neither community property nor community obligations. 3 As explicitly stated in the
Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336 W.
Liberty, Reno, Nevada, to represent him in the divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to file an Answer, appear on my
behalf and do an things necessary and proper to represent me, without further contesting,
subject to the following:
1. That my spouse seeks a divorce on the ground of incompatibility.
2. That there is no community of property to be adjudicated by the Court.
3. 'I'hat there are no community obligations to be adjudicated by the court.
xxx xxx xxx 4
There can be no question as to the validity of that Nevada divorce in any of the States of the
United States. The decree is binding on private respondent as an American citizen. For
instance, private respondent cannot sue petitioner, as her husband, in any State of the
Union. What he is contending in this case is that the divorce is not valid and binding in this
jurisdiction, the same being contrary to local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5
only Philippine nationals are covered by the policy against absolute divorces the same being
considered contrary to our concept of public police and morality. However, aliens may
obtain divorces abroad, which may be recognized in the Philippines, provided they are valid
according to their national law. 6 In this case, the divorce in Nevada released private
respondent from the marriage from the standards of American law, under which divorce
dissolves the marriage. As stated by the Federal Supreme Court of the United States in
Atherton vs. Atherton, 45 L. Ed. 794, 799:
The purpose and effect of a decree of divorce from the bond of matrimony by a court of
competent jurisdiction are to change the existing status or domestic relation of husband and
wife, and to free them both from the bond. The marriage tie when thus severed as to one
party, ceases to bind either. A husband without a wife, or a wife without a husband, is
unknown to the law. When the law provides, in the nature of a penalty. that the guilty party
shall not marry again, that party, as well as the other, is still absolutely freed from the bond
of the former marriage.
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner.
He would have no standing to sue in the case below as petitioner's husband entitled to
exercise control over conjugal assets. As he is bound by the Decision of his own country's
Court, which validly exercised jurisdiction over him, and whose decision he does not
repudiate, he is estopped by his own representation before said Court from asserting his
right over the alleged conjugal property.
To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's obligations under
Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render support to private respondent. The
latter should not continue to be one of her heirs with possible rights to conjugal property.
She should not be discriminated against in her own country if the ends of justice are to be
served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss
the Complaint filed in Civil Case No. 1075-P of his Court.
Without costs.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.
G.R. No. 150758 February 18, 2004
VERONICO TENEBRO, petitioner
vs.
THE HONORABLE COURT OF APPEALS, respondent.
DECISION
YNARES-SANTIAGO, J.:
We are called on to decide the novel issue concerning the effect of the judicial declaration of
the nullity of a second or subsequent marriage, on the ground of psychological incapacity,
on an individual’s criminal liability for bigamy. We hold that the subsequent judicial
declaration of nullity of marriage on the ground of psychological incapacity does not retroact
to the date of the celebration of the marriage insofar as the Philippines’ penal laws are
concerned. As such, an individual who contracts a second or subsequent marriage during
the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the
subsequent declaration that the second marriage is void ab initio on the ground of
psychological incapacity.
Petitioner in this case, Veronico Tenebro, contracted marriage with private complainant
Leticia Ancajas on April 10, 1990. The two were wed by Judge Alfredo B. Perez, Jr. of the
City Trial Court of Lapu-lapu City. Tenebro and Ancajas lived together continuously and
without interruption until the latter part of 1991, when Tenebro informed Ancajas that he had
been previously married to a certain Hilda Villareyes on November 10, 1986. Tenebro
showed Ancajas a photocopy of a marriage contract between him and Villareyes. Invoking
this previous marriage, petitioner thereafter left the conjugal dwelling which he shared with
Ancajas, stating that he was going to cohabit with Villareyes.1
On January 25, 1993, petitioner contracted yet another marriage, this one with a certain
Nilda Villegas, before Judge German Lee, Jr. of the Regional Trial Court of Cebu City,
Branch 15.2 When Ancajas learned of this third marriage, she verified from Villareyes
whether the latter was indeed married to petitioner. In a handwritten letter,3Villareyes
confirmed that petitioner, Veronico Tenebro, was indeed her husband.
Ancajas thereafter filed a complaint for bigamy against petitioner.4 The Information,5 which
was docketed as Criminal Case No. 013095-L, reads:
That on the 10th day of April 1990, in the City of Lapu-lapu, Philippines, and within the
jurisdiction of this Honorable Court, the aforenamed accused, having been previously united
in lawful marriage with Hilda Villareyes, and without the said marriage having been legally
dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage
with LETICIA ANCAJAS, which second or subsequent marriage of the accused has all the
essential requisites for validity were it not for the subsisting first marriage.
CONTRARY TO LAW.
When arraigned, petitioner entered a plea of "not guilty".6
During the trial, petitioner admitted having cohabited with Villareyes from 1984-1988, with
whom he sired two children. However, he denied that he and Villareyes were validly married
to each other, claiming that no marriage ceremony took place to solemnize their union.7 He
alleged that he signed a marriage contract merely to enable her to get the allotment from his
office in connection with his work as a seaman.8 He further testified that he requested his
brother to verify from the Civil Register in Manila whether there was any marriage at all
between him and Villareyes, but there was no record of said marriage.9
On November 10, 1997, the Regional Trial Court of Lapu-lapu City, Branch 54, rendered a
decision finding the accused guilty beyond reasonable doubt of the crime of bigamy under
Article 349 of the Revised Penal Code, and sentencing him to four (4) years and two (2)
months of prision correccional, as minimum, to eight (8) years and one (1) day of prision
mayor, as maximum.10 On appeal, the Court of Appeals affirmed the decision of the trial
court. Petitioner’s motion for reconsideration was denied for lack of merit.
Hence, the instant petition for review on the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED, AND THIS ERROR IS
CORRECTIBLE IN THIS APPEAL – WHEN IT AFFIRMED THE DECISION OF THE
HONORABLE COURT A QUO CONVICTING THE ACCUSED FOR (sic) THE CRIME OF
BIGAMY, DESPITE THE NON-EXISTENCE OF THE FIRST MARRIAGE AND
INSUFFICIENCY OF EVIDENCE.
II. THE COURT ERRED IN CONVICTING THE ACCUSED FOR (sic) THE CRIME OF
BIGAMY DESPITE CLEAR PROOF THAT THE MARRIAGE BETWEEN THE ACCUSED
AND PRIVATE COMPLAINANT HAD BEEN DECLARED NULL AND VOID AB INITIO AND
WITHOUT LEGAL FORCE AND EFFECT.11
After a careful review of the evidence on record, we find no cogent reason to disturb the
assailed judgment.
Under Article 349 of the Revised Penal Code, the elements of the crime of Bigamy are:
(1) that the offender has been legally married;
(2) that the first marriage has not been legally dissolved or, in case his or her spouse is
absent, the absent spouse could not yet be presumed dead according to the Civil Code;
(3) that he contracts a second or subsequent marriage; and
(4) that the second or subsequent marriage has all the essential requisites for validity.12
Petitioner’s assignment of errors presents a two-tiered defense, in which he (1) denies the
existence of his first marriage to Villareyes, and (2) argues that the declaration of the nullity
of the second marriage on the ground of psychological incapacity, which is an alleged
indicator that his marriage to Ancajas lacks the essential requisites for validity, retroacts to
the date on which the second marriage was celebrated.13 Hence, petitioner argues that all
four of the elements of the crime of bigamy are absent, and prays for his acquittal.14
Petitioner’s defense must fail on both counts.
First, the prosecution presented sufficient evidence, both documentary and oral, to prove
the existence of the first marriage between petitioner and Villareyes. Documentary evidence
presented was in the form of: (1) a copy of a marriage contract between Tenebro and
Villareyes, dated November 10, 1986, which, as seen on the document, was solemnized at
the Manila City Hall before Rev. Julieto Torres, a Minister of the Gospel, and certified to by
the Office of the Civil Registrar of Manila;15 and (2) a handwritten letter from Villareyes to
Ancajas dated July 12, 1994, informing Ancajas that Villareyes and Tenebro were legally
married.16
To assail the veracity of the marriage contract, petitioner presented (1) a certification issued
by the National Statistics Office dated October 7, 1995;17 and (2) a certification issued by
the City Civil Registry of Manila, dated February 3, 1997.18 Both these documents attest
that the respective issuing offices have no record of a marriage celebrated between
Veronico B. Tenebro and Hilda B. Villareyes on November 10, 1986.
To our mind, the documents presented by the defense cannot adequately assail the
marriage contract, which in itself would already have been sufficient to establish the
existence of a marriage between Tenebro and Villareyes.
All three of these documents fall in the category of public documents, and the Rules of Court
provisions relevant to public documents are applicable to all. Pertinent to the marriage
contract, Section 7 of Rule 130 of the Rules of Court reads as follows:
Sec. 7. Evidence admissible when original document is a public record. – When the original
of a document is in the custody of a public officer or is recorded in a public office, its
contents may be proved by a certified copy issued by the public officer in custody thereof
(Emphasis ours).
