Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.M. No. 02-11-11-SC March 4, 2003

RE: PROPOSED RULE ON LEGAL SEPARATION

RESOLUTION

Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting for this
Court's consideration and approval the Proposed Rule on Legal Separation, the Court Resolved to APPROVED the
same.

The Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not
later than March 7, 2003

March 4, 2003

Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval Gutierrez, Carpio, Austria-
Martinez, Carpio-Morales, Callejo, Sr. and Azcuna, JJ.
Ynares-Santiago, on leave,
Corona, officially on leave.

RULE ON LEGAL SEPARATION

Section 1. Scope. - This Rule shall govern petitions for legal separation under the Family Code of the Philippines.

The Rules of Court shall apply suppletorily.

Section 2. Petition. - (a) Who may and when to file. - (1) A petition for legal separation may be filed only by the
husband or the wife, as the case may be within five years from the time of the occurrence of any of the following
causes:

(a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common
child, or a child of the petitioner;

(b) Physical violence or moral pressure to compel the petitioner to change religious or political
affiliation;

(c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance in such corruption or inducement;

(d) Final judgment sentencing the respondent to imprisonment of more than six years, even if
pardoned;

(e) Drug addiction or habitual alcoholism of the respondent;

(f) Lesbianism or homosexuality of the respondent;

(g) Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the
Philippines;

(h) Sexual infidelity or perversion of the respondent;

(i) Attempt on the life of petitioner by the respondent; or

 (j) Abandonment of petitioner by respondent without justifiable cause for more than one year.

(b) Contents and form. - The petition for legal separation shall:

(1) Allege the complete facts constituting the cause of action.

(2) State the names and ages of the common children of the parties, specify the regime governing
their property relations, the properties involved, and creditors, if any. If there is no adequate
provision in a written agreement between the parties, the petitioner may apply for a provisional order
for spousal support, custody and support of common children, visitation rights, administration of
community or conjugal property, and other similar matters requiring urgent action,

(3) Be verified and accompanied by a certification against forum shopping. The verification and
certification must be personally signed by the petitioner. No petition may be filed solely by counsel or
through an attorney-in-fact. If the petitioner is in a foreign country, the verification and certification
against forum shopping shall be authenticated by the duly authorized officer of the Philippine
embassy or legation, consul general, consul or vice-consul or consular agent in said country

(4) Be filed in six copies. The petitioner shall, within five days from such filing, furnish a copy of the
petition to the City or Provincial Prosecutor and the creditors, if any, and submit to the court proof of
such service within the same period.

Failure to comply with the preceding requirements may be a ground for immediate dismissal of
the petition.

(c) Venue. - The petition shall be filed in the Family Court of the province or city where the petitioner or the
respondent has been residing for at least six months prior to the date of filing "or in The case of a non-
resident respondent, where he may be found in the Philippines, at the election of the petitioner.

Section 3. Summons. - The service of summons shall be governed by Rule 14 of the Rules of Court and by the
following rules:

(a) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot
be ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by
publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines
and in such place as the court may order. In addition, a copy of the summons shall be served on respondent
at his last known address by registered mail or by any other means the court may deem sufficient.

(b) The summons to be published shall be contained in an order of the court with the following data; (1) title
of the case; (2) docket number; (3) nature of the petition; (4) principal grounds of the petition and the reliefs
prayed for, and (5) a directive for respondent to answer within thirty days from the last issue of publication.

Section 4. Motion to Dismiss. - No motion to dismiss the petition shall be allowed except on the ground of lack of
jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant
a dismissal of the case may be raised as an affirmative defense in an answer.

Section 5. Answer. - (a) The respondent shall file his answer within fifteen days from receipt of summons, or within
thirty days from the last issue of publication in case of service of summons by publication. The answer must be
verified by respondent himself and not by counsel or attorney-in-fact.

(b) If the respondent fails to file an answer, the court shall not declare him in default.

(c) Where no answer is filed/or if the answer does not tender an issue the court shall order the public
prosecutor to investigate whether collusion exists between the parties.

Section 6. Investigation Report of Public Prosecutor. - (a) Within one one month after receipt of the court order
mentioned in paragraph (c) of the preceeding section, the public prosecutor shall submit a report to the court on
whether the parties are in collusion and serve copies on the parties and their respective counsels, if any.

(b) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The
parties shall file their respective comments on the finding of collusion within ten days from receipt of copy of
the report. The court shall set the report for hearing and if convinced that parties are in collusion,-it shall
dismiss the petition.
 (c) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be
the duty of the public prosecutor to appear for the State at the pre-trial.

Section 7. Social Worker. - The court may require a social worker to conduct a case study and to submit the
corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of
the case whenever necessary,

Section 8. Pre-trial. -

(a) Pre-trial mandatory.-A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial
after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that
no collusion exists between the parties on a date not earlier than six months from date of the filing of the
petition.

(b) Notice of Pre-trial.-(1) The notice of pre-trial shall contain:

(a) the date of pre-trial conference; and

(b) an order directing the parties to file and serve their respective pre-trial briefs in such
manner as shall ensure the receipt thereof by the adverse party at least three days before the
date of pre-trial.

(2) The notice shall be served separately on the parties and their respective counsels as well as on
the public prosecutor. It shall be their duty to appear personally at the pre-trial.

(3) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of
summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent
to respondent at his last known address.

Section 9. Contents of pre-trial brief. - The pre-trial brief shall contain the following:

(1) A statement of the willingness of the parties to enter into agreements as may be allowed by law,
indicating the desired terms thereof;

(2) A concise statement of their respective claims together with the applicable laws and authorities;

(3) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues;

(4) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature
and purpose thereof;

(5) The number and names of the witnesses and their respective affidavits; and

(6) Such other matters as the court may require.

Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to
appear at the pre-trial under the succeeding section.

Section 10. Effect of failure to appear at the pre-trial. - (1) If the petitioner fails to appear personally, the case shall
be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for
the non-appearance of the petitioner.

(2) If the respondent filed his answer but fails to appear, the court shall proceed with the pre-trial and require
the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days a
report to the court stating whether his non-appearance is due to any collusion between the parties/ If there is
no collusion the court shall require the public prosecutor to intervene for the State during the trial on
the.merits to prevent suppression or fabrication of evidence.

Section 11. Pre-trial conference. - At the pre-trial conference, the court may refer the issues to a mediator who shall
assist the parties in reaching an agreement on matters not prohibited by law.
 The mediator shall render a report within one month from referral which, for good reasons, the court may
extend for a period not exceeding one month.

In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on
which occasion it shall consider the advisability of receiving expert testimony and such other matters as may aid in
the prompt disposition of the petition.

Section 12. Pre-trial order. - (a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial,
the court shall issue a pre-trial order which shall recite in detail the matters taken up in the conference, the action
taken thereon, the amendments allowed on the pleadings, and, except as to the ground of legal separation, the
agreements or admissions made by the parties on any of the matters considered, including any provisional order that
may be necessary or agreed upon by the parties.

(b) Should the action proceed to trial, the order shall contain a recital of the following:

(1) Facts undisputed, admitted, and those which need not be proved subject to Section 13 of this
Rule;

(2) Factual and legal issues to be litigated;

(3) Evidence, including objects and documents, that have been marked and will be presented;

(4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and

(5) Schedule of the presentation of evidence.

The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and
take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or
suppression of evidence during the trial on the merits.

(c) The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated
in the pre-trial order. The order shall control the trial of the case unless modified by the court to prevent
manifest injustice.

(d) The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications.

Section 13. Prohibited compromise. - The court shall not allow compromise on prohibited matters, such as the
following:

(1) The civil status of persons;

(2) The validity of a marriage or of a legal separation;

(3) Any ground lor legal separation;

(4) Future support;

(5) The jurisdiction of courts; and

(6) Future legitime.

Section 14. Trial. - (a) The presiding judge shall personally conduct the trial of the case. No delegation of the
reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the
spouses.

(b) The grounds for legal separation must be proved. No judgment on the pleadings, summary judgment, or
confession of judgment shall be allowed.

(c) The court may order the exclusion from the courtroom of all persons, including members of the press,
who do not have a direct interest in the case. Such an order may be made if the court determines on the
record othat requiring a party to testify in open court would not enhance the ascertainment of truth; would
 cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or
timidity; would violate the party's right to privacy; or would be offensive to decency

(d) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made
by any person other than a party or counsel of a party, except by order of the court.

Section 15. Memoranda. - The court may require the parties and the public prosecutor to file their respective
memoranda in support of their claims within fifteen days from the date the trial is terminated. No other pleadings or
papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be
considered submitted for decision, with or without the memoranda.

Section 16. Decision. - (a) The court shall deny the petition on any of the following grounds:

(1) The aggrieved party has condoned the offense or act complained of or has consented to the
commission of the offense or act complained of;

(2) There is connivance in the commission of the offense-or act constituting the ground for legal
separation;

(3) Both parties have given ground for legal separation;

(4) There is collusion between the parties to obtain the decree of legal separation; or

(5) The action is barred by prescription.

(b) If the court renders a decision granting the petition, it shall declare therein that the Decree of Legal
Separation shall be issued by the court only after full compliance with liquidation under the Family Code.

However, in the absence of any property of.the parties, the court shall forthwith issue a Decree of
Legal Separation which shall be registered in the Civil Registry where the marriage was recorded and in the
Civil Registry where the Family Court granting the legal separation is located.

(c) The decision shall likewise declare that:

(1) The spouses are entitled to live separately from each other but the marriage bond is not severed;

(2) The obligation of mutual support between the spouses ceases; and

(3) The offending spouse is disqualified from inheriting from the innocent spouse by intestate
succession, and provisions in favor of the offending spouse made in the will of the innocent spouse
are revoked by operation of law.

(d) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the
decision personally or by registered mail. If the respondent summoned by publication failed to appear in the
action, the dispositive part of the decision shall also be published once in a newspaper of general circulation.

Section 17. Appeal. -

(a) Pre-condition. - No appeal from the decision shall be allowed unless the appellant has filed a motion for
reconsideration or new trial within fifteen days from notice of judgment.

(b) Notice of Appeal - An aggrieved party or the Solicitor General may appeal from the decision by filing a
Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The
appellant shall serve a copy of the notice of appeal upon the adverse parties.

Section 18. Liquidation, partition and distribution, custody, and support of minor children. - Upon entry of the
judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court
granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and
distribution of the properties of the spouses, including custody and support of common children, under the Family
Code unless such matters had been adjudicated in previous judicial proceedings.
Section 19. Issuance of Decree of Legal Separation. - (a) The court shall issue the Decree of Legal Separation after:

(1) registration of the entry of judgment granting the petition tor legal separation in the Civil Registry
where the marriage was celebrated and in the Civil Registry where the Family Court is located; and

(2) registration of the approved partition and distribution of the properties of the spouses, in the
proper Register of Deeds where the real properties are located.

(b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the
Decree the approved deed of partition.

Section 20. Registration and publication of the Decree of Legal Separation; decree as best evidence. -

(a) Registration of decree.-The prevailing party shall cause the registration of the Decree in the Civil Registry
where the marriage was registered, in the Civil Registry of the place where the Family Court is situated, and
in the National Census and Statistics Office. He shall report to the court compliance with this requirement
within thirty days iron receipt of the copy of the Decree.

(b) Publication of decree.-- In case service of summons was made by publication, the parties shall cause the
publication of the Decree once in a newspaper of general circulation.

(c) Best evidence.-The registered Decree shall be the best evidence to prove the legal separation of the
parties and shall serve as notice to third persons concerning the properties of petitioner and respondent.

Section 21. Effect of death of a party; duty of the Family Court or Appellate Court. - (a) In case a party dies at any
stage of me proceedings before the entry of judgment, the court shall order the case closed and terminated without
prejudice to the settlement of estate proper proceedings in the regular courts.

(b) If the party dies after the entry of judgment, the same shall be binding upon the parties and their
successors in interest in the settlement of the estate in the regular courts.

Section 22. Petition for revocation of donations. - (a) Within five (5) years from the date the decision granting the
petition for legal separation has become final, the innocent spouse may file a petition under oath the same
proceeding for legal separation to revoke the donations in favor of the offending spouse.

(b)The revocation of the donations shall be recorded in the Register of Deeds of Deeds in the places where
the properties are located.

(c)Alienations, liens, and encumbrances registered in good faith. before the recording of the petition for
revocation in the registries of property shall be respected.

(d)After the issuance of the Decree of Legal Separation, the innocent spouse may revoke the designation of
the offending spouse as a beneficiary in any insurance policy even if such designation be stipulated as
irrevocable. The revocation or change shall take effect upon written notification thereof to the insurer.

Section 23. Decree of Reconciliation. - (a) If the spouses had reconciled, a joint manifestation under oath, duly
signed by the spouses, may be filed in the same proceeding for legal separation.

(b) If the reconciliation occurred while the proceeding for legal separation is pending, the court shall
immediately issue an order terminating the proceeding.

(c) If the reconciliation occurred after the rendition of the judgment granting the petition for legal separation
but before the issuance of the Decree, the spouses shall express in their manifestation whether or not they
agree to revive the former regime of their property relations or choose a new regime.

The court shall immediately issue a Decree of Reconciliation declaring that the legal separation
proceeding is set aside and specifying the regime of property relations under which the spouses shall be
covered.

(d) If the spouses reconciled after the issuance of the Decree, the court, upon proper motion, shall issue a
decree of reconciliation declaring therein that the Decree is set aside but the separation of property and any
 forfeiture of the share of the guilty spouse already effected subsists, unless the spouses have agreed to revive
their former regime of property relations or adopt a new regime.

(e) In case of paragraphs (b), (c), and (d). if the reconciled spouses choose to adopt a regime of property
relations different from that which they had prior to the filing of the petition for legal separation, the spouses
shall comply with Section 24 hereof.

(f) The decree of reconciliation shall be recorded in the Civil Registries where the marriage and the Decree
had been registered.

Section 24. Revival of property regime or adoption of another. -

(a) In case of reconciliation under Section 23, paragraph (c) above, the parties shall file a verified motion for
revival of regime of property relations or the adoption of another regime of property relations in the same
proceeding for legal separation attaching to said motion their agreement for the approval of the court.

(b) The agreement which shall be verified shall specify the following:

(1) The properties to be contributed to the restored or new regime;

(2) Those to be retained as separate properties of each spouse; and

(3) The names of all their known creditors, their addresses, and the amounts owing to each.

(c) The creditors shall be furnished with copies of the motion and the agreement.

(d) The court shall require the spouses to cause the publication of their verified motion for two consecutive
weeks in a newspaper of general circulation.

(e) After due hearing, and the court decides to grant the motion, it shall issue an order directing the parties
to record the order in the proper registries of property within thirty days from receipt of a copy of the order
and submit proof of compliance within the same period.

Section 25. Effectivity. - This Rule shall take effect on March 15,2003 following its publication in a newspaper of
general circulation not later than March 7, 2003.
 Supreme Court of the Philippines children within 15 days from receipt of the decision.

SECOND DIVISION Thereafter, petitioner filed an urgent ex-parte motion

to modify said decision, while respondent filed a
G.R. No. 132592, January 23, 2002 Notice of Appeal.

