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Considering the foregoing, the Court rules that the respondent judge violated
Mrs. Macias' right to due process when he completely ignored the pertinent
rules. A judge is called upon to exhibit more than just a modicum of
Persons Cases – Annulment to Marriage Settlement 3 | P a g e
Castillo vs De Leon – Castillo
On 3 January 2002, respondent filed an action to declare her first marriage to
Before this Court is a Petition for Review on Certiorari under Rule 45 of the
Baustista void. On 22 January 2003, the Regional Trial Court of Parañaque
Rules of Court, assailing the Court of Appeals (CA) Decision 1 in CA-GR. CV No.
City, Branch 260 rendered its Decision6 declaring that Lea's first marriage to
90153 and the Resolution2 that affirmed the same. The CA reversed the
Bautista was indeed null and void ab initio. Thereafter, the same court issued
Decision3 dated 23 March 2007 issued by the Regional Trial Court (RTC) of
a Certificate of Finality saying that the Decision dated 22 January 2003 had
Quezon City, Branch 84.
become final and executory. 7
The RTC had granted the Petition for Declaration of Nullity of Marriage
On 12 August 2004, respondent filed a Demurrer to Evidence8 claiming that
between the parties on the ground that respondent had a previous valid
the proof adduced by petitioner was insufficient to warrant a declaration of
marriage before she married petitioner. The CA believes on the other hand,
nullity of their marriage on the ground that it was bigamous. In his
that respondent was not prevented from contracting a second marriage if the
Opposition, 9 petitioner countered that whether or not the first marriage of
first one was an absolutely nullity, and for this purpose she did not have to
respondent was valid, and regardless of the fact that she had belatedly
await a final decree of nullity of the first marriage.
managed to obtain a judicial declaration of nullity, she still could not deny
that at the time she entered into marriage with him, her previous marriage
The only issue that must be resolved by the Court is whether the CA was
was valid and subsisting. The RTC thereafter denied respondent's demurrer
correct in holding thus and consequentially reversing the RTC's declaration of
in its Order 10 dated 8 March 2005.
nullity of the second marriage.
In a Decision 11 dated 23 March 2007, the RTC declared the marriage
FACTUAL ANTECEDENTS
between petitioner and respondent null and void ab initio on the ground that
On 25 May 1972, respondent Lea P. De Leon Castillo (Lea) married Benjamin
it was a bigamous marriage under Article 41 of the Family Code. 12 The
Bautista (Bautista). On 6 January 1979, respondent married herein petitioner
dispositive portion reads:
Renato A. Castillo (Renato).
WHEREFORE, in the light of the foregoing considerations, the Court hereby
On 28 May 2001, Renato filed before the RTC a Petition for Declaration of
declares the marriage between RENATO A. CASTILLO and LEA P. DE LEON-
Nullity of Marriage,4 praying that his marriage to Lea be declared void due to
CASTILLO contracted on January 6, 1979, at the Mary the Queen Parish
her subsisting marriage to Bautista and her psychological incapacity under
Church, San Juan, Metro Manila, is hereby declared NULL AND VOID AB INITIO
Article 36 of the Family Code. The CA states in its Decision that petitioner did
based on bigamous marriage, under Article 41 of the Family Code. 13
not pursue the ground of psychological incapacity in the RTC. The reason for
this finding by the CA while unclear, is irrelevant in this Petition.
The RTC said that the fact that Lea's marriage to Bautista was subsisting when
she married Renato on 6 January 1979, makes her marriage to Renato
Respondent opposed the Petition, and contended among others that her
bigamous, thus rendering it void ab initio. The lower court dismissed Lea's
marriage to Bautista was null and void as they had not secured any license
argument that she need not obtain a judicial decree of nullity and could
therefor, and neither of them was a member of the denomination to which
presume the nullity of a prior subsisting marriage. The RTC stressed that so
the solemnizing officer belonged.5
long as no judicial declaration exists, the prior marriage is valid and existing.
Persons Cases – Annulment to Marriage Settlement 4 | P a g e
Lastly, it also said that even if respondent eventually had her first marriage i.e. in 1979, 1981, and 1985. Hence, the Court must resolve this case using
judicially declared void, the fact remains that the first and second marriage the provisions under the Civil Code on void marriages, in particular, Articles
were subsisting before the first marriage was annulled, since Lea failed to 80,26 81,27 82,28 and 83 (first paragraph);29 and those on voidable
obtain a judicial decree of nullity for her first marriage to Bautista before marriages are Articles 83 (second paragraph),30 8531 and 86.32
contracting her second marriage with Renato. 14
Under the Civil Code, a void marriage differs from a voidable marriage in the
Petitioner moved for reconsideration insofar as the distribution of their following ways: (1) a void marriage is nonexistent - i.e., there was no marriage
properties were concerned. 15 His motion, however, was denied by the RTC from the beginning - while in a voidable marriage, the marriage is valid until
in its Order16 dated 6 September 2007. Thereafter, both petitioner17 and annulled by a competent court; (2) a void marriage cannot be ratified, while
Respondent18 filed their respective Notices of Appeal. a voidable marriage can be ratified by cohabitation; (3) being nonexistent, a
void marriage can be collaterally attacked, while a voidable marriage cannot
In a Decision19 dated 20 April 2009, the CA reversed and set aside the RTC's be collaterally attacked; (4) in a void marriage, there is no conjugal
Decision and Order and upheld the validity of the parties' marriage. In partnership and the offspring are natural children by legal fiction, while in
reversing the RTC, the CA said that since Lea's marriages were solemnized in voidable marriage there is conjugal partnership and the children conceived
1972 and in 1979, or prior to the effectivity of the Family Code on 3 August before the decree of annulment are considered legitimate; and (5) "in a void
1988, the Civil Code is the applicable law since it is the law in effect at the marriage no judicial decree to establish the invalidity is necessary," while in a
time the marriages were celebrated, and not the Family Code.20 voidable marriage there must be a judicial decree.33
Furthermore, the CA ruled that the Civil Code does not state that a judicial
decree is necessary in order to establish the nullity of a marriage.21 Emphasizing the fifth difference, this Court has held in the cases of People v.
Mendoza, 34 People v. Aragon, 35 and Odayat v. Amante, 36 that the Civil
Petitioner's motion for reconsideration of the CA's Decision was likewise Code contains no express provision on the necessity of a judicial declaration
denied in the questioned CA Resolution22 dated 16 September 2009. of nullity of a void marriage. 37
Hence, this Petition for Review on Certiorari. In Mendoza (1954), appellant contracted three marriages in 1936, 1941, and
Respondent filed her Comment23 praying that the CA Decision finding her 1949. The second marriage was contracted in the belief that the first wife was
marriage to petitioner valid be affirmed in toto, and that all properties already dead, while the third marriage was contracted after the death of the
acquired by the spouses during their marriage be declared conjugal. In his second wife. The Court ruled that the first marriage was deemed valid until
Reply to the Comment,24 petitioner reiterated the allegations in his Petition. annulled, which made the second marriage null and void for being bigamous.
Thus, the third marriage was valid, as the second marriage was void from its
OUR RULING performance, hence, nonexistent without the need of a judicial decree
We deny the Petition. declaring it to be so.
The validity of a marriage and all its incidents must be determined in
accordance with the law in effect at the time of its celebration.25 In this case, This doctrine was reiterated in Aragon (1957), which involved substantially
the law in force at the time Lea contracted both marriages was the Civil Code. the same factual antecedents. In Odayat ( 1977), citing Mendoza and Aragon,
The children of the parties were also born while the Civil Code was in effect
Persons Cases – Annulment to Marriage Settlement 5 | P a g e
the Court likewise ruled that no judicial decree was necessary to establish the However, as this Court clarified in Apiag v. Cantero41 and Ty v. Court of
invalidity of void marriages under Article 80 of the Civil Code. Appeals, 42 the requirement of a judicial decree of nullity does not apply to
marriages that were celebrated before the effectivity of the Family Code,
It must be emphasized that the enactment of the Family Code rendered the particularly if the children of the parties were born while the Civil Code was
rulings in Odayat, Mendoza, and Aragon inapplicable to marriages celebrated in force. In Ty, this Court clarified that those cases continue to be governed
after 3 August 1988. A judicial declaration of absolute nullity of marriage is by Odayat, Mendoza, and Aragon, which embodied the then-prevailing rule:
now expressly required where the nullity of a previous marriage is invoked
for purposes of contracting a second marriage. 38 A second marriage x x x. In Apiag v. Cantero, (1997) the first wife charged a municipal trial judge
contracted prior to the issuance of this declaration of nullity is thus of immorality for entering into a second marriage. The judge claimed that his
considered bigamous and void. 39 In Domingo v. Court of Appeals, we first marriage was void since he was merely forced into marrying his first wife
explained the policy behind the institution of this requirement: whom he got pregnant. On the issue of nullity of the first marriage, we
applied Odayat, Mendoza and Aragon. We held that since the second
Marriage, a sacrosanct institution, declared by the Constitution as an marriage took place and all the children thereunder were born before the
"inviolable social institution, is the foundation of the family;" as such, it "shall promulgation of Wiegel and the effectivity of the Family Code, there is no
be protected by the State." In more explicit terms, the Family Code need for a judicial declaration of nullity of the first marriage pursuant to
characterizes it as "a special contract of permanent union between a man and prevailing jurisprudence at that time.
a woman entered into in accordance with law for the establishment of
conjugal and family life." So crucial are marriage and the family to the stability Similarly, in the present case, the second marriage of private respondent was
and peace of the nation that their "nature, consequences, and incidents are entered into in 1979, before Wiegel. At that time, the prevailing rule was
governed by law and not subject to stipulation." As a matter of policy, found in Odayat, Mendoza and Aragon. The first marriage of private
therefore, the nullification of a marriage for the purpose of contracting respondent being void for lack of license and consent, there was no need for
another cannot be accomplished merely on the basis of the perception of judicial declaration of its nullity before he could contract a second marriage.
