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Persons and Family Relations (Sta. Maria)

Persons and Family Relations (Sta. Maria)

1 CIVIL CODE OF THE PHILIPPINES PRELIMINARY TITLE Chapter 1 EFFECT AND APPLICATION OF LAWS Article 1. This Act shall be known as the Civil Code of the Philippines. REPUBLIC ACT NUMBER 386. The main draft of the Civil Code was prepared by the Roxas Code Commission, which was created via Executive Order No. 48 of March 20, 1947 by President Manuel Roxas. Dr. Jorge C. Bocobo was the chairman. The members were Judge Guillermo B. Guevarra, Dean Pedro Y. Ylagan, and Francisco R. Capistrano. Arturo M. Tolentino was added to the Commission but, after a while, had to resign due to his election as a congressman. In his place, Dr. Carmelino Alvendia was appointed. The 1947 Code Commission started working on May 8, 1947 and ended on December 15, 1947. On January 26, 1949, the Senate and the House of Representatives of the Philippines passed Republic Act 386, which is “An Act to Ordain and Institute the Civil Code of the Philippines.” Article 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after publication. EFFECTIVITY OF THE CIVIL CODE. The 1950 Civil Code of the Philippines took effect on August 30, 1950. 1 2 PERSONS AND FAMILY RELATIONS LAW Art. 2 EXECUTIVE ORDER NO. 200. Article 2 of the Civil Code has been expressly amended by Executive Order No. 200 dated June 18, 1987 issued by President Corazon Aquino during the time of her revolutionary government. Hereunder is the text of the said executive order: EXECUTIVE ORDER NO. 200 PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE OFFICIAL GAZETTE OR IN A NEWSPAPER OF GENERAL CIRCULATION IN THE PHILIPPINES AS A REQUIREMENT FOR THEIR EFFECTIVITY. WHEREAS, Article 2 of the Civil Code partly provides that “laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided x x x’’; WHEREAS, the requirement that the laws to be effective only a publication thereof in the Official Gazette shall suffice has entailed some problems, a point recognized by the Supreme Court in Tañada, et al. v. Tuvera, et al., (G.R. No. 63915, December 29, 1986) when it observed that “there is much to be said of the view that the publication need not be made in the Official Gazette, considering its erratic release and limited readership’’; WHEREAS, it was likewise observed that “undoubtedly, newspapers of general circulation could better perform the function of communicating the laws to the people as such periodicals are more easily available, have a wide circulation, and come out regularly”; and WHEREAS, in view of the foregoing premises Article 2 of the Civil Code should accordingly be amended so that laws to be effective must be published either in the Official Gazette or in a newspaper of general circulation in the country; NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order: SECTION 1. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. SECTION 2. Article 2 of Republic Act No. 386, otherwise known as the “Civil Code of the Philippines,” and all other laws Art. 2 EFFECT AND APPLICATION OF LAWS 3 inconsistent with this Executive Order are hereby repealed or modified accordingly. SECTION 3. This Executive Order shall take effect immediately after its publication in the Official Gazette. Done in the City of Manila, this 18th day of June, in the year of Our Lord, nineteen hundred and eighty-seven. EFFECTIVITY OF LAWS. When a statute does not explicitly provide for its effectivity, it shall have effect only after the expiration of the fifteen-day period following the completion of its publication either in the Official Gazette or in a newspaper of general circulation in the Philippines. The publication and the fifteen-day period requirements are intended to enable the people to become familiar with the statute. They are necessary requisites and no one shall be charged with notice of the statute’s provision until the said publication is completed and the fifteen-day period has expired. Publication must be in full or it is not publication at all since its purpose is to inform the public of its contents (Tañada v. Tuvera, 146 SCRA 446). After the accomplishment of this requirement, the people are deemed to have conclusively been notified of the law even if actually the people or some of the same have not read them. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature, or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by the administrative superiors concerning rules or guidelines to be followed by their subordinates in the performance of their duties. Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national territory and directly affects only the inhabitants of that place. All presidential decrees must be published, including even say, those naming a public place after a favored individual or exempting him from certain prohibitions or requirements. The 4 PERSONS AND FAMILY RELATIONS LAW Art. 2 circulars issued by the Monetary Board must be published if they are meant not merely to interpret but to “fill in the details” of the Central Bank Act which that body is supposed to enforce. However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on the case studies to be made in the petitions for adoptions or the rules laid down by the head of a government agency on the assignments or workload of his personnel or the wearing of office uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the Local Government Code (Tañada v. Tuvera, 146 SCRA 446). THE CLAUSE “UNLESS IT IS OTHERWISE PROVIDED.” The clause “unless it is otherwise provided” solely refers to the fifteen- day period and not to the requirement of publication. Publication is an indispensable requisite the absence of which will not render the law effective. In Tañada v. Tuvera, 146 SCRA 446, where the clause “unless it is otherwise provided” contained in Article 2 of the Civil Code was interpreted by the Supreme Court, it was stated that: it is not correct to say that under the disputed clause, publication may be dispensed with altogether. The reason is that such omission would offend due process insofar as it would deny the public of the laws that are supposed to govern it. Surely, if the legislature could validly provide that a law shall become effective immediately upon its approval notwithstanding the lack of publication or after an unreasonable short period after its publication, it is not unlikely that persons not aware of it would be prejudiced as a result; and they would be so not because of a failure to comply with it but simply because they did not know of its existence. Significantly, this is not true only of penal laws as is commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be communicated to the persons they may affect before they can begin to operate. If the law provides for a different period shorter or longer than the fifteen-day period provided by Section 1 of Executive Order No. 200, then such shorter or longer period, as the case may be, will prevail. If the law provides that it shall take effect immediately, it means that it shall take effect immediately after publication with the fifteen-day period being dispensed with. LAWS. Section 1 of Executive Order No. 200 uses the word “laws.” Hence, the effectivity provision refers to all statutes, Arts. 3-4 EFFECT AND APPLICATION OF LAWS 5 including those local and private laws (Tañada v. Tuvera, 146 SCRA 446), unless there are special laws providing a different effectivity mechanism for particular statutes. Article 3. Ignorance of the law excuses no one from compliance therewith. (2) REASON. The legal precept that “ignorance of the law excuses no one from compliance therewith” is founded not only on expediency and policy but on necessity (Zulueta v. Zulueta, 1 Phil. 254; U.S. v. Gray, 8 Phil. 506; U.S. v. Deloso, 11 Phil. 180; Delgado v. Alonso, 44 Phil. 739). That every person knows the law is a conclusive presumption (Tañada v. Tuvera, 146 SCRA 446). When a law is passed by Congress, duly approved by the President of the Philippines, properly published, and consequently becomes effective pursuant to its effectivity clause or to some provision of a general law on the effectivity of statutes, the public is always put on constructive notice of the law’s existence and effectivity. This is true even if a person has no actual knowledge of such law. To allow a party to set up as a valid defense the fact that he has no actual knowledge of a law which he has violated is to foment disorder in society. However, Article 3 applies only to mandatory and prohibitory laws (Consunji v. Court of Appeals, G.R. No. 137873, April 20, 2001). Article 3 is a necessary consequence of the mandatory provision that all laws must be published. Without such notice and publication, there will be no basis for the application of the maxim “ignorantia legis non excusat.’’ It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one (Tañada v. Tuvera, 136 SCRA 27). Article 4. Laws shall have no retroactive effect, unless the contrary is provided. (3) NON-RETROACTIVITY OF LAWS. Laws have no retroactive effect, unless the contrary is provided, for it is said that the law looks to the future and has no retroactive effect unless the legislature may have given that effect to some legal provisions, and that statutes are to be construed as having only prospective operation, unless the purpose and intention of the legislature to give them a retrospective effect is expressly declared or is necessarily implied from the 6 PERSONS AND FAMILY RELATIONS LAW Art. 4 language used, and that, in case of doubt, the same must be resolved against the retrospective effect (Buyco v. PNB, 2 SCRA 682; Lazaro v. Commissioner of Customs, 17 SCRA 37; Universal Corn Products, Inc. vs. Rice and Corn Board, 20 SCRA 1048; Cebu Portland Cement Co. vs. CIR, 25 SCRA 789). RETROACTIVE APPLICATION. Well-settled is the principle that while the legislature has the power to pass retroactive laws which do not impair the obligation of contracts, or affect injuriously vested rights, it is equally true that statutes are not to be construed as intended to have a retroactive effect so as to affect the pending proceedings, unless such intent is expressly declared or clearly and necessarily implied from the language of the enactment (Espiritu v. Cipriano, 55 SCRA 533). The following are instances when a law may be given retroactive effect: 1. When the law expressly provides for retroactivity. Thus, the Family Code of the Philippines which became effective on August 3, 1988 specially provides in Article 256 thereof that the said code “shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws.” 2. When the law is curative or remedial. Since curative laws are not within constitutional inhibitions or retrospective legislation impairing the obligation of contracts or disturbing vested rights, statutes of a curative nature which are necessarily retrospective must be given a retrospective operation by the courts (25 RCL 790). The legislature has power to pass healing acts which do not impair the obligations of contracts nor interfere with vested rights. They are remedial by curing defects and adding to the means of enforcing existing obligations. The rule in regard to curative statutes is that if the thing omitted or failed to be done, and which constitutes the defect sought to be removed or make harmless, is something which the legislature might have dispensed with by previous statutes, it may do so by subsequent ones. If the irregularity consists in doing some act, or doing it in the mode which the legislature might have made immaterial by an express law, it may do so by a subsequent one (Government v. Municipality of Binalonan, 32 Phil. 634). Retroactive operation will more readily be ascribed to legislation that is curative or legalizing than to legislation which may disadvantageously, though legally, affect past relations and transactions (People v. Zeta, L-7140, December 22, 1955). Art. 4 EFFECT AND APPLICATION OF LAWS 7 Hence, in Development Bank of the Philippines v. Court of Appeals, 96 SCRA 342, where there were some questions as to the legality of the purchase of certain lots acquired by the DBP pursuant to Republic Act No. 85 and where Congress enacted Republic Act No. 3147 precisely to correct any invalidity as to the said acquisition, the Supreme Court observed and ruled: “It may be stated, as a general rule, that cura- tive statutes are forms of ‘retrospective legislation which reach back on past events to correct errors or irregularities and to render valid and effective at- tempted acts which would otherwise be ineffective for the purpose the parties intended.’ They are in- tended to enable persons to carry into effect that which they have designed and intended, but which has failed of expected legal consequences by reason of some statutory disability or irregularity in their action. They, thus make valid that which, before enactment of the statute, was invalid. There cannot be any doubt that one of the purposes of Congress when it enacted Republic Act No. 3147, by amending Section 13 of Republic Act No. 85, was to erase any doubt regarding the legality of the acquisition by the DBP of the 159 lots from the PHHC for the housing project which it intended to establish for its employ- ees who did not yet have houses of their own. This is obvious from the fact that Republic Act No. 3147 was enacted on July 17, 1961, at a time when the le- gality of the acquisition of the lots by the DBP for its housing project was under question. It is therefore a curative statute to render valid the acquisition by the DBP of the 159 lots from the PHHC.’’ Also, laws which regulate the registration of instruments affecting titles to land may be held to apply to deeds dated before as well as after their enactment when a reasonable time is given within which the effect of such statutes, as applied to existing conveyances, may be avoided and rendered harmless in respect to vested rights (25 RCL 790). 3. When the law is procedural. When a statute deals with procedure only, prima facie, it applies to all actions — those which have accrued or pending and future actions. Thus, a law prescribing the form of pleadings will apply to all pleadings filed after its enactment, although the action is begun before that time (25 RCL 791). Also, it has been held that while changes in substantive law or Supreme Court judicial doctrines interpreting the application 8 PERSONS AND FAMILY RELATIONS LAW Art. 5 of a particular law may not be applied retroactively, especially when prejudice will result to the party that has followed the earlier law or judicial doctrine (People v. Licera, 65 SCRA 270), that principle does not obtain in remedial or procedural law (Araneta v. Doronilla, 72 SCRA 113, citing Aguillon v. Director of Lands, 17 Phil. 507-508; Hosana v. Diomano and Dioman, 56 Phil. 741, 745-746; Guevara v. Laico, 64 Phil. 150; Laurel v. Misa, 76 Phil. 372, 378; People v. Sumilang, 77 Phil. 764, 765, 766). This is especially true in the Philippines where it is within the power of the Supreme Court to excuse failure to literally observe any rule under the Rules of Court to avoid possible injustice, particularly in cases where the subject matter is of considerable value and the judgment being appealed from is, by its nature, reasonably open to possible modification, if not reversal (Araneta v. Doronila, 72 SCRA 413). 4. When the law is penal in character and favorable to the accused. Article 22 of the Revised Penal Code specifically provides that penal laws shall have retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same. Article 62 of the Revised Penal Code provides that a person shall be deemed a habitual delinquent, if within a period of ten years from the date of his release or last conviction of the crime of serious or less serious physical injuries, Robo, Hurto, Estafa, or falsification, he is found guilty of any said crimes a third time or oftener. Article 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. (4a) MANDATORY AND PROHIBITORY LAWS. A mandatory provision of law is one the omission of which renders the proceeding or acts to which it relates generally illegal or void. Thus, prescriptive periods provided by the law for filing particular suits are mandatory in character. For instance, the Family Code provides, among others, that the husband, in order to impugn the legitimacy of a child, must file a case within one year from the knowledge of the birth of the child or its recording in the civil register, if he should live within the same municipality where the birth took place or was recorded. Should the husband file the case beyond the one-year period, such case will be dismissed. Art. 6 EFFECT AND APPLICATION OF LAWS 9 Prohibitory laws are those which contain positive prohibitions and are couched in the negative terms importing that the act required shall not be done otherwise than designated (Brehm v. Republic, 9 SCRA 172). Acts committed in violation of prohibitory laws are likewise void. Hence, under the Family Code, it is specifically provided that “No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.” However, if the law expressly provides for the validity of acts committed in violation of a mandatory or prohibitory provision of a statute, such act shall be considered valid and enforceable. Article 6. Rights may be waived, unless the waiver is contrary to law, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law. WAIVER. Waiver is the intentional relinquishment of a known right (Castro v. Del Rosario, 19 SCRA 196). Waivers are not presumed, but must be clearly and convincingly shown, either by express stipulation or acts admitting no other reasonable explanation (Arrieta v. National Rice and Corn Corporation, 10 SCRA 79). It is essential that a right, in order that it may be validly waived, must be in existence at the time of the waiver (Ereneta v. Bezore, 54 SCRA 13) and it must be exercised by a duly capacitated person actually possessing the right to make the waiver. It is an act of understanding that presupposes that a party has knowledge of its rights, but chooses not to assert them. It must be generally shown by the party claiming a waiver that the person against whom the waiver is asserted had at the time knowledge, actual or constructive, of the existence of the party’s rights or of all material facts upon which they depended. Where one lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of material fact negates waiver, and waiver cannot be established by a consent given under a mistake or misapprehension of fact (Consunji v. Court of Appeals, G.R. No. 137873, April 20, 2001). A person makes a knowing and intelligent waiver when that person knows that a right exists and has adequate knowledge upon which to make an intelligent decision. Waiver requires a knowledge of the facts basic to the exercised of the right waived, with an awareness of its consequences. That a 10 PERSONS AND FAMILY RELATIONS LAW Art. 6 waiver is made knowingly and intelligently must be illustrated on the record or by evidence (Consunji v. Court of Appeals, G.R. No. 137873, April 20, 2001). PROHIBITION AGAINST WAIVER. Waivers cannot be made if they are contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law. Hence, in Gongon vs. Court of Appeals, 32 SCRA 412, the Supreme Court held that the preferential rights of tenants under Commonwealth Act No. 539 to purchase a public land cannot be validly waived; as such waiver was against public policy. Pertinently, the Supreme Court said: On the second issue, petitioner’s position is that his preferential right could not be validly waived, such waiver being against public policy. Under Article 6 of the New Civil Code, “rights may be waived, unless the waiver is contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law.” The old Civil Code (Art. 4) carried a similar provision, although it mentioned only public interest or public order. That Commonwealth Act No. 539 lays down a public policy there can be no doubt. In the case of Juat v. Land Tenure Administration, G.R. No. L-17080, January 28, 1961, this Court, thru Mr. Justice Felix Angelo Bautista, ruled in this wise: “x x x it may also be stated that the avowed policy behind the adoption of such a measure is, as aptly observed by the Court of Appeals, to provide the landless elements of our population with lots upon which to build their homes and small farms which they can cultivate and from which they can derive livelihood without being beholden to any man (Pascual v. Lucas, 51 O.G., No. 4, p. 2429), such measure having been adopted in line with the policy of social justice enshrined in our Constitution to remedy and cure the social unrest caused by the concentration of landed estates in the hands of a few by giving to the landless elements a piece of land they call their own.” Being contrary to public policy, the alleged waiver of his right made by herein petitioner should be considered null and void. Likewise it has been held that the signing by a disabled employee of a satisfaction receipt does not constitute a waiver; the law does not consider as valid any agreement to receive less compensation than the worker is entitled to recover under the law (Franklin Baker Co. Art. 7 EFFECT AND APPLICATION OF LAWS 11 of the Philippines v. Alillana, 21 SCRA 1247). Also, it has been held that the acceptance of benefits such as separation pay and terminal leave benefits would not amount to estoppel or waiver of right of employee to contest his illegal dismissal (San Miguel v. Cruz, 31 SCRA 819). Rights, protections, and advantages conferred by statutes may be generally waived. Where, however, the object of a statute is to promote great public interests, liberty and morals, it cannot be defeated by any private stipulation (Griffith v. New York L. Ins Co., 101 Cal. 627, cited in 25 RCL 781). Hence, since marriage is a social institution greatly affected by public interest and the purity of which is a basic concern of the state, a private agreement between a husband and a wife providing that they consent or allow the commission of adultery or concubinage by the other spouse, as the case may be, thereby waiving their rights to live with each other, is a void agreement or a void waiver of rights as the same is contrary to public interest and morals. Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom, or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. REPEAL. Repeal of a law is the legislative act of abrogating through a subsequent law the effects of a previous statute or portions thereof. Repeal is either express or implied. An implied repeal takes place when a new law contains provisions contrary to or inconsistent with those of a former without expressly repealing them (25 RCL 911). Repeals and amendments by implications are not favored (Quimsing v. Lachica, 2 SCRA 182). An express repeal is a repeal which is literally declared by a new law, either in specific terms, as where particular laws and provisions are named and identified and declared to be repealed, or in general terms, as where a provision in a new law declares all 12 PERSONS AND FAMILY RELATIONS LAW Art. 7 laws and parts of laws inconsistent therewith to be repealed (25 RCL 911). However, in Iloilo Palay and Corn Planters Association, Inc. v. Feliciano, 13 SCRA 377, the Philippine Supreme Court ruled that: a repealing clause in an Act which provides that “all laws and parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly” is certainly not an express repealing clause because it fails to identify or designate the Act or Acts that are intended to be repealed. Rather, it is a clause which predicates the intended repeal upon the condition that substantial conflict must be found in existing and prior acts. Such being the case the presumption against implied repeals and the rule against strict construction regarding implied repeals apply ex proprio vigore. Also, it is a well-established rule in statutory construction that: a special statute, providing for a particular case or class of cases, is not repealed by a subsequent statute, general in its terms, provisions and applications, unless the intent to repeal or alter is manifest, although the terms of the general law are broad enough to include the cases embraced in the special law (Manila Railroad Co. v. Rafferty, 40 Phil. 225, 228; City of Manila v. PSC, 52 Phil. 515; National Power Corporation v. Arca, 25 SCRA 931). UNCONSTITUTIONAL STATUTES. The Constitution is the supreme, organic and fundamental law of the land. It is axiomatic that no ordinary statute can override a constitutional provision (Floresca v. Philex Mining Corporation, 136 SCRA 136). But in deciding the constitutionality of a statute, every presumption favors the validity of the same and whenever possible, statutes should be given a meaning that will not bring them in conflict with the Constitution (Noblejas v. Teehankee, 23 SCRA 774). The constitutionality or unconstitutionality of a statute depends upon factors other than those existing at the time of the enactment thereof, unaffected by the acts or omissions of law enforcing agencies, particularly those that take place subsequently to the passage or approval of the law (Gonzales v. Commission of Elections, 21 SCRA 774). PARTIAL UNCONSTITUTIONALITY OF STATUTES. Where a portion of a statute is rendered unconstitutional and the remainder Art. 7 EFFECT AND APPLICATION OF LAWS 13 valid, the parts will be separated, and the constitutional portion upheld. However, the Supreme Court in Lidasan v. COMELEC, 21 SCRA 496, held: “x x x But when the parts of the statute are so mutually dependent and connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect, the legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected, must fall with them.’’ In substantially similar language, the same exception is recognized in the jurisprudence of this Court, thus: “The general rule is that where part of a statute is void, as repugnant to the organic law, while another part is valid, the valid portion, if separable from the invalid, may stand and be enforced. But in order to do this, the valid portion must be so far independent of the invalid portion that it is fair to presume that the Legislature would have enacted it by itself if they had supposed that they could not constitutionally enact the other. x x x Enough must remain to make a complete, intelligible and valid statute, which carries out the legislative intent x x x. The language used in the invalid part of the statute can have no legal force or efficacy for any purpose whatever, and what remains must express the legislative will independently of the void part, since the court has no power to legislate. x x x” (Barrameda v. Moir, 25 Phil. 44, 47-48 quoted in Government v. Springer, 50 Phil. 259, 292). RULES AND REGULATIONS/ADMINISTRATIVE AND EXECUTIVE ACTS. Rules and regulations when promulgated in pursuance of the procedure or authority conferred upon the admi- nistrative agency by law, partake of the nature of a sanction pro- vided in the law. This is so because statutes are usually couched in general terms, after expressing the policy, purposes, remedies and sanctions intended by the legislature. The details and the manner of carrying out the law are oftentimes left to the administrative agency entrusted with its enforcement (Victorias Milling Company, Inc. v. Social Security Commission, 4 SCRA 627). A rule is binding on the courts so long as the procedure fixed for its promulgation is followed, and its scope is within the statutory authority granted by the legislature, even if the courts are not 14 PERSONS AND FAMILY RELATIONS LAW Art. 8 in agreement with the policy stated therein or its innate wisdom (Victorias Milling Company, Inc. v. Social Security Commission, 4 SCRA 627). The regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself cannot be extended, so long, however, as the regulations relate solely to carrying into effect the provisions of the law, they are valid (United States v. Tupasi, 29 Phil. 119). Rules and regulations as well as administrative or executive acts violative of the law and the constitution are invalid. Thus, in Teoxon v. Members of the Board of Administrator, 33 SCRA 585, the Supreme Court pertinently stated: It cannot be otherwise as the Constitution limits the authority of the President, in whom all executive power resides, to take care that the laws be faithfully executed. No lesser administrative executive office or agency then, contrary to the express language of the Constitution, assert for itself a more extensive prerogative. Necessarily, it is bound to observe the constitutional mandate. There must be strict compliance with the legislative enactment. Its terms must be followed. The statute requires adherence to, not departure from, its provisions. No deviation is allowable. In the terse language of the present Chief Justice, an administrative agency “cannot amend an act of Congress.” Article 8. Judicial decisions applying or inter- preting the laws or the Constitution shall form part of the legal system of the Philippines. (n) JUDICIAL CONSTRUCTION AND INTERPRETATION. The courts have the principal function of not only resolving legal controversies but also of interpreting and construing vague provisions of law relative to a particular dispute. Construction, verily, is the art or process of discovering and expounding the meaning and intention of the authors of the law with respect to its application to a given case, where that intention is rendered doubtful, among others by reason of the fact that the given case is not explicitly provided for in the law (Black, Interpretations of Laws, page 1, cited in Caltex, Inc. v. Palomar, 18 SCRA 247). Art. 8 EFFECT AND APPLICATION OF LAWS 15 EFFECT OF JUDICIAL DECISION. Judicial decisions applying and interpreting the law shall form part of the legal system of the Philippines. In effect, judicial decisions, although in themselves not laws, assume the same authority as the statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria which must control the actuations not only of those called upon to abide thereby but also those duty bound to enforce obedience thereto (Caltex, Inc. v. Palomar, 18 SCRA 247). These decisions also constitute evidence of what the law means (People v. Licera, 65 SCRA 270). The settled rule supported by numerous authorities is a restatement of the legal maxim “legis interpretatio legis vim obtinet” — the interpretation placed upon the written law by a competent court has the force of law (People v. Jabinal, 55 SCRA 607). Judicial decisions of the Supreme Court are authoritative and precedent-setting while those of the inferior courts and the Court of Appeals are merely persuasive. Indeed, it is the duty of judges to apply the law as interpreted by the Supreme Court (Secretary of Justice v. Catolico, 68 SCRA 62; Albert v. CFI, 23 SCRA 948). WHEN JUDICIAL DECISIONS DEEMED PART OF THE LAW. The application and interpretation placed by the [Supreme] Court upon a law is part of the law as of the date of the enactment of the said law since the [Supreme] Court’s application and interpretation merely established the contemporaneous legislative intent that the construed law purports to carry into effect (People v. Licera, 65 SCRA 270). However, in People v. Jabinal, 55 SCRA 607, the Supreme Court held that: when a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively, and should not apply to parties who had relied on the old doctrine and acted on the faith thereof. This is especially true in the construction and application of criminal laws, where it is necessary that the punishability of an act be reasonably foreseen for the guidance of society. Thus, in the Jabinal case, where the accused was conferred his appointment as a secret confidential agent and authorized to possess a firearm in 1964 pursuant to a prevailing doctrine enunciated by the Supreme Court in two previous cases, under which no criminal 16 PERSONS AND FAMILY RELATIONS LAW Art. 9 liability attached in connection with the possession of said firearm in spite of the absence of a permit, the Supreme Court ruled that said accused should be absolved of the crime charged. This is so even if the said two decisions were subsequently reversed by the Supreme Court in 1967. The doctrine laid down in 1967 should be prospectively applied and should not prejudice persons who relied on the overturned doctrines while the same were still controlling. Thus, in People v. Licera, 65 SCRA 270, it has likewise been held that where a new doctrine abrogates an old rule, the new doctrine should operate prospectively only and should not adversely affect those favored by the old rule, especially those who relied thereon and acted on the faith thereof. In Apiag v. Cantero, A.M. No. MTJ 95-1070, February 12, 1997, 79 SCAD 327, where a judge entered into a second marriage contract in 1986 without having his first void marriage judicially declared a nullity, the Supreme Court ruled that the second marriage cannot be the basis of administrative liability against the judge for immorality because, at the time of the second marriage, the prevailing jurisprudence was that a judicial declaration of nullity is not needed in void marriages. The subsequent marriage of the judge was solemnized just before the Supreme Court decided the case of Wiegel v. Sempio Diy (143 SCRA 499), declaring that there was a need for a judicial declaration of nullity of a void marriage. Article 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. (6) DUTY OF JUDGES. Judges are tasked with the dispensation of justice in accordance with the constitutional precept that no person shall be deprived of life, liberty, and property without due process of law. Judges must not evade performance of this responsibility just because of an apparent non-existence of any law governing a particular legal dispute or because the law involved is vague or inadequate. He must always be guided by equity, fairness, and a sense of justice in these situations. Where the conclusions of a judge in his decision are not without logic or reason, he cannot be said to have been incompetent (Corpus v. Cabaluna, 55 SCRA 374). Thus, in a case where the paraphernal property of the wife was demolished to give way for the construction of another building which redounded to the benefit of the conjugal partnership of gains Art. 9 EFFECT AND APPLICATION OF LAWS 17 of the spouses and where the claim of the wife to be reimbursed of the value of the demolished property was resisted because the law did not expressly provide that reimbursement can be made by the conjugal partnership at the time of its liquidation of the amount of the property demolished, the Supreme Court ruled for the reimbursement by saying, thus: x x x it is but just therefore that the value of the old buildings at the time they were torn down should be paid to the wife. We dismiss, as without any merit whatever the appellant’s contention that because Article 1404, par. 2 of the Civil Code does not provide for reimbursement of the value of demolished improvements, the wife should not be indemnified. Suffice it to mention the ancient maxim of the Roman law, “Jure naturae aequum est, meminem cum alterius detrimento et injuria fieri locupletiorem” which was restated by the Partidas in these terms: “Ninguno non deue enriquecerse tortizeramente con dano de otro.” When the statutes are silent or ambiguous, this is one of those fundamental principles which the courts invoke in order to arrive at a solution that would respond to the vehement urge of conscience (In re Padilla, 74 Phil. 377). JUDICIAL LEGISLATION. Our government is divided into three great departments, namely the executive, the legislature and the judiciary. Each department cannot encroach into the respective domain of the other. Hence, the legislature cannot undertake the execution of the law. Neither could the executive legislate substantial law. The judiciary is tasked with resolving legal controversies and interpreting statutes. The judiciary cannot legislate. Legislation is the function of Congress. Interestingly however, in Floresca v. Philex Mining Corporation, 136 SCRA 136, the Supreme Court said that, while there is indeed the existence of the concept that the courts cannot engage in judicial legislation, that myth has been exploded by Article 9 of the new Civil Code, which provides that “no judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.’’ Hence, even the legislator himself, through Article 9 of the Civil Code, recognizes that in certain instances, the court, in the language of Justice Holmes, “do and must legislate” to fill in the gaps in the law; because the mind of the legislator, like all human beings, is finite and therefore cannot envisage all possible cases to which the law may apply. Nor has the human mind the infinite capacity to anticipate all situations. 18 PERSONS AND FAMILY RELATIONS LAW Arts. 10-12 Article 10. In case of doubt in the interpretation and application of laws, it is presumed that the lawmaking body intended right and justice to prevail. (n) DOUBTFUL STATUTES. Where the law is clear, it must be applied according to its unambiguous provisions. It must be taken as it is devoid of judicial addition and subtraction (Acting Commissioner of Customs v. Manila Electric Company, 77 SCRA 469). The first and foremost duty of the court is to apply the law. Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them (Republic Flour Mills, Inc. v. Commissioner of Customs, 39 SCRA 269). If there is ambiguity in the law, interpretation of the law requires fidelity to the legislative purpose. What Congress intended is not to be frustrated. Its objective must be carried out. Even if there be doubt as to the meaning of the language employed, the interpretation should not be at war with the end sought to be attained (Republic Flour Mills, Inc. v. Commissioner of Customs, 39 SCRA 269). The Supreme Court has time and again cautioned against narrowly interpreting a statute as to defeat the purpose of the legislator and stressed that it is of the essence of judicial duty to construe statutes so as to avoid such deplorable result (of injustice or absurdity) and that, therefore, a literal interpretation is to be rejected if it would be unjust or lead to absurd results (Bello v. Court of Appeals, 56 SCRA 509). Article 11. Customs which are contrary to law, public order or public policy shall not be countenanced. (n) Article 12. A custom must be proved as a fact, according to the rules of evidence. (n) CUSTOMS. Custom has been defined as a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory. Courts take no judicial notice of custom. A custom must be proved as a fact according to the rules of evidence. A local custom as a source of right cannot be considered by a court of justice unless such custom is properly established by Art. 13 EFFECT AND APPLICATION OF LAWS 19 competent evidence like any other fact. Merely because something is done as a matter of practice does not mean that courts can rely on the same for purposes of adjudication as a juridical custom. Juridical custom must be differentiated from social custom. The former can supplement statutory law or applied in the absence of such statute. Not so with the latter. Customs which are contrary to law, public order or public policy shall not be countenanced. Custom, even if proven, cannot prevail over a statutory rule or even a legal rule enunciated by the Supreme Court (In the Matter of the Petition for Authority to Continue use of the Firm name “Ozaeta, Romulo, etc.,’’ 92 SCRA 1). Article 13. When the law speaks of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded, and the last day included. (7a) YEAR. In Garvida v. Sales, 82 SCAD 188, 271 SCRA 767, the Supreme Court discussed the one-year cycle of successive years in construing Section 428 of the Local Government Code providing that certain elective officials should not be more than 21 years of age on the day of their election, to wit: The provision that an elective official of the SK should not be more than 21 years of age on the day of his election is very clear. The Local Government Code speaks of years, not months, nor days. When the law speaks of years, it is understood that years are 365 days each. One born on the first day of the year is consequently deemed to be one year old on the 365th day after his birth — the last day of the year. In computing years, the first year is reached after completing the first 365 days. After the first 365th day, the first day of the second 365-day cycle begins. On the 365th day of the second cycle, the person turns two years old. This cycle goes on and on in a lifetime — a person turns 21 years old on the 365th day of his 21st 365-day cycle. This means that on his 21st birthday, he has completed the entire span of 20 PERSONS AND FAMILY RELATIONS LAW Art. 13 21 365-day cycles. After this birthday, the 365-day cycle for his 22nd year begins. The day after the 365th day is the first day of the next 365-day cycle and he turns 22 years old on the 365th day. The phrase “not more than 21 years of age” means not over 21 years, not beyond 21 years. It means 21 365-day cycle. It does not mean 21 years and one or some days or a fraction of a year because that would be more than 21 365-day cycles. “Not more than 21 years old” is not equivalent to “less than 22 years old,” contrary to petitioner’s claim. The law does not state that the candidate be less than 22 years on election day. MONTHS AND LEAP YEARS. In National Marketing Corpo- ration v. Tecson, 29 SCRA 70, the Supreme Court explained how days, months, years, including a leap year, should be counted by observing, thus: Pursuant to Article 1144(3) of our Civil Code, an action upon a judgment “must be brought within ten years from the time the right of action accrues,” which, in the language of Art. 1152 of the same Code, “commences from the time the judgment sought to be revived has become final.” This, in turn, took place on December 21, 1955, or thirty (30) days from notice of the judgment — which was received by the defendants herein on November 21, 1955 — no appeal having been taken therefrom. The issue is thus confined to the date on which ten (10) years from December 21, 1955 expired. Plaintiff-appellant alleged that it was December 21, 1965, but appellee Tecson maintains otherwise, because “when the laws speak of years x x x it shall be understood that years are of three hundred sixty-five days each” — according to Article 13 of our Civil Code — and, 1960 and 1964 being leap years, the month of February in both had 29 days, so that ten (10) years of 365 days each, or an aggregate of 3,650 days, from December 21, 1955, expired on December 19, 1965. The lower court accepted this view in its appealed order of dismissal. Plaintiff-appellant insists that the same “is erroneous because a year means a calendar year (Statutory Construction, Interpretation of Laws, by Crowford, p. 383) and since what is being computed here is the number of years, a calendar year should be used as the basis of computation. There is no question that when it is not a leap year, December 21 to December 21 of the following year is one year. If the extra day in a leap year is not a day of the year, because it is the 366th day, then to what Art. 13 EFFECT AND APPLICATION OF LAWS 21 year does it belong? Certainly, it must belong to the year where it falls and, therefore, the 366 days constitute one year. The very conclusion thus reached by appellant shows that its theory contravenes the explicit provision of Art. 13 of the Civil Code of the Philippines, limiting the connotation of each “year” — as the term is used in our laws — to 365 days. Indeed, prior to the approval of the Civil Code of Spain, the Supreme Court thereof had held on March 30, 1887, that, when the law spoke of months, it meant a “natural” month or “solar” month, in the absence of express provision to the contrary. Such provision was incorporated into the Civil Code of Spain, subsequently promulgated. Hence, the same Supreme Court declared that, pursuant to Art. 7 of said Code, “whenever months x x x are referred to in the law, it shall be understood that months are 30 days,” not the “natural,” “solar” or “calendar’’ months, unless they are “designated by name,” in which case “they shall be computed by the actual number of days they have.” This concept was later modified in the Philippines, by Section 13 of the Revised Administrative Code, pursuant to which, “month shall be understood to refer to a calendar month.” In the language of this Court, in People v. Del Rosario [97 Phil. 70-71], “with the approval of the Civil Code of the Philippines (Republic Act 386) x x x we have reverted to the provisions of the Spanish Civil Code in accordance with which a month is to be considered as the regular 30-day month x x x and not the solar or civil month,” with the particularity that, whereas, the Spanish Code merely mentioned “months, days or nights,” ours has added thereto the term “years” and explicitly ordains that “it shall be understood that years are of three hundred sixty-five days.” Although some members of the Court are inclined to think that this legislation is not realistic, for failure to conform with ordinary experience or practice, the theory of plaintiff-appellant herein cannot be upheld without ignoring, if not nullifying, Art. 13 of our Civil Code, and reviving Section 13 of the Revised Administrative Code, thereby engaging in judicial legislation, and, in effect, repealing an act of Congress. If public interest demands a reversion to the policy embodied in the Revised Administrative Code, this may be done through legislative process, not judicial decree. The law likewise states that, if the month is designated by its name, it shall be computed by the number of days which it has. Thus, if the law provides that a particular tax shall be paid in January 1998, it means anytime within the 31 days of January. If the month designated is April, then it means within the 30 days of April. 22 PERSONS AND FAMILY RELATIONS LAW Art. 14 DAY, NIGHT AND PERIOD. The law also provides that when the law speaks of days, it shall be understood that days are of twenty- four hours, and nights from sunset to sunrise. In counting a period, the first day shall be excluded and the last day included. Hence, if a law states that a particular statute is to be effective on the 20th day from its publication and such publication was actually made on February 3, 1998, then the law shall be effective on February 23, 1998. The first day which is February 3, 1998 is excluded while the last day which is February 23, 1998 is included. Article 14. Penal laws and those of public secu- rity and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations. (8a) OBLIGATORY FORCE OF PENAL LAWS. Citizens and foreigners are subject to all penal laws and all other laws designed to maintain public security and safety. The liability for any violation of the said laws will even attach regardless of whether or not a foreigner is merely sojourning in Philippine territory. EXCEPTION. While foreigners may be liable for committing offenses in violation of penal laws and those of public security and safety, they may however be immune from suit and, therefore, cannot be criminally prosecuted in the Philippines in certain cases where the Philippine government has waived its criminal jurisdiction over them on the basis of the principles of public international law and treaty stipulations. Under the 1961 Vienna Convention on Diplomatic Relations of which the Philippines is a signatory, it is provided that the person of the diplomatic agent shall be inviolable and he shall not be liable to any form of arrest or detention (Article 29, Vienna Convention). He shall enjoy immunity from criminal jurisdiction of the receiving state (Article 31, Vienna Convention). A diplomatic agent, under Article 1 of the same convention, is the head of the mission or a member of the diplomatic staff of the mission. Also, heads of state who are officially visiting here in the Philippines are immune from Philippine criminal jurisdiction. Arts. 15-16 EFFECT AND APPLICATION OF LAWS 23 Article 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (9a) NATIONALITY RULE. Regardless of where a citizen of the Philippines might be, he or she will be governed by Philippine laws with respect to his or her family rights and duties, or to his or her status, condition and legal capacity. Hence, if a Filipino, regardless of whether he or she was married here or abroad, initiates a petition abroad to obtain an absolute divorce from his wife or her husband (whether Filipino or foreigner) and eventually becomes successful in getting an absolute divorce decree, the Philippines will not recognize such absolute divorce. This is so because, pursuant to the second paragraph of Article 26 of the Family Code, the only absolute divorce which the Philippines recognizes is one which is procured by the alien spouse of the Philippine citizen. Hence, in the eyes of Philippine law in so far as the Filipino is concerned and in cases where he or she is the one who procures the absolute divorce abroad, his or her status is still married and therefore should he or she marry again, he or she can be considered to have committed either concubinage in case of the husband or adultery in case of the wife (See Tenchavez v. Escano, 15 SCRA 355). Article 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary succes- sions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a) LAW GOVERNING REAL PROPERTIES. The law of the country where the real property is situated shall be the governing law over such real property. However, with respect to the order of succession and the amount of successional rights, whether in 24 PERSONS AND FAMILY RELATIONS LAW Art. 16 intestate or testamentary succession, they shall be regulated by the national law of the deceased and this is applicable regardless of the nature of the property. Thus, in a case where a citizen of Turkey made out a last will and testament providing that his property shall be disposed of pursuant to Philippine laws, the Supreme Court ruled that such provision is illegal and void because, pursuant to Article 10 (now Article 16) of the Civil Code, the national law should govern and therefore Turkish laws and not Philippine laws should apply (Minciano v. Brimo, 50 Phil. 867). In Bellis v. Bellis, 20 SCRA 358, where a foreigner executed a will in the Philippines but, who, at the time of his death, was both a national of the United States and also domiciled in the United States, the Supreme Court observed: Article 16, par. 2 and Article 1039 of the Civil Code render applicable the national law of the decedent, in intestate or testamentary succession, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (c) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that — “ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.” Appellants would, however, counter that Article 17, paragraph three, of the Civil Code, stating that — “Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.” prevails as the exception to Article 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congress deleted Art. 17 EFFECT AND APPLICATION OF LAWS 25 the phrase, “notwithstanding the provisions of this and the next preceding article” when they incorporated Article 11 of the old Civil Code as Article 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Article 10 of the old Civil Code as Article 16 in the new. It must have been their purpose to make the second paragraph of Article 16 a specific provision in itself which must be applied to testate and intestate successions. As further indication of this legislative intent, Congress added a new provision, under Article 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent. It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent’s national law. Specific provisions must prevail over general ones. Appellants would also point out that the decedent execut- ed two wills — one to govern his Texas estate and the other his Philippine estate — arguing from this that he intended Philip- pine law to govern his Philippine estate. Assuming that such was the decedent’s intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Min- ciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner’s will to the effect that his properties shall be distributed in ac- cordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 — now Article 16 — of the Civil Code states said national law should govern. The parties admit that the decedent Amos G. Bellis was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. Article 17. The forms and solemnities of con- tracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solem- 26 PERSONS AND FAMILY RELATIONS LAW Art. 17 nities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a) EXTRINSIC VALIDITY. The law provides clearly that the forms and solemnities of public instruments, wills, and contracts shall be governed by the laws of the country where they are executed. Thus, if in Japan, for example, it is required that for a holographic will to be valid the date thereof need not be in the handwriting of the testator, “then’’ such a will is valid even if under Philippine laws the contents of a holographic will, including the date, must all be in the handwriting of the testator. ACTS BEFORE DIPLOMATIC AND CONSULAR OFFI- CIALS. Diplomatic and consular officials are representatives of the state. Hence, any act or contract made in a foreign country before diplomatic and consular officials must conform with the solemnities under Philippine law. This is so, also, because the host country where such diplomatic or consular officials are assigned, by rules of international law, waives its jurisdiction over the premises of the diplomatic office of another country located in the said host country. Hence, marriages between two Filipinos solemnized by a consular official abroad must be made following Philippine laws. Thus, the issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of the marriage shall be performed by a consul-general, consul, or vice-consul abroad (See Article 10 of the Family Code). PROHIBITIVE LAWS. Under our law, prohibitive laws con- erning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws, or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. Hence, considering that the only ways to terminate a marriage in the Philippines are by nullifying a marriage or by annulling the same on the basis of the specific grounds exclusively enumerated under the Family Code of the Philippines, and by filing an affidavit of reappearance for the purpose of terminating a subsequent Art. 18 EFFECT AND APPLICATION OF LAWS 27 marriage solemnized under Article 41 of the same code, any Filipino who procures an absolute divorce abroad will remain, in the eyes of Philippine law, as not having been divorced. Thus, in a case where a Filipina wife obtained a divorce abroad and later remarried an American, the Filipino husband in the Philippines can file a legal separation case against the wife for having technically committed adultery, considering that the absolute divorce is not recognized in the Philippines (See Tenchavez v. Escano, 15 SCRA 355). Article 18. In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code. (16a) SUPPLETORY NATURE. The law clearly provides that, in matters which are governed by the Code of Commerce or by special laws, any deficiency in the latter shall be supplied by the provisions of the Civil Code. Thus, in Insular v. Sun Life, 41 Phil. 269, the Supreme Court held that there was no perfection of a life annuity because there was no acceptance of the contract. The Supreme Court applied the rules on contracts under the Civil Code in view of the absence of any provision in the Insurance Act relative to the manner by which a contract is perfected. Thus, the Supreme Court observed and ruled: While, as just noticed, the Insurance Act deals with life insurance, it is silent as to the methods to be followed in order that there may be a contract of Insurance. On the other hand, the Civil Code in Article 1802 not only describes a contract of life annuity markedly similar to the one we are considering, but in two other articles, gives strong clues as to the proper disposition of the case. For instance, Article 16 of the Civil Code provides that “In matters which are governed by special laws, any deficiency of the latter shall be supplied by the provisions of this Code” [now Article 18 of the Civil Code]. On the supposition, therefore, which is incontestable, that the special law on the subject of insurance is deficient in enunciating the principles governing acceptance, the subject-matter of the Civil Code, if there be any, would be controlling. In the Civil Code is found Article 1262, providing that “Consent is shown by the concurrence of offer and acceptance with respect to the thing and consideration which are to constitute the contract. An acceptance made by letter shall not bind the person making the offer except from 28 PERSONS AND FAMILY RELATIONS LAW Art. 18 the time it came to his knowledge. The contract, in such case, is presumed to have been entered into at the place where the offer was made.” This latter article is in opposition to the provisions of Article 54 of the Code of Commerce. If no mistake has been made in announcing the successive steps by which we reach a conclusion, then the only duty remaining is for the court to apply the law as it is found. The legislature in its wisdom having enacted a new law on insurance, and expressly repealed the provisions in the Code of Commerce on the same subject, and having thus left a void in the commercial law, it would seem logical to make use of the only pertinent provision of law found in the Civil Code, closely related to the chapter concerning life annuities. The Civil Code rule that an acceptance made by letter shall bind the person making the offer only from the date it came to his knowledge, may not be the best expression of modern commercial usage. Still, it must be admitted that its enforcement avoids uncertainty and tends to security. Not only this, but in order that the principle may not be taken too lightly, let it be noticed that it is identical with the principles announced by a considerable number of respectable courts in the United States. x x x We hold that the contract for a life annuity in the case at bar was not perfected because it has not been proved satisfactorily that the acceptance of the application ever came to the knowledge of the applicant. Also, it has been held that the word “loss” in Section 3(6) of the Carriage of Goods by Sea Act is determinable under the concept given to it by the Civil Code in accordance with Article 18 providing for the suppletory nature of the said code (Ang v. American Steamship Agencies, Inc., 19 SCRA 631). However, not all deficiency in the Carriage of Goods by Sea Act can be supplied by the Civil Code. Hence, in Dole Philippines, Inc. v. Maritime Co. of the Philippines, 148 SCRA 119, the Supreme Court rejected the contention of the petitioner that the one-year prescriptive period for making a claim for loss or damage under Section 3, paragraph 6 of the Carriage of Goods by Sea Act was tolled by making an extrajudicial demand pursuant to Article 1155 of the Civil Code which should be applied in a suppletory nature pursuant to Article 18 of the same code. Pertinently, the Supreme Court observed and ruled: The substance of its argument is that since the provisions of the Civil Code are, by express mandate of said code, suppletory Art. 18 EFFECT AND APPLICATION OF LAWS 29 of deficiencies in the Code of Commerce and special laws in matters governed by the latter [Article 18, Civil Code], and there being “* * * a patent deficiency * * * with respect to the tolling of the prescriptive period * * * provided for in the Carriage of Goods by Sea Act, prescription under said Act is subject to the provisions of Article 1155 of the Civil Code on tolling; and because Dole’s claim for loss or damage made on May 4, 1972 amounted to a written extrajudicial demand which would toll or interrupt prescription under Article 1155, it operated to toll the prescription also in actions under the Carriage of Goods by Sea Act. To much the same effect is the further argument based on Article 1176 of the Civil Code which provides that the rights and obligations of common carriers shall be governed by the Code of Commerce and by special laws in all matters not regulated by the Civil Code. These arguments might merit weightier consideration were it not for the fact that the question has already received a definitive answer, adverse to the position taken by Dole, in the Yek Tong Lin Fire & Marine Insurance Co., Ltd. v. American President Lines, Inc. [103 Phil. 1125]. There, in a parallel factual situation, where suit to recover for damage to cargo shipped by vessel from Tokyo to Manila was filed more than two years after the consignees’ receipt of the cargo, this Court rejected the contention that an extrajudicial demand tolled the prescriptive period provided for in the Carriage of Goods by Sea Act, viz.: “In the second assignment of errors plaintiff-appellant argues that it was error for the court a quo not to have considered the action of plaintiff-appellant suspended by the extrajudicial demand which took place, according to defendant’s own motion to dismiss, on August 22, 1952. We notice that while plaintiff avoids stating any date when the goods arrived in Manila, it relies upon the allegation made in the motion to dismiss that a protest was filed on August 22, 1952 — which goes to show that plaintiff-appellant’s counsel has not been laying the facts squarely before the court for the consideration of the merits of the case. We have already decided that in a case governed by the Carriage of Goods by Sea Act, the general provisions of the Code of Civil Procedure on prescription should not be made to apply (Chua Kuy v. Everett Steamship Corp., G.R. No. L-5554, May 27, 1953). Similarly, we now hold that in such a case the general provisions of the new Civil Code (Article 1155) cannot be made to apply, as such application would have the effect of extending the one-year period of prescription fixed in the law. It is desirable that matters affecting transportation of goods by sea be decided in as short a time as possible; the application of the provisions of Article 1155 of the new Civil Code would 30 PERSONS AND FAMILY RELATIONS LAW Art. 18 unnecessarily extend the period and permit delays in the settlement of questions affecting transportation, contrary to the clear intent and purpose of the law. * * *’’ However, for suits not predicated upon loss or damage but on alleged misdelivery or conversion of the goods, the applicable rule on prescription is that found in the Civil Code, namely, either ten years for breach of a written contract or four years for quasi-delict, and not the rule on prescription in the Carriage of Goods by Sea Act (Ang v. American Steamship Agencies, Inc., 19 SCRA 631). 31 Chapter 2 HUMAN RELATIONS Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Article 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. Article 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. HONESTY AND GOOD FAITH, ACTS CONTRARY TO LAW, AND AGAINST MORALS, GOOD CUSTOMS AND PUBLIC POLICY. Article 19 provides a rule of conduct that is consistent with an orderly and harmonious relationship between and among men and women. It codifies the concept of what is justice and fair play so that the abuse of right by a person will be prevented. Article 19, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which may be observed not only in the exercise of one’s rights but also in the performance of one’s duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes the primordial limitation on all rights; that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become a source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. xxx xxx xxx 31 32 PERSONS AND FAMILY RELATIONS LAW Arts. 19-21 The elements of an abuse of right under Article 19 are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another x x x (Albenson Enterprises Corp. v. Court of Appeals, 217 SCRA 16). On the other hand, the 1947 Code Committee in explaining Article 20 stated that the said rule enunciated in the said article pervades the entire legal system, and renders it impossible that a person who suffers damage because another has violated some legal provision, should find himself without relief (Report of the Code Commission, page 39). In Development Bank of the Philippines v. Court of Appeals, 445 SCRA 500, the Supreme Court said: Malice or bad faith is at the core of said provision. Good faith is presumed and he who alleges bad faith has the duty to prove the same. Good faith refers to the state of the mind which is manifested by the acts of the individual concerned. It consists of the intention to abstain from taking an unconscionable and unscrupulous advantage of another. Bad faith does not simply connote bad judgment or simple negligence, dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of known duty due to some motives or interest or ill-will that partakes of the nature of fraud. Malice connotes ill-will or spite and speaks not in response to duty. It implies an intention to do ulterior and unjustifiable harm. Malice is bad faith or bad motive. According to Albenson Enterprises Corp. v. Court of Appeals, 217 SCRA 16, Article 20 speaks of the general sanction for all other provisions of law which do not especially provide their own sanction. Thus, anyone who, whether willfully or negligently, in the exercise of his legal right or duty, causes damage to another, shall indemnify his or her victim for injuries suffered thereby. Insofar as Article 21 is concerned, the same 1947 Code Committee stated that it was designed to fill in the “countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury” (Report of the Code Commission, page 39, Manuel v. People, 476 SCRA 461). The 1947 Code Commission continued, thus: “An example will illustrate the purview of the foregoing norm: ‘A’ seduces the nineteen year-old daughter of ‘X.’ A promise of marriage either has not been made, or can not be Arts. 19-21 HUMAN RELATIONS 33 proved. The girl becomes pregnant. Under the present laws, there is no crime, as the girl is above eighteen years of age. Neither can any civil action for breach of promise of marriage be filed. Therefore, though a grievous moral wrong has been committed, and though the girl and her family have suffered incalculable moral damage, she and her parents cannot bring any action for damages. But under the proposed article, she and her parents would have such a right of action. Thus, at one stroke, the legislator, if the foregoing rule is approved, would vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to provide for specifically in the statutes. But, it may be asked, would not this proposed article obliterate the boundary line between morality and law? The answer is that, in the last analysis every good law draws its breadth of life from morals, from those principles which are written with words of fire in the conscience of man. If this premise is admitted, then the proposed rule is a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs which cause damage. When it is reflected that while codes of law and statutes have changed from age to age, the conscience of man has remained fixed to its ancient moorings, one can not feel that it is safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative attributes. Furthermore, there is no belief of more baneful conse- quences upon the social order than that a person may with impunity cause damage to his fellowmen so long as he does not break any law of the State, though he may be defying the most sacred postulates of morality. What is more, the victim loses faith in the ability of the government to afford him protection or relief. (Report of the Code Commission, pages 40-41). Article 21 deals with acts contra bonus mores, and has the following elements: 1) There is an act which is legal; 2) but which is contrary to morals, good customs, public order, or public policy; 3) and it is done with intent to injure (Albenson Enterprises Corp. v. Court of Appeals, 217 SCRA 16). It presupposes loss or injury, material or otherwise, which one may suffer as a result of such violation (Cogeo-Cubao Operators and Drivers Association v. Court of Appeals, 207 SCRA 343). Articles 19, 20, and 21 are related to each other and, under these articles, an act which causes injury to another may be made 34 PERSONS AND FAMILY RELATIONS LAW Arts. 19-21 the basis for an award of damages (Albenson Enterprises Corp. v. Court of Appeals, 217 SCRA 16). There is a common element under Articles 19 and 21, and that is, the act must be intentional. However, Article 20 does not distinguish: the act may be done either “willfully,” or “negligently” (Ibid.). In a case where a particular government employee was singled out by the deputy administrator and strictly subjected to the rules for obtaining benefits after retirement while employees similarly situated were liberally granted their benefits for as long as the rules were substantially complied with by them, the Supreme Court affirmed the ruling of the lower court awarding damages in favor of the government employee on the basis of Article 19 of the Civil Code by observing and stating, thus: As we said, the acts of petitioner were legal (that is, pursuant to procedure), as he insists in this petition, yet it does not follow, as we said, that his acts were done in good faith. For emphasis, he had no valid reason to “go legal” all of a sudden with respect to Mr. Curio, since he had cleared three employees who, as the Sandiganbayan found, “were all similarly circumstanced in that they all had pending obligations when, their clearances were filed for consideration, warranting similar official action.” The Court is convinced that the petitioner had unjustly discriminated against Mr. Curio. It is no defense that the petitioner was motivated by no ill will (a grudge, according to the Sandiganbayan), since the facts speak for themselves. It is no defense either that he was, after all, complying merely with legal procedures since, as we indicated, he was not as strict with respect to the three retiring other employees. There can be no other logical conclusion that he was acting unfairly, no more, no less, to Mr. Curio. It is the essence of Article 19 of the Civil Code, under which the petitioner was made to pay damages, together with Article 27, that the performance of duty be done with justice and good faith. In the case of Velayo v. Shell Co. of the Philippines, 120 Phil. 187, we held the defendant liable under Article 19 for disposing of its property — a perfectly legal act — in order to escape the reach of a creditor. In two fairly recent cases, Sevilla v. Court of Appeals, 160 SCRA 171 and Valenzuela v. Court of Appeals, 190 SCRA 1, we held that a principal is liable under Article 19 in terminating the agency — again, a legal act — when terminating the agency would deprive the agent of his legitimate business (Llorente v. Sandiganbayan, 202 SCRA 309). Arts. 19-21 HUMAN RELATIONS 35 Following the same principle, though a person may not have acted criminally, he or she can nevertheless undertake acts which injure another. In Philippine National Bank v. Court of Appeals, 83 SCRA 237, where a sugar quota was mortgaged to the PNB and a lease of such sugar quota allotment made by the debtor to a third person required the consent of the PNB and where the responsible officers of the same told the lessor and the lessee that PNB will approve the lease if the amount thereof was increased from P2.50 to P2.80 per picul and whereupon, the lessor and the lessee agreed to the increase which prompted even the vice-president of the bank to recommend to