AIDA P. BAÑEZ, PETITIONER, VS. GABRIEL B. The trial court granted petitioner Aida Banez’ urgent
BAÑEZ, RESPONDENT. ex-parte motion to modify the decision on October 1,
1996 by approving the Commitment of Fees dated
[G.R. No. 133628. January 23, 2002] December 22, 1994; obliging petitioner to pay as
attorney’s fees the equivalent of 5% of the total value
AIDA P. BAÑEZ, PETITIONER, VS. GABRIEL B. of respondent’s ideal share in the net conjugal assets;
BAÑEZ, RESPONDENT. and ordering the administrator to pay petitioner’s
counsel, Atty. Adelino B. Sitoy, the sum of P100,000 as
DECISION advance attorney’s fees chargeable against the
aforecited 5%.[4]
QUISUMBING, J.:

In another motion to modify the decision, petitioner

These two petitions stem from the decision[1] dated
Aida Bañez sought moral and exemplary damages, as
September 23, 1996 of the Regional Trial Court of
well as litigation expenses. On October 9, 1996, she
Cebu, Branch 20, in Civil Case No. CEB-16765. The
filed a motion for execution pending appeal.
first[2] seeks the reversal of the Court of Appeals’
Respondent Gabriel Bañez filed a consolidated written
decision dated March 21, 1997, setting aside the
opposition to the two motions, and also prayed for the
orders dated October 1 and November 22, 1996 of the
reconsideration of the October 1, 1996 order.
Regional Trial Court. The second[3] prays for the
reversal of the resolution dated February 10, 1998, of
On November 22, 1996, the trial court denied Aida’s
the Court of Appeals in CA-G.R. No. CV-56265,
motion for moral and exemplary damages and
denying the motion to dismiss.
litigation expenses but gave due course to the
execution pending appeal. Thus:
The antecedent facts, as gathered from the parties’
WHEREFORE, in view of all the foregoing premises,
pleadings, are as follows:
the petitioner’s motion to modify decision is hereby
ordered denied. But, petitioner’s motion for execution
On September 23, 1996, the Regional Trial Court of
of decision pending appeal is hereby granted.
Cebu, Branch 20, decided Civil Case No. CEB-16765,
Consequently, let a writ of execution be issued in this
decreeing among others the legal separation between
case to enforce the decision for (1) respondent to
petitioner Aida Bañez and respondent Gabriel Bañez
vacate the premises of the small residential house
on the ground of the latter’s sexual infidelity; the
situated in Maria Luisa Estate Park Subdivision,
dissolution of their conjugal property relations and the
Lahug, Cebu City and for (2) respondent to surrender
division of the net conjugal assets; the forfeiture of
the use and possession of said Mazda motor vehicle
respondent’s one-half share in the net conjugal assets
together with its keys and accessories thereof to
in favor of the common children; the payment to
petitioner.
petitioner’s counsel of the sum of P100,000 as
attorney’s fees to be taken from petitioner’s share in
Atty. Edgar Gica, the Special Administrator, appointed
the net assets; and the surrender by respondent of
in this case, is hereby ordered to make the necessary
the use and possession of a Mazda motor vehicle and
computation of the value of the one-half (1/2) share of
the smaller residential house located at Maria Luisa
petitioner in the net remaining conjugal assets of the
Estate Park Subdivision to petitioner and the common
spouses within 10 days from receipt of this order.
 failed to file with the appellate court a Record on
The petitioner is hereby ordered to post a bond in the Appeal. On February 10, 1998, the Court of Appeals
amount of P1,500,000.00 to answer for all the decided the motion, thus:
damages that respondent may suffer arising from the WHEREFORE, premises considered, the petitioner–
issuance of said writ of execution pending appeal and appellant’s motion to dismiss filed on November 3,
to further answer for all the advances that petitioner 1997 is hereby DENIED. The appointment of the
may have received from the Special Administrator in petitioner-appellee as administratix of the conjugal
this case pending final termination of this present properties is hereby AFFIRMED.
[5]
case.
In view of petitioner’s Motion to Withdraw her own
In turn, in a petition for certiorari, Gabriel Bañez
appeal filed on November 27, 1997, and for failing to
elevated the case to the Court of Appeals. On March
pay the required docket fee within the prescribed
21, 1997, the appellate court rendered its decision,
period under Rule 41, Section 4 of the 1997 Rules of
thus:
Civil Procedure, the appeal instituted by the petitioner
WHEREFORE, the Order dated October 1, 1996 and
Aida P. Bañez is hereby DISMISSED.
the Omnibus Order dated November 22, 1996, insofar
as (1) it authorized the release of the sum of
In continuance of the appeal of respondent-appellant
P100,000.00 to private respondent’s counsel as the
[Gabriel Bañez], he is hereby ordered to file his brief
advanced share of private respondent [Aida Bañez] in
with the court within 45 days from receipt of this
the net remaining conjugal assets, and (2) granted the
resolution. The petitioner-appellee [Aida Bañez] shall
motion for execution pending appeal by ordering
file her own brief with the court within 45 days from
petitioner [Gabriel Bañez] to vacate the premises of
receipt of the petitioner-appellant’s [Gabriel Bañez]
the small residential house situated in Maria Luisa
brief.
Estate Park Subdivision, Lahug, Cebu City, and to
surrender the use and possession of the Mazda Motor
SO ORDERED.[7]
vehicle to private respondent are hereby SET ASIDE.
The writ of execution dated December 2, 1996 and the The appellate court also denied herein petitioner’s
Order dated December 10, 1996 granting the motion motion for reconsideration, hence, the petition in G.R.
filed by the sheriff to make symbolic delivery of the No. 133628.
subject house and motor vehicle to the administrator
of the partnership are also SET ASIDE. On January 19, 2000, we consolidated the two
petitions. Petitioner Aida Bañez now avers that the
As prayed for by petitioner, the Administrator of the Court of Appeals erred:
conjugal partnership is hereby ordered to cause the I. G.R. No. 132592
reimbursement by counsel for the private respondent
[Aida Bañez] of the amount of P100,000.00 released to ... IN SETTING ASIDE THE GRANT OF EXECUTION
him as advance payment of attorney’s fees. PENDING APPEAL BY THE TRIAL COURT OF THE
PORTIONS OF ITS DECISION ORDERING
[6]
SO ORDERED. RESPONDENT TO VACATE THE SMALLER
RESIDENTIAL HOUSE LOCATED AT THE MARIA
On February 10, 1998, the Court of Appeals denied
LUISA ESTATE PARK SUBDIVISION, CEBU CITY, AND
Aida’s motion for reconsideration. Hence, the petition
TO PAY P100,000.00 TO PETITIONER’S COUNSEL AS
in G.R. No. 132592, filed by herein petitioner.
ATTORNEY’S FEES TO BE TAKEN FROM HER SHARE
IN THE NET CONJUGAL ASSETS.[8]
In the meantime, the trial court gave due course to
Gabriel’s Notice of Appeal and elevated on April 15,
II. G.R. No. 133628:
1997 the entire case records to the Court of Appeals.
Aida filed with the Court of Appeals a motion to
... IN NOT GRANTING PETITIONER’S MOTION TO
dismiss the appeal on the ground that Gabriel had
DISMISS RESPONDENT’S ORDINARY APPEAL In this case, considering the reasons cited by
AND/OR NOT RETURNING THE RECORDS OF CIVIL petitioner, we are of the view that there is no superior
CASE NO. CEB-16765 TO THE REGIONAL TRIAL or urgent circumstance that outweighs the damage
[9]
COURT OF CEBU. which respondent would suffer if he were ordered to
vacate the house. We note that petitioner did not
In G.R. No. 132592, petitioner manifested that she
refute respondent’s allegations that she did not intend
no longer questions the Court of Appeals’ decision on
to use said house, and that she has two (2) other
the Mazda vehicle because respondent repossessed it.
houses in the United States where she is a permanent
As to the residential house, she claimed that being
resident, while he had none at all. Merely putting up
conjugal in nature, justice requires that she and her
a bond is not sufficient reason to justify her plea for
children be allowed to occupy and enjoy the house
execution pending appeal. To do so would make
considering that during the entire proceedings before
execution routinary, the rule rather than the
the trial court, she did not have the chance to occupy
exception.[12]
it. Further, she posted a bond of P1,500,000 for the
damages which respondent may suffer.[10] For these
Similarly, we are not persuaded that the P100,000
reasons, she asked for execution pending appeal. The
advance payment to petitioner’s counsel was properly
amount of P100,000 as advance payment to her
granted. We see no justification to pre-empt the
counsel was a “drop in the bucket” compared to the
judgment by the Court of Appeals concerning said
bond she posted, according to her. She also suggested
amount of P100,000 at the time that the trial court’s
as an alternative that she simply be required to put up
judgment was already on appeal.
an additional bond. She also agreed to submit to an
accounting as regular administratrix and the advance
In G.R. No. 133628, petitioner Aida Bañez contends
attorney’s fees be charged to her share in the net
that an action for legal separation is among the cases
conjugal assets.
where multiple appeals may be taken. According to
her, the filing of a record on appeal, pursuant to
In his comment, respondent denied petitioner’s
Section 2(a), Rule 41 of the Rules of Court,[13] is
allegation that she did not have the chance to occupy
required in this case. She concludes that respondent’s
the residential house. He averred that she could have,
appeal should have been dismissed for his failure to
had she chosen to. According to him, as the inventory
file the record on appeal within the reglementary
of the couple’s properties showed, petitioner owned
period, as provided under Section 1-b, Rule 50 of the
two houses and lots and two motor vehicles in the
Rules of Court.[14]
United States, where she is a permanent resident.
Respondent contended that there was no compelling
Petitioner likewise prays that, in the event that we do
reason for petitioner to have the judgment executed
not dismiss Gabriel Bañez’ appeal, we should direct
pending appeal.
the appellate court to return the records of the case to
the RTC of Cebu. Thereafter, according to her,
Essentially, the core issue in G.R. No. 132592 is
respondent should file his record on appeal for
whether execution of judgment pending appeal was
approval and transmittal to the Court of Appeals. In
justified.
the alternative, she prays that the appellate court
retain only the pleadings and evidence necessary to
As held in Echaus vs. Court of Appeals, 199 SCRA 381,
resolve respondent’s appeal pursuant to Section 6,
386 (1991), execution pending appeal is allowed when
Rule 44[15] and Section 6, Rule 135[16] of the Rules of
superior circumstances demanding urgency outweigh
Court, and return the rest of the case records to the
the damages that may result from the issuance of the
RTC.
writ. Otherwise, instead of being an instrument of
solicitude and justice, the writ may well become a tool
In turn, respondent argues that Section 39 of B.P.
of oppression and inequity.[11]
129[17] expressly abolished the requirement of a record
on appeal, except in appeals in special proceedings in
accordance with Rule 109,[18] and other cases wherein
multiple appeals are allowed. An action for legal
separation, he avers, is neither a special proceeding
nor one where multiple appeals are allowed.
Now, is an action for legal separation one where
multiple appeals are allowed? We do not think so.
In Roman Catholic Archbishop of Manila v. Court of
Appeals, 258 SCRA 186, 194 (1996), this Court held:
xxx Multiple appeals are allowed in special
proceedings, in actions for recovery of property with
accounting, in actions for partition of property with
accounting, in the special civil actions of eminent
domain and foreclosure of mortgage. The rationale
behind allowing more than one appeal in the same
case is to enable the rest of the case to proceed in the
event that a separate and distinct issue is resolved by
the court and held to be final.
In said case, the two issues raised by therein
petitioner that may allegedly be the subject of multiple
appeals arose from the same cause of action, and the
subject matter pertains to the same lessor-lessee
relationship between the parties. Hence, splitting the
appeals in that case would only be violative of the rule
against multiplicity of appeals.
effectively saying that the instant case is one involving
multiple appeals, which it is not. If we allow the
second, we are effectively applying by analogy, Section
6, Rule 44 and Section 6, Rule 135 of the Rules of
Court, without petitioner showing support therefor in
law or jurisprudence.[21]
WHEREFORE, the instant petitions are DENIED for
lack of merit. The decision and resolution of the Court
of Appeals in CA-G.R. SP No. 42663 and CA-G.R. No.
CV-56265, respectively, are hereby AFFIRMED, so
that the Order dated October 1, 1996, of the Regional
Trial Court authorizing the release of P100,000 to
petitioner’s counsel; the Omnibus Order dated
November 22, 1996 granting the motion pending
appeal; the writ of execution dated December 2, 1996;
and the Order dated December 10, 1996 granting the
motion by the sheriff to make symbolic delivery of the
house and vehicle are SET ASIDE. Further, the
Administrator of the conjugal partnership is
ORDERED to cause the reimbursement by
petitioner’s counsel of the released amount of
P100,000. The Court of Appeals is hereby DIRECTED
to give due course to respondent’s appeal, and the
Division Clerk of Court of this Court is likewise
DIRECTED to promptly remand the record of these
cases to the Court of Appeals.

The same holds true in an action for legal separation.

Costs against petitioner.
The issues involved in the case will necessarily relate
to the same marital relationship between the parties.
SO ORDERED.
The effects of legal separation, such as entitlement to
live separately, dissolution and liquidation of the
Bellosillo, (Chairman), Mendoza, Buena, and De Leon,
absolute community or conjugal partnership, and
Jr., JJ., concur.
custody of the minor children, follow from the decree
of legal separation.[19] They are not separate or distinct
matters that may be resolved by the court and become
final prior to or apart from the decree of legal
separation. Rather, they are mere incidents of legal
separation.[20] Thus, they may not be subject to
multiple appeals.