both parties or of one that their union is so defective with respect to the In this case, therefore, we conclude that private respondent's second
essential requisites of a contract of marriage as to render it void ipso jure and marriage to petitioner is valid.
with no legal effect - and nothing more. Were this so, this inviolable social
institution would be reduced to a mockery and would rest on very shaky Moreover, we find that the provisions of the Family Code cannot be
foundations indeed. And the grounds for nullifying marriage would be as retroactively applied to the present case, for to do so would prejudice the
diverse and far-ranging as human ingenuity and fancy could conceive. For vested rights of petitioner and of her children. As held in Jison v. Court of
such a socially significant institution, an official state pronouncement through Appeals, the Family Code has retroactive effect unless there be impairment
the courts, and nothing less, will satisfy the exacting norms of society. Not of vested rights. In the present case, that impairment of vested rights of
only would such an open and public declaration by the courts definitively petitioner and the children is patent x x x. (Citations omitted)
confirm the nullity of the contract of marriage, but the same would be easily
verifiable through records accessible to everyone.40 (Emphases As earlier explained, the rule in Odayat, Mendoza, and Aragon is applicable
supplied)1âwphi1 to this case. The Court thus concludes that the subsequent marriage of Lea to
Renato is valid in view of the invalidity of her first marriage to Bautista
Persons Cases – Annulment to Marriage Settlement 6 | P a g e
because of the absence of a marriage license. That there was no judicial
declaration that the first marriage was void ab initio before the second
marriage was contracted is immaterial as this is not a requirement under the
Civil Code. Nonetheless, the subsequent Decision of the RTC of Parañaque
City declaring the nullity of Lea's first marriage only serves to strengthen the
conclusion that her subsequent marriage to Renato is valid.
In view of the foregoing, it is evident that the CA did not err in upholding the
validity of the marriage between petitioner and respondent. Hence, we find
no reason to disturb its ruling.
SO ORDERED.
In Tolentino v. Paras,12 however, the Court turned around and applied the The absolute nullity of a marriage may be invoked only on the basis of a final
Aragon and Mendoza ruling once again. In granting the prayer of the first wife judgment declaring the marriage void, except as provided in Article 41.
asking for a declaration as the lawful surviving spouse and the correction of
the death certificate of her deceased husband, it explained that "(t)he second Justice Caguioa remarked that the above provision should include not only
marriage that he contracted with private respondent during the lifetime of void but also voidable marriages. He then suggested that the above provision
his first spouse is null and void from the beginning and of no force and effect. be modified as follows:
No judicial decree is necessary to establish the invalidity of a void marriage."
The validity of a marriage may be invoked only . . .
However, in the more recent case of Wiegel v. Sempio-Diy 13 the Court Justice Reyes (J.B.L. Reyes), however, proposed that they say:
reverted to the Consuegra case and held that there was "no need of
introducing evidence about the existing prior marriage of her first husband at The validity or invalidity of a marriage may be invoked
the time they married each other, for then such a marriage though void still only . . .
needs according to this Court a judicial declaration of such fact and for all
legal intents and purposes she would still be regarded as a married woman at On the other hand, Justice Puno suggested that they say:
the time she contracted her marriage with respondent Karl Heinz Wiegel."
Persons Cases – Annulment to Marriage Settlement 10 | P a g e
The invalidity of a marriage may be invoked only . . . Prof. Bautista commented that they will be doing away with collateral
defense as well as collateral attack. Justice Caguioa explained that the idea in
Justice Caguioa explained that his idea is that one cannot determine for the provision is that there should be a final judgment declaring the marriage
himself whether or not his marriage is valid and that a court action is needed. void and a party should not declare for himself whether or not the marriage
Justice Puno accordingly proposed that the provision be modified to read: is void, while the other members affirmed. Justice Caguioa added that they
are, therefore, trying to avoid a collateral attack on that point. Prof. Bautista
The invalidity of a marriage may be invoked only on the basis of a final stated that there are actions which are brought on the assumption that the
judgment annulling the marriage or declaring the marriage void, except as marriage is valid. He then asked: Are they depriving one of the right to raise
provided in Article 41. the defense that he has no liability because the basis of the liability is void?
Prof. Bautista added that they cannot say that there will be no judgment on
Justice Caguioa remarked that in annulment, there is no question. Justice the validity or invalidity of the marriage because it will be taken up in the
Puno, however, pointed out that, even if it is a judgment of annulment, they same proceeding. It will not be a unilateral declaration that, it is a void
still have to produce the judgment. marriage. Justice Caguioa saw the point of Prof. Bautista and suggested that
they limit the provision to remarriage. He then proposed that Article 39 be
Justice Caguioa suggested that they say: reworded as follows:
The invalidity of a marriage may be invoked only on the basis of a final The absolute nullity of a marriage for purposes of remarriage may be invoked
judgment declaring the marriage invalid, except as provided in Article 41. only on the basis of final judgment . . .
Justice Puno raised the question: When a marriage is declared invalid, does it Justice Puno suggested that the above be modified as follows:
include the annulment of a marriage and the declaration that the marriage is
void? Justice Caguioa replied in the affirmative. Dean Gupit added that in The absolute nullity of a previous marriage may be invoked for purposes of
some judgments, even if the marriage is annulled, it is declared void. Justice establishing the validity of a subsequent marriage only on the basis of a final
Puno suggested that this matter be made clear in the provision. judgment declaring such previous marriage void, except as provided in Article
41.
Prof. Baviera remarked that the original idea in the provision is to require first
a judicial declaration of a void marriage and not annullable marriages, with Justice Puno later modified the above as follows:
which the other members concurred. Judge Diy added that annullable
marriages are presumed valid until a direct action is filed to annul it, which For the purpose of establishing the validity of a subsequent marriage, the
the other members affirmed. Justice Puno remarked that if this is so, then the absolute nullity of a previous marriage may only be invoked on the basis of a
phrase "absolute nullity" can stand since it might result in confusion if they final judgment declaring such nullity, except as provided in Article 41.
change the phrase to "invalidity" if what they are referring to in the provision
is the declaration that the marriage is void. Justice Caguioa commented that the above provision is too broad and will not
solve the objection of Prof. Bautista. He proposed that they say:
After further deliberation, Justice Puno suggested that they go back to the Crucial to the proper interpretation of Article 40 is the position in the
original wording of the provision as follows: provision of the word "solely." As it is placed, the same shows that it is meant
to qualify "final judgment declaring such previous marriage void." Realizing
The absolute nullity of a previous marriage may be invoked for purposes of the need for careful craftsmanship in conveying the precise intent of the
remarriage only on the basis of a final judgment declaring such previous Committee members, the provision in question, as it finally emerged, did not
marriage void, except as provided in Article 41. 17 state "The absolute nullity of a previous marriage may be invoked solely for
purposes of remarriage . . .," in which case "solely" would clearly qualify the
In fact, the requirement for a declaration of absolute nullity of a marriage is phrase "for purposes of remarriage." Had the phraseology been such, the
also for the protection of the spouse who, believing that his or her marriage interpretation of petitioner would have been correct and, that is, that the
is illegal and void, marries again. With the judicial declaration of the nullity of absolute nullity of a previous marriage may be invoked solely for purposes of
his or her first marriage, the person who marries again cannot be charged remarriage, thus rendering irrelevant the clause "on the basis solely of a final
with bigamy. 18 judgment declaring such previous marriage void."
Just over a year ago, the Court made the pronouncement that there is a That Article 40 as finally formulated included the significant clause denotes
necessity for a declaration of absolute nullity of a prior subsisting marriage that such final judgment declaring the previous marriage void need not be
before contracting another in the recent case of Terre v. Terre. 19 The Court, obtained only for purposes of remarriage. Undoubtedly, one can conceive of
in turning down the defense of respondent Terre who was charged with other instances where a party might well invoke the absolute nullity of a
grossly immoral conduct consisting of contracting a second marriage and previous marriage for purposes other than remarriage, such as in case of an
living with another woman other than complainant while his prior marriage action for liquidation, partition, distribution and separation of property
with the latter remained subsisting, said that "for purposes of determining between the erstwhile spouses, as well as an action for the custody and
whether a person is legally free to contract a second marriage, a judicial support of their common children and the delivery of the latters' presumptive
declaration that the first marriage was null and void ab initio is essential." legitimes. In such cases, evidence needs must be adduced, testimonial or
documentary, to prove the existence of grounds rendering such a previous
As regards the necessity for a judicial declaration of absolute nullity of marriage an absolute nullity. These need not be limited solely to an earlier
marriage, petitioner submits that the same can be maintained only if it is for final judgment of a court declaring such previous marriage void. Hence, in the
instance where a party who has previously contracted a marriage which
Persons Cases – Annulment to Marriage Settlement 12 | P a g e
remains subsisting desires to enter into another marriage which is legally new information required in the Family Code to be included in the application
unassailable, he is required by law to prove that the previous one was an for a marriage license, viz, "If previously married, how, when and where the
absolute nullity. But this he may do on the basis solely of a final judgment previous marriage was dissolved and annulled." 23
declaring such previous marriage void.
Reverting to the case before us, petitioner's interpretation of Art. 40 of the
This leads us to the question: Why the distinction? In other words, for Family Code is, undoubtedly, quite restrictive. Thus, his position that private
purposes of remarriage, why should the only legally acceptable basis for respondent's failure to state in the petition that the same is filed to enable
declaring a previous marriage an absolute nullity be a final judgment her to remarry will result in the dismissal of SP No. 1989-J is untenable. His
declaring such previous marriage void? Whereas, for purposes other than misconstruction of Art. 40 resulting from the misplaced emphasis on the term
remarriage, other evidence is acceptable? "solely" was in fact anticipated by the members of the Committee.