This being the case, the certified copy of the marriage contract, issued by a public officer in
custody thereof, was admissible as the best evidence of its contents. The marriage contract
plainly indicates that a marriage was celebrated between petitioner and Villareyes on
November 10, 1986, and it should be accorded the full faith and credence given to public
documents.
Moreover, an examination of the wordings of the certification issued by the National
Statistics Office on October 7, 1995 and that issued by the City Civil Registry of Manila on
February 3, 1997 would plainly show that neither document attests as a positive fact that
there was no marriage celebrated between Veronico B. Tenebro and Hilda B. Villareyes on
November 10, 1986. Rather, the documents merely attest that the respective issuing offices
have no record of such a marriage. Documentary evidence as to the absence of a record is
quite different from documentary evidence as to the absence of a marriage ceremony, or
documentary evidence as to the invalidity of the marriage between Tenebro and Villareyes.
The marriage contract presented by the prosecution serves as positive evidence as to the
existence of the marriage between Tenebro and Villareyes, which should be given greater
credence than documents testifying merely as to absence of any record of the marriage,
especially considering that there is absolutely no requirement in the law that a marriage
contract needs to be submitted to the civil registrar as a condition precedent for the validity
of a marriage. The mere fact that no record of a marriage exists does not invalidate the
marriage, provided all requisites for its validity are present.19 There is no evidence
presented by the defense that would indicate that the marriage between Tenebro and
Villareyes lacked any requisite for validity, apart from the self-serving testimony of the
accused himself. Balanced against this testimony are Villareyes’ letter, Ancajas’ testimony
that petitioner informed her of the existence of the valid first marriage, and petitioner’s own
conduct, which would all tend to indicate that the first marriage had all the requisites for
validity.
Finally, although the accused claims that he took steps to verify the non-existence of the
first marriage to Villareyes by requesting his brother to validate such purported non-
existence, it is significant to note that the certifications issued by the National Statistics
Office and the City Civil Registry of Manila are dated October 7, 1995 and February 3, 1997,
respectively. Both documents, therefore, are dated after the accused’s marriage to his
second wife, private respondent in this case.
As such, this Court rules that there was sufficient evidence presented by the prosecution to
prove the first and second requisites for the crime of bigamy.
The second tier of petitioner’s defense hinges on the effects of the subsequent judicial
declaration20 of the nullity of the second marriage on the ground of psychological
incapacity.
Petitioner argues that this subsequent judicial declaration retroacts to the date of the
celebration of the marriage to Ancajas. As such, he argues that, since his marriage to
Ancajas was subsequently declared void ab initio, the crime of bigamy was not
committed.21
This argument is not impressed with merit.
Petitioner makes much of the judicial declaration of the nullity of the second marriage on the
ground of psychological incapacity, invoking Article 36 of the Family Code. What petitioner
fails to realize is that a declaration of the nullity of the second marriage on the ground of
psychological incapacity is of absolutely no moment insofar as the State’s penal laws are
concerned.
As a second or subsequent marriage contracted during the subsistence of petitioner’s valid
marriage to Villareyes, petitioner’s marriage to Ancajas would be null and void ab initio
completely regardless of petitioner’s psychological capacity or incapacity.22 Since a
marriage contracted during the subsistence of a valid marriage is automatically void, the
nullity of this second marriage is not per se an argument for the avoidance of criminal
liability for bigamy. Pertinently, Article 349 of the Revised Penal Code criminalizes "any
person who shall contract a second or subsequent marriage before the former marriage has
been legally dissolved, or before the absent spouse has been declared presumptively dead
by means of a judgment rendered in the proper proceedings". A plain reading of the law,
therefore, would indicate that the provision penalizes the mere act of contracting a second
or a subsequent marriage during the subsistence of a valid marriage.
Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during
the subsistence of the valid first marriage, the crime of bigamy had already been
consummated. To our mind, there is no cogent reason for distinguishing between a
subsequent marriage that is null and void purely because it is a second or subsequent
marriage, and a subsequent marriage that is null and void on the ground of psychological
incapacity, at least insofar as criminal liability for bigamy is concerned. The State’s penal
laws protecting the institution of marriage are in recognition of the sacrosanct character of
this special contract between spouses, and punish an individual’s deliberate disregard of the
permanent character of the special bond between spouses, which petitioner has
undoubtedly done.
Moreover, the declaration of the nullity of the second marriage on the ground of
psychological incapacity is not an indicator that petitioner’s marriage to Ancajas lacks the
essential requisites for validity. The requisites for the validity of a marriage are classified by
the Family Code into essential (legal capacity of the contracting parties and their consent
freely given in the presence of the solemnizing officer)23 and formal (authority of the
solemnizing officer, marriage license, and marriage ceremony wherein the parties
personally declare their agreement to marry before the solemnizing officer in the presence
of at least two witnesses).24 Under Article 5 of the Family Code, any male or female of the
age of eighteen years or upwards not under any of the impediments mentioned in Articles
3725 and 3826 may contract marriage.27
In this case, all the essential and formal requisites for the validity of marriage were satisfied
by petitioner and Ancajas. Both were over eighteen years of age, and they voluntarily
contracted the second marriage with the required license before Judge Alfredo B. Perez, Jr.
of the City Trial Court of Lapu-lapu City, in the presence of at least two witnesses.
Although the judicial declaration of the nullity of a marriage on the ground of psychological
incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum
between the spouses is concerned, it is significant to note that said marriage is not without
legal effects. Among these effects is that children conceived or born before the judgment of
absolute nullity of the marriage shall be considered legitimate.28 There is therefore a
recognition written into the law itself that such a marriage, although void ab initio, may still
produce legal consequences. Among these legal consequences is incurring criminal liability
for bigamy. To hold otherwise would render the State’s penal laws on bigamy completely
nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in
some manner, and to thus escape the consequences of contracting multiple marriages,
while beguiling throngs of hapless women with the promise of futurity and commitment.
As such, we rule that the third and fourth requisites for the crime of bigamy are present in
this case, and affirm the judgment of the Court of Appeals.
As a final point, we note that based on the evidence on record, petitioner contracted
marriage a third time, while his marriages to Villareyes and Ancajas were both still
subsisting. Although this is irrelevant in the determination of the accused’s guilt for purposes
of this particular case, the act of the accused displays a deliberate disregard for the sanctity
of marriage, and the State does not look kindly on such activities. Marriage is a special
contract, the key characteristic of which is its permanence. When an individual manifests a
deliberate pattern of flouting the foundation of the State’s basic social institution, the State’s
criminal laws on bigamy step in.
Under Article 349 of the Revised Penal Code, as amended, the penalty for the crime of
bigamy is prision mayor, which has a duration of six (6) years and one (1) day to twelve (12)
years. There being neither aggravating nor mitigating circumstance, the same shall be
imposed in its medium period. Applying the Indeterminate Sentence Law, petitioner shall be
entitled to a minimum term, to be taken from the penalty next lower in degree, i.e., prision
correccional which has a duration of six (6) months and one (1) day to six (6) years. Hence,
the Court of Appeals correctly affirmed the decision of the trial court which sentenced
petitioner to suffer an indeterminate penalty of four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum.
WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED. The
assailed decision of the Court of Appeals in CA-G.R. CR No. 21636, convicting petitioner
Veronico Tenebro of the crime of Bigamy and sentencing him to suffer the indeterminate
penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8)
years and one (1) day of prision mayor, as maximum, is AFFIRMED in toto.
SO ORDERED.
G.R. No. 175581 March 28, 2008
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
JOSE A. DAYOT, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179474
FELISA TECSON-DAYOT, Petitioner,
vs.
JOSE A. DAYOT, Respondent.
DECISION
CHICO-NAZARIO, J.:
Before us are two consolidated petitions. G.R. No. 175581 and G.R. No. 179474 are
Petitions for Review under Rule 45 of the Rules of Court filed by the Republic of the
Philippines and Felisa Tecson-Dayot (Felisa), respectively, both challenging the Amended
Decision1 of the Court of Appeals, dated 7 November 2006, in CA-G.R. CV No. 68759,
which declared the marriage between Jose Dayot (Jose) and Felisa void ab initio.
The records disclose that on 24 November 1986, Jose and Felisa were married at the
Pasay City Hall. The marriage was solemnized by Rev. Tomas V. Atienza.2 In lieu of a
marriage license, Jose and Felisa executed a sworn affidavit,3 also dated 24 November
1986, attesting that both of them had attained the age of maturity, and that being unmarried,
they had lived together as husband and wife for at least five years.