Petitioner’s alternative prayers that in case we do not

dismiss the appeal, we return the records to the trial
court and require respondent to file a record on
appeal, or we return the records to the trial court and
retain only the pleadings and orders relevant to the
appeal, are untenable. If we grant the first, we are
 Supreme Court of the Philippines
G.R. No. L-30977, January 31, 1972
CARMEN LAPUZ SY, REPRESENTED BY HER
SUBSTITUTE MACARIO LAPUZ, PETITIONER
AND APPELLANT, VS. EUFEMIO S. EUFEMIO
ALIAS EUFEMIO SY UY, RESPONDENT AND
APPELLEE.
DECISION
REYES, J.B.L., J.:
Petition, filed after the effectivity of Republic Act
5440, for review by certiorari of an order, dated 29
July 1969, of the Juvenile and Domestic Relations
Court of Manila, in its Civil Case No. 20387,
dismissing said case for legal separation on the
ground that the death of the therein plaintiff, Carmen
O. Lapuz Sy, which occurred during the pendency of
the case, abated the cause of action as well as the
action itself. The dismissal order was issued over the
objection of Macario Lapuz, the heir of the deceased
plaintiff (and petitioner herein) who sought to
substitute the deceased and to have the case
prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a
petition for legal separation against Eufemio S.
Eufemio, alleging, in the main, that they were married
civilly on 21 September 1934 and canonically on 30
September 1934; that they had lived together as
husband and wife continuously until 1943 when her
husband abandoned her, that they had no child; that
they acquired properties during their marriage; and
that she discovered her husband cohabiting with a
Chinese woman named Go Hiok at 1319 Sisa Street,
Manila, on or about March 1949. She prayed for the
issuance of a decree of legal separation, which, among
others, would order that the defendant Eufemio S.
Eufemio should be deprived of his share of the
conjugal partnership profits.
In his second amended answer to the petition, herein
respondent Eufemio S. Eufemio alleged affirmative
and special defenses, and, along with several other
claims involving money and other properties,
counterclaimed for the declaration of nullity ab initio
of his marriage with Carmen O. Lapuz Sy, on the
ground of his prior and subsisting marriage,
celebrated according to Chinese law and customs,
with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the
parties adduced their respective evidence. But before
the trial could be completed (the respondent was
already scheduled to present surrebuttal evidence on
9 and 18 June 1969), petitioner Carmen O. Lapuz Sy
died in a vehicular accident on 31 May 1969. Counsel
for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss
the "petition for legal separation"[1] on two (2)
grounds, namely: that the petition for legal separation
was filed beyond the one-year period provided for in
Article 102 of the Civil Code; and that the death of
Carmen abated the action for legal separation.
On 26 June 1969, counsel for deceased petitioner
moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio opposed
the motion.
On 29 July 1969, the court issued the order under
review, dismissing the case.[2] In the body of the order,
the court stated that the motion to dismiss and the
motion for substitution had to be resolved on the
question of whether or not the plaintiff's cause of
action has survived, which the court resolved in the
negative. Petitioner's counsel moved to reconsider but
the motion was denied on 15 September 1969.
After first securing an extension of time to file a
petition for review of the order of dismissal issued by
the juvenile and domestic relations court, the
petitioner filed the present petition on 14 October
1969. The same was given due course and answer
thereto was filed by respondent, who prayed for the
affirmance of the said order.[3]
Although the defendant below, the herein respondent
Eufemio S. Eufemio, filed counterclaims, he did not
pursue them after the court below dismissed the case.
He acquiesced in the dismissal of said counterclaims
by praying for the affirmance of the order that
dismissed not only the petition for legal separation but
also his counterclaim to declare the Eufemio-Lapuz
marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-
assumed substitute – for the lower court did not act on
the motion for substitution) stated the principal issue
to be as follows:
"When an action for legal separation is converted by
the counterclaim into one for a declaration of nullity of
a marriage, does the death of a party abate the
proceedings?"
The issue as framed by petitioner injects into it a
supposed conversion of a legal separation suit to one
for declaration of nullity of a marriage, which is
without basis, for even petitioner asserted that "the
respondent has acquiesced to the dismissal of his
counterclaim" (Petitioner's Brief, page 22). Not only
this. The petition for legal separation and the
counterclaim to declare the nullity of the self same
marriage can stand independent and separate
adjudication. They are not inseparable nor was the
action for legal separation converted into one for a
declaration of nullity by the counterclaim, for legal
separation presupposes a valid marriage, while the
petition for nullity has a voidable marriage as a
precondition.
The first real issue in this case is: Does the death of
the plaintiff before final decree, in an action for legal
separation, abate the action? If it does, will
abatement also apply if the action involves property
rights?
An action for legal separation which involves nothing
more than the bed-and-board separation of the
spouses (there being no absolute divorce in this
jurisdiction) is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by
allowing only the innocent spouse (and no one else) to
claim legal separation; and in its Article 108, by
providing that the spouses can, by their
reconciliation, stop or abate the proceedings and even
rescind a decree of legal separation already rendered.
Being personal in character, it follows that the death
of one party to the action causes the death of the
action itself – actio personalis moritur cum persona.
* * * When one of the spouses is dead, there is no need
for divorce, because the marriage is dissolved. The
heirs cannot even continue the suit, if the death of the
spouse takes place during the course of the suit
(Article 244, Section 3). The action is absolutely dead
(Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8,
1933, D.H. 1933, 332."[4]
"Marriage is a personal relation or status, created
under the sanction of law, and an action for divorce is
a proceeding brought for the purpose of effecting a
dissolution of that relation. The action is one of a
personal nature. In the absence of a statute to the
contrary, the death of one of the parties to such action
abates the action, for the reason that death has settled
the question of separation beyond all controversy and
deprived the court of jurisdiction, both over the
persons of the parties to the action and of the subject-
matter of the action itself. For this reason the courts
are almost unanimous in holding that the death of
either party to a divorce proceeding, before final
decree, abates the action. 1 Corpus Juris, 208; Wren
vs. Moss, 2 Gilman, 72; Danforth vs. Danforth, 111 III.
236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578,
134 Am St. Rep. 830, 17 Ann. Cas. 874; Wilcon vs.
Wilson, 73 Mich. 620, 41 N.W. 817; Strickland vs.
Strickland, 80 Ark. 452, 97 S. W. 659; McCurley vs.
McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie vs.
Begbie, 128 Cal. 155, 60 Pac. 667, 49 L. R. A. 141." [5]
The same rule is true of causes of action and suits for
separation and maintenance (Johnson vs. Bates, Ark.
101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations
between spouses shows that they are solely the effect
of the decree of legal separation; hence, they can not
survive the death of the plaintiff if it occurs prior to
the decree. On this point, Article 106 of the Civil Code
provides:
"Art. 106. The decree of legal separation shall have
the following effects:
"(1) The spouses shall be entitled to live separately
from each other, but the marriage bonds shall not be
severed;
"(2) The conjugal partnership of gains or the absolute
conjugal community of property shall be dissolved and
liquidated, but the offending spouse shall have no
right to any share of the profits earned by the
partnership or community, without prejudice to the
provisions of article 176;
"(3) The custody of the minor children shall be
awarded to the innocent spouse, unless otherwise
directed by the court in the interest of said minors, for
whom said court may appoint a guardian;
"(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent one
shall be revoked by operation of law." * * *
From this article it is apparent that the right to the
dissolution of the conjugal partnership of gains (or of
the absolute community of property), the loss of right
by the offending spouse to any share of the profits
earned by the partnership or community, or his
disqualification to inherit by intestacy from the
innocent spouse as well as the revocation of
testamentary provisions in favor of the offending
spouse made by the innocent one, are all rights and
disabilities that, by the very terms of the Civil Code
article, are vested exclusively in the persons of the
spouses; and by their nature and intent, such claims
and disabilities are difficult to conceive as assignable
or transmissible. Hence, a claim to said rights is not a
claim that "is not thereby extinguished" after a party
dies, under Section 17, Rule 3, of the Rules of Court,
to warrant continuation of the action through a
substitute of the deceased party.
"Sec. 17. Death of party. After a party dies and the
claim is not thereby extinguished, the court shall
order, upon proper notice, the legal representative of
the deceased to appear and to be substituted for the
deceased, within a period of thirty (30) days, or within
such time as may be granted. * * *."
The same result flows from a consideration of the
enumeration of the actions that survive for or against
administrators in Section 1, Rule 87, of the Revised
Rules of Court:
"SECTION 1. Actions which may and which may not
be brought against executor or administrator. No
action upon a claim for the recovery of money or debt
or interest thereon shall be commenced against the
executor or administrator; but actions to recover real
or personal property, or an interest therein, from the
estate, or to enforce a lien thereon, and actions to
recover damages for an injury to person or property,
real or personal, may be commenced against him."
Neither actions for legal separation or for annulment
of marriage can be deemed fairly included in the
enumeration.
A further reason why an action for legal separation is
abated by the death of the plaintiff, even if property
rights are involved, is that these rights are mere
effects of a decree of separation, their source being
the decree itself; without the decree such rights do
not come into existence, so that before the finality of a
decree, these claims are merely rights in expectation.
If death supervenes during the pendency of the action,
no decree can be forthcoming, death producing a
more radical and definitive separation; and the
expected consequential rights and claims would
necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a
declaration of nullity ab initio of his marriage to
Carmen Lapuz, it is apparent that such action became
moot and academic upon the death of the latter, and
there could be no further interest in continuing the
same after her demise, that automatically dissolved
the questioned union. Any property rights acquired by
either party as a result of Article 144 of the Civil Code
of the Philippines[6] could be resolved and determined
in a proper action for partition by either the appellee
or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been
void ab initio but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second
marriage had been contracted with the first wife
having been an absentee for seven consecutive years,
or when she had been generally believed dead, still
the action for annulment became extinguished as soon
as one of the three persons involved had died, as
provided in Article 87, paragraph 2, of the Code,
requiring that the action for annulment should be
brought during the lifetime of any one of the parties
involved. And furthermore, the liquidation of any
conjugal partnership that might have resulted from
such voidable marriage must be carried out "in the
testate or intestate proceedings of the deceased
spouse," as expressly provided in Section 2 of the
Revised Rule 73, and not in the annulment
proceeding.

ACCORDINGLY , the appealed judgment of the

Manila Court of Juvenile and Domestic Relations is
hereby affirmed. No special pronouncement as to
costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro,

Fernando, Teehankee, Barredo, Villamor, and
Makasiar, JJ., concur.
 Supreme Court of the Philippines
G.R. No. L-9667, July 31, 1956
LUIS MA. ARANETA, PETITIONER, VS.
HONORABLE HERMOGENES CONCEPCION, AS
JUDGE OF THE COURT OF FIRST INSTANCE OF
MANILA, BRANCH VI AND EMMA BENITEZ
ARANETA, RESPONDENTS.
DECISION
LABRADOR, J.:
The main action was brought by petitioner against his
wife, one of the respondent herein, for legal
separation on the ground of adultery. After the
issues were joined defendant therein filed an omnibus
petition to secure custody of their three minor
children, a monthly support of P5,000 for herself and
said children, and the return of her passport, to enjoin
plaintiff from ordering his hirelings from harassing
and molesting her, and to have plaintiff therein pay
for the fees of her attorney in the action. The
petition is supported by her affidavit. Plaintiff
opposed the petition, denying the misconduct imputed
to him and alleging that defendant had abandoned the
children; alleging that conjugal properties were worth
only P80,000, not one million pesos as alleged by
defendant; denying the taking of her passport or the
supposed vexation, and contesting her right to
attorney's fees. Plaintiff prayed that as the petition
for custody and support cannot be determined
without evidence, the parties be required to submit
their respective evidence. He also contended that
defendant is not entitled to the custody of the
children as she had abandoned them and had
committed adultery, that by her conduct she had
become unfit to educate her children, being unstable
in her emotions and unable to give the children the
love, respect and care of a true mother and without
means to educate them. As to the claim for support,
plaintiff claims that there are no conjugal assets and
she is not entitled to support because of her infidelity
and that she was able to support herself. Affidavits
and documents were submitted both in support and
against the omnibus petition.
The respondent judge resolved the omnibus petition,
granting the custody of the children to defendant and
a monthly allowance of P2,300 for support for her
and the children, P300 for a house and P2,000 as
attorney's fees. Upon refusal of the judge to
reconsider the order, petitioner filed the present
petition for certiorari against said order and for
mandamus to compel the respondent judge to require
the parties to submit evidence before deciding the
omnibus petition. We granted a writ of preliminary
injunction against the order.
The main reason given by the judge, for refusing
plaintiff's request that evidence be allow«d to be
introduced on the issues, is the prohibition contained
in Article 103 of the Civil Code, which reads as
follows:
"ART. 103. An action for legal separation shall in no
case be tried before six months shall have elapsed
since the filing of the petition."
Interpreting the spirit and policy of the provision the
trial judge says:
"This provision of the code is mandatory. This case
cannot be tried within the period of six months from
the filing of the complaint The court understands that
the introduction of any evidence, be it on the merits of
the case or on any incident, is prohibited. The law,
up to the last minute, exerts efforts at preserving the
family and the home from utter ruin. Interpreting the
intent of said article, the court understands that
every step it should take within the period of six
months above stated should be taken toward
reconciling the parties. Admitting evidence now will
make reconciliation difficult if not impossible. In this
case the court should act as if nothing yet had
happened. The children must be given for custody to
him or her who by family custom and tradition is the
custodian of the children. The court should ignore
that defendant had committed any act of adultery
or the plaintiff, any act of cruelty to his wife. The
status quo of the family must be restored as much as
possible. In this country, unlike perhaps in any
other country of the globe, a family or a home is a
petite corporation. The father is the administrator who
earns the family funds, dictates rules in the. home for
all to follow, and protects all members of his family.
The mother keeps home, keeps children in her
company and custody, and keeps the treasure of that
family. In a typical Filipino family, the wife prepares
home budget and makes little investment without
the knowledge of her husband. A husband who holds
the purse is un-Filipino. He is shunned in Filipino
community. The court therefore, in taking action on
petition No. 1 should be guided by the above
considerations." (pp. 116-117, Record on Appeal.)
It may be noted that since more than six months have
elapsed since the filing of the petition the question
offered may not be allowed. It is, however,
believed that the reasons for granting the
preliminary injunction should be given that the scope
of the article cited may be explained. It is conceded
that the period of six months fixed therein Article 103
(Civil Code) is evidently intended as a cooling off
period to make possible a reconciliation between the
spouses. The recital of their grievances against
each other in court may only fan their already
inflamed passions against one another, and the
lawmaker has imposed the period to give them
opportunity for dispassionate reflection. But this
practical expedient, necessary to carry out legislative
policy, does not have the effect of overriding other
provisions such as the determination of the custody
of the children and alimony and support pendente
lite according to the circumstances. (Article 105,
Civil Code.) The law expressly enjoins that these
should be determined by the court according to the
circumstances. If these are ignored or the courts close
their eyes to actual facts, rank in justice may be
caused.
Take the case at bar, for instance. Why should the
court ignore the claim of adultery by defendant in the
face of express allegations under oath to that effect,
supported by circumstantial evidence consisting of
letter the authenticity of which cannot be denied.
And why assume that the children are in the custody
of the wife, and that the latter is living at the
conjugal dwelling, when ,it is precisely alleged in the
petition and in the affidavits, that she has abandoned
the conjugal abode? Evidence of all these disputed
allegations should be allowed that the discretion of
the court as to the custody and alimony pendente lite
may be lawfully exercised.
The rule is that all the provisions of the law even if
apparently contradictory, should be allowed to stand
and given effect by reconciling them if necessary.
"The practical inquiry in litigation is usually to
determine what a particular provision, clause or word
means. To answer it one must proceed as he would
with any other composition—construe it with
reference to the leading idea or purpose of the
whole instrument. A statute is passed as a whole and
not in parts or sections and is animated by one
general purpose and intend. Consequently, each part
of section should be construed in connection with
every other part or section so as to produce a
harmonious whole. Thus it is not proper to confine
interpretation to the one section to be construed."
(Southerland, Statutory Construction section 4703,
pp. 336-337.).
Thus the determination of the custody and alimony
should be given effect and force provided it does not
go to the extent of violating the policy of the cooling
off period. That is, evidence not affecting the cause of
the separation, like the actual custody of the
children, the means conducive to their welfare and
convenience during the pendency of the case, these
should be allowed that the court may determine
which is best for their custody.
The writ prayed for is hereby issued and the
respondent judge or whosoever takes his place is
ordered to proceed on the question of custody and
support pendente lite in accordance with this
opinion. The court's order fixing the alimony and
requiring payment is reversed. Without costs,.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes A.,
Bautista Angelo, Concepcion, Reyes, J. B. L., and
Endencia, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-34132 July 29, 1972
LUCY SOMOSA-RAMOS, petitioner,
vs.
THE HONORABLE CIPRIANO VAMENTA, JR.,
Presiding Judge of the Court of First Instance of
Negros Oriental and CLEMEN G.
RAMOS, respondents.
T. R. Reyes & Associates for petitioner.
Soleto J. Erames for respondents.
FERNANDO, J.:p
The question raised in this petition for certiorari is
whether or not Article 103 of the Civil Code
prohibiting the hearing of an action for legal
separation before the lapse of six months from the
filing of the petition, would likewise preclude the court
from acting on a motion for preliminary mandatory
injunction applied for as an ancillary remedy to such a
suit. Respondent Cipriano Vamenta, Jr., of the Court of
First Instance of Negros Oriental, answered the
question in the affirmative, in view of the absolute
tenor of such Civil Code provision, which reads thus:
"An action for legal separation shall in no case be tried
before six months shall have elapsed since the filing of
the petition." He therefore ordered the suspension,
upon the plea of the other respondent the husband
Clemente G. Ramos, of the hearing on a motion for a
writ of preliminary mandatory injunction filed by
petitioner at the same time the suit for legal
separation was instituted. Petitioner, Lucy Somosa-
Ramos, the wife who brought the action for legal
separation would dispute such a ruling. Hence,
this certiorari proceeding. As will be shown later there
is justification for such a move on the part of
petitioner. The respondent Judge ought to have acted
differently. The plea for a writ of certiorari must be
granted.
The pleadings show that on June 18, 1971, petitioner
filed Civil Case No. 5274 in the sala of respondent
Judge against respondent Clemente Ramos for legal
separation, on concubinage on the respondent's part
and an attempt by him against her life being alleged.
She likewise sought the issuance of a writ of
preliminary mandatory injunction for the return to her
of what she claimed to be her paraphernal and
exclusive property, then under the administration and
management of respondent Clemente Ramos. There
was an opposition to the hearing of such a motion,
dated July 3, 1971, based on Article 103 of the Civil
Code. It was further manifested by him in a pleading
dated July 16, 1971, that if the motion asking for
preliminary mandatory injunction were heard, the
prospect of the reconciliation of the spouses would
become even more dim. Respondent Judge ordered the
parties to submit their respective memoranda on the
matter. Then on September 3, 1971, petitioner
received an order dated August 4, 1971 of respondent
Judge granting the motion of respondent Ramos to
suspend the hearing of the petition for a writ of
mandatory preliminary injunction. That is the order
complained of in this petition for certiorari.
Respondents were required to answer according to
our resolution of October 5, 1971. The answer was
filed December 2 of that year. Then on January 12,
1972 came a manifestation from parties in the case
submitting the matter without further arguments.
After a careful consideration of the legal question
presented, it is the holding of this Court that Article
103 the Civil Code is not an absolute bar to the
hearing motion for preliminary injunction prior to the
expiration of the six-month period.
1. It is understandable why there should be a period
during which the court is precluded from acting.
Ordinarily of course, no such delay is permissible.
Justice to parties would not thereby be served. The
sooner the dispute is resolved, the better for all
concerned. A suit for legal separation, however, is
something else again. It involves a relationship on
which the law for the best reasons would attach the
quality of permanence. That there are times when
domestic felicity is much less than it ought to be is not
of course to be denied. Grievances, whether fancied or
real, may be entertained by one or both of the
spouses. There may be constant bickering. The loss
affection on the part of one or both may be
discernible. Nonetheless, it will not serve public
interest, much less the welfare of the husband or the
wife, to allow them to go their respective ways. Where
there are offspring, the reason for maintaining the
conjugal union is even more imperative. It is a mark of
realism of the law that for certain cases, adultery on
the part of the wife and concubinage on the part of the
husband, or an attempt of one spouse against the life
of the other,1 it recognizes, albeit reluctantly, that the
couple is better off apart. A suit for legal separation
lies. Even then, the hope that the parties may settle
their differences is not all together abandoned. The
healing balm of time may aid in the process. Hopefully,
the guilty parties may mend his or her ways, and the
offended party may in turn exhibit magnanimity.
Hence, the interposition of a six-month period before
an action for legal separation is to be tried.
The court where the action is pending according to
Article 103 is to remain passive. It must let the parties
alone in the meanwhile. It is precluded from hearing
the suit. There is then some plausibility for the view of
the lower court that an ancillary motion such as one
for preliminary mandatory injunction is not to be acted
on. If it were otherwise, there would be a failure to
abide by the literal language of such codal provision.
That the law, however, remains cognizant of the need
in certain cases for judicial power to assert itself is
discernible from what is set forth in the following
article. It reads thus: "After the filing of the petition
for legal separation, the spouse shall be entitled to live
separately from each other and manage their
respective property. The husband shall continue to
manage the conjugal partnership property but if the
court deems it proper, it may appoint another to
manage said property, in which case the administrator
shall have the same rights and duties as a guardian
and shall not be allowed to dispose of the income or of
the capital except in accordance with the orders of the
court."2 There would appear to be then a recognition
that the question of management of their respective
property need not be left unresolved even during such
six-month period. An administrator may even be
appointed for the management of the property of the
conjugal partnership. The absolute limitation from
which the court suffers under the preceding article is
thereby eased. The parties may in the meanwhile be
heard. There is justification then for the petitioner's
insistence that her motion for preliminary mandatory
injunction should not be ignored by the lower court.
There is all the more reason for this response from
respondent Judge, considering that the husband whom
she accused of concubinage and an attempt against
her life would in the meanwhile continue in the
management of what she claimed to be her
paraphernal property, an assertion that was not
specifically denied by him. What was held by this
Court in Araneta v. Concepcion,3 thus possesses
relevance: "It is conceded that the period of six
months fixed therein Article 103 (Civil Code) is
evidently intended as a cooling off period to make
possible a reconciliation between the spouses. The
recital of their grievances against each other in court
may only fan their already inflamed passions against
one another, and the lawmaker has imposed the period
to give them opportunity for dispassionate reflection.
But this practical expedient, necessary to carry out
legislative policy, does not have the effect of
overriding other provisions such as the determination
of the custody of the children and alimony and support
pendente lite according to the circumstance ... The
law expressly enjoins that these should be determined
by the court according to the circumstances. If these
are ignored or the courts close their eyes to actual
facts, rank injustice may be caused."4 At any rate, from
the time of the issuance of the order complained of on
August 4, 1971, more than six months certainly had
elapsed. Thus there can be no more impediment for
the lower court acting on the motion of petitioner for
the issuance of a writ of preliminary mandatory
injunction.