Marriage, a sacrosanct institution, declared by the Constitution as an Dean Gupit commented the word "only" may be misconstrued to refer to "for
"inviolable social institution, is the foundation of the family;" as such, it "shall purposes of remarriage." Judge Diy stated that "only" refers to "final
be protected by the State."20 In more explicit terms, the Family Code judgment." Justice Puno suggested that they say "on the basis only of a final
characterizes it as "a special contract of permanent union between a man and judgment." Prof. Baviera suggested that they use the legal term "solely"
a woman entered into in accordance with law for the establishment of instead of "only," which the Committee approved. 24 (Emphasis supplied)
conjugal, and family life." 21 So crucial are marriage and the family to the
stability and peace of the nation that their "nature, consequences, and Pursuing his previous argument that the declaration for absolute nullity of
incidents are governed by law and not subject to stipulation . . ." 22 As a marriage is unnecessary, petitioner suggests that private respondent should
matter of policy, therefore, the nullification of a marriage for the purpose of have filed an ordinary civil action for the recovery of the properties alleged to
contracting another cannot be accomplished merely on the basis of the have been acquired during their union. In such an eventuality, the lower court
perception of both parties or of one that their union is so defective with would not be acting as a mere special court but would be clothed with
respect to the essential requisites of a contract of marriage as to render it jurisdiction to rule on the issues of possession and ownership. In addition, he
void ipso jure and with no legal effect — and nothing more. Were this so, this pointed out that there is actually nothing to separate or partition as the
inviolable social institution would be reduced to a mockery and would rest on petition admits that all the properties were acquired with private
very shaky foundations indeed. And the grounds for nullifying marriage would respondent's money.
be as diverse and far-ranging as human ingenuity and fancy could conceive.
For such a social significant institution, an official state pronouncement The Court of Appeals disregarded this argument and concluded that "the
through the courts, and nothing less, will satisfy the exacting norms of prayer for declaration of absolute nullity of marriage may be raised together
society. Not only would such an open and public declaration by the courts with the other incident of their marriage such as the separation of their
definitively confirm the nullity of the contract of marriage, but the same properties."
would be easily verifiable through records accessible to everyone.
When a marriage is declared void ab initio, the law states that the final
That the law seeks to ensure that a prior marriage is no impediment to a judgment therein shall provide for "the liquidation, partition and distribution
second sought to be contracted by one of the parties may be gleaned from of the properties of the spouses, the custody and support of the common
Persons Cases – Annulment to Marriage Settlement 13 | P a g e
children, and the delivery of their presumptive legitimes, unless such matters clearly provided the effects of the declaration of nullity of marriage, one of
had been adjudicated in previous judicial proceedings." 25 Other specific which is the separation of property according to the regime of property
effects flowing therefrom, in proper cases, are the following: relations governing them. It stands to reason that the lower court before
whom the issue of nullity of a first marriage is brought is likewise clothed with
Art. 43. xxx xxx xxx jurisdiction to decide the incidental questions regarding the couple's
properties. Accordingly, the respondent court committed no reversible error
(2) The absolute community of property or the conjugal partnership, as the in finding that the lower court committed no grave abuse of discretion in
case may be, shall be dissolved and liquidated, but if either spouse contracted denying petitioner's motion to dismiss SP No. 1989-J.
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 WHEREFORE, the instant petition is hereby DENIED. The decision of
common children or, if there are none, the children of the guilty spouse by a respondent Court dated February 7, 1992 and the Resolution dated March
previous marriage or, in default of children, the innocent spouse; 20, 1992 are AFFIRMED.
(3) Donations by reason of marriage shall remain valid, except that if the SO ORDERED.
donee contracted the marriage in bad faith, such donations made to said
donee are revoked by operation of law; Separate Opinions
VITUG, J., concurring:
(4) The innocent spouse may revoke the designation of the other spouse who I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P.
acted in bad faith as a beneficiary in any insurance policy, even if such Romero. I should like, however, to put in a modest observation.
designation be stipulated as irrevocable; and
Void marriages are inexistent from the very beginning and, I believe, no
(5) The spouse who contracted the subsequent marriage in bad faith shall be judicial decree is required to establish their nullity, except in the following
disqualified to inherit from the innocent spouse by testate and intestate instances:
succession. (n)
(a) For purposes of remarriage pursuant to the provision of Article 40 of the
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said Family Code; viz.:
marriage shall be void ab initio and all donations by reason of marriage and
testamentary disposition made by one in favor of the other are revoked by The absolute nullity of a previous marriage may be invoked for purposes of
operation of law. (n) 26 remarriage on the basis solely of a final judgment declaring such previous
marriage void. (n)
Based on the foregoing provisions, private respondent's ultimate prayer for
separation of property will simply be one of the necessary consequences of (b) A marriage celebrated prior to the effectivity of the Family Code in case a
the judicial declaration of absolute nullity of their marriage. Thus, petitioner's party thereto was psychologically incapacitated to comply with the essential
suggestion that in order for their properties to be separated, an ordinary civil marital obligations of marriage (Article 36, Family Code), where an action or
action has to be instituted for that purpose is baseless. The Family Code has defense for the declaration of nullity prescribes ten (10) years after the Family
Persons Cases – Annulment to Marriage Settlement 14 | P a g e
Code took effect (Article 39, Family Code); otherwise, the marriage is deemed
unaffected by the Family Code.
A void marriage, even without its being judicially declared a nullity, albeit the
preferability for, and justiciability (fully discussed in the majority opinion) of,
such a declaration, will not give it the status or the consequences of a valid
marriage, saving only specific instances where certain effects of a valid
marriage can still flow from the void marriage. Examples of these cases are
children of void marriages under Article 36 (due to psychological incapacity)
and Article 53, in relation to Article 52 (due to failure of partition, delivery of
presumptive legitimes of children and recording thereof following the
annulment or declaration of nullity a prior marriage), conceived or born
before the judicial declaration of nullity of such void marriages, who the law
deems as legitimate (Article 54, Family Code).
INFORMATION On April 16, 1995, appellant and Emmanuel Uy exchanged marital vows anew
The undersigned Assistant City Prosecutor accuses VICTORIA S. JARILLO of the in a church wedding in Manila (Exh. E).
crime of BIGAMY, committed as follows:
In 1999, Emmanuel Uy filed against the appellant Civil Case No. 99-93582 for
That on or about the 26th day of November 1979, in Pasay City, Metro Manila, annulment of marriage before the Regional Trial Court of Manila.
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, Victoria S. Jarillo, being previously united in lawful marriage Thereafter, appellant Jarillo was charged with bigamy before the Regional
with Rafael M. Alocillo, and without the said marriage having been legally Trial Court of Pasay City x x x.
dissolved, did then and there willfully, unlawfully and feloniously contract a
second marriage with Emmanuel Ebora Santos Uy which marriage was only xxxx
discovered on January 12, 1999.
Parenthetically, accused-appellant filed against Alocillo, on October 5, 2000,
Contrary to law. before the Regional Trial Court of Makati, Civil Case No. 00-1217, for
declaration of nullity of their marriage.
On July 14, 2000, petitioner pleaded not guilty during arraignment and,
thereafter, trial proceeded. On July 9, 2001, the court a quo promulgated the assailed decision, the
dispositive portion of which states:
The undisputed facts, as accurately summarized by the CA, are as follows.
WHEREFORE, upon the foregoing premises, this court hereby finds accused
On May 24, 1974, Victoria Jarillo and Rafael Alocillo were married in a civil Victoria Soriano Jarillo GUILTY beyond reasonable doubt of the crime of
wedding ceremony solemnized by Hon. Monico C. Tanyag, then Municipal BIGAMY.
Mayor of Taguig, Rizal (Exhs. A, A-1, H, H-1, H-2, O, O-1, pp. 20-21, TSN dated
November 17, 2000). Accordingly, said accused is hereby sentenced to suffer an indeterminate
penalty of SIX (6) YEARS of prision correccional, as minimum, to TEN (10)
On May 4, 1975, Victoria Jarillo and Rafael Alocillo again celebrated marriage YEARS of prision mayor, as maximum.
in a church wedding ceremony before Rev. Angel Resultay in San Carlos City,
Persons Cases – Annulment to Marriage Settlement 16 | P a g e
This court makes no pronouncement on the civil aspect of this case, such as first marriage on the ground of psychological incapacity, while it retroacts to
the nullity of accused’s bigamous marriage to Uy and its effect on their the date of the celebration of the marriage insofar as the vinculum between
children and their property. This aspect is being determined by the Regional the spouses is concerned, the said marriage is not without legal
Trial Court of Manila in Civil Case No. 99-93582. consequences, among which is incurring criminal liability for bigamy."5
Costs against the accused. Hence, the present petition for review on certiorari under Rule 45 of the Rules
of Court where petitioner alleges that:
The motion for reconsideration was likewise denied by the same court in that
assailed Order dated 2 August 2001.3 V.1. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
PROCEEDING WITH THE CASE DESPITE THE PENDENCY OF A CASE WHICH IS
For her defense, petitioner insisted that (1) her 1974 and 1975 marriages to PREJUDICIAL TO THE OUTCOME OF THIS CASE.
Alocillo were null and void because Alocillo was allegedly still married to a
certain Loretta Tillman at the time of the celebration of their marriage; (2) V.2. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN AFFIRMING
her marriages to both Alocillo and Uy were null and void for lack of a valid THE CONVICTION OF PETITIONER FOR THE CRIME OF BIGAMY DESPITE THE
marriage license; and (3) the action had prescribed, since Uy knew about her SUPERVENING PROOF THAT THE FIRST TWO MARRIAGES OF PETITIONER TO
marriage to Alocillo as far back as 1978. ALOCILLO HAD BEEN DECLARED BY FINAL JUDGMENT NULL AND VOID AB
INITIO.
