person cases art 11-35

7/27/2019 Person Cases Art 11-35

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SECOND DIVISION

[G.R. No. 103047. September 2, 1994.]

REPUBLIC OF THE PHILIPPINES, petitioner,vs. COURTOF APPEALS AND ANGELINA M. CASTRO, respondents.

SYLLABUS

1.CIVIL LAW; PERSONS AND FAMILY RELATIONS; MARRIAGE;REQUISITES; ABSENCE; EFFECT. At the time the subject marriage was

solemnized on June 24, 1970, the law governing marital relations was the New Civil

Code. The law provides that no marriage shall be solemnized without a marriage

license first issued by a local civil registrar. Being one of the essential requisites of a

valid marriage, absence of a license would render the marriage void ab initio.

2.REMEDIAL LAW; EVIDENCE; PROOF OF LACK OF RECORD; EFFECT;

CASE AT BAR. Section 29, Rule 132 of the Rules of Court, authorized the

custodian of documents to certify that despite diligent search, a particular document

does not exist in his office or that a particular entry of a specified tenor was not to be

found in a register. As custodians of public documents, civil registrars are public

officers charged with the duty, inter alia, of maintaining a register book where theyare required to enter all applications for marriage licenses, including the names of the

applicants, the date the marriage license was issued and such other relevant data. The

certification of "due search and inability to find" issued by the civil registrar of Pasig

enjoys probative value, he being the officer charged under the law to keep a record of

all data relative to the issuance of a marriage license. Unaccompanied by any

circumstance of suspicion and pursuant to Section 29, Rule 132 of the Rules of Court,

a certificate of "due search and inability to find" sufficiently proved that his office did

not issue marriage license no. 3196182 to the contracting parties.

3.ID.; ID.; TESTIMONY OF THE PETITIONER; WHEN CORROBORATING

TESTIMONY NOT NECESSARY; CASE AT BAR. The fact that private

respondent Castro offered only her testimony in support of her petition is, in itself, not

a ground to deny her petition. The failure to offer any other witness to corroborate her

testimony is mainly due to the peculiar circumstances of the case. It will be

remembered that the subject marriage was a civil ceremony performed by a judge of a

city court. The subject marriage is one of those commonly known as a "secret

marriage" a legally non-existent phrase but ordinarily used to refer to a civil

marriage celebrated without the knowledge of the relatives and/or friends of either or

both of the contracting parties. The records show that the marriage between Castro and

Cardenas was initially unknown to the parents of the former. Surely, the fact that only

private respondent Castro testified during the trial cannot be held against her. Her

husband, Edwin F. Cardenas, was dully served with notice of the proceedings and a

copy of the petition. Despite receipt thereof, he chose to ignore the same. For failure to

answer, he was properly declared in default. Private respondent cannot be faulted for

her husband's lack of interest to participate in the proceedings. There was absolutely

no evidence on record to show that there was collusion between private respondent

and her husband Cardenas.

D E C I S I O N

PUNO,Jp:

The case at bench originated from a petition filed by private respondent Angelina M.

Castro in the Regional Trial Court of Quezon City seeking a judicial declaration of

nullity of her marriage to Edwin F. Cardenas.1As ground therefor, Castro claims thatno marriage license was ever issued to them prior to the solemnization of their

marriage. LLjur

Despite notice, defendant Edwin F. Cardenas failed to file his answer. Consequently,

he was declared in default. Trial proceeded in his absence.

The controlling facts are undisputed:

On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas were married in a civil

ceremony performed by Judge Pablo M. Malvar, City Court Judge of Pasay City. The

marriage was celebrated without the knowledge of Castro's parents. Defendant

Cardenas personally attended to the processing of the documents required for the

celebration of the marriage, including the procurement of the marriage license. In fact,

the marriage contract itself states that marriage license no. 3196182 was issued in the

name of the contracting parties on June 24, 1970 in Pasig, Metro Manila.

The couple did not immediately live together as husband and wife since the marriage

was unknown to Castro's parents. Thus, it was only in March 1971, when Castrodiscovered she was pregnant, that the couple decided to live together. However, their

cohabitation lasted only for four (4) months. Thereafter, the couple parted ways. On

October 19, 1971, Castro gave birth. The baby was adopted by Castro's brother, with

the consent of Cardenas.

The baby is now in the United States. Desiring to follow her daughter, Castro wanted

to put in order her marital status before leaving for the States. She thus consulted a

lawyer, Atty. Frumencio E. Pulgar, regarding the possible annulment of her marriage.

Through her lawyer's efforts, they discovered that there was no marriage license issued

to Cardenas prior to the celebration of their marriage.

As proof, Angelina Castro offered in evidence a certification from the Civil Registerof Pasig, Metro Manila. It reads:
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"February 20, 1987

"TO WHOM IT MAY CONCERN:

This is to certify that the names EDWIN F. CARDENAS and

ANGELINA M. CASTRO who were allegedly married in the

Pasay City Court on June 21, 1970 under an alleged

(s)upportive marriage license no. 3196182 allegedly issued in the

municipality on June 20, 1970 cannot be located as said license

no. 3196182 does not appear from our records.

Issued upon request of Mr. Ed Atanacio

(Sgd.) CENONA D.

QUINTOS

Senior Civil Registry

Officer"

Castro testified that she did not go to the civil registrar of Pasig on or before June 24,

1970 in order to apply for a license. Neither did she sign any application therefor. She

affixed her signature only on the marriage contract on June 24, 1970 in PasayCity. LexLib

The trial court denied the petition.2It held that the above certification was inadequateto establish the alleged non-issuance of a marriage license prior to the celebration of

the marriage between the parties. It ruled that the "inability of the certifying official to

locate the marriage license is not conclusive to show that there was no marriage

license issued."

Unsatisfied with the decision, Castro appealed to respondent appellate court. She

insisted that the certification from the local civil registrar sufficiently established the

absence of a marriage license.

As stated earlier, respondent appellate court reversed the Decision of the trial

court.3It declared the marriage between the contracting parties null and void anddirected the Civil Registrar of Pasig to cancel the subject marriage contract.

Hence this petition for review on certiorari.

Petitioner Republic of the Philippines urges that respondent appellate court erred when

it ruled that the certification issued by the civil registrar that marriage license no.