WHEREFORE, the plea of petitioner for a writ

of certiorari is granted, and the order of respondent
Court of August 4, 1971, suspending the hearing on
the petition for a writ of preliminary mandatory
injunction is set aside. Respondent Judge is directed to
proceed without delay to hear the motion for
preliminary mandatory injunction. Costs against
respondent Clemente G. Ramos.

Concepcion, C.J., Makalintal, Zaldivar, Castro,

Teehankee, Barredo, Makasiar, Antonio and Esguerra,
JJ., concur.
 Supreme Court of the Philippines
THIRD DIVISION
G.R. No. 53880, March 17, 1994
ENRICO L. PACETE, CLARITA DE LA
CONCEPCION, EMELDA C. PACETE, EVELINA C.
PACETE AND EDUARDO C. PACETE,
PETITIONERS, VS. HON. GLICERIO V.
CARRIAGA, JR. AND CONCEPCION (CONCHITA)
ALANIS PACETE RESPONDENTS.
DECISION
VITUG, J.:
The issue in this petition for certiorari is whether or
not the Court of First Instance (now Regional Trial
Court) of Cotabato, Branch I, in Cotabato City, gravely
abused its discretion in denying petitioners’ motion for
extension of time to file their answer in Civil Case No.
2518, in declaring petitioners in default and in
rendering its decision of 17 March 1980 which, among
other things, decreed the legal separation of petitioner
Enrico L. Pacete and private respondent Concepcion
Alanis and held to be null and void ab initio the
marriage of Enrico L. Pacete to Clarita de la
Concepcion.
On 29 October 1979, Concepcion Alanis filed with the
court below a complaint for the declaration of nullity
of the marriage between her erstwhile husband Enrico
L. Pacete and one Clarita de la Concepcion, as well as
for legal separation (between Alanis and Pacete),
accounting and separation of property. In her
complaint, she averred that she was married to Pacete
on 30 April 1938 before the Justice of the Peace of
Cotabato, Cotabato; that they had a child named
Consuelo who was born on 11 March 1943; that
Pacete subsequently contracted (in 1948) a second
marriage with Clarita de la Concepcion in Kidapawan,
North Cotabato; that she learned of such marriage
only on 01 August 1979; that during her marriage to
Pacete, the latter acquired vast property consisting of
large tracts of land, fishponds and several motor
vehicles; that he fraudulently placed the several
pieces of property either in his name and Clarita or in
the names of his children with Clarita and other
"dummies;" that Pacete ignored overtures for an
amicable settlement; and that reconciliation between
her and Pacete was impossible since he evidently
preferred to continue living with Clarita.
The defendants were each served with summons on 15
November 1979. They filed a motion for an extension
of twenty (20) days from 30 November 1979 within
which to file an answer. The court granted the motion.
On 18 December 1979, appearing through a new
counsel, the defendants filed a second motion for an
extension of another thirty (30) days from 20
December 1979. On 07 January 1980, the lower court
granted the motion but only for twenty (20) days to be
counted from 20 December 1979 or until 09 January
1980. The Order of the court was mailed to
defendants' counsel on 11 January 1980. Likely still
unaware of the court order, the defendants, on 05
February 1980, again filed another motion (dated 18
January 1980) for an extension of "fifteen (15) days
counted from the expiration of the 30-day period
previously sought" within which to file an answer. The
following day, or on 06 February 1980, the court
denied this last motion on the ground that it was "filed
after the original period given x x x as first extension
had expired."[1]
The plaintiff thereupon filed a motion to declare the
defendants in default, which the court forthwith
granted. The plaintiff was then directed to present her
evidence.[2] The court received plaintiff's evidence
during the hearings held on 15, 20, 21 and 22
February 1980.
On 17 March 1980, the court[3] promulgated the herein
questioned decision, disposing of the case, thus -
“WHEREFORE, order is hereby issued ordering:
"1. The issuance of a Decree of Legal Separation of
the marriage between, the plaintiff, Concepcion
(Conchita) Alanis Pacete and the herein defendants,
Enrico L. Pacete, in accordance with the Philippine
laws and with consequences, as provided for by our
laws;
"2. That the following properties are hereby declared
as the conjugal properties of the partnership of the
plaintiff, Concepcion (Conchita) Alanis Pacete and the
defendant, Enrico L. Pacete, half and half, to wit:
"1. The parcel of land covered by TCT No. V-815 which
is a parcel of land situated in the barrio of Langcong,
Municipality of Matanog (previously of Parang),
province of Maguindanao (previously of Cotabato
province) with an area of 45,256 square meters
registered in the name of Enrico Pacete, Filipino, of
legal age, married to Conchita Alanis as shown in
Exhibits 'B' and 'B-1' for the plaintiff.
"2. A parcel of land covered by Transfer Certificate of
Title No. T-20442, with an area of 538 square meters
and covered by Tax Declaration No. 2650 (74) in the
name of Enrico Pacete, situated in the Poblacion of
Kidapawan, North Cotabato, together with all its
improvements, which parcel of land, as shown by
Exhibits ‘K-1’ was acquired by way of absolute deed of
sale executed by Amrosio Mondog on January 14,
1965.
"3. A parcel of land covered by Transfer Certificate of
Title No. T-20424 and covered by Tax Declaration No.
803 (74), with an area of 5.1670 hectares, more or
less, as shown by Exhibit 'R', the same was registered
in the name of Enrico Pacete and the same was
acquired by Enrico Pacete last February 17, 1967 from
Ambag Ampoy, as shown by Exhibit 'R-1’, situated at
Musan, Kidapawan, North Cotabato.
“4. A parcel of land situated at Lanao, Kidapawan,
North Cotabato, with an area of 5.0567 hectares,
covered by Tax Declaration No. 4332 (74), as shown
by Exhibit ‘S’, and registered in the name of Enrico
Pacete.
“5. A parcel of land covered by Transfer Certificate of
Title No. T-9750, situated at Lika, Mlanng, North
Cotabato, with an area of 4.9841 hectares and the
same is covered by Tax Declaration No. 803 (74) and
registered in the name of Enrico Pacete and which
land was acquired by Enrico Pacete from Salvador
Pacete on September 24, 1962, as shown by Exhibit
'Q-1’.
"6. A parcel of land covered by Transfer Certificate of
Title No. T-9944, with an area of 9.9566 and also
covered by Tax Declaration No. 8608(74) and
registered in the name of the defendant Enrico L.
Pacete which Enrico L. Pacete acquired from Sancho
Balingcos last October 22, 1962, as shown by Exhibit
‘L-1’ and which parcel of land is situated at (Kialab),
Kiab, Matalam, North Cotabato.
“7. A parcel of land covered by Transfer Certificate of
Title No. T-9227, situated at Kiab, Matalam, North
Cotabato, with an area of 12.04339 hectares, more or
less, and also covered by Tax Declaration No. 8607(74)
both in the name of the defendant Enrico L. Pacete
which he acquired last October 15, 1962 from Minda
Bernardino, as shown by Exhibit 'M-1'.
“8. A parcel of land covered by Transfer Certificate of
Title No. T-9228, situated at Kiab, Matalam, North
Cotabato, with an area of 10.8908 hectares, registered
in the name of Enrico Pacete and also covered by Tax
Declaration No. 5781 (74) in the name of Enrico
Pacete and which parcel of land he acquired last
September 25, 1962 from Conchita dela Torre, as
shown by Exhibit 'P-1'.
“9. A parcel of land covered by Transfer Certificate of
Title No. T-10301, situated at Linao, Matalam, North
Cotabato, with an area of 7.2547 hectares, registered
in the name of Enrico Pacete and also covered by Tax
Declaration No. 8716(74) also in the name of Enrico
Pacete which Enrico Pacete acquired from Agustin
Bijo last July 16, 1963, as shown by Exhibit 'N-1'.
"10. A parcel of land covered by Transfer Certificate of
Title No. 12728 in the name of the defendant, Enrico
L. Pacete, with an area of 10.9006 hectares, situated
at Linao, Matalam, North Cotabato and is also covered
by Tax Declaration No. 5745(74) in the name of Enrico
Pacete, as shown on Exhibit ‘O’ and which Enrico
Pacete acquired last December 31, 1963 from Eliseo
Pugni, as shown on Exhibit 'O-1'.
“3. Ordering the Cancellation of Original Certificate of
Title No. P-34243 covering Lot No. 1066, issued in the
name of Evelina Pacete, situated at Kiab, Matalam,
North Cotabato, and ordering the registration of the
same in the joint name of Concepcion (Conchita)
Alanis Pacete and Enrico L. Pacete as their conjugal
property, with address on the part of Concepcion
(Conchita) Alanis Pacete at Parang, Maguindanao and
on the part of Enrico L. Pacete at Kidapawan, North
Cotabato.
"4. Ordering likewise the cancellation of Original
Certificate of Title No. V-20101, covering Lot No. 77,
in the name of Eduardo C. Pacete, situated at New
Lawaan, Mlang, North Cotabato, and the issuance of a
new Transfer Certificate of Title in the joint name of
(half and half) Concepcion (Conchita) Alanis Pacete
and Enrico L. Pacete.
“5. Ordering likewise the cancellation of Original
Certificate of Title No. P-29890, covering Lot 1068,
situated at Kiab, Matalam, North Cotabato, with an
area of 12.1031 hectares, in the name of Emelda C.
Pacete, and the issuance of a new Transfer Certificate
of Title in the joint name (half and half) of Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete; and
declaring that the fishpond situated at Barrio
Tumanan, Bislig, Surigao Del Sur, with an area of 48
hectares and covered by Fishpond Lease Agreement of
Emelda C. Pacete, dated July 29, 1977 be cancelled
and in lieu thereof, the joint name of Concepcion
(Conchita) Alanis Pacete and her husband, Enrico L.
Pacete, be registered as their joint property, including
the 50 hectares fishpond situated in the same place,
Barrio Timanan, Bislig, Surigao del Sur.
"6. Ordering the following motor vehicles to be the
joint properties of the conjugal partnership of
Concepcion (Conchita) Alanis Pacete and Enrico L.
Pacete, viz:
"a. Motor vehicle with Plate No. T-RG?783; Make,
Dodge; Motor No. T137-20561; Chassis No. 83920393,
and Type, Mcarrier;
"b. Motor vehicle with Plate No. T-RG?784; Make,
Dodge; Motor No. T214-229547; Chassis No. 10D-
1302-C; and Type, Mcarrier;
"c. Motor vehicle with Plate No. J-PR-818; Make, Ford;
Motor No. GPW-116188; Chassis No. HOCC-GPW-
1161-88-C; Type, Jeep;
"d. Motor vehicle with Plate No. TH-5J?583; Make,
Ford; Motor No. F70MU5-11111; Chassis No. HOCC-
GPW-116188-G; Type, Stake;
"e. Motor vehicle with Plate No. TH-5J?584; Make,
Hino; Motor No. ED300-45758; Chassis No. KB222-
22044; Type, Stake; and
"f. Motor vehicle with Plate No. TH-5J?585; Make,
Ford; Motor No. LTC-780-Dv; Chassis No. 10F-13582-
K; Type, Stake.
"7. Ordering the defendant Enrico L. Pacete to pay the
plaintiff the sum of P46,950.00 which is the share of
the plaintiff in the unaccounted income of the ricemill
and corn sheller for three years from 1971 to 1973.
“8. Ordering the defendant, Enrico L. Pacete, to
reimburse the plaintiff the monetary equivalent of 30%
of whatever the plaintiff has recovered as attorney’s
fees;
“9. Declaring the subsequent marriage between
defendant Enrico L. Pacete and Clarita de la
Concepcion to be void ab initio; and
“10. Ordering the defendants to pay the costs of this
suit."[4]
Hence, the instant special civil action of certiorari.
Under ordinary circumstances, the petition would
have outrightly been dismissed, for, as also pointed
out by private respondents, the proper remedy of
petitioners should have instead been either to appeal
from the judgment by default or to file a petition for
relief from judgment.[5] This rule, however, is not
inflexible; a petition for certiorari is allowed when the
default order is improperly declared, or even when it
is properly declared, where grave abuse of discretion
attended such declaration.[6] In these exceptional
instances, the special civil action of certiorari to
declare the nullity of a judgment by default is
available.[7] In the case at bench, the default order
unquestionably is not legally sanctioned. The Civil
Code provides:
"Art. 101. No decree of legal separation shall be
promulgated upon a stipulation of facts or by
confession of judgment.
"In case of non-appearance of the defendant, the court
shall order the prosecuting attorney to inquire
whether or not a collusion between the parties exists.
If there is no collusion, the prosecuting attorney shall
intervene for the State in order to take care that the
evidence for the plaintiff is not fabricated."
The provision has been taken from Article 30 of the
California Civil Code,[8] and it is, in substance,
reproduced in Article 60 of the Family Code.[9]
Article 101 reflects the public policy on marriages,
and it should easily explain the mandatory tenor of the
law. In Brown v. Yambao,[10] the Court has observed:
"The policy of Article 101 of the new Civil Code,
calling for the intervention of the state attorneys in
case of uncontested proceedings for legal separation
(and of annulment of marriages, under Article 88), is
to emphasize that marriage is more than a mere
contract; that it is a social institution in which the
state is vitally interested, so that its continuation or
interruption can not be made to depend upon the
parties themselves (Civil Code, Article 52; Adong vs.
Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42 Phil.
855; Goitia v. Campos, 35 Phil. 252). It is consonant
compliance, with any of the statutory requirements
aforequoted.
WHEREFORE, the petition for certiorari is hereby
GRANTED and the proceedings below, including the
Decision of 17 March 1980 appealed from, are
NULLIFIED and SET ASIDE. No costs.
SO ORDERED.
Feliciano, (Chairman), Bidin, Romero, and Melo, JJ.,

with this policy that the inquiry by the Fiscal should concur.

be allowed to focus upon any relevant matter that may

indicate whether the proceedings for separation or
annulment are fully justified or not."