On 7 July 1993, Jose filed a Complaint4 for Annulment and/or Declaration of Nullity of
Marriage with the Regional Trial Court (RTC), Biñan, Laguna, Branch 25. He contended that
his marriage with Felisa was a sham, as no marriage ceremony was celebrated between the
parties; that he did not execute the sworn affidavit stating that he and Felisa had lived as
husband and wife for at least five years; and that his consent to the marriage was secured
through fraud.
In his Complaint, Jose gave his version of the events which led to his filing of the same.
According to Jose, he was introduced to Felisa in 1986. Immediately thereafter, he came to
live as a boarder in Felisa’s house, the latter being his landlady. Some three weeks later,
Felisa requested him to accompany her to the Pasay City Hall, ostensibly so she could
claim a package sent to her by her brother from Saudi Arabia. At the Pasay City Hall, upon
a pre-arranged signal from Felisa, a man bearing three folded pieces of paper approached
them. They were told that Jose needed to sign the papers so that the package could be
released to Felisa. He initially refused to do so. However, Felisa cajoled him, and told him
that his refusal could get both of them killed by her brother who had learned about their
relationship. Reluctantly, he signed the pieces of paper, and gave them to the man who
immediately left. It was in February 1987 when he discovered that he had contracted
marriage with Felisa. He alleged that he saw a piece of paper lying on top of the table at the
sala of Felisa’s house. When he perused the same, he discovered that it was a copy of his
marriage contract with Felisa. When he confronted Felisa, the latter feigned ignorance.
In opposing the Complaint, Felisa denied Jose’s allegations and defended the validity of
their marriage. She declared that they had maintained their relationship as man and wife
absent the legality of marriage in the early part of 1980, but that she had deferred
contracting marriage with him on account of their age difference.5 In her pre-trial brief,
Felisa expounded that while her marriage to Jose was subsisting, the latter contracted
marriage with a certain Rufina Pascual (Rufina) on 31 August 1990. On 3 June 1993, Felisa
filed an action for bigamy against Jose. Subsequently, she filed an administrative complaint
against Jose with the Office of the Ombudsman, since Jose and Rufina were both
employees of the National Statistics and Coordinating Board.6 The Ombudsman found Jose
administratively liable for disgraceful and immoral conduct, and meted out to him the penalty
of suspension from service for one year without emolument.7
On 26 July 2000, the RTC rendered a Decision8 dismissing the Complaint. It disposed:
WHEREFORE, after a careful evaluation and analysis of the evidence presented by both
parties, this Court finds and so holds that the [C]omplaint does not deserve a favorable
consideration. Accordingly, the above-entitled case is hereby ordered DISMISSED with
costs against [Jose].9
The RTC ruled that from the testimonies and evidence presented, the marriage celebrated
between Jose and Felisa on 24 November 1986 was valid. It dismissed Jose’s version of
the story as implausible, and rationalized that:
Any person in his right frame of mind would easily suspect any attempt to make him or her
sign a blank sheet of paper. [Jose] could have already detected that something was amiss,
unusual, as they were at Pasay City Hall to get a package for [Felisa] but it [was] he who
was made to sign the pieces of paper for the release of the said package. Another indirect
suggestion that could have put him on guard was the fact that, by his own admission,
[Felisa] told him that her brother would kill them if he will not sign the papers. And yet it took
him, more or less, three months to "discover" that the pieces of paper that he signed was
[sic] purportedly the marriage contract. [Jose] does not seem to be that ignorant, as
perceived by this Court, to be "taken in for a ride" by [Felisa.]
[Jose’s] claim that he did not consent to the marriage was belied by the fact that he
acknowledged Felisa Tecson as his wife when he wrote [Felisa’s] name in the duly
notarized statement of assets and liabilities he filled up on May 12, 1988, one year after he
discovered the marriage contract he is now claiming to be sham and false. [Jose], again, in
his company I.D., wrote the name of [Felisa] as the person to be contacted in case of
emergency. This Court does not believe that the only reason why her name was written in
his company I.D. was because he was residing there then. This is just but a lame excuse
because if he really considers her not his lawfully wedded wife, he would have written
instead the name of his sister.
When [Jose’s] sister was put into the witness stand, under oath, she testified that she
signed her name voluntarily as a witness to the marriage in the marriage certificate (T.S.N.,
page 25, November 29, 1996) and she further testified that the signature appearing over the
name of Jose Dayot was the signature of his [sic] brother that he voluntarily affixed in the
marriage contract (page 26 of T.S.N. taken on November 29, 1996), and when she was
asked by the Honorable Court if indeed she believed that Felisa Tecson was really chosen
by her brother she answered yes. The testimony of his sister all the more belied his claim
that his consent was procured through fraud.10
Moreover, on the matter of fraud, the RTC ruled that Jose’s action had prescribed. It cited
Article 8711 of the New Civil Code which requires that the action for annulment of marriage
must be commenced by the injured party within four years after the discovery of the fraud.
Thus:
That granting even for the sake of argument that his consent was obtained by [Felisa]
through fraud, trickery and machinations, he could have filed an annulment or declaration of
nullity of marriage at the earliest possible opportunity, the time when he discovered the
alleged sham and false marriage contract. [Jose] did not take any action to void the
marriage at the earliest instance. x x x.12
Undeterred, Jose filed an appeal from the foregoing RTC Decision to the Court of Appeals.
In a Decision dated 11 August 2005, the Court of Appeals found the appeal to be without
merit. The dispositive portion of the appellate court’s Decision reads:
WHEREFORE, the Decision appealed from is AFFIRMED.13
The Court of Appeals applied the Civil Code to the marriage between Jose and Felisa as it
was solemnized prior to the effectivity of the Family Code. The appellate court observed that
the circumstances constituting fraud as a ground for annulment of marriage under Article
8614 of the Civil Code did not exist in the marriage between the parties. Further, it ruled that
the action for annulment of marriage on the ground of fraud was filed beyond the
prescriptive period provided by law. The Court of Appeals struck down Jose’s appeal in the
following manner:
Nonetheless, even if we consider that fraud or intimidation was employed on Jose in giving
his consent to the marriage, the action for the annulment thereof had already prescribed.
Article 87 (4) and (5) of the Civil Code provides that the action for annulment of marriage on
the ground that the consent of a party was obtained by fraud, force or intimidation must be
commenced by said party within four (4) years after the discovery of the fraud and within
four (4) years from the time the force or intimidation ceased. Inasmuch as the fraud was
allegedly discovered by Jose in February, 1987 then he had only until February, 1991 within
which to file an action for annulment of marriage. However, it was only on July 7, 1993 that
Jose filed the complaint for annulment of his marriage to Felisa.15
Likewise, the Court of Appeals did not accept Jose’s assertion that his marriage to Felisa
was void ab initio for lack of a marriage license. It ruled that the marriage was solemnized
under Article 7616 of the Civil Code as one of exceptional character, with the parties
executing an affidavit of marriage between man and woman who have lived together as
husband and wife for at least five years. The Court of Appeals concluded that the falsity in
the affidavit to the effect that Jose and Felisa had lived together as husband and wife for the
period required by Article 76 did not affect the validity of the marriage, seeing that the
solemnizing officer was misled by the statements contained therein. In this manner, the
Court of Appeals gave credence to the good-faith reliance of the solemnizing officer over the
falsity of the affidavit. The appellate court further noted that on the dorsal side of said
affidavit of marriage, Rev. Tomas V. Atienza, the solemnizing officer, stated that he took
steps to ascertain the ages and other qualifications of the contracting parties and found no
legal impediment to their marriage. Finally, the Court of Appeals dismissed Jose’s argument
that neither he nor Felisa was a member of the sect to which Rev. Tomas V. Atienza
belonged. According to the Court of Appeals, Article 5617 of the Civil Code did not require
that either one of the contracting parties to the marriage must belong to the solemnizing
officer’s church or religious sect. The prescription was established only in Article 718 of the
Family Code which does not govern the parties’ marriage.
Differing with the ruling of the Court of Appeals, Jose filed a Motion for Reconsideration
thereof.1avvphi1 His central opposition was that the requisites for the proper application of
the exemption from a marriage license under Article 76 of the Civil Code were not fully
attendant in the case at bar. In particular, Jose cited the legal condition that the man and the
woman must have been living together as husband and wife for at least five years before
the marriage. Essentially, he maintained that the affidavit of marital cohabitation executed
by him and Felisa was false.
The Court of Appeals granted Jose’s Motion for Reconsideration and reversed itself.
Accordingly, it rendered an Amended Decision, dated 7 November 2006, the fallo of which
reads:
WHEREFORE, the Decision dated August 11, 2005 is RECALLED and SET ASIDE and
another one entered declaring the marriage between Jose A. Dayot and Felisa C. Tecson
void ab initio.
Furnish a copy of this Amended Decision to the Local Civil Registrar of Pasay City.19
In its Amended Decision, the Court of Appeals relied on the ruling of this Court in Niñal v.
