ARTICLE 55
That in view of the fact that she has been legally
G.R. No. L-18008            October 30, 1962
ELISEA LAPERAL, petitioner,  name, to wit: ELISEA LAPERAL.
vs.
REPUBLIC OF THE PHILIPPINES, oppositor.
Martin B. Laurea and Associates for petitioner.
Office of the Solicitor General for oppositor.
BARRERA, J.:
On May 10, 1960, Elisea Laperal filed in the Court of First
Instance of Baguio (Sp Proc. No. 433) a petition which reads:
1. That petitioner has been a bona fide resident of
the City of Baguio for the last three years prior to the
date of the filing of this petition;
2. That petitioner's maiden name is ELISEA LAPERAL;
that on March 24, 1939, she married Mr. Enrique R.
Santamaria; that in a partial decision entered on this
Honorable Court on January 18, 1958, in Civil Case
No. 356 of this Court, entitled 'Enrique R. Santamaria
vs. Elisea L. Santamaria' Mr. Enrique Santamaria was
given a decree of legal separation from her; that the
said partial decision is now final;
3. That during her marriage to Enrique R.
Santamaria, she naturally used, instead of her
maiden name, that of Elisea L. Santamaria; that
aside from her legal separation from Enrique R.
Santamaria, she has also ceased to live with him for
many years now;
4.
separated from Mr. Enrique R. Santamaria and has
likewise ceased to live with him for many years, it is
desirable that she be allowed to change her name
and/or be permitted to resume using her maiden
WHEREFORE, petitioner respectfully prayed that after
the necessary proceedings are had, she be allowed
to resume using her maiden name of Elisea Laperal.
The petition was opposed by the City Attorney of Baguio on
the ground that the same violates the provisions of Article
370 (should be 372) of the Civil Code, and that it is not
sanctioned by the Rules of Court.
In its decision of October 31, 1960, the court denied the
petition for the reason that Article 372 of the Civil Code
requires the wife, even after she is decreed legally
separated from her husband, to continue using the name
and surname she employed before the legal separation.
Upon petitioner's motion, however, the court, treating the
petition as one for change of name, reconsidered its
decision and granted the petition on the ground that to
allow petitioner, who is a businesswoman decreed legally
separated from her husband, to continue using her married
name would give rise to confusion in her finances and the
eventual liquidation of the conjugal assets. Hence, this
appeal by the State.
The contention of the Republic finds support in the
provisions of Article 372 of the New Civil Code which reads:
ART. 372. When legal separation has been granted,
the wife shall continue using her name and surname
employed before the legal separation. (Emphasis
supplied)
Note that the language of the statute is mandatory that the the eventual liquidation of the conjugal assets. This finding
wife, even after the legal separation has been decreed, shall is however without basis. In the first place, these were not
continue using her name and surname employed before the the causes upon which the petition was based; hence,
legal separation. This is so because her married status is obviously no evidence to this effect had been adduced.
unaffected by the separation, there being no severance of Secondly, with the issuance of the decree of legal separation
the vinculum. It seems to be the policy of the law that the in 1958, the conjugal partnership between petitioner and
wife should continue to use the name indicative of her her husband had automatically been dissolved and
unchanged status for the benefit of all concerned. liquidated. (Art. 106[2], Civil Cod). Consequently, there
could be no more occasion for an eventual liquidation of the
The appellee contends, however, that the petition is conjugal assets.
substantially for change of her name from Elisea L.
Santamaria, the one she has been using, since her WHEREFORE, the order of the lower court of December 1,
marriage, to Elisea Laperal, her maiden name, giving as 1960, granting the petition, is hereby set aside and the
reason or cause therefor her being legally separated from petition dismissed. Without costs. So ordered.
the husband Enrique R. Santamaria, and the fact that they
have ceased to live together for many years. Bengzon, C.J., Padilla, Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala and
There seems to be no dispute that in the institution of these Makalintal, JJ., concur.
proceedings, the procedure prescribed in Rule 103 of the
Rules of Court for change of name has been observed. But
from the petition quoted in full at the beginning of these
opinion, the only reason relied upon for the change of name
is the fact that petitioner is legally separated from her
husband and has, in fact, ceased to live with him for many
years. It is doubtful, to say the least, whether Rule 103
which refers to change of name in general, may prevail over
the specific provisions of Article 372 of the New Civil Code
with regards to married women legally separated from their
husbands. Even, however, applying Rule 103 to this case,
the fact of legal separation alone — which is the only basis
for the petition at bar — is, in our opinion, not a sufficient
ground to justify a change of the name of herein petitioner,
for to hold otherwise would be to provide an easy
circumvention of the mandatory provisions of Article 372.

It is true that in the second decision which reconsidered the

first it is stated that as the petitioner owns extensive
business interests, the continued used of her husband
surname may cause undue confusion in her finances and
ARTICLE 56-57
G.R. No. L-10033        December 28, 1956
BENJAMIN BUGAYONG, plaintiff-appellant, 
vs.
LEONILA GINEZ, defendant-appellee.
Florencio Dumapias for appellant. 
Numeriano Tanopo, Jr. for appellee.
FELIX, J.:
This is a case for legal separation filed in the Court of First Instance of
Pangasinan wherein on motion of the defendant, the case was dismissed.
The order of dismissal was appealed to the Court of Appeals, but said
Tribunal certified the case to the Court on the ground that there is
absolutely no question of fact involved, the motion being predicated on
the assumption as true of the very facts testified to by plaintiff-husband.
The facts of the case abridgedly stated are as follows: Benjamin Bugayong,
a serviceman in the United States Navy, was married to defendant Leonila
Ginez on August 27, 1949, at Asingan, Pangasinan, while on furlough leave.
Immediately after their marriage, the couple lived with their sisters who
later moved to Sampaloc, Manila. After some time, or about July, 1951,
Leonila Ginez left the dwelling of her sister-in-law and informed her
husband by letter that she had gone to reside with her mother in Asingan,
Pangasinan, from which place she later moved to Dagupan City to study in
a local college there.
As early as July, 1951, Benjamin Bugayong began receiving letters from
Valeriana Polangco (plaintiff's sister-in-law) and some from anonymous
writers(which were not produced at the hearing) informing him of alleged
acts of infidelity of his wife which he did not even care to mention. On
cross-examination, plaintiff admitted that his wife also informed him by
letter, which she claims to have destroyed, that a certain "Eliong" kissed
her. All these communications prompted him in October, 1951 to seek the
advice of the Navy Chaplain as to the propriety of a legal separation
between him and his wife on account of the latter's alleged acts of
infidelity, and he was directed to consult instead the navy legal
department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his
wife whom he met in the house of one Mrs. Malalang, defendant's
godmother. She came along with him and both proceeded to the house of
Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and
lived for 2 nights and 1 day as husband and wife. Then they repaired to the
plaintiff's house and again passed the night therein as husband and wife.
On the second day, Benjamin Bugayong tried to verify from his wife the
truth of the information he received that she had committed adultery but
Leonila, instead of answering his query, merely packed up and left, which
he took as a confirmation of the acts of infidelity imputed on her. After
that and despite such belief, plaintiff exerted efforts to locate her and
failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his
wounded feelings".
On November 18, 1952, Benjamin Bugayong filed in the Court of First
Instance of Pangasinan a complaint for legal separation against his wife,
Leonila Ginez, who timely filed an answer vehemently denying the
averments of the complaint and setting up affirmative defenses. After the
issues were joined and convinced that a reconciliation was not possible,
the court set the case for hearing on June 9, 1953. Plaintiff's counsel
announced that he was to present 6 witnesses but after plaintiff-husband
finished testifying in his favor, counsel for the defendant orally moved for
the dismissal of the complaint, but the Court ordered him to file a written
motion to that effect and gave plaintiff 10 days to answer the same.
The motion to dismiss was predicted on the following grounds: (1)
Assuming arguendo the truth of the allegations of the commission of "acts
of rank infidelity amounting to adultery", the cause of action, if any, is
barred by the statute of limitations; (2) That under the same
assumption, the act charged have been condoned by the plaintiff-husband;
and (3) That the complaint failed to state a cause of action sufficient for
this court to render a valid judgment.
The motion to dismiss was answered by plaintiff and the Court, considering
only the second ground of the motion to dismiss i. e., condonation,
ordered the dismissal of the action. After the motion for reconsideration
filed by plaintiff was denied, the case was taken up for review to the Court
of Appeals, appellant's counsel maintaining that the lower court erred:
(a) In so prematurely dismissing the case;
(b) In finding that there were condonation on the part of plaintiff-
appellant; and
(c) In entertaining condonation as a ground for dismissal inasmuch
as same was not raised in the answer or in a motion to dismiss.
As the questions raised in the brief were merely questions of law, the
Court of Appeals certified the case to Superiority.
The Civil Code provides:
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage for
the part of the husband as defined on the Penal Code; or
(2) An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the
innocent spouse, provided there has been no condonation of or
consent to the adultery or concubinage. Where both spouses are
offenders, a legal separation cannot by either of them. Collusion
between the parties to obtain legal separation shall cause the
dismissal of the petition.
ART. 102. An action for legal separation cannot be filed except
within one year from and after the date on which the plaintiff
became cognizant of the cause and within five years from and
after the date when such cause occurred.
As the only reason of the lower Court for dismissing the action was the
alleged condonation of the charges of adultery that the plaintiff-husband
had preferred in the complaint against his wife, We will disregard the other
2 grounds of the motion to dismiss, as anyway they have not been raised in
appellant's assignment of errors.
Condonation is the forgiveness of a marital offense constituting a ground
for legal separation or, as stated in I Bouver's Law Dictionary, p. 585,
condonation is the "conditional forgiveness or remission, by a husband or
wife of a matrimonial offense which the latter has committed". It is to be
noted, however, that in defendant's answer she vehemently and vigorously
denies having committed any act of infidelity against her husband, and
even if We were to give full weight to the testimony of the plaintiff, who
was the only one that had the chance of testifying in Court and link such
evidence with the averments of the complaint, We would have to conclude
that the facts appearing on the record are far from sufficient to establish
the charge of adultery, or, as the complaint states, of "acts of rank
infidelity amounting to adultery" preferred against the defendant.
Certainly, the letter that plaintiff claims to have received from his sister-in-
law Valeriana Polangco, which must have been too vague and indefinite as
to defendant's infidelity to deserve its production in evidence; nor the
anonymous letters which plaintiff also failed to present; nor the alleged
letter that, according to plaintiff, his wife addressed to him admitting  that
she had been kissed by one Eliong, whose identity was not established and
which admission defendant had no opportunity to deny because the
motion to dismiss was filed soon after plaintiff finished his testimony in
Court, do not amount to anything that can be relied upon.
But this is not a question at issue. In this appeal, We have to consider
plaintiff's line of conduct under the assumption that he really believed his
wife guilty of adultery. What did he do in such state of mind. In August,
1952, he went to Pangasinan and looked for his wife and after finding her
they lived together as husband and wife for 2 nights and 1 day, after which
he says that he tried to verify from her the truth of the news he had about
her infidelity, but failed to attain his purpose because his wife, instead of
answering his query on the matter, preferred to desert him, probably
enraged for being subjected to such humiliation. And yet he tried to locate
her, though in vain. Now, do the husband's attitude of sleeping with his
wife for 2 nights despite his alleged belief that she was unfaithful to him,
amount to a condonation of her previous and supposed adulterous acts? In
the order appealed from, the Court a quo had the following to say on this
point:
In the hearing of the case, the plaintiff further testified as follows:
Q. Now Mr. Bugayong, you have filed this action for legal
separation from your wife. Please tell this Hon. Court why you
want to separate from your wife? — A. I came to know that my
wife is committing adultery, I consulted the chaplain and he told
me to consult the legal adviser. (p. 11, t.s.n.)
Q. Did you finally locate her?--A. Four days later or on the fifth day
since my arrival she went to the house of our god-mother, and as
a husband I went to her to come along with me in our house but
she refused. (p. 12, t.s.n.)lawphil.net
Q. What happened next? — A. I persuaded her to come along
with me. She consented but I did not bring her home but brought
her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.)
Q. How long did you remain in the house of your cousin Pedro
Bugayong? — A. One day and one night. (p. 12. t.s.n.)
Q. That night when you stayed in the house of your cousin Pedro
Bugayong as husband and wife, did you slept together? — A. Yes,
sir. (p. 19, t.s.n.)
Q. On the next night, when you slept in your own house, did you
sleep together also as husband and wife? — A. Yes, sir. (p. 19.
t.s.n.)
Q. When was that? — A. That was in August, 1952. (p. 19 t.s.n.)
Q. How many nights did you sleep together as husband and wife?
— A. Only two nights. (p. 19, t.s.n.)
The New Civil Code of the Philippines, in its Art. 97, says:
A petition for legal separation may be filed:
(1) For adultery on the part of the wife and concubinage on the
part of the husband as defined on the Penal Code.
and in its Art. 100 it says:lawphil.net
The legal separation may be claimed only by the innocent spouse,
provided there has been no condonation of or consent to the
adultery or concubinage. Where both spouses are offenders, legal
separation cannot be claimed by either of them. Collusion
between the parties to obtain legal separation shall cause the
dismissal of the petition.
A detailed examination of the testimony of the plaintiff-husband,
especially those portions quoted above, clearly shows that there
was a condonation on the part of the husband for the supposed
"acts of rank infidelity amounting to adultery" committed by
defendant-wife. Admitting for the sake of argument that the
infidelities amounting to adultery were committed by the
defendant, a reconciliation was effected between her and the
plaintiff. The act of the latter in persuading her to come along with
him, and the fact that she went with him and consented to be
brought to the house of his cousin Pedro Bugayong and together
they slept there as husband and wife for one day and one night,
and the further fact that in the second night they again slept
together in their house likewise as husband and wife — all these
facts have no other meaning in the opinion of this court than that
a reconciliation between them was effected and that there was a
condonation of the wife by the husband. The reconciliation
occurred almost ten months after he came to know of the acts of
infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has
been held that "condonation is implied from sexual intercourse
after knowledge of the other infidelity. such acts necessary
implied forgiveness. It is entirely consonant with reason and
justice that if the wife freely consents to sexual intercourse after
she has full knowledge of the husband's guilt, her consent should
operate as a pardon of his wrong."
In Tiffany's Domestic and Family Relations, section 107 says:
Condonation. Is the forgiveness of a marital offense
constituting a ground for divorce and bars the right to a
divorce. But it is on the condition, implied by the law
when not express, that the wrongdoer shall not again
commit the offense; and also that he shall thereafter
treat the other spouse with conjugal kindness. A breach
of the condition will revive the original offense as a
ground for divorce. Condonation may be express or
implied.
It has been held in a long line of decisions of the various supreme
courts of the different states of the U. S. that 'a single voluntary
act of sexual intercourse by the innocent spouse after discovery of
the offense is ordinarily sufficient to constitute condonation,
especially as against the husband'. (27 Corpus Juris Secundum,
section 61 and cases cited therein).
In the lights of the facts testified to by the plaintiff-husband, of
the legal provisions above quoted, and of the various decisions
above-cited, the inevitable conclusion is that the present action is
untenable.
Although no acts of infidelity might have been committed by the wife, We
agree with the trial judge that the conduct of the plaintiff-husband above
narrated despite his belief that his wife was unfaithful, deprives him, as
alleged the offended spouse, of any action for legal separation against the
offending wife, because his said conduct comes within the restriction of
Article 100 of the Civil Code.
The only general rule in American jurisprudence is that any cohabitation
with the guilty party, after the commission of the offense, and with the
knowledge or belief on the part of the injured party of its commission, will
amount to conclusive evidence of condonation; but this presumption may
be rebutted by evidence (60 L. J. Prob. 73).
If there had been cohabitation, to what extent must it be to constitute
condonation?
Single voluntary act of marital intercourse between the parties
ordinarily is sufficient to constitute condonation, and where the
parties live in the same house, it is presumed that they live on
terms of matrimonial cohabitation (27 C. J. S., section 6-d).
A divorce suit will not be granted for adultery where the parties
continue to live together after it was known (Land vs.  Martin, 15
South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse
after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534)
or sleeping together for a single night (Toulson vs. Toulson, 50 Atl.
401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199;
Collins vs.  Collins, 193 So. 702), and many others. The resumption
of marital cohabitation as a basis of condonation will generally be
inferred, nothing appearing to the contrary, from the fact of the
living together as husband and wife, especially as against the
husband (Marsh vs. Marsh, 14 N. J. Eq. 315).
There is no ruling on this matter in our jurisprudence but we have no
reason to depart from the doctrines laid down in the decisions of the
various supreme courts of the United States above quoted.

There is no merit in the contention of appellant that the lower court erred
in entertaining condonation as a ground for dismissal inasmuch as same
was not raised in the answer or in a motion to dismiss, because in the
second ground of the motion to dismiss. It is true that it was filed after the
answer and after the hearing had been commenced, yet that motion
serves to supplement the averments of defendant's answer and to adjust
the issues to the testimony of plaintiff himself (section 4, Rule 17 of the
Rules of Court).