On appeal to the CA, petitioner’s conviction was affirmed in toto. In its
Decision dated July 21, 2003, the CA held that petitioner committed bigamy V.3. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT
when she contracted marriage with Emmanuel Santos Uy because, at that CONSIDERING THAT THERE IS A PENDING ANNULMENT OF MARRIAGE AT THE
time, her marriage to Rafael Alocillo had not yet been declared null and void REGIONAL TRIAL COURT BRANCH 38 BETWEEN EMMANUEL SANTOS AND
by the court. This being so, the presumption is, her previous marriage to VICTORIA S. JARILLO.
Alocillo was still existing at the time of her marriage to Uy. The CA also struck
down, for lack of sufficient evidence, petitioner’s contentions that her V.4. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT
marriages were celebrated without a marriage license, and that Uy had notice CONSIDERING THAT THE INSTANT CASE OF BIGAMY HAD ALREADY
of her previous marriage as far back as 1978. PRESCRIBED.
In the meantime, the RTC of Makati City, Branch 140, rendered a Decision V.5. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT
dated March 28, 2003, declaring petitioner’s 1974 and 1975 marriages to CONSIDERING THAT THE MARRIAGE OF VICTORIA JARILLO AND EMMANUEL
Alocillo null and void ab initio on the ground of Alocillo’s psychological SANTOS UY HAS NO VALID MARRIAGE LICENSE.
incapacity. Said decision became final and executory on July 9, 2003. In her
motion for reconsideration, petitioner invoked said declaration of nullity as a V.6. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT
ground for the reversal of her conviction. However, in its Resolution dated ACQUITTING THE PETITIONER BUT IMPOSED AN ERRONEOUS PENALTY
July 8, 2004, the CA, citing Tenebro v. Court of Appeals,4 denied UNDER THE REVISED PENAL CODE AND THE INDETERMINATE SENTENCE LAW.
reconsideration and ruled that "[t]he subsequent declaration of nullity of her
Persons Cases – Annulment to Marriage Settlement 17 | P a g e
The first, second, third and fifth issues, being closely related, shall be prosecution of bigamy cases considering that an accused could simply file a
discussed jointly. It is true that right after the presentation of the prosecution petition to declare his previous marriage void and invoke the pendency of
evidence, petitioner moved for suspension of the proceedings on the ground that action as a prejudicial question in the criminal case. We cannot allow
of the pendency of the petition for declaration of nullity of petitioner’s that.
marriages to Alocillo, which, petitioner claimed involved a prejudicial
question. In her appeal, she also asserted that the petition for declaration of The outcome of the civil case for annulment of petitioner’s marriage to
nullity of her marriage to Uy, initiated by the latter, was a ground for [private complainant] had no bearing upon the determination of petitioner’s
suspension of the proceedings. The RTC denied her motion for suspension, innocence or guilt in the criminal case for bigamy, because all that is required
while the CA struck down her arguments. In Marbella-Bobis v. Bobis,6 the for the charge of bigamy to prosper is that the first marriage be subsisting at
Court categorically stated that: the time the second marriage is contracted.
x x x as ruled in Landicho v. Relova, he who contracts a second marriage Thus, under the law, a marriage, even one which is void or voidable, shall be
before the judicial declaration of nullity of the first marriage assumes the risk deemed valid until declared otherwise in a judicial proceeding. In this case,
of being prosecuted for bigamy, and in such a case the criminal case may not even if petitioner eventually obtained a declaration that his first marriage was
be suspended on the ground of the pendency of a civil case for declaration of void ab initio, the point is, both the first and the second marriage were
nullity. x x x subsisting before the first marriage was annulled.9
xxxx For the very same reasons elucidated in the above-quoted cases, petitioner’s
conviction of the crime of bigamy must be affirmed. The subsequent judicial
x x x The reason is that, without a judicial declaration of its nullity, the first declaration of nullity of petitioner’s two marriages to Alocillo cannot be
marriage is presumed to be subsisting. In the case at bar, respondent was for considered a valid defense in the crime of bigamy. The moment petitioner
all legal intents and purposes regarded as a married man at the time he contracted a second marriage without the previous one having been judicially
contracted his second marriage with petitioner. Against this legal backdrop, declared null and void, the crime of bigamy was already consummated
any decision in the civil action for nullity would not erase the fact that because at the time of the celebration of the second marriage, petitioner’s
respondent entered into a second marriage during the subsistence of a first marriage to Alocillo, which had not yet been declared null and void by a court
marriage. Thus, a decision in the civil case is not essential to the of competent jurisdiction, was deemed valid and subsisting. Neither would a
determination of the criminal charge. It is, therefore, not a prejudicial judicial declaration of the nullity of petitioner’s marriage to Uy make any
question. x x x7 difference.10 As held in Tenebro, "[s]ince a marriage contracted during the
subsistence of a valid marriage is automatically void, the nullity of this second
The foregoing ruling had been reiterated in Abunado v. People,8 where it was marriage is not per se an argument for the avoidance of criminal liability for
held thus: bigamy. x x x A plain reading of [Article 349 of the Revised Penal Code],
therefore, would indicate that the provision penalizes the mere act of
The subsequent judicial declaration of the nullity of the first marriage was contracting a second or subsequent marriage during the subsistence of a valid
immaterial because prior to the declaration of nullity, the crime had already marriage."11
been consummated. Moreover, petitioner’s assertion would only delay the
Persons Cases – Annulment to Marriage Settlement 18 | P a g e
Petitioner’s defense of prescription is likewise doomed to fail. prescription began to run as of 1978, her defense is, therefore,
ineffectual.1avvphi1
Under Article 349 of the Revised Penal Code, bigamy is punishable by prision
mayor, which is classified under Article 25 of said Code as an afflictive penalty. Finally, petitioner avers that the RTC and the CA imposed an erroneous
Article 90 thereof provides that "[c]rimes punishable by other afflictive penalty under the Revised Penal Code. Again, petitioner is mistaken.
penalties shall prescribe in fifteen years," while Article 91 states that "[t]he
period of prescription shall commence to run from the day on which the The Indeterminate Sentence Law provides that the accused shall be
crime is discovered by the offended party, the authorities, or their agents x x sentenced to an indeterminate penalty, the maximum term of which shall be
x ." that which, in view of the attending circumstances, could be properly
imposed under the Revised Penal Code, and the minimum of which shall be
Petitioner asserts that Uy had known of her previous marriage as far back as within the range of the penalty next lower than that prescribed by the Code
1978; hence, prescription began to run from that time. Note that the party for the offense, without first considering any modifying circumstance
who raises a fact as a matter of defense has the burden of proving it. The attendant to the commission of the crime. The Indeterminate Sentence Law
defendant or accused is obliged to produce evidence in support of its leaves it entirely within the sound discretion of the court to determine the
defense; otherwise, failing to establish the same, it remains self-serving.12 minimum penalty, as long as it is anywhere within the range of the penalty
Thus, for petitioner’s defense of prescription to prosper, it was incumbent next lower without any reference to the periods into which it might be
upon her to adduce evidence that as early as the year 1978, Uy already subdivided. The modifying circumstances are considered only in the
obtained knowledge of her previous marriage. imposition of the maximum term of the indeterminate sentence.16
A close examination of the records of the case reveals that petitioner utterly Applying the foregoing rule, it is clear that the penalty imposed on petitioner
failed to present sufficient evidence to support her allegation. Petitioner’s is proper. Under Article 349 of the Revised Penal Code, the imposable penalty
testimony that her own mother told Uy in 1978 that she (petitioner) is already for bigamy is prision mayor. The penalty next lower is prision correccional,
married to Alocillo does not inspire belief, as it is totally unsupported by any which ranges from 6 months and 1 day to 6 years. The minimum penalty of
corroborating evidence. The trial court correctly observed that: six years imposed by the trial court is, therefore, correct as it is still within the
duration of prision correccional. There being no mitigating or aggravating
x x x She did not call to the witness stand her mother – the person who circumstances proven in this case, the prescribed penalty of prision mayor
allegedly actually told Uy about her previous marriage to Alocillo. It must be should be imposed in its medium period, which is from 8 years and 1 day to
obvious that without the confirmatory testimony of her mother, the 10 years. Again, the trial court correctly imposed a maximum penalty of 10
attribution of the latter of any act which she allegedly did is hearsay.13 years.
As ruled in Sermonia v. Court of Appeals,14 "the prescriptive period for the However, for humanitarian purposes, and considering that petitioner’s
crime of bigamy should be counted only from the day on which the said crime marriage to Alocillo has after all been declared by final judgment17 to be void
was discovered by the offended party, the authorities or their [agents]," as ab initio on account of the latter’s psychological incapacity, by reason of
opposed to being counted from the date of registration of the bigamous which, petitioner was subjected to manipulative abuse, the Court deems it
marriage.15 Since petitioner failed to prove with certainty that the period of proper to reduce the penalty imposed by the lower courts. Thus, petitioner
Persons Cases – Annulment to Marriage Settlement 19 | P a g e
should be sentenced to suffer an indeterminate penalty of imprisonment
from Two (2) years, Four (4) months and One (1) day of prision correccional,
as minimum, to 8 years and 1 day of prision mayor, as maximum.
SO ORDERED.
Petitioner and respondent were married in June of 1989 at Manila Cathedral The undivided interest in the Condominium Unit in Cityland Shaw. Jesse Tan
in Intramuros, Manila.9 They were blessed with two sons: Justin, who was shall exclusively own blvd. to the exclusion of Susie Tan.
born in Canada in 1990 and Russel, who was born in the Philippines in
1993.10 The shares of stocks, bank accounts and other properties presently under
the respective names of Jesse Tan and Susie Tan shall be exclusively owned
In 2001, twelve years into the marriage, petitioner filed a case for the by the spouse whose name appears as the registered/account owner or
annulment of the marriage under Article 36 of the Family Code. The parties holder in the corporate records/stock transfer books, passbooks and/or the
submitted to the court a compromise agreement, which we quote in full: one in possession thereof, including the dividends/fruits thereof, to the
exclusion of the other spouse.