Bayadog,20 and reasoned that:
In Niñal v. Bayadog, where the contracting parties to a marriage solemnized without a
marriage license on the basis of their affidavit that they had attained the age of majority, that
being unmarried, they had lived together for at least five (5) years and that they desired to
marry each other, the Supreme Court ruled as follows:
"x x x In other words, the five-year common-law cohabitation period, which is counted back
from the date of celebration of marriage, should be a period of legal union had it not been
for the absence of the marriage. This 5-year period should be the years immediately before
the day of the marriage and it should be a period of cohabitation characterized by exclusivity
– meaning no third party was involved at any time within the 5 years and continuity – that is
unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any
distinction as to whether the parties were capacitated to marry each other during the entire
five years, then the law would be sanctioning immorality and encouraging parties to have
common law relationships and placing them on the same footing with those who lived
faithfully with their spouse. Marriage being a special relationship must be respected as such
and its requirements must be strictly observed. The presumption that a man and a woman
deporting themselves as husband and wife is based on the approximation of the
requirements of the law. The parties should not be afforded any excuse to not comply with
every single requirement and later use the same missing element as a pre-conceived
escape ground to nullify their marriage. There should be no exemption from securing a
marriage license unless the circumstances clearly fall within the ambit of the exception. It
should be noted that a license is required in order to notify the public that two persons are
about to be united in matrimony and that anyone who is aware or has knowledge of any
impediment to the union of the two shall make it known to the local civil registrar.
Article 80(3) of the Civil Code provides that a marriage solemnized without a marriage
license, save marriages of exceptional character, shall be void from the beginning.
Inasmuch as the marriage between Jose and Felisa is not covered by the exception to the
requirement of a marriage license, it is, therefore, void ab initio because of the absence of a
marriage license.21
Felisa sought reconsideration of the Amended Decision, but to no avail. The appellate court
rendered a Resolution22 dated 10 May 2007, denying Felisa’s motion.
Meanwhile, the Republic of the Philippines, through the Office of the Solicitor General
(OSG), filed a Petition for Review before this Court in G.R. No. 175581, praying that the
Court of Appeals’ Amended Decision dated 7 November 2006 be reversed and set aside for
lack of merit, and that the marriage between Jose and Felisa be declared valid and
subsisting. Felisa filed a separate Petition for Review, docketed as G.R. No. 179474,
similarly assailing the appellate court’s Amended Decision. On 1 August 2007, this Court
resolved to consolidate the two Petitions in the interest of uniformity of the Court rulings in
similar cases brought before it for resolution.23
The Republic of the Philippines propounds the following arguments for the allowance of its
Petition, to wit:
I
RESPONDENT FAILED TO OVERTHROW THE PRESUMPTION OF THE VALIDITY OF
HIS MARRIAGE TO FELISA.
II
RESPONDENT DID NOT COME TO THE COURT WITH CLEAN HANDS AND SHOULD
NOT BE ALLOWED TO PROFIT FROM HIS OWN FRAUDULENT CONDUCT.
III
RESPONDENT IS ESTOPPED FROM ASSAILING THE LEGALITY OF HIS MARRIAGE
FOR LACK OF MARRIAGE LICEN[S]E.24
Correlative to the above, Felisa submits that the Court of Appeals misapplied Niñal.25 She
differentiates the case at bar from Niñal by reasoning that one of the parties therein had an
existing prior marriage, a circumstance which does not obtain in her cohabitation with Jose.
Finally, Felisa adduces that Jose only sought the annulment of their marriage after a
criminal case for bigamy and an administrative case had been filed against him in order to
avoid liability. Felisa surmises that the declaration of nullity of their marriage would
exonerate Jose from any liability.
For our resolution is the validity of the marriage between Jose and Felisa. To reach a
considered ruling on the issue, we shall jointly tackle the related arguments vented by
petitioners Republic of the Philippines and Felisa.
The Republic of the Philippines asserts that several circumstances give rise to the
presumption that a valid marriage exists between Jose and Felisa. For her part, Felisa
echoes the claim that any doubt should be resolved in favor of the validity of the marriage by
citing this Court’s ruling in Hernandez v. Court of Appeals.26 To buttress its assertion, the
Republic points to the affidavit executed by Jose and Felisa, dated 24 November 1986,
attesting that they have lived together as husband and wife for at least five years, which
they used in lieu of a marriage license. It is the Republic’s position that the falsity of the
statements in the affidavit does not affect the validity of the marriage, as the essential and
formal requisites were complied with; and the solemnizing officer was not required to
investigate as to whether the said affidavit was legally obtained. The Republic opines that as
a marriage under a license is not invalidated by the fact that the license was wrongfully
obtained, so must a marriage not be invalidated by the fact that the parties incorporated a
fabricated statement in their affidavit that they cohabited as husband and wife for at least
five years. In addition, the Republic posits that the parties’ marriage contract states that their
marriage was solemnized under Article 76 of the Civil Code. It also bears the signature of
the parties and their witnesses, and must be considered a primary evidence of marriage. To
further fortify its Petition, the Republic adduces the following documents: (1) Jose’s
notarized Statement of Assets and Liabilities, dated 12 May 1988 wherein he wrote Felisa’s
name as his wife; (2) Certification dated 25 July 1993 issued by the Barangay Chairman
192, Zone ZZ, District 24 of Pasay City, attesting that Jose and Felisa had lived together as
husband and wife in said barangay; and (3) Jose’s company ID card, dated 2 May 1988,
indicating Felisa’s name as his wife.
The first assignment of error compels this Court to rule on the issue of the effect of a false
affidavit under Article 76 of the Civil Code. A survey of the prevailing rules is in order.
It is beyond dispute that the marriage of Jose and Felisa was celebrated on 24 November
1986, prior to the effectivity of the Family Code. Accordingly, the Civil Code governs their
union. Article 53 of the Civil Code spells out the essential requisites of marriage as a
contract:
ART. 53. No marriage shall be solemnized unless all these requisites are complied with:
(1) Legal capacity of the contracting parties;
(2) Their consent, freely given;
(3) Authority of the person performing the marriage; and
(4) A marriage license, except in a marriage of exceptional character. (Emphasis ours.)
Article 5827 makes explicit that no marriage shall be solemnized without a license first being
issued by the local civil registrar of the municipality where either contracting party habitually
resides, save marriages of an exceptional character authorized by the Civil Code, but not
those under Article 75.28 Article 80(3)29 of the Civil Code makes it clear that a marriage
performed without the corresponding marriage license is void, this being nothing more than
the legitimate consequence flowing from the fact that the license is the essence of the
marriage contract.30 This is in stark contrast to the old Marriage Law,31 whereby the
absence of a marriage license did not make the marriage void. The rationale for the
compulsory character of a marriage license under the Civil Code is that it is the authority
granted by the State to the contracting parties, after the proper government official has
inquired into their capacity to contract marriage.32
Under the Civil Code, marriages of exceptional character are covered by Chapter 2, Title III,
comprising Articles 72 to 79. To wit, these marriages are: (1) marriages in articulo mortis or
at the point of death during peace or war, (2) marriages in remote places, (2) consular
marriages,33 (3) ratification of marital cohabitation, (4) religious ratification of a civil
marriage, (5) Mohammedan or pagan marriages, and (6) mixed marriages.34
The instant case pertains to a ratification of marital cohabitation under Article 76 of the Civil
Code, which provides:
ART. 76. No marriage license shall be necessary when a man and a woman who have
attained the age of majority and who, being unmarried, have lived together as husband and
wife for at least five years, desire to marry each other. The contracting parties shall state the
foregoing facts in an affidavit before any person authorized by law to administer oaths. The
official, priest or minister who solemnized the marriage shall also state in an affidavit that he
took steps to ascertain the ages and other qualifications of the contracting parties and that
he found no legal impediment to the marriage.
The reason for the law,35 as espoused by the Code Commission, is that the publicity
attending a marriage license may discourage such persons who have lived in a state of
cohabitation from legalizing their status.36
It is not contested herein that the marriage of Jose and Felisa was performed without a
marriage license. In lieu thereof, they executed an affidavit declaring that "they have
attained the age of maturity; that being unmarried, they have lived together as husband and
wife for at least five years; and that because of this union, they desire to marry each
other."37 One of the central issues in the Petition at bar is thus: whether the falsity of an
affidavit of marital cohabitation, where the parties have in truth fallen short of the minimum
five-year requirement, effectively renders the marriage void ab initio for lack of a marriage
license.
We answer in the affirmative.