the PNB Board of Directors the approval of the lease but which, consequently, was twice turned down by the said Board because it wanted to raise the consideration to P3.00 per picul, resulting to the loss by the lessee of the amount of P2,800, the Supreme Court, after deliberating on the other important circumstances surrounding the case, observed and ruled, to wit: There is no question that Tapnio’s failure to utilize her sugar quota for the crop year 1956-1957 was due to the disapproval of the lease by the Board of Directors of the petitioner. The issue, therefore, is whether or not petitioner is liable for the damage caused. As observed by the trial court, time is of the essence in the approval of the lease of sugar quota allotments, since the same must be utilized during the milling season, because any allotment which is not filled during such milling season may be reallocated by the Sugar Quota Administration to other holders of allotments. There was no proof that there was any other person at that time willing to lease the sugar quota allotment of private respondents for a price higher than P2.80 per picul. “The fact that there were isolated transactions wherein the consideration for the lease was P3.00 a picul,” according to the trial court, “does not necessarily mean that there are always ready takers of said price.” The unreasonableness of the position adopted by the petitioner’s Board of Directors is shown by the fact that the difference between the amount of P2.80 per picul offered by Tuazon and the P3.00 per picul demanded by the Board amounted only to a total sum of P200.00. Considering that all the accounts of Rita Gueco Tapnio with the Bank were secured by the chattel mortgage on standing crops, assignment of leasehold rights and interests on her properties, and surety bonds and that she had apparently “the means to pay her obligation to the Bank, as shown by the fact that she has been granted several sugar crop loans of the total value of almost P80,000 for the agricultural year 1952 to 1956,” there was 36 PERSONS AND FAMILY RELATIONS LAW Arts. 19-21 no reasonable basis for the Board of Directors of petitioner to have rejected the lease agreement because of a measly sum of P200.00. While petitioner had the ultimate authority of approving or disapproving the proposed lease since the quota was mortgaged to the Bank, the latter certainly cannot escape its responsibility of observing, for the protection of the interest of private respondents, that degree of care, precaution and vigilance which the circumstances justly demand in approving or disapproving the lease of said sugar quota. The law makes it imperative that every person “must in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith” (Article 19 of the Civil Code). This petitioner failed to do. Certainly, it knew that the agricultural year was about to expire, that by its disapproval of the lease private respondents would be unable to utilize the sugar quota in question. In failing to observe the reasonable degree of care and vigilance which the surrounding circumstances reasonably impose, petitioner is consequently liable for damages caused on private respondents. Under Article 21 of the New Civil Code, “any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.” The aforecited provisions on human relations were intended to expand the concept of torts in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically provide in the statutes. Also, in a case where a person sold a parcel of land to another; thereby transferring title to such other person and subsequently the same transferor claimed and misrepresented that the title to the said land was lost during the Second World War, which enabled him to procure another title which he used to have the same property sold to another person with the active participation of the register of deeds and the lawyer-son of the said register of deeds, who both knew of the first sale, the Supreme Court held that the register of deeds and his lawyer son are likewise civilly liable for failure to observe honesty and good faith in the performance of their duties as public officer and as member of the Bar (Art. 19, New Civil Code) or for willfully or negligently causing damage to another (Art. 20, New Civil Code), or for willfully causing loss or injury to another in a manner that is contrary to morals, good customs and/or public Arts. 19-21 HUMAN RELATIONS 37 policy (Art. 21, New Civil Code). (Vda. de Laig v. Court of Appeals, 82 SCRA 294). In the same vein, where the petitioners were denied irrigation water for their farm lots in order to make them vacate their landholdings, it was held that the defendants violated the plaintiff’s rights and caused prejudice to the latter by the unjustified diversion of the water for which the award of damages under Article 21 can be made (Magbanua v. IAC, 137 SCRA 329). Also, creditors are protected in cases of contracts intended to defraud them. Further, any third person who induces another to violate his contract shall be liable for damages to the other contracting party also under Articles 20 and 21 of the Civil Code (People’s Bank v. Dahican Lumber Company, 20 SCRA 84). Similarly, in a case where a drivers’ group, claiming to protect the interest of all drivers of a particular transportation company and in protest of certain policies of the said company, decided to take over the operation of the jeepney service in the Cogeo-Cubao route without authorization from the Public Service Commission and in violation of the right of the transportation company to operate its services in the said route under its certificate of public convenience, the Supreme Court affirmed the lower court’s decision awarding damages in favor of the transportation company by observing and ruling, to wit: x x x Although there is no question that petitioner can exercise their constitutional right to redress their grievances with respondent Lungsod Corp., the manner by which this constitutional right is to be exercised should not undermine public peace and order nor should it violate the legal rights of other person. Article 21 of the Civil Code provides that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages. The provision covers a situation where a person has a legal right which was violated by another in a manner contrary to morals, good customs or public policy. It presupposes loss or injury, material or otherwise, which one may suffer as a result of such violation. It is clear from the facts of this case that petitioner formed a barricade and forcibly took over the motor units and personnel of the respondent corporation. This paralyzed the usual activities and earnings of the latter during the period of ten days and violated the right of respondent Lungsod Corp. to conduct its operations thru its authorized officers. 38 PERSONS AND FAMILY RELATIONS LAW Arts. 19-21 Significantly, while a breach of promise to marry is not actionable (Gashem Shookat Baksh v. Court of Appeals, 219 SCRA 115), it has been held that to formally set a wedding and go through and spend for all the wedding preparations and publicity, only to walk out of it when the matrimony was about to be solemnized, is a different matter. This is palpably and unjustifiably contrary to good customs for which the defendant must be held answerable for damages in accordance with Article 21 of the Civil Code (Wassmer v. Velez, 12 SCRA 649). In the same vein, it has been held that for a married man to force a woman not his wife to yield to his lust constitutes a clear violation of the rights of his victim which entitled her to compensation under Article 21 of the Civil Code (Quimiguing v. Icao, 34 SCRA 133). Similarly, in Gashem Shookat Baksh v. Court of Appeals, 219 SCRA 115, the Supreme Court ruled: In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that where a man’s promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. It is essential however, that such injury should have been committed in a manner contrary to morals, good customs or public policy. In the instant case, respondent Court found that it was the petitioner’s “fraudulent and deceptive protestations of love for and promise to marry plaintiff that made her surrender her virtue and womanhood to him and to live with him on the honest and sincere belief that he would keep said promise, and it was likewise these fraud and deception on appellant’s part that made plaintiff’s parents agree to their daughter’s living-in with him preparatory to their supposed marriage.” In short, private respondent surrendered her virginity, the cherished possession of every single Filipina, not because of lust but because of moral seduction, the kind illustrated by the Code Commission in its example earlier adverted to. xxx xxx xxx The pari delicto rule does not apply in this case for while indeed, the private respondent may not have been impelled Art. 22 HUMAN RELATIONS 39 by the purest of intentions, she eventually submitted to the petitioner in sexual congress not out of lust, but because of moral seduction. In fact, it is apparent that she had qualms of conscience about the entire episode for as soon as she found out that petitioner was not going to marry her after all she left him. She is not, therefore, in pari delicto with the petitioner. Pari delicto means “in equal fault; in a similar offense or crime; equal in guilt or in legal fault.” At most, it could be conceded that she is merely in delicto. “Equity often interfered for the relief of the less guilty of the parties, where his transgression has been brought about by the imposition of undue influence of the party on whom the burden of the original wrong principally rests, or where his consent to the transaction was itself procured by fraud.” However, no damages can be recovered under Articles 19 and 21 where the sexual intercourse is a product of voluntariness and mutual desire (Hermosisima v. Court of Appeals, 109 Phil. 629). Thus, in Constantino v. Mendez, 209 SCRA 18, where it was shown that where a man invited the woman to go to a hotel after meeting in a restaurant and that the woman was 28 years old then and admitted that she was attracted to the man and that sexual intercourse transpired between the two even after the man confessed that he was married, the Supreme Court, in disregarding the claim of the woman that she was deceived by the man in his representation that he would have his marriage with his present wife annulled and thereafter he would marry her, accordingly held that no damages under Articles 19 and 21 can be awarded to the woman because the attraction to the man was the reason why she surrendered her womanhood. Had she been induced or deceived because of a promise of marriage, she could have immediately severed her sexual relation with the man when she was informed after their first sexual intercourse that he was a married man. Her declaration that in the following three months, they repeated their sexual intercourse only indicated that passion and not the alleged promise of marriage was the moving force that made her submit herself to the man. Article 22. Every person who through an act or performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. 40 PERSONS AND FAMILY RELATIONS LAW Arts. 22-23 Article 23. Even when an act or event causing damage to another’s property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited. UNJUST ENRICHMENT. No person can claim what is not validly and legally his or hers. Hence, he or she should not unduly profit on something which does not meritoriously belong to him or her. This is the concept of Article 22, namely, the prevention of unjust enrichment. Thus, in a case where an original buyer bought 170 cavans of palay from the seller which, though partly unpaid, the said original buyer later sold and delivered the said rice to a third person who, in turn, upon being informed that the said cavan of palay was not yet fully paid from the original seller, was reimbursed of the amount of money he paid to the original buyer but did not deliver back the subject cavan of palay, the Supreme Court, referring to Article 22, observed and ruled: Having been repaid the purchase price by Chan Lin, the sale, as between them, had been voluntarily rescinded, and the petitioner-defendant was thereby divested of any claim to the rice. Technically, therefore, he should return the rice to Chan Lin, but since even the latter, again from the petitioner- defendant’s own testimony above-quoted, was ready to return the rice to Sandoval, and the latter’s driver denies that the rice had been returned by petitioner-defendant either to him or to Chan Lin, it follows that petitioner-defendant should return the rice to Sandoval. Petitioner-defendant cannot be allowed to unjustly enrich himself at the expense of another by holding on to property no longer belonging to him. In law and in equity, therefore, Sandoval is entitled to recover the rice, or the value thereof since he was not paid the price therefor (Obana v. Court of Appeals, 135 SCRA 557). Also, in a case where the receiver of certain properties, without approval of the court that appointed him as receiver, entered in an indemnity agreement whereby he bound himself liable as principal to the obligations of the corporation under receivership, such that the creditor of the corporation sought payment of the construction materials and improvements made on a theater owned by the corporation under receivership from the said receiver who evaded payment on the ground that the theater was adjudicated in another court case as belonging to him and not the corporation Arts. 22-23 HUMAN RELATIONS 41 under receivership, the Supreme Court held that it is but just that said owner-receiver should reimburse the creditor of the cost of improvements made on the theater as he benefited from it and further observed and ruled: Moreover, it will be recalled that the obligation due the Pacific Merchandising Corporation represented the cost of materials used in the construction of the Paris Theatre. There can not be any question that such improvements, in the final analysis, redounded to the advantage and personal profit of appellant Pajarillo because the judgment in Civil Case No. 50201, which was in substance affirmed by the Appellate Court ordered that the “possession of the lands, buildings, equipment, furniture, and accessories * * *” of the theater be transferred to said appellant as owner thereof. As the trial court aptly observed “* * * it is only simple justice that Pajarillo should pay for the said claim; otherwise, he would be enriching himself without paying the plaintiff for the cost of certain materials that went into its construction. * * * It is argued, however, that he did so only as a receiver x x x but all of the properties of Leo enterprises passed on to Pajarillo by virtue of the judgment in Civil Case No. 50210 * * * * *.” The Roman Law principle of “Nemo cum alterious detrimento locupletari potest” is embodied in Article 22 (Human Relations) and Articles 2142 to 2175 (Quasi-Contracts) of the New Civil Code. Long before the enactment of this Code, however, the principle of unjust enrichment, which is basic in every legal system, was already expressly recognized in this jurisdiction. As early as 1903, in Perez v. Pomar, 2 Phil. 682, this Court ruled that where one has rendered services to another, and these services are accepted by the latter, in the absence of proof that the service was rendered gratuitously, it is but just that he should pay a reasonable remuneration therefor because “it is a well-known principle of law, that no one should be permitted to enrich himself to the damage of another.” Similarly in 1914, this Court declared that in this jurisdiction, even in the absence of statute, “* * * under the general principle that one person may not enrich himself at the expense of another, a judgment creditor would not be permitted to retain the purchase price of land sold as the property of the judgment debtor after it has been made to appear that the judgment debtor had no title thereto * * *.” The foregoing equitable principle which springs from the fountain of good conscience are applicable to the case at bar (Pacific Merchandising Corporation v. Consolacion Insurance & Surety Co., Inc., 73 SCRA 564). 42 PERSONS AND FAMILY RELATIONS LAW Arts. 22-23 In Republic v. Ballocanag G.R. No. 163794, November 28, 2008, 572 SCRA 436, where a person in good faith invested money to develop and grow fruit-bearing trees on land which he believed as his own but which turned out as timberland belonging to the State, the Supreme Court recognized the ownership of the State over the land but ordered it to pay the person the value of the actual improvements he made. More particularly, the Supreme Court said: To order Reyes to simply surrender all of these fruit- bearing trees in favor of the State — because the decision in the reversion case declaring that the land is part of inalienable forest land and belongs to the State is already final and immutable — would inequitably result in unjust enrichment of the State at the expense of Reyes, a planter in good faith. Nemo cum alterius detrimento locupletari potest. This basic doctrine on unjust enrichment simply means that a person shall not be allowed to profit or enrich himself inequitably at another’s expense. There is unjust enrichment when a person unjustly retains a benefit to the loss of another, or when a person retains money or property of another against the fundamental principles of justice, equity and good conscience. Article 22 of the Civil Code states the rule in this wise: ART. 22. Every person who, through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. The requisites for the application of this doctrine are present in the instant case. There is enrichment on the part of the petitioner, as the State would come into possession of – and may technically appropriate – the more than one thousand fruit-bearing trees planted by the private respondent. There is impoverishment on the part of Reyes, because he stands to lose the improvements he had painstakingly planted and invested in. There is lack of valid cause for the State to acquire these improvements, because, as discussed above, Reyes introduced the improvements in good faith. The prohibition against unjust enrichment likewise applies to the Government. Thus, in Republic v. Lacap, G.R. No. 158253, March 2, 2007, 517 SCRA 255, where the contractor who was engaged by the government was found out to have an expired license in violation of the law, the Supreme Court ruled that this will subject the contractor to penalties but it would not deprive him of the payment due him. The Supreme Art. 24 HUMAN RELATIONS 43 Court said that “since respondent had rendered services to the full satisfaction and acceptance by petitioner, then the former should be compensated for them. To allow petitioner to acquire the finished project at no cost would undoubtedly constitute unjust enrichment for the petitioner to the prejudice of the respondent. Such unjust enrichment is not allowed by law.” As for Article 23, it likewise seeks to prevent unjust enrichment. The 1947 Code Commission illustrates, to wit: For example: Without A’s knowledge, a flood drives his cattle to the cultivated highland of B. A’s cattle are saved, but B’s crop is destroyed. True, A was not at fault, but he was benefited. It is but right and equitable that he should indemnify B (Report of the Code Commission, pages 41-42). Article 24. In all contractual, property or other relations, when one of the parties is at a disadvan- tage on account of his moral dependence, igno- rance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection. COURT VIGILANCE. The courts must render justice and, therefore, they must be very vigilant in protecting the rights of the disadvantaged with the end in view that any decision will be in consonance with what is right and legal. Thus, in De Lima v. Laguna Tayabas Company, 160 SCRA 70, where the pauper litigants, who were the aggrieved parties in a collision case which was pending for a long time with the court, appealed the decision of the lower court to the Court of Appeals on some points of law but not on the question of the interest which they believed should be awarded to them, the Supreme Court, because of the special circumstances of the case and of the litigants, decided to adopt a liberal view and decided even the issue on the interest which was not appealed in the Court of Appeals by observing and ruling, thus: At any rate, this Court is inclined to adopt a liberal stance in this case as We have done in previous decisions where We have held that litigations should, as much as possible, be decided on their merits and not on technicality. We take note of the fact that petitioners are litigating as paupers. Although they may not have appealed, they had filed their motion for reconsideration with the court a quo which 44 PERSONS AND FAMILY RELATIONS LAW Art. 25 unfortunately did not act on it. By reason of their indigence, they failed to appeal but petitioners De Lima and Requijo had filed their manifestation making reference to the law and jurisprudence upon which they base their prayer for relief while petitioner Flores filed a brief. Pleadings as well as remedial laws should be construed liberally in order that the litigants may have ample opportunity to pursue their respective claims and that a possible denial of substantial justice due to legal technicalities may be avoided. Moreover, under the circumstances of this case where the heirs of the victim in the traffic accident chose not to appeal in the hope that the transportation company will pay the damages awarded by the lower court but unfortunately said company still appealed to the Court of Appeals, which step was obviously dilatory and oppressive of the rights of the said claimants: that the case had been pending in court for about 30 years from the date of the accident in 1958 so that as an exception to the general rule aforestated, the said heirs who did not appeal judgment, should be afforded equitable relief by the courts as it must be vigilant for their protection (see Article 24, Civil Code). The claim for legal interest and increase in the indemnity should be entertained in spite of the failure of the claimants to appeal the judgment. In a case where the parties executed a contract, implemented it for a lengthy period of time pursuant to its unambiguous provisions, and benefited from the same, the Supreme Court rejected the claim of one of the parties that the said party was disadvantaged pursuant to Article 24 considering that it was proven that the parties undertook a lengthy negotiations before the contract was finalized and that the said party was good in business (Spouses Domingo v. Astorga, G.R. No. 130982, September 16, 2005). Article 25. Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution. EXTRAVAGANCE DURING EMERGENCY. The law seeks to prevent inconsiderate and ostentatious activities during times of emergency. However, Article 25 specifically provides for the entities which are given legal standing to seek an injunction: any government or private charitable institution. Art. 26 HUMAN RELATIONS 45 Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of another’s resi- dence; (2) Meddling with or disturbing the private life or family relations of another; (3) Intriguing to cause another to be alienated from his friends; (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. PROTECTION OF HUMAN DIGNITY. The explanation of the 1947 Civil Code Commission relative to the inclusion of Article 26 in the New Civil Code is quite elucidating. The sacredness of human personality is a concomitant of every plan for human amelioration. The touchstone of every system of laws, of the culture and civilization of every country, is how far it dignifies man. If in legislation, inadequate regard is observed for human life and safety; if the laws do not sufficiently forestall human suffering or do not try effectively to curb those factors or influences that would the noblest sentiments; if the statutes insufficiently protect persons from being unjustly humiliated, in short, if human personality is not properly exalted — then the laws are indeed defective. Sad to say, such is to some degree the present state of legislation in the Philippines. To remedy this grave fault in the laws is one of the principal aims of the Project Civil Code. Instances will now be specified x x x (text of Article 26 omitted). The privacy of one’s home is an inviolable right. Yet, the laws in force do not squarely and effectively protect this right. The acts referred to in No. 2 are multifarious, and yet many of them are not within the purview of the laws in force. Alienation of the affection of another’s wife or husband, unless it constitutes adultery or concubinage, is not condemned by the law, much as it may shock society. There are numerous acts, short of criminal unfaithfulness, whereby the husband or wife 46 PERSONS AND FAMILY RELATIONS LAW Art. 26 breaks the marital vows, thus causing untold moral suffering to the other spouse. Why should not these acts be the subject matter of a civil action for moral damages? In American law they are. Again, there is the meddling of so-called friends who poison the mind of one or more members of the family against the other members. In this manner, many a happy family is broken up or estranged. Why should not the law try to stop this by creating a civil action for moral damages? Of the same nature is that class of acts specified in No. 3: intriguing to cause another to be alienated from his friends. Not less serious are the acts mentioned in No. 4: vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect or other personal conditions. The penal laws against defamation and unjust vexation are glaringly inadequate. Religious freedom does not authorize anyone to heap obloquy and disrepute upon another by reason of the latter’s religion. Not a few of the rich people treat the poor with contempt because of the latter’s lowly station in life. To a certain extent this is inevitable, from the nature of the social make-up, but there ought to be a limit somewhere, even when the penal laws against defamation and unjust vexation are not transgressed. In a democracy, such a limit must be established. The courts will recognize it in each case. Social equality is not sought by the legal provision under consideration, but due regard for decency and propriety. Place of birth, physical defect and other personal conditions are too often the pretext of humiliation cast upon persons. Such tampering with human personality, even though the penal laws are not violated, should be the cause of civil action. The article under study denounced “similar acts” which could readily be named, for they occur with unpleasant frequency (Report of the Code Commission, pages 32 to 34). In RCPI v. Verchez, G.R. No. 164349, January 31, 2006, where a family in Sorsogon sent a telegram to another member of a family in Manila asking for money for their ailing mother; and where the telegram-company was negligent in failing to send the telegram on time and in not immediately informing the family of the reason for the delay, thereby causing filial disturbance on the part of the family as they blamed each other for failing to respond immediately to the Art. 27 HUMAN RELATIONS 47 emergency involving their mother, the Supreme Court awarded damages on the basis of Article 26(2) of the Civil Code considering that the act or omission of the telegraph company disturbed the peace of mind of the family. Article 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken. RELIEF AGAINST PUBLIC OFFICIALS. A public official is supposed to be an agent or at least a representation of the government and, therefore, the law exacts on him or her an obligation to be very vigilant and just so that the public can be assured that the government is truly effective in servicing their needs. Any person, suffering from the refusal or neglect of any government employee or public servant to perform his duties, is entitled to damages. Thus, in a case where the president of a state college, in bad faith and despite the decision and directives of the Office of the Bureau of Public Schools, refused to graduate a student with honors, an award which the student honestly earned and deserved, the Supreme Court ruling that the award of damages in favor of the said student under Article 27 was proper (Ledesma v. Court of Appeals, 160 SCRA 449). Thus, the Supreme Court said: The Solicitor General tries to cover-up the petitioner’s deliberate omission to inform Miss Delmo by stating that it was not the duty of the petitioner to furnish her a copy of the Director’s decision. Granting this to be true, it was nevertheless the petitioner’s duty to enforce the said decision. He could have done so considering that he received the decision on April 27, 1966 and even though he sent it back with the records of the case, he undoubtedly read the whole of it which consisted of only three pages. Moreover, the petitioner should have had the decency to meet with Mr. Delmo, the girl’s father, and inform the latter, at the very least of the decision. This, the petitioner likewise failed to do, and not without the attendant bad faith which the appellate court correctly pointed in its decision, to wit: “Third, assuming that defendant could not furnish Miss Delmo of a copy of the decision, he could have used his 48 PERSONS AND FAMILY RELATIONS LAW Art. 27 discretion and plain common sense by informing her about it or he could have directed the inclusion of Miss Delmo’s honor in the printed commencement program or announced it during the commencement exercises. “Fourth, defendant despite receipt of the telegram of Director Bernardino hours before the commencement exercises on May 3-4 1966, disobeyed his superior by refusing to give the honors due Miss Delmo with a lame excuse that he would be embarrassed if he did so, to the prejudice of and in complete disregard of Miss Delmo’s rights. “Fifth, defendant did not even extend the courtesy of meeting Pacifico Delmo, father of Miss Delmo, who tried several times to see defendant in his office, thus Mr. Delmo suffered extreme disappointment and humiliation. xxx xxx xxx “Defendant, being a public officer should have acted with circumspection and due regard to the rights of Miss Delmo. Inasmuch as he exceeded the scope of his authority by defiantly disobeying the lawful directive of his superior, Director Bernardino, defendant is liable for damages in his personal capacity.” Also, in Vda. de Laig v. Court of Appeals, 82 SCRA 294, where the register of deeds assisted in the fraudulent procurement of a certificate of title in violation of the Land Registration Act (Act No. 496), the Supreme Court ruled that he was liable for damages under Article 27 by pronouncing: For in essence, his refusal to follow the directive of law (Act No. 496) was conduct injurious to petitioner. Thus, a chief of police is liable under Article 27 of the New Civil Code for refusal to give assistance to the complainants which was his official duty as an officer of the law (Amarro, et al. v. Sumnanggit, L-14986, July 31, 1962, 5 SCRA 707-709). Similarly, a municipal mayor incurs the same liability for neglecting to perform his official functions (Javellana v. Tayo, L-18919, December 29, 1962, 6 SCRA 1042, 1051). In Correa v. CFI of Bulacan, 92 SCRA 312, where a mayor was personally held liable for illegally dismissing policemen even if such mayor had relinquished his position, the Supreme Court ruled: A public officer who commits a tort or other wrongful act, done in excess or beyond the scope of his duty, is not protected Arts. 28-29 HUMAN RELATIONS 49 by his office and is personally liable therefor like any private individual (Palma v. Graciano, 99 Phil. 72, 74; Carreon v. Province of Pampanga, 99 Phil. 808). This principle of personal liability has been applied to cases where a public officer removes another officer or discharges an employee wrongfully, the reported cases saying that by reason of non-compliance with the requirements of law in respect to removal from office, the officials were acting outside of their official authority (Stiles v. Lowell, 233 Mass. 174, 123 NE 615, 4 ALR 1365, cited in 63 Am. Jur. 2d 770). Article 28. Unfair competition in agricultur- al, commercial or industrial enterprises, or in la- bor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of ac- tion by the person who thereby suffers damage. UNFAIR COMPETITION. The 1947 Civil Code Commission justifies the inclusion of this provision by saying that it is necessary in a system of free enterprise. Democracy becomes a veritable mockery if any person or group of persons by any unjust or highhanded method may deprive others of a fair chance to engage in business or earn a living (Report of the Code Commission, page 31). Article 29. When the accused in criminal prose- cution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the de- cision whether or not the acquittal is due to that ground. 