1. The herein parties mutually agreed that the two (2) lots located at
Corinthian Hills, Quezon City and more particularly described in the Contract Otherwise stated, all shares, bank accounts and properties registered and
to Sell, marked in open court as Exhibits "H" to "H-3" shall be considered as under the name and/or in the possession of Jesse Tan shall be exclusively
part of the presumptive legitimes of their two (2) minor children namely, owned by him only and all shares, accounts and properties registered
Justin Tan born on October 12, 1990 and Russel Tan born on November 28, and/or in the possession and under the name of Susie Tan shall be
1993. Copies of the Contract to Sell are hereto attached as Annexes "A" and exclusively owned by her only.
"B" and made integral parts hereof.
However, as to the family corporations of Susie Tan, Jesse Tan shall execute
any and all documents transferring the shares of stocks registered in his
Persons Cases – Annulment to Marriage Settlement 21 | P a g e
name in favor of Susie Tan, or Justin Tan/Russel Tan. A copy of the list of the The parties agreed to observe civility, courteousness and politeness in
corporation owned by the family of Susie Tan is hereto attached as Annex dealing with each other and shall not insult, malign or commit discourteous
"C" and made an integral part hereof. acts against each other and shall endeavor to cause their other relatives to
act similarly.
The parties shall voluntarily and without need of demand turn over to the
other spouse any and all original documents, papers, titles, contracts 4. Likewise, the husband shall have the right to bring out and see the
registered in the name of the other spouse that are in their respective children on the following additional dates, provided that the same will not
possessions and/or safekeeping. impede or disrupt their academic schedule in Xavier School, the dates are as
follows:
3. Thereafter and upon approval of this Compromise Agreement by the
Honorable Court, the existing property regime of the spouses shall be a. Birthday of Jesse Tan
dissolved and shall now be governed by "Complete Separation of Property".
Parties expressly represent that there are no known creditors that will be b. Birthday of Grandfather and Grandmother, first cousins and uncles and
prejudiced by the present compromise agreement. aunties
The parties shall have joint custody of their minor children. However, the c. Father's Day
two (2) minor children shall stay with their mother, Susie Tan at 12-B
Mariposa St., Quezon City. d. Death Anniversaries of immediate members of the family of Jesse Tan
The husband, Jesse Tan, shall have the right to bring out the two (2) children e. During the Christmas seasons/vacation the herein parties will agree on
every Sunday of each month from 8:00 AM to 9:00 PM. The minor children such dates as when the children can stay with their father. Provided that if
shall be returned to 12-B Mariposa Street, Quezon City on or before 9:00 the children stay with their father on Christmas Day from December 24th to
PM of every Sunday of each month. December 25th until 1:00 PM the children will stay with their mother on
December 31 until January 1, 1:00 PM, or vice versa.
The husband shall also have the right to pick up the two (2) minor children
in school/or in the house every Thursday of each month. The husband shall The husband shall always be notified of all school activities of the children
ensure that the children be home by 8:00 PM of said Thursdays. and shall see to it that he will exert his best effort to attend the same.
During the summer vacation/semestral break or Christmas vacation of the 5. During the birthdays of the two (2) minor children, the parties shall as far
children, the parties shall discuss the proper arrangement to be made as practicable have one celebration.
regarding the stay of the children with Jesse Tan.
Provided that if the same is not possible, the Husband (Jesse Tan) shall have
Neither party shall put any obstacle in the way of the maintenance of the the right to see and bring out the children for at least four (4) hours during
love and affection between the children and the other party, or in the way the day or the day immediately following/or after the birthday, if said visit
of a reasonable and proper companionship between them, either by or birthday coincides with the school day.
influencing the children against the other, or otherwise; nor shall they do
anything to estrange any of them from the other. 6. The existing Educational Plans of the two children shall be used and
utilized for their High School and College education, in the event that the
Persons Cases – Annulment to Marriage Settlement 22 | P a g e
Educational Plans are insufficient to cover their tuition, the Husband shall
shoulder the tuition and other miscellaneous fees, costs of books and (c) ₱533,420.72 shall be forfeited in favor of Megaworld Corp. to cover the
educational materials, uniform, school bags, shoes and similar expenses like marketing and administrative costs of Corinthian Hills Subdivision Lot 12,
summer workshops which are taken in Xavier School, which will be paid Block 2.13
directly by Jesse Tan to the children's school when the same fall due. Jesse
Tan, if necessary, shall pay tutorial expenses, directly to the tutor Petitioner authorized Megaworld Corp. to offer Lot 12, Block 2 of Corinthian
concerned. Hills to other interested buyers. It also appears from the records that
petitioner left the country bringing the children with her.
The husband further undertake to pay ₱10,000.00/monthly support
pendente lite to be deposited in the ATM Account of SUSIE CHAN with Respondent filed an omnibus motion seeking in the main custody of the
account no. 3-189-53867-8 Boni Serrano Branch effective on the 15th of children. The evidence presented by respondent established that petitioner
each month. In addition Jesse Tan undertakes to give directly to his two (2) brought the children out of the country without his knowledge and without
sons every Sunday, the amount needed and necessary for the purpose of prior authority of the trial court; petitioner failed to pay the ₱8,000,000
the daily meals of the two (2) children in school. remaining balance for the Megaworld property which, if forfeited would
prejudice the interest of the children; and petitioner failed to turn over to
7. This Compromise Agreement is not against the law, customs, public respondent documents and titles in the latter's name.1avvphi1
policy, public order and good morals. Parties hereby voluntarily agree and
bind themselves to execute and sign any and all documents to give effect to Thus, the trial court, in its 17 May 2004 resolution, awarded to respondent
this Compromise Agreement.11 custody of the children, ordered petitioner to turn over to respondent
documents and titles in the latter's name, and allowed respondent to stay in
On 31 July 2003, the trial court issued a partial judgment12 approving the the family dwelling in Mariposa, Quezon City.
compromise agreement. On 30 March 2004, the trial court rendered a
decision declaring the marriage void under Article 36 of the Family Code on Petitioner filed on 28 June 2004 a motion for reconsideration14 alleging
the ground of mutual psychological incapacity of the parties. The trial court denial of due process on account of accident, mistake, or excusable
incorporated in its decision the compromise agreement of the parties on negligence. She alleged she was not able to present evidence because of the
the issues of support, custody, visitation of the children, and property negligence of her counsel and her own fear for her life and the future of the
relations. children. She claimed she was forced to leave the country, together with her
children, due to the alleged beating she received from respondent and the
Meanwhile, petitioner cancelled the offer to purchase the Corinthian Hills pernicious effects of the latter's supposed gambling and womanizing ways.
Subdivision Lot No. 12, Block 2. She authorized Megaworld Corp. to allocate She prayed for an increase in respondent's monthly support obligation in
the amount of ₱11,992,968.32 so far paid on the said lot in the following the amount of ₱150,000.
manner:
Unconvinced, the trial court, in its 12 October 2004 Resolution,15 denied
(a) ₱3,656,250.04 shall be transferred to fully pay the other lot in Corinthian petitioner's motion for reconsideration, which was filed beyond the 15-day
Hills on Lot 11, Block 2; reglementary period. It also declared petitioner in contempt of court for
non-compliance with the partial judgment and the 17 May 2004 resolution.
(b) ₱7,783,297.56 shall be transferred to fully pay the contract price in Unit The trial court also denied petitioner's prayer for increase in monthly
9H of the 8 Wack Wack Road Condominium project; and support. The trial court reasoned that since petitioner took it upon herself
Persons Cases – Annulment to Marriage Settlement 23 | P a g e
to enroll the children in another school without respondent's knowledge, The Issue
she should therefore defray the resulting increase in their expenses.
Petitioner raises the question of whether the 30 March 2004 decision and
On 4 November 2004, petitioner filed a motion to dismiss16 and a motion the 17 May 2004 resolution of the trial court have attained finality despite
for reconsideration17 of the 12 October 2004 Resolution. She claimed she the alleged denial of due process.
was no longer interested in the suit. Petitioner stated that the
circumstances in her life had led her to the conclusion that withdrawing the The Court's Ruling
petition was for the best interest of the children. She prayed that an order
be issued vacating all prior orders and leaving the parties at the status quo The petition has no merit.
ante the filing of the suit.
Petitioner contends she was denied due process when her counsel failed to
In its 28 December 2004 Resolution,18 the trial court denied both the file pleadings and appear at the hearings for respondent's omnibus motion
motion to dismiss and the motion for reconsideration filed by petitioner. It to amend the partial judgment as regards the custody of the children and
held that the 30 March 2004 decision and the 17 May 2004 resolution had the properties in her possession. Petitioner claims the trial court issued the
become final and executory upon the lapse of the 15-day reglementary 17 May 2004 resolution relying solely on the testimony of respondent.
period without any timely appeal having been filed by either party. Petitioner further claims the trial court erred in applying to her motion to
dismiss Section 7 of the Rule on the Declaration of Absolute Nullity of Void
Undeterred, petitioner filed a motion for reconsideration of the 28 Marriages and Annulment of Voidable Marriages. Petitioner argues that if
December 2004 resolution, which the trial court denied in its 15 February indeed the provision is applicable, the same is unconstitutional for setting
2005 resolution.19 The trial court then issued a Certificate of Finality20 of an obstacle to the preservation of the family.
the 30 March 2004 decision and the 17 May 2004 resolution.