3196182 was not in their record adequately proved that no such license was ever

issued. Petitioner also faults the respondent court for relying on the self-serving and

uncorroborated testimony of private respondent Castro that she had no part in theprocurement of the subject marriage license. Petitioner thus insists that the

certification and the uncorroborated testimony of private respondent are insufficient to

overthrow the legal presumption regarding the validity of a marriage. prLL

Petitioner also points that in declaring the marriage between the parties as null and

void, respondent appellate court disregarded the presumption that the solemnizing

officer, Judge Pablo M. Malvar, regularly performed his duties when he attested in the

marriage contract that marriage license no. 3196182 was duly presented to him before

the solemnization of the subject marriage.

The issues, being interrelated, shall be discussed jointly.

The core issue presented by the case at bench is whether or not the documentary and

testimonial evidence presented by private respondent are sufficient to establish that no

marriage license was issued by the Civil Registrar of Pasig prior to the celebration of

the marriage of private respondent to Edwin F. Cardenas.

We affirm the impugned Decision.

At the time the subject marriage was solemnized on June 24, 1970, the law governing

marital relations was the New Civil Code. The law4provides that no marriage shallbe solemnized without a marriage license first issued by a local civil registrar. Beingone of the essential requisites of a valid marriage, absence of a license would render

the marriage void ab initio.5

Petitioner posits that the certification of the local civil registrar of due search and

inability to find a record or entry to the effect that marriage license no. 3196182 was

issued to the parties is not adequate to prove its non-issuance. cdphil

We hold otherwise. The presentation of such certification in court is sanctioned

by Section 29, Rule 132 of the Rules of Court, viz:

"Sec. 29.Proof of lack of record.

A written statement signed byan officer having custody of an official record or by his deputy,

that after diligent search, no record or entry of a specified tenor is

found to exist in the records of his office, accompanied by a

certificate as above provided, is admissible as evidence that the

records of his contain no such record or entry."

The above Rule authorized the custodian of documents to certify that despite diligent

search, a particular document does not exist in his office or that a particular entry of a

specified tenor was not to be found in a register. As custodians of public documents,civil registrars are public officers charged with the duty, inter alia, of maintaining a

register book where they are required to enter all applications for marriage licenses,

including the names of the applicants, the date the marriage license was issued andsuch other relevant data.6
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The certification of "due search and inability to find" issued by the civil registrar of

Pasig enjoys probative value, he being the officer charged under the law to keep a

record of all data relative to the issuance of a marriage license. Unaccompanied by any

circumstance of suspicion and pursuant to Section 29, Rule 132 of the Rules of Court,

a certificate of "due search and inability to find" sufficiently proved that his office did

not issue marriage license no. 3196182 to the contracting parties.

The fact that private respondent Castro offered only her testimony in support of her

petition is, in itself, not a ground to deny her petition. The failure to offer any other

witness to corroborate her testimony is mainly due to the peculiar circumstances of the

case. It will be remembered that the subject marriage was a civil ceremony performed

by a judge of a city court. The subject marriage is one of those commonly known as a

"secret marriage" a legally non-existent phrase but ordinarily used to refer to a civil

marriage celebrated without the knowledge of the relatives and/or friends of either or

both of the contracting parties. The records show that the marriage between Castro and

Cardenas was initially unknown to the parents of the former. llcd

Surely, the fact that only private respondent Castro testified during the trial cannot be

held against her. Her husband, Edwin F. Cardenas, was duly served with notice of theproceedings and a copy of the petition. Despite receipt thereof, he chose to ignore the

same. For failure to answer, he was properly declared in default. Private respondent

cannot be faulted for her husband's lack of interest to participate in the proceedings.

There was absolutely no evidence on record to show that there was collusion between

private respondent and her husband Cardenas.

It is noteworthy to mention that the finding of the appellate court that the marriage

between the contracting parties is null and void for lack of a marriage license does not

discount the fact that indeed, a spurious marriage license, purporting to be issued by

the civil registrar of Pasig, may have been presented by Cardenas to the solemnizing

officer. LLphil

In fine, we hold that, under the circumstances of the case, the documentary and

testimonial evidence presented by private respondent Castro sufficiently established

the absence of the subject marriage license.

IN VIEW WHEREOF, the petition is DENIED there being no showing of any

reversible error committed by respondent appellate court.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado andMendoza, JJ., concur.


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FIRST DIVISION

[G.R. No. L-68470. October 8, 1985.]

ALICE REYES VAN DORN, petitioner,vs. HON. MANUELV. ROMILLO, JR., as Presiding Judge of Branch CX,Regional Trial Court of the National Capital Region PasayCity, and RICHARD UPTON, respondents.

D E C I S I O NMELENCIO-HERRERA,Jp:

In this Petition for Certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks

to set aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case

No. 1075-P, issued by respondent Judge, which denied her Motion to Dismiss said

case, and her Motion for Reconsideration of the Dismissal Order, respectively.

The basic background facts are that petitioner is a citizen of the Philippines while

private respondent is a citizen of the United States; that they were married in

Hongkong in 1972; that, after the marriage, they established their residence in the

Philippines; that they begot two children born on April 4, 1973 and December 18,1975, respectively; that the parties were divorced in Nevada, United States, in 1982;

and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.

Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No.

1075-P of the Regional Trial Court, Branch CXV, in Pasay City, stating that

petitioner's business in Ermita, Manila, (the Galleon Shop, for short), is conjugal

property of the parties, and asking that petitioner be ordered to render an accounting of

that business, and that private respondent be declared with right to manage the

conjugal property. Petitioner moved to dismiss the case on the ground that the cause of

action is barred by previous judgment in the divorce proceedings before the Nevada

Court wherein respondent had acknowledged that he and petitioner had "no

community property" as of June 11, 1982. The Court below denied the Motion toDismiss in the mentioned case on the ground that the property involved is located in

the Philippines so that the Divorce Decree has no bearing in the case. The denial is

now the subject of this Certiorari proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not

subject to appeal. Certiorari and Prohibition are neither the remedies to question the

propriety of an interlocutory order of the trial Court. However, when a grave abuse of

discretion was patently committed, or the lower Court acted capriciously and

whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its

supervisory authority and to correct the error committed which, in such a case, is

equivalent to lack of jurisdiction.1Prohibition would then lie since it would be useless

and a waste of time to go ahead with the proceedings.2We consider the petition filedin this case within the exception, and we have given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged

conjugal property in the Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged

conjugal property because of the representation he made in the divorce proceedings

before the American Court that they had no community of property; that the Galleon