Marriages of exceptional character are, doubtless, the exceptions to the rule on the
indispensability of the formal requisite of a marriage license. Under the rules of statutory
construction, exceptions, as a general rule, should be strictly38 but reasonably construed.39
They extend only so far as their language fairly warrants, and all doubts should be resolved
in favor of the general provisions rather than the exception.40 Where a general rule is
established by statute with exceptions, the court will not curtail the former or add to the latter
by implication.41 For the exception in Article 76 to apply, it is a sine qua non thereto that the
man and the woman must have attained the age of majority, and that, being unmarried, they
have lived together as husband and wife for at least five years.
A strict but reasonable construction of Article 76 leaves us with no other expediency but to
read the law as it is plainly written. The exception of a marriage license under Article 76
applies only to those who have lived together as husband and wife for at least five years
and desire to marry each other. The Civil Code, in no ambiguous terms, places a minimum
period requirement of five years of cohabitation. No other reading of the law can be had,
since the language of Article 76 is precise. The minimum requisite of five years of
cohabitation is an indispensability carved in the language of the law. For a marriage
celebrated under Article 76 to be valid, this material fact cannot be dispensed with. It is
embodied in the law not as a directory requirement, but as one that partakes of a mandatory
character. It is worthy to mention that Article 76 also prescribes that the contracting parties
shall state the requisite facts42 in an affidavit before any person authorized by law to
administer oaths; and that the official, priest or minister who solemnized the marriage shall
also state in an affidavit that he took steps to ascertain the ages and other qualifications of
the contracting parties and that he found no legal impediment to the marriage.
It is indubitably established that Jose and Felisa have not lived together for five years at the
time they executed their sworn affidavit and contracted marriage. The Republic admitted
that Jose and Felisa started living together only in June 1986, or barely five months before
the celebration of their marriage.43 The Court of Appeals also noted Felisa’s testimony that
Jose was introduced to her by her neighbor, Teresita Perwel, sometime in February or
March 1986 after the EDSA Revolution.44 The appellate court also cited Felisa’s own
testimony that it was only in June 1986 when Jose commenced to live in her house.45
Moreover, it is noteworthy that the question as to whether they satisfied the minimum five-
year requisite is factual in nature. A question of fact arises when there is a need to decide
on the truth or falsehood of the alleged facts.46 Under Rule 45, factual findings are
ordinarily not subject to this Court’s review.47 It is already well-settled that:
The general rule is that the findings of facts of the Court of Appeals are binding on this
Court. A recognized exception to this rule is when the Court of Appeals and the trial court, or
in this case the administrative body, make contradictory findings. However, the exception
does not apply in every instance that the Court of Appeals and the trial court or
administrative body disagree. The factual findings of the Court of Appeals remain conclusive
on this Court if such findings are supported by the record or based on substantial
evidence.48
Therefore, the falsity of the affidavit dated 24 November 1986, executed by Jose and Felisa
to exempt them from the requirement of a marriage license, is beyond question.
We cannot accept the insistence of the Republic that the falsity of the statements in the
parties’ affidavit will not affect the validity of marriage, since all the essential and formal
requisites were complied with. The argument deserves scant merit. Patently, it cannot be
denied that the marriage between Jose and Felisa was celebrated without the formal
requisite of a marriage license. Neither did Jose and Felisa meet the explicit legal
requirement in Article 76, that they should have lived together as husband and wife for at
least five years, so as to be excepted from the requirement of a marriage license.
Anent petitioners’ reliance on the presumption of marriage, this Court holds that the same
finds no applicability to the case at bar. Essentially, when we speak of a presumption of
marriage, it is with reference to the prima facie presumption that a man and a woman
deporting themselves as husband and wife have entered into a lawful contract of
marriage.49 Restated more explicitly, persons dwelling together in apparent matrimony are
presumed, in the absence of any counter-presumption or evidence special to the case, to be
in fact married.50 The present case does not involve an apparent marriage to which the
presumption still needs to be applied. There is no question that Jose and Felisa actually
entered into a contract of marriage on 24 November 1986, hence, compelling Jose to
institute a Complaint for Annulment and/or Declaration of Nullity of Marriage, which
spawned the instant consolidated Petitions.
In the same vein, the declaration of the Civil Code51 that every intendment of law or fact
leans towards the validity of marriage will not salvage the parties’ marriage, and extricate
them from the effect of a violation of the law. The marriage of Jose and Felisa was entered
into without the requisite marriage license or compliance with the stringent requirements of a
marriage under exceptional circumstance. The solemnization of a marriage without prior
license is a clear violation of the law and would lead or could be used, at least, for the
perpetration of fraud against innocent and unwary parties, which was one of the evils that
the law sought to prevent by making a prior license a prerequisite for a valid marriage.52
The protection of marriage as a sacred institution requires not just the defense of a true and
genuine union but the exposure of an invalid one as well.53 To permit a false affidavit to
take the place of a marriage license is to allow an abject circumvention of the law. If this
Court is to protect the fabric of the institution of marriage, we must be wary of deceptive
schemes that violate the legal measures set forth in our laws.
Similarly, we are not impressed by the ratiocination of the Republic that as a marriage under
a license is not invalidated by the fact that the license was wrongfully obtained, so must a
marriage not be invalidated by a fabricated statement that the parties have cohabited for at
least five years as required by law. The contrast is flagrant. The former is with reference to
an irregularity of the marriage license, and not to the absence of one. Here, there is no
marriage license at all. Furthermore, the falsity of the allegation in the sworn affidavit
relating to the period of Jose and Felisa’s cohabitation, which would have qualified their
marriage as an exception to the requirement for a marriage license, cannot be a mere
irregularity, for it refers to a quintessential fact that the law precisely required to be deposed
and attested to by the parties under oath. If the essential matter in the sworn affidavit is a
lie, then it is but a mere scrap of paper, without force and effect. Hence, it is as if there was
no affidavit at all.
In its second assignment of error, the Republic puts forth the argument that based on equity,
Jose should be denied relief because he perpetrated the fabrication, and cannot thereby
profit from his wrongdoing. This is a misplaced invocation. It must be stated that equity finds
no room for application where there is a law.54 There is a law on the ratification of marital
cohabitation, which is set in precise terms under Article 76 of the Civil Code. Nonetheless,
the authorities are consistent that the declaration of nullity of the parties’ marriage is without
prejudice to their criminal liability.55
The Republic further avers in its third assignment of error that Jose is deemed estopped
from assailing the legality of his marriage for lack of a marriage license. It is claimed that
Jose and Felisa had lived together from 1986 to 1990, notwithstanding Jose’s subsequent
marriage to Rufina Pascual on 31 August 1990, and that it took Jose seven years before he
sought the declaration of nullity; hence, estoppel had set in.
This is erroneous. An action for nullity of marriage is imprescriptible.56 Jose and Felisa’s
marriage was celebrated sans a marriage license. No other conclusion can be reached
except that it is void ab initio. In this case, the right to impugn a void marriage does not
prescribe, and may be raised any time.
Lastly, to settle all doubts, jurisprudence has laid down the rule that the five-year common-
law cohabitation period under Article 76 means a five-year period computed back from the
date of celebration of marriage, and refers to a period of legal union had it not been for the
absence of a marriage.57 It covers the years immediately preceding the day of the
marriage, characterized by exclusivity - meaning no third party was involved at any time
within the five years - and continuity that is unbroken.58
WHEREFORE, the Petitions are DENIED. The Amended Decision of the Court of Appeals,
dated 7 November 2006 in CA-G.R. CV No. 68759, declaring the marriage of Jose Dayot to
Felisa Tecson-Dayot void ab initio, is AFFIRMED, without prejudice to their criminal liability,
if any. No costs.
SO ORDERED.
G.R. No. 103047 September 2, 1994
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS AND ANGELINA M. CASTRO, respondents.
Parungao, Abesamis, Eleazar&Pulgar Law Offices for private respondent.
PUNO, J.:
The case at bench originated from a petition filed by private respondent Angelina M. Castro
in the Regional Trial Court of Quezon City seeking a judicial declaration of nullity of her
marriage to Edwin F. Cardenas. 1 As ground therefor, Castro claims that no marriage
license was ever issued to them prior to the solemnization of their marriage.
Despite notice, defendant Edwin F. Cardenas failed to file his answer. Consequently, he
was declared in default. Trial proceeded in his absence.
The controlling facts are undisputed:
On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas were married in a civil
ceremony performed by Judge Pablo M. Malvar, City Court Judge of Pasay City. The
marriage was celebrated without the knowledge of Castro's parents. Defendant Cardenas
personally attended to the processing of the documents required for the celebration of the
marriage, including the procurement of the marriage, license. In fact, the marriage contract
itself states that marriage license no. 3196182 was issued in the name of the contracting
parties on June 24, 1970 in Pasig, Metro Manila.
The couple did not immediately live together as husband and wife since the marriage was
unknown to Castro's parents. Thus, it was only in March 1971, when Castro discovered she
was pregnant, that the couple decided to live together. However, their cohabitation lasted
only for four (4) months. Thereafter, the couple parted ways. On October 19, 1971, Castro
gave birth. The baby was adopted by Castro's brother, with the consent of Cardenas.