Respondent maintains that the 30 March 2004 decision and the 17 May
The Trial Court's Rulings 2004 resolution of the trial court are now final and executory and could no
longer be reviewed, modified, or vacated. Respondent alleges petitioner is
The 30 March 2004 Decision21 declared the marriage between the parties making a mockery of our justice system in disregarding our lawful processes.
void under Article 36 of the Family Code on the ground of mutual Respondent stresses neither petitioner nor her counsel appeared in court at
psychological incapacity. It incorporated the 31 July 2003 Partial the hearings on respondent's omnibus motion or on petitioner's motion to
Judgment22 approving the Compromise Agreement23 between the parties. dismiss.
The 17 May 2004 Resolution24 amended the earlier partial judgment in
granting to respondent custody of the children, ordering petitioner to turn The issue raised in this petition has been settled in the case of Tuason v.
over to respondent documents and titles in the latter's name, and allowing Court of Appeals.28 In Tuason, private respondent therein filed a petition
respondent to stay in the family dwelling in Mariposa, Quezon City. The 15 for the annulment of her marriage on the ground of her husband's
February 2005 Resolution25 denied petitioner's motion for reconsideration psychological incapacity. There, the trial court rendered judgment declaring
of the 28 December 2004 Resolution26 denying petitioner's motion to the nullity of the marriage and awarding custody of the children to private
dismiss and motion for reconsideration of the 12 October 2004 respondent therein. No timely appeal was taken from the trial court's
Resolution,27 which in turn denied for late filing petitioner's motion for judgment.
reconsideration of the 17 May 2004 resolution.
We also ruled in Tuason that notice sent to the counsel of record is binding As for the applicability to petitioner's motion to dismiss of Section 7 of the
upon the client and the neglect or failure of the counsel to inform the client Rule on the Declaration of Absolute Nullity of Void Marriages and
of an adverse judgment resulting in the loss of the latter's right to appeal is Annulment of Voidable Marriages, petitioner is correct. Section 7 of the Rule
not a ground for setting aside a judgment valid and regular on its face.29 on the Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages provides:
In the present case, the 30 March 2004 decision and the 17 May 2004
resolution of the trial court had become final and executory upon the lapse SEC. 7. Motion to dismiss. - No motion to dismiss the petition shall be
of the reglementary period to appeal.30 Petitioner's motion for allowed except on the ground of lack of jurisdiction over the subject matter
reconsideration of the 17 May 2004 resolution, which the trial court or over the parties; provided, however, that any other ground that might
received on 28 June 2004, was clearly filed out of time. Applying the warrant a dismissal of the case may be raised as an affirmative defense in an
doctrine laid down in Tuason, the alleged negligence of counsel resulting in answer. (Emphasis supplied)
petitioner's loss of the right to appeal is not a ground for vacating the trial
court's judgments. The clear intent of the provision is to allow the respondent to ventilate all
possible defenses in an answer, instead of a mere motion to dismiss, so that
Further, petitioner cannot claim that she was denied due process. While she judgment may be made on the merits. In construing a statute, the purpose
may have lost her right to present evidence due to the supposed negligence or object of the law is an important factor to be considered.32 Further, the
of her counsel, she cannot say she was denied her day in court. Records letter of the law admits of no other interpretation but that the provision
show petitioner, through counsel, actively participated in the proceedings applies only to a respondent, not a petitioner. Only a respondent in a
below, filing motion after motion. Contrary to petitioner's allegation of petition for the declaration of absolute nullity of void marriage or the
negligence of her counsel, we have reason to believe the negligence in annulment of voidable marriage files an answer where any ground that may
pursuing the case was on petitioner's end, as may be gleaned from her warrant a dismissal may be raised as an affirmative defense pursuant to the
counsel's manifestation dated 3 May 2004: provision. The only logical conclusion is that Section 7 of the Rule does not
apply to a motion to dismiss filed by the party who initiated the petition for
Undersigned Counsel, who appeared for petitioner, in the nullity the declaration of absolute nullity of void marriage or the annulment of
proceedings, respectfully informs the Honorable Court that she has not voidable marriage.
heard from petitioner since Holy Week. Attempts to call petitioner have
failed. Since petitioner is not the respondent in the petition for the annulment of
the marriage, Section 7 of the Rule does not apply to the motion to dismiss
Persons Cases – Annulment to Marriage Settlement 25 | P a g e
filed by her. Section 7 of the Rule not being applicable, petitioner's claim WHEREFORE, we DENY the petition for review. We AFFIRM the (i) 17 May
that it is unconstitutional for allegedly setting an obstacle to the 2004 Resolution amending the 30 March 2004 Decision and (ii) the 15
preservation of the family is without basis. February 2005 Resolution of the Regional Trial Court of Quezon City, Branch
107, in Civil Case No. Q-01-45743.
Section 1 of the Rule states that the Rules of Court applies suppletorily to a
petition for the declaration of absolute nullity of void marriage or the Costs against petitioner.
annulment of voidable marriage. In this connection, Rule 17 of the Rules of
Court allows dismissal of the action upon notice or upon motion of the SO ORDERED.
plaintiff, to wit:
On February 16, 1968,2 Judge Carlos B. Salazar of the Municipal Trial Court Plaintiff met the defendant sometime in the middle of 1967 at the house of
of San Miguel, Iloilo solemnized the marriage of accused Noel Lasanas and Mr. Raul L. Cataloctocan in Burgos Street, Lapaz, Iloilo City wherein the
Socorro Patingo3 without the benefit of a marriage license.4 The records purpose of their meeting was for the plaintiff to consult and seek treatment
show that Lasanas and Patingo had not executed any affidavit of by the defendant because the latter was a "babaylan": Plaintiff was treated
cohabitation to excuse the lack of the marriage license.5 On August 27, by the defendant and the subsequent treatments were performed by the
1980, Lasanas and Patingo reaffirmed their marriage vows in a religious defendant at her residence in Barangay, Banga, Mina, Iloilo, the treatment
ceremony before Fr. Rodolfo Tamayo at the San Jose Church in Iloilo City.6 made being on a continuing basis;
They submitted no marriage license or affidavit of cohabitation for that
purpose.7 Both ceremonies were evidenced by the corresponding marriage xxxx
certificates.8 In 1982, Lasanas and Patingo separated de facto because of
irreconcilable differences.9 On February 16, 1968, defendant asked the plaintiff to come with her to
Iloilo City. They went to Dainty Restaurant at J.M. Basa Street. Plaintiff saw
On December 27, 1993, the accused contracted marriage with Josefa several persons therein. After eating plaintiff was made to sign the marriage
Eslaban in a religious ceremony solemnized by Fr. Ramon Sequito at the Sta. contract, which was null and void for lack of marriage license and based on a
Maria Church in Iloilo City. Their marriage certificate reflected the civil false affidavit of cohabitation. After their marriage, they went home to
status of the accused as single.10 Barangay Bangac, Mina, Iloilo, which marked the start of a married life
rocked with marital differences, quarrels and incompatibilities, without love,
On July 26, 1996, the accused filed a complaint for annulment of marriage but under the uncontrollable fear of harm that should befall him should he
and damages against Socorro in the RTC in Iloilo City,11 which was docketed not follow her;
as Civil Case No. 23133 and raffled to Branch 39 of the RTC. The complaint
alleged that Socorro had employed deceit, misrepresentations and fraud in xxxx
securing his consent to their marriage; and that subsequent marital
breaches, psychological incompatibilities and her infidelity had caused him
Persons Cases – Annulment to Marriage Settlement 27 | P a g e
During the period the parties are living together defendant would nag the counterclaim on February 3, 1997, pursuant to Article 203 of the Family
plaintiff, fabricate stories against him and displayed her fit of jealousy, Code and every month thereafter. Costs against the plaintiff.
neglect her marital obligations even committed infidelity, which
psychological incompatibilities and marital breaches have forced the SO ORDERED.16
petitioner to live separately from defendant since 1982 up to the present.12
The accused appealed to the CA.17
In October 1998, Socorro charged the accused with bigamy in the Office of
the City Prosecutor of Iloilo City.13 After due proceedings, the accused was Ruling of the RTC
formally indicted for bigamy under the information filed on October 20,
1998 in the RTC, viz: On October 30, 2000, the RTC (Branch 38) rendered its assailed decision in
Criminal Case No. 49808, disposing thusly:
That on or about the 27th day of December, 1993 in the City of Iloilo,
Philippines and within the jurisdiction of this Court, said accused, Noel WHEREFORE, finding accused NOEL LASANAS guilty beyond reasonable
Lasanas being previously united in a lawful marriage with Socorro Patingo doubt of the offense of BIGAMY punishable under Art. 349 of the Revised
and without the said marriage having been legally dissolve (sic) or annulled, Penal Code, judgment is hereby entered ordering him to serve an
did then and there willfully, unlawfully and feloniously contract a second or indeterminate penalty of imprisonment of two (2) years and four (4) months
subsequent marriage with Josefa Eslaban. of prision correccional, as minimum, to eight (8) years and one (1) day of
prision mayor as maximum.
CONTRARY TO LAW.14
The accused is entitled to the privileges extended to him under Art. 29 of
The criminal case, docketed as Criminal Case No. 49808, was raffled to the Revised Penal Code.
Branch 38 of the RTC in Iloilo City. The accused pleaded not guilty at his
arraignment,15 and trial ensued in due course. SO ORDERED.18
In the meanwhile, on November 24, 1998, the RTC (Branch 39) rendered its Decision of the CA Aggrieved, the accused appealed his conviction to the CA,
judgment in Civil Case No. 23133 dismissing the accused’s complaint for insisting that the RTC thereby erred in finding that he had legally married
annulment of marriage, and declaring the marriage between him and Socorro despite the absence of the marriage license, affidavit of
Socorro valid and legal, as follows: cohabitation and affidavit of the solemnizing officer.