Article 103 of the Civil Code, now Article 58 of the

Family Code, further mandates that an action for legal
separation must "in no case be tried before six months
shall have elapsed since the filing of the petition,"
obviously in order to provide the parties a "cooling-off"
period. In this interim, the court should take steps
toward getting the parties to reconcile.

The significance of the above substantive provisions of

the law is further underscored by the inclusion of the
following provision in Rule 18 of the Rules of Court:

"SEC. 6. No defaults in actions for annulments of

marriage or for legal separation. - If the defendant in
an action for annulment of marriage or for legal
separation fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a
collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to
it that the evidence submitted is not fabricated."

The special proscriptions on actions that can put the

integrity of marriage to possible jeopardy are impelled
by no less than the State's interest in the marriage
relation and its avowed intention not to leave the
matter within the exclusive domain and the vagaries of
the parties to alone dictate.

It is clear that the petitioner did, in fact, specifically

pray for legal separation.[11] That other remedies,
whether principal or incidental, have likewise been
sought in the same action cannot dispense, nor excuse
 Supreme Court of the Philippines
FIRST DIVISION
G.R. No. 106169, February 14, 1994
SAMSON T. SABALONES, PETITIONER, VS. THE
COURT OF APPEALS AND REMEDIOS GAVIOLA-
SABALONES, RESPONDENTS.
DECISION
CRUZ, J.:
legitimate family and was instead maintaining a
separate residence in Don Antonio Heights, Fairview,
Quezon City, with Thelma Cumareng and their three
children.
In her prayer, she asked the court to grant the decree
of legal separation and order the liquidation of the
conjugal properties, with forfeiture of her husband's
share therein because of his adultery. She also prayed
that it enjoin the petitioner and his agents from a)
disturbing the occupants of the Forbes Park property
and b) disposing of or encumbering any of the
conjugal properties.

The subject of this petition is the preliminary

After trial, Judge Mariano M. Umali, found that the
injunction issued by the respondent court pending
petitioner had indeed contracted a bigamous marriage
resolution of a case on appeal. We deal only with this
on October 5, 1981, with Thelma Cumareng, to whom
matter and not the merits of the case.
he had returned upon his retirement in 1985 at a
separate residence. The court thus decreed the legal
As a member of our diplomatic service assigned to
separation of the spouses and the forfeiture of the
different countries during his successive tours of
petitioner's share in the conjugal properties, declaring
duties, petitioner Samson T. Sabalones left to his wife,
as well that he was not entitled to support from his
herein respondent Remedios Gaviola-Sabalones, the
respondent wife.[1]
administration of some of their conjugal properties for
fifteen years.
This decision was appealed to the respondent court.
Pendente lite, the respondent wife filed a motion for
Sabalones retired as ambassador in 1985 and came
the issuance of a writ of preliminary injunction to
back to the Philippines but not to his wife and their
enjoin the petitioner from interfering with the
children. Four years later, he filed an action for
administration of their properties in Greenhills and
judicial authorization to sell a building and lot located
Forbes Park. She alleged inter alia that he had
at #17 Eisenhower St., Greenhills, San Juan, Metro
harassed the tenant of the Forbes Park property by
Manila, belonging to the conjugal partnership. He
informing him that his lease would not be renewed.
claimed that he was sixty-eight years old, very sick
She also complained that the petitioner had disposed
and living alone without any income, and that he
of one of their valuable conjugal properties in the
would use his share of the proceeds of the sale to
United States in favor of his paramour, to the
defray the prohibitive cost of his hospitalization and
prejudice of his legitimate wife and children.
medical treatment.

The petitioner opposed this motion and filed his own

In her answer, the private respondent opposed the
motion to prevent his wife from entering into a new
authorization and filed a counterclaim for legal
contract of lease over the Forbes Park property with
separation. She alleged that the house in Greenhills
its present tenant, or with future tenants, without his
was being occupied by her and their six children and
consent.
that they were depending for their support on the
rentals from another conjugal property, a building and
After hearing, the Court of Appeals, in an order dated
lot in Forbes Park which was on lease to Nobumichi
April 7, 1992, granted the preliminary injunction
Izumi. She also informed the court that despite her
prayed for by the wife.[2]
husband's retirement, he had not returned to his
The petitioner now assails this order, arguing that
since the law provides for a joint administration of the
conjugal properties by the husband and wife, no
injunctive relief can be issued against one or the other
because no right will be violated. In support of this
contention, he cites Art. 124 of the Family Code,
reading as follows:
Art. 124. The administration and enjoyment of the
conjugal partnership property shall belong to both
spouses jointly. In case of disagreement, the husband's
decision shall prevail, subject to recourse to the court
by the wife for proper remedy, which must be availed
of within five years from the date of the contract
implementing such decision.
In the event that one spouse is incapacitated or
otherwise unable to participate in the administration
of the conjugal properties, the other spouse may
assume sole powers of the administration. These
powers do not include disposition or encumbrance
without authority of the court or the written consent
of the other spouse. In the absence of such authority
or consent, the disposition or encumbrance shall be
void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse
and the third person, and may be perfected as a
binding contract upon the acceptance by the other
spouse or the authorization by the court before the
offer is withdrawn by either or both offerors.
He further notes that the respondent court failed to
appoint an administrator of the conjugal assets as
mandated by Art. 61 of the Code, thus:
Art. 61. After the filing of the petition for legal
separation, the spouses shall be entitled to live
separately from each other.
The court, in the absence of a written agreement
between the spouses, shall designate either of them or
a third person to administer the absolute community
or conjugal partnership property. The administrator
appointed by the court shall have the same powers
and duties as those of a guardian under the Rules of
Court.
The Court has carefully considered the issues and the
arguments of the parties and finds that the petition
has no merit.
We agree with the respondent court that pending the
appointment of an administrator over the whole mass
of conjugal assets, the respondent court was justified
in allowing the wife to continue with her
administration. It was also correct, taking into account
the evidence adduced at the hearing, in enjoining the
petitioner from interfering with his wife's
administration pending resolution of the appeal.
The law does indeed grant to the spouses joint
administration over the conjugal properties as clearly
provided in the above-cited Article 124 of the Family
Code. However, Article 61, also above quoted, states
that after a petition for legal separation has been filed,
the trial court shall, in the absence of a written
agreement between the couple, appoint either one of
the spouses or a third person to act as the
administrator.
While it is true that no formal designation of the
administrator has been made, such designation was
implicit in the decision of the trial court denying the
petitioner any share in the conjugal properties (and
thus also disqualifying him as administrator thereof).
That designation was in effect approved by the Court
of Appeals when it issued in favor of the respondent
wife the preliminary injunction now under challenge.
The primary purpose of the provisional remedy of
injunction is to preserve the status quo of the things
subject of the action or the relations between the
parties and thus protect the rights of the plaintiff
respecting these matters during the pendency of the
suit. Otherwise, the defendant may, before final
judgment, do or continue doing the act which the
plaintiff asks the court to restrain and thus make
ineffectual the final judgment that may be rendered
afterwards in favor of the plaintiff.[3]
As observed by Francisco, "Injunction is primarily a
preventive remedy. Its province is to afford relief
against future acts which are against equity and good
conscience and to keep and preserve the thing in the
status quo, rather than to remedy what is past or to
punish for wrongful acts already committed. It may
issue to prevent future wrongs although no right has
yet been violated."[4]
The Court notes that the wife has been administering
the subject properties for almost nineteen years now,
apparently without complaint on the part of the
petitioner. He has not alleged, much less shown, that
her administration has caused prejudice to the
conjugal partnership. What he merely suggests is that
the lease of the Forbes Park property could be
renewed on better terms, or he should at least be
given his share of the rentals.
Let it be stressed that the injunction has not
permanently installed the respondent wife as the
administrator of the whole mass of conjugal assets. It
has merely allowed her to continue administering the
properties in the meantime without interference from
the petitioner, pending the express designation of the
administrator in accordance with Article 61 of the
Family Code.

In her motion for the issuance of a preliminary WHEREFORE, the petition is DENIED for lack of
injunction, the respondent wife alleged that the merit. It is so ordered.
petitioner's harassment of their tenant at Forbes Park
would jeopardize the lease and deprive her and her Davide, Jr., Bellosillo, Quiason, and Kapunan, JJ.,
children of the income therefrom on which they concur.
depend for their subsistence. She also testified the
numerous other conjugal properties, real and
personal, in the sole custody of the husband,[*]
including various dollar accounts, two houses in
Quezon City and Cebu City, and a Mercedes Benz. The
private respondent also complained that on June 10,
1991, the petitioner executed a quitclaim over their
conjugal property in Apple Valley, San Bernardino,
California, U.S.A., in favor of Thelma Curameng, to
improve his paramour's luxurious lifestyle to the
prejudice of his legitimate family.

These allegations, none of which was refuted by the

husband, show that the injunction is necessary to
protect the interests of the private respondent and her
children and prevent the dissipation of the conjugal
assets.

The twin requirements of a valid injunction are the

existence of a right and its actual or threatened
violation.[5] Regardless of the outcome of the appeal, it
cannot be denied that as the petitioner's legitimate
wife (and the complainant and injured spouse in the
action for legal separation), the private respondent
has a right to a share (if not the whole) of the conjugal
estate. There is also, in our view, enough evidence to
raise the apprehension that entrusting said estate to
the petitioner may result in its improvident disposition
to the detriment of his wife and children. We agree
that inasmuch as the trial court had earlier declared
the forfeiture of the petitioner's share in the conjugal
properties, it would be prudent not to allow him in the
meantime to participate in its management.
 Supreme Court of the Philippines
THIRD DIVISION
G.R. No. 115640, March 15, 1995
REYNALDO ESPIRITU AND GUILLERMA LAYUG,
PETITIONERS, VS. COURT OF APPEALS, AND
TERESITA MASAUDING, RESPONDENTS.
spendthrift, buying expensive jewelry and antique
furniture instead of attending to household expenses.
Instead of giving their marriage a second chance as
allegedly pleaded by Reynaldo, Teresita left Reynaldo
and the children and went back to California. She
claims, however, that she spent a lot of money on long
distance telephone calls to keep in constant touch with
her children.