Wherefore, and on the strength of the foregoing, the order appealed from
is hereby affirmed, with costs against appellant. It is so ordered.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes,

J.B.L. and Endencia, JJ., concur.
ARTICLE 58-62 the wife, as the case may be within five years from the time of the
occurrence of any of the following causes:

A.M. No. 02-11-11-SC             March 4, 2003 (a) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner;
RE: PROPOSED RULE ON LEGAL SEPARATION
(b) Physical violence or moral pressure to compel
RESOLUTION the petitioner to change religious or political
affiliation;
          Acting on the letter of the Chairman of the Committee on
Revision of the Rules of Court submitting for this Court's (c) Attempt of respondent to corrupt or induce the
consideration and approval the Proposed Rule on Legal petitioner, a common child, or a child of the
Separation, the Court Resolved to APPROVED the same. petitioner, to engage in prostitution, or connivance
in such corruption or inducement;
          The Rule shall take effect on March 15, 2003 following its
publication in a newspaper of general circulation not later than (d) Final judgment sentencing the respondent to
March 7, 2003 imprisonment of more than six years, even if
pardoned;
          March 4, 2003
(e) Drug addiction or habitual alcoholism of the
Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, respondent;
Quisumbing, Sandoval Gutierrez, Carpio, Austria-Martinez,
Carpio-Morales, Callejo, Sr. and Azcuna, JJ. (f) Lesbianism or homosexuality of the
Ynares-Santiago, on leave, respondent;
Corona, officially on leave.
(g) Contracting by the respondent of a subsequent
RULE ON LEGAL SEPARATION bigamous marriage, whether in or outside the
Philippines;
Section 1. Scope. - This Rule shall govern petitions for legal
separation under the Family Code of the Philippines. (h) Sexual infidelity or perversion of the
respondent;
          The Rules of Court shall apply suppletorily.
(i) Attempt on the life of petitioner by the
Section 2. Petition. - (a) Who may and when to file. - (1) A respondent; or
petition for legal separation may be filed only by the husband or
 (j) Abandonment of petitioner by respondent
without justifiable cause for more than one year.
(b) Contents and form. - The petition for legal separation
shall:
(1) Allege the complete facts constituting the
cause of action.
(2) State the names and ages of the common
children of the parties, specify the regime
governing their property relations, the properties
involved, and creditors, if any. If there is no
adequate provision in a written agreement
between the parties, the petitioner may apply for a
provisional order for spousal support, custody and
support of common children, visitation rights,
administration of community or conjugal property,
and other similar matters requiring urgent action,
(3) Be verified and accompanied by a certification
against forum shopping. The verification and
certification must be personally signed by the
petitioner. No petition may be filed solely by
counsel or through an attorney-in-fact. If the
petitioner is in a foreign country, the verification
and certification against forum shopping shall be
authenticated by the duly authorized officer of the
Philippine embassy or legation, consul general,
consul or vice-consul or consular agent in said
country
(4) Be filed in six copies. The petitioner shall,
within five days from such filing, furnish a copy of
the petition to the City or Provincial Prosecutor
and the creditors, if any, and submit to the court
proof of such service within the same period.
          Failure to comply with the preceding
requirements may be a ground for immediate
dismissal of the petition.
(c) Venue. - The petition shall be filed in the Family Court
of the province or city where the petitioner or the
respondent has been residing for at least six months prior
to the date of filing "or in The case of a non-resident
respondent, where he may be found in the Philippines, at
the election of the petitioner.
Section 3. Summons. - The service of summons shall be
governed by Rule 14 of the Rules of Court and by the following
rules:
(a) Where the respondent cannot be located at his given
address or his whereabouts are unknown and cannot be
ascertained by diligent inquiry, service of summons may,
by leave of court, be effected upon him by publication
once a week for two consecutive weeks in a newspaper of
general circulation in the Philippines and in such place as
the court may order. In addition, a copy of the summons
shall be served on respondent at his last known address
by registered mail or by any other means the court may
deem sufficient.
(b) The summons to be published shall be contained in an
order of the court with the following data; (1) title of the
case; (2) docket number; (3) nature of the petition; (4)
principal grounds of the petition and the reliefs prayed for,
and (5) a directive for respondent to answer within thirty
days from the last issue of publication.
Section 4. Motion to Dismiss. - No motion to dismiss the petition
shall be allowed except on the ground of lack of jurisdiction over
the subject matter or over the parties; provided, however, that any
other ground that might warrant a dismissal of the case may be
raised as an affirmative defense in an answer.
Section 5. Answer. - (a) The respondent shall file his answer
within fifteen days from receipt of summons, or within thirty days
from the last issue of publication in case of service of summons
by publication. The answer must be verified by respondent
himself and not by counsel or attorney-in-fact.
(b) If the respondent fails to file an answer, the court shall
not declare him in default.
(c) Where no answer is filed/or if the answer does not
tender an issue the court shall order the public prosecutor
to investigate whether collusion exists between the
parties.
Section 6. Investigation Report of Public Prosecutor. - (a) Within
one one month after receipt of the court order mentioned in
paragraph (c) of the preceeding section, the public prosecutor
shall submit a report to the court on whether the parties are in
collusion and serve copies on the parties and their respective
counsels, if any.
(b) If the public prosecutor finds that collusion exists, he
shall state the basis thereof in his report. The parties shall
file their respective comments on the finding of collusion
within ten days from receipt of copy of the report. The
court shall set the report for hearing and if convinced that
parties are in collusion,-it shall dismiss the petition.
(c) If the public prosecutor reports that no collusion exists,
the court shall set the case for pre-trial. It shall be the duty
of the public prosecutor to appear for the State at the pre-
trial.
Section 7. Social Worker. - The court may require a social worker
to conduct a case study and to submit the corresponding report at
least three days before the pre-trial. The court may also require a
case study at any stage of the case whenever necessary,
Section 8. Pre-trial. -
(a) Pre-trial mandatory.-A pre-trial is mandatory. On
motion or motu proprio, the court shall set the pre-trial
after the last pleading has been served and filed, or upon
receipt of the report of the public prosecutor that no
collusion exists between the parties on a date not earlier
than six months from date of the filing of the petition.
(b) Notice of Pre-trial.-(1) The notice of pre-trial shall
contain:
(a) the date of pre-trial conference; and
(b) an order directing the parties to file and
serve their respective pre-trial briefs in
such manner as shall ensure the receipt
thereof by the adverse party at least three
days before the date of pre-trial.
(2) The notice shall be served separately on the
parties and their respective counsels as well as on
the public prosecutor. It shall be their duty to
appear personally at the pre-trial.
(3) Notice of pre-trial shall be sent to the
respondent even if he fails to file an answer. In
case of summons by publication and the
respondent failed to file his answer, notice of pre-
trial shall be sent to respondent at his last known
address.
Section 9. Contents of pre-trial brief. - The pre-trial brief shall
contain the following:
(1) A statement of the willingness of the parties to enter
into agreements as may be allowed by law, indicating the
desired terms thereof;
(2) A concise statement of their respective claims together
with the applicable laws and authorities;
(3) Admitted facts and proposed stipulations of facts, as
well as the disputed factual and legal issues;
(4) All the evidence to be presented, including expert
opinion, if any, briefly stating or describing the nature and
purpose thereof;
(5) The number and names of the witnesses and their
respective affidavits; and
(6) Such other matters as the court may require.
          Failure to file the pre-trial brief or to comply with its required
contents shall have the same effect as failure to appear at the
pre-trial under the succeeding section.
Section 10. Effect of failure to appear at the pre-trial. - (1) If the
petitioner fails to appear personally, the case shall be dismissed
unless his counsel or a duly authorized representative appears in
court and proves a valid excuse for the non-appearance of the
petitioner.
(2) If the respondent filed his answer but fails to appear,
the court shall proceed with the pre-trial and require the
public prosecutor to investigate the non-appearance of
the respondent and submit within fifteen days a report to
the court stating whether his non-appearance is due to
any collusion between the parties/ If there is no collusion
the court shall require the public prosecutor to intervene
for the State during the trial on the.merits to prevent
suppression or fabrication of evidence.
Section 11. Pre-trial conference. - At the pre-trial conference, the
court may refer the issues to a mediator who shall assist the
parties in reaching an agreement on matters not prohibited by
law.
          The mediator shall render a report within one month from
referral which, for good reasons, the court may extend for a
period not exceeding one month.
          In case mediation is not availed of or where it fails, the
court shall proceed with the pre-trial conference, on which
occasion it shall consider the advisability of receiving expert
testimony and such other matters as may aid in the prompt
disposition of the petition.
Section 12. Pre-trial order. - (a) The proceedings in the pre-trial
shall be recorded. Upon termination of the pre-trial, the court shall
issue a pre-trial order which shall recite in detail the matters taken
up in the conference, the action taken thereon, the amendments
allowed on the pleadings, and, except as to the ground of legal
separation, the agreements or admissions made by the parties on
any of the matters considered, including any provisional order
that may be necessary or agreed upon by the parties.
(b) Should the action proceed to trial, the order shall
contain a recital of the following:
(1) Facts undisputed, admitted, and those which
need not be proved subject to Section 13 of this
Rule;
(2) Factual and legal issues to be litigated;
 (3) Evidence, including objects and documents,
that have been marked and will be presented;
(4) Names of witnesses who will be presented and
their testimonies in the form of affidavits; and
(5) Schedule of the presentation of evidence.
          The pre-trial order shall also contain a directive to
the public prosecutor to appear for the State and take
steps to prevent collusion between the parties at any
stage of the proceedings and fabrication or suppression
of evidence during the trial on the merits.
(c) The parties shall not be allowed to raise issues or
present witnesses and evidence other than those stated
in the pre-trial order. The order shall control the trial of the
case unless modified by the court to prevent manifest
injustice.
(d) The parties shall have five days from receipt of the
pre-trial order to propose corrections or modifications.
Section 13. Prohibited compromise. - The court shall not allow
compromise on prohibited matters, such as the following:
(1) The civil status of persons;
(2) The validity of a marriage or of a legal separation;
(3) Any ground lor legal separation;
(4) Future support;
(5) The jurisdiction of courts; and
(6) Future legitime.
Section 14. Trial. - (a) The presiding judge shall personally
conduct the trial of the case. No delegation of the reception of
evidence to a commissioner shall be allowed except as to matters
involving property relations of the spouses.
(b) The grounds for legal separation must be proved. No
judgment on the pleadings, summary judgment, or
confession of judgment shall be allowed.
(c) The court may order the exclusion from the courtroom
of all persons, including members of the press, who do
not have a direct interest in the case. Such an order may
be made if the court determines on the record othat
requiring a party to testify in open court would not
enhance the ascertainment of truth; would cause to the
party psychological harm or inability to effectively
communicate due to embarrassment, fear, or timidity;
would violate the party's right to privacy; or would be
offensive to decency
(d) No copy shall be taken nor any examination or perusal
of the records of the case or parts thereof be made by any
person other than a party or counsel of a party, except by
order of the court.
Section 15. Memoranda. - The court may require the parties and
the public prosecutor to file their respective memoranda in
support of their claims within fifteen days from the date the trial is
terminated. No other pleadings or papers may be submitted
without leave of court. After the lapse of the period herein
provided, the case will be considered submitted for decision, with
or without the memoranda.
Section 16. Decision. - (a) The court shall deny the petition on
any of the following grounds:
 (1) The aggrieved party has condoned the offense
or act complained of or has consented to the
commission of the offense or act complained of;
(2) There is connivance in the commission of the
offense-or act constituting the ground for legal
separation;
(3) Both parties have given ground for legal
separation;
(4) There is collusion between the parties to
obtain the decree of legal separation; or
(5) The action is barred by prescription.
(b) If the court renders a decision granting the petition, it
shall declare therein that the Decree of Legal Separation
shall be issued by the court only after full compliance with
liquidation under the Family Code.
          However, in the absence of any property of.the
parties, the court shall forthwith issue a Decree of Legal
Separation which shall be registered in the Civil Registry
where the marriage was recorded and in the Civil Registry
where the Family Court granting the legal separation is
located.
(c) The decision shall likewise declare that:
(1) The spouses are entitled to live separately
from each other but the marriage bond is not
severed;
(2) The obligation of mutual support between the
spouses ceases; and
(3) The offending spouse is disqualified from
inheriting from the innocent spouse by intestate
succession, and provisions in favor of the
offending spouse made in the will of the innocent
spouse are revoked by operation of law.
(d) The parties, including the Solicitor General and the
public prosecutor, shall be served with copies of the
decision personally or by registered mail. If the
respondent summoned by publication failed to appear in
the action, the dispositive part of the decision shall also
be published once in a newspaper of general circulation.
Section 17. Appeal. -
(a) Pre-condition. - No appeal from the decision shall be
allowed unless the appellant has filed a motion for
reconsideration or new trial within fifteen days from notice
of judgment.
(b) Notice of Appeal - An aggrieved party or the Solicitor
General may appeal from the decision by filing a Notice of
Appeal within fifteen days from notice of denial of the
motion for reconsideration or new trial. The appellant shall
serve a copy of the notice of appeal upon the adverse
parties.
Section 18. Liquidation, partition and distribution, custody, and
support of minor children. - Upon entry of the judgment granting
the petition, or, in case of appeal, upon receipt of the entry of
judgment of the appellate court granting the petition, the Family
Court, on motion of either party, shall proceed with the liquidation,
partition and distribution of the properties of the spouses,
including custody and support of common children, under the
Family Code unless such matters had been adjudicated in
previous judicial proceedings.
Section 19. Issuance of Decree of Legal Separation. - (a) The
court shall issue the Decree of Legal Separation after:
(1) registration of the entry of judgment granting
the petition tor legal separation in the Civil
Registry where the marriage was celebrated and
in the Civil Registry where the Family Court is
located; and
(2) registration of the approved partition and
distribution of the properties of the spouses, in the
proper Register of Deeds where the real
properties are located.
(b) The court shall quote in the Decree the dispositive
portion of the judgment entered and attach to the Decree
the approved deed of partition.
Section 20. Registration and publication of the Decree of Legal
Separation; decree as best evidence. -
(a) Registration of decree.-The prevailing party shall
cause the registration of the Decree in the Civil Registry
where the marriage was registered, in the Civil Registry of
the place where the Family Court is situated, and in the
National Census and Statistics Office. He shall report to
the court compliance with this requirement within thirty
days iron receipt of the copy of the Decree.
(b) Publication of decree.-- In case service of summons
was made by publication, the parties shall cause the
publication of the Decree once in a newspaper of general
circulation.
(c) Best evidence.-The registered Decree shall be the
best evidence to prove the legal separation of the parties
and shall serve as notice to third persons concerning the
properties of petitioner and respondent.
Section 21. Effect of death of a party; duty of the Family Court or
Appellate Court. - (a) In case a party dies at any stage of me
proceedings before the entry of judgment, the court shall order
the case closed and terminated without prejudice to the
settlement of estate proper proceedings in the regular courts.
(b) If the party dies after the entry of judgment, the same
shall be binding upon the parties and their successors in
interest in the settlement of the estate in the regular
courts.
Section 22. Petition for revocation of donations. - (a) Within five
(5) years from the date the decision granting the petition for legal
separation has become final, the innocent spouse may file a
petition under oath the same proceeding for legal separation to
revoke the donations in favor of the offending spouse.
(b)The revocation of the donations shall be recorded in
the Register of Deeds of Deeds in the places where the
properties are located.
(c)Alienations, liens, and encumbrances registered in
good faith. before the recording of the petition for
revocation in the registries of property shall be respected.
(d)After the issuance of the Decree of Legal Separation,
the innocent spouse may revoke the designation of the
offending spouse as a beneficiary in any insurance policy
even if such designation be stipulated as irrevocable. The
revocation or change shall take effect upon written
notification thereof to the insurer.
Section 23. Decree of Reconciliation. - (a) If the spouses had
reconciled, a joint manifestation under oath, duly signed by the
spouses, may be filed in the same proceeding for legal
separation.
(b) If the reconciliation occurred while the proceeding for
legal separation is pending, the court shall immediately
issue an order terminating the proceeding.
(c) If the reconciliation occurred after the rendition of the
judgment granting the petition for legal separation but
before the issuance of the Decree, the spouses shall
express in their manifestation whether or not they agree
to revive the former regime of their property relations or
choose a new regime.
          The court shall immediately issue a Decree of
Reconciliation declaring that the legal separation
proceeding is set aside and specifying the regime of
property relations under which the spouses shall be
covered.
(d) If the spouses reconciled after the issuance of the
Decree, the court, upon proper motion, shall issue a
decree of reconciliation declaring therein that the Decree
is set aside but the separation of property and any
forfeiture of the share of the guilty spouse already
effected subsists, unless the spouses have agreed to
revive their former regime of property relations or adopt a
new regime.
(e) In case of paragraphs (b), (c), and (d). if the reconciled
spouses choose to adopt a regime of property relations
different from that which they had prior to the filing of the
petition for legal separation, the spouses shall comply
with Section 24 hereof.
(f) The decree of reconciliation shall be recorded in the
Civil Registries where the marriage and the Decree had
been registered.
Section 24. Revival of property regime or adoption of another. -
(a) In case of reconciliation under Section 23, paragraph
(c) above, the parties shall file a verified motion for revival
of regime of property relations or the adoption of another
regime of property relations in the same proceeding for
legal separation attaching to said motion their agreement
for the approval of the court.
(b) The agreement which shall be verified shall specify the
following:
(1) The properties to be contributed to the
restored or new regime;
(2) Those to be retained as separate properties of
each spouse; and
(3) The names of all their known creditors, their
addresses, and the amounts owing to each.
(c) The creditors shall be furnished with copies of the
motion and the agreement.
(d) The court shall require the spouses to cause the
publication of their verified motion for two consecutive
weeks in a newspaper of general circulation.
(e) After due hearing, and the court decides to grant the
motion, it shall issue an order directing the parties to
record the order in the proper registries of property within
thirty days from receipt of a copy of the order and submit
proof of compliance within the same period.
Section 25. Effectivity. - This Rule shall take effect on March
15,2003 following its publication in a newspaper of general
circulation not later than March 7, 2003.
ARTICLE 58-62
SECTION 19. Legal Separation Cases. – In cases of legal
separation, where violence as specified in this Act is alleged,
Article 58 of the Family Code shall not apply. The court shall
proceed on the main case and other incidents of the case as
soon as possible. The hearing on any application for a
protection order filed by the petitioner must be conducted
within the mandatory period specified in this Act.
_____________________________________________________________
_________
G.R. No. L-30977 January 31, 1972
CARMEN LAPUZ SY, represented by her substitute
MACARIO LAPUZ, petitioner-appellant,  respondent Eufemio S. Eufemio alleged affirmative and
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY
UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.
REYES J.B.L., J.:p
Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of
an order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of
Manila, in its Civil Case No. 20387, dismissing said case for legal separation on
the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which
occurred during the pendency of the case, abated the cause of action as well as
the action itself. The dismissal order was issued over the objection of Macario
Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to
substitute the deceased and to have the case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition
for legal separation against Eufemio S. Eufemio, alleging,
in the main, that they were married civilly on 21
September 1934 and canonically on 30 September 1934;
that they had lived together as husband and wife
continuously until 1943 when her husband abandoned
her; that they had no child; that they acquired properties
during their marriage; and that she discovered her
husband cohabiting with a Chinese woman named Go
Hiok at 1319 Sisa Street, Manila, on or about March 1949.
She prayed for the issuance of a decree of legal
separation, which, among others, would order that the
defendant Eufemio S. Eufemio should be deprived of his
share of the conjugal partnership profits.
In his second amended answer to the petition, herein
special defenses, and, along with several other claims
involving money and other properties, counter-claimed
for the declaration of nullity ab initio of his marriage with
Carmen O. Lapuz Sy, on the ground of his prior and
subsisting marriage, celebrated according to Chinese law
and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the
parties adduced their respective evidence. But before the
trial could be completed (the respondent was already
scheduled to present surrebuttal evidence on 9 and 18
June 1969), petitioner Carmen O. Lapuz Sy died in a
vehicular accident on 31 May 1969. Counsel for petitioner
duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss
the "petition for legal separation"  on two (2) grounds,
1
namely: that the petition for legal separation was filed
beyond the one-year period provided for in Article 102 of
the Civil Code; and that the death of Carmen abated the
action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved
to substitute the deceased Carmen by her father, Macario
Lapuz. Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review,
dismissing the case.  In the body of the order, the court
2 basis, for even petitioner asserted that "the respondent
stated that the motion to dismiss and the motion for
substitution had to be resolved on the question of
whether or not the plaintiff's cause of action has
survived, which the court resolved in the negative.
Petitioner's moved to reconsider but the motion was
denied on 15 September 1969.
After first securing an extension of time to file a petition
for review of the order of dismissal issued by the juvenile
and domestic relations court, the petitioner filed the
present petition on 14 October 1969. The same was
given due course and answer thereto was filed by
respondent, who prayed for the affirmance of the said
order.3
Although the defendant below, the herein respondent
Eufemio S. Eufemio, filed counterclaims, he did not
pursue them after the court below dismissed the case. He
acquiesced in the dismissal of said counterclaims by
praying for the affirmance of the order that dismissed not
only the petition for legal separation but also his
counterclaim to declare the Eufemio-Lapuz marriage to
be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-
assumed substitute — for the lower court did not act on
the motion for substitution) stated the principal issue to
be as follows:
When an action for legal separation is
converted by the counterclaim into one for
a declaration of nullity of a marriage, does
the death of a party abate the proceedings?
The issue as framed by petitioner injects into it a
supposed conversion of a legal separation suit to one for
declaration of nullity of a marriage, which is without
has acquiesced to the dismissal of his counterclaim"
(Petitioner's Brief, page 22). Not only this. The petition for
legal separation and the counterclaim to declare the
nullity of the self same marriage can stand independent
and separate adjudication. They are not inseparable nor
was the action for legal separation converted into one for
a declaration of nullity by the counterclaim, for legal
separation pre-supposes a valid marriage, while the
petition for nullity has a voidable marriage as a pre-
condition.
The first real issue in this case is: Does the death of the
plaintiff before final decree, in an action for legal
separation, abate the action? If it does, will abatement
also apply if the action involves property rights? .
An action for legal separation which involves nothing
more than the bed-and-board separation of the spouses
(there being no absolute divorce in this jurisdiction) is
purely personal. The Civil Code of the Philippines
recognizes this in its Article 100, by allowing only the
innocent spouse (and no one else) to claim legal
separation; and in its Article 108, by providing that the
spouses can, by their reconciliation, stop or abate the
proceedings and even rescind a decree of legal
separation already rendered. Being personal in character,
it follows that the death of one party to the action causes
the death of the action itself — actio personalis moritur
cum persona.
... When one of the spouses is dead, there is
no need for divorce, because the marriage
is dissolved. The heirs cannot even continue
the suit, if the death of the spouse takes
place during the course of the suit (Article
244, Section 3). The action is absolutely
dead (Cass., July 27, 1871, D. 71. 1. 81;
Cass. req., May 8, 1933, D. H. 1933,
332.")  .
4
Marriage is a personal relation or status,
created under the sanction of law, and an
action for divorce is a proceeding brought
for the purpose of effecting a dissolution of
that relation. The action is one of a personal
nature. In the absence of a statute to the
contrary, the death of one of the parties to
such action abates the action, for the
reason that death has settled the question
of separation beyond all controversy and
deprived the court of jurisdiction, both over
the persons of the parties to the action and
of the subject-matter of the action itself. For
this reason the courts are almost
unanimous in holding that the death of
either party to a divorce proceeding, before
final decree, abates the action. 1 Corpus
Juris, 208; Wren v. Moss, 2 Gilman, 72;
Danforth v. Danforth, 111 Ill. 236; Matter of
Grandall, 196 N.Y. 127, 89 N.E. 578; 134
Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon
v. Wilson, 73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark. 452, 97 S.
W. 659; McCurley v. McCurley, 60 Md. 185,
45 Am. Rep. 717; Begbie v. Begbie, 128 Cal.
155, 60 Pac. 667, 49 L.R.A. 141. 5
The same rule is true of causes of action and suits for
separation and maintenance (Johnson vs. Bates, Ark. 101
SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations
between spouses shows that they are solely the effect of
the decree of legal separation; hence, they can not
survive the death of the plaintiff if it occurs prior to the
decree. On the point, Article 106 of the Civil Code
provides: .
Art. 106. The decree of legal separation
shall have the following effects:
(1) The spouses shall be entitled to live
separately from each other, but the
marriage bonds shall not be severed; .
(2) The conjugal partnership of gains or the
absolute conjugal community of property
shall be dissolved and liquidated, but the
offending spouse shall have no right to any
share of the profits earned by the
partnership or community, without
prejudice to the provisions of article 176;
(3) The custody of the minor children shall
be awarded to the innocent spouse, unless
otherwise directed by the court in the
interest of said minors, for whom said court
may appoint a guardian;
(4) The offending spouse shall be
disqualified from inheriting from the
 innocent spouse by intestate succession.
Moreover, provisions in favor of the
offending spouse made in the will of the
innocent one shall be revoked by operation
of law.
From this article it is apparent that the right to the
dissolution of the conjugal partnership of gains (or of the
absolute community of property), the loss of right by the
offending spouse to any share of the profits earned by
the partnership or community, or his disqualification to
inherit by intestacy from the innocent spouse as well as
the revocation of testamentary provisions in favor of the
offending spouse made by the innocent one, are all rights
and disabilities that, by the very terms of the Civil Code
article, are vested exclusively in the persons of the
spouses; and by their nature and intent, such claims and
disabilities are difficult to conceive as assignable or
transmissible. Hence, a claim to said rights is not a claim
that "is not thereby extinguished" after a party dies,
under Section 17, Rule 3, of the Rules of Court, to
warrant continuation of the action through a substitute of
the deceased party.
Sec. 17. Death of party. After a party dies
and the claim is not thereby extinguished,
the court shall order, upon proper notice,
the legal representative of the deceased to
appear and to be substituted for the
deceased, within a period of thirty (30)
days, or within such time as may be
granted...
The same result flows from a consideration of the
enumeration of the actions that survive for or against
administrators in Section 1, Rule 87, of the Revised Rules
of Court:
SECTION 1. Actions which may and which
may not be brought against executor or
administrator. No action upon a claim for
the recovery of money or debt or interest
thereon shall be commenced against the
executor or administrator; but actions to
recover real or personal property, or an
interest therein, from the estate, or to
enforce a lien thereon, and actions to
recover damages for an injury to person or
property, real or personal, may be
commenced against him.
Neither actions for legal separation or for annulment of
marriage can be deemed fairly included in the
enumeration..
A further reason why an action for legal separation is
abated by the death of the plaintiff, even if property
rights are involved, is that these rights are mere effects
of decree of separation, their source being the decree
itself; without the decree such rights do not come into
existence, so that before the finality of a decree, these
claims are merely rights in expectation. If death
supervenes during the pendency of the action, no decree
can be forthcoming, death producing a more radical and
definitive separation; and the expected consequential
rights and claims would necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a
declaration of nullity ab initio of his marriage to Carmen
Lapuz, it is apparent that such action became moot and
academic upon the death of the latter, and there could
be no further interest in continuing the same after her
demise, that automatically dissolved the questioned
union. Any property rights acquired by either party as a
result of Article 144 of the Civil Code of the Philippines 6
could be resolved and determined in a proper action for
partition by either the appellee or by the heirs of the
appellant.