WHEREFORE, premises considered, judgment is hereby rendered dismissing The accused contended that because he had not been legally married to
the complaint filed by the plaintiff Noel Arenga Lasanas against the Socorro, the first element of bigamy was not established; that his good faith
defendant, Socorro Patingo, considering that the marriage between them is and the absence of criminal intent were absolutory in his favor; and that he
valid and legal. had been of the honest belief that there was no need for a judicial
declaration of the nullity of the first marriage before he could contract a
The plaintiff Noel Lasanas is hereby ordered to give monthly support to his subsequent marriage.19
wife, the defendant in this case, Ma. Socorro Patingo in the amount of
₱3,000.00 a month, from the time that she filed her answer with
Issues This Court concedes that the marriage between accused-appellant Lasanas
and private complainant Patingo was void because of the absence of a
Hence, the accused has appealed by petition for review on certiorari.21 He marriage license or of an affidavit of cohabitation. The ratificatory religious
argues that the RTC and the CA incorrectly applied the provisions of Article wedding ceremony could not have validated the void marriage. Neither can
349 of the Revised Penal Code,22 asserting that the civil law rule embodied the church wedding be treated as a marriage in itself for to do so, all the
in Article 40 of the Family Code requiring a judicial declaration of nullity essential and formal requisites of a valid marriage should be present. One of
before one could contract a subsequent marriage should not apply in this these requisites is a valid marriage license except in those instances when
purely criminal prosecution;23 that even if Article 40 of the Family Code was this requirement may be excused. There having been no marriage license
applicable, he should still be acquitted because his subsequent marriage nor affidavit of cohabitation presented to the priest who presided over the
was null and void for being without a recorded judgment of nullity of religious rites, the religious wedding cannot be treated as a valid marriage in
marriage, as provided in Article 53 in relation to Article 52 of the Family itself.
Code;24 that, consequently, an essential element of the crime of bigamy,
i.e. that the subsequent marriage be valid, was lacking;25 and that his good But then, as the law and jurisprudence say, petitioner should have first
faith and lack of criminal intent were sufficient to relieve him of criminal secured a judicial declaration of the nullity of his void marriage to private
liability.26 complainant Patingo before marrying Josefa Eslaban. Actually, he did just
that but after his marriage to Josefa Eslaban. Consequently, he violated the
Ruling law on bigamy.
The appeal lacks merit. Accused’s reliance on the cases of People v. Mendoza, 95 Phil. 845 and
People v. Aragon, 100 Phil. 1033 is misplaced because the ruling in these
The law on bigamy is found in Article 349 of the Revised Penal Code, which cases have already been abandoned per Relova v. Landico, supra, and
provides: Wiegel v. Sempio-Diy, 143 SCRA 499. The petitioner also cited Yap v. Court
of Appeals, 145 SCRA 229 which resurrected the Aragon and Mendoza
Article 349. Bigamy. — The penalty of prision mayor shall be imposed upon doctrine but Yap’s ruling too had been overtaken by Art. 40 of the Family
any person who shall contract a second or subsequent marriage before the Code and by Domingo v. Court of Appeals and Te v. Court of Appeals, supra.
former marriage has been legally dissolved, or before the absent spouse has
been declared presumptively dead by means of a judgment rendered in the Regarding accused-appellant’s defense of good faith, the same is unavailing
proper proceedings. pursuant to Mañozca v. Domagas, 248 SCRA 625.
The elements of the crime of bigamy are as follows: (1) that the offender This Court, therefore concludes that the appealed Decision is correct in all
has been legally married; (2) that the marriage has not been legally respect.28
dissolved or, in case his or her spouse is absent, the absent spouse could not
Persons Cases – Annulment to Marriage Settlement 29 | P a g e
Decision of the CA The appeal lacks merit.
Aggrieved, the accused appealed his conviction to the CA, insisting that the The law on bigamy is found in Article 349 of the Revised Penal Code, which
RTC thereby erred in finding that he had legally married Socorro despite the provides:
absence of the marriage license, affidavit of cohabitation and affidavit of the
solemnizing officer. Article 349. Bigamy. — The penalty of prision mayor shall be imposed upon
any person who shall contract a second or subsequent marriage before the
The accused contended that because he had not been legally married to former marriage has been legally dissolved, or before the absent spouse has
Socorro, the first element of bigamy was not established; that his good faith been declared presumptively dead by means of a judgment rendered in the
and the absence of criminal intent were absolutory in his favor; and that he proper proceedings.
had been of the honest belief that there was no need for a judicial
declaration of the nullity of the first marriage before he could contract a The elements of the crime of bigamy are as follows: (1) that the offender
subsequent marriage.19 has been legally married; (2) that the marriage has not been legally
dissolved or, in case his or her spouse is absent, the absent spouse could not
On August 29, 2002, however, the CA promulgated its challenged decision, yet be presumed dead according to the Civil Code; (3) that he or she
decreeing: WHEREFORE, for lack of merit, the Court DISMISSES the appeal contracts a second or subsequent marriage; and (4) that the second or
and AFFIRMS the appealed Decision. subsequent marriage has all the essential requisites for validity.27
Issues This Court concedes that the marriage between accused-appellant Lasanas
and private complainant Patingo was void because of the absence of a
Hence, the accused has appealed by petition for review on certiorari.21 He marriage license or of an affidavit of cohabitation. The ratificatory religious
argues that the RTC and the CA incorrectly applied the provisions of Article wedding ceremony could not have validated the void marriage. Neither can
349 of the Revised Penal Code,22 asserting that the civil law rule embodied the church wedding be treated as a marriage in itself for to do so, all the
in Article 40 of the Family Code requiring a judicial declaration of nullity essential and formal requisites of a valid marriage should be present. One of
before one could contract a subsequent marriage should not apply in this these requisites is a valid marriage license except in those instances when
purely criminal prosecution;23 that even if Article 40 of the Family Code was this requirement may be excused. There having been no marriage license
applicable, he should still be acquitted because his subsequent marriage nor affidavit of cohabitation presented to the priest who presided over the
was null and void for being without a recorded judgment of nullity of religious rites, the religious wedding cannot be treated as a valid marriage in
marriage, as provided in Article 53 in relation to Article 52 of the Family itself.
Code;24 that, consequently, an essential element of the crime of bigamy,
i.e. that the subsequent marriage be valid, was lacking;25 and that his good But then, as the law and jurisprudence say, petitioner should have first
faith and lack of criminal intent were sufficient to relieve him of criminal secured a judicial declaration of the nullity of his void marriage to private
liability.26 complainant Patingo before marrying Josefa Eslaban. Actually, he did just
that but after his marriage to Josefa Eslaban. Consequently, he violated the
Ruling law on bigamy.
The policy of Article 101 of the new Civil Code, calling for the intervention of The decision appealed from is affirmed, with costs against appellant. So
the state attorneys in case of uncontested proceedings for legal separation ordered.
(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 cannot
be made depend upon the parties themselves (Civil Code, Article 52; Adong
vs, Cheong Gee, 43 Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs.
Campos, 35 Phil. 252). It is consonant with this policy that the injury by the
Fiscal should be allowed to focus upon any relevant matter that may
indicate whether the proceedings for separation or annulment are fully
justified or not.
The court below also found, and correctly held that the appellant's action
was already barred, because Brown did not petition for legal separation
proceedings until ten years after he learned of his wife's adultery, which
was upon his release from internment in 1945. Under Article 102 of the new
Civil Code, action for legal separation can not be filed except within one (1)
year from and after the plaintiff became cognizant of the cause and within
five years from and after the date when such cause occurred. Appellant's
brief does not even contest the correctness of such findings and conclusion.
Hence, there being at least two well established statutory grounds for
denying the remedy sought (commission of similar offense by petitioner and
prescription of the action), it becomes unnecesary to delve further into the
case and ascertain if Brown's inaction for ten years also evidences
Persons Cases – Annulment to Marriage Settlement 34 | P a g e
Arroyo vs Arroyo relations with any person. The tales of cruelty on the part of the husband
Mariano B. Arroyo and Dolores C. Vasquez de Arroyo were united in the towards the wife, which are the basis of the cross-action, are in our opinion
bonds of wedlock by marriage in the year 1910, and since that date, with a no more than highly colored versions of personal wrangles in which the
few short intervals of separation, they have lived together as man and wife spouses have allowed themselves from time to time to become involved
in the city of Iloilo until July 4, 1920, when the wife went away from their and would have little significance apart from the morbid condition exhibited
common home with the intention of living thenceforth separate from her by the wife. The judgment must therefore be recorded that the
husband. After efforts had been made by the husband without avail to abandonment by her of the marital home was without sufficient justification
induce her to resume marital relations, this action was initiated by him to in fact.
compel her to return to the matrimonial home and live with him as a dutiful
wife. The defendant answered, admitting the fact of marriage, and that she In examining the legal questions involved, it will be found convenient to
had left her husband's home without his consent; but she averred by way of dispose first of the defendant's cross-complaint. To begin with, the
defense and cross-complaint that she had been compelled to leave by cruel obligation which the law imposes on the husband to maintain the wife is a
treatment on the part of her husband. Accordingly she in turn prayed for duty universally recognized in civil society and is clearly expressed in articles
affirmative relief, to consist of (1) a decree of separation; (2) a liquidation of 142 and 143 of the Civil code. The enforcement of this obligation by the wife
the conjugal partnership; (3) and an allowance for counsel fees and against the husband is not conditioned upon the procurance of a divorce by
permanent separate maintenance. Upon hearing the cause the lower court her, nor even upon the existence of a cause for divorce. Accordingly it had
gave judgment in favor of the defendant, authorizing her to live apart from been determined that where the wife is forced to leave the matrimonial
her husband, granting her alimony at the rate of P400 per month, and abode and to live apart from her husband, she can, in this jurisdiction,
directing that the plaintiff should pay to the defendant's attorney the sum compel him to make provision for her separate maintenance (Goitia vs.