Shop was not established through conjugal funds; and that respondent's claim is barred

by prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court

cannot prevail over the prohibitive laws of the Philippines and its declared national

policy; that the acts and declaration of a foreign Court cannot, especially if the same is

contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters

within its jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property

relations between petitioner and private respondent, after their marriage, were upon

absolute or relative community property, upon complete separation of property, or

upon any other regime. The pivotal fact in this case is the Nevada divorce of the

parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over

petitioner who appeared in person before the Court during the trial of the case. It also

obtained jurisdiction over private respondent who, giving his address as No. 381 Bush

Street, San Francisco, California, authorized his attorneys in the divorce case, Karp &

Gradt, Ltd., to agree to the divorce on the ground of incompatibility in the

understanding that there were neither community property nor community

obligations.3As explicitly stated in the Power of Attorney he executed in favor of thelaw firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in

the divorce proceedings:

xxx xxx xxx

"You are hereby authorized to accept service of Summons, to file

an Answer, appear on my behalf and do all things necessary and

proper to represent me, without further contesting, subject to the

following:

"1.That my spouse seeks a divorce on the ground of

incompatibility.

"2.That there is no community of property to be adjudicated by the

Court.
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"3.That there are no community obligations to be adjudicated by

the court.

xxx xxx xxx"4

There can be no question as to the validity of that Nevada divorce in any of the States

of the United States. The decree is binding on private respondent as an American

citizen. For instance, private respondent cannot sue petitioner, as her husband, in any

State of the Union. What he is contending in this case is that the divorce is not validand binding in this jurisdiction, the same being contrary to local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil

Code,5only Philippine nationals are covered by the policy against absolute divorcesthe same being considered contrary to our concept of public policy and morality.

However, aliens may obtain divorces abroad, which may be recognized in the

Philippines, provided they are valid according to their national law.6In this case, thedivorce in Nevada released private respondent from the marriage from the standards of

American law, under which divorce dissolves the marriage. As stated by the Federal

Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

"The purpose and effect of a decree of divorce from the bond ofmatrimony by a court of competent jurisdiction are to change the

existing status or domestic relation of husband and wife, and to

free them both from the bond. The marriage tie, when thus severed

as to one party, ceases to bind either. A husband without a wife, or

a wife without a husband, is unknown to the law. When the law

provides, in the nature of a penalty, that the guilty party shall not

marry again, that party, as well as the other, is still absolutely

freed from the bond of the former marriage."

Thus, pursuant to his national law, private respondent is no longer the husband of

petitioner. He would have no standing to sue in the case below as petitioner's husband

entitled to exercise control over conjugal assets. As he is bound by the Decision of his

own country's Court, which validly exercised jurisdiction over him, and whose

decision he does not repudiate, he is estopped by his own representation before said

Court from asserting his right over the alleged conjugal property. cdll

To maintain, as private respondent does, that, under our laws, petitioner has to be

considered still married to private respondent and still subject to a wife's obligations

under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be

obliged to live together with, observe respect and fidelity, and render support to

private respondent. The latter should not continue to be one of her heirs with possible

rights to conjugal property. She should not be discriminated against in her own

country if the ends of justice are to be served.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to

dismiss the Complaint filed in Civil Case No. 1075-P of his Court.

Without costs.

SO ORDERED.

Teehankee (Chairman), Plana, Relova Gutierrez, Jr., De la Fuente andPatajo,

JJ., concur.
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FIRST DIVISION[G.R. No. 154380. October 5, 2005.]

REPUBLIC OF THE PHILIPPINES, petitioner, vs.CIPRIANO ORBECIDO III, respondent.

D E C I S I O NQUISUMBING, Jp:Given a valid marriage between two Filipino citizens, where one party is later

naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or

her to remarry, can the Filipino spouse likewise remarry under Philippine law?

Before us is a case of first impression that behooves the Court to make a definite

ruling on this apparently novel question, presented as a pure question of law.

In this petition for review, the Solicitor General assails the Decision1 dated May 15,2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and

its Resolution2 dated July 4, 2002 denying the motion for reconsideration. Thecourt a quo had declared that herein respondent Cipriano Orbecido III is capacitated to

remarry. The fallo of the impugned Decision reads:

WHEREFORE, by virtue of the provision of the second paragraph

of Art. 26 of the Family Code and by reason of the divorce decree

obtained against him by his American wife, the petitioner is given

the capacity to remarry under the Philippine Law.

IT IS SO ORDERED.3

The factual antecedents, as narrated by the trial court, are as follows.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the

United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage

was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady

Kimberly V. Orbecido.

In 1986, Cipriano's wife left for the United States bringing along their son Kristoffer.

A few years later, Cipriano discovered that his wife had been naturalized as anAmerican citizen.

Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce

decree and then married a certain Innocent Stanley. She, Stanley and her child by him

currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California.

Cipriano thereafter filed with the trial court a petition for authority to remarry invoking

Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit

in the petition, the court granted the same. The Republic, herein petitioner, through the

Office of the Solicitor General (OSG), sought reconsideration but it was denied.

In this petition, the OSG raises a pure question of law:

WHETHER OR NOT RESPONDENT CAN REMARRY

UNDER ARTICLE 26 OF THE FAMILY CODE4

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable

to the instant case because it only applies to a valid mixed marriage; that is, a marriage

celebrated between a Filipino citizen and an alien. The proper remedy, according tothe OSG, is to file a petition for annulment or for legal separation.5Furthermore, theOSG argues there is no law that governs respondent's situation. The OSG posits that

this is a matter of legislation and not of judicial determination.6

For his part, respondent admits that Article 26 is not directly applicable to his case but

insists that when his naturalized alien wife obtained a divorce decree which

capacitated her to remarry, he is likewise capacitated by operation of law pursuant to

Section 12, Article II of the Constitution.7

At the outset, we note that the petition for authority to remarry filed before the trial

court actually constituted a petition for declaratory relief. In this connection, Section 1,

Rule 63 of the Rules of Court provides:

RULE 63

DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1.Who may file petition Any person interested under a

deed, will, contract or other written instrument, or whose rights

are affected by a statute, executive order or regulation, ordinance,

or other governmental regulation may, before breach or violation

thereof, bring an action in the appropriate Regional Trial Court to

determine any question of construction or validity arising, and for

a declaration of his rights or duties, thereunder.

xxx xxx xxx

The requisites of a petition for declaratory relief are: (1) there must be a justiciable

controversy; (2) the controversy must be between persons whose interests are adverse;
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(3) that the party seeking the relief has a legal interest in the controversy; and (4) that

the issue is ripe for judicial determination.8

This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between

two Filipino citizens where one later acquired alien citizenship, obtained a divorce

decree, and remarried while in the U.S.A. The interests of the parties are also adverse,

as petitioner representing the State asserts its duty to protect the institution of marriage

while respondent, a private citizen, insists on a declaration of his capacity to remarry.