In fact, even if the bigamous marriage had not been

void ab initio  but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second
marriage had been contracted with the first wife having
been an absentee for seven consecutive years, or when
she had been generally believed dead, still the action for
annulment became extinguished as soon as one of the
three persons involved had died, as provided in Article
87, paragraph 2, of the Code, requiring that the action for
annulment should be brought during the lifetime of any
one of the parties involved. And furthermore, the
liquidation of any conjugal partnership that might have
resulted from such voidable marriage must be carried out
"in the testate or intestate proceedings of the deceased
spouse", as expressly provided in Section 2 of the
Revised Rule 73, and not in the annulment proceeding.

ACCORDINGLY, the appealed judgment of the Manila

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

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

Teehankee, Barredo, Villamor and Makasiar, JJ., concur.
ARTICLE 58-62
G.R. No. 79284 November 27, 1987
FROILAN C. GANDIONCO, petitioner,  support pendente lite.
vs.
HON. SENEN C. PEÑARANDA, as Presiding Judge of the Regional Trial
Court of Misamis Oriental, Branch 18, Cagayan de Oro City, and
TERESITA S. GANDIONCO, respondents.
PADILLA, J.:
A special civil action for certiorari, with application for
injunction, to annul (1) the Order of the respondent
Judge, dated 10 December 1986, ordering petitioner to
pay support pendente lite to private respondent (his wife)
and their child, and (2) the Order of the same respondent
Judge, dated 5 August 1987, denying petitioner's motion
to suspend hearings in the action for legal separation
filed against him by private respondent as well as his
motion to inhibit respondent Judge from further hearing
and trying the case.
On 29 May 1986, private respondent, the legal wife of the
petitioner, filed with the Regional Trial Court of Misamis
Oriental, 10th Judicial District, Branch 18, in Cagayan de
Oro City, presided over by respondent Judge, a complaint
against petitioner for legal separation, on the ground of
concubinage, with a petition for support and payment of
damages. This case was docketed as Civil Case No.
10636. On 13 October 1986, private respondent also filed
with the Municipal Trial Court, General Santos City, a
complaint against petitioner for concubinage, which was
docketed on 23 October 1986 as Criminal Case No.
15437111. On 14 November 1986, application for the
provisional remedy of support pendente lite, pending a
decision in the action for legal separation, was filed by
private respondent in the civil case for legal separation.
The respondent judge, as already stated, on 10
December 1986, ordered The payment of
In this recourse, petitioner contends that the civil action
for legal separation and the incidents consequent
thereto, such as, application for support pendente
lite, should be suspended in view of the criminal case for
concubinage filed against him the private respondent. In
support of his contention, petitioner cites Art. III. Sec. 3 of
the 1985 Rules on Criminal Procedure, which states:
SEC. 3. Other Civil action arising from
offenses. — Whenever the offended party
shall have instituted the civil action to
enforce the civil liability arising from the
offense. as contemplated in the first Section
1 hereof, the following rules shall be
observed:
(a) After a criminal action has been
commenced the pending civil action arising
from the same offense shall be suspended,
in whatever stage it may be found, until
final judgment in the criminal proceeding
has been rendered. . . .
The civil action for legal separation, grounded as it is on
concubinage, it is petitioner's position that such civil
action arises from, or is inextricably tied to the criminal
action for concubinage, so that all proceedings related to
legal separation will have to be suspended to await
conviction or acquittal for concubinage in the criminal
case. Authority for this position is this Court's decision in
the case of Jerusalem vs. Hon. Roberto Zurbano.  1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that
suspension of an action for legal separation would be
proper if an allegation of concubinage is made therein,
relied solely on Sec. 1 of Rule 107 of the then provisions
of the Rules of Court on criminal procedure, to wit:
Sec. 1. Rules governing civil actions arising
from offenses.-Except as otherwise
provided by law, the following rules shall he
observed:
(a) When a criminal action is instituted, the
civil action for recovery of civil liability
arising from the offense charged is
impliedly instituted with the criminal action,
unless the offended party expressly waives
the civil action or reserves his right to
institute it separately;
(b) Criminal and civil actions arising from
the same offense may be instituted
separately, but after the criminal action has
been commenced the civil action can not be
instituted until final judgment has been
rendered in the criminal action;
(c) After a criminal action has been
commenced, no civil action arising from the
same offense can be prosecuted and the
same shall be suspended in whatever stage
it may be found until final judgment in the
criminal proceeding has been rendered ...
(Emphasis supplied)
The provisions last quoted did not clearly state, as the
1985 Rules do, that the civil action to be suspended, with
or upon the filing of a criminal action, is one which is "to
enforce the civil liability arising from the offense". In
other words, in view of the amendment under the 1985
Rules on Criminal Procedure, a civil action for legal
separation, based on concubinage, may proceed ahead
of, or simultaneously with, a criminal action for
concubinage, because said civil action is not one "to
enforce the civil liability arising from the offense" even if
both the civil and criminal actions arise from or are
related to the same offense. Such civil action is one
intended to obtain the right to live separately, with the
legal consequences thereof, such as, the dissolution of
the conjugal partnership of gains, custody of offsprings,
support, and disqualification from inheriting from the
innocent spouse, among others. As correctly pointed out
by the respondent Judge in his Order dated 5 August
1987:
The unreported case of JERUSALEM vs. Hon.
Roberto Zurbano, Judge of CFI of Antique, et
al., L-11935, April 24, 1959 (105 Phil. 1277)
is not controlling. It applied paragraph C of
Sec. 1, of then Rule 107 of the Rules of
Court, which reads:
After a criminal action has
been commenced, no civil
action arising from the same
offense can be
prosecuted and the same
shall be suspended, in
whatever stage it may be
 found, until final judgment in
the criminal proceeding has
been rendered. (Emphasis
supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules
on Criminal Procedure which refers to "civil actions to
enforce the civil liability arising from the offense" as
contemplated in the first paragraph of Section 1 of Rule
111-which is a civil action "for recovery of civil liability
arising from the offense charged." Sec. 1, Rule 111,
(1985) is specific that it refers to civil action for the
recovery of civil liability arising from the offense charged.
Whereas, the old Sec. 1 (c), Rule 107 simply referred to
"Civil action arising from the offense."
As earlier noted this action for legal separation is not to
recover civil liability, in the main, but is aimed at the
conjugal rights of the spouses and their relations to each
other, within the contemplation of Articles 7 to 108, of
the Civil Code."2
Petitioner also argues that his conviction for concubinage
will have to be first secured before the action for legal
separation can prosper or succeed, as the basis of the
action for legal separation is his alleged offense of
concubinage.
Petitioner's assumption is erroneous.
A decree of legal separation, on the ground of
concubinage, may be issued upon proof by
preponderance of evidence in the action for legal
separation.   No criminal proceeding or conviction is
3 more so, in this case, where we find the judge's
necessary. To this end, the doctrine in Francisco vs.
Tayao   has been modified, as that case was decided
4 taken.
under Act. No. 2710, when absolute divorce was then
allowed and had for its grounds the same grounds for
legal separation under the New Civil Code, with the
requirement, under such former law, that the guilt of
defendant spouses had to be established by final
judgment in a criminal action. That requirement has not
been reproduced or adopted by the framers of the
present Civil Code, and the omission has been uniformly
accepted as a modification of the stringent rule
in Francisco v. Tayao.5
Petitioner's attempt to resist payment of
support pendente lite to his wife must also fail, as we find
no proof of grave abuse of discretion on the part of the
respondent Judge in ordering the same.
Support pendente lite, as a remedy, can be availed of in
an action for legal separation, and granted at the
discretion of the judge.   If petitioner finds the amount of
6
support  pendente lite ordered as too onerous, he can
always file a motion to modify or reduce the same.  7
Petitioner lastly seeks to have the respondent Judge
disqualified from hearing the case, as the grant of
supportpendente lite and the denial of the motion to
suspend hearings in the case, are taken by the petitioner
as a disregard of applicable laws and existing doctrines,
thereby showing the respondent Judge's alleged manifest
partiality to private respondent.
Petitioner's contention is without merit. Divergence of
opinions between a judge hearing a case and a party's
counsel, as to applicable laws and jurisprudence, is not a
sufficient ground to disqualify the judge from hearing the
case, on the ground of bias and manifest partiality. This is
disposition of petitioner's motions to be sound and well-
WHEREFORE, the instant petition is hereby DISMISSED.
Costs against petitioner.