of P1,000 for his services to defendant in the trial of the case. The plaintiff Campos Rueda, 35 Phil., 252); and he may be required to pay the expenses,
thereupon removed the case with the usual formalities by appeal to this including attorney's fees, necessarily incurred in enforcing such obligation,
court. (Mercado vs. Ostrand and Ruiz, 37 Phil., 179.) Nevertheless, the interests of
both parties as well as of society at large require that the courts should
The trial judge, upon consideration of the evidence before him, reached the move with caution in enforcing the duty to provide for the separate
conclusion that the husband was more to blame than his wife and that his maintenance of the wife, for this step involves a recognition of the de facto
continued ill-treatment of her furnished sufficient justification for her separation of the spouses — a state which is abnormal and fraught with
abandonment of the conjugal home and the permanent breaking off of grave danger to all concerned. From this consideration it follows that
marital relations with him. We have carefully examined and weighed every provision should not be made for separate maintenance in favor of the wife
line of the proof, and are of the opinion that the conclusion stated is wholly unless it appears that the continued cohabitation of the pair has become
untenable. The evidence shows that the wife is afflicted with a disposition of impossible and separation necessary from the fault of the husband.
jealousy towards her husband in an aggravated degree; and to his cause are
chiefly traceable without a doubt the many miseries that have attended In Davidson vs Davidson, the Supreme Court of Michigan, speaking through
their married life. In view of the decision which we are to pronounce the eminent jurist, Judge Thomas M. Cooley, held that an action for the
nothing will be said in this opinion which will make the resumption of support of the wife separate from the husband will only be sustained when
married relations more difficult to them or serve as a reminder to either of the reasons for it are imperative (47 Mich., 151). That imperative necessity
the mistakes of the past; and we prefer to record the fact that so far as the is the only ground on which such a proceeding can be maintained also
proof in this record shows neither of the spouses has at any time been guilty appears from the decision in Schindel vs. Schindel (12 Md., 294). In the State
of conjugal infidelity, or has given just cause to the other to suspect illicit of South Carolina, where judicial divorces have never been procurable on
Persons Cases – Annulment to Marriage Settlement 35 | P a g e
any ground, the Supreme court fully recognizes the right of the wife to have those who wish to live separate from each other, who cannot live together
provision for separate maintenance, where it is impossible for her to with any degree of harmony, and consequently with any degree of
continue safely to cohabit with her husband; but the same court has more happiness; but my situation does not allow me to indulge the feelings, much
than once rejected the petition of the wife for separate maintenance where less the first feelings of an individual. The law has said that married persons
it appeared that the husband's alleged cruelty or ill-treatment was provoked shall not be legally separated upon the mere disinclination of one or both to
by the wife's own improper conduct. (Rhame vs. Rhame, 1 McCord's Chan. cohabit together. . . .
[S. Car.], 197; 16 Am. Dec., 597; Boyd vs. Boyd, Har. Eq. [S. Car.], 144.)
To vindicate the policy of the law is no necessary part of the office of a
Upon one occasion Sir William Scott, pronouncing the judgment of the judge; but if it were, it would not be difficult to show that the law in this
English Ecclesiastical Court in a case where cruelty on the part of the respect has acted with its usual wisdom and humanity with that true
husband was relied upon to secure a divorce for the wife, made use of the wisdom, and that real humanity, that regards the general interests of
following eloquent words, — which are perhaps even more applicable in a mankind. For though in particular cases the repugnance of the law to
proceeding for separate maintenance in a jurisdiction where, as here, a dissolve the obligations of matrimonial cohabitation may operate with great
divorce cannot be obtained except on the single ground of adultery and this, severity upon individual, yet it must be carefully remembered that the
too, after the conviction of the guilty spouse in a criminal prosecution for general happiness of the married life is secured by its indissolubility. When
that crime. Said he: people understand that they must live together, except for a very few
reasons known to the law, they learn to soften by mutual accommodation
That the duty of cohabitation is released by the cruelty of one of the parties that yoke which they know cannot shake off; they become good husbands
is admitted, but the question occurs, What is cruelty? . . . and good wives form the necessity of remaining husbands and wives; for
necessity is a powerful master in teaching the duties which it imposes. . . . In
What merely wounds the mental feelings is in few cases to be admitted this case, as in many others, the happiness of some individuals must be
where they are not accompanied with bodily injury, either actual or sacrificed to the greater and more general good. (Evans vs. Evans, 1 Hag.
menaced. Mere austerity of temper, petulance of manners, rudeness of Con., 35; 161 Eng. Reprint, 466, 467.)
language, a want of civil attention and accommodation, even occasional
sallies of passion, if they do not threaten bodily harm, do not amount to In the light of the considerations stated, it is obvious that the cross-
legal cruelty: they are high moral offenses in the marriage-state complaint is not well founded and none of the relief sought therein can be
undoubtedly, not innocent surely in any state of life, but still they are not granted.
that cruelty against which the law can relieve. Under such misconduct of
either of the parties, for it may exist on the one side as well as on the other, The same considerations that require the dismissal of the cross-complaint
the suffering party must bear in some degree the consequences of an conclusively prove that the plaintiff, Mariano B. Arroyo, has done nothing to
injudicious connection; must subdue by decent resistance or by prudent forfeit his right to the marital society of his wife and that she is under an
conciliation; and if this cannot be done, both must suffer in silence. . . . obligation, both moral and legal, to return to the common home and
cohabit with him. The only question which here arises is as to the character
The humanity of the court has been loudly and repeatedly invoked. and extent of the relief which may be properly conceded to him by judicial
Humanity is the second virtue of courts, but undoubtedly the first is justice. decree.
If it were a question of humanity simply, and of humanity which confined its
views merely to the happiness of the present parties, it would be a question The action is one by which the plaintiff seeks the restitution of conjugal
easily decided upon first impressions. Every body must feel a wish to sever rights; and it is supposed in the petitory part of the complaint that he is
Persons Cases – Annulment to Marriage Settlement 36 | P a g e
entitled to a permanent mandatory injunction requiring the defendant to In the voluminous jurisprudence of the United States, only one court, so far
return to the conjugal home and live with him as a wife according to the as we can discover, has ever attempted to make a peremptory order
precepts of law and morality. Of course if such a decree were entered, in requiring one of the spouses to live with the other; and that was in a case
unqualified terms, the defendant would be liable to attachment for where a wife was ordered to follow and live with her husband, who had
contempt, in case she should refuse to obey it; and, so far as the present changed his domicile to the City of New Orleans. The decision referred to
writer is aware, the question is raised for the first time in this jurisdiction (Gahn vs. Darby, 36 La. Ann., 70) was based on a provision of the Civil Code
whether it is competent for the court to make such an order. of Louisiana similar to article 56 of the Spanish Civil Code. It was decided
many years ago, and the doctrine evidently has not been fruitful even in the
Upon examination of the authorities we are convinced that it is not within State of Louisiana. In other states of the American Union the idea of
the province of the courts of this country to attempt to compel one of the enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148.)
spouses to cohabit with, and render conjugal rights to, the other. Of course
where the property rights of one of the pair are invaled, an action for In a decision of January 2, 1909, the supreme court of Spain appears to have
restitution of such rights can be maintained. But we are disinclined to affirmed an order of the Audencia Territorial de Valladolid requiring a wife
sanction the doctrine that an order, enforcible by process of contempt, may to return to the marital domicile, and in the alternative, upon her failure to
be entered to compel the restitution of the purely personal rights of do so, to make a particular disposition of certain money and effects then in
consortium. At best such an order can be effective for no other purpose her possession and to deliver to her husband, as administrator of the
than to compel the spouses to live under the same roof; and the experience ganancial property, all income, rents, and interest which might accrue to her
of these countries where the court of justice have assumed to compel the from the property which she had brought to the marriage. (113 Jur. Civ., pp.
cohabitation of married people shows that the policy of the practice is 1, 11.) but it does not appear that this order for the return of the wife to the
extremely questionable. Thus in England, formerly the Ecclesiastical Court marital domicile was sanctioned by any other penalty than the
entertained suits for the restitution of conjugal rights at the instance of consequences that would be visited upon her in respect to the use and
either husband or wife; and if the facts were found to warrant it that court control of her property; and it does not appear that her disobedience to
would make a mandatory decree, enforcible by process of contempt in case that order would necessarily have been followed by imprisonment for
of disobedience, requiring the delinquent party to live with the other and contempt.
render conjugal rights. Yet this practice was sometimes criticized even by
the judges who felt bound to enforce such orders, and in Weldon vs. We are therefore unable to hold that Mariano B. Arroyo in this case is
Weldon (9 P. D., 52), decided in 1883, Sir James Hannen, President in the entitled to the unconditional and absolute order for the return of the wife
Probate, Divorce and Admiralty Division of the High Court of Justice, to the marital domicile, which is sought in the petitory part of the
expressed his regret that the English law on the subject was not the same as complaint; though he is, without doubt, entitled to a judicial declaration
that which prevailed in Scotland, where a decree of adherence, equivalent that his wife has presented herself without sufficient cause and that it is her
to the decree for the restitution of conjugal rights in England, could be duty to return.
obtained by the injured spouse, but could not be enforced by imprisonment.
Accordingly, in obedience to the growing sentiment against the practice, the Therefore, reversing the judgment appealed from, in respect both to the
Matrimonial Causes Act (1884) abolished the remedy of imprisonment; original complaint and the cross-bill, it is declared that Dolores Vasquez de
though a decree for the restitution of conjugal rights can still be procured, Arroyo has absented herself from the marital home without sufficient
and in case of disobedience may serve in appropriate cases as the basis of cause; and she is admonished that it is her duty to return. The plaintiff is
an order for the periodical payment of a stipend in the character of alimony. absolved from the cross-complaint, without special pronouncement as to
costs of either instance. So ordered.
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