50 PERSONS AND FAMILY RELATIONS LAW Art. 29 CIVIL ACTION. Proof beyond reasonable doubt means that amount of proof which forms an abiding moral certainty that the accused committed the crime charged. It is not, therefore, absolute certainty. However, such degree of proof is more exacting than what is needed in a civil case which is merely preponderance of evidence. Preponderance of evidence means that, as a whole, the evidence adduced by one side outweighs that of the adverse party (Sarmiento v. Court of Appeals, G.R. No. 96740, March 25, 1999). Hence, if the guilt of the accused is not proven beyond reasonable doubt, a civil action to prove the civil liability can still be filed where only preponderance of evidence is needed. The fact that the guilt was not proven beyond reasonable doubt must be expressly stated in the criminal decision. However, if it is not so expressly stated, it can be inferred from the decision itself. Thus, in a case where the accused was acquitted of estafa after a civil case was filed against the accused arising from the same transaction for purposes of the civil liability, the Supreme Court overruled the decision of the trial court dismissing the civil complaint by observing and ruling as follows: The appellant contends that the trial court committed error in dismissing the present action. It is claimed that as in its decision in Criminal Case No. 3219 the trial court did not make any express finding that the fact on which the action was predicated did not exist, but merely found that “the prosecution has not proved beyond reasonable doubt that the defendant had in fact represented to Gaudencio T. Mendoza that he had 100 cavans of palay stored in his sister’s bodega, which he offered to sell for P1,100.00,” that “there is sufficient evidence to warrant a finding that there had been no deceit or misrepresentation and that Exhibit B is not what it purports to be,” and that “any obligation which the defendant may have incurred in favor of Gaudencio T. Mendoza is purely civil in character, and not criminal,” which findings amount to a declaration that the defendant was acquitted on reasonable doubt, a civil action based on the same transaction may still be instituted. The appellee, on the other hand, maintains that the judgment appealed from is correct. It is urged that the findings made in the said decision, particularly those quoted above, amount to a declaration that the transaction which was the subject matter of that criminal case did not exist and no civil action based on that same transaction would lie. The pertinent provisions of law are Article 29 of the new Civil Code and Rule 107, Section 1, Subsection (d) of the Rules of Court. x x x Art. 29 HUMAN RELATIONS 51 Interpreting the scope of the above quoted provisions of law, we held in the case of Philippine National Bank v. Catipon, 52 O.G. 3589, that: The acquittal of the accused of the charge of estafa predicated on the conclusion “that the guilt of the defendant has not been satisfactorily established,” is equivalent to one on reasonable doubt and does not preclude a suit to enforce the civil liability for the same act or omission under Article 29 of the new Civil Code. and in Republic of the Philippines v. Asaad, 51 O.G. 703, that — A judgment of acquittal does not constitute a bar to a subsequent civil action involving the same subject matter, even in regard to a civil action brought against the defendant by the State, nor is it evidence of his innocence in such action, and is not admissible in evidence to prove that he was not guilty of the crime with which he was charged (50 C.J.S., pp. 272-273; 30 Am. Jur., 1003). As we analyze the record in the light of the above provisions of law and jurisprudence, we are fully persuaded that appellant’s contention is not without foundation. It will be noted that nowhere in the decision rendered in Criminal Case No. 3219 of the Court of First Instance of Nueva Ecija is found an express declaration that the fact from which the civil action might arise did not exist. It is true that said decision likewise contains no express declaration that the acquittal of the defendant was based upon reasonable doubt. Whether or not, however, the acquittal is due to that ground may, under the above quoted provision of Article 29 of the Civil Code, be inferred from the test of the decision, and a close consideration of the language used in said decision, particularly the findings above, which are of similar import as the phrase “that the guilt of the defendant has not been satisfactorily established,” held in Philippine National Bank v. Catipon, supra, to be equivalent to a declaration that the acquittal was based on reasonable doubt, convinces us that the acquittal of the defendant in the criminal case in question was predicated on the conclusion that his guilt of the crime charged has not been proved beyond reasonable doubt and does not preclude a suit to enforce the civil liability arising from the same transaction which was the subject-matter of said criminal action. The right, therefore, of the appellant to bring the present action cannot be questioned, the fact that he did not reserve his right to file an independent civil action, and this action has been instituted before final judgment in the 52 PERSONS AND FAMILY RELATIONS LAW Arts. 30-31 criminal case rendered, notwithstanding. The declaration in the decision in Criminal Case No. 3219 to the effect that “any obligation which the defendant may have incurred in favor of Gaudencio T. Mendoza is purely civil in character, and not criminal,” amounts to a reservation of the civil action in favor of the offended party, Philippine National Bank v. Catipon, supra, and the offense charged in said criminal case being estafa, which is fraud, the present action falls under the exception to the general rule and it can be filed independently of the criminal action (Mendoza v. Alcala, 2 SCRA 1032). Article 30. When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be suffi- cient to prove the act complained of. CIVIL OBLIGATION ARISING FROM A CRIMINAL OF- FENSE. Even if the civil obligation arose from a criminal offense, the required quantum of evidence in a civil suit to claim such civil obligation is not proof beyond reasonable doubt but merely prepon- derance of evidence. Article 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. CIVIL OBLIGATION NOT ARISING FROM FELONY. There are certain injuries which do not necessarily arise from the commis- sion of a crime. Article 31 seeks to give an aggrieved party a remedy and a cause of action in this kind of situations. An example of this is quasi-delict which is governed by Articles 2176 to 2194 of Title XVII, Chapter 2 of the New Civil Code. Pertinently, Article 2176 of the Civil Code provides that: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. Art. 31 HUMAN RELATIONS 53 The learned opinion of the late Supreme Court Associate Justice Francisco R. Capistrano who was a member of the 1947 Civil Code Commission on the nature of Article 31 contained in the notes of Corpus v. Page, 28 SCRA 1062, 1068, 1069, is quite enlightening, thus: Article 31 of the Civil Code does not provide for an inde- pendent civil action. An independent civil action is an action that is based upon the same criminal act as in the case of Articles 32, 33, and 34. When the civil action is based on the obligation not arising from the act or omission complained of as a felony, such civil action being based upon an obligation not arising from the criminal act but from a different source is not an independent civil action within the meaning of Articles 32, 33, and 34. Article 31 (drafted by Code Commissioner Capistrano) which provides: When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter states a self-explanatory rule different and distinct from that laid down in Articles 32, 33 and 34. For example: A is prosecuted for the crime of reckless imprudence resulting in homicide. The heirs of the deceased institute a civil action for damages against him based upon quasi-delict, under Article 2177 of the Civil Code, which is separate and distinct from criminal negligence punished as a crime or delict under the Revised Penal Code. Quasi-delict is culpa aquiliana and is separate and distinct from criminal negligence, which is a delict. The distinction is made in Article 2177 itself which in part provides that: Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But plaintiff cannot recover damages twice for the same act or omission of the defendant. Code Commission chairman Bocobo, who drafted Article 2177 of the New Civil Code, took the distinction from modern authorities in civil law. Accordingly, the report of the Code Commission on the Project of Civil Code makes reference to the sources of the distinction, thus: “The foregoing provision though at first sight startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil 54 PERSONS AND FAMILY RELATIONS LAW Art. 31 negligence. The former is a violation of the criminal law, while the latter, is a distinct and independent negligence, which is the ‘culpa aquiliana’ or quasi- delict, of ancient origin, having always had its own foundation and individuality, separate from criminal negligence. Such distinction between criminal negligence and ‘culpa extra-contractual’ or ‘quasi-delito’ has been sustained by decisions of the Supreme Court of Spain and maintained as clear, sound, and perfectly tenable by Maura, an outstanding Spanish jurist.” Therefore, under the proposed Article 2177, acquittal from an accusation of criminal negligence, whether on reasonable doubt or not, shall not be a bar to a subsequent civil action, not for civil liability arising from criminal negligence but for damages due to a ‘quasi-delict’ or ‘culpa aquiliana.’ But said article forestalls a double recovery (Capistrano, Civil Code of the Philippines, With Comments and Annotations, Volume 4, p. 470). Article 31 likewise applies to culpa contractual. Thus, in a case where, due to the reckless imprudence of the driver of a bus company, the bus being driven fell off a deep precipice resulting in the death of and injuries to certain passengers and where the driver was later acquitted in the consequent criminal case for double homicide thru reckless imprudence on the ground that his guilt was not proven beyond reasonable doubt and where the aggrieved parties later on filed a civil case against the bus company for failure of the said company to carry the passengers safely to their destination but which civil case was dismissed, the Supreme Court held that the lower court erred in dismissing the civil case because, even if the driver was acquitted in the criminal case. Article 31 of the Civil Code expressly provides that when the civil action is based upon an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. This provision evidently refers to a civil action based, not on the act or omission charged as a felony in a criminal case, but to one based on an obligation arising from other sources, such as law or contract. Upon the other hand, it is clear that a civil action based on contractual liability of a common carrier is distinct from the criminal action instituted against the carrier or its employee based on the latter’s criminal negligence. The first is governed by Art. 32 HUMAN RELATIONS 55 the provision of the Civil Code, and not those of the Revised Penal Code, and it being entirely separate and distinct from the criminal action, the same may be instituted and prosecuted independently of, and regardless of the result of the latter (Visayan Land Transportation Co. v. Meijuz, et al., G.R. Nos. L-8830, L-8837-39, 52 O.G., p. 4241). The civil action instituted against appellee in this case is based on alleged culpa contractual incurred by it due to its failure to carry safely the late Nicasio Bernaldes and his brother Jovito in their place of destination, whereas the criminal action instituted against the appellee’s driver involved exclusively the criminal liability of the latter arising from his criminal negligence. In other words, the appellant’s action concerned the civil liability of appellee as a common carrier, regardless of the liabilities of its driver who was charged in the criminal case. x x x (Bernaldes, Sr. v. Bohol Land Transportation, Inc., 7 SCRA 276). Article 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal deten- tion; (5) Freedom of suffrage; (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws; (9) The right to be secure in one’s person, house, papers, and effects against unreasonable searches and seizures; 56 PERSONS AND FAMILY RELATIONS LAW Art. 32 (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associa- tions or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the government for redress of grievances; (14) The right to be free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one’s self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel or unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant’s act or omission constitute a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be insti- tuted), and may be proved by a preponderance of evidence. Art. 32 HUMAN RELATIONS 57 The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. PARTICULAR WRONG OR INJURY. In Liwayway Vinzons- Chato v. Fortune Tobacco Corporation, G.R. No. 141309, December 23, 2008, 575 SCRA 23, the Supreme Court had occasion to discuss the applicability of Article 32 in relation to public officers, thus: There are two kinds of duties exercised by public officers: the “duty owing to the public collectively” (the body politic), and the “duty owing to particular individuals,” thus: 1. Of Duties to the Public. — The first of these classes embraces those officers whose duty is owing primarily to the public collectively — to the body politic — and not to any particular individual; who act for the public at large, and who are ordinarily paid out of the public treasury. The officers whose duties fall wholly or par- tially within this class are numerous and the distinction will be readily recognized. Thus, the governor owes a duty to the public to see that the laws are properly executed, that fit and competent officials are appointed by him, that unworthy and ill-considered acts of the legislature do not receive his approval, but these, and many others of a like nature, are duties which he owes to the public at large and no one individual could single himself out and assert that they were duties owing to him alone. So, members of the legislature owe a duty to the public to pass only wise and proper laws, but no one person could pretend that the duty was owing to himself rather than to another. Highway commissioners owe a duty that they will be governed only by considerations of the public good in deciding upon the opening or closing of highways, but it is not a duty to any particular individual of the community. These illustrations might be greatly extended, but it is believed that they are sufficient to define the general doctrine. 58 PERSONS AND FAMILY RELATIONS LAW Art. 32 2. Of Duties to Individuals. – The second class above referred to includes those who, while they owe to the public the general duty of a proper administration of their respective offices, yet become, by reason of their employment by a particular individual to do some act for him in an official capacity, under a special and particular obligation to him as an individual. They serve individuals chiefly and usually receive their compensation from fees paid by each individual who employs them. A sheriff or constable in serving civil process for a private suitor, a recorder of deeds in recording the deed or mortgage of an individual, a clerk of court in entering up a private judgment, a notary public in protesting negotiable paper, an inspector of elections in passing upon the qualifications of an elector, each owes a general duty of official good conduct to the public, but he is also under a special duty to the particular individual concerned which gives the latter a peculiar interest in his due performance. In determining whether a public officer is liable for an improper performance or non-performance of a duty, it must first be determined which of the two classes of duties is involved. For, indeed, as the eminent Floyd R. Mechem instructs, “[t]he liability of a public officer to an individual or the public is based upon and is co-extensive with his duty to the individual or the public. If to the one or the other he owes no duty, to that one he can incur no liability.” Stated differently, when what is involved is a “duty owing to the public in general,” an individual cannot have a cause of action for damages against the public officer, even though he may have been injured by the action or inaction of the officer. In such a case, there is damage to the individual but no wrong to him. In performing or failing to perform a public duty, the officer has touched his interest to his prejudice; but the officer owes no duty to him as an individual. The remedy in this case is not judicial but political. The exception to this rule occurs when the complaining individual suffers a particular or special injury on account of the public officer’s improper performance or non-performance of his public duty. An individual can never be suffered to sue for an injury which, technically, is one to the public only; he must show a wrong which he specially suffers, and damage alone does not constitute a wrong. A contrary precept (that an individual, Art. 32 HUMAN RELATIONS 59 in the absence of a special and peculiar injury, can still institute an action against a public officer on account of an improper performance or non-performance of a duty owing to the public generally) will lead to a deluge of suits, for if one man might have an action, all men might have the like — the complaining individual has no better right than anybody else. If such were the case, no one will serve a public office. Thus, the rule restated is that an individual cannot have a particular action against a public officer without a particular injury, or a particular right, which are the grounds upon which all actions are founded. Juxtaposed with Article 32 of the Civil Code, the principle may now translate into the rule that an individual can hold a public officer personally liable for damages on account of an act or omission that violates a constitutional right only if it results in a particular wrong or injury to the former. This is consistent with this Court’s pronouncement in its June 19, 2007 Decision (subject of petitioner’s motion for reconsideration) that Article 32, in fact, allows a damage suit for “tort for impairment of rights and liberties.” It may be recalled that in tort law, for a plaintiff to maintain an action for damages for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed the plaintiff, meaning a concurrence of injury to the plaintiff and legal responsibility by the person causing it. Indeed, central to an award of tort damages is the premise that an individual was injured in contemplation of law. Thus, in Lim v. Ponce de Leon, we granted the petitioner’s claim for damages because he, in fact, suffered the loss of his motor launch due to the illegal seizure thereof. In Cojuangco, Jr. v. Court of Appeals, we upheld the right of petitioner to the recovery of damages as there was an injury sustained by him on account of the illegal withholding of his horserace prize winnings. In the instant case, what is involved is a public officer’s duty owing to the public in general. The petitioner, as the then Commissioner of the Bureau of Internal Revenue, is being taken to task for Revenue Memorandum Circular (RMC) No. 37-93 which she issued without the requisite notice, hearing and publication, and which, in Commissioner of Internal Revenue v. Court of Appeals, we declared as having “fallen short of a valid and effective administrative issuance.” A public officer, such as the petitioner, vested with quasi-legislative or rule-making power, owes a duty to the public to promulgate rules which are compliant with the requirements of valid administrative regulations. But it is a duty owed not to the respondent alone, 60 PERSONS AND FAMILY RELATIONS LAW Art. 32 but to the entire body politic who would be affected, directly or indirectly, by the administrative rule. Furthermore, as discussed above, to have a cause of action for damages against the petitioner, respondent must allege that it suffered a particular or special injury on account of the non- performance by petitioner of the public duty. A careful reading of the complaint filed with the trial court reveals that no particular injury is alleged to have been sustained by the respondent. The phrase “financial and business difficulties” mentioned in the complaint is a vague notion, ambiguous in concept, and cannot translate into a “particular injury.” In contrast, the facts of the case eloquently demonstrate that the petitioner took nothing from the respondent, as the latter did not pay a single centavo on the tax assessment levied by the former by virtue of RMC 37-93. With no “particular injury” alleged in the complaint, there is, therefore, no delict or wrongful act or omission attributable to the petitioner that would violate the primary rights of the respondent. Without such delict or tortious act or omission, the complaint then fails to state a cause of action, because a cause of action is the act or omission by which a party violates a right of another. A cause of action exists if the following elements are present: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of defendant to plaintiff for which the latter may maintain an action for recovery of damages. SEPARATE CIVIL ACTION FOR VIOLATION OF CONS- TITUTIONAL RIGHTS. The 1947 Code Commission found it im- perative that a separate civil action is necessary for the violation of the individual’s constitutional rights. The creation of an absolutely separate and independent civil action for the violation of civil liberties is essential to the effective maintenance of democracy, for these reasons: (1) In most cases, the threat to freedom originates from abuses of power of government officials and peace officers. Heretofore, the citizen had to depend upon the prosecution attorney for the institution of criminal proceedings, in order that the wrongful act might be punished under the Penal Code Art. 32 HUMAN RELATIONS 61 and the civil liability exacted. But not infrequently, because the Fiscal was burdened with too many cases or because he believed the evidence was insufficient, or as to a few fiscals, on account of a disinclination to prosecute a fellow public official, especially when he is of high rank, no criminal action was filed by the prosecuting attorney. The aggrieved citizen was thus left without redress. In this way, many individuals, whose freedom had been tampered with, have been unable to reach the courts, which are the bulwark of liberty. (2) Even when the prosecuting attorney filed a criminal action, the requirement of proof beyond reasonable doubt often prevented the appropriate punishment. On the other hand, an independent civil action, as proposed in the Project of Civil Code, would afford the proper remedy by preponderance of evidence. (3) Direct and open violations of the Penal Code trampling upon the freedoms named are not so frequent as those subtle, clever, and indirect ways which do not come within the pale of the penal law. It is these cunning devices of suppressing or curtailing freedom, which are not criminally punishable, where the greatest danger to democracy lies. The injured citizen will always have, under the Project of Civil Code, adequate civil remedies before the courts because of the independent civil action, even in those instances where the act or omission complained of does not constitute a criminal offense (Report of the Code Commission, pages 30-31). Thus, in Aberca v. Ver, 160 SCRA 590, where the plaintiffs alleged that the defendants who were members of a military raiding team were liable for damages for violating their rights when the said raiding team, in undertaking its raid, employed defectively issued search warrants; confiscated a number of purely personal items belonging to plaintiffs; made arrests without proper warrants from the courts; denied them visits of relatives and lawyers; interrogated them in violation of their right to counsel; and employed, during the interrogation, threats, tortures and other forms of violence to obtain incriminatory information or confessions, all in violation of their constitutional rights, the trial court, upon motion of the Solicitor General, dismissed the case on the ground that the plaintiffs stated no cause of action for damages; that the defendants were immune from liability for acts done in the performance of their official duties; and that, as to the plaintiffs, the privilege of habeas corpus had been suspended. The Supreme Court reversed the decision of the lower court and stated, among others, that the plaintiffs had a 62 PERSONS AND FAMILY RELATIONS LAW Art. 32 cause of action on the basis of Article 32 of the Civil Code. In further explaining the import of Article 32, the Supreme Court stated, thus: “It is obvious that the above codal provision is to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear: no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield, borrowing the words of Chief Justice Claudio Teehankee, to the law of force rather than the force of the law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs of imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community. “Democracy cannot be a reign of progress, of liberty, of justice unless the law is respected by him who makes it and by him for whom it is made. Now this respect implies a maximum of faith, a minimum of idealism. On going to the bottom of the matter, we discover that life demands of us a certain residuum of sentiment which is not derived from reason, but which reason nevertheless controls.” xxx xxx xxx It may be that the respondents, as members of the Armed Forces of the Philippines, were merely responding to a call of duty, as they claim, “to prevent or suppress lawless violence, insurrection, rebellion and subversion” in accordance with Proclamation No. 2054 of President Marcos, despite the lifting of Martial Law on January 27, 1981, and in pursuance of such objective, to launch pre-emptive strikes against alleged communist terrorist’s underground houses. But this cannot be construed as a blanket license of a roving commission untrammeled by any constitutional restraint, to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and protected by the Constitution. The Constitution remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience and allegiance at all times. Article 32 of the Civil Code which renders any public officer or employee or any private individual liable in damages for violating the constitutional rights and liberties of another, as enumerated therein, does not exempt the respondents from responsibility. Only judges are excluded from liability under the Art. 32 HUMAN RELATIONS 63 said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute. This is not to say that military authorities are restrained from pursuing their assigned task of carrying out their mission with vigor. We have no quarrel with their duty to protect the Republic from its enemies, whether of the left or of the right, or from within or without, seeking to destroy our democratic institutions and imperil their very existence. What we are merely trying to say is that in carrying out this task and mission, constitutional and legal safeguards must be observed; otherwise, the very fabric of our faith will start to unravel. In the battle of competing ideologies, the struggle for the mind is just as vital as the struggle of arms. The linchpin in that psychological struggle is faith in the rule of law. Once that faith is lost or compromised, the struggle may well be abandoned. xxx xxx xxx This brings us to the crucial issue raised in this petition. May a superior officer under the notion of respondeat superior be answerable for damages, jointly and severally with his subordinates, to the person whose constitutional rights and liberties have been violated? Respondents contend that the doctrine of respondeat superior is inapplicable to the case. We agree. The doctrine of respondeat superior has been generally limited in its application to principal and agent or to master and servant (i.e., employer and employee) relationship. No such relationship exists between superior officers of the military and their subordinates. Be that as it may, however, the decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person “directly” or “indirectly” responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e., the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party. By this provision, the principle of accountability of public officials under the Constitution acquires added meaning and assumes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February 1986 was the widely held perception that the government was callous 64 PERSONS AND FAMILY RELATIONS LAW Art. 32 or indifferent to, if not actually responsible for, the rampant violation of human rights. While it would certainly be too naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors. GOOD FAITH NOT A DEFENSE. In Lim v. Ponce de Leon, 66 SCRA 299, where a fiscal ordered the impounding of a stolen motor launch without a valid search warrant issued by a court despite having enough time to legally obtain one, and where a detachment commander of the province, faced with a possible disciplinary action, hesitantly seized the motor launch upon orders of the provincial commander who was in turn ordered by the fiscal, and where the fiscal, to prevent being made liable under Article 32 contended that he was in good faith and without malice in seizing the stolen boat while the detachment commander contended that he was obeying the order of a superior officer, the Supreme Court rejected the good faith defense of the fiscal but absolved the detachment commander, as he was led to believe that the order of the station commander was lawful. Pertinently, the Supreme Court in explaining Article 32 said: Defendant-appellee Fiscal Ponce De Leon wanted to wash his hands of the incident by claiming that “he was in good faith, without malice and without the lightest intention of inflicting injury to plaintiff-appellant, Jikil Taha.” We are not prepared to sustain his defense of good faith. To be liable under Article 32 of the New Civil Code, it is enough that there was a violation of the constitutional rights of the plaintiffs and it is not required that defendants should have acted with malice or bad faith. Dr. Jorge Bocobo, Chairman of the Code Commission, gave the following reasons during the public hearings of the Joint Senate and House Committees, why good faith on the part of the public officer or employee is immaterial. Thus: “DEAN BOCOBO. Article 32, regarding individual rights, Attorney Cirilo Paredes proposes that Article 32 be so amended as to make a public official liable for violation of another person’s constitutional rights only if the public official acted maliciously or in bad faith. The Code Commission opposes this suggestion for these reasons: “The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat Art. 32 HUMAN RELATIONS 65 the main purpose of Article 32 which is that effective protection of individual rights. Public officials in the past have abused their powers on the pretest of justifiable motives or good faith in the performance of their duties. Precisely, the object of the Article is to put an end to official abuse by the plea of good faith. In the United States this remedy is in the nature of a tort. “Mr. Chairman, this article is firmly one of the funda- mental articles introduced in the new Civil Code to implement democracy. There is no real democracy if a public official is abusing, and we made the article so strong and so comprehensive that it concludes an abuse of individual rights even if done in good faith, that official is liable. As a matter of fact, we know that there are very few public officials who openly and definitely abuse the individual rights of the citizens. In most cases, the abuse is justified on a plea of desire to enforce the law to comply with one’s duty. And so, if we should limit the scope of this article, that would practically nullify the object of the article. Precisely, the opening object of the article is to put an end to abuses which are justified by a plea of good faith, which is in most cases the plea of officials abusing individual rights.” But defendant appellee Orlando Maddela cannot be held accountable because he impounded the motor launch upon the order of his superior officer. While a subordinate officer may be held liable for executing unlawful orders of his superior officer, there are certain circumstances which would warrant Maddela’s exculpation from liability. The records show that after Fiscal Ponce de Leon made his first request to the Provincial Commander on June 15, 1962, Maddela was reluctant to impound the motor launch despite repeated orders from his superior officer. It was only after he was furnished a copy of the reply of Fiscal Ponce De Leon, dated June 26, 1962, to the letter of the Provincial Commander, justifying the necessity of the seizure of the motor launch on the ground that the subsequent sale of the launch to Delfin Lim could not prevent the court from taking custody of the same, that he impound the motor launch on July 6, 1962. With the letter coming from the legal officer of the province, Maddela was led to believe that there was a legal basis and authority to impound the launch. Then came the order of his superior officer to explain for the delay in the seizure of the motor launch. Faced with a possible disciplinary action from his commander, Maddela was left with no alternative but to seize the vessel. In the light of the above circumstances, We are not disposed to hold Maddela answerable for damages. JUDGES. Article 32 provides that “the responsibility herein set forth is not demandable from a judge unless his act or omission 66 PERSONS AND FAMILY RELATIONS LAW Art. 33 constitutes a violation of the Penal Code or other penal statute.” In Esguerra v. Gonzales-Asdala, G.R. No. 168906, December 4, 2004, 573 SCRA 50, the Supreme Court said: Judges cannot be subjected to liability — civil, criminal or administrative — for any of their official acts, no matter how erroneous, so long as they act in good faith. It is only when they act fraudulently or corruptly, or with gross ignorance, may they be held criminally or administratively responsible. In Ang v. Quilala, we further explained that it is settled doctrine that judges are not liable to respond in a civil action for damages, and are not otherwise administratively responsible for what they may do in the exercise of their judicial functions when acting within their legal powers and jurisdiction. Certain it is that a judge may not be held administratively accountable for every erroneous order or decision he renders. To hold otherwise would be to render judicial office untenable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment. More importantly, the error must be gross or patent, deliberate and malicious, or incurred with evident bad faith. Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes. Article 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entire- ly separate and distinct from the criminal action, may be brought by the injured party. Such civil ac- tion shall proceed independently of the criminal prosecution, and shall require only a preponder- ance of evidence. RATIONALE. In all of the provisions in the Civil Code giving a right of independent civil actions which include Article 33, the Code Commission said: The underlying purpose of the principles under consi- deration is to allow the citizen to enforce his rights in a private action brought by him, regardless of the action of the State attorney. It is not conducive to civic spirit and to individual Art. 33 HUMAN RELATIONS 67 self-reliance and initiative to habituate the citizens to depend upon the government for the vindication of their own private rights. It is true that in many of the cases referred to in the provisions cited, a criminal prosecution is proper, but it should be remembered that while the State is the complainant in the criminal case, the injured individual is the one most concerned because it is he who has suffered directly. He should be permitted to demand reparation for the wrong which peculiarly affects him. In England and the United States, the individual may bring an action in tort for assault and battery, false imprison- ment, libel and slander, deceit, trespass, malicious prosecution, and other acts which also fall within the criminal statutes. This independent civil action is in keeping with the spirit of indi- vidual initiative and the intense awareness of one’s individual rights in those countries. Something of the same sense of self-reliance in the enforcement of one’s rights is sought to be nurtured by the Project of Civil Code. Freedom and Civil Courage thrive best in such an atmosphere, rather than under a paternalistic system of law (Report of the Code Commission, pages 46-47). DEFAMATION, FRAUD AND PHYSICAL INJURIES. The terms fraud, defamation and physical injuries must be understood in their ordinary sense. Hence, fraud can include estafa; defamation can include libel. Physical injuries can include death or the crime of homicide (Dyogi v. Yatco, G.R. No. L-9623, January 22, 1957) but it cannot include reckless imprudence resulting in homicide (Marcia v. Court of Appeals, 120 SCRA 200). Criminal negligence, that is, reckless imprudence, is not one of the three crimes mentioned in Article 33 of the Civil Code which authorizes the institution of an independent civil action, that is, of an entirely separate and distinct civil action for damages, which shall proceed independently of the criminal prosecution and shall be proved by a preponderance of evidence. x x x The law penalizes thus the negligent act or careless act, not the result thereof. The gravity of the consequences is only taken into account to determine the penalty; it does not qualify the substance of the offense. x x x As reckless imprudence or criminal negligence is not one of the three crimes mentioned in Article 33 of the Civil Code, there is no independent civil action for damages that may be instituted in connection with the same offense. Hence, homicide through reckless imprudence or criminal negligence comes under the general rule that the 68 PERSONS AND FAMILY RELATIONS LAW Arts. 34-35 acquittal of the defendant in the criminal action is a bar to his civil liability based upon the same criminal act x x x (Corpus v. Paje, 28 SCRA 1062). Article 34. When a member of a city or mu- nicipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. MEMBERS OF POLICE FORCE. It is the duty of police officers to see to it that peace and order are maintained in the community. Hence, should a citizen go to them to seek assistance, their failure or refusal to render the needed assistance to maintain lawful order can be a basis for claiming damages against them. The city or municipality shall be subsidiarily responsible therefor. Article 35. When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complainant may bring a civil action for damages against the alleged offender. Such civil action shall be supported by preponderance of evidence. Upon the defendant’s motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious. If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination of the criminal proceedings. RESERVATION OF CIVIL ACTIONS. Rule 111 of the Rules of Court of the Philippines sets out the procedure with respect to the Art. 35 HUMAN RELATIONS 69 reservations in criminal cases with respect to the civil liability of the accused. Thus, Section 1. Institution of criminal and civil actions. — (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves his right to institute it separately or institutes the civil action prior to the criminal action. The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees therefor shall constitute a first lien on the judgment awarding such damages. Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. Except as otherwise provided in these Rules, no filing fees shall be required for actual damages. No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (1a) (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay the filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. 70 PERSONS AND FAMILY RELATIONS LAW Art. 35 Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal action. Section 2. When separate civil action is suspended. — After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly. During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled. (n) The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action based on delict may be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist. (2a) Section 3. When civil action may proceed independently. — In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. (3a) Section 4. Effect of death on civil actions. — The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from Art. 36 HUMAN RELATIONS 71 the delict. However, the independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. The heirs of the accused may be substituted for the deceased without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these Rules for prosecuting claims against the estate of the deceased. If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased. (n) Section 5. Judgment in civil action not a bar. — A final judgment rendered in a civil action absolving the defendant from civil liability is not a bar to a criminal action against the defendant for the same act or omission subject of the civil action. (4a) Article 36. Prejudicial questions, which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by the rules of court which the Supreme Court shall promulgate and which shall not be in conflict with the provisions of this Code. PRECEDENCE. The general rule is that where both a civil and a criminal case arising from the same facts are filed in court, the criminal case takes precedence. An exception to this general rule would be if there exist prejudicial questions which should be resolved first before action could be taken in a criminal case and when the law provides that both civil and criminal case can be instituted simultaneously such as that provided in Article 33 of the Civil Code (Benitez v. Concepcion, 2 SCRA 178). PREJUDICIAL QUESTION. A prejudicial question is one that arises in a case, the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains 72 PERSONS AND FAMILY RELATIONS LAW Art. 36 to another tribunal (Zapanta v. Montesa, 4 SCRA 510; Fortich v. Celdran, 19 SCRA 502). In prejudicial question matters, there are always two cases involved, namely, a civil and a criminal one. The criminal is always suspended because the issues in the civil is determinative of the outcome of the criminal case. There are, therefore, two essential elements of a prejudicial question, to wit: 1. the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and 2. the resolution of such issue determines whether or not the criminal action may proceed (Section 7, Rule 111 of the Rules of Court). With respect to the suspension of the criminal action in cases where there is a prejudicial question to be determined in a civil case, Section 6 of Rule 111 of the Revised Rules of Criminal Procedure provides: Section 6. Suspension by reason of prejudicial question. — A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. (6a) Thus, in a case where a person alleges that his “motion to withdraw” filed in and approved by the court was falsified and that consequently the decision of the said court, basing his rights on the said motion and disregarding his claim that the subject motion was falsified, was erroneous and where the said decision was appealed to the Court of Appeals before the said person filed a criminal case against the accused for falsification of public document (namely, the motion filed in court), the Supreme Court held that the resolution in the civil case of whether the motion is authentic or not “will in a sense be determinative of the guilt or innocence of the accused in the criminal suit pending in another tribunal. As such, it is a prejudicial question which should first be decided before the prosecution can proceed in the criminal case” (Fortich-Celdran v. Celdran, 19 SCRA 502). However, in Jimenez v. Averia, 22 SCRA 1380, where the accused were criminally charged of estafa for not returning the Art. 36 HUMAN RELATIONS 73 money given to them as agents for the purpose of buying a boat which never materialized but who, prior to the arraignment, filed a civil case assailing the validity of the receipt wherein they acknowledged having received the said amount of money and contended that their signatures in the said receipt were obtained through fraud, deceit and intimidation, the lower court, upon motion of the accused, suspended the criminal case on the ground that the issues in the civil case posed a prejudicial question. The Supreme Court, however, overturned the decision of the lower court by observing and ruling that there was no prejudicial question because “x x x it will readily be seen that the alleged prejudicial question is not determinative of the guilt or innocence of the parties charged with estafa, because even on the assumption that the execution of the receipt whose annulment they sought in the civil case was vitiated by fraud, duress or intimidation, their guilt could still be established by other evidence showing, to the degree required by law, that they actually receive from the complainant the sum of P20,000 with which to buy for him a fishing boat, and that, instead of doing so, they misappropriated the money and refused or otherwise failed to return it to him upon demand. The contention of the private respondent here would be tenable had they been charged with the falsification of the same receipt involved in the civil action. Also, where a spouse was criminally charged of bigamy by his first spouse and, thereafter, the second spouse filed a civil case for the annulment of marriage contending that the accused only forced and intimidated her to marry him and in which civil case the said accused filed a third-party complaint against his first spouse alleging that the said first spouse intimidated and forced him to marry her, the Supreme Court ruled that the existence of the civil suit does not constitute a prejudicial question to warrant the suspension of the criminal case for bigamy because prior to the annulment of the first marriage, the same cannot be considered as without effect and, therefore, shall be presumed to be validly existing. Hence, a party who contracts a second marriage then assumes the risk of being prosecuted for bigamy (Landicho v. Relova, 22 SCRA 731). However, it must be pointed out that if the situation were that the accused was the one who was intimidated or forced by the second spouse to enter into the bigamous marriage, his consent to the second marriage would be involuntary and cannot be the basis of his conviction for bigamy and, in which case, the civil case for annulment of the second marriage is a prejudicial question to warrant the suspension of the 74 PERSONS AND FAMILY RELATIONS LAW Art. 36 criminal case for bigamy (Zapanta v. Mendoza, L-14534, February 28, 1962). The cases referred to dealt with civil cases which invoked grounds for annulment of marriage under the Civil Code and which are now under Article 45 of the Family Code. In a case where the husband filed a civil action for declaration of nullity of his marriage on the ground of psychological incapacity under Article 36 of the Family Code and the wife filed a criminal case for concubinage against the said husband and his paramour, the Supreme Court held that the civil action for nullity of marriage is not a suit involving a prejudicial action to justify the suspension of the criminal case for concubinage considering that, except for purposes of remarriage under Article 40 of the Family Code, the nullity of a marriage can be proven by any evidence other than a judicial decision of nullity and also because a subsequent judicial pronouncement of the nullity of marriage is not a defense in concubinage. Moreover, the Supreme Court citing the Landicho case (supra) said that, as long as there is no judicial declaration of nullity of marriage, the presumption is that the marriage exists for all intents and purposes (Beltran v. People, G.R. No. 137567, June 20, 2000; Te v. Court of Appeals, G.R. No. 126746, November 29, 2000). 75 BOOK I PERSONS TITLE I. — CIVIL PERSONALITY Chapter 1 GENERAL PROVISIONS Article 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost. (n) JURIDICAL CAPACITY AND CAPACITY TO ACT. Juridical capacity is acquired upon the birth of a person. In fact, there are certain cases when, even if a child is still unborn and merely inside the womb of the mother, such child is already given a provisional personality which entitles him to be supported or to receive donation (Articles 40, 41, 742, 854). Juridical capacity is terminated only upon death. Capacity to act, on the other hand, is not inherent in a person; it is attained or conferred and, therefore, it can likewise be lost not only by death of the person but by any valid cause provided by law. Article 38. Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions on the capacity to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise 75 76 PERSONS AND FAMILY RELATIONS LAW Arts. 38-39 from his acts or from property relations, such as easements. (32a) Article 39. The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of religious belief or political opinion. A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law. SIGNIFICANCE OF ARTICLES 38 AND 39. Article 38 restricts the capacity to act, while Article 39 is broader in scope but it enumerates situations which merely modify the capacity to act. Essentially, however, the objective of the two codal provisions is the same, namely: to make an overview of the situation that qualifies a person’s power to undertake acts which can produce legal effects. The consequences of these restrictions and modifications in a person’s capacity to act are provided by the Civil Code itself, other codes, special laws and the Rules of Court. Also, the two provisions are intended to give people not adept in the technicalities of law an immediate sense that, since the Civil Code principally provides rules governing the relationship between and among men, women, juridical entities and even the government, there are certain situations which may effectively, juridically and legally affect such relationships. 77 Chapter 2 NATURAL PERSONS Article 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. (29a) Article 41. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (30a) COMMENCEMENT OF CIVIL PERSONALITY. Article 5 of Presidential Decree Number 603, otherwise known as the “Child and Youth Welfare Code,” amended Article 40 of the Civil Code. The amendment and the law now provide that: the civil personality of the child shall commence from the time of his conception for all purposes favorable to him, subject to the requirements of Article 41 of the Civil Code. In the case of Quimiguing v. Icao, 34 SCRA 132, the Supreme Court had occasion to explain the concept of civil personality and Article 41, to wit: The events in the court of origin can be summarized as follows: Appellant, Carmen Quimiguing, assisted by her parents, sued Felix Icao in the court below. In her complaint it was averred that the parties were neighbors in Dapitan City, and 77 78 PERSONS AND FAMILY RELATIONS LAW Arts. 40-41 had close and confidential relations; that defendant Icao, although married, succeeded in having carnal intercourse with the plaintiff several times by force and intimidation, and without her consent; that as a result thereof she became pregnant, despite efforts and drugs supplied by defendant, and plaintiff had to stop studying. Hence, she claimed support at P120.00 per month, damages and attorney’s fees. Duly summoned, defendant Icao moved to dismiss for lack of cause of action since the complaint did not allege that the child had been born; and after hearing arguments, the trial judge sustained defendant’s motion and dismissed the complaint. Thereafter, plaintiff moved to amend the complaint to allege that as a result of the intercourse, plaintiff had later given birth to a baby girl; but the court, sustaining defendant’s objection, ruled that no amendment was allowable, since the original complaint averred no cause of action. Wherefore, the plaintiff appealed directly to this court. We find the appealed orders of the court below to be untenable. A conceived child, although as yet unborn, is given by law a provisional personality of its own for all purposes favorable to it, as explicitly provided in Article 40 of the Civil Code of the Philippines. The unborn child, therefore, has a right to support from its progenitors, particularly the defendant- appellee (whose paternity is deemed admitted for the purpose of the motion to dismiss), even if the said child is only “en ventre de sa mere’’; just as a conceived child, even if as yet unborn may receive donations as prescribed by Article 742 of the same Code, and its being ignored by the parent in his testament may result in preterition of a forced heir that annuls the institution of the testamentary heir, even if such child should be born after the death of the testator (Article 854, Civil Code). “ART. 742. Donations made to conceived and unborn children may be accepted by those persons who would legally represent them if they were already born.” “ART. 854. The preterition or omission of one, some or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.” Arts. 40-41 CIVIL PERSONALITY 79 Natural Persons It is thus clear that the lower court’s theory that Article 291 of the Civil Code declaring that “support is an obligation of parents and illegitimate children” does not contemplate “support to children as yet unborn,” violates Article 40 aforesaid, besides imposing a condition that nowhere appears in the text of Article 291. It is true that Article 40 prescribing that “the conceived child shall be considered born for all purposes that are favorable to it” adds further: “provided it be born later with the conditions specified in the following article’’ (i.e., that the foetus be alive at the time it is completely delivered from the mother’s womb). This proviso, however, is not a condition precedent to the right of the conceived child; for if it were, the first part of Article 40 would become entirely useless and ineffective. Manresa, in his commentaries (5th Ed.) to the corresponding Article 29 of the Spanish Civil Code, clearly points this out: “Los derechos atribuidos al nasciturus no son simples expectativas, ni aun en el sentido tecnico que la moderna doctrina da a esta figura juridica, sino que constituyen un caso de los propiamente llamados ‘derechos en estado de pendencia’; el nacimiento del sujeto en las condiciones previstas por el art. 30, no determina el nacimiento de aquellos derechos (que ya existian de antemano), sino que a trata de un hecho que tiene efectos declarativos.’’ (1 Manresa, op. cit., page 271). For purposes of inheritance and succession, Article 1025 of the Civil Code also provides that “a child already conceived at the time of the death of the decedent is capable of succeeding, provided that it be born later under the conditions prescribed in Article 41.” In Geluz v. Court of Appeals, 2 SCRA 801, the Supreme Court ruled that a parent cannot invoke the concept of “provisional personality’’ of a conceived child to obtain damages for and on behalf of an aborted child considering that the conditions set in Articles 40 and 41 were not met. However, the Supreme Court said that the parents can obtain damages in their own right against the doctor who caused the abortion for the illegal arrest of the normal development of the spes hominis that was the foetus, i.e., on account of distress and anguish attendant to its loss and disappointment of their parental expectations. The parents, however, must be shown not to have consented or acquiesced to the abortion. 80 PERSONS AND FAMILY RELATIONS LAW Arts. 40-41 BIRTH CERTIFICATE. The birth certificate is the best evidence of the fact of birth. Once it is registered with the office of the local civil registrar, it becomes a public document. However, the entries therein are only prima facie evidence of the facts contained therein (Article 410 of the Civil Code). They can be rebutted by competent evidence. Section 4 of the Civil Registry Law Act No. 3753 pertinently provides: The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child. In such declaration, the persons above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship, and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) and such other data as may be required in the regulations to be issued. In the case of an exposed child, the person who found the same shall report to the local civil registrar the place, date and hour of finding and other attendant circumstances. In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only by the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuse to acknowledge the child, or to give therein any information by which such father could be identified. CONFIDENTIALITY OF BIRTH RECORDS. Birth records, including a birth certificate, are strictly confidential and the contents therein cannot be revealed except in the cases provided by law. The mere filing of these documents with the Office of the Local Civil Registrar does not serve as constructive notice to all persons of such documents or the facts contained therein because, by mandate of the law, they are required to be confidential and therefore should not be known to the public. Nevertheless, they still maintain their nature as public documents because, following the proper legal procedure, they can be obtained by those interested therein. Thus, Article 7 of Art. 42 CIVIL PERSONALITY 81 Natural Persons Presidential Decree No. 603 as amended, otherwise known as “The Child and Youth Welfare Code,” provides: Art. 7. Non-disclosure of Birth Records. — The records of a person’s birth shall be kept strictly confidential and no information relating thereto shall be issued except upon the request of any of the following: (1) The person himself, or any person authorized by him; (2) His spouse, his parent or parents, his direct descen- dants, or the guardian or institution legally in charge of him if he is a minor; (3) The court or proper public official whenever abso- lutely necessary in administrative, judicial or other official proceedings to determine the identity of the child’s parents or other circumstances surrounding his birth; and (4) In case of the person’s death, the nearest of kin. Any person violating the prohibition shall suffer the penalty of imprisonment of at least two months or a fine in an amount not exceeding five hundred pesos, or both, in the discretion of the court. Article 42. Civil personality is extinguished by death. The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will. (32a) DEATH. Death puts an end to civil personality. Thus, in a case where a testator owned one-sixth of a certain property co-owned with other persons and such testator died making his heirs co-owners of the said 1/6 of the property, it was held that the said heir-co-owners of the testator’s 1/6 share became, in turn, co-owners of the other persons relative to the whole property which such other persons co- owned with the testator such that, when such other persons sold their share in the co-ownership to a corporation, the heir-co-owners shall have the right of redemption as to the portion sold not by virtue of their being heirs of the testator but by virtue of their personal rights as co-owners of the whole property because: the right of legal redemption only came into existence when the sale to Uy & Sons, Inc. was perfected eight (8) years after 82 PERSONS AND FAMILY RELATIONS LAW Art. 42 the death of Jose V. Ramirez, and formed no part of his estate. The redemption rights vested in the co-heirs. Originally, in their individual capacity, they did not derivatively acquire it from their decedent, for when Jose V. Ramirez died, none of the other co-owners of the property had as yet sold his undivided share to a stranger. Hence, there was nothing to redeem and no right of redemption; and if the late Ramirez had no such right at his death, he could not transmit it to his own heirs. Much less could Ramirez acquire such right of redemption after his death, when the sale to Uy & Sons, Inc. was made because death extinguished civil personality and, therefore, all further juridical capacity to acquire or transmit rights and obligations of any kind (Civil Code of the Phil., Art. 42; Butte v. Manuel Uy & Sons, Inc., 4 SCRA 526). DEATH CERTIFICATE. The office of the local civil registrar of a municipality or city must also have in its custody the death certificates of persons who died in its locality. Section 6 of the Civil Registry Law (Act No. 3753) pertinently provides: No human body shall be buried unless the proper death certificate has been presented and recorded in the office of the local civil registrar. The physician who attended the deceased or, in his default, the health officer concerned, or in default of the latter, any member of the family of the deceased or any person having knowledge of the death, shall report the same to the local health authorities, who shall issue a death certificate and shall order the same to be recorded in the office of the local civil registrar. The death certificate, which shall be issued by the attending physician of the deceased, or in his default, by the proper health officer, shall contain the following data which shall be furnished by the person reporting the death: (a) date and place of death, (b) full name, (c) age, (d) occupation or profession, (e) residence, (f) status as regards marriage, (g) nationality of the deceased, and (h) probable cause of death. During epidemic, bodies may be buried, provided the proper death certificates have been secured, which shall be registered not later than five days after the burial of the body. CONTRACT, WILL AND THE LAW. The rights and obligations of a dead person can still be regulated by contract, will or the law. Hence, the creditors are given the right to claim from the estate of the deceased any obligation due them before the estate can finally be partitioned in favor of the heirs. Also, the testator through an express provision in a will may disinherit any of his or her heirs under any of Art. 43 CIVIL PERSONALITY 83 Natural Persons the valid grounds provided by law, thereby, in effect, controlling the disposition of his properties even after death. Likewise, any person who shows disrespect to the dead, or wrongfully interferes with a funeral, shall be liable to the family of the deceased for damages, material and moral (Article 309 of the Civil Code). Article 43. If there is doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other. (33) PROOF OF DEATH. Article 43 specifically applies only to persons who are called to succeed each other. The proof of death must be established by positive evidence. However, it can likewise be established by circumstantial evidence derived from facts. If ever an inference is to be made, it must be derived from an existing fact. Proof of death can never be established from mere inference arising from another inference or from presumptions and assumptions. Thus, in Joaquin v. Navarro, 93 Phil. 257, where the death of the mother and her son occurred during the massacre of civilians in February, 1945 and at the time when Manila was being bombarded during the war, the Supreme Court upheld the ruling of the trial court (which was reversed by the Court of Appeals) that, from the evidence presented, the son died before the mother. Pertinently, the Supreme Court observed and ruled: While the possibility that the mother died before the son cannot be ruled out, it must be noted that this possibility is entirely speculative and must yield to the more rational deduction from proven facts that it was the other way around. Joaquin Navarro, Jr. (the son), it will be recalled, was killed while running in front of, and 15 meters from, the German Club. Still in the prime of life at 30, he must have negotiated that distance in five seconds or less, and so died within that interval from the time he dashed out of the building. Now, when Joaquin Navarro, Jr., with his father and wife, started to flee from the clubhouse, the old lady was alive and unhurt, so much so that the Navarro father and son tried hard to have her come along. She could have perished within those five or fewer seconds, as stated, but the probabilities that she did seem very 84 PERSONS AND FAMILY RELATIONS LAW Art. 43 remote. True, people in the building were also killed but these, according to Lopez (the witness), were mostly refugees who had tried to slip away from it and were shot by the Japanese troops. It was not very likely that Mr. Joaquin Navarro, Sr. made an attempt to escape. She even made frantic efforts to dissuade her husband and son from leaving the place and exposing themselves to gunfire. This determination of Mrs. Angela Navarro to stay where she was may well give an idea, at the same time, of a condition of relative safety in the clubhouse at the moment her husband, son, and daughter-in-law left her. It strongly tends to prove that, as the situation looked to her, the perils of death from staying were not so imminent. And it lends credence to Mr. Lopez’ statement that the collapse of the clubhouse occurred about 40 minutes after Joaquin Navarro (the son) was shot in the head and dropped dead, and that it was the collapse that killed Mrs. Angela Navarro. The Court of Appeals said, the interval between Joaquin Navarro’s death and the breaking down of the edifice was “minutes.” Even so, it was much longer than five seconds, long enough to warrant the inference that Mrs. Angela Navarro was still alive when her son expired. The Court of Appeals mentioned several causes, besides the collapse of the building, by which Mrs. Navarro could have been killed. All these causes are speculative and the probabilities, in the light of the known facts, are against them. Dreading Japanese sharpshooters outside as evidenced by her refusal to follow the only remaining living members of her family, she could not have kept away from protective walls. Besides, the building had been set on fire to trap the refugees inside, and there was no necessity for the Japanese to waste their ammunition except upon those who tried to leave the premises. Nor was Angela Navarro likely to have been killed by falling beams because the building was made of concrete and its collapse, more likely than not, was sudden. As to fumes, these do not cause instantaneous death; certainly not within the brief space of five seconds between her son’s departure and death. xxx xxx xxx In conclusion, the presumption that Angela Joaquin de Navarro died before her son is based purely on surmises, speculations, or conjectures without any sure foundation in the evidence. The opposite theory — that the mother outlived her son — is deduced from established facts which, weighed by common experience, engender the inference as a very strong probability. Gauged by the doctrine of preponderance of evidence by which civil cases are decided, this inference ought to prevail. x x x 85 Chapter 3 JURIDICAL PERSONS Article 44. The following are juridical persons: (1) The State and its political subdivisions; (2) Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law; (3) Corporations, partnerships and associa- tions for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member. (35a) Article 45. Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed by the laws creating or recognizing them. Private corporations are regulated by laws of general application on the subject. Partnerships and associations for private interest or purpose are governed by the provi- sions of this Code concerning partnerships. (36 and 37a) Article 46. Juridical persons may acquire and possess property of all kinds, as well as incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of their organization. (38a) JURIDICAL PERSON. A juridical person is a being of legal existence susceptible of rights and obligations, or of being the subject 85 86 PERSONS AND FAMILY RELATIONS LAW Arts. 44-46 of juridical relations (Roldan v. Philippine Veterans Board, 105 Phil. 1081). STATE. The State and its political subdivisions are juridical persons. The state is a sovereign person with the people composing it viewed as an organized corporate society under a government with the legal competence to exact obedience of its commands. It is the political organization of a society legally supreme within and independent of legal control from without (Philippine Law Dictionary by Federico B. Moreno, 1982 Edition, page 587). As a juridical person, the state can enter into treaties and contracts. The Civil Code even provides that, in default of persons entitled to succeed to the estate of a deceased person, the State shall inherit his whole estate (Article 1011 of the Civil Code). As a fundamental rule, the state cannot be sued without its consent (Article XVI, Section 2 of the 1987 Philippine Constitution). Express consent may be embodied in a general law or a special law. The standing consent of the State to be sued in case of money claims involving liability arising from contracts is found in Act No. 3083. A special law may be passed to enable a person to sue the government from an alleged quasi-delict (Merritt v. Government of the Philippine Islands, 34 Phil. 311; see United States of America v. Guinto, G.R. No. 76607, February 26, 1990, 182 SCRA 644, 654). Consent is implied when the government enters into business contracts, thereby descending to the level of the other contracting party, and also when the State files a complaint, thus opening itself to a counterclaim. (Ibid.) xxx xxx xxx A distinction should first be made between suability and liability. “Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable’’ (United States v. Guinto, supra, pp. 659-660; Municipality of San Fernando v. Judge Firme, G.R. No. 52179, April 8, 1991). In Philrock v. Board of Liquidators, 180 SCRA 171, the Supreme Court further held that: Arts. 44-46 CIVIL PERSONALITY 87 Juridical Persons even when the government has been adjudged liable in a suit to which it has consented, it does not necessarily follow that the judgment can be enforced by execution against its funds for, as held in Republic v. Villasor, 54 SCRA 84, every disbursement of public funds must be covered by a corresponding appropriation passed by the Legislature: “x x x where the State gives its consent to be sued by private parties either by general or special law, it may limit claimant’s action only up to the completion of proceedings anterior to the state of execution and that the powers of the Courts end when the judgment is rendered, since government funds and properties may not be seized under writs of execution or garnishment to satisfy such judgments x x x. Disbursement of public funds must be covered by the corresponding appropriation as required by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law.” (p. 87) POLITICAL SUBDIVISIONS. Political subdivisions are mu- nicipal corporations and, in the Philippines, consist of the provinces, cities and municipalities. Municipal corporations exist in a dual capacity, and their functions are two-fold. In one, they exercise the right springing from sovereignty, and while in the performance of the duties pertaining thereto, their acts are political and governmental. Their officers and agents in such capacity, though elected or appointed by them, are nevertheless public functionaries performing a public service, and as such they are officers, agents and servants of the state. In the other capacity, the municipalities exercise a private, proprietary or corporate right, arising from their existence as legal persons and not as public agencies. Their officers and agents in the performance of such functions act in behalf of the municipalities in their corporate or individual capacity, and not for the state of sovereign power (City of Kokomo v. Loy, 112 N.E. 994-995). Thus, in a case where a municipality was sought to be held liable for the damages caused by its employee (a driver), the Supreme Court exonerated the municipality because the employee was undertaking governmental activities, thus: Municipal corporations, for example, like provinces and cities, are agencies of the State when they are engaged in gov- ernmental functions and, therefore, should enjoy the sovereign 88 PERSONS AND FAMILY RELATIONS LAW Arts. 44-46 immunity from suit. Nevertheless, they are subject to suit even in the performance of such functions because their charter pro- vides that they can sue and be sued (Municipality of San Fer- nando v. Judge Firme, G.R. No. 52179, April 1991, citing Cruz, Philippine Political Law, 1987 Edition, p. 39). xxx xxx xxx Anent the issue of whether or not the municipality is liable for the torts committed by its employee, the test of liability of the municipality depends on whether or not the driver, acting in behalf of the municipality, is performing governmental or proprietary functions. As emphasized in the case of Torio v. Fontanilla (G.R. No. L-29993, October 23, 1978, 85 SCRA 599, 606), the distinction of powers becomes important for purposes of determining the liability of the municipality for the acts of its agents which result in an injury to third persons. xxx xxx xxx It has already been remarked that municipal corporations are suable because their charters grant them the competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in the discharge of governmental functions and can be held answerable only if it can be shown that they were acting in a proprietary capacity. In permitting such entities to be sued, the State merely gives the claimant the right to show that the defendant was not acting in its governmental capacity when the injury was committed or that the case comes under the exceptions provided by law. Failing this, the claimant cannot recover (Cruz, supra, p. 44). In the case at bar, the driver of the dump truck of the municipality insists that “he was on his way