SO ORDERED.
ARTICLE 68
ART 266-A OF RPC, as amended by RA 8353
REPUBLIC ACT NO. 8353
AN ACT EXPANDING THE DEFINITION OF THE
CRIME OF RAPE, RECLASSIFYING THE SAME AS A
CRIME AGAINST PERSONS, AMENDING FOR THE
PURPOSE ACT NO. 3815, AS AMENDED,
OTHERWISE KNOWN AS THE REVISED PENAL
CODE, AND FOR OTHER PURPOSES.
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled:
Section 1. Short Title. - This Act shall be known as
"The Anti-Rape Law of 1997."
Sec. 2. Rape as a Crime Against Persons. - The
crime of rape shall hereafter be classified as a
Crime Against Persons under Title Eight of Act No.
3815, as amended, otherwise known as the
Revised Penal Code. Accordingly, there shall be
incorporated into Title Eight of the same Code a
new chapter to be known as Chapter Three on
Rape, to read as follows:
"Chapter Three
"Rape
"Article 266-A. Rape: When And How
Committed. - Rape is committed:
"1) By a man who shall have carnal knowledge
of a woman under any of the following
circumstances:
"a) Through force, threat, or intimidation;
"b) When the offended party is deprived of reason
or otherwise unconscious;
"c) By means of fraudulent machination or grave
abuse of authority; and
"d) When the offended party is under twelve (12)
years of age or is demented, even though none of
the circumstances mentioned above be present.
"2) By any person who, under any of the
circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting
his penis into another person's mouth or anal
orifice, or any instrument or object, into the
genital or anal orifice of another person.
"Article 266-B. Penalty. - Rape under paragraph 1
of the next preceding article shall be punished by
reclusion perpetua.
"Whenever the rape is committed with the use of
a deadly weapon or by two or more persons, the
penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape,
the victim has become insane, the penalty shall
become reclusion perpetua to death.
"When the rape is attempted and a homicide is
committed by reason or on the occasion thereof,
the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion ofthe rape,
homicide is committed, the penalty shall be death.
"The death penalty shall also be imposed if the
crime of rape is committed with any of the
following aggravating/qualifying circumstances:
"l) When the victim is under eighteen (18) years of
age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the
common-law spouse of the parent of the victim;
"2) When the victim is under the custody of the
police or military authorities or any law
enforcement or penal institution;
"3) When the rape is committed in full view of the
spouse, parent, any of the children or other
relatives within the third civil degree of
consanguinity;
"4) When the victim is a religious engaged in
legitimate religious vocation or calling and is
personally known to be such by the offender
before or at the time of the commission of the
crime;
"5) When the victim is a child below seven (7)
years old;
"6) When the offender knows that he is afflicted
with the Human Immuno-Deficiency Virus
(HIV)/Acquired Immune Deficiency Syndrome
(AIDS) or any other sexually transmissible disease
and the virus or disease is transmitted to the
victim;
"7) When committed by any member of the
Armed Forces of the Philippines or para-military
units thereof or the Philippine National Police or
any law enforcement agency or penal institution,
when the offender took advantage of his position
to facilitate the commission of the crime;
"8) When by reason or on the occasion of the
rape, the victim has suffered permanent physical
mutilation or disability;
"9) When the offender knew of the pregnancy of
the offended party at the time of the commission
of the crime; and
"10) When the offender knew of the mental
disability, emotional disorder and/or physical
handicap of the offended party at the time of the
commission of the crime.
"Rape under paragraph 2 of the next preceding
article shall be punished by prision mayor.
"Whenever the rape is committed with the use of
a deadly weapon or by two or more persons, the
penalty shall be prision mayor to reclusion
temporal.
"When by reason or on the occasion of the rape,
the victim has become insane, the penalty shall
be reclusion temporal.
"When the rape is attempted and a homicide is
committed by reason or on the occasion thereof,
the penalty shall be reclusion temporal to
reclusion perpetua.
"When by reason or on the occasion ofthe rape,
homicide is committed, the penalty shall be
reclusion perpetua.
"Reclusion temporal shall be imposed if the rape
is committed with any of the ten aggravating/
qualifying circumstances mentioned in this article.
"Article 266-C. Effect of Pardon. - The subsequent
valid marriage between the offended party shall
extinguish the criminal action or the penalty
imposed.
"In case it is the legal husband who is the
offender, the subsequent forgiveness by the wife
as the offended party shall extinguish the criminal
action or the penalty: Provided, That the crime
shall not be extinguished or the penalty shall not
be abated if the marriage is void ab initio.
"Article 266-D. Presumptions. - Any physical overt
act manifesting resistance against the act of rape
in any degree from the offended party, or where
the offended party is so situated as to render
her/him incapable of giving valid consent, may be
accepted as evidence in the prosecution of the
acts punished under Article 266-A."
Sec. 3. Separability Clause. - If any part, Sec., or
provision of this Act is declared invalid or
unconstitutional, the other parts thereof not
affected thereby shall remain valid.
Sec. 4. Repealing Clause. - Article 336 of Act No.
3815, as amended, and all laws, acts, presidential
decrees, executive orders, administrative orders,
rules and regulations inconsistent with or contrary
to the provisions of this Act are deemed amended,
modified or repealed accordingly.
Sec. 5. Effectivity. - This Act shall take effect
fifteen (15) days after completion of its
publication in two (2) newspapers of general
circulation.
Approved: September 30, 1997.
ARTICLE 68
SECTION 3 OF RA 9262
SECTION 3. Definition of Terms.- As used in this Act,
(a) "Violence against women and their children" refers to
any act or a series of acts committed by any person
against a woman who is his wife, former wife, or against a
woman with whom the person has or had a sexual or
dating relationship, or with whom he has a common child,
or against her child whether legitimate or illegitimate,
within or without the family abode, which result in or is
likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such
acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not limited to, the
following acts:
A. "Physical Violence" refers to acts that include
bodily or physical harm;
B. "Sexual violence" refers to an act which is
sexual in nature, committed against a woman or
her child. It includes, but is not limited to:
a) rape, sexual harassment, acts of
lasciviousness, treating a woman or her
child as a sex object, making demeaning
and sexually suggestive remarks,
physically attacking the sexual parts of the
victim's body, forcing her/him to watch
obscene publications and indecent shows
or forcing the woman or her child to do
indecent acts and/or make films thereof,
forcing the wife and mistress/lover to live
in the conjugal home or sleep together in
the same room with the abuser;
b) acts causing or attempting to cause the
victim to engage in any sexual activity by
force, threat of force, physical or other
harm or threat of physical or other harm or
coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or
omissions causing or likely to cause mental or
emotional suffering of the victim such as but not
limited to intimidation, harassment, stalking,
damage to property, public ridicule or humiliation,
repeated verbal abuse and mental infidelity. It
includes causing or allowing the victim to witness
the physical, sexual or psychological abuse of a
member of the family to which the victim belongs,
or to witness pornography in any form or to
witness abusive injury to pets or to unlawful or
unwanted deprivation of the right to custody
and/or visitation of common children.
D. "Economic abuse" refers to acts that make or
attempt to make a woman financially dependent
which includes, but is not limited to the following:
1. withdrawal of financial support or
preventing the victim from engaging in any
legitimate profession, occupation,
business or activity, except in cases
wherein the other spouse/partner objects
on valid, serious and moral grounds as
defined in Article 73 of the Family Code;
2. deprivation or threat of deprivation of
financial resources and the right to the use
 and enjoyment of the conjugal, community
or property owned in common;
3. destroying household property;
4. controlling the victims' own money or
properties or solely controlling the
conjugal money or properties.
(b) "Battery" refers to an act of inflicting physical harm
upon the woman or her child resulting to the physical and
psychological or emotional distress.
Welfare and Development (DSWD) or by any other
agency or voluntary organization accredited by the DSWD
for the purposes of this Act or any other suitable place the
resident of which is willing temporarily to receive the
victim.
(h) "Children" refers to those below eighteen (18) years of
age or older but are incapable of taking care of
themselves as defined under Republic Act No. 7610. As
used in this Act, it includes the biological children of the
victim and other children under her care.

(c) "Battered Woman Syndrome" refers to a scientifically

defined pattern of psychological and behavioral
symptoms found in women living in battering relationships
as a result of cumulative abuse.

(d) "Stalking" refers to an intentional act committed by a

person who, knowingly and without lawful justification
follows the woman or her child or places the woman or
her child under surveillance directly or indirectly or a
combination thereof.

(e) "Dating relationship" refers to a situation wherein the

parties live as husband and wife without the benefit of
marriage or are romantically involved over time and on a
continuing basis during the course of the relationship. A
casual acquaintance or ordinary socialization between
two individuals in a business or social context is not a
dating relationship.

(f) "Sexual relations" refers to a single sexual act which

may or may not result in the bearing of a common child.

(g) "Safe place or shelter" refers to any home or institution

maintained or managed by the Department of Social
ARTICLE 68 The antecedent facts are not disputed.

G.R. No. L-23482           August 30, 1968 Alfonso Lacson (hereinafter referred to as the petitioner spouse)
and Carmen San Jose-Lacson (hereinafter referred to as the
ALFONSO LACSON, petitioner,  respondent spouse) were married on February 14, 1953. To them
vs. were born four children, all alive.
CARMEN SAN JOSE-LACSON and THE COURT OF
APPEALS, respondents. On January 9, 1963 the respondent spouse left the conjugal
home in Santa Clara Subdivision, Bacolod City, and commenced
----------------------------- to reside in Manila. She filed on March 12, 1963 a complaint
docketed as civil case E-00030 in the Juvenile and Domestic
Relations Court of Manila (hereinafter referred to as the JDRC)
G.R. No. L-23767           August 30, 1968
for custody of all their children as well as support for them and
herself.
CARMEN SAN JOSE-LACSON, plaintiff-appellant, 
vs.
However, the spouses, thru the assistance of their respective
ALFONSO LACSON, defendant-appellee.
attorneys, succeeded in reaching an amicable settlement
respecting custody of the children, support, and separation of
----------------------------- property. On April 27, 1963 they filed a joint petition dated April
21, 1963, docketed as special proceeding 6978 of the Court of
G.R. No. L-24259           August 30, 1968 First Instance of Negros Occidental (hereinafter referred to as the
CFI).
ALFONSO LACSON, petitioner-appellee, 
vs. The important and pertinent portions of the petition, embodying
CARMEN SAN JOSE-LACSON, petitioner-appellant. their amicable settlement, read as follows:

Paredes, Poblador, Cruz and Nazareno for respondent-appellant
Carmen San Jose-Lacson.  petitioner Carmen San Jose-Lacson left their conjugal
Norberto Quisumbing for petitioner-appellee Alfonso Lacson.
CASTRO, J.:
These three cases (G.R. L-23482, L-23767 and L-24259)
involving the same parties pose a common fundamental issue the
resolution of which will necessarily and inescapably resolve all
the other issues. Thus their joinder in this decision.
3. Petitioners have separated last January 9, 1963 when
home at the Santa Clara Subdivision, Bacolod City, did
not return, and decided to reside in Manila.
4. Petitioners have mutually agreed upon the dissolution
of their conjugal partnership subject to judicial approval as
required by Article 191 of the Civil Code of the Philippines
— the particular terms and conditions of their mutual
agreement being as follows:
(a) There will be separation of property —
petitioner Carmen San Jose-Lacson hereby
waiving any and all claims for a share in property
that may be held by petitioner Alfonso Lacson
since they have acquired no property of any
consequence.
(b) Hereafter, each of them shall own, dispose of,
possess, administer and enjoy such separate
estate as they may acquire without the consent of
the other and all earnings from any profession,
business or industry as may be derived by each
petitioner shall belong to that petitioner
exclusively.
(c) The custody of the two elder children named
Enrique and Maria Teresa shall be awarded to
petitioner Alfonso Lacson and the custody of the
younger children named Gerrard and Ramon shall
be awarded to petitioner Carmen San Jose-
Lacson.
(d) Petitioner Alfonso Lacson shall pay petitioner
Carmen San Jose-Lacson a monthly allowance of
P300.00 for the support of the children in her
custody.
(e) Each petitioner shall have reciprocal rights of
visitation of the children in the custody of the other
at their respective residences and, during the
summer months, the two children in the custody of
each petitioner shall be given to the other except
that, for this year's summer months, all four
children shall be delivered to and remain with
petitioner Carmen San Jose-Lacson until June 15,
1963 — on which date, she shall return the two
elder children Enrique and Maria Teresa to
petitioner Alfonso Lacson — this judgment of
course being subject to enforcement by execution
writ and contempt.
5. Petitioners have no creditors.
WHEREFORE, they respectfully pray that notice of this
petition be given to creditors and third parties pursuant to
Article 191 of the Civil Code of the Philippines and
thereafter that the Court enter its judicial approval of the
foregoing agreement for the dissolution of their conjugal
partnership and for separation of property, except that the
Court shall immediately approve the terms set out in
paragraph 4 above and embody the same in a judgment
immediately binding on the parties hereto to the end that
any non-compliance or violation of its terms by one party
shall entitle the other to enforcement by execution writ
and contempt even though the proceedings as to
creditors have not been terminated.".
Finding the foregoing joint petition to be "conformable to law," the
CFI (Judge Jose F. Fernandez, presiding) issued an order on
April 27, 1963, rendering judgment (hereinafter referred to as the
compromise judgment) approving and incorporating in toto their
compromise agreement. In compliance with paragraph 4 (e) of
their mutual agreement (par. 3[e] of the compromise judgment),
the petitioner spouse delivered all the four children to the
respondent spouse and remitted money for their support.
On May 7, 1963 the respondent spouse filed in the JDRC a
motion wherein she alleged that she "entered into and signed
the ... Joint Petition as the only means by which she could have
immediate custody of the ... minor children who are all below the
age of 7," and thereafter prayed that she "be considered relieved
of the ... agreement pertaining to the custody and visitation of her
minor children ... and that since all the children are now in her
custody, the said custody in her favor be confirmed pendente
lite." On May 24, 1963 the petitioner spouse opposed the said
motion and moved to dismiss the complaint based, among other
things, on the grounds of res judicata and lis pendens. The JDRC
on May 28, 1963, issued an order which sustained the petitioner
spouse's plea of bar by prior judgment and lis pendens, and
dismissed the case. After the denial of her motion for
reconsideration, the respondent spouse interposed an appeal to
the Court of Appeals (CA-G.R. No. 32608-R) wherein she raised,
among others, the issue of validity or legality of the compromise
agreement in connection only with the custody of their minor
children. On October 14, 1964 the Court of Appeals certified the
said appeal to the Supreme Court (G.R. No. L-23767), since "no
hearing on the facts was ever held in the court below — no
evidence, testimonial or documentary, presented — only a
question of law pends resolution in the appeal." .
The respondent spouse likewise filed a motion dated May 15,
1963 for reconsideration of the compromise judgment dated April
27, 1963 rendered in special proceeding 6978 of the CFI, wherein
she also alleged, among others, that she entered into the joint
petition as the only means by which she could have immediate
custody of her minor children, and thereafter prayed the CFI to
reconsider its judgment pertaining to the custody and visitation of
her minor children and to relieve her from the said agreement.
The petitioner spouse opposed the said motion and, on June 1,
1963, filed a motion for execution of the compromise judgment
and a charge for contempt. The CFI (Judge Jose R. Querubin,
presiding), in its order dated June 22, 1963, denied the
respondent spouse's motion for reconsideration, granted the
petitioner spouse's motion for execution, and ordered that upon
"failure on the part of Carmen San Jose-Lacson to deliver the
said children [i.e., to return the two older children Enrique and
Maria Teresa in accordance with her agreement with Alfonso
Lacson] to the special sheriff on or before June 29, 1963, she
may be held for contempt pursuant to the provisions of Rule 39
sections 9 and 10, and Rule 64 section 7 of the (old) Rules of
Court." From the aforesaid compromise judgment dated April 27,
1963 and execution order dated June 22, 1963, the respondent
spouse interposed an appeal to the Court of Appeals (CA-G.R.
No. 32798-R) wherein she likewise questioned the validity or
legality of her agreement with the petitioner spouse respecting
custody of their children. On February 11, 1965 the Court of
Appeals also certified the said appeal to the Supreme Court (G.R.
No. L-24259), since "no evidence of any kind was introduced
before the trial court and ... appellant did not specifically ask to be
allowed to present evidence on her behalf." .
The respondent spouse also instituted certiorari proceedings
before the Court of Appeals (CA-G.R. No. 32384R), now the
subject of an appeal by certiorari to this Court (G.R. No. L-
23482). In her petition for certiorari dated June 27, 1963, she
averred that the CFI (thru Judge Querubin) committed grave
abuse of discretion and acted in excess of jurisdiction in ordering
the immediate execution of the compromise judgment in its order
of June 22, 1963, thus in effect depriving her of the right to
appeal. She prayed for (1) the issuance of a writ of preliminary
injunction enjoining the respondents therein and any person
acting under them from enforcing, by contempt proceedings and
other means, the writ of execution issued pursuant to the order of
the respondent Judge Querubin dated June 22, 1963 in special
proceeding 6978 of the CFI, (2) the setting aside, after hearing, of
the compromise judgment dated April 27, 1963 and the order
dated June 22, 1963, and (3) the awarding of the custody of
Enrique and Maria Teresa to her, their mother. As prayed for, the
Court of Appeals issued ex parte a writ of preliminary injunction
enjoining the enforcement of the order dated June 22, 1963 for
execution of the compromise judgment rendered in special
proceeding 6978. The petitioner spouse filed an urgent motion
dated July 5, 1963 for the dissolution of the writ of preliminary
injunction ex parte which urgent motion was denied by the Court
of Appeals in its resolution dated July 9, 1963. The petitioner
spouse likewise filed his answer. After hearing, the Court of
Appeals on May 11, 1964 promulgated in said certiorari case
(CA-G.R. No. 32384-R) its decision granting the petition
for certiorari and declaring null and void both (a) the compromise
judgment dated April 27, 1963 in so far as it relates to the custody
and right of visitation over the two children, Enrique and Teresa,
and (b) the order dated June 22, 1963 for execution of said
judgment. The petitioner spouse moved to reconsider, but his
motion for reconsideration was denied by the Court of Appeals in
its resolution dated July 31, 1964. From the decision dated May
11, 1964 and the resolution dated July 31, 1964, the petitioner
spouse interposed an appeal to this Court, as abovestated, and
assigned the following errors:
(1) The Court of Appeals erred in annulling thru certiorari
the lower court's order of execution of the compromise
judgment.
(2) The Court of Appeals erred in resolving in the
certiorari case the issue of the legality of the compromise
judgment which is involved in two appeals, instead of the
issue of grave abuse of discretion in ordering its
execution.
(3) The Court of Appeals erred in ruling that the
compromise agreement upon which the judgment is
based violates article 363 of the Civil Code. 1äwphï1.ñët
As heretofore adverted, the aforecited three appeals converge on
one focal issue: whether the compromise agreement entered into
by the parties and the judgment of the CFI grounded on the said
agreement, are conformable to law.
We hold that the compromise agreement and the judgment of the
CFI grounded on the said agreement are valid with respect to the
separation of property of the spouses and the dissolution of the
conjugal partnership.
The law allows separation of property of the spouses and the
dissolution of their conjugal partnership provided judicial sanction
is secured beforehand. Thus the new Civil Code provides:
In the absence of an express declaration in the marriage
settlements, the separation of property between spouses
during the marriage shall not take place save in virtue of a
judicial order. (Art. 190, emphasis supplied)
The husband and the wife may agree upon the dissolution
of the conjugal partnership during the marriage, subject to
judicial approval. All the creditors of the husband and of
the wife, as well as of the conjugal partnership, shall be
notified of any petition for judicial approval of the
voluntary dissolution of the conjugal partnership, so that
any such creditors may appear at the hearing to
safeguard his interests. Upon approval of the petition for
dissolution of the conjugal partnership, the court shall
take such measures as may protect the creditors and
other third persons. (Art. 191, par. 4, emphasis supplied).
In the case at bar, the spouses obtained judicial imprimatur of
their separation of property and the dissolution of their conjugal
partnership. It does not appeal that they have creditors who will
be prejudiced by the said arrangements.
It is likewise undisputed that the couple have been separated in
fact for at least five years - the wife's residence being in Manila,
and the husband's in the conjugal home in Bacolod City.
Therefore, inasmuch as a lengthy separation has supervened
between them, the propriety of severing their financial and
proprietary interests is manifest.
Besides, this Court cannot constrain the spouses to live together,
as
[I]t is not within the province of the courts of this country to
attempt to compel one of the spouses to cohabit with, and
render conjugal rights to, the other. .. At best such an
order can be effective for no other purpose than to
compel the spouse to live under the same roof; and the
experience of those countries where the courts of justice
have assumed to compel the cohabitation of married
 couple shows that the policy of the practice is extremely
questionable. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54,
60).
However, in so approving the regime of separation of property of
the spouses and the dissolution of their conjugal partnership, this
Court does not thereby accord recognition to nor legalize the de
facto separation of the spouses, which again in the language
of Arroyo v. Vasquez de Arroyo, supra — is a "state which is
abnormal and fraught with grave danger to all concerned." We
would like to douse the momentary seething emotions of couples
who, at the slightest ruffling of domestic tranquility — brought
about by "mere austerity of temper, petulance of manners,
rudeness of language, a want of civil attention and
accommodation, even occasional sallies of passion" without more
— would be minded to separate from each other. In this
jurisdiction, the husband and the wife are obliged to live together,
observe mutual respect and fidelity, and render mutual help and
support (art. 109, new Civil Code). There is, therefore, virtue in
making it as difficult as possible for married couples — impelled
by no better cause than their whims and caprices — to abandon
each other's company.
'... For though in particular cases the repugnance of the
law to dissolve the obligations of matrimonial cohabitation
may operate with great severity upon individuals, yet it
must be carefully remembered that the general happiness
of the married life is secured by its indissolubility. When
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 yoke which they know
they cannot shake off; they become good husbands and
good wives from the necessity of remaining husbands and
wives; for necessity is a powerful master in teaching the
duties which it imposes ..." (Evans vs. Evans, 1 Hag.
Con., 35; 161 Eng. Reprint, 466, 467.) (Arroyo vs.
Vasquez de Arroyo, Id., pp. 58-59).
We now come to the question of the custody and support of the
children.
It is not disputed that it was the JDRC which first acquired
jurisdiction over the matter of custody and support of the children.
The complaint docketed as civil case E-00030 in the JDRC was
filed by the respondent spouse on March 12, 1963, whereas the
joint petition of the parties docketed as special proceeding 6978
in the CFI was filed on April 27, 1963. However, when the
respondent spouse signed the joint petition on the same matter of
custody and support of the children and filed the same with the
CFI of Negros Occidental, she in effect abandoned her action in
the JDRC. The petitioner spouse — who could have raised the
issue of lis pendens in abatement of the case filed in the CFI, but
did not do so - had the right, therefore, to cite the decision of the
CFI and to ask for the dismissal of the action filed by the
respondent spouse in the JDRC, on the grounds of res
judicata and lis pendens. And the JDRC acted correctly and
justifiably in dismissing the case for custody and support of the
children based on those grounds. For it is no defense against the
dismissal of the action that the case before the CFI was filed later
than the action before the JDRC, considering:.
... [T]hat the Rules do not require as a ground for
dismissal of a complaint that there is a prior pending
action. They provide only that there is a pending action,
not a pending prior action. 1
We agree with the Court of Appeals, however, that the CFI erred
in depriving the mother, the respondent spouse, of the custody of
the two older children (both then below the age of 7).
The Civil Code specifically commands in the second sentence of
its article 363 that "No mother shall be separated from her child
under seven years of age, unless the court finds compelling
reasons for such measure." The rationale of this new provision
was explained by the Code Commission thus:
 The general rule is recommended in order to avoid many
a tragedy where a mother has seen her baby torn away
from her. No man can sound the deep sorrows of a
mother who is deprived of her child of tender age. The
exception allowed by the rule has to be for "compelling
reasons" for the good of the child: those cases must
indeed be rare, if the mother's heart is not to be unduly
hurt. If she has erred, as in cases of adultery, the penalty
of imprisonment and the (relative) divorce decree will
ordinarily be sufficient punishment for her. Moreover, her
moral dereliction will not have any effect upon the baby
who is as yet unable to understand the situation." (Report
of the Code Commission, p. 12).
The use of the word shall2 in article 363 of the Civil Code, coupled
with the observations made by the Code Commission in respect
to the said legal provision, underscores its mandatory character.
It prohibits in no uncertain: terms the separation of a mother and
her child below seven years, unless such separation is grounded
upon compelling reasons as determined by a court.
The order dated April 27, 1963 of the CFI, in so far as it awarded
custody of the two older children who were 6 and 5 years old,
respectively, to the father, in effect sought to separate them from
their mother. To that extent therefore, it was null and void
because clearly violative of article 363 of the Civil Code.
Neither does the said award of custody fall within the exception
because the record is bereft of any compelling reason to support
the lower court's order depriving the wife of her minor children's
company. True, the CFI stated in its order dated June 22, 1963,
denying the respondent spouse's motion for reconsideration of its
order dated April 27, 1963, that .
... If the parties have agreed to file a joint petition, it was
because they wanted to avoid the exposure of the bitter
truths which serve as succulent morsel for scandal
mongers and idle gossipers and to save their children
from embarrassment and inferiority complex which may
inevitably stain their lives. ..
If the parties agreed to submit the matter of custody of the minor
children to the Court for incorporation in the final judgment, they
purposely suppressed the "compelling reasons for such measure"
from appearing in the public records. This is for the sake and for
the welfare of the minor children.".
But the foregoing statement is at best a mere hint that there were
compelling reasons. The lower court's order is eloquently silent
on what these compelling reasons are. Needless to state, courts
cannot proceed on mere insinuations; they must be confronted
with facts before they can properly adjudicate.
It might be argued — and correctly — that since five years have
elapsed since the filing of these cases in 1963, the ages of the
four children should now be as follows: Enrique — 11, Maria
Teresa — 10, Gerrard — 9, and Ramon — 5. Therefore, the
issue regarding the award of the custody of Enrique and Maria
Teresa to the petitioner spouse has become moot and academic.
The passage of time has removed the prop which supports the
respondent spouse's position.
Nonetheless, this Court is loath to uphold the couple's agreement
regarding the custody of the children. 1äwphï1.ñët
Article 356 of the new Civil Code provides:
Every child:
(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the
parents or guardian;
 (4) Has a right to live in an atmosphere conducive
to his physical, moral and intellectual
development.
It is clear that the abovequoted legal provision grants to every
child rights which are not and should not be dependent solely on
the wishes, much less the whims and caprices, of his parents. His
welfare should not be subject to the parents' say-so or mutual
agreement alone. Where, as in this case, the parents are already
separated in fact, the courts must step in to determine in whose
custody the child can better be assured the right granted to him
by law. The need, therefore, to present evidence regarding this
matter, becomes imperative. A careful scrutiny of the records
reveals that no such evidence was introduced in the CFI. This
latter court relied merely on the mutual agreement of the
spouses-parents. To be sure, this was not a sufficient basis to
determine the fitness of each parent to be the custodian of the
children.
Besides, at least one of the children — Enrique, the eldest — is
now eleven years of age and should be given the choice of the
parent he wishes to live with. This is the clear mandate of sec. 6,
Rule 99 of the Rules of Court which, states, inter alia:
... When husband and wife are divorced or living
separately and apart from each other, and the question as
to the care, custody, and control of a child or children of
their marriage is brought before a Court of First Instance
by petition or as an incident to any other proceeding, the
court, upon hearing testimony as may be pertinent, shall
award the care, custody and control of each such child as
will be for its best interest permitting the child to choose
which parent it prefers to live with if it be over ten years of
age, unless the parent so chosen be unfit to take charge
of the child by reason of moral depravity, habitual
drunkenness, incapacity, or poverty... (Emphasis
supplied).
One last point regarding the matter of support for the children —
assuming that the custody of any or more of the children will be
finally awarded to the mother. Although the spouses have agreed
upon the monthly support of P150 to be given by the petitioner
spouse for each child, still this Court must speak out its mind on
the insufficiency of this amount. We, take judicial notice of the
devaluation of the peso in 1962 and the steady skyrocketing of
prices of all commodities, goods, and services, not to mention the
fact that all the children are already of school age. We believe,
therefore, that the CFI may increase this amount of P150
according to the needs of each child.
With the view that we take of this case, we find it unnecessary to
pass upon the other errors assigned in the three appeals.
ACCORDINGLY, the decision dated May 11, 1964 and the
resolution dated July 31, 1964 of the Court of Appeals in CA-G.R.
32384-R (subject matter of G.R. L-23482), and the orders dated
May 28, 1963 and June 24, 1963 of the Juvenile and Domestic
Relations Court (subject matter of G.R. L-23767) are affirmed.
G.R. L-24259 is hereby remanded to the Court of First Instance of
Negros Occidental for further proceedings, in accordance with
this decision. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar and
Angeles, JJ., concur. 
Sanchez and Fernando, JJ., took no part.
ARTICLE 68 Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the
Supreme Court an appeal via certiorari pursuing her desire to
G.R. No. 139789            July 19, 2001 have custody of her husband Potenciano Ilusorio. 2 This case was
consolidated with another case3 filed by Potenciano Ilusorio and
his children, Erlinda I. Bildner and Sylvia K. Ilusorio appealing
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS
from the order giving visitation rights to his wife, asserting that he
OF POTENCIANO ILUSORIO, ERLINDA K.
never refused to see her.
ILUSORIO, petitioner, 
vs.
ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, On May 12, 2000, we dismissed the petition for habeas
JOHN DOES and JANE DOES, respondents.  corpus4 for lack of merit, and granted the petition5 to nullify the
Court of Appeals' ruling6 giving visitation rights to Erlinda K.
Ilusorio.7
x---------------------------------------------------------x
What is now before the Court is Erlinda's motion to reconsider the
G.R. No. 139808 July 19, 2001
decision.8
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and
On September 20, 2000, we set the case for preliminary
SYLVIA K. ILUSORIO, petitioners, 
conference on October 11, 2000, at 10:00 a. m., without requiring
vs.
the mandatory presence of the parties.
HON. COURT OF APPEALS and ERLINDA K.
ILUSORIO, respondents.
In that conference, the Court laid down the issues to be resolved,
to wit:
RESOLUTION
(a) To determine the propriety of a physical and medical
PARDO, J.:
examination of petitioner Potenciano Ilusorio;
Once again we see the sad tale of a prominent family shattered
(b) Whether the same is relevant; and
by conflicts on expectancy in fabled fortune.
(c) If relevant, how the Court will conduct the same.9
On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so
lovingly inseparable from her husband some years ago, filed a
petition with the Court of Appeals1 for habeas corpus to have The parties extensively discussed the issues. The Court, in its
custody of her husband in consortium. resolution, enjoined the parties and their lawyers to initiate steps
towards an amicable settlement of the case through mediation
and other means.
On April 5, 1999, the Court of Appeals promulgated its decision
dismissing the petition for lack of unlawful restraint or detention of
the subject, Potenciano Ilusorio.
On November 29, 2000, the Court noted the manifestation and
compliance of the parties with the resolution of October 11,
2000.10
On January 31, 2001, the Court denied Erlinda Ilusorio's
manifestation and motion praying that Potenciano Ilusorio be
produced before the Court and be medically examined by a team
of medical experts appointed by the Court.11
On March 27, 2001, we denied with finality Erlinda's motion to
reconsider the Court's order of January 31 , 2001.12
The issues raised by Erlinda K. Ilusorio in her motion for
reconsideration are mere reiterations of her arguments that have
been resolved in the decision.
Nevertheless, for emphasis, we shall discuss the issues thus:
First. Erlinda K. Ilusorio claimed that she was not compelling
Potenciano to live with her in consortium and that Potenciano's
mental state was not an issue. However, the very root cause of
the entire petition is her desire to have her
husband's custody.13 Clearly, Erlinda cannot now deny that she
wanted Potenciano Ilusorio to live with her.
Second. One reason why Erlinda K. Ilusorio sought custody of
her husband was that respondents Lin and Sylvia were illegally
restraining Potenciano Ilusorio to fraudulently deprive her of
property rights out of pure greed.14 She claimed that her two
children were using their sick and frail father to sign away
Potenciano and Erlinda's property to companies controlled by Lin
and Sylvia. She also argued that since Potenciano retired as
director and officer of Baguio Country Club and Philippine
Oversees Telecommunications, she would logically assume his
position and control. Yet, Lin and Sylvia were the ones controlling
the corporations.15
The fact of illegal restraint has not been proved during the
hearing at the Court of Appeals on March 23, 1999.16Potenciano
himself declared that he was not prevented by his children from
seeing anybody and that he had no objection to seeing his wife
and other children whom he loved.
Erlinda highlighted that her husband suffered from various
ailments. Thus, Potenciano Ilusorio did not have the mental
capacity to decide for himself. Hence, Erlinda argued that
Potenciano be brought before the Supreme Court so that we
could determine his mental state.
We were not convinced that Potenciano Ilusorio was mentally
incapacitated to choose whether to see his wife or not. Again, this
is a question of fact that has been decided in the Court of
Appeals.
As to whether the children were in fact taking control of the
corporation, these are matters that may be threshed out in a
separate proceeding, irrelevant in habeas corpus.
Third. Petitioner failed to sufficiently convince the Court why we
should not rely on the facts found by the Court of Appeals. Erlinda
claimed that the facts mentioned in the decision were erroneous
and incomplete. We see no reason why the High Court of the
land need go to such length. The hornbook doctrine states that
findings of fact of the lower courts are conclusive on the Supreme
Court.17 We emphasize, it is not for the Court to weigh evidence
all over again.18 Although there are exceptions to the
rule,19 Erlinda failed to show that this is an exceptional instance.
Fourth. Erlinda states that Article XII of the 1987 Constitution and
Articles 68 and 69 of the Family Code support her position that as
spouses, they (Potenciano and Erlinda) are duty bound to live
together and care for each other. We agree.
The law provides that the husband and the wife are obliged to live
together, observe mutual love, respect and fidelity.20 The sanction
therefor is the "spontaneous, mutual affection between husband
and wife and not any legal mandate or court order" to enforce
consortium.21

Obviously, there was absence of empathy between spouses

Erlinda and Potenciano, having separated from bed and board
since 1972. We defined empathy as a shared feeling between
husband and wife experienced not only by having spontaneous
sexual intimacy but a deep sense of spiritual communion. Marital
union is a two-way process.

Marriage is definitely for two loving adults who view the

relationship with "amor gignit amorem" respect, sacrifice and a
continuing commitment to togetherness, conscious of its value as
a sublime social institution.22

On June 28, 2001, Potenciano Ilusorio gave his soul to the

Almighty, his Creator and Supreme Judge. Let his soul rest in
peace and his survivors continue the much prolonged fracas ex
aequo et bono.

IN VIEW WHEREOF, we DENY Erlinda's motion for

reconsideration. At any rate, the case has been rendered moot by
the death of subject.