Respondent, praying for relief, has legal interest in the controversy. The issue raised isalso ripe for judicial determination inasmuch as when respondent remarries, litigation

ensues and puts into question the validity of his second marriage.

Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family

Code apply to the case of respondent? Necessarily, we must dwell on how this

provision had come about in the first place, and what was the intent of the legislators

in its enactment?

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No.

209, otherwise known as the "Family Code," which took effect on August 3, 1988.Article 26 thereof states:

All marriages solemnized outside the Philippines in accordance

with the laws in force in the country where they were solemnized,

and valid there as such, shall also be valid in this country, except

those prohibited under Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive

Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the

Family Code. A second paragraph was added to Article 26. As so amended, it now

provides:

ART. 26.All marriages solemnized outside the Philippines in

accordance with the laws in force in the country where they were

solemnized, and valid there as such, shall a lso be valid in this

country, except those prohibited under Articles 35(1), (4), (5) and

(6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is

validly celebrated and a divorce is thereafter validly obtained

abroad by the alien spouse capacitating him or her to remarry, the

Filipino spouse shall have capacity to remarry under Philippine

law. (Emphasis supplied)

On its face, the foregoing provision does not appear to govern the situation presented

by the case at hand. It seems to apply only to cases where at the time of the celebration

of the marriage, the parties are a Filipino citizen and a foreigner. The instant case is

one where at the time the marriage was solemnized, the parties were two Filipino

citizens, but later on, the wife was naturalized as an American citizen and

subsequently obtained a divorce granting her capacity to remarry, and indeed she

remarried an American citizen while residing in the U.S.A.

Noteworthy, in the Report of the Public Hearings9 on the Family Code, the CatholicBishops' Conference of the Philippines (CBCP) registered the following objections toParagraph 2 of Article 26:

1.The rule is discriminatory. It discriminates against those whose

spouses are Filipinos who divorce them abroad. These

spouses who are divorced will not be able to re-marry,

while the spouses of foreigners who validly divorce them

abroad can.

2.This is the beginning of the recognition of the validity of divorce

even for Filipino citizens. For those whose foreign

spouses validly divorce them abroad will also beconsidered to be validly divorced here and can re-marry.

We propose that this be deleted and made into law only

after more widespread consultation. (Emphasis supplied.)

Legislative Intent

Records of the proceedings of the Family Code deliberations showed that the intent of

Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of

the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino

spouse remains married to the alien spouse who, after obtaining a divorce, is no longer

married to the Filipino spouse. AETcSa

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case ofVan Dorn

v. Romillo, Jr.10 The Van Dorn case involved a marriage between a Filipino citizenand a foreigner. The Court held therein that a divorce decree validly obtained by the

alien spouse is valid in the Philippines, and consequently, the Filipino spouse is

capacitated to remarry under Philippine law.

Does the same principle apply to a case where at the time of the celebration of the

marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign

citizenship by naturalization?

The jurisprudential answer lies latent in the 1998 case ofQuita v. Court ofAppeals.11 In Quita, the parties were, as in this case, Filipino citizens when they gotmarried. The wife became a naturalized American citizen in 1954 and obtained a
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divorce in the same year. The Court therein hinted, by way ofobiter dictum, that a

Filipino divorced by his naturalized foreign spouse is no longer married under

Philippine law and can thus remarry.

Thus, taking into consideration the legislative intent and applying the rule of reason,

we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving

parties who, at the time of the celebration of the marriage were Filipino citizens, but

later on, one of them becomes naturalized as a foreign citizen and obtains a divorce

decree. The Filipino spouse should likewise be allowed to remarry as if the other partywere a foreigner at the time of the solemnization of the marriage. To rule otherwise

would be to sanction absurdity and injustice. Where the interpretation of a statute

according to its exact and literal import would lead to mischievous results or

contravene the clear purpose of the legislature, it should be construed according to its

spirit and reason, disregarding as far as necessary the letter of the law. A statute may

therefore be extended to cases not within the literal meaning of its terms, so long as

they come within its spirit or intent.12

If we are to give meaning to the legislative intent to avoid the absurd situation where

the Filipino spouse remains married to the alien spouse who, after obtaining a divorceis no longer married to the Filipino spouse, then the instant case must be deemed as

coming within the contemplation of Paragraph 2 of Article 26. AHDTIE

In view of the foregoing, we state the twin elements for the application of Paragraph 2

of Article 26 as follows:

1.There is a valid marriage that has been celebrated between a

Filipino citizen and a foreigner; and

2.A valid divorce is obtained abroad by the alien spouse

capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration

of the marriage, but their citizenship at the time a valid divorce is obtained abroadby

the alien spouse capacitating the latter to remarry.

In this case, when Cipriano's wife was naturalized as an American citizen, there was

still a valid marriage that has been celebrated between her and Cipriano. As fate would

have it, the naturalized alien wife subsequently obtained a valid divorce capacitating

her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article

26 are both present in this case. Thus Cipriano, the "divorced" Filipino spouse, should

be allowed to remarry.

We are also unable to sustain the OSG's theory that the proper remedy of the Filipino

spouse is to file either a petition for annulment or a petition for legal separation.

Annulment would be a long and tedious process, and in this particular case, not even

feasible, considering that the marriage of the parties appears to have all the badges of

validity. On the other hand, legal separation would not be a sufficient remedy for it

would not sever the marriage tie; hence, the legally separated Filipino spouse would

still remain married to the naturalized alien spouse.

However, we note that the records are bereft of competent evidence duly submitted byrespondent concerning the divorce decree and the naturalization of respondent's wife.

It is settled rule that one who alleges a fact has the burden of proving it and mere

allegation is not evidence.13

Accordingly, for his plea to prosper, respondent herein must prove his allegation that

his wife was naturalized as an American citizen. Likewise, before a foreign divorce

decree can be recognized by our own courts, the party pleading it must prove the

divorce as a fact and demonstrate its conformity to the foreign law allowing

it.14 Such foreign law must also be proved as our courts cannot take judicial notice offoreign laws. Like any other fact, such laws must be alleged and

proved.15Furthermore, respondent must also show that the divorce decree allows his

former wife to remarry as specifically required in Article 26. Otherwise, there wouldbe no evidence sufficient to declare that he is capacitated to enter into another

marriage.

Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the

Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to

allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign

citizenship and remarried, also to remarry. However, considering that in the present

petition there is no sufficient evidence submitted and on record, we are unable to

declare, based on respondent's bare allegations that his wife, who was naturalized as an

American citizen, had obtained a divorce decree and had remarried an American, that

respondent is now capacitated to remarry. Such declaration could only be made

properly upon respondent's submission of the aforecited evidence in hisfavor. CcAHEI

ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The

assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the

Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET

ASIDE.

No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., Ynares-Santiago, Carpio andAzcuna, JJ., concur.
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FIRST DIVISION

[G.R. No. 133778. March 14, 2000.]

ENGRACE NIAL for Herself and as Guardian ad Litem ofthe minors BABYLINE NIAL, INGRID NIAL, ARCHIENIAL & PEPITO NIAL, JR., petitioners, vs. NORMABAYADOG, respondent.

Roldan R. Mangubatfor petitioners.

Daryll A. Amante for private respondent.

SYNOPSIS

Pepito Nial was married to Teodulfa Bellones. Out of their marriage were born herein

petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. Oneyear and 8 months thereafter, Pepito and respondent Norma Badayog got married

without any marriage license. On February 19, 1997, Pepito died in a car accident.

After their father's death, petitioners filed a petition for declaration of nullity of the

marriage of Pepito to Norma alleging that the said marriage was void for lack of a

marriage license. The case was filed under the assumption that the validity or

invalidity of the second marriage would affect petitioner's successional rights. Norma

filed a motion to dismiss on the ground that petitioners have no cause of action since

they are not among the persons who could file an action for " annulment of marriage"

under Article 47 of the Family Code. The lower court ruled that petitioners should

have filed the action to declare null and void their father's marriage to respondent

before his death, applying by analogy Article 47 of the Family Code which enumerates

the time and the persons who could initiate an action for annulment of marriage.Hence, this petition. AcTDaH

The Supreme Court reversed and set aside the assailed decision of the trial court. The

Court ruled that the second marriage involved in this case is not covered by the

exception to the requirement of a marriage license, therefore, it is void ab

initio because of the absence of such element. According to the Court, it can not be

said that Pepito and respondent have lived with each other as husband and wife for at

least five years prior to their wedding day. From the time Pepito's first marriage was

dissolved to the time of his marriage with respondent, only about twenty months had

elapsed. Even assuming that Pepito and his first wife had separated in fact, and

thereafter both Pepito and respondent had started living with each other that has

already lasted for five years, the fact remains that their five-year period cohabitationwas not the cohabitation contemplated by law. It should be in the nature of a perfect

union that is valid under the law but rendered imperfect only by the absence of the

marriage contract. Pepito had a subsisting marriage at the time when he started

cohabiting with respondent. It is immaterial that when they lived with each other,

Pepito had already been separated in fact from his lawful spouse. The subsistence of

the marriage even where there was actual severance of the filial companionship

between the spouses cannot make any cohabitation by either spouse with any third

party as being one as "husband and wife." The Court also ruled that petitioners have

the personality to file a petition to declare their father's marriage void because a void

marriage can be attacked collaterally and can be questioned even after the death of

either party.

SYLLABUS

1.CIVIL LAW; CIVIL CODE; MARRIAGE; MARRIAGES OF EXCEPTIONAL

CHARACTER; THE 5-YEAR COHABITATION PERIOD CONTEMPLATED BY

ARTICLE 76 OF THE CIVIL CODE SHOULD BE THE YEARS IMMEDIATELY

BEFORE THE DAY OF THE MARRIAGE AND IT SHOULD BE A PERIOD OF

COHABITATION CHARACTERIZED BY EXCLUSIVITY MEANING NO THIRD

PARTY WAS INVOLVED AT ANY TIME WITHIN THE 5 YEARS AND

CONTINUITY THAT IS UNBROKEN. Working on the assumption that Pepito

and Norma have lived together as husband and wife for five years without the benefitof marriage, that five-year period should be computed on the basis of a cohabitation as

"husband and wife" where the only missing factor is the special contract of marriage to

validate the union. In other words, the five-year common-law cohabitation period,

which is counted back from the date of celebration of marriage, should be a period of

legal union had it not been for the absence of the marriage. This 5-year period should

be the years immediately before the day of the marriage and it should be a period ofcohabitation characterized by exclusivity meaning no third party was involved at

any time within the 5 years and continuity that is unbroken. Otherwise, if that

continuous 5-year cohabitation is computed without any distinction as to whether the

parties were capacitated to marry each other during the entire five years, then the law

would be sanctioning immorality and encouraging parties to have common law

relationships and placing them on the same footing with those who lived faithfullywith their spouse. Marriage being a special relationship must be respected as such and

its requirements must be strictly observed. The presumption that a man and a woman

deporting themselves as husband and wife is based on the approximation of the

requirements of the law. The parties should not be afforded any excuse to not comply

with every single requirement and later use the same missing element as a pre-

conceived escape ground to nullify their marriage. There should be no exemption fromsecuring a marriage license unless the circumstances clearly fall within the ambit of

the exception. It should be noted that a license is required in order to notify the public

that two persons are about to be united in matrimony and that anyone who is aware or

has knowledge of any impediment to the union of the two shall make it known to the

local civil registrar.


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2.ID.; ID.; ID.; ID.; CASE AT BAR; THE FIVE-YEAR COHABITATION OF

PETITIONERS' FATHER AND PRIVATE RESPONDENT WAS NOT THE

COHABITATION CONTEMPLATED BY LAW; THE SUBSISTENCE OF THE

MARRIAGE EVEN WHERE THERE WAS ACTUAL SEVERANCE OF THE

FILIAL COMPANIONSHIP BETWEEN THE SPOUSES CANNOT MAKE ANY

COHABITATION BY EITHER SPOUSE WITH ANY THIRD PARTY AS BEING

ONE AS "HUSBAND AND WIFE." In this case, at the time of Pepito and

respondent's marriage, it cannot be said that they have lived with each other as

husband and wife for at least five years prior to their wedding day. From the timePepito's first marriage was dissolved to the time of his marriage with respondent, only

about twenty months had elapsed. Even assuming that Pepito and his first wife had

separated in fact, and thereafter both Pepito and respondent had started living with

each other that has already lasted for five years, the fact remains that their five-year

period cohabitation was not the cohabitation contemplated by law. It should be in the

nature of a perfect union that is valid under the law but rendered imperfect only by the

absence of the marriage contract. Pepito had a subsisting marriage at the time when he

started cohabiting with respondent. It is immaterial that when they lived with each

other, Pepito had already been separated in fact from his lawful spouse. The

subsistence of the marriage even where there was actual severance of the filial

companionship between the spouses cannot make any cohabitation by either spouse

with any third party as being one as "husband and wife."