to the Naguilian river to get a load of sand and gravel for the repair of San Fernando’s municipal streets.” In the absence of any evidence to the contrary, the regularity of the performance of official duty is presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule that the driver of the dump truck was performing duties or tasks pertaining to his office. We already stressed in the case of Palafox, et al. v. Province of Ilocos Norte, the District Engineer, and the Provincial Treasurer (102 Phil. 1186) that “the construction or maintenance of roads in which the truck and the driver worked at the time of the accident are admittedly governmental activities.” After a careful examination of existing laws and juris- prudence, We arrive at the conclusion that the municipality Arts. 44-46 CIVIL PERSONALITY 89 Juridical Persons cannot be held liable for the torts committed by its regular employee, who was then engaged in the discharge of governmental functions. Hence, the death of the passenger — tragic and deplorable though it may be — imposed on the municipality no duty to pay monetary compensation (Municipality of San Fernando v. Judge Firme, G.R. No. 52179, April 1991). CORPORATION. The general law governing public corpo- rations is Batas Pambansa Blg. 68, otherwise known as the Corpo- ration Code of the Philippines. It became effective on May 1, 1980. Partnerships and associations for private interest are governed by Title IX of the Civil Code. Government corporations, such as the Philippine National Bank, the Development Bank of the Philippines, and the Philippine Gaming and Amusement Corporation, are created by their special charters passed by the legislature. However, Batas Pambansa Blg. 68 applies in a suppletory nature. A corporation is an artificial being created by operation of law, having the right of succession and the powers, attributes, and properties expressly authorized by law or incident to its existence (Section 2, Batas Pambansa Blg. 68). Corporations are creatures of the law, and can only come into existence in the manner prescribed by law. As has already been stated, general laws authorizing the formation of corporations are general offers to any persons who may bring themselves within their provisions; and if condition precedents are prescribed in the statute, or certain acts are required to be done, they are the terms of the offer, and must be complied with substantially before legal corporate existence can be acquired (Cagayan Fishing Development Co., Inc. v. Teodoro Sandiko, 65 Phil. 223, citing 14 C.J., Sec. 111, p. 118). PARTNERSHIP. By the contract of partnership, two or more persons bind themselves to contribute money, property, or industry to a common fund, with the intention of dividing the profits among themselves. Two or more persons may also form a partnership for the exercise of a profession (Article 1767 of the Civil Code). DISTINCT PERSONALITY AND EXCEPTIONS. Corpora- tions, partnerships and associations for private interest and pur- pose may be granted by law a juridical personality, separate and distinct from that of each shareholder, partner or member. Hence, 90 PERSONS AND FAMILY RELATIONS LAW Arts. 44-46 the obligation of the corporation is not the obligation of the stock- holders and vice versa. In Saw v. Court of Appeals, 195 SCRA 740, where the shareholders sought to intervene in a case involving their corporation, the Supreme Court ruled that the said shareholders had no personality to intervene in a litigation which involved corpo- rate liability because the shareholders’ interest in the corporation was merely inchoate. Thus: Here, the interest, if it exists at all, of petitioners-movants is indirect, contingent, remote, conjectural, consequential and collateral. At the very least, their interest is purely inchoate, or in sheer expectancy of a right in the management of the corporation and to share in the profits thereof and in the properties and assets thereof on dissolution, after payment of the corporate debts and obligations. While a share of stock represents a proportionate or aliquot interest in the property of the corporation, it does not vest the owner thereof with any legal right or title to any of the property, his interest in the property being equitable or beneficial in nature. Shareholders are in no legal sense the owner of corporate property, which is owned by the corporation as a distinct legal person. This legal fiction is highly pronounced in corporations. However, it can be pierced or disregarded, thereby making the shareholders liable for any liability of the corporation. In Cease, et al. v. Court of Appeals, et al., 93 SCRA 493, the Supreme Court summarized the rule, thus: A rich store of jurisprudence has established the rule known as the doctrine of disregarding or piercing the veil of corporate fiction. Generally, a corporation is invested by law with a personality separate and distinct from that of the persons composing it as well as from that of any other legal entity to which it may be related. By virtue of this attribute, a corporation may not, generally, be made to answer for acts or liabilities of its stockholders or those of the legal entities to which it may be connected, and vice versa. This separate and distinct personality is, however, merely a fiction created by law for convenience and to promote the ends of justice (Laguna Transportation Company v. Social Security System, L-14606, April 28, 1960; La Campana Coffee Factory, Inc. v. Kaisahan ng mga Manggagawa sa La Campana, L-5677, May 25, 1953). For this reason, it may not be used or invoked for Art. 47 CIVIL PERSONALITY 91 Juridical Persons ends subversive of the policy and purpose behind its creation (Emiliano Cano Enterprises, Inc. v. CIR, L-20502, February 26, 1965) or which could not have been intended by law to which it owes its being (McConnel v. Court of Appeals, L-10510, March 17, 1961, 1 SCRA 722). This is particularly true where the fiction is used to defeat public convenience, justify wrong, protect fraud, defend crime (Yutivo Sons Hardware Company v. Court of Tax Appeals, L-13203, January 28, 1961, 1 SCRA 160), confuse legitimate legal or judicial issues (R.F. Sugay & Co. vs. Reyes, L-20451, Dec. 28, 1964), and perpetrate deception or otherwise circumvent the law (Gregorio Araneta, Inc. v. Tuazon de Paterno, L-2886, August 22, 1952, 49 O.G. 721). This is likewise true where the corporate entity is being used as an alter ego, adjunct or business conduit for the sole benefit of the stockholders or of another corporate entity (McConnel v. Court of Appeals, supra; Commissioner of Internal Revenue vs. Norton Harrison Co., L-7618, August 31, 1964). In any of these cases, the notion of corporate entity will be pierced or disregarded, and the corporation will be treated merely as an association of persons or, where there are two corporations, they will be merged as one, the one being merely regarded as part or instrumentality of the other (Koppel Phils., Inc. vs. Yatco, 77 Phil. 496; Yutivo Sons Hardware Company v. Court of Appeals, supra). Article 47. Upon the dissolution of corporations, institutions and other entities for public interest or purpose mentioned in No. 2 of Article 44, their property and other assets shall be disposed of in pursuance of law or the charter creating them. If nothing has been specified on this point, the property and other assets shall be applied to similar purposes for the benefit of the region, province, city or municipality which during the existence of the institution derived the principal benefits from the same. (39a) DISSOLUTION. The dissolution of private corporations is gov- erned by Title IV of the Corporation Code. With respect to corpora- tions for public interest or purposes created by a charter, their dis- solution shall be governed in accordance with the provisions of their respective charters and in the absence of any such provision, by the provision of the Corporation Code. The dissolution of a partnership is governed by Title IX, Chapter 3 of the Civil Code. 92 PERSONS AND FAMILY RELATIONS LAW TITLE II. — CITIZENSHIP AND DOMICILE Article 48. The following are citizens of the Philippines: (1) Those who were citizens of the Philippines at the time of the adoption of the Constitution of the Philippines; (2) Those born in the Philippines of foreign parents who, before the adoption of said Constitution, had been elected to public office in the Philippines; (3) Those whose fathers are citizens of the Philippines; (4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine Citizenship; (5) Those who are naturalized in accordance with law. Article 49. Naturalization and the loss and reacquisition of citizenship of the Philippines are governed by special laws. (n) Article 50. For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. (40a) Article 51. When the law creating or recog- nizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercise their principal functions. (41a) 92 Arts. 48-51 CITIZENSHIP AND DOMICILE 93 DOMICILE. Domicile denotes a fixed permanent residence to which, when absent, one has the intention of returning. Residence is used to indicate a place of abode, whether permanent or temporary. Domicile is residence coupled with the intention to remain for an unlimited time. No length of residence without intention of remaining will constitute domicile. A man may have a residence in one place and a domicile in another place. He may have as many residences as he wants but he can only have one domicile. Hence, a woman may have lived for so many years in different places and may have even registered as a voter in a certain place but that place may not necessarily be her domicile if it is not her residence where she really has the intention of returning (See Romualdez-Marcos v. COMELEC, 64 SCAD 358, 248 SCRA 300). A minor follows the domicile of his or her parents. Domicile of origin can only be lost and a change of domicile occurs when the following requisites are present: 1) an actual removal or an actual change of domicile; 2) a bona fide intention of abandoning the former place of residence establishing a new one; and 3) acts which correspond with the purpose (See Romualdez-Marcos v. COMELEC, 64 SCAD 358, 248 SCRA 300). Under the Family Code, the husband and wife shall fix the family domicile. In case of disagreement, the court shall decide (Article 69 of the Family Code). CITIZENSHIP. Article IV of the 1987 Philippine Constitution now governs the rule on citizenship. Thus: Section 1. The following are citizens of the Philippines: (1) Those who are citizens of the Philippines at the time of the adoption of this Constitution; (2) Those whose fathers and mothers are citizens of the Philippines; (3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and (4) Those who are naturalized in accordance with law. Section 2. Natural-born citizens are those who are citizens of the Philippines from birth, without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. 94 PERSONS AND FAMILY RELATIONS LAW Arts. 48-51 Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law. Section 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it. Section 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. JUS SANGUINIS. By providing that those born of Filipino fathers and mothers are Philippine citizens, the Philippine Constitution highlights the fact that in this jurisdiction what is followed is the concept of jus sanguinis as opposed to jus soli. Jus sanguinis refers to citizenship by blood while jus soli refers to citizenship on the basis of the place of birth. ACQUISITION OF CITIZENSHIP. The law that governs the acquisition of Philippine citizenship is Commonwealth Act No. 473, as amended. Basically, the law provides that, for a foreigner to be able to become a Philippine citizen, a proper petition shall be filed in the proper court which, after due hearing, shall issue the certificate of naturalization. Pertinently, the said law provides: xxx xxx xxx Section 2. Qualifications. — Subject to section four of this Act, any person having the following qualifications may become a citizen of the Philippines by naturalization: First. He must not be less than twenty-one years of age on the day of the hearing of the petition; Second. He must have resided in the Philippines for a continuous period of not less than ten years; Third. He must be of good moral character and believes in the principles underlying the Philippine Constitution, and must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is living; Fourth. He must own real estate in the Philippines worth not less than five thousand pesos, Philippine currency, or must have some known lucrative trade, profession, or lawful occupation (Under the present Constitution, however, no alien or foreigner may own land except through hereditary succession [Article 12, Section 7 of the 1987 Philippine Constitution].); Arts. 48-51 CITIZENSHIP AND DOMICILE 95 Fifth. He must be able to speak and write English or Spanish and any one of the principal Philippine languages; and Sixth. He must have enrolled his minor children of school age, in any public school or private school recognized by the Office of Private Education of the Philippines, where Philippine history, government and civics are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him prior to the hearing of his petition for naturalization as Philippine citizen. Section 3. Special qualifications. — The years of continuous residence required under the second condition of the last preceding section shall be understood as reduced to five years for any petitioner having any of the following qualifications: (1) Having honorably held office under the Government of the Philippines or under that of any of the provinces, cities, municipalities or political subdivisions thereof; (2) Having established a new industry or introduced a useful invention in the Philippines; (3) Being married to a Filipino woman; (4) Having been engaged as a teacher in the Philippines in a public or recognized private school not established for exclusive instruction of children of persons of a particular nationality or race, in any of the branches of education or industry for a period of not less than two years; and (5) Having been born in the Philippines. Section 4. Who are disqualified. — The following cannot be naturalized as Philippine citizens: (a) Persons opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments; (b) Persons defending or teaching the necessity or propriety of violence, personal assault, or assassination for the success and predominance of their ideas; (c) Polygamists or believers in the practice of polygamy; (d) Persons convicted of crimes involving moral turpi- tude; (e) Persons suffering from mental alienation or incur- able contagious diseases; (f) Persons who, during the period of their residence in the Philippines, have not mingled socially with the Filipinos, or 96 PERSONS AND FAMILY RELATIONS LAW Arts. 48-51 who have not evinced a sincere desire to learn and embrace all customs, traditions, and ideals of the Filipinos; (g) Citizens or subjects of nations with whom (the United States and) the Philippines are at war, during the period of war; and (h) Citizens or subjects of a foreign country other than the United States, whose laws do not grant Filipinos the right to become naturalized citizens or subject thereof. LOSS AND REACQUISITION OF CITIZENSHIP. The law that governs the loss or reacquisition of citizenship is Commonwealth Act No. 63 as amended by Republic Act No. 106. The grounds for the loss of citizenship are as follows: 1. By naturalization in a foreign country; 2. By express renunciation of citizenship; 3. By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more: Provided, however, That a Filipino may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any country; 4. By rendering service to, or accepting commission in, the armed forces of a foreign country: Provided, That the rendering of service to, or acceptance of such commission in, the armed forces of a foreign country, and the taking of an oath of allegiance incident thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his Philippine citizenship if either of the following circumstances is present: (a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with the said foreign country; or (b) The said foreign country maintains armed forces on Philippine territory with the consent of the Republic of the Philippines: Provided, That the Filipino citizen concerned, at the time of rendering said service, or acceptance of said commission, and taking the oath of allegiance incident thereto, states that he does so only in connection with his service to said foreign country: And provided, finally, That any Filipino citizen who is rendering service to, or is commissioned in, the armed forces of a foreign Arts. 48-51 CITIZENSHIP AND DOMICILE 97 country under any of the circumstances mentioned in paragraph (a) or (b), shall not be permitted to participate nor vote in any election of the Republic of the Philippines during the period of his service to, or commission in, the armed forces of the said foreign country. Upon discharge from the service of the said foreign country, he shall be automatically entitled to the full enjoyment of his civil and political rights as Filipino citizen; 5. By cancellation of the certificate of naturalization; 6. By having been declared by competent authority a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted; and 7. In the case of a woman, upon her marriage to a foreigner if, by virtue of the laws in force in her husband’s country, she acquires his nationality (Section 1, C.A. No. 63 as amended). The grounds for the reacquisition of citizenship are as follows: 1. By naturalization: Provided, That the applicant possess none of the disqualification prescribed in Section 4 of Commonwealth Act No. 473; 2. By repatriation of deserters of the Army, Navy or Air Corps: Provided, That a woman who lost her citizenship by reason of her marriage to an alien may be repatriated in accordance with the provisions of Commonwealth Act No. 63, as amended, after the termination of the marital status; and 3. By direct act of the Congress of the Philippines. 98 PERSONS AND FAMILY RELATIONS LAW THE FAMILY CODE OF THE PHILIPPINES EXECUTIVE ORDER NO. 209. On July 6, 1987, President Corazon C. Aquino signed into law Executive Order No. 209, otherwise known as the “Family Code of the Philippines.” The reason and objective of the code are clearly set out in its whereas clauses, to wit: WHEREAS, almost four decades have passed since the adoption of the Civil Code of the Philippines; WHEREAS, experience under said Code as well as pervasive changes and developments have necessitated revision of its provisions on marriage and family relations to bring them closer to Filipino customs, values and ideals and reflect contemporary trends and conditions; WHEREAS, there is a need to implement policies embodied in the new Constitution that strengthen marriage and the family as basic social institutions and ensure equality between men and women. The committee which drafted the Family Code included three well-renowned civilists, namely: Justice Jose B.L. Reyes, Justice Eduardo P. Caguioa and Justice Ricardo C. Puno. Subsequently, Executive Order No. 277 was signed by President Aquino on July 17, 1987. This particular executive order was subjected to further amendments and modifications specifically referring to Articles 26, 36 and 39. On August 3, 1988, the Family Code of the Philippines finally took effect. Thereafter, Republic Act No. 6809 was passed by Congress on October 20, 1989 and approved by President Aquino. It took effect on December 18, 1989. It amended Title X of the Family Code dealing with emancipation and the age of majority. 98 99 TITLE I. — MARRIAGE Chapter 1 REQUISITES OF MARRIAGE Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with the law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (52a) NATURE AND IMPORTANCE OF MARRIAGE. By the con- tract of marriage, a man and a woman enter a joint life acting, living and working as one. Whether under the common law or under the civil law, upon marriage, the husband and the wife become one single moral, spiritual and social being, not only for the purpose of procreation, but also for the purpose of mutual help and protection physically, morally and materially (Saclolo v. CAR, 106 Phil. 1038). Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival (Skinner v. State of Oklahoma, 316 US 535, 62 S. Ct. 1110, 86 L. Ed. 1655). The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men (Loving v. Virginia, 388 US 1, 87 S. Ct. 1817, 18 L. Ed. 20). Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal (Reynolds v. US, 98 US 145, 25 L. Ed. 144). 99 100 PERSONS AND FAMILY RELATIONS LAW Art. 1 It is also to be observed that, while marriage is often termed by text writers and in decisions of courts as a civil contract, generally to indicate that it must be founded upon the agreement of the parties, x x x, it is something more than a mere contract. The consent of the parties is of course essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress (Maynard v. Hill, 125 US 190, 8 S. Ct. 723, 31 L. Ed. 654). It is not then a contract within the meaning of the clause of the Constitution which prohibits the impairing of the obligation of contracts. It is rather a social relation like that of a parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress (Adams v. Palmer, 51 Me. 481, 483). The marital relation, unlike ordinary contractual relations, is regarded by the laws as the basis of the social organization. The preservation of that relation is deemed essential to public welfare (Hood v. Roleson, 125 Ark. 30, 187 SW 1059). Thus, in a case where the petitioner filed for the annulment of his marriage on the ground that he never had any intention at all to marry the respondent because the main consideration why he entered in such a marriage contract was only to give a name to the child in respondent’s womb which however was never born, and therefore clearly proving a failure of consideration of the marriage contract warranting the annulment of the same, it was held that such annulment cannot be granted on such a ground, not only because the said ground for annulment was not among those provided in the marriage laws of that state but also because the policy of the law clearly was against such an annulment considering that a marriage is not at most a civil contract but it is at least a civil contract, with status and the interest of the State added to it (Bove v. Pinciotti, 46 Pa D. & C. [C.P. 1942]). The court further stated: Art. 1 MARRIAGE 101 Requisites of Marriage to say that the failure of the child to materialize is a failure of consideration and, hence, avoids the point just made is merely to emphasize the artificiality of comparing the marriage to the ordinary civil contract. It is not possible to have a marriage for one purpose and no marriage at all for other purposes, for marriage is not only a contract but a status and a kind of fealty to the State as well x x x. x x x The second is that Judge Crichton assumed, even under the civil contract theory, that the parties intended no marriage, whereas that is precisely what they did; it was, as he said, to “be ostensible only, and for the sole purpose of giving a name to the child.” The fact is that they intended the marriage to be ostensible as it concerned themselves but real as it concerned the child. Nothing short of a real marriage could give the child a name. We know of no authority permitting two persons to split up the incidents and obligations of marriage to suit themselves in this way, nor any, even in civil law, which permits two people to enter into a contract for the “ostensible” purpose of affecting the rights of a child and having done so to recede from it at pleasure and without recourse. If the rules governing the rescission of civil contracts do not obtain in the annulment of a marriage contract (Eisenberg v. Eisenberg, 105 Pa. Superior Ct. 30 [1932]), still less is there any sanction for valid private reservations in entering upon marriage, or room for the forced analogy of failure because the expected child did not appear (Bove v. Pinciotti, 46 Pa. D. & C. [C.P. 1942]). Marriage as a special contract cannot be restricted by discri- minatory policies of private individuals or corporations. In Philip- pine Telegraph and Telephone Company v. NLRC, 82 SCAD 747, 272 SCRA 596, where a company’s policy disqualified from work any woman worker who contracts marriage, the Supreme Court invali- dated such policy as it not only runs afoul of the constitutional pro- vision on equal protection but also on the fundamental policy of the State toward marriage. The Supreme Court relevantly said: In the final reckoning, the danger of such a policy against marriage followed by petitioner PT & T is that it strikes at the very essence, ideals, and purpose of marriage as an inviolable social institution and, ultimately, of the family as the foundation of the nation. That it must be effectively interdicted here in all its indirect, disguised or dissembled forms as discriminatory conduct derogatory of the laws of the land is not only in order but imperatively required. That a marriage is not an ordinary contract is even highlighted by the fact that Article 350 of the Revised Penal Code provides that 102 PERSONS AND FAMILY RELATIONS LAW Art. 1 the penalty of prision correccional in its medium and maximum periods shall be imposed upon any person who, not having committed bigamy which is separately penalized under Article 349 of the Revised Penal Code, shall contract marriage knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment. Likewise, Sections 37 to 45 of the Marriage Law of 1929 (Act No. 3631) providing for the criminal penalties for erring persons who are authorized to solemnize a marriage are the only remaining provisions in the said law which have not been repealed by any law, including the Family Code. MAIL-ORDER BRIDE. Marriage is vested with public interest such that the legislature has even enacted a law making it a criminal offense for any person, natural or juridical, association, club or any entity to commit, directly or indirectly, any of the following acts: (1) To establish or carry on a business which has for its purpose the matching of Filipino women for marriage to foreign nationals either on a mail-order basis or through personal introduction; (2) To advertise, publish, print or distribute or cause the advertisement, publication, printing, or distribution of any brochure, flier, or any propaganda material calculated to promote the prohibited acts in the preceding subparagraph; (3) To solicit, enlist or in any manner attract or induce any Filipino woman to become a member in a club or association whose objective is to match women for marriage to foreign nationals whether on a mail-order basis or through personal introduction for a fee; (4) To use the postal service to promote the prohibited acts in subparagraph 1 (Republic Act No. 6955, Section 2, June 13, 1990). It is unlawful for the manager or officer-in-charge or advertising manager of any newspaper, magazine, television or radio station, or other media, or of an advertising agency, print company or other similar entities, to knowingly allow, or consent, to the acts prohibited above (Republic Act No. 6955, Section 2, June 13, 1990). TRAFFICKING IN WOMEN. Under Republic Act No. 9208, the Anti Trafficking in Persons Act of 2003, the following acts are considered trafficking: Art. 1 MARRIAGE 103 Requisites of Marriage Section 4. Acts of Trafficking in Persons. — It shall be unlawful for any person, natural or juridical, to commit any of the following acts: xxx xxx xxx (b) To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (c) To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage. MARRIAGE BETWEEN RAPIST AND RAPED VICTIM. As a special contract, a subsequent valid marriage of the offender and the offended party in the crime of rape likewise extinguishes the criminal action or the penalty imposed for rape. In case the victim is already married and 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-C of the Revised Penal Code, as amended by Republic Act No. 8353). MARRIAGE AS A STATUS. Marriage creates a social status or relation between the contracting parties (State v. Tatty, 7 LEA 50; Greek vs. State, 58 Ala. 190), in which not only they but the State as well are interested (Magee v. Young, 40 Miss. 164; Trammell v. Voughman, 158 Mo. 214), and involves a personal union of those participating in it of a character unknown to any other human relations, and having more to do with the morals and civilization of a people than any other institution (State v. Dukit, 70 Wis. 272, 63 NW 83). Indeed, marriage is one of the cases of double status, in that the status therein involves and affects two persons. One is married, never in abstract or a vacuum, but, always, to somebody else. Hence, a judicial decree on the marriage status of a person necessarily reflects upon the status of another and the relation between them (Rayray v. Chae Kyung Lee, 18 SCRA 450). And, it must be noted that: whenever a peculiar status is assigned by law to members of any particular class of persons, affecting their general position 104 PERSONS AND FAMILY RELATIONS LAW Art. 1 in or with regard to the rest of the community, no one belonging to such class can vary by any contract the rights and liabilities incident to this status (Freeman’s Appeal, 68 Conn 533, 37 All 420, 57 ASR 112). Hence, in a case where the parties, prior to the civil marriage ceremony, agreed that the said civil marriage was not to be considered valid and binding until after the celebration of a religious marriage ceremony, it was held that a case for annulment based on the non-fulfillment of the said condition cannot prosper. Pertinently, the court said: There being no fraud in the inception of the marriage, the law recognizes no privately imposed conditions that would alter the marital status. That status is too much a matter of public concern to allow the parties to tinker with it according to their own notions of what is expedient and proper (Anonymous v. Anonymous, 49 NYSd 314). MARRIAGE IN INTERNATIONAL LAW. The right to marry is a recognized fundamental human right under international law. The Universal Declaration of Human Rights adopted by the members of the United Nations including the Philippines specifically provides in Article 16 thereof that men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and “to found a family.” They are entitled to equal rights as to marriage, during marriage and after its dissolution. It further provides that marriage shall be entered into only with the free and full consent of the intending parties. It declares that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. The International Covenant on Economic, Social and Cultural Rights signed by the Philippines on December 19, 1966 and ratified on May 17, 1974 went into force on January 3, 1976. Article 10 of this international covenant also provides declarations similar to those enunciated in the Universal Declaration of Human Rights. The International Covenant on Civil and Political Rights which the Republic of the Philippines signed on December 19, 1966, ratified on February 28, 1986 and entered into force on January 23, 1987 likewise specifically provides in Article 23 thereof the same provisions on family and marriage stated in the Universal Declaration of Human Rights. Art. 1 MARRIAGE 105 Requisites of Marriage There can be no doubt, therefore, that the institution of marriage is universally regarded as fundamentally important deserving the full protection of all states of whatever ideology or political persuasions. Moreover, the 1987 Philippine Constitution provides in its Declaration of Principles and State Policies that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations (Article II, Section 2 of the 1987 Philippine Constitution). CONSTITUTIONAL PROTECTION. The 1987 Philippine Constitution provides that “the State recognizes the sanctity of family life and shall protect and strengthen the family as a basic social institution” (Section 12, Article II). Marriage is a relationship of the highest importance. (Manuel v. People, G.R. No. 165842, November 29, 2005, 476 SCRA 461). As a matter of fact, to highlight the importance of the family and of marriage, the Constitution further provides a separate Article 15 exclusively dealing with the family. Among others, it provides that the State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development (Section 1, Article 15). Marriage, according to the Constitution, is an inviolable social institution and the foundation of the family and shall be protected by the State (Section 2, Article 15). It has likewise been authoritatively stated that the “right to marry, establish a home and bring up children is a central part of the liberty protected by the Due Process Clause” (Zablocki v. Redhail, 434 U.S. 374, 54 L. Ed. 618). The right to enter into a marriage has also been regarded as within the ambit of the constitutional right of association. And, once married, a couple has a right to privacy which is protected against all undue and unwarranted government intrusion. The right of privacy in a marriage is a right older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose x x x (Griswold v. Connecticut, 381 US 479, 14 L. Ed. 510). The constitutional provisions on marriage, however, do not imply that the legislature cannot enact a law allowing absolute 106 PERSONS AND FAMILY RELATIONS LAW Art. 1 divorce. While it is fundamental that marriage must be protected, it is likewise to be acknowledged that there may be certain cases where the parties might have undergone a marriage ceremony to bind themselves together but, subsequently, no functional marital life would exist. Hence, there is no marriage to preserve at all. The legislature has the plenary power to decide what sort of situations allowing absolute divorce may be recognized within the limits allowed by the Constitution. While a lawful marriage seeks to create a permanent union between man and woman, it does not shed the spouses’ integrity or their privacy as individuals. Thus, in Zulueta v. Court of Appeals, 68 SCAD 440, 253 SCRA 699 where a wife, to get evidence of infidelity in a case for legal separation she filed against her husband, ransacked his office and forcibly took documents and letters of the husband addressed to his paramour, the Supreme Court ruled that the wife cannot use the said documents and letters as evidence because they were obtained in violation of the husband’s constitutional right to privacy. Pertinently, the Supreme Court ruled: Indeed, the documents and papers in question are inad- missible in evidence. The constitutional injunction declaring “the privacy of communication and correspondence (to be) in- violable” is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband’s infidelity) who is the party against whom the constitutional provision is to be en- forced. The only exception to the prohibition in the Constitution is if there is a “lawful order (from a) court or when public safety or order requires otherwise, as prescribed by law.” Any violation of this provision renders the evidence obtained inadmissible “for any purpose in any proceeding.” The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/ her integrity or his/her right to privacy as an individual and the constitutional protection is ever available to him or to her. The law insures absolute freedom of communication between spouses by making it privileged. Neither the husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists. Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions. But one thing Art. 1 MARRIAGE 107 Requisites of Marriage is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other. In the case of Duncan v. Glaxo, 438 SCRA 343, an employment contract requiring an employee to disclose to management any existing or future relationship by consanguinity or affinity with co- employees or employees of competing drug companies and requiring such employee to resign should management find that such relationship poses a possible conflict of interest was not held to be in violation of the equal protection clause of the constitution considering that the said stipulation is reasonable under the circumstances because such relationship might compromise the interest of the company and the requirement was shown to be aimed against the possibility that a competitor company will gain access to its secrets and procedures. The Supreme Court said that the provision does not impose an absolute prohibition against relationships between the company’s employees and those of competitor company. In the subsequent case of Star Paper Corporation v. Simbol, 487 SCRA 228, where a company policy provided that, in case two of their employees decide to get married to each other , one of them should resign from the company, the Supreme Court held that the act of the company in enforcing such policy is illegal as it failed to prove a legitimate business concern in imposing the questioned policy especially so when the asserted policy is premised on the mere fear that employees married to each other will be less efficient. Thus, it was not shown how the marriage between a sheeting machine operator of the company married to an employee in the repacking section in the same company, or a production helper to a cutter- machine helper, can be detrimental to the business operations of the company. LEGISLATIVE CONTROL OF MARRIAGE. The Constitution itself however does not establish the parameters of state protection to marriage and the family, as it remains the province of the legislature to define all legal aspects of marriage and prescribe the strategy and the modalities to protect it and put into operation the constitutional provisions that protect the same. With the enactment of the Family Code, this has been accomplished as it defines marriage and the family, spells out the corresponding legal effects, imposes the limitations that affect married and family life, as well as prescribes the grounds for declaration of nullity and those for legal separation (Ong v. Ong, G.R. No. 153206, October 23, 2006, 108 PERSONS AND FAMILY RELATIONS LAW Art. 1 505 SCRA 76). Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature (Maynard v. Hill, 125 US 190, 8 S. Ct. 723, 31 L. Ed. 654). In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State. On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death. In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State (Manuel v. People, G.R. No. 165842, November 29, 2005, 476 SCRA 461). The relations, duties, obligations, and consequences flowing from the marriage contract are so important to the peace and welfare of society as to have placed it under the control of special municipal regulations, independent of the will of the parties, and it has always been the subject of legislative control (Maynard v. Hill, 125 US 190, 8 S. Ct. 723, 31 L. Ed. 654). Indeed, not only is the state concerned with the validity of marriage per se but also with the sustainability and maintenance of a harmonious and healthy family life brought about by such marriage. It is a generally accepted doctrine that the legislature may impose such restrictions upon marital relation as the laws of God and the laws of propriety and morality and social order demand, provided, such regulations are not prohibitory (State v. Walker, 36 Kan. 297). The social aspects of marriage have become so impressed upon us that law-making bodies everywhere have seen fit to impose safeguards against ill-advised unions. Thus, waiting periods, medical examinations, age restrictions, marriage within degrees of consanguinity and affinity, and many other controls have been universally imposed by state legislatures in order to preserve and maintain the utmost purity and integrity of marriage (In re Barbara Haven 86 Pa., D.C.CC 141). Public policy, good morals and the interest of society require that the marital relation should be surrounded with every safeguard and its severance only in the manner prescribed and the causes specified by law. The laws regulating civil marriages are necessary to serve the interest, safety, good order, comfort or general welfare of the community and the parties can waive nothing essential to the validity of the proceedings. A civil marriage anchors an ordered society by encouraging stable relationships over transient ones; it enhances the welfare of the community (Manuel v. People, G.R. No. 165842, November 29, 2005, 476 SCRA 461). Art. 1 MARRIAGE 109 Requisites of Marriage Legislative regulation of marriage must, however, not con- travene the mandates of the Constitution. It must not violate for instance the “equal protection clause” by forbidding certain types of marriages on the basis of race or political inclinations (Loving v. Virginia, 388 US 1, 18 L. Ed. 2d 1010). By legislation, marriage can be made a statutory basis for limiting one’s capacity to act or for affecting one’s right to acquire property. For example, if a person attests the execution of a last will and testament, to whose spouse a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such spouse or anyone claiming under such spouse, be void, unless there are three other competent witnesses to such will (Article 823 of the Civil Code). In this case, the fact of marriage of the witness in a will to the devisee or legatee shall render void the gratuitous disposition of a real property in favor of the devisee-spouse or a personal property in favor of the legatee-spouse, unless there are three other witnesses. Also, according to Article 874 of the Civil Code, an absolute condition not to contract a first or subsequent marriage made in a last will and testament on an instituted voluntary heir, legatee, or devisee shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter’s ascendants or descendants. It must be pointed out that, in case the heir, legatee, or devisee falls under the exception, the contravention of such a condition in a will imposed on them will nevertheless not make the marriage void but will only make ineffective the grant, devise or legacy. PROPERTY RELATIONS. Under the New Family Code, except for property relations which may be fixed in a marriage settlement executed prior to the marriage ceremony, the nature, consequence and incidents of marriage as a social institution are governed by law and not subject to stipulations. However, marriage settlements must not contravene the mandatory provisions of the new Family Code. As the law mandates, marriage settlements must be within the limits provided by the Family Code. For instance, while persons who intend to marry can stipulate in their marriage settlement that the property regime that will govern their marriage shall be the conjugal partnership property arrangement, they cannot provide any stipulation, whether express or implied, that the commencement of such property regime shall be at anytime other than at the precise moment that the marriage was celebrated. If they do so, Article 107 of the Family Code in relation to Article 88 statutorily makes such 110 PERSONS AND FAMILY RELATIONS LAW Art. 1 stipulation void. Also, Article 77 of the Family Code provides that the marriage settlement and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. Any modification after the marriage must be approved by the courts and must be made only in accordance and in the instances provided for in Article 76. Other limitations are set out in the Family Code. LAW GOVERNING VALIDITY OF MARRIAGE. To create the relation of husband and wife, and give rise to the mutual rights, duties, and liabilities arising out of that relation, there must be a valid marriage. The requisites for a valid marriage are provided for by law. In determining the validity of marriage, it is to be tested by the law in force at the time the marriage was contracted (Social Security System v. Jarque Vda. de Bailon, 485 SCRA 376; Stewart v. Vandervort, 34 W. Va. 524, 12 SE 736, 12 LRA 50; Ninal v. Bayadog, 328 SCRA 122). In Gomez v. Lipana, 33 SCRA 615 decided in 1970, the Supreme Court was confronted with the issue of whether or not a second marriage is void and could be the subject of a collateral attack. In determining the validity of the marriage, the Supreme Court did not apply the 1950 Civil Code provisions on marriage which was the one effective at the time the decision was rendered. The Supreme Court applied the law which was effective at the time the questioned marriage was celebrated. Since the second marriage was solemnized in 1935, the Supreme Court stated that the controlling law determinative of the suit was Act 3613 of the Philippine Legislature, otherwise known as the Marriage Law of 1929, which became effective on December 4, 1929 and which remained effective up to the date the second marriage was celebrated. The Marriage Law of 1929 was subsequently superseded by the Civil Code (See also Yap v. CA, 145 SCRA 229). The principle that the validity of a marriage is determined by the law effective at the time of the celebration of the marriage is further highlighted by the fact that, as a general rule, the nature of the marriage already celebrated cannot be changed by a subsequent amendment to the law. Thus, it has been held that a marriage void in toto at the time it is made cannot be made voidable by a subsequent statute, so as to impose upon the husband the burden of alimony. Similarly, repealing a statute prohibiting certain marriages does not operate to make valid and effectual a marriage contracted previously in violation of such act. The rule as to retroactive application is otherwise, however, for statutes Art. 1 MARRIAGE 111 Requisites of Marriage expressly validating certain marriages formerly considered invalid (52 Am. Jur. 2d 955-956). In order to avoid the consequences that would otherwise flow from declaring particular kinds of prohibited or irregular marriages void, or voidable, legislatures have sometimes enacted statutes expressly making such marriages valid. Such statutes are constitutional even when retroactive in their operation. Accordingly, it has been held that such a statute is not void because it may impair vested rights, and that although it may affect the rights of individuals, the judiciary have no authority to declare it void if it is just and reasonable and conducive to the public good (52 Am. Jur. 2d 958). Under the Civil Code of 1950, a marriage between stepbrother and stepsister was void. Such a marriage is not anymore prohibited under the new Family Code. However, the effectivity of the new Family Code does not affect the void nature of a marriage between stepbrother and stepsister solemnized during the effectivity of the 1950 Civil Code. It remains void or nullifiable considering that the validity of a marriage is governed by the law enforced at the time of the marriage ceremony. Also, in the Family Code, there is now a new provision, specifically Article 53, which considers a subsequent marriage void if, before contracting the same, the former spouses, in violation of Article 52, failed, among others, to liquidate their property of the previous marriage after the finality of a nullity or annulment decree and to deliver the presumptive legitime of their children. This ground to nullify a marriage or to declare it as void did not exist in the 1950 Civil Code and, therefore, cannot be availed of by a person who, after obtaining a decree nullifying or annulling his previous marriage, wants to again nullify his subsequent marriage on the basis that such subsequent marriage which has been entered into prior to the effectivity of the Family Code does not comply with the requirement relative to the delivery of the presumptive legitime of his children in the first marriage. In the same vein, “mistake in identity” was an instance of fraud which constituted a ground to make a marriage annullable (valid until terminated) under the Civil Code. In the Family Code, such a “mistake in identity” is a ground to declare a marriage void from the beginning. The effectivity of the Family Code does not affect the annullable nature of those marriages contracted prior to the effectivity of the Family Code where “mistake in identity” is 112 PERSONS AND FAMILY RELATIONS LAW Art. 1 involved. In short, the annullable nature of such a marriage is not ipso jure converted into a marriage which is void ab initio upon the implementation of the Family Code. The new Family Code does not likewise expressly provide that marriages such as those contracted as a result of “mistake in identity” become automatically void upon the effectivity of the new Family Code just because the same amended the Civil Code by making “mistake of identity” a ground to declare a marriage void from the beginning and not anymore a legal basis for annulment. An express validation or invalidation provision is important because any ambiguity or doubt in the law should follow the general rule that marriages are governed by the law enforced at the time of their celebration and any interpretation of the law must always be made upholding the validity of a marriage. While Article 256 of the Family Code provides that the law shall have a retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code and other laws, this retroactivity clause is a general one and does not expressly and directly validate a previously void marriage under the Civil Code. Moreover, void marriages can never be ratified. Also, though a marriage is void, vested rights can be acquired from such a relationship like those which may refer to property relationships and, therefore, a clear and direct legislative mandate to validate a void marriage must expressly be enacted if the legislature really intends such a curative measure. There is one clear case where the Family Code allows the filing of a petition to declare a marriage void even if the ground was not statutorily provided as a basis for a void marriage under the Civil Code. Prior to its amendment, Article 39 of the Family Code clearly provides that in cases of marriages celebrated before the effectivity of the Family Code and falling under the said Code’s Article 36, which makes a marriage void because either or both of the contracting spouses are psychologically incapacitated to perform the essential marital obligation, an action or a defense to declare the marriage void shall prescribe in ten years after the effectivity of the Family Code. This means that a spouse who, prior to the effectivity of the Family Code on August 3, 1988, got married to an individual who is psychologically incapacitated under Article 36, may file a case to declare such marriage void under the said article of the New Family Code despite the fact that such ground did not exist as a legal basis for nullity of marriage at the time his or her marriage was celebrated when the Civil Code was in effect. Later, Republic Act Number 8533 amended Article 39 by deleting the prescriptive Arts. 2-4 MARRIAGE 113 Requisites of Marriage period of 10 years. Hence, if the ground for nullity is Article 36, there is no more prescriptive period whether or not the marriage has been celebrated before or after August 3, 1988. However, in the case of Balogbog v. Court of Appeals, G.R. No. 83598, March 7, 1997, 80 SCAD 229, where it was contended that a particular marriage should have been proven in accordance with Articles 53 and 54 of the Spanish Civil Code of 1889 because this was the law in force at the time of the alleged marriage, the Supreme Court ruled that Articles 53 and 54 of the Spanish Civil Code never took effect in the Philippines because they were suspended by the Spanish Governor General of the Philippines shortly after the extension of the Spanish Civil Code to this country. In such a case, the Supreme Court said that: since this case was brought in the lower court in 1968, the existence of the marriage must be determined in accordance with the present Civil Code, which repealed the provisions of the former Civil Code, except as they related to vested rights, and the rules of evidence. Article 2. No marriage shall be valid, unless these essential requisites are present: 1) Legal capacity of the contracting parties who must be a male and a female; and 2) Consent freely given in the presence of the solemnizing officer. (53a) Article 3. The formal requisites of marriage are: 1) Authority of the solemnizing officer; 2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and 3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a) Article 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(2). 114 PERSONS AND FAMILY RELATIONS LAW Arts. 2-6 A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n) Article 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. (54a) Article 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. (55a) LEGAL CAPACITY. Under the New Family Code, the marrying age is 18 years old and above. This is likewise the age of majority. If any of the parties is below 18 years of age, the marriage is void even if the consent of the parents has been previously obtained. Also, the contracting parties must not be related to each other in the manner provided for in Article 37, which refers to incestuous marriages, and Article 38 which refers to void marriages for reasons of public policy. Legal capacity to marry must likewise have reference to Article 39 of the Civil Code stating that capacity to act is, among others, limited by family relations. Hence, an already married person cannot marry again unless his or her previous marriage has been nullified or annulled or his or her case falls under the “valid bigamous marriage” provided for in Article 41 of the Family Code. Arts. 2-6 MARRIAGE 115 Requisites of Marriage CONTRACTING PARTIES MUST BE OF DIFFERENT SEX. Marriage is a union founded on the distinction of sex. The law likewise provides that the contracting parties must be a male and a female. This particular requirement appears to be for emphasis purposes only for even in its absence, the phrase “contracting parties” could not have included within its ambit persons of the same sex. This is evidenced by the fact that the New Family Code as well as the Civil Code are replete with words of heterosexual import such as “husband and wife,” “man and woman,” and “father and mother.” In fact, the very first article of the Family Code explicitly provides that marriage is a special contract of permanent union between a man and a woman. EFFECT OF SEX-CHANGE. Although gay marriages are definitely not covered within the purview of the Article 2 of the Family Code, the emerging issue of transsexuals and intersexuals’ gender identities have called the attention of the Supreme Court in the cases of Silverio v. Republic, G.R. No. 174689, October 22, 2007 and Republic v. Cagandahan, G.R. No. 166676, September 12, 2008, respectively. Thus, the question which needs to be addressed is when should the gender identity of a contracting party to a marriage be determined: at the time of his or her birth or at the time when he or she decides to enter into marriage? From a human rights perspective which espouses a non-discriminatory and more inclusive interpretation, it would seem that a man or a woman should be considered as such at the time of the marriage when the parties themselves assert their own gender identities. In Silverio v. Republic, G.R. No. 174689, October 19, 2007, 537 SCRA 373, where the petitioner who had a biological sex change from male to female through sex-reassignment-surgery and where he sought the amendment of his birth certificate to reflect the change in sex as a preliminary step to get married to his partner, the Supreme Court rejected the said petition and ruled that the sex determined by visually looking at the genitals of a baby at the time of birth is immutable and that there is no law legally recognizing sex reassignment. However in Republic v. Cagandahan, G.R. No. 166676, September 12, 2008, 565 SCRA 72 where the respondent was found out to have Congenital Adrenal Hyperplasia (CAH) which is a condition where the person afflicted has both male and female characteristics and organs and where, through expert evidence, it was shown that the respondent, though genetically a female, secreted 116 PERSONS AND FAMILY RELATIONS LAW Arts. 2-6 male hormones and not female hormones, had no breast, and did not have any monthly menstrual period and where the respondent, in his mind and emotion, felt like a male person and did not want to have surgery, the Supreme Court considered the person as an “intersex individual” and granted the preference of the person to be considered as a male person, thereby allowing the amendment of the birth certificate of the person from female to male. The Supreme Court said: Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals have been expected to conform to either a male or female gender role. Since the rise of modern medical science in Western societies, some intersex people with ambiguous external genitalia have had their genitalia surgically modified to resemble either male or female genitals. More commonly, an intersex individual is considered as suffering from a “disorder” which is almost always recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold the individual as neatly as possible into the category of either male or female. In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial. “It has been suggested that there is some middle ground between the sexes, a ‘no-man’s land’ for those individuals who are neither truly ‘male’ nor truly ‘female’’’. The current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification. In the instant case, if we determine respondent to be a female, then there is no basis for a change in the birth certificate entry for gender. But if we determine, based on medical testimony and scientific development showing the respondent to be other than female, then a change in the subject’s birth certificate entry is in order. Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor consistently and categorically male) composition. Respondent has female (XX) chromosomes. However, respondent’s body system naturally produces high levels of male hormones (androgen). As a result, respondent has ambiguous genitalia and the phenotypic features of a male. Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in Arts. 2-6 MARRIAGE 117 Requisites of Marriage his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed. Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong medication, to force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in respondent’s development to reveal more fully his male characteristics. In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH. The Court will not consider respondent as having erred in not choosing to undergo treatment in order to become or remain as a female. Neither will the Court force respondent to undergo treatment and to take medication in order to fit the mold of a female, as society commonly currently knows this gender of the human species. Respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. In the absence of evidence that respondent is an “incompetent” in the absence of evidence to show that classifying respondent as a male will harm other members of society who are equally entitled to protection under the law, the Court affirms as valid and justified the respondent’s position and his personal judgment of being a male. In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out. In other words, we respect respondent’s congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. 118 PERSONS AND FAMILY RELATIONS LAW Arts. 2-6 As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow. The trial court’s grant of respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondent’s change of name merely recognizes his preferred gender, we find merit in respondent’s change of name. Such a change will conform with the change of the entry in his birth certificate from female to male. It is also interesting to look at some jurisprudence in the United States. The following are excerpts from the case of M.T. v. J.T. (the full names according to New Jersey legal practice are kept undisclosed in cases of this nature), 140 N.J. Super. 77, 355 A.2d 204 (1976), decided by the superior court in New Jersey, U.S.A. squarely dealing with the effect of sex-change: We accept — and it is not disputed — as the fundamental premise in this case that a lawful marriage requires the performance of a ceremonial marriage of two persons of the opposite sex, a male and a female. Despite winds of change, this understanding of a valid marriage is almost universal. In the matrimonial field, the heterosexual union is usually regarded as the only one entitled to legal recognition and public sanction. There is not the slightest doubt that New Jersey follows the overwhelming authority. xxx xxx xxx The issue must then be confronted whether the marriage between a male and a post- operative transsexual, who has surgically changed her external sexual anatomy from male to female, is to be regarded as a lawful marriage between a man and a woman. In sum, it has been established that an individual suffering from the condition of transsexualism is one with a disparity between his or her genitalia or anatomical sex and his or her gender, that is, the individual’s strong and consistent emotional and psychological sense of sexual being. A transsexual in a proper case can be treated medically by certain supportive measures and, through surgery, to remove and replace existing genitalia with sex organs which will coincide with the person’s gender. If such sex reassignment surgery is successful and the post operative transsexual is, by virtue of medical treatment, thereby possessed of the full capacity to function sexually as a male or a female, as the case may be, we perceive no legal barrier, cognizable social taboo, or reason grounded in public Arts. 2-6 MARRIAGE 119 Requisites of Marriage policy to prevent the person’s identification at least for purposes of marriage to the sex finally indicated. In this case, the transsexual’s gender and genitalia are no longer discordant; they have been harmonized through medical treatment. Plaintiff has become physically and psycho- logically unified and fully capable of sexual activity consistent with her reconciled sexual attributes of gender and anatomy. Consequently, plaintiff should be considered a member of the female sex for marital purposes. It follows that such an individual would have the capacity to enter into a valid marriage relationship with a person of the opposite sex and did do so here. In so ruling, we do more than give legal effect to a fait accompli based upon medical judgment and action which are irreversible. Such recognition will promote the individual’s quest for inner peace and personal happiness, while in no way disserving any societal interest, principle of public order or precept of morality. Accordingly, the court below correctly determined that plaintiff at the time of her marriage was a female and that defendant, a man, became her lawful husband, obligated to support her as his wife. The judgment of the court is therefore affirmed (Family Law by Harry D. Krause, 2nd Edition, 1983, West Publishing Company, St. Paul, Minnesota, pages 468- 469). The decision cited seems to challenge the established concept that marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race. Indeed, the above case does not show that the male person surgically converted into a female would be capable of reproducing or siring human beings. In another American case decided by a court in New York, this basic premise was, however, greatly taken into consideration. Thus, even if the defendant were a male entrapped in the body of a female, the court noted that the record indicated that the entrapped male never successfully escaped to enable the defendant to perform male functions in a marriage, and that attempted sex reassignment by mastectomy, hysterectomy, and hormonal therapy had not achieved this result. The court concluded by stating that while defendant might function as a male in other situations and other relationships, the defendant could not function as a husband by assuming male duties and obligations inherent in the marital relationship, and that hormone treatments and surgery had not succeeded in supplying the necessary apparatus to enable the defendant to function as 120 PERSONS AND FAMILY RELATIONS LAW Arts. 2-6 a man for the purpose of procreation (Marriage Between Persons of the Same Sex by Peter G. Guthrie, J.D., citing B vs. B [1976], 78 Misc 2d 112, 355 NYS 2d 712). In another case decided by a New York court where the parties were of the same sex at the time of the marriage ceremony but there was a subsequent change of sex from male to female by one of the parties after the marriage ceremony, the said court stated that the so-called marriage ceremony between the parties was a nullity as both parties were males during the said ceremony. Also, the said court referred to the medical journals submitted by counsel stating that mere removal of the male organ would not of itself change a person into a true female. Significantly, the court likewise said that the case presented before it was different from a petition for the annulment of marriage or a petition to declare a marriage void because the situation in the said petitions presupposed that the contracting parties were of different sex. The alleged marriage ceremony between the two male persons did not create a contract of marriage. In short, what took place was not a marriage which created a contract, whether annullable or void. Particularly, the said court said: The court finds as a fact that the defendant was not a female at the time of the marriage ceremony. It may be that since that time the defendant’s sex has been changed to female by operative procedures, although it would appear from the medical articles and other information supplied by counsel, that mere removal of the male organs would not, in and of itself, change a person into a true female. What happened to the defendant after the marriage ceremony is irrelevant, since the parties never lived together. The law makes no provision for a “marriage” between persons of the same sex. Marriage is and always has been a contract between a man and a woman. “Marriage” may be defined as the status or relation of a man and a woman who have been legally united as husband and wife. It may be more particularly defined as the voluntary union for life of one man and one woman as husband and wife * * *. Accordingly, the court declares that the so-called marriage ceremony in which the plaintiff and the defendant took part in Belton, Texas on February 22, 1969 did not in fact or in law create a marriage contract and that the plaintiff and the defendant are not and have not ever been “husband and wife” or parties to a valid marriage (Anonymous v. Anonymous, Supreme Arts. 2-6 MARRIAGE 121 Requisites of Marriage Court, Special Term, Part V, 1971, 67 Misc. 2d 982, 325 NYS 2d 499). CONSENT. The requirements of consent are that it must be: (a) freely given and (b) the same must be made in the presence of the solemnizing officer. The child shall have the prerogative of choosing his or her future spouse. Parents should not force or unduly influence him or her to marry a person he or she has not freely chosen (Article 57, PD 603). The total absence of consent makes the marriage void ab initio. However, consent in marriage obtained through fraud, force, intimidation, or undue influence makes such marriage merely annullable or voidable (valid until annulled). The vitiated manner by which such consent is obtained merely renders defective such consent. Free consent connotes that the contracting parties willingly and deliberately entered into the marriage. It signifies that, at the time of the marriage ceremony, they were capable of intelligently understanding the nature and consequences of the act. The consent requisite to the marriage relation need not, however, be expressed in any special manner, or any particular form (Teter v. Teter, 101 Ind. 129) so long as there is a manifestation that the contracting parties take each other as husband and wife. The free consent must be given in the presence of the solemnizing officer “in order that it may have due publication, before a third person or persons, for the sake of notoriety and the certainty of its being made’’ (Dyer v. Brannock, 66 Mo. 391, 27 Ann Rep. 359). Together with the mandatory requirement under Article 6 of the Family Code that the contracting parties must be personally present during the solemnization of marriage, this requirement prohibits proxy-marriages in the Philippines. AUTHORITY OF THE SOLEMNIZING OFFICER. The solemnizing officer may be any one of those enumerated in Article 7 of the New Family Code. It must be observed that it is not the presence or absence of the solemnizing officer which constitutes the formal requirement but it is the absence or presence of the authority of such solemnizing officer. Article 7 also provides the limits of their authority and the elements or requirements for such authority to fully vest on the solemnizer. Under the new Local Government Code which took effect on January 1, 1992, the mayor of a city or municipality is empowered 122 PERSONS AND FAMILY RELATIONS LAW Arts. 2-6 to solemnize a marriage, any provision of law to the contrary notwithstanding (Chapter 3, Article 1, Section 444 [xviii] of the 1991 Local Government Code). The authority of the officer or clergyman shown to have per- formed a marriage ceremony will be presumed in the absence of any showing to the contrary (Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121). This is in accordance with the rule that where a marriage ceremony is shown, every presumption will be indulged that it was legally performed (Gaines v. New Orleans, 18 US 950). Moreover, the solemnizing officer is not duty bound to investigate whether or not a marriage license has been duly and regularly issued by the local civil registrar. All the solemnizing officer needs to know is that the license has been issued by the competent official, and it may be presumed from the issuance of the license that said official has fulfilled the duty to ascertain whether the contracting parties had fulfilled the requirements of law (People v. Janssen, 54 Phil. 176). However, under Article 29 in relation to Articles 27 and 28 of the Family Code providing the cases where the contracting parties are legally excused from obtaining a marriage license because one of them is in the point of death or there is no means of transportation to go to the local civil registrar as their places of residence are far, the solemnizing officer must undertake the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to marry. Similarly, under Article 34 of the Family Code, providing that persons living together as husband and wife for at least five years without the benefit of marriage may contract a valid marriage even in the absence of a marriage license, the solemnizing officer, in such situation, is duty bound to ascertain the qualifications of the contracting parties. Considering that the consent of the State is given through a solemnizing officer duly authorized by the law, his or her very position as a marriage solemnizer is affected by public interest that criminal penalties are even imposable against a person who solemnizes a marriage without authority. Thus, Section 38 of the Marriage Law of 1929 (Act No. 3613) which has not yet been repealed provides that: Any priest or minister solemnizing marriage without being authorized by the Director of the Philippine National Library (now Director of National Library who is concurrently the Civil