SO ORDERED.
ARTICLE 76
G.R. No. 164201               December 10, 2012
EFREN PANA, Petitioner, 
vs.
HEIRS OF JOSE JUANITE, SR. and JOSE JUANITE,
JR., Respondents.
DECISION
ABAD, J.:
This case is about the propriety of levy and execution on conjugal
properties where one of the spouses has been found guilty of a crime
and ordered to pay civil indemnities to the victims' heirs.
The Facts and the Case
The prosecution accused petitioner Efren Pana (Efren), his wife
Melecia, and others of murder before the. Regional Trial Court (RTC)
of Surigao City in Criminal Cases 4232 and 4233.1
On July 9, 1997 the RTC rendered a consolidated
decision2 acquitting Efren of the charge for insufficiency of evidence
but finding Melecia and another person guilty as charged and
sentenced them to the penalty of death. The RTC ordered those
found guilty to pay each of the heirs of the victims, jointly and
severally, P50,000.00 as civil indemnity, P50,000.00 each as moral
damages, and P150,000.00 actual damages.
On appeal to this Court, it affirmed on May 24, 2001 the conviction of
both accused but modified the penalty to reclusion perpetua. With
respect to the monetary awards, the Court also affirmed the award of
civil indemnity and moral damages but deleted the award for actual
damages for lack of evidentiary basis. In its place, however, the
Court made an award of P15,000.00 each by way of temperate
damages. In addition, the Court awarded P50,000.00 exemplary
damages per victim to be paid solidarily by them.3 The decision
became final and executory on October 1, 2001.4
Upon motion for execution by the heirs of the deceased, on March
12, 2002 the RTC ordered the issuance of the writ, 5 resulting in the
levy of real properties registered in the names of Efren and
Melecia.6 Subsequently, a notice of levy7 and a notice of sale on
execution8 were issued.
On April 3, 2002, petitioner Efren and his wife Melecia filed a motion
to quash the writ of execution, claiming that the levied properties
were conjugal assets, not paraphernal assets of Melecia.9 On
September 16, 2002 the RTC denied the motion.10 The spouses
moved for reconsideration but the RTC denied the same on March 6,
2003.11
Claiming that the RTC gravely abused its discretion in issuing the
challenged orders, Efren filed a petition for certiorari  before the Court
of Appeals (CA). On January 29, 2004 the CA dismissed the petition
for failure to sufficiently show that the RTC gravely abused its
discretion in issuing its assailed orders.12 It also denied Efren’s
motion for reconsideration,13 prompting him to file the present petition
for review on certiorari.
The Issue Presented
The sole issue presented in this case is whether or not the CA erred
in holding that the conjugal properties of spouses Efren and Melecia
can be levied and executed upon for the satisfaction of Melecia’s civil
liability in the murder case.
Ruling of the Court
To determine whether the obligation of the wife arising from her
criminal liability is chargeable against the properties of the marriage,
the Court has first to identify the spouses’ property relations.
Efren claims that his marriage with Melecia falls under the regime of
conjugal partnership of gains, given that they were married prior to
the enactment of the Family Code and that they did not execute any
prenuptial agreement.14Although the heirs of the deceased victims do
not dispute that it was the Civil Code, not the Family Code, which
governed the marriage, they insist that it was the system of absolute
community of property that applied to Efren and Melecia. The
reasoning goes:
Admittedly, the spouses were married before the effectivity of the
Family Code. But that fact does not prevent the application of [A]rt.
94, last paragraph, of the Family Code because their property regime
is precisely governed by the law on absolute community. This finds
support in Art. 256 of the Family Code which states:
"This code shall have retroactive effect in so far as it does not
prejudice or impair vested or acquired rights in accordance with the
Civil Code or other laws."
None of the spouses is dead. Therefore, no vested rights have been
acquired by each over the properties of the community. Hence, the
liabilities imposed on the accused-spouse may properly be charged
against the community as heretofore discussed.15
The RTC applied the same reasoning as above.16 Efren and
Melecia’s property relation was admittedly conjugal under the Civil
Code but, since the transitory provision of the Family Code gave its
provisions retroactive effect if no vested or acquired rights are
impaired, that property relation between the couple was changed
when the Family Code took effect in 1988. The latter code now
prescribes in Article 75 absolute community of property for all
marriages unless the parties entered into a prenuptial agreement. As
it happens, Efren and Melecia had no prenuptial agreement. The CA
agreed with this position.17
Both the RTC and the CA are in error on this point. While it is true
that the personal stakes of each spouse in their conjugal assets are
inchoate or unclear prior to the liquidation of the conjugal partnership
of gains and, therefore, none of them can be said to have acquired
vested rights in specific assets, it is evident that Article 256 of the
Family Code does not intend to reach back and automatically convert
into absolute community of property relation all conjugal partnerships
of gains that existed before 1988 excepting only those with prenuptial
agreements.
The Family Code itself provides in Article 76 that marriage
settlements cannot be modified except prior to marriage.
Art. 76. In order that any modification in the marriage settlements
may be valid, it must be made before the celebration of the marriage,
subject to the provisions of Articles 66, 67, 128, 135 and 136.
Clearly, therefore, the conjugal partnership of gains that governed
the marriage between Efren and Melecia who were married prior to
1988 cannot be modified except before the celebration of that
marriage.
Post-marriage modification of such settlements can take place only
where: (a) the absolute community or conjugal partnership was
dissolved and liquidated upon a decree of legal separation;18 (b) the
spouses who were legally separated reconciled and agreed to revive
their former property regime;19 (c) judicial separation of property had
been had on the ground that a spouse abandons the other without
just cause or fails to comply with his obligations to the family;20 (d)
there was judicial separation of property under Article 135; (e) the
spouses jointly filed a petition for the voluntary dissolution of their
absolute community or conjugal partnership of gains.21 None of these
circumstances exists in the case of Efren and Melecia.
What is more, under the conjugal partnership of gains established by
Article 142 of the Civil Code, the husband and the wife place only the
fruits of their separate property and incomes from their work or
industry in the common fund. Thus:
Art. 142. By means of the conjugal partnership of gains the husband
and wife place in a common fund the fruits of their separate property
and the income from their work or industry, and divide equally, upon
the dissolution of the marriage or of the partnership, the net gains or
benefits obtained indiscriminately by either spouse during the
marriage.
This means that they continue under such property regime to enjoy
rights of ownership over their separate properties. Consequently, to
automatically change the marriage settlements of couples who got
married under the Civil Code into absolute community of property in
1988 when the Family Code took effect would be to impair their
acquired or vested rights to such separate properties.
The RTC cannot take advantage of the spouses’ loose admission
that absolute community of property governed their property relation
since the record shows that they had been insistent that their
property regime is one of conjugal partnership of gains. 22 No
evidence of a prenuptial agreement between them has been
presented.
What is clear is that Efren and Melecia were married when the Civil
Code was still the operative law on marriages. The presumption,
absent any evidence to the contrary, is that they were married under
the regime of the conjugal partnership of gains. Article 119 of the
Civil Code thus provides:
Art. 119. The future spouses may in the marriage settlements agree
upon absolute or relative community of property, or upon complete
separation of property, or upon any other regime. In the absence of
marriage settlements, or when the same are void, the system of
relative community or conjugal partnership of gains as established in
this Code, shall govern the property relations between husband and
wife.
Of course, the Family Code contains terms governing conjugal
partnership of gains that supersede the terms of the conjugal
partnership of gains under the Civil Code. Article 105 of the Family
Code states:
"x x x x
The provisions of this Chapter [on the Conjugal Partnership of Gains]
shall also apply to conjugal partnerships of gains already established
between spouses before the effectivity of this Code, without
prejudice to vested rights already acquired in accordance with the
Civil Code or other laws, as provided in Article 256."23
Consequently, the Court must refer to the Family Code provisions in
deciding whether or not the conjugal properties of Efren and Melecia
may be held to answer for the civil liabilities imposed on Melecia in
the murder case. Its Article 122 provides:
Art. 122. The payment of personal debts contracted by the husband
or the wife before or during the marriage shall not be charged to the
conjugal properties partnership except insofar as they redounded to
the benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon them
be charged to the partnership.
However, the payment of personal debts contracted by either spouse
before the marriage, that of fines and indemnities imposed upon
them, as well as the support of illegitimate children of either spouse,
may be enforced against the partnership assets after the
responsibilities enumerated in the preceding Article have been
covered, if the spouse who is bound should have no exclusive
property or if it should be insufficient; but at the time of the liquidation
of the partnership, such spouse shall be charged for what has been
paid for the purpose above-mentioned.
Since Efren does not dispute the RTC’s finding that Melecia has no
exclusive property of her own,24 the above applies. The civil
indemnity that the decision in the murder case imposed on her may
be enforced against their conjugal assets after the responsibilities
enumerated in Article 121 of the Family Code have been
covered.25 Those responsibilities are as follows:
Art. 121. The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and
the legitimate children of either spouse; however, the support
of illegitimate children shall be governed by the provisions of
this Code on Support;
(2) All debts and obligations contracted during the marriage
by the designated administrator-spouse for the benefit of the
conjugal partnership of gains, or by both spouses or by one
of them with the consent of the other;
(3) Debts and obligations contracted by either spouse
without the consent of the other to the extent that the family
may have benefited;
(4) All taxes, liens, charges, and expenses, including major
or minor repairs upon the conjugal partnership property;
(5) All taxes and expenses for mere preservation made
during the marriage upon the separate property of either
spouse;
(6) Expenses to enable either spouse to commence or
complete a professional, vocational, or other activity for self-
improvement;
(7) Antenuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both
spouses in favor of their common legitimate children for the
exclusive purpose of commencing or completing a
professional or vocational course or other activity for self-
improvement; and
(9) Expenses of litigation between the spouses unless the
suit is found to be groundless.
If the conjugal partnership is insufficient to cover the foregoing
liabilities, the spouses shall be solidarily liable for the unpaid balance
with their separate properties.1âwphi1
Contrary to Efren’s contention, Article 121 above allows payment of
the criminal indemnities imposed on his wife, Melecia, out of the
partnership assets even before these are liquidated. Indeed, it states
that such indemnities "may be enforced against the partnership
assets after the responsibilities enumerated in the preceding article
have been covered."[26] No prior liquidation of those assets is
required. This is not altogether unfair since Article 122 states that "at
the time of liquidation of the partnership, such [offending] spouse
shall be charged for what has been paid for the purposes above-
mentioned."
WHEREFORE, the Court AFFIRMS with MODIFICATION the
Resolutions of the Court of Appeals in CA-G.R. SP 77198 dated
January 29, 2004 and May 14, 2004. The Regional Trial Court of
Surigao City, Branch 30, shall first ascertain that, in enforcing the writ
of execution on the conjugal properties of spouses Efren and Melecia
Pana for the satisfaction of the indemnities imposed by final
judgment on the latter accused in Criminal Cases 4232 and 4233,
the responsibilities enumerated in Article 121 of the Family Code
have been covered.
SO ORDERED.
ARTICLE 82-84
G.R. No. L-12093             June 29, 1959
ESTANISLAO SERRANO, plaintiff-appellant, 
vs.
MELCHOR SOLOMON, defendant-appellee.
Constante Pimentel for appellant.
Faustino B. Tobia, Eufrecino T. Tagayana, Pedro R. Arce and Emmanuel U.
Ujano for appellee.
MONTEMAYOR, J.:
Estanislao Serrano is appealing the decision of the Court of First Instance of
Ilocos Sur, Judge Jose G. Bautista presiding, declaring null and void the
supposed donation propter nuptias on which his complaint was based and
dismissing the later upon motion of the defendant. The motion for
dismissal was filed before the hearing but the trial court deferred action
upon it until after submission of evidence by the parties. Said parties
entered into a stipulation of facts after which they declined to submit any
other evidence except Exhibit "A", the supposed deed of donationpropter
nuptias, the translation of which, for purposes of reference, is reproduced
below:
That, I Melchor Solomon, single, Filipino, of legal age, native of the
municipality of Sinait, province of Ilocos Sur and residing at
present in Sinait, having decided to get married with the consent
of my parents, brothers, or sisters and relatives, have announced
and manifested my determination and desire to Mr. Estanislao
Serrano to whose family the flower I intend to win belongs,
namely Miss Alejandria Feliciano single, born in Hawaii but is
actually residing in Cabugao, Ilocos Sur.
This ardent desire favored by good luck and accepted by the noble
lady the one concerned, is to be realized and complied with under
agreement or stipulation which affirms, promotes and vivifies the
union. This agreement donating all my exclusive properties in
order that we shall have a basic capital for our conjugal life and in
order that there will be ready maintenance and support of
offsprings has come out voluntarily and expontaneously from me,
I the very one concerned.
These which I am donating my exclusive properties because I have
honestly acquired the same with the sweat of my brows and I
donate them gladly, to wit . . .;
The referred to properties are donated in accordance with the
existing laws of the Philippines and our children out of the
wedlock will be the ones to inherit same inherit same with equal
shares. But if God will not bless our union with any child one half
of all my properties including the properties acquired our conjugal
union will be given the (to) my brothers or sisters or their heirs if I,
the husband will die before my wife and if my beloved wife will die
before me, one half of all my properties and those acquired by us
will be given to those who have reared my wife in token of my love
to her. . . . (Emphasis supplied)
Alejandria Feliciano, whose father went to Hawaii to seek his fortune and
who until now resides there, had been left to her father's friend named
Estanislao Serrano who took care of and raised her from the age 12 until
she reached womanhood. On June 21, 1948, defendant Melchor Solomon
married Alejandria. On the same day of the marriage but before the
marriage ceremony he executed the alleged Deed of Donation, Exhibit "A"
above reproduced. Less than nine months after marriage, or rather on
March 2, 1949, Alejandria died without issue. Several months thereafter
Estanislao Serrano commenced the present action to enforce and
implement the terms of the alleged donation particularly that portion
thereof to the effect that if Alejandria died before her husband Melchor
and left no children, then one half of Melchor's properties and those
acquired by him and his wife would be given to those persons who had
raised and taken care of her namely, Estanislao Serrano.
Acting upon the motion for dismissal the trial court found that the
donation could not be regarded as a donationpropter nuptias for the
reason that though it was executed before the marriage, it was not made
in consideration of the marriage and, what is more important, that the
donation was not made to one or both of the (marriage) contracting
parties, but to a third person.
After a careful study of the case, we fully agree with the trial court. Article
1327 of the Old Civil Code reads:
Art. 1327. Donations by reasons of marriage are those bestowed
before its celebration in consideration of the same, upon one or
both of the spouses.
This article was reproduced in the Civil Code under Article 126. Whether
we apply Article 1327 for the reason that the document Exhibit "A" was
executed in 1948 before the promulgation of the New Civil Code in 1950 or
whether we apply Article 126 of the New Civil Code the result would be the
same.
Was the donation made in considerations of the marriage between
Melchor and Alejandria or was it made consideration of the death of either
of them in the absence of any children? True, the Deed of Donation was
executed on the occasion when they married. But, the marriage in itself
was not the only consideration or condition under which terms of the
donation would be carried out. The marriage would have to be childless
and one of the spouses would have to die before the other before the
donation would operate. So, strictly, speaking, the donation may not be
regarded as one made in consideration of the marriage.
But assuming for the moment that it was made in consideration of the
marriage, still, we have the fact that the donation was being made not in
favor of Alejandria, the wife, but rather in favor of those who acted as her
parents and raised her from girlhood to womanhood in the absence of her
father. That does not place it within the provisions of Article 1327 and
Article 126 of the Old Civil Code and the New Civil Code, respectively.
Manresa, in his commentary on Article 1327 of the Civil Code says the
following:
Donations excluded are those (1) made in favor of the spouses
after the celebration of marriage; (2) executed in favor of the
future spouses but not in consideration of the marriage; and
(3) granted to persons other than the spouses even though they
may be founded on the marriage (6 M. 232).
Having come to the conclusion that the Deed of Donation does not fulfill
the requirements of a donation  propter nuptias and that it might be
considered a donation inter vivos, can it be considered valid and effective?
Hardly, because it was never accepted by the donee either in the same
instrument or donation or in a separate document as required by law.
Again, may the donation be regarded a donation mortis causa, and given
effect? The answer has to be in the negative for the reason that this
Tribunal has heretofore consistently held that a donation to take effect
after the death of the donor, is equivalent to a disposition or bequest of
property by last will, an it should be executed in accordance with the
requisites and strict provisions governing the execution wills;1 and Exhibit
"A" does not fulfill said requirements. Moreover, in the present case, the
donor is still alive and naturally, even if the donation were otherwise valid,
still, the time and occasion have not arrived for considering its operation
and implementation.
In view of the foregoing, the appealed decision is hereby affirmed, with
costs.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Concepcion, Endencia and
Barrera, JJ., concur.
ARTICLE 86
G.R. No. 116668 July 28, 1997
ERLINDA A. AGAPAY, petitioner, 
vs.
CARLINA (CORNELIA) V. PALANG and HERMINIA P. DELA
CRUZ, respondents.
ROMERO, J.:
Before us is a petition for review of the decision of the Court of
Appeals in CA-G.R. CV No. 24199 entitled "Erlinda Agapay v.
Carlina (Cornelia) Palang and Herminia P. Dela Cruz" dated June
22, 1994 involving the ownership of two parcels of land acquired
during the cohabitation of petitioner and private respondent's
legitimate spouse.
Miguel Palang contracted his first marriage on July 16, 1949
when he took private respondent Carlina (or Cornelia) Vallesterol
as a wife at the Pozorrubio Roman Catholic Church in
Pangasinan. A few months after the wedding, in October 1949,
he left to work in Hawaii. Miguel and Carlina's only child, Herminia
Palang, was born on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines
was in 1964 and during the entire duration of his year-long
sojourn he stayed in Zambales with his brother, not in
Pangasinan with his wife and child. The trial court found evidence
that as early as 1957, Miguel had attempted to divorce Carlina in
Hawaii.  When he returned for good in 1972, he refused to live
1
with private respondents, but stayed alone in a house in
Pozorrubio, Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel contracted
his second marriage with nineteen-year-old Erlinda Agapay,
herein petitioner.  Two months earlier, on May 17, 1973, Miguel
2
and Erlinda, as evidenced by the Deed of Sale, jointly purchased
a parcel of agricultural land located at San Felipe, Binalonan,
Pangasinan with an area of 10,080 square meters. Consequently,
Transfer Certificate of Title No. 101736 covering said rice land
was issued in their names.
A house and lot in Binalonan, Pangasinan was likewise
purchased on September 23, 1975, allegedly by Erlinda as the
sole vendee. TCT No. 143120 covering said property was later
issued in her name.
On October 30, 1975, Miguel and Cornelia Palang executed a
Deed of Donation as a form of compromise agreement to settle
and end a case filed by the latter.  The parties therein agreed to
3
donate their conjugal property consisting of six parcels of land to
their only child, Herminia Palang.
4
Miguel and Erlinda's cohabitation produced a son, Kristopher A.
Palang, born on December 6, 1977. In 1979, Miguel and Erlinda
were convicted of Concubinage upon Carlina's complaint.  Two 5
years later, on February 15, 1981, Miguel died.
On July 11, 1981, Carlina Palang and her daughter Herminia
Palang de la Cruz, herein private respondents, instituted the case
at bar, an action for recovery of ownership and possession with
damages against petitioner before the Regional Trial Court in
Urdaneta, Pangasinan (Civil Case No. U-4265). Private
respondents sought to get back the riceland and the house and
lot both located at Binalonan, Pangasinan allegedly purchased by
Miguel during his cohabitation with petitioner.
Petitioner, as defendant below, contended that while the riceland
covered by TCT No. 101736 is registered in their names (Miguel
and Erlinda), she had already given her half of the property to
their son Kristopher Palang. She added that the house and lot
covered by TCT No. 143120 is her sole property, having bought
the same with her own money. Erlinda added that Carlina is
precluded from claiming aforesaid properties since the latter had
already donated their conjugal estate to Herminia.
After trial on the merits, the lower court rendered its decision on
June 30, 1989 dismissing the complaint after declaring that there
was little evidence to prove that the subject properties pertained
to the conjugal property of Carlina and Miguel Palang. The lower
court went on to provide for the intestate shares of the parties,
particularly of Kristopher Palang, Miguel's illegitimate son. The
dispositive portion of the decision reads.
WHEREFORE, premises considered, judgment is hereby
rendered —
1) Dismissing the complaint, with costs against plaintiffs;
2) Confirming the ownership of defendant Erlinda Agapay
of the residential lot located at Poblacion, Binalonan,
Pangasinan, as evidenced by TCT No. 143120, Lot 290-B
including the old house standing therein;
3) Confirming the ownership of one-half (1/2) portion of
that piece of agricultural land situated at Balisa, San
Felipe, Binalonan, Pangasinan, consisting of 10,080
square meters and as evidenced by TCT No. 101736, Lot
1123-A to Erlinda Agapay;
4. Adjudicating to Kristopher Palang as his inheritance
from his deceased father, Miguel Palang, the one-half
(1/2) of the agricultural land situated at Balisa, San Felipe,
Binalonan, Pangasinan, under TCT No. 101736 in the
name of Miguel Palang, provided that the former
(Kristopher) executes, within 15 days after this decision
becomes final and executory, a quit-claim forever
renouncing any claims to annul/reduce the donation to
Herminia Palang de la Cruz of all conjugal properties of
her parents, Miguel Palang and Carlina Vallesterol
Palang, dated October 30, 1975, otherwise, the estate of
deceased Miguel Palang will have to be settled in another
separate action;
5) No pronouncement as to damages and attorney's fees.
SO ORDERED. 6
On appeal, respondent court reversed the trial court's decision.
The Court of Appeals rendered its decision on July 22, 1994 with
the following dispositive portion;
WHEREFORE, PREMISES CONSIDERED, the appealed
decision in hereby REVERSED and another one entered:
1. Declaring plaintiffs-appellants the owners of the
properties in question;
2. Ordering defendant-appellee to vacate and deliver the
properties in question to herein plaintiffs-appellants;
3. Ordering the Register of Deeds of Pangasinan to
cancel Transfer Certificate of Title Nos. 143120 and
101736 and to issue in lieu thereof another certificate of
title in the name of plaintiffs-appellants.
No pronouncement as to costs. 7
Hence, this petition.
Petitioner claims that the Court of Appeals erred in not sustaining
the validity of two deeds of absolute sale covering the riceland
and the house and lot, the first in favor of Miguel Palang and
Erlinda Agapay and the second, in favor of Erlinda Agapay alone.
Second, petitioner contends that respondent appellate court erred
in not declaring Kristopher A. Palang as Miguel Palang's
illegitimate son and thus entitled to inherit from Miguel's estate.
Third, respondent court erred, according to petitioner, "in not
finding that there is sufficient pleading and evidence that
Kristopher A. Palang or Christopher A. Palang should be
considered as party-defendant in Civil Case No. U-4625 before
the trial court and in CA-G.R. No. 24199. 8
After studying the merits of the instant case, as well as the
pertinent provisions of law and jurisprudence, the Court denies
the petition and affirms the questioned decision of the Court of
Appeals.
The first and principal issue is the ownership of the two pieces of
property subject of this action. Petitioner assails the validity of the
deeds of conveyance over the same parcels of land. There is no
dispute that the transfer of ownership from the original owners of
the riceland and the house and lot, Corazon Ilomin and the
spouses Cespedes, respectively, were valid.
The sale of the riceland on May 17, 1973, was made in favor of
Miguel and Erlinda. The provision of law applicable here is Article
148 of the Family Code providing for cases of cohabitation when
a man and a woman who are not capacitated to marry each other
live exclusively with each other as husband and wife without the
benefit of marriage or under a void marriage. While Miguel and
Erlinda contracted marriage on July 15, 1973, said union was
patently void because the earlier marriage of Miguel and Carlina
was still subsisting and unaffected by the latter's de
facto separation.
Under Article 148, only the properties acquired by both of the
parties through their actual joint contribution of money, property
or industry shall be owned by them in common in proportion to
their respective contributions. It must be stressed that actual
contribution is required by this provision, in contrast to Article 147
which states that efforts in the care and maintenance of the family
and household, are regarded as contributions to the acquisition of
common property by one who has no salary or income or work or
industry. If the actual contribution of the party is not proved, there
will be no co-ownership and no presumption of equal shares. 9
In the case at bar, Erlinda tried to establish by her testimony that
she is engaged in the business of buy and sell and had a sari-
sari store  but failed to persuade us that she actually contributed
10
money to buy the subject riceland. Worth noting is the fact that on
the date of conveyance, May 17, 1973, petitioner was only
around twenty years of age and Miguel Palang was already sixty-
four and a pensioner of the U.S. Government. Considering her
youthfulness, it is unrealistic to conclude that in 1973 she
contributed P3,750.00 as her share in the purchase price of
subject property,  there being no proof of the same.
11
Petitioner now claims that the riceland was bought two months
before Miguel and Erlinda actually cohabited. In the nature of an
afterthought, said added assertion was intended to exclude their
case from the operation of Article 148 of the Family Code. Proof
of the precise date when they commenced their adulterous
cohabitation not having been adduced, we cannot state
definitively that the riceland was purchased even before they
started living together. In any case, even assuming that the
subject property was bought before cohabitation, the rules of co-
ownership would still apply and proof of actual contribution would
still be essential.
Since petitioner failed to prove that she contributed money to the
purchase price of the riceland in Binalonan, Pangasinan, we find
no basis to justify her co-ownership with Miguel over the same.
Consequently, the riceland should, as correctly held by the Court
of Appeals, revert to the conjugal partnership property of the
deceased Miguel and private respondent Carlina Palang.
Furthermore, it is immaterial that Miguel and Carlina previously
agreed to donate their conjugal property in favor of their daughter
Herminia in 1975. The trial court erred in holding that the decision
adopting their compromise agreement "in effect partakes the adjudicated in the instant ordinary civil action which is for
nature of judicial confirmation of the separation of property recovery of ownership and possession." 17