3.ID.; ID.; ID.; ID.; PETITIONERS HAVE THE PERSONALITY TO FILE A

PETITION TO DECLARE THEIR FATHER'S MARRIAGE VOID EVEN AFTER

HIS DEATH; VOID MARRIAGES CAN BE ATTACKED COLLATERALLY AND

CAN BE QUESTIONED EVEN AFTER THE DEATH OF EITHER PARTY.

Contrary to respondent judge's ruling, Article 47 of the Family Code cannot be applied

even by analogy to petitions for declaration of nullity of marriage. The second ground

for annulment of marriage relied upon by the trial court, which allows "the sane

spouse" to file an annulment suit "at any time before the death of either party" is

inapplicable. Article 47 pertains to the grounds, periods and persons who can file an

annulment suit, not a suit for declaration of nullity of marriage. The Code is silent as

to who can file a petition to declare the nullity of a marriage. Voidable and void

marriages are not identical. A marriage that is annullable is valid until otherwise

declared by the court; whereas a marriage that is void ab initio is considered as having

never to have taken place and cannot be the source of rights. The first can be generally

ratified or confirmed by free cohabitation or prescription while the other can never be

ratified. A voidable marriage cannot be assailed collaterally except in a direct

proceeding while a void marriage can be attacked collaterally. Consequently, void

marriages can be questioned even after the death of either party but voidable marriages

can be assailed only during the lifetime of the parties and not after death of either, in

which case the parties and their offspring will be left as if the marriage had been

perfectly valid. That is why the action or defense for nullity is imprescriptible, unlike

voidable marriages where the action prescribes. Only the parties to a voidable

marriage can assail it but any proper interested party may attack a void marriage. Void

marriages have no legal effects except those declared by law concerning the properties

of the alleged spouses, regarding co-ownership or ownership through actual joint

contribution, and its effect on the children born to such void marriages as provided in

Article 50 in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the

Family Code. On the contrary, the property regime governing voidable marriages is

generally conjugal partnership and the children conceived before its annulment are

legitimate.

D E C I S I O N

YNARES-SANTIAGO, Jp:

May the heirs of a deceased person file a petition for the declaration of nullity of his

marriage after his death?

Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their

marriage were born herein petitioners. Teodulfa was shot by Pepito resulting in her

death on April 24, 1985. One year and 8 months thereafter or on December 11, 1986,

Pepito and respondent Norma Badayog got married without any marriage license. Inlieu thereof, Pepito and Norma executed an affidavit dated December 11, 1986 stating

that they had lived together as husband and wife for at least five years and were thus

exempt from securing a marriage license. On February 19, 1997, Pepito died in a car

accident. After their father's death, petitioners filed a petition for declaration of nullity

of the marriage of Pepito to Norma alleging that the said marriage was void for lack of

a marriage license. The case was filed under the assumption that the validity or

invalidity of the second marriage would affect petitioner's successional rights. Norma

filed a motion to dismiss on the ground that petitioners have no cause of action since

they are not among the persons who could file an action for "annulment of marriage"

under Article 47 of the Family Code. LibLex

Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch

59, dismissed the petition after finding that the Family Code is "rather silent, obscure,insufficient" to resolve the following issues:

(1)Whether or not plaintiffs have a cause of action against

defendant in asking for the declaration of the nullity of marriage

of their deceased father, Pepito G. Nial, with her specially so

when at the time of the filing of this instant suit, their father Pepito

G. Nial is already dead;

(2)Whether or not the second marriage of plaintiffs' deceasedfather with defendant is null and void ab initio;


11/26

(3)Whether or not plaintiffs are estopped from assailing the

validity of the second marriage after it was dissolved due to their

father's death.1

Thus, the lower court ruled that petitioners should have filed the action to declare

null and void their father's marriage to respondent before his death, applying by

analogy Article 47 of the Family Code which enumerates the time and the persons

who could initiate an action for annulment of marriage.2 Hence, this petition for

review with this Court grounded on a pure question of law.

This petition was originally dismissed for non-compliance with Section 11, Rule 13 of

the 1997 Rules of Civil Procedure, and because "the verification failed to state the

basis of petitioner's averment that the allegations in the petition are 'true and

correct.'" It was thus treated as an unsigned pleading which produces no legal effect

under Section 3, Rule 7, of the 1997 Rules.3However, upon motion of petitioners,this Court reconsidered the dismissal and reinstated the petition for review.4

The two marriages involved herein having been solemnized prior to the effectivity of

the Family Code (FC), the applicable law to determine their validity is the Civil Code

which was the law in effect at the time of their celebration.5A valid marriage license

is a requisite of marriage under Article 53 of the Civil Code, 6 the absence of whichrenders the marriage void ab initiopursuant to Article 80(3)7in relation to Article58.8The requirement and issuance of marriage license is the State's demonstration ofits involvement and participation in every marriage, in the maintenance of which the

general public is interested.9This interest proceeds from the constitutional mandatethat the State recognizes the sanctity of family life and of affording protection to the

family as a basic "autonomous social institution."10Specifically, the Constitutionconsiders marriage as an "inviolable social institution," and is the foundation of family

life which shall be protected by the State.11This is why the Family Code considersmarriage as "a special contract of permanent union"12and case law considers it notjust an adventure but a lifetime commitment."13

However there are several instances recognized by the Civil Code wherein a marriagelicense is dispensed with, one of which is that provided in Article 76,14referring tothe marriage of a man and a woman who have lived together and exclusively with each

other as husband and wife for a continuous and unbroken period of at least five years

before the marriage. The rationale why no license is required in such case is to avoid

exposing the parties to humiliation, shame and embarrassment concomitant with the

scandalous cohabitation of persons outside a valid marriage due to the publication of

every applicant's name for a marriage license. The publicity attending the marriage

license may discourage such persons from legitimizing their status.15To preservepeace in the family, avoid the peeping and suspicious eye of public exposure and

contain the source of gossip arising from the publication of their names, the law

deemed it wise to preserve their privacy and exempt them from that requirement. cda

There is no dispute that the marriage of petitioners' father to respondent Norma was

celebrated without any marriage license. In lieu thereof, they executed an affidavit

stating that "they have attained the age of majority, and, being unmarried, have lived

together as husband and wife for at least five years, and that we now desire to marry

each other."16 The only issue that needs to be resolved pertains to what nature ofcohabitation is contemplated under Article 76 of the Civil Code to warrant the

counting of the five year period in order to exempt the future spouses from securing a

marriage license. Should it be a cohabitation wherein both parties are capacitated to

marry each other during the entire five-year continuous period or should it be acohabitation wherein both parties have lived together and exclusively with each other

as husband and wife during the entire five-year continuous period regardless of

whether there is a legal impediment to their being lawfully married, which impediment

may have either disappeared or intervened sometime during the cohabitation period?