DECISION Reynaldo brought his children home to the

Philippines, but because his assignment in Pittsburgh
MELO, J.: was not yet completed, he was sent back by his
company to Pittsburgh. He had to leave his children
This case concerns a seemingly void marriage and a
with his sister, co-petitioner Guillerma Layug and her
relationship which went sour. The innocent victims are
family.
two children born out of the same union. Upon this
Court now falls the not too welcome task of deciding
Teresita claims that she did not immediately follow her
the issue of who, between the father and mother, is
children because Reynaldo had filed a criminal case
more suitable and better qualified in helping the
for bigamy against her and she was afraid of being
children to grow into responsible, well-adjusted, and
arrested. The judgment of conviction in the bigamy
happy young adulthood.
case was actually rendered only on September 29,
1994. (Per Judge Harriet O. Demetriou, Branch 70,
Petitioner Reynaldo Espiritu and respondent Teresita
RTC, Pasig, pp. 210-222, Rollo ). Teresita, meanwhile,
Masauding first met sometime in 1976 in Iligan City
decided to return to the Philippines and on December
where Reynaldo was employed by the National Steel
8, 1992 and filed the petition for a writ of habeas
Corporation and Teresita was employed as a nurse in a
corpus against herein two petitioners to gain custody
local hospital. In 1977, Teresita left for Los Angeles,
over the children, thus starting the whole proceedings
California to work as a nurse. She was able to acquire
now reaching this Court.
immigrant status sometime later. In 1984, Reynaldo
was sent by his employer, the National Steel
On June 30, 1993, the trial court dismissed the
Corporation, to Pittsburgh, Pennsylvania as its liaison
petition for habeas corpus. It suspended Teresita's
officer and Reynaldo and Teresita then began to
parental authority over Rosalind and Reginald and
maintain a common law relationship of husband and
declared Reynaldo to have sole parental authority over
wife. On August 16, 1986, their daughter, Rosalind
them but with rights of visitation to be agreed upon by
Therese, was born. On October 7, 1987, while they
the parties and to be approved by the Court.
were on a brief vacation in the Philippines, Reynaldo
and Teresita got married, and upon their return to the
On February 16, 1994, the Court of Appeals per
United States, their second child, a son, this time, and
Justice Isnani, with Justices de Pano and Ibay-Somera
given the name Reginald Vince, was born on January
concurring, reversed the trial court's decision. It gave
12, 1988.
custody to Teresita and visitation rights on weekends
to Reynaldo.
The relationship of the couple deteriorated until they
decided to separate sometime in 1990. Teresita
Petitioners now come to this Court on a petition for
blamed Reynaldo for the break-up, stating he was
review, in the main contending that the Court of
always nagging her about money matters. Reynaldo,
Appeals disregarded the factual findings of the trial
on the other hand, contended that Teresita was a
court; that the Court of Appeals further engaged in
speculations and conjectures, resulting in its
erroneous conclusion that custody of the children
should be given to respondent Teresita.
We believe that respondent court resolved the
question of custody over the children through an
automatic and blind application of the age proviso of
Article 363 of the Civil Code which reads:
Art. 363. In all questions on the care, custody,
education and property of the children, the latter's
welfare shall be paramount. No mother shall be
separated from her child under seven years of age,
unless the court finds compelling reasons for such
measure.
and of Article 213 of the Family Code which in turn
provides:
Art. 213. In case of separation of the parents, parental
authority shall be exercised by the parent designated
by the Court. The Court shall take into account all
relevant considerations, especially the choice of the
child over seven years of age, unless the parent
chosen is unfit.
The decision under review is based on the report of
the Code Commission which drafted Article 213 that a
child below seven years still needs the loving, tender
care that only a mother can give and which,
presumably, a father cannot give in equal measure.
The commentaries of a member of the Code
Commission, former Court of Appeals Justice Alicia
Sempio-Diy, in a textbook on the Family Code, were
also taken into account. Justice Diy believes that a
child below seven years should still be awarded to her
mother even if the latter is a prostitute or is unfaithful
to her husband. This is on the theory that moral
dereliction has no effect on a baby unable to
understand such action. (Handbook on the Family
Code of the Philippines, 1988 Ed., p. 297.)
The Court of Appeals was unduly swayed by an
abstract presumption of law rather than an
appreciation or relevant facts and the law which
should apply to those facts. The task of choosing the
parent to whom custody shall be awarded is not a
ministerial function to be determined by a simple
determination of the age of a minor child. Whether a
child is under or over seven years of age, the
paramount criterion must always be the child's
interests. Discretion is given to the court to decide
who can best assure the welfare of the child, and
award the custody on the basis of that consideration.
In Unson III vs. Navarro (101 SCRA 183 [1980]), we
laid down the rule that "in all controversies regarding
the custody of minors, the sole and foremost
consideration is the physical, education, social and
moral welfare of the child concerned, taking into
account the respective resources and social and moral
situations of the contending parents" and in Medina
vs. Makabali (27 SCRA 502 [1969]), where custody of
the minor was given to a non-relative as against the
mother, then the country's leading civilist, Justice
J.B.L. Reyes, explained its basis in this manner:
... While our law recognizes the right of a parent to the
custody of her child. Courts must not lose sight of the
basic principle that "in all questions on the care,
custody, education and property of children, the
latter's welfare shall be paramount" (Civil Code of the
Philippines, Art. 363), and that for compelling reasons,
even a child under seven may be ordered separated
from the mother (do.). This is as it should be, for in the
continual evolution of legal institutions, the patria
potestas has been transformed from the jus vitae ac
necis (right of life and death) of the Roman law, under
which the offspring was virtually a chattel of his
parents, into a radically different institution, due to
the influence of Christian faith and doctrines. The
obligational aspect is now supreme. As pointed out by
Puig Pena, now "there is no power, but a task; no
complex of rights (of parents) but a sum of duties; no
sovereignty, but a sacred trust for the welfare of the
minor."
As a result, the right of parents to the company and
custody of their children is but ancillary to the proper
discharge of parental duties to provide the children
with adequate support, education, moral, intellectual
and civic training and development (Civil Code, Art.
356).
(pp. 504-505.)
In ascertaining the welfare and best interests of the
child, courts are mandated by the Family Code to take
into account all relevant considerations. If a child is
under seven years of age, the law presumes that the
mother is the best custodian. The presumption is
strong but it is not conclusive. It can be overcome by
"compelling reasons". If a child is over seven, his
choice is paramount but, again, the court is not bound
by that choice. In its discretion, the court may find the
chosen parent unfit and award custody to the other
parent, or even to a third party as it deems fit under
the circumstances.
In the present case, both Rosalind and Reginald are
now over seven years of age. Rosalind celebrated her
seventh birthday on August 16, 1993 while Reginald
reached the same age on January 12, 1995. Both are
studying in reputable schools and appear to be fairly
intelligent children, quite capable of thoughtfully
determining the parent with whom they would want to
live. Once the choice has been made, the burden
returns to the court to investigate if the parent thus
chosen is unfit to assume parental authority and
custodial responsibility.
Herein lies the error of the Court of Appeals. Instead
of scrutinizing the records to discover the choice of
the children and rather than verifying whether that
parent is fit or unfit, respondent court simply followed
statutory presumptions and general propositions
applicable to ordinary or common situations. The
seven-year age limit was mechanically treated as an
arbitrary cut off period and not a guide based on a
strong presumption.
A scrutiny of the pleadings in this case indicates that
Teresita, or at least, her counsel are more intent on
emphasizing the "torture and agony" of a mother
separated from her children and the humiliation she
suffered as a result of her character being made a key
issue in court rather than the feelings and future, the
best interests and welfare of her children. While the
bonds between a mother and her small child are
special in nature, either parent, whether father or
mother, is bound to suffer agony and pain if deprived
of custody. One cannot say that his or her suffering is
greater than that of the other parent. It is not so much
the suffering, pride, and other feelings of either parent
but the welfare of the child which is the paramount
consideration.
We are inclined to sustain the findings and conclusions
of the regional trial court because it gave greater
attention to the choice of Rosalind and considered in
detail all the relevant factors bearing on the issue of
custody.
When she was a little over 5 years old, Rosalind was
referred to a child psychologist, Rita Flores
Macabulos, to determine the effects of uprooting her
from the Assumption College where she was studying.
Four different tests were administered. The results of
the tests are quite revealing. The responses of
Rosalind about her mother were very negative,
causing the psychologist to delve deeper into the
child's anxiety. Among the things revealed by Rosalind
was an incident where she saw her mother hugging
and kissing a "bad" man who lived in their house and
worked for her father. Rosalind refused to talk to her
mother even on the telephone. She tended to be
emotionally emblazed because of constant fears that
she may have to leave school and her aunt's family to
go back to the United States to live with her mother.
The 5-1/2 page report deals at length with feelings of
insecurity and anxiety arising from strong conflict with
the mother. The child tried to compensate by having
fantasy activities. All of the 8 recommendations of the
child psychologist show that Rosalind chooses
petitioners over the private respondent and that her
welfare will be best served by staying with them (pp.
199-205, Rollo ).
At about the same time, a social welfare case study
was conducted for the purpose of securing the travel
clearance required before minors may go abroad.
Social Welfare Officer Emma D. Estrada Lopez, stated
that the child Rosalind refused to go back to the
United States and be reunited with her mother. She
felt unloved and uncared for. Rosalind was more
attached to her Yaya who did everything for her and
Reginald. The child was found suffering from
emotional shock caused by her mother's infidelity. The
application for travel clearance was recommended for
denial (pp. 206-209, Rollo ).
Respondent Teresita, for her part, argues that the 7-
year age reference in the law applies to the date when
the petition for a writ of habeas corpus is filed, not to
the date when a decision is rendered. This argument is
flawed. Considerations involving the choice made by a
child must he ascertained at the time that either
parent is given custody over the child. The matter of
custody is not permanent and unalterable. If the
parent who was given custody suffers a future
character change and becomes unfit, the matter of
custody can always be re-examined and adjusted
(Unson III v. Navarro supra, at p. 189). To be sure, the
welfare, the best interests, the benefit, and the good
of the child must be determined as of the time that
either parent is chosen to be the custodian. At the
present time, both children are over 7 years of age
and are thus perfectly capable of making a fairly
intelligent choice.
According to respondent Teresita, she and her
children had a tearful reunion in the trial court, with
the children crying, grabbing, and embracing her to
prevent the father from taking them away from her.
We are more inclined to believe the father's contention
that the children ignored Teresita in court because
such an emotional display as described by Teresita in
her pleadings could not have been missed by the trial
court. Unlike the Justices of the Court of Appeals
Fourth Division, Judge Lucas P. Bersamin personally
observed the children and their mother in the
courtroom. What the Judge found is diametrically
opposed to the contentions of respondent Teresita.
The Judge had this to say on the matter:
And, lastly, the Court cannot look at petitioner
[Teresita} in similar light, or with more
understanding, especially as her conduct and
demeanor in the courtroom (during most of the
proceedings) or elsewhere (but in the presence of the
undersigned presiding judge) demonstrated her
ebulent temper that tended to corroborate the alleged
violence of her physical punishment of the children
(even if only for ordinary disciplinary purposes) and
emotional instability, typified by her failure (or
refusal ?) to show deference and respect to the Court
and the other parties (pp. 12-13, RTC Decision)
Respondent Teresita also questions the competence
and impartiality of the expert witnesses. Respondent
court, in turn, states that the trial court should have
considered the fact that Reynaldo and his sister,
herein petitioner GuiIlerma Layug, hired the two
expert witnesses. Actually, this was taken into account
by the trial court which stated that the allegations of
bias and unfairness made by Teresita against the
psychologist and social worker were not
substantiated.
The trial court stated that the professional integrity
and competence of the expert witnesses and the
objectivity of the interviews were unshaken and
unimpeached. We might add that their testimony
remain uncontroverted. We also note that the
examinations made by the experts were conducted in
late 1991, well over a year before the filing by Teresita
of the habeas corpus petition in December, 1992.
Thus, the examinations were at that time not intended
to support petitioners' position in litigation, because
there was then not even an impending possibility of
one. That they were subsequently utilized in the case
a quo when it did materialize does not change the
tenor in which they were first obtained.
Furthermore, such examinations, when presented to
the court must be construed to have been presented
not to sway the court in favor of any of the parties, but
to assist the court in the determination of the issue
before it. The persons who effected such examinations
were presented in the capacity of expert witnesses
testifying on matters within their respective
knowledge and expertise. On this matter, this Court
had occasion to rule in the case of Sali vs. Abukakar
et. al (17 SCRA 988 [1966]).
The fact that, in a particular litigation, an NBI expert
examines certain contested documents, at the request,
not of a public officer or agency of the Government,
but of a private litigant, does not necessarily nullify
the examination thus made. Its purpose, presumably,
to assist the court having jurisdiction over said
litigation, in the performance of its duty to settle
correctly the issues relative to said documents. Even a
non-expert private individual may examine the same, if
there are facts within his knowledge which may help
the court in the determination of said issue. Such
examination, which may properly be undertaken by a
non-expert private individual, does not, certainly
become null and void when the examiner is an expert
and/or an officer of the NBI.
(pp. 991-992.)
In regard to testimony of expert witnesses it was held
in Salomon et. al. vs Intermediate Appellate Court et.
al. (185 SCRA 352 [1990]):
... Although courts are not ordinarily bound by expert
testimonies, they may place whatever weight they
choose upon such testimonies in accordance with the
facts of the case. The relative weight and sufficiency of
expert testimony is peculiarly within the province of
the trial court to decide, considering the ability and
character of the witness, his actions upon the witness
stand, the weight and process of the reasoning by
which he has supported his opinion, his possible bias
in favor of the side for whom he testifies, the fact that
he is a paid witness, the relative opportunities for
study and observation of the matters about which he
testifies, and any other matters which reserve to
illuminate his statements. The opinion of the expert
may not be arbitrarily rejected; it is to be considered
by the court in view of all the facts and circumstances
in the case and when common knowledge utterly fails,
the expert opinion may be given controlling effect (20
Am. Jur., 1056-1058). The problem of the credibility of
the expert witness and the evaluation of his testimony
is left to the discretion of the trial court whose ruling
thereupon is not reviewable in the absence of an
abuse of that discretion.
(p. 359.)
It was in the exercise of this discretion, coupled with
the opportunity to assess the witnesses' character and
to observe their respective demeanor that the trial
court opted to rely on their testimony, and we believe
that the trial court was correct in its action.
Under direct examination on February 4, 1993, Social
Worker Lopez stated that Rosalind and her aunt were
about to board a plane when they were off-loaded
because there was no required clearance. They were
referred to her office, at which time Reginald was also
brought along and interviewed. One of the regular
duties of Social Worker Lopez in her job appears to be
the interview of minors who leave for abroad with
their parents or other persons. The interview was for
purposes of foreign travel by a 5-year old child and
had nothing to do with any pending litigation. On
cross-examination, Social Worker Lopez stated that
her assessment of the minor's hatred for her mother
was based on the disclosures of the minor. It is
inconceivable, much less presumable that Ms. Lopez
would compromise her position, ethics, and the public
trust reposed on a person of her position in the course
of doing her job by falsely testifying just to support the
position of any litigant.
The psychologist, Ms. Macabulos, is a B.S. magna cum
laude graduate in Psychology and an M.A. degree
holder also in Psychology with her thesis graded
"Excellent". She was a candidate for a doctoral degree
at the time of the interview. Petitioner Reynaldo may
have shouldered the cost of the interview but Ms.
Macabulos' services were secured because
Assumption College wanted an examination of the
child for school purposes and not because of any
litigation. She may have been paid to examine the
child and to render a finding based on her
examination, but she was not paid to fabricate such
findings in favor of the party who retained her
services. In this instance it was not even petitioner
Reynaldo but the school authorities who initiated the
same. It cannot be presumed that a professional of her
potential and stature would compromise her
professional standing.
Teresita questions the findings of the trial court that:
1. Her morality is questionable as shown by her
marrying Reynaldo at the time she had a
subsisting marriage with another man.
2. She is guilty of grave indiscretion in carrying
on a love affair with one of the Reynaldo's
fellow NSC employees.
3. She is incapable of providing the children with
necessities and conveniences commensurate
to their social standing because she does not
even own any home in the Philippines.
 4. She is emotionally unstable with ebullient
temper.
It is contended that the above findings do not
constitute the compelling reasons under the law which
would justify depriving her of custody over the
children; worse, she claims, these findings are non-
existent and have not been proved by clear and
convincing evidence.
Public and private respondents give undue weight to
the matter of a child under 7 years of age not to be
separated from the mother, without considering what
the law itself denominates as compelling reasons or
relevant considerations to otherwise decree. In the
Unson III case, earlier mentioned, this Court stated
that it found no difficulty in not awarding custody to
the mother, it being in the best interest of the child "to
be freed from the obviously unwholesome, not to say
immoral influence, that the situation where [the
mother] had placed herself …might create in the
moral and social outlook of [the child] who was in her
formative and most impressionable stage …”
Then too, it must be noted that both Rosalind and
Reginald are now over 7 years of age. They
understand the difference between right and wrong,
ethical behavior and deviant immorality. Their best
interests would be better served in an environment
characterized by emotional stability and a certain
degree of material sufficiency. There is nothing in the
records to show that Reynaldo is an "unfit" person
under Article 213 of the Family Code. In fact, he has
been trying his best to give the children the kind of
attention and care which the mother is not in a
position to extend.
The argument that the charges against the mother are
false is not supported by the records. The findings of
the trial court are based on evidence.
Teresita does not deny that she was legally married to
Roberto Lustado on December 17, 1984 in California
(p. 13, Respondent's Memorandum; p. 238, Rollo ; pp.
11, RTC Decision). Less than a year later, she had
already driven across the continental United States to
commence living with another man, petitioner
Reynaldo, in Pittsburgh. The two were married on
October 7, 1987. Of course, to dilute this disadvantage
on her part, this matter of her having contracted a
bigamous marriage later with Reynaldo, Teresita tried
to picture Reynaldo as a rapist, alleging further that
she told Reynaldo about her marriage to Lustado on
the occasion when she was raped by Reynaldo.
Expectedly, Judge Harriet Demetriou of the Pasig RTC
lent no weight to such tale. And even if this story were
given credence, it adds to and not subtracts from the
conviction of this Court about Teresita's values. Rape
is an insidious crime against privacy. Confiding to
one's potential rapist about a prior marriage is not a
very convincing indication that the potential victim is
averse to the act. The implication created is that the
act would be acceptable if not for the prior marriage.
More likely is Reynaldo's story that he learned of the
prior marriage only much later. In fact, the rape
incident itself is unlikely against a woman who had
driven three days and three nights from California,
who went straight to the house of Reynaldo in
Pittsburgh and upon arriving went to bed and, who
immediately thereafter started to live with him in a
relationship which is marital in nature if not in fact.
Judge Bersamin of the court a quo believed the
testimony of the various witnesses that while married
to Reynaldo, Teresita entered into an illicit
relationship with Perdencio Gonzales right there in the
house of petitioner Reynaldo and respondent Teresita.
Perdencio had been assigned by the National Steel
Corporation to assist in the project in Pittsburgh and
was staying with Reynaldo, his co-employee, in the
latter's house. The record shows that the daughter
Rosalind suffered emotional disturbance caused by the
traumatic effect of seeing her mother hugging and
kissing a boarder in their house. The record also
shows that it was Teresita who left the conjugal home
and the children, bound for California. When
Perdencio Gonzales was reassigned to the Philippines,
Teresita followed him and was seen in his company in
a Cebu hotel, staying in one room and taking breakfast
together. More significant is that letters and written
messages from Teresita to Perdencio were submitted
in evidence (p. 12, RTC Decision).
The argument that moral laxity or the habit of flirting
from one man to another does not fall under stationed in Quezon City and presided over by the
"compelling reasons" is neither meritorious nor Honorable Lucas P. Bersamin in its Civil Case No. Q-
applicable in this case. Not only are the children over 92-14206 awarding custody of the minors Rosalind
seven years old and their clear choice is the father, but and Reginald Espiritu to their father, Reynaldo
the illicit or immoral activities of the mother had Espiritu, is reinstated. No special pronouncement is
already caused emotional disturbances, personality made as to costs.
conflicts, and exposure to conflicting moral values, at
least in Rosalind. This is not to mention her conviction SO ORDERED.
for the crime of bigamy, which from the records
appears to have become final (pp. 210-222, Rollo ). Feliciano, (Chairman), Romero, Vitug, and Francisco,
JJ., concur.
Respondent court's finding that the father could not
very well perform the role of a sole parent and
substitute mother because his job is in the United
States while the children will be left behind with their
aunt in the Philippines is misplaced. The assignment
of Reynaldo in Pittsburgh is or was a temporary one.
He was sent there to oversee the purchase of a steel
mill component and various equipment needed by the
National Steel Corporation in the Philippines. Once
the purchases are completed, there is nothing to keep
him there anymore. In fact, in a letter dated January
30, 1995, Reynaldo informs this Court of the
completion of his assignment abroad and of his
permanent return to the Philippines (ff. p 263, Rollo ).

The law is more than satisfied by the judgment of the

trial court. The children are now both over seven
years old. Their choice of the parent with whom they
prefer to stay is clear from the record. From all
indications, Reynaldo is a fit person, thus meeting the
two requirements found in the first paragraph of
Article 213 of the Family Code. The presumption
under the second paragraph of said article no longer
applies as the children are over seven years. Assuming
that the presumption should have persuasive value for
children only one or two years beyond the age of
seven years mentioned in the statute, there are
compelling reasons and relevant considerations not to
grant custody to the mother. The children understand
the unfortunate shortcomings of their mother and
have been affected in their emotional growth by her
behavior.