between spouses and the termination of the conjugal

partnership."  Separation of property between spouses during the
12
marriage shall not take place except by judicial order or without
judicial conferment when there is an express stipulation in the
marriage settlements.  The judgment which resulted from the
13
parties' compromise was not specifically and expressly for
separation of property and should not be so inferred.
As regards the third issue, petitioner contends that Kristopher
Palang should be considered as party-defendant in the case at
bar following the trial court's decision which expressly found that
Kristopher had not been impleaded as party defendant but
theorized that he had submitted to the court's jurisdiction through
his mother/guardian ad litem.  The trial court erred gravely.
18

Kristopher, not having been impleaded, was, therefore, not a

With respect to the house and lot, Erlinda allegedly bought the
same for P20,000.00 on September 23, 1975 when she was only
22 years old. The testimony of the notary public who prepared the
deed of conveyance for the property reveals the falsehood of this
claim. Atty. Constantino Sagun testified that Miguel Palang
party to the case at bar. His mother, Erlinda cannot be called his
guardian ad litem for he was not involved in the case at bar.
Petitioner adds that there is no need for Kristopher to file another
action to prove that he is illegitimate son of Miguel, in order to
avoid multiplicity of suits.  Petitioner's grave error has been
19

provided the money for the purchase price and directed that discussed in the preceding paragraph where the need for probate
Erlinda's name alone be placed as the vendee. 14
proceedings to resolve the settlement of Miguel's estate and
Kristopher's successional rights has been pointed out.
The transaction was properly a donation made by Miguel to
Erlinda, but one which was clearly void and inexistent by express WHEREFORE, the instant petition is hereby DENIED. The
provision of law because it was made between persons guilty of questioned decision of the Court of Appeals is AFFIRMED. Costs
adultery or concubinage at the time of the donation, under Article against petitioner.
739 of the Civil Code. Moreover, Article 87 of the Family Code
expressly provides that the prohibition against donations between SO ORDERED.
spouses now applies to donations between persons living
together as husband and wife without a valid marriage,  for 15

otherwise, the condition of those who incurred guilt would turn out
to be better than those in legal union.
16