The baby is now in the United States. Desiring to follow her daughter, Castro wanted to put
in order her marital status before leaving for the States. She thus consulted a lawyer, Atty.
Frumencio E. Pulgar, regarding the possible annulment of her marriage. Through her
lawyer's efforts, they discovered that there was no marriage license issued to Cardenas
prior to the celebration of their marriage.
As proof, Angelina Castro offered in evidence a certification from the Civil Register of Pasig,
Metro Manila. It reads:
February 20, 1987
TO WHOM IT MAY CONCERN:
This is to certify that the names EDWIN F. CARDENAS and ANGELINA M. CASTRO who
were allegedly married in the Pasay City Court on June 21, 1970 under an alleged
(s)upportive marriage license
no. 3196182 allegedly issued in the municipality on June 20, 1970 cannot be located as said
license no. 3196182 does not appear from our records.
Issued upon request of Mr. Ed Atanacio.
(Sgd) CENONA D. QUINTOS
Senior Civil Registry Officer
Castro testified that she did not go to the civil registrar of Pasig on or before June 24, 1970
in order to apply for a license. Neither did she sign any application therefor. She affixed her
signature only on the marriage contract on June 24, 1970 in Pasay City.
The trial court denied the petition. 2 It held that the above certification was inadequate to
establish the alleged non-issuance of a marriage license prior to the celebration of the
marriage between the parties. It ruled that the "inability of the certifying official to locate the
marriage license is not conclusive to show that there was no marriage license issued."
Unsatisfied with the decision, Castro appealed to respondent appellate court. She insisted
that the certification from the local civil registrar sufficiently established the absence of a
marriage license.
As stated earlier, respondent appellate court reversed the Decision of the trial court. 3 It
declared the marriage between the contracting parties null and void and directed the Civil
Registrar of Pasig to cancel the subject marriage contract.
Hence this petition for review on certiorari.
Petitioner Republic of the Philippines urges that respondent appellate court erred when it
ruled that the certification issued by the civil registrar that marriage license no. 3196182 was
not in their record adequately proved that no such license was ever issued. Petitioner also
faults the respondent court for relying on the self-serving and uncorroborated testimony of
private respondent Castro that she had no part in the procurement of the subject marriage
license. Petitioner thus insists that the certification and the uncorroborated testimony of
private respondent are insufficient to overthrow the legal presumption regarding the validity
of a marriage.
Petitioner also points that in declaring the marriage between the parties as null and void,
respondent appellate court disregarded the presumption that the solemnizing officer, Judge
Pablo M. Malvar, regularly performed his duties when he attested in the marriage contract
that marriage license no. 3196182 was duly presented to him before the solemnization of
the subject marriage.
The issues, being interrelated, shall be discussed jointly.
The core issue presented by the case at bench is whether or not the documentary and
testimonial evidence presented by private respondent are sufficient to establish that no
marriage license was issued by the Civil Registrar of Pasig prior to the celebration of the
marriage of private respondent to Edwin F. Cardenas.
We affirm the impugned Decision.
At the time the subject marriage was solemnized on June 24, 1970, the law governing
marital relations was the New Civil Code. The law 4 provides that no marriage shall be
solemnized without a marriage license first issued by a local civil registrar. Being one of the
essential requisites of a valid marriage, absence of a license would render the marriage
voidab initio. 5
Petitioner posits that the certification of the local civil registrar of due search and inability to
find a record or entry to the effect that marriage license no. 3196182 was issued to the
parties is not adequate to prove its non-issuance.
We hold otherwise. The presentation of such certification in court is sanctioned by Section
29, Rule 132 of the Rules of Court, viz.:
Sec. 29.Proof of lack of record. — A written statement signed by an officer having custody
of an official record or by his deputy, that after diligent search, no record or entry of a
specified tenor is found to exist in the records of his office, accompanied by a certificate as
above provided, is admissible as evidence that the records of his office contain no such
record or entry.
The above Rule authorized the custodian of documents to certify that despite diligent
search, a particular document does not exist in his office or that a particular entry of a
specified tenor was not to be found in a register. As custodians of public documents, civil
registrars are public officers charged with the duty, inter alia, of maintaining a register book
where they are required to enter all applications for marriage licenses, including the names
of the applicants, the date the marriage license was issued and such other relevant data. 6
The certification of "due search and inability to find" issued by the civil registrar of Pasig
enjoys probative value, he being the officer charged under the law to keep a record of all
data relative to the issuance of a marriage license. Unaccompanied by any circumstance of
suspicion and pursuant to Section 29, Rule 132 of the Rules of Court, a certificate of "due
search and inability to find" sufficiently proved that his office did not issue marriage license
no. 3196182 to the contracting parties.
The fact that private respondent Castro offered only her testimony in support of her petition
is, in itself, not a ground to deny her petition. The failure to offer any other witness to
corroborate her testimony is mainly due to the peculiar circumstances of the case. It will be
remembered that the subject marriage was a civil ceremony performed by a judge of a city
court. The subject marriage is one of those commonly known as a "secret marriage" — a
legally non-existent phrase but ordinarily used to refer to a civil marriage celebrated without
the knowledge of the relatives and/or friends of either or both of the contracting parties. The
records show that the marriage between Castro and Cardenas was initially unknown to the
parents of the former.
Surely, the fact that only private respondent Castro testified during the trial cannot be held
against her. Her husband, Edwin F. Cardenas, was duly served with notice of the
proceedings and a copy of the petition. Despite receipt thereof, he chose to ignore the
same. For failure to answer, he was properly declared in default. Private respondent cannot
be faulted for her husband's lack of interest to participate in the proceedings. There was
absolutely no evidence on record to show that there was collusion between private
respondent and her husband Cardenas.
It is noteworthy to mention that the finding of the appellate court that the marriage between
the contracting parties is null and void for lack of a marriage license does not discount the
fact that indeed, a spurious marriage license, purporting to be issued by the civil registrar of
Pasig, may have been presented by Cardenas to the solemnizing officer.
In fine, we hold that, under the circumstances of the case, the documentary and testimonial
evidence presented by private respondent Castro sufficiently established the absence of the
subject marriage license.
IN VIEW WHEREOF, the petition is DENIED there being no showing of any reversible error
committed by respondent appellate court.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.
G.R. No. 154380 October 5, 2005
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
CIPRIANO ORBECIDO III, Respondent.
DECISION
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens, where one party is later naturalized as
a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can
the Filipino spouse likewise remarry under Philippine law?
Before us is a case of first impression that behooves the Court to make a definite ruling on
this apparently novel question, presented as a pure question of law.
In this petition for review, the Solicitor General assails the Decision1 dated May 15, 2002, of
the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2
dated July 4, 2002 denying the motion for reconsideration. The court a quo had declared
that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the
impugned Decision reads:
WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family
Code and by reason of the divorce decree obtained against him by his American wife, the
petitioner is given the capacity to remarry under the Philippine Law.
IT IS SO ORDERED.3
The factual antecedents, as narrated by the trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United
Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with
a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.
In 1986, Cipriano’s wife left for the United States bringing along their son Kristoffer. A few
years later, Cipriano discovered that his wife had been naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce
decree and then married a certain Innocent Stanley. She, Stanley and her child by him
currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority to remarry invoking
Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the
petition, the court granted the same. The Republic, herein petitioner, through the Office of
the Solicitor General (OSG), sought reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE
FAMILY CODE4
The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the
instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated
between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file
a petition for annulment or for legal separation.5 Furthermore, the OSG argues there is no
law that governs respondent’s situation. The OSG posits that this is a matter of legislation
and not of judicial determination.6
For his part, respondent admits that Article 26 is not directly applicable to his case but
insists that when his naturalized alien wife obtained a divorce decree which capacitated her
to remarry, he is likewise capacitated by operation of law pursuant to Section 12, Article II of
the Constitution.7
At the outset, we note that the petition for authority to remarry filed before the trial court
actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of
the Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1. Who may file petition—Any person interested under a deed, will, contract or other
written instrument, or whose rights are affected by a statute, executive order or regulation,
ordinance, or other governmental regulation may, before breach or violation thereof, bring
an action in the appropriate Regional Trial Court to determine any question of construction
or validity arising, and for a declaration of his rights or duties, thereunder. . .
The requisites of a petition for declaratory relief are: (1) there must be a justiciable
controversy; (2) the controversy must be between persons whose interests are adverse; (3)
that the party seeking the relief has a legal interest in the controversy; and (4) that the issue
is ripe for judicial determination.8
This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two
Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and
remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner
representing the State asserts its duty to protect the institution of marriage while
respondent, a private citizen, insists on a declaration of his capacity to remarry.