WHEREFORE, the petition is hereby GRANTED. The

decision of the Court of Appeals is reversed and set
aside, and the decision of Branch 96 of the Regional
Trial Court of the National Capital Judicial Region
 Supreme Court of the Philippines
G.R. No. L-30977, January 31, 1972
CARMEN LAPUZ SY, REPRESENTED BY HER
SUBSTITUTE MACARIO LAPUZ, PETITIONER
AND APPELLANT, VS. EUFEMIO S. EUFEMIO
ALIAS EUFEMIO SY UY, RESPONDENT AND
APPELLEE.
DECISION
REYES, J.B.L., J.:
Petition, filed after the effectivity of Republic Act
5440, for review by certiorari of an order, dated 29
July 1969, of the Juvenile and Domestic Relations
Court of Manila, in its Civil Case No. 20387,
dismissing said case for legal separation on the
ground that the death of the therein plaintiff, Carmen
O. Lapuz Sy, which occurred during the pendency of
the case, abated the cause of action as well as the
action itself. The dismissal order was issued over the
objection of Macario Lapuz, the heir of the deceased
plaintiff (and petitioner herein) who sought to
substitute the deceased and to have the case
prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a
petition for legal separation against Eufemio S.
Eufemio, alleging, in the main, that they were married
civilly on 21 September 1934 and canonically on 30
September 1934; that they had lived together as
husband and wife continuously until 1943 when her
husband abandoned her, that they had no child; that
they acquired properties during their marriage; and
that she discovered her husband cohabiting with a
Chinese woman named Go Hiok at 1319 Sisa Street,
Manila, on or about March 1949. She prayed for the
issuance of a decree of legal separation, which, among
others, would order that the defendant Eufemio S.
Eufemio should be deprived of his share of the
conjugal partnership profits.
In his second amended answer to the petition, herein
respondent Eufemio S. Eufemio alleged affirmative
and special defenses, and, along with several other
claims involving money and other properties,
counterclaimed for the declaration of nullity ab initio
of his marriage with Carmen O. Lapuz Sy, on the
ground of his prior and subsisting marriage,
celebrated according to Chinese law and customs,
with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the
parties adduced their respective evidence. But before
the trial could be completed (the respondent was
already scheduled to present surrebuttal evidence on
9 and 18 June 1969), petitioner Carmen O. Lapuz Sy
died in a vehicular accident on 31 May 1969. Counsel
for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss
the "petition for legal separation"[1] on two (2)
grounds, namely: that the petition for legal separation
was filed beyond the one-year period provided for in
Article 102 of the Civil Code; and that the death of
Carmen abated the action for legal separation.
On 26 June 1969, counsel for deceased petitioner
moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio opposed
the motion.
On 29 July 1969, the court issued the order under
review, dismissing the case.[2] In the body of the order,
the court stated that the motion to dismiss and the
motion for substitution had to be resolved on the
question of whether or not the plaintiff's cause of
action has survived, which the court resolved in the
negative. Petitioner's counsel moved to reconsider but
the motion was denied on 15 September 1969.
After first securing an extension of time to file a
petition for review of the order of dismissal issued by
the juvenile and domestic relations court, the
petitioner filed the present petition on 14 October
1969. The same was given due course and answer
thereto was filed by respondent, who prayed for the
affirmance of the said order.[3]
Although the defendant below, the herein respondent
Eufemio S. Eufemio, filed counterclaims, he did not
pursue them after the court below dismissed the case.
He acquiesced in the dismissal of said counterclaims
by praying for the affirmance of the order that
dismissed not only the petition for legal separation but
also his counterclaim to declare the Eufemio-Lapuz
marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-
assumed substitute – for the lower court did not act on
the motion for substitution) stated the principal issue
to be as follows:
"When an action for legal separation is converted by
the counterclaim into one for a declaration of nullity of
a marriage, does the death of a party abate the
proceedings?"
The issue as framed by petitioner injects into it a
supposed conversion of a legal separation suit to one
for declaration of nullity of a marriage, which is
without basis, for even petitioner asserted that "the
respondent has acquiesced to the dismissal of his
counterclaim" (Petitioner's Brief, page 22). Not only
this. The petition for legal separation and the
counterclaim to declare the nullity of the self same
marriage can stand independent and separate
adjudication. They are not inseparable nor was the
action for legal separation converted into one for a
declaration of nullity by the counterclaim, for legal
separation presupposes a valid marriage, while the
petition for nullity has a voidable marriage as a
precondition.
The first real issue in this case is: Does the death of
the plaintiff before final decree, in an action for legal
separation, abate the action? If it does, will
abatement also apply if the action involves property
rights?
An action for legal separation which involves nothing
more than the bed-and-board separation of the
spouses (there being no absolute divorce in this
jurisdiction) is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by
allowing only the innocent spouse (and no one else) to
claim legal separation; and in its Article 108, by
providing that the spouses can, by their
reconciliation, stop or abate the proceedings and even
rescind a decree of legal separation already rendered.
Being personal in character, it follows that the death
of one party to the action causes the death of the
action itself – actio personalis moritur cum persona.
* * * When one of the spouses is dead, there is no need
for divorce, because the marriage is dissolved. The
heirs cannot even continue the suit, if the death of the
spouse takes place during the course of the suit
(Article 244, Section 3). The action is absolutely dead
(Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8,
1933, D.H. 1933, 332."[4]
"Marriage is a personal relation or status, created
under the sanction of law, and an action for divorce is
a proceeding brought for the purpose of effecting a
dissolution of that relation. The action is one of a
personal nature. In the absence of a statute to the
contrary, the death of one of the parties to such action
abates the action, for the reason that death has settled
the question of separation beyond all controversy and
deprived the court of jurisdiction, both over the
persons of the parties to the action and of the subject-
matter of the action itself. For this reason the courts
are almost unanimous in holding that the death of
either party to a divorce proceeding, before final
decree, abates the action. 1 Corpus Juris, 208; Wren
vs. Moss, 2 Gilman, 72; Danforth vs. Danforth, 111 III.
236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578,
134 Am St. Rep. 830, 17 Ann. Cas. 874; Wilcon vs.
Wilson, 73 Mich. 620, 41 N.W. 817; Strickland vs.
Strickland, 80 Ark. 452, 97 S. W. 659; McCurley vs.
McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie vs.
Begbie, 128 Cal. 155, 60 Pac. 667, 49 L. R. A. 141." [5]
The same rule is true of causes of action and suits for
separation and maintenance (Johnson vs. Bates, Ark.
101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations
between spouses shows that they are solely the effect
of the decree of legal separation; hence, they can not
survive the death of the plaintiff if it occurs prior to
the decree. On this point, Article 106 of the Civil Code
provides:
"Art. 106. The decree of legal separation shall have
the following effects:
"(1) The spouses shall be entitled to live separately
from each other, but the marriage bonds shall not be
severed;
"(2) The conjugal partnership of gains or the absolute
conjugal community of property shall be dissolved and
liquidated, but the offending spouse shall have no
right to any share of the profits earned by the
partnership or community, without prejudice to the
provisions of article 176;
"(3) The custody of the minor children shall be
awarded to the innocent spouse, unless otherwise
directed by the court in the interest of said minors, for
whom said court may appoint a guardian;
"(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent one
shall be revoked by operation of law." * * *
From this article it is apparent that the right to the
dissolution of the conjugal partnership of gains (or of
the absolute community of property), the loss of right
by the offending spouse to any share of the profits
earned by the partnership or community, or his
disqualification to inherit by intestacy from the
innocent spouse as well as the revocation of
testamentary provisions in favor of the offending
spouse made by the innocent one, are all rights and
disabilities that, by the very terms of the Civil Code
article, are vested exclusively in the persons of the
spouses; and by their nature and intent, such claims
and disabilities are difficult to conceive as assignable
or transmissible. Hence, a claim to said rights is not a
claim that "is not thereby extinguished" after a party
dies, under Section 17, Rule 3, of the Rules of Court,
to warrant continuation of the action through a
substitute of the deceased party.
"Sec. 17. Death of party. After a party dies and the
claim is not thereby extinguished, the court shall
order, upon proper notice, the legal representative of
the deceased to appear and to be substituted for the
deceased, within a period of thirty (30) days, or within
such time as may be granted. * * *."
The same result flows from a consideration of the
enumeration of the actions that survive for or against
administrators in Section 1, Rule 87, of the Revised
Rules of Court:
"SECTION 1. Actions which may and which may not
be brought against executor or administrator. No
action upon a claim for the recovery of money or debt
or interest thereon shall be commenced against the
executor or administrator; but actions to recover real
or personal property, or an interest therein, from the
estate, or to enforce a lien thereon, and actions to
recover damages for an injury to person or property,
real or personal, may be commenced against him."
Neither actions for legal separation or for annulment
of marriage can be deemed fairly included in the
enumeration.
A further reason why an action for legal separation is
abated by the death of the plaintiff, even if property
rights are involved, is that these rights are mere
effects of a decree of separation, their source being
the decree itself; without the decree such rights do
not come into existence, so that before the finality of a
decree, these claims are merely rights in expectation.
If death supervenes during the pendency of the action,
no decree can be forthcoming, death producing a
more radical and definitive separation; and the
expected consequential rights and claims would
necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a
declaration of nullity ab initio of his marriage to
Carmen Lapuz, it is apparent that such action became
moot and academic upon the death of the latter, and
there could be no further interest in continuing the
same after her demise, that automatically dissolved
the questioned union. Any property rights acquired by
either party as a result of Article 144 of the Civil Code
of the Philippines[6] could be resolved and determined
in a proper action for partition by either the appellee
or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been
void ab initio but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second
marriage had been contracted with the first wife
having been an absentee for seven consecutive years,
or when she had been generally believed dead, still
the action for annulment became extinguished as soon
as one of the three persons involved had died, as
provided in Article 87, paragraph 2, of the Code,
requiring that the action for annulment should be
brought during the lifetime of any one of the parties
involved. And furthermore, the liquidation of any
conjugal partnership that might have resulted from
such voidable marriage must be carried out "in the
testate or intestate proceedings of the deceased
spouse," as expressly provided in Section 2 of the
Revised Rule 73, and not in the annulment
proceeding.

ACCORDINGLY , the appealed judgment of the

Manila Court of Juvenile and Domestic Relations is
hereby affirmed. No special pronouncement as to
costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro,

Fernando, Teehankee, Barredo, Villamor, and
Makasiar, JJ., concur.
 Supreme Court of the Philippines
G. R. No. L-18008, October 30, 1962
ELISEA LAPERAL, PETITIONER, VS. REPUBLIC
OF THE PHILIPPINES, OPPOSITOR
DECISION
BARRERA, J.:
On May 10, 1960, Elisea Laperal filed in the Court of
First Instance of Baguio (Sp. Proc. No. 433) a petition
which reads:
"1. That petitioner has been a bona fide resident of the
City of Baguio for the last three years prior to the date
of the filing of this petition;
"2. That petitioner's maiden name is ELISEA
LAPERAL; that on March 24, 1939, she married Mr.
Enrique R. Santamaria; that in a partial decision
entered on this Honorable Court on January 18, 1958,
in Civil Case No. 356 of this Court, entitled 'Enrique R.
Santamaria vs. Elisea L. Santamaria,' Mr. Enrique
Santamaria was given a decree of legal separation
from her; that the said partial decision is now final;
"3. That during her marriage to Enrique R.
Santamaria, she naturally used, instead of her maiden
name, that of Elisea L. Santamaria; that aside from
her legal separation from Enrique R. Santamaria, she
has also ceased to live with him for many years now;
"4. That in view of the fact that she has been legally
separated from Mr. Enrique R. Santamaria and has
likewise ceased to live with him for many years, it is
desirable that she be allowed to change her name
and/or be permitted to resume using her maiden
name, to wit: ELISEA LAPERAL.
"Wherefore, petitioner respectfully prayed that after
the necessary proceedings are had, she be allowed to
resume using her maiden name of Elisea Laperal."
The petition was opposed by the City Attorney of
Baguio on the ground that the same violates the
provisions of Article 370 (should be 372) of the Civil
Code, and that it is not sanctioned by the Rules of
Court.
In its decision of October 31, 1960, the court denied
the petition for the reason that Article 372 of the Civil
Code requires the wife, even after she is decreed
legally separated from her husband, to continue using
the name and surname she employed before the legal
separation. Upon petitioner's motion, however, the
court, treating the petition as one for change of name,
reconsidered its decision and granted the petition on
the ground that to allow petitioner, who is a
businesswoman decreed legally separated from her
husband, to continue using her married name would
give rise to confusion in her finances and the eventual
liquidation of the conjugal assets. Hence, this appeal
by the State.
The contention of the Republic finds support in the
provisions of Article 372 of the New Civil Code which
reads:
"ART. 372. When legal separation has been granted,
the wife shall continue using her name and surname
employed before the legal separation". (Italics
supplied)
Note that the language of the statute is mandatory
that the wife, even after the legal separation has been
decreed, shall continue using her name and surname
employed before the legal separation. This is so
because her married status is unaffected by the
separation, there being no severance of the vinculum.
It seems to be the policy of the law that the wife
should continue to use the name indicative of her
unchanged status for the benefit of all concerned.
The appellee contends, however, that the petition is
substantially for change of her name from Elisea L.
Santa-maria, the one she has been using, since her
marriage, to Elisea Laperal, her maiden name, giving
as reason or cause therefor her being legally
separated from the husband, Enrique R. Santamaria,
and the fact that they have ceased to live together for
many years.
There seems to be no dispute that in the institution of
these proceedings, the procedure prescribed in Rule
103 of the Rules of Court for change of name has been
observed. But from the petition quoted in full at the
beginning of this opinion, the only reason relied upon
for the change of name is the fact that petitioner is
legally separated from her husband and has, in fact,
ceased to live with him for many years. It is doubtful,
to say the least, whether Rule 103 which refers to
change of name in general, may prevail over the
specific provisions of Article 372 of the New Civil Code
with regards to married women legally separated from
their husbands. Even, however, applying Rule 103 to
this case, the fact of legal separation alone which is
the only basis for the petition at bar—is, in our
opinion, not a sufficient ground to justify a change of
the name of herein petitioner, for to hold otherwise
would be to provide an easy circumvention of the
mandatory provisions of the said Article 372.

It is true that in the second decision which

reconsidered the first it is stated that as petitioner
owns extensive business interests, the continued use
of her husband's surname may cause undue confusion
in her finances and the eventual liquidation of the
conjugal assets. This finding is however without basis.
In the first place, these were not the causes upon
which the petition was based; hence, obviously no
evidence to this effect had been adduced. Secondly,
with the issuance of the decree of legal separation in
1958, the conjugal partnership between petitioner and
her husband had automatically been dissolved and
liquidated. (Art. 106[2], Civil Code.) Consequently,
there could be no more occasion for an eventual
liquidation of the conjugal assets.