The second issue concerning Kristopher Palang's status and

claim as an illegitimate son and heir to Miguel's estate is here
resolved in favor of respondent court's correct assessment that
the trial court erred in making pronouncements regarding
Kristopher's heirship and filiation "inasmuch as questions as to
who are the heirs of the decedent, proof of filiation of illegitimate
children and the determination of the estate of the latter and
claims thereto should be ventilated in the proper probate court or
in a special proceeding instituted for the purpose and cannot be
ARTICLE 87
G.R. No. L-12707            August 10, 1918
MRS. HENRY E. HARDING, and her husband, plaintiffs-
appellees, 
vs.
COMMERCIAL UNION ASSURANCE COMPANY, defendant-
appellant.
Lawrence & Ross for appellant.
Gibbs, McDonough & Johnson for appellees.
FISHER, J.:
This was an action by plaintiffs to recover from defendant the sum
of P3,000 and interest, alleged to be due under the terms of a
policy of insurance. The trial court gave plaintiffs judgment for the
amount demanded, with interest and costs, and from that
decision the defendant appeals.
The court below stated the issues made by the pleadings in this
case, and its finding of fact, as follows:
It is alleged by plaintiffs and admitted by defendant that
plaintiffs are husband and wife and residents of the city of
Manila; that the defendant is a foreign corporation
organized and existing under and by virtue of the laws of
Great Britain and duly registered in the Philippine Islands,
and Smith, Bell & Co. (limited), a corporation organized
and existing under the laws of the Philippine Islands, with
its principal domicile in the city of Manila, is the agent in
the Philippine Islands of said defendant.
The plaintiffs alleged that on February 16, 1916, the
plaintiff Mrs. Henry E. Harding was the owner of a
Studebaker automobile, registered number 2063, in the
city of Manila; that on said date; in consideration of the
payment to the defendant of the premium of P150, by
said plaintiff, Mrs. Henry E. Harding, with the consent of
her husband, the defendant by its duly authorized agent,
Smith, Bell & Company (limited), made its policy of
insurance in writing upon said automobile was set forth in
said policy to be P3,000 that the value of said automobile
was set forth in said policy (Exhibit A) to be P3,000; that
on March 24, 1916, said automobile was totally destroyed
by fire; that the loss thereby to plaintiffs was the sum of
P3,000; that thereafter, within the period mentioned in the
said policy of insurance, the plaintiff, Mrs. Henry E.
Harding, furnished the defendant the proofs of her said
loss and interest, and otherwise performed all the
conditions of said policy on her part, and that the
defendant has not paid said loss nor any part thereof,
although due demand was made upon defendant
therefor.
The defendant, by its answer, admitted the allegations of
the residence and status of the parties and denied all the
other allegation of the said complaint, and for a separate
and affirmative defense alleged (1) that on February 17,
1916, at the city of Manila, P.I. the defendant upon
request of plaintiff, Mrs. Henry E. Harding, issued to the
said plaintiff the policy of insurance on an automobile
alleged by the said plaintiff to be her property; that the
said request for the issuance of said policy of insurance
was made by means of a proposal in writing signed and
delivered by said plaintiff to the defendant, guaranteeing
the truth of the statements contained therein which said
proposal is referred to in the said policy of insurance
made a part thereof; (2) that certain of the statements and
representations contained in said proposal and warranted
by said plaintiff to be true, to wit: (a) the price paid by the
proposer for the said automobile; (b) the value of said
automobile at the time of the execution and delivery of the
said proposal and (c) the ownership of said automobile,
were false and known to be false by the said plaintiff at
the time of signing and delivering the said proposal and
were made for the purpose of misleading and deceiving
the defendant, and inducing the defendant, relying upon
the warranties, statements, and representations
contained in the said proposal and believing the same to
be true, issued the said policy of insurance.
The defendant prays that judgment be entered declaring
the said policy of insurance to be null and void, and that
plaintiffs take nothing by this action; and for such further
relief as to the court may seem just and equitable.
The evidence in this case shows that some time in the
year 1913 Levy Hermanos, the Manila agents for the
Studebaker automobile, sold the automobile No. 2063 to
John Canson for P3,200 (testimony of Mr. Diehl); that
under date of October 14, 1914, John Canson sold the
said automobile to Henry Harding for the sum of P1,500
(Exhibit 2); that under date of November 19, 1914, the
said Henry Harding sold the said automobile No. 2063 to
J. Brannigan, of Los Baños, Province of Laguna, P.I., for
the sum of P2,000 (Exhibit 3); that under date of
December 20, 1915, J. C. Graham of Los Baños,
Province of Laguna, P.I., sold the said automobile No.
2063 to Henry Harding of the city of Manila for the sum of
P2,800 (Exhibit 4 and testimony of J. C. Graham); that on
or about January 1, 1916, the said Henry Harding gave
the said automobile to his wife; Mrs. Henry E. Harding,
one of the plaintiffs, as a present; that said automobile
was repaired and repainted at the Luneta Garage at a
cost of some P900 (testimony of Mr. Server); that while
the said automobile was at the Luneta Garage; the said
Luneta Garage, acting as agent for Smith, Bell &
Company, (limited), solicited of the plaintiff Mrs. Harding
the insurance of said automobile by the defendant
Company (testimony of Mrs. Henry Harding and Mr.
Server); that a proposal was filled out by the said agent
and signed by the plaintiff Mrs. Henry E. Harding, and in
said proposal under the heading "Price paid by proposer,"
is the amount of "3,500" and under another heading
"Present value" is the amount of "3,000" (Exhibit 1).
The evidence tends to show that after the said proposal
was made a representative of the Manila agent of
defendant went to the Luneta Garage and examined said
automobile No. 2063 and Mr. Server, the General
Manager of the Luneta Garage, an experienced
automobile mechanic, testified that at the time this
automobile was insured it was worth about P3,000, and
the defendant, by and through its said agent Smith, Bell &
Company (limited), thereafter issued a policy of insurance
upon proposal in which policy the said automobile was
described as of the "present value" of P3,000 and the said
defendant charged the said plaintiff Mrs. Henry E. Harding
as premium on said policy the sum of P150, or 5 per cent
of the then estimated value of P3,000. (Exhibit A.)
The "Schedule" in said policy of insurance describes the
automobile here in question, and provides in part of
follows:
"Now it is hereby agreed as follows:
"That during the period above set forth and during
any period for which the company may agree to
renew this policy the company will subject to the
exception and conditions contained herein or
endorsed hereon indemnify the insured against
loss of or damage to any motor car described in
the schedule hereto (including accessories) by
whatever cause such loss or damage may be
occasioned and will further indemnify the insured
up to the value of the car or P3,000 whichever is
the greater against any claim at common law
made by any person (not being a person in the
 said motor car nor in the insured's service) for
loss of life or for accidental bodily injury or
damage to property caused by the said motor car
including law costs payable in connection with
such claim when incurred with the consent of the
company."
The evidence further shows that on March 24, 1916, the
said automobile was totally destroyed by fire, and that the
iron and steel portions of said automobile which did not
burn were taken into the possession of the defendant by
and through its agent Smith, Bell & Company (limited),
and sold by it for a small sum, which had never been
tendered to the plaintiff prior to the trial of this case, but in
open court during the trial the sum of P10 as the
proceeds of such sale was tendered to plaintiff and
refused.
Upon the facts so found, which we hold are supported by the
evidence, the trial judge decided that there was no proof of fraud
on the part of plaintiff in her statement of the value of the
automobile, or with respect to its ownership; that she had an
insurable interest therein; and that defendant, having agreed to
the estimated value, P3,000, and having insured the automobile
for that amount, upon the basis of which the premium was paid, is
bound by it and must pay the loss in accordance with the
stipulated insured value. The assignments of error made on
behalf of appellant put in issue the correctness of those
conclusions of law, and some others of minor importance relating
to the exclusion of evidence. Disposing of the minor objections
first, as we have reached the conclusion that the trial court was
right in holding that the defendant is bound by the estimated
value of the automobile upon which policy was issued, and that
the plaintiff was not guilty of fraud in regard thereto, the exclusion
of the testimony of the witness Diehl is without importance. It
merely tended to show the alleged actual value of the automobile,
and in the view we take of the case such evidence was irrelevant.
Appellant contends that Mrs. Harding was not the owner of the
automobile at the time of the issuance of the policy, and,
therefore, had no insurable interest in it. The court below found
that the automobile was given to plaintiff by her husband shortly
after the issuance of the policy here in question. Appellant does
not dispute the correctness of this finding, but contends that the
gift was void, citing article 1334 of the Civil Code which provides
that "All gifts between spouses during the marriage shall be void.
Moderate gifts which the spouses bestow on each other on
festive days of the family are not included in this rule."
We are of the opinion that this contention is without merit. In the
case of Cook vs. McMicking 27 Phil. Rep., 10), this court said:
It is claimed by the appellants that the so-called transfer
from plaintiff's husband to her was completely void under
article 1458 of the Civil Code and that, therefore, the
property still remains the property of Edward Cook and
subject to levy under execution against him.
In our opinion the position taken by appellants is
untenable. They are not in a position to challenge the
validity of the transfer, if it may be called such. They bore
absolutely no relation to the parties to the transfer at the
time it occurred and had no rights or interests inchoate,
present, remote, or otherwise, in the property in question
at the time the transfer occurred. Although certain
transfers from husband to wife or from wife to husband
are prohibited in the article referred to, such prohibition
can be taken advantage of only by persons who bear
such a relation to the parties making the transfer or to the
property itself that such transfer interferes with their rights
or interests. Unless such a relationship appears the
transfer cannot be attacked.
Even assuming that defendant might have invoked article 1334
as a defense, the burden would be upon it to show that the gift in
question does not fall within the exception therein established.
We cannot say, as a matter of law, that the gift of an automobile
by a husband to his wife is not a moderate one. Whether it is or is
not would depend upon the circumstances of the parties, as to
which nothing is disclosed by the record.
Defendant contends that the statement regarding the cost of the
automobile was a warranty, that the statement was false, and
that, therefore, the policy never attached to the risk. We are of the
opinion that it has not been shown by the evidence that the
statement was false — on the contrary we believe that it shows
that the automobile had in fact cost more than the amount
mentioned. The court below found, and the evidence shows, that
the automobile was bought by plaintiff's husband a few weeks
before the issuance of the policy in question for the sum of
P2,800, and that between that time and the issuance of the policy
some P900 was spent upon it in repairs and repainting. The
witness Server, an expert automobile mechanic, testified that the
automobile was practically as good as new at the time the
insurance was effected. The form of proposal upon which the
policy was issued does not call for a statement regarding the
value of the automobile at the time of its acquisition by the
applicant for the insurance, but merely a statement of its cost.
The amount stated was less than the actual outlay which the
automobile represented to Mr. Harding, including repairs, when
the insurance policy was issued. It is true that the printed form
calls for a statement of the "price paid by the proposer," but we
are of the opinion that it would be unfair to hold the policy void
simply because the outlay represented by the automobile was
made by the plaintiff's husband and not by his wife, to whom he
had given the automobile. It cannot be assumed that defendant
should not have issued the policy unless it were strictly true that
the price representing the cost of the machine had been paid by
the insured and by no other person — that it would no event
insure an automobile acquired by gift, inheritance, exchange, or
any other title not requiring the owner to make a specific cash
outlay for its acquisition.
Furthermore, the court below found and the evidence shows,
without dispute, that the proposal upon which the policy in
question was issued was made out by defendant's agent by
whom the insurance was solicited, and that appellee simply
signed the same. It also appears that an examiner employed by
the defendant made an inspection of the automobile before the
acceptance of the risk, and that the sum after this examination.
The trial court found that Mrs. Harding, in fixing the value of the
automobile at P3,000, acted upon information given her by her
husband and by Mr. Server, the manager of the Luneta Garage.
The Luneta Garage, it will be remembered, was the agent of the
defendant corporation in the solicitation of the insurance. Mrs.
Harding did not state of her own knowledge that the automobile
originally cost P3,000, or that its value at the time of the
insurance was P3,000. She merely repeated the information
which had been given her by her husband, and at the same time
disclosed to defendant's agent the source of her information.
There is no evidence to sustain the contention that this
communication was made in bad faith. It appears that the
statements in the proposal as to the price paid for the automobile
and as to its value were written by Mr. Quimby who solicited the
insurance on behalf of defendant, in his capacity as an employee
of the Luneta Garage, and wrote out the proposal for Mrs.
Harding to sign. Under these circumstances, we do not think that
the facts stated in the proposal can be held as a warranty of the
insured, even if it should have been shown that they were
incorrect in the absence of proof of willful misstatement. Under
such circumstance, the proposal is to be regarded as the act of
the insurer and not of the insured. This question was considered
in the case of the Union Insurance Company vs. Wilkinson (13
Wall., 222; 20 L. ed., 617), in which the Supreme Court of the
United States said:
This question has been decided differently by courts of
the highest respectability in cases precisely analogous to
the present. It is not to be denied that the application
logically considered, is the work of the assured, and if left
to himself or to such assistance as he might select, the
person so selected would be his agent, and he alone
would be responsible. On the other hand, it is well-known,
so well that no court would be justified in shutting its eyes
to it, that insurance companies organized under the laws
of one State, and having in that State their principal
business office, send these agents all over the land, with
directions to solicit and procure applications for policies
furnishing them with printed arguments in favor of the
value and necessity of life insurance, and of the special
advantages of the corporation which the agent
represents. They pay these agents large commissions on
the premiums thus obtained, and the policies are
delivered at their hands to the assured. The agents are
stimulated by letters and instructions to activity in
procuring contracts, and the party who is in this manner
induced to take out a policy, rarely sees or knows
anything about the company or its officers by whom it is
issued, but looks to and relies upon the agent who has
persuaded him to effect insurance as the full and
complete representative of the company, in all that is said
or done in making the contract. Has he not a right to so
regard him? It is quite true that the reports of judicial
decisions are filled with the efforts of these companies, by
their counsel, to establish the doctrine for the acts of
these agents to the simple receipt of the premium and
delivery of the policy, the argument being that, as to all
other acts of the agent, he is the agent of the assured.
This proposition is not without support in some of the
earlier decision on the subject; and, at a time when
insurance companies waited for parties to come to them
to seek assurance, or to forward applications on their own
motion, the doctrine had a reasonable foundation to rest
upon. But to apply such a doctrine, in its full force, to the
system of selling policies through agents, which we have
described, would be a snare and a delusion, leading, as it
has done in numerous instances, to the grossest frauds,
of which the insurance corporations receive the benefits,
and the parties supposing themselves insured are the
victims. The tendency of the modern decisions in this
country is steadily in the opposite direction. The powers of
the agent are, prima facie, co-extensive with the business
intrusted to his care, and will not be narrowed by
limitations not communicated to the person with whom he
deals. (Bebee vs. Ins. Co., 25 Conn., 51; Lycoming Ins.
Co. vs. Schoolenberger, 44 Pa., 259; Beal vs. Ins. Co., 16
Wis., 241; Davenport vs. Ins. Co., 17 Iowa, 276.) An
insurance company, establishing a local agency, must be
held responsible to the parties with whom they transact
business, for the acts and declarations of the agent, within
the scope of his employment, as if they proceeded from
the principal. (Sav. Bk. vs. Ins. Co., 31 Conn., 517;
Hortwitz vs.Ins. Co., 40 Mo., 557; Ayres vs. Ins. Co., 17
Iowa, 176; Howard Ins. Co. vs. Bruner, 23 Pa., 50.)
In the fifth edition of American Leading Cases, 917, after
a full consideration of the authorities, it is said:
"By the interested or officious zeal of the agents
employed by the insurance companies in the wish
to outbid each other and procure customers, they
not unfrequently mislead the insured, by a false or
erroneous statement of what the application
should contain; or, taking the preparation of it into
their own hands, procure his signature by an
assurance that it is properly drawn, and will meet
the requirements of the policy. The better opinion
seems to be that, when this course is pursued, the
description of the risk should, though nominally
proceeding from the insured, be regarded as the
act of the insurers." (Rowley vs. Empire Ins. Co.,
36 N.Y., 550.)
The modern decisions fully sustain this proposition, and
they seem to us founded on reason and justice, and meet
our entire approval. This principle does not admit oral
testimony to vary or contradict that which is in writing, but
 it goes upon the idea that the writing offered in evidence
was not the instrument of the party whose name is signed
to it; that it was procured under such circumstances by
the other side as estops that side from using it or relying
on its contents; not that it may be contradicted by oral
testimony, but that it may be shown by such testimony
that it cannot be lawfully used against the party whose
name is signed to it. (See also Am. Life Ins.
Co. vs. Mahone, 21 Wallace, 152.)
The defendant, upon the information given by plaintiff, and after
an inspection of the automobile by its examiner, having agreed
that it was worth P3,000, is bound by this valuation in the
absence of fraud on the part of the insured. All statements of
value are, of necessity, to a large extent matters of opinion, and it
would be outrageous to hold that the validity of all valued policies
must depend upon the absolute correctness of such estimated
value. As was said by the Supreme Court of the United States in
the case of the First National Bank vs. Hartford Fire Insurance
Co. (5 Otto, 673; 24 L. ed., 563), at. p. 565 of the Lawyers
Edition:
The ordinary test of the value of property is the price it will
commend in the market if offered for sale. But that test
cannot, in the very nature of the case, be applied at the
time application is made for insurance. Men may honestly
differ about the value of property, or as to what it will bring
in the market; and such differences are often very marked
among those whose special business it is to buy and sell
property of all kinds. The assured could do no more than
estimate such value; and that, it seems, was all that he
was required to do in this case. His duty was to deal fairly
with the Company in making such estimate. The special
finding shows that he discharged that duty and observed
good faith. We shall not presume that the Company, after
requiring the assured in his application to give the
"estimated value," and then to covenant that he had
stated all material facts in regard to such value, so far as
known to him, and after carrying that covenant, by
express words, into the written contract, intended to
abandon the theory upon which it sought the contract,
and make the absolute correctness of such estimated
value a condition precedent to any insurance whatever.
The application, with its covenant and stipulations, having
been made a part of the policy, that presumption cannot
be indulged without imputing to the Company a purpose,
by studied intricacy or an ingenious framing of the policy,
to entrap the assured into incurring obligations which,
perhaps, he had no thought of assuming.
Section 163 of the Insurance Law (Act No. 2427) provides that
"the effect of a valuation in a policy of fire insurance is the same
as in a policy of marine insurance."
By the terms of section 149 of the Act cited, the valuation in a
policy of marine insurance is conclusive if the insured had an
insurable interest and was not guilty of fraud.
We are, therefore, of the opinion and hold that plaintiff was the
owner of the automobile in question and had an insurable interest
therein; that there was no fraud on her part in procuring the
insurance; that the valuation of the automobile, for the purposes
of the insurance, is binding upon the defendant corporation, and
that the judgment of the court below is, therefore, correct and
must be affirmed, with interest, the costs of this appeal to be paid
by the appellant. So ordered.
ARTICLE 87
[G.R. No. L-28771. March 31, 1971.]
CORNELIA MATABUENA, Plaintiff-Appellant, v. PETRONILA
CERVANTES, Defendant-Appellee.
Alegre, Roces, Salazar & Sañez, for Plaintiff-Appellant.
Fernando Gerona, Jr., for Defendant-Appellee.
SYLLABUS
1. CIVIL LAW; PROPERTY RELATIONS BETWEEN HUSBAND
AND WIFE; DONATIONS BY REASON OF MARRIAGE;
PROHIBITION AGAINST DONATION BETWEEN SPOUSES
DURING MARRIAGE; APPLICABLE TO COMMON LAW
RELATIONSHIP. — While Art. 133 of the Civil Code
considers as void a "donation between the spouses
during the marriage", policy considerations of the most
exigent character as well as the dictates of morality
require that the same prohibition should apply to a
common-law relationship. A 1954 Court of Appeals
decision Buenaventura v. Bautista, (50 O.G. 3679)
interpreting a similar provision of the old Civil Code
speaks unequivocally. If the policy of the law is, in the
language of the opinion of the then Justice J.B.L. Reyes of
that Court, "to prohibit donations in favor of the other
consort and his descendants because of fear of undue
and improper pressure and influence upon the donor, a
prejudice deeply rooted in our ancient law; ‘porque no se
engañen despojandose el uno al otro por amor que han
de consuno,’ [according to] the Partidas (Part. IV, Tit. Xl,
LAW IV), reiterating the rationale ‘Ne mutuato amore
invicem spoliarentur’ of the Pandects (Bk 24, Tit. I, De
donat, inter virum et uxorem); then there is every reason
to apply the same prohibitive policy to persons living
together as husband and wife without benefit of nuptials.
For it is not to be doubted that assent to such irregular
connection for thirty years bespeaks greater influence of
one party over the other, so that the danger that the law
seeks to avoid is correspondingly increased. Moreover, as
already pointed out by Ulpian (in his lib. 32 ad Sabinum,
fr. 1), it would not be just that such donations should
subsist lest the condition of those who incurred guilt
should turn out to be better. So long as marriage remains
the cornerstone of our family law, reason and morality
alike demand that the disabilities attached to marriage
should likewise attach to concubinage.
2. ID.; SUCCESSION; INTESTATE SUCCESSION; SURVIVING
SPOUSE; RULE WHERE A SISTER SURVIVES WITH THE
WIDOW. — The lack of validity of the donation made b~
the deceased to defendant Petronila Cervantes does not
necessarily result in plaintiff having exclusive right to the
disputed property. Prior to the death of Felix Matabuena,
the relationship between him and the defendant was
legitimated by their marriage on March 28. 1962. She is
therefore his widow. As provided in the Civil Code, she is
entitled to one-half of the inheritance and the plaintiff, as
the surviving sister to the other half.
DECISION
FERNANDO, J.:
A question of first impression is before this Court in this
litigation. We are called upon to decide whether the ban
on a donation between the spouses during a marriage
applies to a common-law relationship. 1 The plaintiff, now
appellant Cornelia Matabuena, a sister to the deceased
Felix Matabuena, maintains that a donation made while
he was living maritally without benefit of marriage to
defendant, now appellee Petronila Cervantes, was void.
Defendant would uphold its validity. The lower court,
after noting that it was made at a time before defendant
was married to the donor, sustained the latter’s stand.
Hence this appeal. The question, as noted, is novel in
character, this Court not having had as yet the
opportunity of ruling on it. A 1954 decision of the Court of
Appeals, Buenaventura v. Bautista, 2 by the then Justice
J. B. L. Reyes, who was appointed to this Court later that
year, is indicative of the appropriate response that should
be given. The conclusion reached therein is that a
donation between common-law spouses falls within the
prohibition and is "null and void as contrary to public
policy." 3 Such a view merits fully the acceptance of this
Court. The decision must be reversed.
In the decision of November 23, 1965, the lower court,
after stating that in plaintiff’s complaint alleging absolute
ownership of the parcel of land in question, she
specifically raised the question that the donation made
by Felix Matabuena to defendant Petronila Cervantes was
null and void under the aforesaid article of the Civil Code
and that defendant on the other hand did assert
ownership precisely because such a donation was made
in 1956 and her marriage to the deceased did not take
place until 1962, noted that when the case was called for
trial on November 19, 1965, there was stipulation of facts
which it quoted. 4 Thus: "The plaintiff and the defendant
assisted by their respective counsels, jointly agree and
stipulate: (1) That the deceased Felix Matabuena owned
the property in question; (2) That said Felix Matabuena
executed a Deed of Donation inter vivos in favor of
Defendant, Petronila Cervantes over the parcel of land in
question on February 20, 1956, which same donation was
accepted by defendant; (3) That the donation of the land
to the defendant which took effect immediately was
made during the common law relationship as husband
and wife between the defendant-done and the now
deceased donor and later said donor and done were
married on March 28, 1962; (4) That the deceased Felix
Matabuena died intestate on September 13, 1962; (5)
That the plaintiff claims the property by reason of being
the only sister and nearest collateral relative of the
deceased by virtue of an affidavit of self-adjudication
executed by her in 1962 and had the land declared in her
name and paid the estate and inheritance taxes
thereon’" 5 
The judgment of the lower court on the above facts was
adverse to plaintiff. It reasoned out thus: "A donation
under the terms of Article 133 of the Civil Code is void if
made between the spouses during the marriage. When
the donation was made by Felix Matabuena in favor of
the defendant on February 20, 1956, Petronila Cervantes
and Felix Matabuena were not yet married. At that time
they were not spouses. They became spouses only when
they married on March 28, 1962, six years after the deed
of donation had been executed." 6 
We reach a different conclusion. While Art. 133 of the
Civil Code considers as void a "donation between the
spouses during the marriage," policy considerations of
the most exigent character as well as the dictates of
morality require that the same prohibition should apply to
a common-law relationship. We reverse.
1. As announced at the outset of this opinion, a 1954
Court of Appeals decision, Buenaventura v. Bautista, 7
interpreting a similar provision of the old Civil Code 8
speaks unequivocally. If the policy of the law is, in the
language of the opinion of the then Justice J.B.L. Reyes of
that Court, "to prohibit donations in favor of the other
consort and his descendants because of fear of undue
and improper pressure and influence upon the donor, a
prejudice deeply rooted in our ancient law; ‘porque no se
engañen despojandose el uno al otro por amor que han
de consuno [according to] the Partidas (Part IV, Tit. XI,
LAW IV), reiterating the rationale ‘Ne mutuato amore
invicem spoliarentur’ of the Pandects (Bk. 24, Tit. 1, De
donat, inter virum et uxorem); then there is every reason
to apply the same prohibitive policy to persons living
together as husband and wife without the benefit of
nuptials. For it is not to be doubted that assent to such
irregular connection for thirty years bespeaks greater
influence of one party over the other, so that the danger
that the law seeks to avoid is correspondingly increased.
Moreover, as already pointed out by Ulpian (in his lib. 32
ad Sabinum, fr. 1), ‘it would not be just that such
donations should subsist, lest the condition of those who
incurred guilt should turn out to be better.’ So long as
marriage remains the cornerstone of our family law,
reason and morality alike demand that the disabilities
attached to marriage should likewise attach to
concubinage." 9  plaintiff and defendant as pro indiviso heirs to the
2. It is hardly necessary to add that even in the absence
of the above pronouncement, any other conclusion
cannot stand the test of scrutiny. It would be to indict the
framers of the Civil Code for a failure to apply a laudable
rule to a situation which in its essentials cannot be
distinguished. Moreover, if it is at all to be differentiated,
the policy of the law which embodies a deeply-rooted
notion of what is just and what is right would be nullified
if such irregular relationship instead of being visited with
disabilities would be attended with benefits. Certainly a
legal norm should not be susceptible to such a reproach.
If there is ever any occasion where the principle of
statutory construction that what is within the spirit of the
law is as much a part of it as what is written, this is it.
Otherwise the basic purpose discernible in such codal
provision would not be attained. Whatever omission may
be apparent in an interpretation purely literal of the
language used must be remedied by an adherence to its
avowed objective. In the language of Justice Pablo: "El
espiritu que informa la ley debe ser la luz que ha de guiar
a los tribunales en la aplicación de sus disposiciones.’’
10 
3. The lack of validity of the donation made by the
deceased to defendant Petronila Cervantes does not
necessarily result in plaintiff having exclusive right to the
disputed property. Prior to the death of Felix Matabuena,
the relationship between him and the defendant was
legitimated by their marriage on March 28, 1962. She is
therefore his widow. As provided for in the Civil Code, she
is entitled to one-half of the inheritance and the plaintiff,
as the surviving sister, to the other half. 11 
WHEREFORE, the lower court decision of November 23,
1965 dismissing the complaint with costs is reversed. The
questioned donation is declared void, with the rights of
property in question recognized. The case is remanded to
the lower court for its appropriate disposition in
accordance with the above opinion. Without
pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal,
Zaldivar, Castro, Barredo, Villamor and Makasiar, JJ.,
concur.
Teehankee, J, took no part.