Respondent, praying for relief, has legal interest in the controversy. The issue raised is also
ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and
puts into question the validity of his second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code
apply to the case of respondent? Necessarily, we must dwell on how this provision had
come about in the first place, and what was the intent of the legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209,
otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26
thereof states:
All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No.
227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A
second paragraph was added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in
force in the country where they were solemnized, and valid there as such, shall also be valid
in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis
supplied)
On its face, the foregoing provision does not appear to govern the situation presented by the
case at hand. It seems to apply only to cases where at the time of the celebration of the
marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at
the time the marriage was solemnized, the parties were two Filipino citizens, but later on,
the wife was naturalized as an American citizen and subsequently obtained a divorce
granting her capacity to remarry, and indeed she remarried an American citizen while
residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings9 on the Family Code, the Catholic Bishops’
Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of
Article 26:
1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who
divorce them abroad. These spouses who are divorced will not be able to re-marry, while
the spouses of foreigners who validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens.
For those whose foreign spouses validly divorce them abroad will also be considered to be
validly divorced here and can re-marry. We propose that this be deleted and made into law
only after more widespread consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the intent of
Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil
Code Revision Committee, is to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after obtaining a divorce, is no longer married to
the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v.
Romillo, Jr.10 The Van Dorn case involved a marriage between a Filipino citizen and a
foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse
is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry
under Philippine law.
Does the same principle apply to a case where at the time of the celebration of the
marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign
citizenship by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.11 In
Quita, the parties were, as in this case, Filipino citizens when they got married. The wife
became a naturalized American citizen in 1954 and obtained a divorce in the same year.
The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized
foreign spouse is no longer married under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of reason, we hold
that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who,
at the time of the celebration of the marriage were Filipino citizens, but later on, one of them
becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse
should likewise be allowed to remarry as if the other party were a foreigner at the time of the
solemnization of the marriage. To rule otherwise would be to sanction absurdity and
injustice. Where the interpretation of a statute according to its exact and literal import would
lead to mischievous results or contravene the clear purpose of the legislature, it should be
construed according to its spirit and reason, disregarding as far as necessary the letter of
the law. A statute may therefore be extended to cases not within the literal meaning of its
terms, so long as they come within its spirit or intent.12
If we are to give meaning to the legislative intent to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no
longer married to the Filipino spouse, then the instant case must be deemed as coming
within the contemplation of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the application of Paragraph 2 of
Article 26 as follows:
1. There is a valid marriage that has been celebrated between a Filipino citizen and a
foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the time of the celebration of the
marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien
spouse capacitating the latter to remarry.
In this case, when Cipriano’s wife was naturalized as an American citizen, there was still a
valid marriage that has been celebrated between her and Cipriano. As fate would have it,
the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry.
Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present
in this case. Thus Cipriano, the "divorced" Filipino spouse, should be allowed to remarry.
We are also unable to sustain the OSG’s theory that the proper remedy of the Filipino
spouse is to file either a petition for annulment or a petition for legal separation. Annulment
would be a long and tedious process, and in this particular case, not even feasible,
considering that the marriage of the parties appears to have all the badges of validity. On
the other hand, legal separation would not be a sufficient remedy for it would not sever the
marriage tie; hence, the legally separated Filipino spouse would still remain married to the
naturalized alien spouse.
However, we note that the records are bereft of competent evidence duly submitted by
respondent concerning the divorce decree and the naturalization of respondent’s wife. It is
settled rule that one who alleges a fact has the burden of proving it and mere allegation is
not evidence.13
Accordingly, for his plea to prosper, respondent herein must prove his allegation that his
wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can
be recognized by our own courts, the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it.14 Such foreign law must also be
proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such
laws must be alleged and proved.15 Furthermore, respondent must also show that the
divorce decree allows his former wife to remarry as specifically required in Article 26.
Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter
into another marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family
Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino
citizen, who has been divorced by a spouse who had acquired foreign citizenship and
remarried, also to remarry. However, considering that in the present petition there is no
sufficient evidence submitted and on record, we are unable to declare, based on
respondent’s bare allegations that his wife, who was naturalized as an American citizen, had
obtained a divorce decree and had remarried an American, that respondent is now
capacitated to remarry. Such declaration could only be made properly upon respondent’s
submission of the aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed
Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial
Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.
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 quo 1 and the Court of Appeal, 2 Leouel persists in beseeching its
application in his attempt to have his marriage with herein private respondent, Julia Rosario
Bedia-Santos ("Julia"), declared a nullity.
It was in Iloilo City where Leouel, who then held the rank of First Lieutenant in the Philippine
Army, first met Julia. The meeting later proved to be an eventful day for Leouel and Julia.
On 20 September 1986, the two exchanged vows before Municipal Trial Court Judge
Cornelio G. Lazaro of Iloilo City, followed, shortly thereafter, by a church wedding. Leouel
and Julia lived with the latter's parents at the J. Bedia Compound, La Paz, Iloilo City. On 18
July 1987, Julia gave birth to a baby boy, and he was christened Leouel Santos, Jr. The
ecstasy, however, did not last long. It was bound to happen, Leouel averred, because of the
frequent interference by Julia's parents into the young spouses family affairs. Occasionally,
the couple would also start a "quarrel" over a number of other things, like when and where
the couple should start living independently from Julia's parents or whenever Julia would
express resentment on Leouel's spending a few days with his own parents.
On 18 May 1988, Julia finally left for the United Sates of America to work as a nurse despite
Leouel's pleas to so dissuade her. Seven months after her departure, or on 01 January
1989, Julia called up Leouel for the first time by long distance telephone. She promised to
return home upon the expiration of her contract in July 1989. She never did. When Leouel
got a chance to visit the United States, where he underwent a 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
xxx xxx xxx
Judge Diy proposed that they include physical incapacity to copulate among the grounds for
void marriages. Justice Reyes commented that in some instances the impotence that in
some instances the impotence is only temporary and only with respect to a particular
person. Judge Diy stated that they can specify that it is incurable. Justice Caguioa remarked
that the term "incurable" has a different meaning in law and in medicine. Judge Diy stated
that "psychological incapacity" can also be cured. Justice Caguioa, however, pointed out
that "psychological incapacity" is incurable.
Justice Puno observed that under the present draft provision, it is enough to show that at
the time of the celebration of the marriage, one was psychologically incapacitated so that
later on if already he can comply with the essential marital obligations, the marriage is still
void ab initio. Justice Caguioa explained that since in divorce, the psychological incapacity
may occur after the marriage, in void marriages, it has to be at the time of the celebration of
marriage. He, however, stressed that the idea in the provision is that at the time of the
celebration of the marriage, one is psychologically incapacitated to comply with the essential
marital obligations, which incapacity continues and later becomes manifest.
Justice Puno and Judge Diy, however, pointed out that it is possible that after the marriage,
one's psychological incapacity become manifest but later on he is cured. Justice Reyes and
Justice Caguioa opined that the remedy in this case is to allow him to remarry. 6
xxx xxx xxx
Justice Puno formulated the next Article as follows:
Art. 37. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated, to comply with the essential obligations of marriage shall
likewise be void from the beginning even if such incapacity becomes manifest after its
solemnization.
Justice Caguioa suggested that "even if" be substituted with "although." On the other hand,
Prof. Bautista proposed that the clause "although such incapacity becomes manifest after its
solemnization" be deleted since it may encourage one to create the manifestation of
psychological incapacity. Justice Caguioa pointed out that, as in other provisions, they
cannot argue on the basis of abuse.
Judge Diy suggested that they also include mental and physical incapacities, which are
lesser in degree than psychological incapacity. Justice Caguioa explained that mental and
physical incapacities are vices of consent while psychological incapacity is not a species of
vice or consent.
Dean Gupit read what Bishop Cruz said on the matter in the minutes of their February 9,
1984 meeting:
"On the third ground, Bishop Cruz indicated that the phrase "psychological or mental
impotence" is an invention of some churchmen who are moralists but not canonists, that is
why it is considered a weak phrase. He said that the Code of Canon Law would rather
express it as "psychological or mental incapacity to discharge . . ."
Justice Caguioa remarked that they deleted the word "mental" precisely to distinguish it from
vice of consent. He explained that "psychological incapacity" refers to lack of understanding
of the essential obligations of marriage.
Justice Puno reminded the members that, at the last meeting, they have decided not to go
into the classification of "psychological incapacity" because there was a lot of debate on it
and that this is precisely the reason why they classified it as a special case.
At this point, Justice Puno, remarked that, since there having been annulments of marriages
arising from psychological incapacity, Civil Law should not reconcile with Canon Law
because it is a new ground even under Canon Law.
Prof. Romero raised the question: With this common provision in Civil Law and in Canon
Law, are they going to have a provision in the Family Code to the effect that marriages
annulled or declared void by the church on the ground of psychological incapacity is
automatically annulled in Civil Law? The other members replied negatively.