Working on the assumption that Pepito and Norma have lived together as husband and

wife for five years without the benefit of marriage, that five-year period should be

computed on the basis of a cohabitation as "husband and wife" where the only missing

factor is the special contract of marriage to validate the union. In other words, the five-

year common-law cohabitation period, which is counted back from the date of

celebration of marriage, should be a period of legal union had it not been for the

absence of the marriage. This 5-year period should be the years immediately before the

day of the marriage and it should be a period of cohabitation characterized by

exclusivitymeaning no third party was involved at any time within the 5 years and

continuitythat is unbroken. Otherwise, if that continuous 5-year cohabitation is

computed without any distinction as to whether the parties were capacitated to marry

each other during the entire five years, then the law would be sanctioning immorality

and encouraging parties to have common law relationships and placing them on the

same footing with those who lived faithfully with their spouse. Marriage being a

special relationship must be respected as such and its requirements must be strictly

observed. The presumption that a man and a woman deporting themselves as husband

and wife is based on the approximation of the requirements of the law. The parties

should not be afforded any excuse to not comply with every single requirement and

later use the same missing element as a pre-conceived escape ground to nullify their

marriage. There should be no exemption from securing a marriage license unless the

circumstances clearly fall within the ambit of the exception. It should be noted that a

license is required in order to notify the public that two persons are about to be united

in matrimony and that anyone who is aware or has knowledge of any impediment to

the union of the two shall make it known to the local c ivil registrar.17The Civil Codeprovides:

Article 63: ". . . . This notice shall request all persons having

knowledge of any impediment to the marriage to advice the local

civil registrar thereof. . . . ."

Article 64: "Upon being advised of any alleged impediment to themarriage, the local civil registrar shall forthwith make an

investigation, examining persons under oath. . . ."
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dog%29#footnoteshttp://cdasiaonline.com/search/show_article/5992?search=title%3A+%28Bayadog%29#footnoteshttp://cdasiaonline.com/search/show_article/5992?search=title%3A+%28Bayadog%29#footnoteshttp://cdasiaonline.com/search/show_article/5992?search=title%3A+%28Bayadog%29#footnoteshttp://cdasiaonline.com/search/show_article/5992?search=title%3A+%28Bayadog%29#footnotes


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This is reiterated in the Family Code thus:

Article 17provides in part: ". . . . This notice shall request all

persons having knowledge of any impediment to the marriage to

advise the local civil registrar thereof. . . . ."

Article 18 reads in part: ". . . . In case of any impediment known to

the local civil registrar or brought to his attention, he shall note

down the particulars thereof and his findings thereon in theapplication for a marriage license. . . . ." cdrep

This is the same reason why our civil laws, past or present, absolutely prohibited the

concurrence of multiple marriages by the same person during the same period.Thus,

any marriage subsequently contracted during the lifetime of the first spouse shall be

illegal and void,18subject only to the exception in cases of absence or where the priormarriage was dissolved or annulled. The Revised Penal Code complements the civil

law in that the contracting of two or more marriages and the having of extramarital

affairs are considered felonies, i.e., bigamy and concubinage and adultery.19The lawsanctions monogamy.

In this case, at the time of Pepito and respondent's marriage, it cannot be said that theyhave lived with each other as husband and wife for at least five years prior to their

wedding day. From the time Pepito's first marriage was dissolved to the time of his

marriage with respondent, only about twenty months had elapsed. Even assuming that

Pepito and his first wife had separated in fact, and thereafter both Pepito and

respondent had started living with each other that has already lasted for five years, the

fact remains that their five-year period cohabitation was not the cohabitation

contemplated by law. It should be in the nature of a perfect union that is valid under

the law but rendered imperfect only by the absence of the marriage contract. Pepito

had a subsisting marriage at the time when he started cohabiting with respondent. It is

immaterial that when they lived with each other, Pepito had already been separated in

fact from his lawful spouse. The subsistence of the marriage even where there was

actual severance of the filial companionship between the spouses cannot make anycohabitation by either spouse with any third party as being one as "husband and wife."

Having determined that the second marriage involved in this case is not covered by the

exception to the requirement of a marriage license, it is void ab initio because of the

absence of such element.

The next issue to be resolved is: do petitioners have the personality to file a petition to

declare their father's marriage void after his death?

Contrary to respondent judge's ruling, Article 47 of the Family Code20cannot beapplied even by analogy to petitions for declaration of nullity of marriage. The second

ground for annulment of marriage relied upon by the trial court, which allows "the

sane spouse" to file an annulment suit "at any time before the death of either party" is

inapplicable. Article 47 pertains to the grounds, periods and persons who can file an

annulment suit, not a suit for declaration of nullity of marriage. The Code is silent as

to who can file a petition to declare the nullity of a marriage. Voidable and void

marriages are not identical. A marriage that is annullable is valid until otherwise

declared by the court; whereas a marriage that is void ab initio is considered as having

never to have taken place21and cannot be the source of rights. The first can begenerally ratified or confirmed by free cohabitation or prescription while the other cannever be ratified. A voidable marriage cannot be assai led collaterally except in a direct

proceeding while a void marriage can be attacked collaterally. Consequently, void

marriages can be questioned even after the death of either party but voidable marriages

can be assailed only during the lifetime of the parties and not after death of either, in

which case the parties and their offspring will be left as if the marriage had been

perfectly valid.22That is why the action or defense for nullity is imprescriptible,unlike voidable marriages where the action prescribes. Only the parties to a voidable

marriage can assail it but any proper interested party may attack a void marriage. Void

marriages have no legal effects except those declared by law concerning the properties

of the alleged spouses, regarding co-ownership or ownership through actual joint

contribution,23and its effect on the children born to such void marriages as providedin Article 50 in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the

Family Code. On the contrary, the property regime governing voidable marriages isgenerally conjugal partnership and the children conceived before its annulment are

legitimate.