Wherefore, the order of the lower court of December

1, 1960, granting the petition, is hereby set aside and
the petition dismissed. Without costs. So ordered.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador,

Concepcion, Reyes, J. B.L., Paredes, Dizon, Regala and
Makalintal, JJ., concur.
 Supreme Court of the Philippines
SECOND DIVISION
G.R. No. 169900, March 18, 2010
MARIO SIOCHI, PETITIONER, VS. ALFREDO
GOZON, WINIFRED GOZON, GIL TABIJE, INTER-
DIMENSIONAL REALTY, INC., AND ELVIRA
GOZON, RESPONDENTS.
[G.R. NO. 169977]
INTER-DIMENSIONAL REALTY, INC.,
PETITIONER, VS. MARIO SIOCHI, ELVIRA
GOZON, ALFREDO GOZON, AND WINIFRED
GOZON, RESPONDENTS.
RESOLUTION
CARPIO, J.:
This is a consolidation of two separate petitions for
review,[1] assailing the 7 July 2005 Decision[2] and the
30 September 2005 Resolution[3] of the Court of
Appeals in CA-G.R. CV No. 74447.
This case involves a 30,000 sq.m. parcel of land
(property) covered by TCT No. 5357.[4] The property is
situated in Malabon, Metro Manila and is registered in
the name of "Alfredo Gozon (Alfredo), married to
Elvira Gozon (Elvira)."
On 23 December 1991, Elvira filed with the Cavite
City Regional Trial Court (Cavite RTC) a petition for
legal separation against her husband Alfredo. On 2
January 1992, Elvira filed a notice of lis pendens,
which was then annotated on TCT No. 5357.
On 31 August 1993, while the legal separation case
was still pending, Alfredo and Mario Siochi (Mario)
[5]
entered into an Agreement to Buy and Sell
(Agreement) involving the property for the price of
P18 million. Among the stipulations in the Agreement
were that Alfredo would: (1) secure an Affidavit from
Elvira that the property is Alfredo's exclusive property
and to annotate the Agreement at the back of TCT No.
5357; (2) secure the approval of the Cavite RTC to
exclude the property from the legal separation case;
and (3) secure the removal of the notice of lis pendens
pertaining to the said case and annotated on TCT No.
5357. However, despite repeated demands from
Mario, Alfredo failed to comply with these stipulations.
After paying the P5 million earnest money as partial
payment of the purchase price, Mario took possession
of the property in September 1993. On 6 September
1993, the Agreement was annotated on TCT No. 5357.
Meanwhile, on 29 June 1994, the Cavite RTC rendered
a decision[6] in the legal separation case, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered decreeing
the legal separation between petitioner and
respondent. Accordingly, petitioner Elvira Robles
Gozon is entitled to live separately from respondent
Alfredo Gozon without dissolution of their marriage
bond. The conjugal partnership of gains of the spouses
is hereby declared DISSOLVED and LIQUIDATED.
Being the offending spouse, respondent is deprived of
his share in the net profits and the same is awarded to
their child Winifred R. Gozon whose custody is
awarded to petitioner.
Furthermore, said parties are required to mutually
support their child Winifred R. Gozon as her needs
arises.
SO ORDERED.[7]
As regards the property, the Cavite RTC held that it is
deemed conjugal property.
On 22 August 1994, Alfredo executed a Deed of
Donation over the property in favor of their daughter,
Winifred Gozon (Winifred). The Register of Deeds of
Malabon, Gil Tabije, cancelled TCT No. 5357 and
issued TCT No. M-10508[8] in the name of Winifred,
without annotating the Agreement and the notice of
lis pendens on TCT No. M-10508.
On 26 October 1994, Alfredo, by virtue of a Special
Power of Attorney[9] executed in his favor by Winifred,
sold the property to Inter-Dimensional Realty, Inc.
(IDRI) for P18 million.[10] IDRI paid Alfredo P18
million, representing full payment for the property. [11]
Subsequently, the Register of Deeds of Malabon
cancelled TCT No. M-10508 and issued TCT No. M-
[12]
10976 to IDRI.
Mario then filed with the Malabon Regional Trial
Court (Malabon RTC) a complaint for Specific
Performance and Damages, Annulment of Donation
and Sale, with Preliminary Mandatory and Prohibitory
Injunction and/or Temporary Restraining Order.
On 3 April 2001, the Malabon RTC rendered a
decision,[13] the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is
hereby rendered as follows:
01. On the preliminary mandatory and prohibitory
injunction:
1.1 The same is hereby made permanent by:
1.1.1 Enjoining defendants Alfredo Gozon, Winifred
Gozon, Inter-Dimensional Realty, Inc. and Gil Tabije,
their agents, representatives and all persons acting in
their behalf from any attempt of commission or
continuance of their wrongful acts of further
alienating or disposing of the subject property;
1.1.2. Enjoining defendant Inter-Dimensional Realty,
Inc. from entering and fencing the property;
1.1.3. Enjoining defendants Alfredo Gozon, Winifred
Gozon, Inter-Dimensional Realty, Inc. to respect
plaintiff's possession of the property.
02. The Agreement to Buy and Sell dated 31 August
1993, between plaintiff and defendant Alfredo Gozon
is hereby approved, excluding the property and rights
of defendant Elvira Robles-Gozon to the undivided
one-half share in the conjugal property subject of this
case.
03. The Deed of Donation dated 22 August 1994,
entered into by and between defendants Alfredo
Gozon and Winifred Gozon is hereby nullified and
voided.
04. The Deed of Absolute Sale dated 26 October 1994,
executed by defendant Winifred Gozon, through
defendant Alfredo Gozon, in favor of defendant Inter-
Dimensional Realty, Inc. is hereby nullified and voided.
05. Defendant Inter-Dimensional Realty, Inc. is hereby
ordered to deliver its Transfer Certificate of Title No.
M-10976 to the Register of Deeds of Malabon, Metro
Manila.
06. The Register of Deeds of Malabon, Metro Manila is
hereby ordered to cancel Certificate of Title Nos.
10508 "in the name of Winifred Gozon" and M-10976
"in the name of Inter-Dimensional Realty, Inc.," and to
restore Transfer Certificate of Title No. 5357 "in the
name of Alfredo Gozon, married to Elvira Robles" with
the Agreement to Buy and Sell dated 31 August 1993
fully annotated therein is hereby ordered.
07. Defendant Alfredo Gozon is hereby ordered to
deliver a Deed of Absolute Sale in favor of plaintiff
over his one-half undivided share in the subject
property and to comply with all the requirements for
registering such deed.
08. Ordering defendant Elvira Robles-Gozon to sit with
plaintiff to agree on the selling price of her undivided
one-half share in the subject property, thereafter, to
execute and deliver a Deed of Absolute Sale over the
same in favor of the plaintiff and to comply with all the
requirements for registering such deed, within fifteen
(15) days from the receipt of this DECISION.
09. Thereafter, plaintiff is hereby ordered to pay
defendant Alfredo Gozon the balance of Four Million
Pesos (P4,000,000.00) in his one-half undivided share
in the property to be set off by the award of damages
in plaintiff's favor.
10. Plaintiff is hereby ordered to pay the defendant
Elvira Robles-Gozon the price they had agreed upon
for the sale of her one-half undivided share in the
subject property.
11. Defendants Alfredo Gozon, Winifred Gozon and Gil
Tabije are hereby ordered to pay the plaintiff, jointly
and severally, the following:
11.1 Two Million Pesos (P2,000,000.00) as actual and
compensatory damages;
11.2 One Million Pesos (P1,000,000.00) as moral
damages;
11.3 Five Hundred Thousand Pesos (P500,000.00) as
exemplary damages;
11.4 Four Hundred Thousand Pesos (P400,000.00) as
attorney's fees; and
11.5 One Hundred Thousand Pesos (P100,000.00) as
litigation expenses.
11.6 The above awards are subject to set off of
plaintiff's obligation in paragraph 9 hereof.
12. Defendants Alfredo Gozon and Winifred Gozon are
hereby ordered to pay Inter-Dimensional Realty, Inc.
jointly and severally the following:
12.1 Eighteen Million Pesos (P18,000,000.00) which
constitute the amount the former received from the
latter pursuant to their Deed of Absolute Sale dated
26 October 1994, with legal interest therefrom;
12.2 One Million Pesos (P1,000,000.00) as moral
damages;
12.3 Five Hundred Thousand Pesos (P500,000.00) as
exemplary damages; and
12.4 One Hundred Thousand Pesos (P100,000.00) as
attorney's fees.
13. Defendants Alfredo Gozon and Winifred Gozon are
hereby ordered to pay costs of suit.
SO ORDERED.[14]
On appeal, the Court of Appeals affirmed the Malabon
RTC's decision with modification. The dispositive
portion of the Court of Appeals' Decision dated 7 July
2005 reads:
WHEREFORE, premises considered, the assailed
decision dated April 3, 2001 of the RTC, Branch 74,
Malabon is hereby AFFIRMED with MODIFICATIONS,
as follows:
1. The sale of the subject land by defendant Alfredo
Gozon to plaintiff-appellant Siochi is declared null and
void for the following reasons:
a) The conveyance was done without the consent of
defendant-appellee Elvira Gozon;
b) Defendant Alfredo Gozon's one-half (½) undivided
share has been forfeited in favor of his daughter,
defendant Winifred Gozon, by virtue of the decision in
the legal separation case rendered by the RTC, Branch
16, Cavite;
2. Defendant Alfredo Gozon shall return/deliver to
plaintiff-appellant Siochi the amount of P5 Million
which the latter paid as earnest money in
consideration for the sale of the subject land;
3. Defendants Alfredo Gozon, Winifred Gozon and Gil
Tabije are hereby ordered to pay plaintiff-appellant
Siochi jointly and severally, the following:
a) P100,000.00 as moral damages;
b) P100,000.00 as exemplary damages;
c) P50,000.00 as attorney's fees;
d) P20,000.00 as litigation expenses; and
e) The awards of actual and compensatory damages
are hereby ordered deleted for lack of basis.
4. Defendants Alfredo Gozon and Winifred Gozon are
hereby ordered to pay defendant-appellant IDRI jointly
and severally the following:
a) P100,000.00 as moral damages;
b) P100,000.00 as exemplary damages; and
c) P50,000.00 as attorney's fees.
Defendant Winifred Gozon, whom the undivided one-
half share of defendant Alfredo Gozon was awarded, is
hereby given the option whether or not to dispose of
her undivided share in the subject land.
The rest of the decision not inconsistent with this
ruling stands.
SO ORDERED.[15]
Only Mario and IDRI appealed the decision of the
Court of Appeals. In his petition, Mario alleges that
the Agreement should be treated as a continuing offer
which may be perfected by the acceptance of the
other spouse before the offer is withdrawn. Since
Elvira's conduct signified her acquiescence to the sale,
Mario prays for the Court to direct Alfredo and Elvira
to execute a Deed of Absolute Sale over the property
upon his payment of P9 million to Elvira.
On the other hand, IDRI alleges that it is a buyer in
good faith and for value. Thus, IDRI prays that the
Court should uphold the validity of IDRI's TCT No. M-
10976 over the property.
We find the petitions without merit.
This case involves the conjugal property of Alfredo and
Elvira. Since the disposition of the property occurred
after the effectivity of the Family Code, the applicable
law is the Family Code. Article 124 of the Family Code
provides:
Art. 124. The administration and enjoyment of the
conjugal partnership property shall belong to both
spouses jointly. In case of disagreement, the husband's
decision shall prevail, subject to the recourse to the
court by the wife for a proper remedy, which must be
availed of within five years from the date of the
contract implementing such decision.
In the event that one spouse is incapacitated or
otherwise unable to participate in the
administration of the conjugal properties, the
other spouse may assume sole powers of
administration. These powers do not include the
powers of disposition or encumbrance which
must have the authority of the court or the
written consent of the other spouse. In the
absence of such authority or consent, the
disposition or encumbrance shall be void.
However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse
and the third person, and may be perfected as a
binding contract upon the acceptance by the other
spouse or authorization by the court before the offer is
withdrawn by either or both offerors. (Emphasis
supplied)
In this case, Alfredo was the sole administrator of the
property because Elvira, with whom Alfredo was
separated in fact, was unable to participate in the
administration of the conjugal property. However, as
sole administrator of the property, Alfredo still cannot
sell the property without the written consent of Elvira
or the authority of the court. Without such consent or
[16]
authority, the sale is void. The absence of the
consent of one of the spouse renders the entire sale
void, including the portion of the conjugal property
pertaining to the spouse who contracted the sale.[17]
Even if the other spouse actively participated in
negotiating for the sale of the property, that other
spouse's written consent to the sale is still required by
law for its validity.[18] The Agreement entered into by
Alfredo and Mario was without the written consent of
Elvira. Thus, the Agreement is entirely void. As
regards Mario's contention that the Agreement is a
continuing offer which may be perfected by Elvira's
acceptance before the offer is withdrawn, the fact that
the property was subsequently donated by Alfredo to
Winifred and then sold to IDRI clearly indicates that
the offer was already withdrawn.
However, we disagree with the finding of the Court of
Appeals that the one-half undivided share of Alfredo in
the property was already forfeited in favor of his
daughter Winifred, based on the ruling of the Cavite
RTC in the legal separation case. The Court of Appeals
misconstrued the ruling of the Cavite RTC that
Alfredo, being the offending spouse, is deprived of his
share in the net profits and the same is awarded to
Winifred.
The Cavite RTC ruling finds support in the following
provisions of the Family Code:
Art. 63. The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately
from each other, but the marriage bonds shall not be
severed;
(2) The absolute community or the conjugal
partnership shall be dissolved and liquidated but
the offending spouse shall have no right to any
share of the net profits earned by the absolute
community or the conjugal partnership, which
shall be forfeited in accordance with the
provisions of Article 43(2);
(3) The custody of the minor children shall be
awarded to the innocent spouse, subject to the
provisions of Article 213 of this Code; and
The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent
spouse shall be revoked by operation of law.
Art. 43. The termination of the subsequent marriage
referred to in the preceding Article shall produce the
following effects:

xxx
(2) The absolute community of property or the
conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her
share of the net profits of the community
property or conjugal partnership property shall
be forfeited in favor of the common children or, if
there are none, the children of the guilty spouse by a
previous marriage or, in default of children, the
innocent spouse; (Emphasis supplied)
Thus, among the effects of the decree of legal
separation is that the conjugal partnership is dissolved
and liquidated and the offending spouse would have
no right to any share of the net profits earned by the
conjugal partnership. It is only Alfredo's share in the
net profits which is forfeited in favor of Winifred.
Article 102(4) of the Family Code provides that "[f]or
purposes of computing the net profits subject to
forfeiture in accordance with Article 43, No. (2) and
63, No. (2), the said profits shall be the increase in
value between the market value of the community
property at the time of the celebration of the marriage
and the market value at the time of its dissolution."
Clearly, what is forfeited in favor of Winifred is not
Alfredo's share in the conjugal partnership property
but merely in the net profits of the conjugal
partnership property.
With regard to IDRI, we agree with the Court of
Appeals in holding that IDRI is not a buyer in good
faith. As found by the RTC Malabon and the Court of
Appeals, IDRI had actual knowledge of facts and
circumstances which should impel a reasonably
cautious person to make further inquiries about the
vendor's title to the property. The representative of
IDRI testified that he knew about the existence of the
notice of lis pendens on TCT No. 5357 and the legal
separation case filed before the Cavite RTC. Thus,
IDRI could not feign ignorance of the Cavite RTC
decision declaring the property as conjugal.
Furthermore, if IDRI made further inquiries, it would
have known that the cancellation of the notice of lis
pendens was highly irregular. Under Section 77 of
Presidential Decree No. 1529,[19] the notice of lis
pendens may be cancelled (a) upon order of the court,
or (b) by the Register of Deeds upon verified petition
of the party who caused the registration of the lis
pendens. In this case, the lis pendens was cancelled by
the Register of Deeds upon the request of Alfredo.
There was no court order for the cancellation of the lis
pendens. Neither did Elvira, the party who caused the
registration of the lis pendens, file a verified petition
for its cancellation.
Besides, had IDRI been more prudent before buying
the property, it would have discovered that Alfredo's
donation of the property to Winifred was without the
consent of Elvira. Under Article 125[20] of the Family
Code, a conjugal property cannot be donated by one
spouse without the consent of the other spouse.
Clearly, IDRI was not a buyer in good faith.
Nevertheless, we find it proper to reinstate the order
of the Malabon RTC for the reimbursement of the P18
million paid by IDRI for the property, which was
inadvertently omitted in the dispositive portion of the
Court of Appeals' decision.
WHEREFORE, we DENY the petitions. We AFFIRM
the 7 July 2005 Decision of the Court of Appeals in CA-
G.R. CV No. 74447 with the following
MODIFICATIONS:
(1) We DELETE the portions regarding the forfeiture
of Alfredo Gozon's one-half undivided share in favor of
Winifred Gozon and the grant of option to Winifred
Gozon whether or not to dispose of her undivided
share in the property; and
(2) We ORDER Alfredo Gozon and Winifred Gozon to
pay Inter-Dimensional Realty, Inc. jointly and severally
the Eighteen Million Pesos (P18,000,000) which was
the amount paid by Inter-Dimensional Realty, Inc. for
the property, with legal interest computed from the
finality of this Decision.
SO ORDERED.
Brion, Del Castillo, Abad, and Perez, JJ., concur.