Justice Puno and Prof. Romero inquired if Article 37 should be retroactive or prospective in
application.
Justice Diy opined that she was for its retroactivity because it is their answer to the problem
of church annulments of marriages, which are still valid under the Civil Law. On the other
hand, Justice Reyes and Justice Puno were concerned about the avalanche of cases.
Dean Gupit suggested that they put the issue to a vote, which the Committee approved.
The members voted as follows:
(1) Justice Reyes, Justice Puno and Prof. Romero were for prospectivity.
(2) Justice Caguioa, Judge Diy, Dean Gupit, Prof. Bautista and Director Eufemio were for
retroactivity.
(3) Prof. Baviera abstained.
Justice Caguioa suggested that they put in the prescriptive period of ten years within which
the action for declaration of nullity of the marriage should be filed in court. The Committee
approved the suggestion. 7
It could well be that, in sum, the Family Code Revision Committee in ultimately deciding to
adopt the provision with less specificity than expected, has in fact, so designed the law as to
allow some resiliency in its application. Mme. Justice Alicia V. Sempio-Diy, a member of the
Code Committee, has been quoted by Mr. Justice Josue N. Bellosillo in Salita vs. Hon.
Magtolis (G.R. No. 106429, 13 June 1994); thus: 8
The Committee did not give any examples of psychological incapacity for fear that the giving
of examples would limit the applicability of the provision under the principle of ejusdem
generis. Rather, the Committee would like the judge to interpret the provision on a case-to-
case basis, guided by experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals which, although not binding on the civil
courts, may be given persuasive effect since the provision was taken from Canon Law.
A part of the provision is similar to Canon 1095 of the New Code of Canon Law, 9 which
reads:
Canon 1095. They are incapable of contracting marriage:
1. who lack sufficient use of reason;
2. who suffer from a grave defect of discretion of judgment concerning essentila matrimonial
rights and duties, to be given and accepted mutually;
3. who for causes of psychological nature are unable to assume the essential obligations of
marriage. (Emphasis supplied.)
Accordingly, although neither decisive nor even perhaps all that persuasive for having no
juridical or secular effect, the jurisprudence under Canon Law prevailing at the time of the
code's enactment, nevertheless, cannot be dismissed as impertinent for its value as an aid,
at least, to the interpretation or construction of the codal provision.
One author, Ladislas Orsy, S.J., in his treaties, 10 giving an account on how the third
paragraph of Canon 1095 has been framed, states:
The history of the drafting of this canon does not leave any doubt that the legislator
intended, indeed, to broaden the rule. A strict and narrow norm was proposed first:
Those who cannot assume the essential obligations of marriage because of a grave psycho-
sexual anomaly (ob gravem anomaliam psychosexualem) are unable to contract marriage
(cf. SCH/1975, canon 297, a new canon, novus);
then a broader one followed:
. . . because of a grave psychological anomaly (ob gravem anomaliam psychicam) . . . (cf.
SCH/1980, canon 1049);
then the same wording was retained in the text submitted to the pope (cf. SCH/1982, canon
1095, 3);
finally, a new version was promulgated:
because of causes of a psychological nature (ob causas naturae psychiae).
So the progress was from psycho-sexual to psychological anomaly, then the term anomaly
was altogether eliminated. it would be, however, incorrect to draw the conclusion that the
cause of the incapacity need not be some kind of psychological disorder; after all, normal
and healthy person should be able to assume the ordinary obligations of marriage.
Fr. Orsy concedes that the term "psychological incapacity" defies any precise definition
since psychological causes can be of an infinite variety.
In a book, entitled "Canons and Commentaries on Marriage," written by Ignatius Gramunt,
Javier Hervada and LeRoy Wauck, the following explanation appears:
This incapacity consists of the following: (a) a true inability to commit oneself to the
essentials of marriage. Some psychosexual disorders and other disorders of personality can
be the psychic cause of this defect, which is here described in legal terms. This particular
type of incapacity consists of a real inability to render what is due by the contract. This could
be compared to the incapacity of a farmer to enter a binding contract to deliver the crops
which he cannot possibly reap; (b) this inability to commit oneself must refer to the essential
obligations of marriage: the conjugal act, the community of life and love, the rendering of
mutual help, the procreation and education of offspring; (c) the inability must be tantamount
to a psychological abnormality. The mere difficulty of assuming these obligations, which
could be overcome by normal effort, obviously does not constitute incapacity. The canon
contemplates a true psychological disorder which incapacitates a person from giving what is
due (cf. John Paul II, Address to R. Rota, Feb. 5, 1987). However, if the marriage is to be
declared invalid under this incapacity, it must be proved not only that the person is afflicted
by a psychological defect, but that the defect did in fact deprive the person, at the moment
of giving consent, of the ability to assume the essential duties of marriage and consequently
of the possibility of being bound by these duties.
Justice Sempio-Diy 11 cites with approval the work of Dr. Gerardo Veloso, a former
Presiding Judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila
(Branch 1), who opines that psychological incapacity must be characterized by (a) gravity,
(b) juridical antecedence, and (c) incurability. The incapacity must be grave or serious such
that the party would be incapable of carrying out the ordinary duties required in marriage; it
must be rooted in the history of the party antedating the marriage, although the overt
manifestations may emerge only after the marriage; and it must be incurable or, even if it
were otherwise, the cure would be beyond the means of the party involved.
Art. 1. Marriage is a special contract of permanent union between a man a woman entered
into in accordance with law for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution whose nature, consequences,
and incidents are governed by law and not subject to stipulation, except that marriage
settlements may fix the property relations during the marriage within the limits provided by
this Code. (Emphasis supplied.)
Our Constitution is no less emphatic:
Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly,
it shall strengthen its solidarity and actively promote its total development.

It should be obvious, looking at all the foregoing disquisitions, including, and most Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall
importantly, the deliberations of the Family Code Revision Committee itself, that the use of be protected by the State. (Article XV, 1987 Constitution).
the phrase "psychological incapacity" under Article 36 of the Code has not been meant to
The above provisions express so well and so distinctly the basic nucleus of our laws on
comprehend all such possible cases of psychoses as, likewise mentioned by some
marriage and the family, and they are doubt the tenets we still hold on to.
ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances
(cited in Fr. Artemio Baluma's "Void and Voidable Marriages in the Family Code and their The factual settings in the case at bench, in no measure at all, can come close to the
Parallels in Canon Law," quoting from the Diagnostic Statistical Manual of Mental Disorder standards required to decree a nullity of marriage. Undeniably and understandably, Leouel
by the American Psychiatric Association; Edward Hudson's "Handbook II for Marriage Nullity stands aggrieved, even desperate, in his present situation. Regrettably, neither law nor
Cases"). Article 36 of the Family Code cannot be taken and construed independently of, but society itself can always provide all the specific answers to every individual problem.
must stand in conjunction with, existing precepts in our law on marriage. Thus correlated,
"psychological incapacity" should refer to no less than a mental (not physical) incapacity that WHEREFORE, the petition is DENIED.
causes a party to be truly incognitive of the basic marital covenants that concomitantly must
be assumed and discharged by the parties to the marriage which, as so expressed by SO ORDERED.
Article 68 of the Family Code, include their mutual obligations to live together, observe love,
respect and fidelity and render help and support. There is hardly any doubt that the
intendment of the law has been to confine the meaning of "psychological incapacity" to the
most serious cases of personality disorders clearly demonstrative of an utter intensitivity or
inability to give meaning and significance to the marriage. This pschologic condition must
exist at the time the marriage is celebrated. The law does not evidently envision, upon the
other hand, an inability of the spouse to have sexual relations with the other. This
conclusion is implicit under Article 54 of the Family Code which considers children
conceived prior to the judicial declaration of nullity of the void marriage to be "legitimate."

The other forms of psychoses, if existing at the inception of marriage, like the state of a
party being of unsound mind or concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to
Article 46, Family Code. If drug addiction, habitual alcholism, lesbianism or homosexuality
should occur only during the marriage, they become mere grounds for legal separation
under Article 55 of the Family Code. These provisions of the Code, however, do not
necessarily preclude the possibility of these various circumstances being themselves,
depending on the degree and severity of the disorder, indicia of psychological incapacity.

Until further statutory and jurisprudential parameters are established, every circumstance
that may have some bearing on the degree, extent, and other conditions of that incapacity
must, in every case, be carefully examined and evaluated so that no precipitate and
indiscriminate nullity is peremptorily decreed. The well-considered opinions of psychiatrists,
psychologists, and persons with expertise in psychological disciplines might be helpful or
even desirable.

Marriage is not an adventure but a lifetime commitment. We should continue to be reminded

that innate in our society, then enshrined in our Civil Code, and even now still indelible in
Article 1 of the Family Code, is that —