Contrary to the trial court's ruling, the death of petitioner's father extinguished the

alleged marital bond between him and respondent. The conclusion is erroneous and

proceeds from a wrong premise that there was a marriage bond that was dissolved

between the two. It should be noted that their marriage was void hence it is deemed as

if it never existed at all and the death of either extinguished nothing. cdasia

Jurisprudence under the Civil Code states that no judicial decree is necessary in order

to establish the nullity of a marriage.24"A void marriage does not require a judicialdecree to restore the parties to their original rights or to make the marriage void butthough no sentence of avoidance be absolutely necessary, yet as well for the sake of

good order of society as for the peace of mind of all concerned, it is expedient that thenullity of the marriage should be ascertained and declared by the decree of a court of

competent jurisdiction."25"Under ordinary circumstances, the effect of a voidmarriage, so far as concerns the conferring of legal rights upon the parties, is as though

no marriage had ever taken place. And therefore, being good for no legal purpose, its

invalidity can be maintained in any proceeding in which the fact of marriage may be

material, either direct or collateral, in any civil court between any parties at any time,

whether before or after the death of either or both the husband and the wife, and upon

mere proof of the facts rendering such marriage void, it will be disregarded or treated

as non-existent by the courts." It is not like a voidable marriage which cannot becollaterally attacked except in direct proceeding instituted during the lifetime of the

parties so that on the death of either, the marriage cannot be impeached, and is made
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13/26

good ab initio.26But Article 40 of the Family Code expressly provides that theremust be a judicial declaration of the nullity of a previous marriage, though void, before

a party can enter into a second marriage27and such absolute nullity can be based onlyon a final judgment to that effect.28For the same reason, the law makes either theaction or defense for the declaration of absolute nullity of marriage

imprescriptible.29Corollarily, if the death of either party would extinguish the causeof action or the ground for defense, then the same cannot be considered

imprescriptible.

However, other than for purposes of remarriage, no judicial action is necessary to

declare a marriage an absolute nullity. For other purposes, such as but not limited to

determination of heirship, legitimacy or illegitimacy of a child, settlement of estate,

dissolution of property regime, or a criminal case for that matter, the court may pass

upon the validity of marriage even in a suit not directly instituted to question the same

so long as it is essential to the determination of the case. This is without prejudice to

any issue that may arise in the case. When such need arises, a final judgment of

declaration of nullity is necessary even if the purpose is other than to remarry. The

clause "on the basis of a final judgment declaring such previous marriage void" in

Article 40 of the Family Code connotes that such final judgment need not be obtained

only for purpose of remarriage.

WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial

Court, Toledo City, Cebu, Branch 59, dismissing Civil Case No. T-639, is

REVERSED and SET ASIDE. The said case is ordered REINSTATED. cdtai

SO ORDERED.

Davide, Jr., C.J., Puno andKapunan, JJ., concur.
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14/26

FIRST DIVISION[A.M. No. MTJ-00-1329. March 8, 2001.]

HERMINIA BORJA-MANZANO, petitioner, vs. JUDGEROQUE R SANCHEZ, MTC, Infanta,Pangasinan, respondent.

R E S O L U T I O N

DAVIDE, JR., C.Jp:

The solemnization of a marriage between two contracting parties who were both

bound by a prior existing marriage is the bone of contention of the instant complaint

against respondent Judge Roque R. Sanchez, Municipal Trial Court, Infanta,

Pangasinan. For this act, complainant Herminia Borja-Manzano charges respondentJudge with gross ignorance of the law in a sworn Complaint-Affidavit filed with the

Office of the Court Administrator on 12 May 1999. ICcDaA

Complainant avers that she was the lawful wife of the late David Manzano, having

been married to him on 21 May 1966 in San Gabriel Archangel Parish, Araneta

Avenue, Caloocan City.1 Four children were born out of that marriage.2 On 22March 1993, however, her husband contracted another marriage with one Luzviminda

Payao before respondent Judge.3 When respondent Judge solemnized said marriage,he knew or ought to know that the same was void and bigamous, as the marriage

contract clearly stated that both contracting parties were "separated."

Respondent Judge, on the other hand, claims in his Comment that when he officiated

the marriage between Manzano and Payao he did not know that Manzano was legally

married. What he knew was that the two had been living together as husband and wifefor seven years already without the benefit of marriage, as manifested in their joint

affidavit.4 According to him, had he known that the late Manzano was married, hewould have advised the latter not to marry again; otherwise, he (Manzano) could be

charged with bigamy. He then prayed that the complaint be dismissed for lack of merit

and for being designed merely to harass him.

After an evaluation of the Complaint and the Comment, the Court Administrator

recommended that respondent Judge be found guilty of gross ignorance of the law and

be ordered to pay a fine of P2,000, with a warning that a repetition of the same orsimilar act would be dealt with more severely.

On 25 October 2000, this Court required the parties to manifest whether they were

willing to submit the case for resolution on the basis of the pleadings thus filed.

Complainant answered in the affirmative.

For his part, respondent Judge filed a Manifestation reiterating his plea for the

dismissal of the complaint and setting aside his earlier Comment. He therein invites

the attention of the Court to two separate affidavits5of the late Manzano and ofPayao, which were allegedly unearthed by a member of his staff upon his instruction.

In those affidavits, both David Manzano and Luzviminda Payao expressly stated thatthey were married to Herminia Borja and Domingo Relos, respectively; and that since

their respective marriages had been marked by constant quarrels, they had both left

their families and had never cohabited or communicated with their spouses anymore.

Respondent Judge alleges that on the basis of those affidavits, he agreed to solemnize

the marriage in question in accordance with Article 34 of the Family Code.

We find merit in the complaint.

Article 34 of the Family Code provides:

No license shall be necessary for the marriage of a man and a

woman who have lived together as husband and wife for at leastfive years and without any legal impediment to marry each other.

The contracting parties shall state the foregoing facts in an

affidavit before any person authorized by law to administer oaths.

The solemnizing officer shall also state under oath that he

ascertained the qualifications of the contracting parties and found

no legal impediment to the marriage. HACaSc

For this provision on legal ratification of marital cohabitation to

person cases art 11-35

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