Registrar General under the Civil Register Law, Act No. 3753), or who, upon solemnizing marriage, refuses to exhibit Arts. 2-6 MARRIAGE 123 Requisites of Marriage his authorization in force when called upon to do so by the parties or parents, grandparents, guardians, or persons having charge; and any bishop or officer, priest, or minister of any church, religion or sect the regulations and practices whereof require banns or publications previous to the solemnization of a marriage in accordance with Section 10 (now Article 12 of the Family Code), who authorizes the immediate authorization of the marriage that is subsequently declared illegal; or any officer, priest or minister solemnizing marriage in violation of the provisions of this Act (now the Family Code), shall be punished by imprisonment for not less than one month nor more than two years, or by a fine of not less than two hundred pesos nor more than two thousand pesos (See also Revised Penal Code, Article 352). Criminal liability likewise attaches to any person who, not being authorized to solemnize marriage, shall publicly advertise himself, by means of signs or placards placed on his residence or office or through the newspapers, as authorized to solemnize marriage. He or she shall be punished by imprisonment for not less than one month nor more than two years, or by a fine of not less than fifty pesos nor more than two thousand pesos, or both, in the discretion of the court (Section 43 of the Marriage Law of 1929, not repealed by the Family Code). The Marriage Law of 1929 likewise provides that any priest or minister of the gospel of any denomination, church, sect, or religion convicted of a violation of any of the provision of the said law or of any crime involving moral turpitude, shall, in addition to the penalties incurred in each case, be disqualified to solemnize marriage for a period of not less than six months nor more than six years at the discretion of the court. VALID MARRIAGE LICENSE. A valid marriage license must be issued by the local civil registrar of the place where the marriage application was filed. Once issued, it has only a lifetime of 120 days from the date of issue and is effective in any part of the Philippines. The date of issue is the date of the signing of the marriage license by the local civil registrar (Minutes of the 145th meeting of the Civil Code and Family Law Committee, June 28, 1986, page 15). A marriage license is not effective if it will be used as the marriage license to be able to solemnize a marriage abroad. It is deemed automatically canceled at the expiration of the 120-day period if the contracting parties have not made use of it. The other requirements for the issuance of a marriage license are merely directory in the sense that their non-observance is a mere irregularity which will 124 PERSONS AND FAMILY RELATIONS LAW Arts. 2-6 not render a marriage null and void or even annullable. Hence, if the marriage license is issued in a place wherein the contracting parties do not reside and a marriage is performed on the basis of such marriage license, such marriage is still valid (People v. Janssen, 54 Phil. 176). Likewise, the fact that a party to whom a license is issued is represented therein by a name other than his true name or had his name spelled wrongly will not invalidate a marriage solemnized on the authority of such license (Validity of Solemnized Marriage as Affected by Absence of License Required by Statute authored by F.M. English, 61 ALR 2d 841, citing Matturo v. Matturo, 111 NYS 2d 533). There are also authorities to the effect that a marriage license procured by one of the contracting parties by false representation as to her or his age, which was however above the marrying age, in order to avoid the statutory requirement of parental consent did not result in the invalidity of the marriage in the absence of a statutory declaration expressly nullifying a marriage contracted without the required parental consent and considering further that the requirement of parental consent was applicable only to the issuance of the marriage license, and simply directory to the clerk who issued the license (Teagae v. Allred, 173 P2d 117, 119 Mont. 193). Under the Family Code, while a marriage where one of the contracting parties is at least 18 years of age and below 21 years of age is not void from the beginning, it is nevertheless annullable which means that it is valid up to the time it is terminated (Article 45 of the Family Code). The commission of perjury or deception on the part of the contracting parties as to their age in order to avoid the statutory requirement of parental consent is not a cause to invalidate the marriage obtained through such marriage license (Payne v. Payne, 298 F. 970). In the same vein, the fact that one of the contracting parties did not disclose his or her prior marriage and divorce in the application as required by statute; or falsely stated that he or she had not been previously married (Lea v. Galbraith, 137 P2d 320); or misrepresented his or her residence (Boysen v. Boysen, 23 NE2d 231); or falsely swore that he or she was not under guardianship (Johnson v. Johnson, 214 Minn. 462); or forged her or his mother’s consent to the marriage (Ex Parte Hollopeter, 52 Wass 41, 100 P 159), will not justify a judicial declaration that marriages performed on the basis of marriage licenses procured through such acts are nullities. Arts. 2-6 MARRIAGE 125 Requisites of Marriage However, it has been ruled that: “a license to enter into a status or a relationship which the parties are incapable of achieving is a nullity. If the appellants had concealed from the clerk the fact that they are of the same sex and he had issued a license to them and a ceremony had been performed, the resulting relationship would not constitute a marriage (Jones v. Hallahan, 63 ALR 3d 1195).’’ MARRIAGE CEREMONY. “In our society, the importance of a wedding ceremony cannot be underestimated as it is the matrix of the family and, therefore, an occasion worth reliving in the succeeding years” (Go v. Court of Appeals, G.R. No. 114791, May 29, 1997, 82 SCAD 887). The Family Code only recognizes ceremonial marriages. This means marriages which are solemnized by persons duly authorized by the state. The purpose of enactments requiring the solemnization of marriage before an authorized person, together with those dealing with the prior procurement of a license, is doubtless to protect the parties to the marriage contract in the rights flowing therefrom, and likewise to protect their offspring. A solemn record of the contract is made to which recourse may be had when rights or obligations of the husband or wife arising from the marriage are in issue. So, too, are the interests of third parties in dealing with either of the contracting parties, subsequent to marriage, thus protected. x x x (Vetas v. Vetas, 170 P.2d 183). The Family Code does not generally prescribe any particular form of a marriage ceremony. However, the minimum requirement imposed by law is that the contracting parties appear personally before the solemnizing officer and declare that they take each other as husband and wife in the presence of at least two witnesses of legal age. An exchange of vows can be presumed to have been made from the testimonies of the witnesses who state that a wedding took place, since the very purpose for having a wedding is to exchange vows of marital commitment. It would indeed be unusual to have a wedding without an exchange of vows and quite unnatural for people not to notice its absence (Balogbog v. Court of Appeals, G.R. No. 83598, March 7, 1997, 80 SCAD 229). The declaration of consent need not be vocally expressed. It can be shown by other manifestations or signs of approval and consent. 126 PERSONS AND FAMILY RELATIONS LAW Arts. 2-6 Indeed, they may signify it by whatever ceremony their whim, their taste, or their religious belief may select. It is the agreement itself, and not the form in which it is couched, which constitutes the contract. The words used and the manner by which the ceremony was performed are mere evidence of a present intention and agreement to marry of the parties. Thus, the failure of the solemnizing officer to ask the parties whether they take each other as husband and wife cannot be regarded as a fatal omission, and is not a cause for annulment, it being sufficient that they declared in and signed the marriage contract that they were taking each other as husband and wife. A declaration by word of mouth of what the parties had already stated in writing would be a mere repetition, so that its omission should not be regarded as a fatal defect (Annotation on Annulment of Marriage by Judge Domingo Luciano, 22 SCRA 525, citing Karganilla v. Familiar, 1 O.G. 345, and Infante v. Arenas, CA-G.R. No. 5278-R, June 29, 1957). Also, it has been held that a marriage is valid where a man and a woman appeared before a justice of the peace and there signed a statement setting forth that they had agreed to marry each other and asked the justice of the peace to solemnize the marriage and thereafter another document was signed by them, by the justice, and by two witnesses, stating that the man and woman appeared before the justice and ratified all that was contained in the preceding instrument and insisted upon the marriage and, after the signing of these documents, the justice announced to the man and the woman that they were married (Martinez v. Tan, 12 Phil. 731). While the law provides that the declaration shall be contained in the marriage certificate, the marriage certificate itself is not an essential nor formal requirement of marriage. Failure to sign a marriage certificate or absence of the marriage certificate itself does not render the marriage void nor annullable (Madridejo v. De Leon, 55 Phil. 1; Loria v. Felix, 5 O.G. 8114). WITNESSES IN A MARRIAGE CEREMONY. Article 3(3) expressly provides that, as part of the marriage ceremony which is a formal requirement, there must be no less than two witnesses of legal age in attendance. From the provision itself, it appears that there can be no marriage ceremony to speak of if the two witnesses of legal age are absent. The requirement of the presence of the two witnesses of legal age has been given further emphasis in Article 6 which provides that, while there is no prescribed form as to the Arts. 2-6 MARRIAGE 127 Requisites of Marriage solemnization of a marriage, it shall be necessary, however, for the contracting parties to appear before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. Furthermore, tracing the legislative history of this requirement, under the Civil Code which was repealed by the Family Code, the presence of the two witnesses was not provided for under Article 53 thereof, which enumerated the requirements when a marriage can be solemnized. In the Family Code, the presence of the two witnesses of legal age is now included in Article 3 enumerating the formal requirements of a marriage, the absence of any of them, as a general rule, will make the marriage void. Also, such requirement as to the two witnesses of legal age under the Civil Code was contained only in Article 55 thereof which is the counterpart provision of Article 6 of the Family Code. Hence, the significant amendments in the Family Code making a double reference to the requirement of two witnesses of legal age in the marriage ceremony in two significant articles seem to indicate an intention to make the presence of two witnesses of legal age determinative of the presence of a marriage ceremony. It can, however, be justifiably argued that the absence of two witnesses of legal age in a marriage ceremony is merely an irregularity in the said formal requirement which, according to Article 4, shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally, and administratively liable. It can be validly explained that while there were no witnesses of legal age or there was only one witness of legal age or there were witnesses but not of legal age, there was still a marriage ceremony that was performed where the principal contracting parties and the solemnizing officer were present but only that it was deficient by the absence of the required witnesses of legal age. In short, a marriage ceremony, though inadequate, was not strictly absent so as to consider the marriage void under Article 4 of the Family Code. Besides, in marriage, it is the agreement itself of the principal contracting parties in the presence of the representative of the state, namely the solemnizing officer, which constitutes the contract. At the most, such inadequacy as to the witnesses, is merely an irregularity not enough to invalidate a marriage. This is the better view with respect to the interpretation and implementation of the Family Code. The law and public policy favor matrimony. Consequently, every intendment of the law leans toward legalizing matrimony, as it is the basis of human society throughout the civilized world (Perido v. Perido, 63 SCRA 97). 128 PERSONS AND FAMILY RELATIONS LAW Arts. 2-6 Significantly, the Supreme Court appears to lean in favor of the view that absence of witnesses is merely an irregularity which will not render a marriage void. In Balogbog v. Court of Appeals, G.R. No. 83598, March 7, 1997, 80 SCAD 229, where it was contended that the existence of a marriage cannot be presumed because there was no evidence that the parties, in the presence of two witnesses, declared that they take each other as husband and wife, the Supreme Court stated that an exchange of vows can already “be presumed to have been made from the testimonies of the witnesses who state that a wedding took place, since the very purpose for having a wedding is to exchange vows of marital commitment.” Significantly, the Supreme Court did not say that a presumption of the presence of witnesses to the marriage ceremony is created by the said testimonies of the court witnesses. In this case, the issue of the absence of the witnesses during the marriage ceremony was not even taken up by the Supreme Court. In other words, to prove the validity of the marriage, it was enough that there was proof that a wedding took place where an exchange of vows can be presumed though the presence of witnesses will not necessarily be presumed. The absence of witnesses, therefore, was not such a serious flaw and would therefore only constitute an irregularity. COMMON-LAW MARRIAGES NOT RECOGNIZED IN THE PHILIPPINES. A common-law marriage may be defined as a non- ceremonial or informal marriage by agreement, entered into by a man and a woman having capacity to marry, ordinarily without compliance with such statutory formalities as those pertaining to marriage licenses (Re Zemmick, 76 NE2d 902). Such agreement must be coupled by consummation, which includes at least cohabitation as husband and wife, and reputation in such a way that the public will recognize the marital status (Huard v. Mcteigh, 39 ALR 528; Drewy v. State, 208 Ga. 239). Common-law marriages recognized in England and the United States have never been and are still not recognized in the Philippines (Enriquez v. Enriquez, 8 Phil. 565). Indeed, Philippine law does not recognize common-law marriages. A man and woman not legally married cohabit for many years as husband and wife, who represent themselves to the public as husband and wife, and who are reputed to be husband and wife in the community where they live may be considered legally “married” in common-law jurisdictions but not in the Philippines (Eugenio, Sr. v. Velez, 185 SCRA 425). Arts. 2-6 MARRIAGE 129 Requisites of Marriage This is so because the Civil Code and the New Family Code expressly and mandatorily provide that the intervention in a valid marriage ceremony of an ecclesiastical or civil functionary authorized by the state to solemnize marriage constitutes one of the indispensable requisites for a valid marriage in the Philippines. Moreover, the contracting parties must appear before the said authorized solemnizer and personally declare in his presence that they take each other as husband and wife. Accordingly, only ceremonial marriage, where solemnization is an inherent aspect, is recognized in the Philippines. Thus, the use of the word “spouses” in the Civil Code as well as the Family Code refers only to husband and wife lawfully married according to Philippine laws and not to common-law marriages, unless the law otherwise provides (Enriquez, Sr. v. Velez, 185 SCRA 425). In the same vein, the phrase “husband and wife” refers to parties who are lawfully married unless the law provides otherwise, as in the cases of Articles 34 and 147 of the Family Code. ABSENCE, DEFECT, IRREGULARITIES IN ESSENTIAL AND FORMAL REQUIREMENTS. Generally, absence of any of the essential or formal requirements of a marriage renders such marriage null and void. Hence, a marriage license which has already automatically expired is not a valid marriage license, thereby making any marriage undertaken on the basis of such alleged license void. In such a case, there is absence of a valid marriage license. Marriage by way of a jest is likewise void because there is absolutely no genuine consent on the part of both contracting parties. In McClurg v. Terry, 21 N.J.Eq. 225, the Court of Chancery of New Jersey had occasion to rule on a marriage by jest as null and void. The case is as follows: THE CHANCELLOR. The complaint seeks to have the ceremony of marriage performed between herself and the defendant, in November, 1869, declared to be a nullity. The ground on which she asks this decree is that, although the ceremony was actually performed, and by a justice of the peace of the county, it was only in jest, and not intended to be a contract of marriage, and that it was so understood at the time by both parties, and the other persons present; and that both parties have never since so considered and treated it, and have never lived together, or acted towards each other as man and wife. The bill and answer both state these as the facts of the case, and that neither party intended it as a marriage, or was willing to take the other as husband and wife. These statements 130 PERSONS AND FAMILY RELATIONS LAW Arts. 2-6 are corroborated by the witnesses present. The complainant is an infant of nineteen years, who had returned late in the evening to Jersey City, from an excursion with the defendant and a number of young friends, among whom was a justice of the peace. All being in good spirits and excited by the excursion, she in jest challenged the defendant to be married to her on the spot. He in the same spirit accepted the challenge, and the justice, at their request, performed the ceremony with then making the proper responses. The ceremony was in the usual and proper form, the justice doubting whether it was in earnest or in jest. The defendant escorted the complainant to her home, and left her there as usual on occasions of such excursions; both acted and treated the matter as if no ceremony had taken place. After some time, the friends of the complainant having heard of the ceremony, and that it had been formally and properly performed before the proper magistrate, raised the question and entertained doubts whether it was not a legal marriage; and the justice mediated returning a certificate of the marriage to be recorded before the proper officer. The bill seeks to have the marriage declared a nullity, and to restrain the justice from certifying it for record. Mere words, without any intention corresponding to them, will not make a marriage or any other civil contract. But the words are the evidence of such intention, and if once exchanged, it must be clearly shown that both parties intended and understood that they were not to have effect. In this case, the evidence is clear that no marriage was intended by either party; that it was a mere jest got up in the exuberance of spirits to amuse the company and themselves. If this is so, there was no marriage. x x x Marriage by proxy solemnized here in the Philippines is likewise void because of the absence of the essential requisite that consent freely given must be made in the presence of the solemnizing officer and the absence of the formal requisite that the contracting parties must personally declare before the solemnizing officer that they take each other as husband and wife. Exceptions, however, are provided by law. Thus, absence of a marriage license does not affect the validity of a marriage if the situation falls under Chapter 2, Title I of the Family Code. These situations are marriages in articulo mortis, marriages of two contracting parties living in places where there are no means of transportation to enable them to appear personally before the local civil registrar, marriages among Muslims and among other ethnic cultural minorities performed in accordance with their practices, Arts. 2-6 MARRIAGE 131 Requisites of Marriage and marriages of couples without any impediment to get married living together as husband and wife for at least five years. Another exception is a marriage solemnized by a person without authority to solemnize a marriage provided that either one of the parties believed in good faith that such solemnizer had the proper authority (Article 35[2]). Defects in the essential requirements of marriage make the marriage merely annullable or voidable. Specifically, these defects are enumerated in Articles 45 and 46 of the New Family Code. Irregularities in the formal requisites do not affect the validity of the marriage. Except when the contracting parties eighteen years or over but below twenty-one did not obtain the consent of their parents as provided for in Article 14 of the Family Code, any irregularity in the formal requisites does not even render the marriage voidable or annullable. A judge who solemnizes a marriage without having been shown a valid marriage license and merely requires the submission of the marriage license after the marriage ceremony acts improperly (Cosca v. Palaypayon, 55 SCAD 759, 237 SCRA 249). If, in such case, the parties really have a valid marriage license and they just forgot to bring it, the marriage will still be valid. It is just an irregularity. However, if the parties really do not have a marriage license and the judge requires them to apply and procure a marriage license after the marriage ceremony, the marriage is void. A judge who did not sign and date the marriage contract, did not furnish the parties, and did not forward the marriage contract to the local civil registrar, may be held administratively liable (Cosca v. Palaypayon, 55 SCAD 759, 237 SCRA 249). The practice of a judge of requiring the parties to sign the marriage contract first before solemnization of the marriage is highly improper and irregular, if not illegal, because the contracting parties are supposed to be first asked by the solemnizing officer and declare that they take each other as husband and wife before the solemnizing officer in the presence of two witnesses before they are supposed to sign the marriage contract (Cosca v. Palaypayon, 55 SCAD 759, 237 SCRA 249). Such a marriage solemnized by the judge in such an irregular manner, however, does not invalidate the marriage because a marriage contract is not a formal requirement of a valid marriage. 132 PERSONS AND FAMILY RELATIONS LAW Arts. 2-6 The following are some of the irregularities which do not affect the validity of a marriage: 1) absence of two witnesses of legal age during the marriage ceremony (Meister v. Moore, 96 US 76, 24 US L. Ed. 826); 2) absence of a marriage certificate (People v. Janssen, 54 Phil. 176); 3) marriage solemnized in a place other than publicly in the chambers of the judge or in open court, in church, chapel, or temple, or in the office of the consul-general, consul, or vice-consul; 4) issuance of marriage license in city or municipality not the residence of either of the contracting parties (Alcantara v. Alcantara, G.R. No. 167746, August 28, 2007, 531 SCRA 446); 5) unsworn application for a marriage license; 6) failure of the contracting parties to present original birth certificate or baptismal certificate to the local civil registrar who likewise failed to ask for the same; 7) failure of the contracting parties between the ages of eighteen and twenty-one to exhibit consent of parents or persons having legal charge of them to the local civil registrar; 8) failure of the contracting parties between the ages of twenty-one to twenty-five to exhibit advice of parents to local civil registrar; 9) failure to undergo marriage counseling; 10) failure of the local civil registrar to post the required notices; 11) issuance of marriage license despite absence of publication or prior to the completion of the 10-day period for publication (Alcantara v. Alcantara, G.R. No. 167746, August 28, 2007, 531 SCRA 446); 12) failure of the contracting parties to pay the prescribed fees for the marriage license; 13) failure of the person solemnizing the marriage to send copies of the marriage certificate to the local civil registrar (Madridejos v. De Leon, 55 Phil. 1); and 14) failure of the local civil registrar to enter the applications for marriage licenses filed with him in the registry book in the order in which they were received. BREACH OF PROMISE TO MARRY. Mere breach of a promise to marry is not an actionable wrong (Hermosisima v. CA, L-14628, September 30, 1960; Estopa v. Biansay, L-14733, September 30, 1960). Hence, the aggrieved party in this case cannot file a case to compel the person who has breached such promise to enter into the marriage contract. In Ramirez-Cuaderno v. Cuaderno, 12 SCRA 505, the Supreme Court said: We recognize the exhortation that in the interest of society, and perhaps of the parties, the courts should move with caution in providing separate maintenance for the wife, a situation which would be an acknowledgment of the de facto separation of the spouses. However, it would be taking an unrealistic view for us to compel or urge them to live together when, at least for the present, they, specially the husband, are speaking of the impossibility of the cohabitation. For while marriage Art. 7 MARRIAGE 133 Requisites of Marriage entitles both parties to cohabitation or consortium, the sanction therefor is the spontaneous, mutual affection between husband and wife and not any legal mandate or court order. This is due to the inherent characteristic and nature of marriage in this jurisdiction. However, in Wassmer v. Velez, 12 SCRA 648, it was held that: It must not be overlooked, however, that to the extent to which acts not contrary to law may be perpetrated with impunity is not limitless, for Article 21 of the said Code (Civil Code) provides that “any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages.” The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage which was subsequently issued xxx. Their wedding was set for September 4, 1954. Invitations were printed and distributed to relatives, friends and acquaintances xxx. The bride-to-be’s trousseau, party dresses and other apparel for the important occasion were purchased xxx. Dresses for the maid of honor and the flower girls were prepared. A matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received xxx. And then, but with two days before the wedding, defendant, who was then 28 years old, simply left a note for the plaintiff stating: “will have to postpone wedding My mother opposes it xxx.’’ He enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired plaintiff “Nothing changed rest assured returning soon.” But he never returned and was never heard from again. Surely, this is not a case of mere breach of a promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the above-described preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which the defendant must be made answerable for damages in accordance with Article 21 aforesaid. In the Wassmer case, actual damages were also awarded to the plaintiff for the expenses incurred relative to the preparation for the wedding. Article 7. Marriage may be solemnized by: 1) Any incumbent member of the judiciary within the court’s jurisdiction; 134 PERSONS AND FAMILY RELATIONS LAW Art. 7 2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer’s church or religious sect; 3) Any ship captain or airplane chief only in cases mentioned in Article 31; 4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; or 5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a) AUTHORIZED SOLEMNIZERS OF MARRIAGE. Marriage contracts have always been considered as involving questions of public policy and the interests of other than those of the contracting parties, and should therefore be construed in accordance with such policy (Cunningham v. Cunningham, 43 LRA [N.SS] 355). In this regard, there is a need to limit the persons who could solemnize marriage. Moreover, the state being an interested party, its consent is essential to every marriage (Eaton v. Eaton, 66 Neb. 676, 60 LRA 605). This state consent is manifested or granted vicariously by the people granted by the state the privileged authority to solemnize marriage, such that any annulment case which, in effect, seeks to invalidate such state consent must pass through the courts and cannot be made merely by agreement of parties. The institution of marriage is so directly concerned with the public welfare that the state is a third party thereto (Trammell v. Vaugham, 158 Mo. 214). Inasmuch as the State officiates in the celebration of marriage through the person solemnizing the same, it is logical that such person must have the authority from the Government at that time. Such authority is the foundation of marriage (Civil Code by Dean Francisco Capistrano, Volume I, page 80). The authority given to specified people to solemnize marriages is provided for in Article 7. It is very important to note that Article 7 defines the limits and scope of the authority granted to the solemnizers. Hence, if they fail to comply with any of the requisites mandated by law for them to Art. 7 MARRIAGE 135 Requisites of Marriage validly solemnize a marriage, such a marriage is generally void on the ground of absence of a formal requirement which is authority of the solemnizing officer. JUDGES. Judges can solemnize marriage only within their courts’ jurisdiction. Moreover, they must be incumbent and not retired judges. Needless to state, the jurisdiction of the Court of Tax Appeals, Sandiganbayan, the Court of Appeals and the Supreme Court is national in scope. Judges who are appointed to specific jurisdictions may officiate in weddings only within said areas and not beyond (Navarro v. Domagtoy, A.M. No. MTJ 96-1088, July 19, 1996, 72 SCAD 328). If a marriage is solemnized by a judge of the Regional Trial Court, Metropolitan Trial Court, or Municipal Court beyond his jurisdiction, there is absence of a formal requisite in such a marriage, namely, the authority of the solemnizing officer. Hence, the marriage is void unless either of the parties believed in good faith that such solemnizing officer has authority to conduct such marriage. It is very interesting to note that in Navarro v. Domagtoy, A.M. No. MTJ 06-1088, July 19, 1996, 72 SCAD 328, involving an administrative case filed against a judge who committed several irregularities in solemnizing a marriage, the Supreme Court said that “where judge solemnizes a marriage outside his court’s jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which, while it may not affect the validity of the marriage, may subject the officiating official to administrative liability.” This statement is erroneous because the law clearly provides that a judge has authority only if he or she solemnizes within his or her jurisdiction. Non-observance of this rule is not a mere irregularity because it generally makes the marriage null and void. It is submitted, however, that since the principal issue in the Domagtoy case involves the liability of a judge and not the validity of a marriage, the said statement of the Supreme Court is merely an obiter dictum and, therefore, does not create a precedent. After solemnizing a marriage, it is highly irregular for a judge to collect fees for the ceremony. It is reprehensible. By such act, a judge cheapens his or her noble office as well as the entire judiciary in the eyes of the public (Dysico v. Dacumos, 74 SCAD 625, 262 SCRA 274). PRIEST, RABBI, IMAM, OR MINISTER OF ANY CHURCH OR RELIGIOUS SECT. A priest, according to lexicographers, means one especially consecrated to the service of a divinity and considered 136 PERSONS AND FAMILY RELATIONS LAW Art. 7 as the medium through whom worship, prayer, sacrifice, or other service is to be offered to the one being worshipped, and pardon, blessing, and deliverance, obtained by the worshiper, as a priest of Baal or of Jehovah, or a Buddhist priest (Adong v. Cheong Seng Gee, 43 Phil. 43). For a priest, rabbi, imam, or minister of any church or religious sect to be able to validly solemnize a marriage, the following four essential requisites must concur: he or she 1) must be duly authorized by his or her church or religious sect; 2) must act within the limits of the written authority granted to him or her by the church or religious sect; 3) must be registered with the civil registrar general; and 4) at least one of the contracting parties whose marriage he or she is to solemnize belongs to his or her church or religious sect. The written authority granted to a priest by his sect may impose a limitation as to the place where he could solemnize a marriage. For instance, a priest who is commissioned and allowed by his local ordinary to marry the faithful, is authorized to do so only within the area of the diocese or the place allowed by his Bishop (Navarro v. Domagtoy, A.M. No. MTJ 06-1088, July 19, 1996, 72 SCAD 328). SHIP CAPTAIN AND AIRPLANE CHIEF. For a ship captain or airplane chief to be able to validly solemnize a marriage, the following requisites must concur: 1) the marriage must be in articulo mortis (at least one of the parties is at the point of death); 2) the marriage must be between passengers or crew members; and 3) generally, the ship must be at sea or the plane must be in flight. Hence, an assistant pilot has no authority to solemnize a marriage. If the airplane chief dies during the trip, the assistant pilot who assumes command of the airplane cannot solemnize a marriage as there is no law allowing such assumption of authority for the purpose of solemnizing a marriage. Such marriages can be solemnized during stopovers at ports of call. During one of the joint civil code and family law committee meetings, Justice Puno remarked that when they say “stopover” and “ports of call,” it means that the voyage is not yet terminated, which Justice Caguioa affirmed. He added that it means therefore that they are including instances when there are transit passengers which the others affirmed (Minutes of the 147th joint Civil Code and Family Law committees held on July 19, 1986, page 10). Art. 7 MARRIAGE 137 Requisites of Marriage MILITARY COMMANDER. For a military commander to be able to solemnize a marriage, the following requisites must concur: 1) he or she must be a military commander of a unit; 2) he or she must be a commissioned officer; 3) a chaplain must be assigned to such unit; 4) the said chaplain must be absent at the time of the marriage; 5) the marriage must be one in articulo mortis; 6) the contracting parties, whether members of the armed forces or civilians, must be within the zone of military operation. If the chaplain is present, he must be the one who should solemnize the marriage. The chaplain’s authority to solemnize proceeds from Article 7(2). Hence, if the chaplain cannot comply with Article 7(2), then it is as if he is absent as he cannot solemnize a marriage, in which case, the military commander can solemnize the marriage. The military commander must be a commissioned officer which means that his rank should start from a second lieutenant, ensign and above (Webster Dictionary, 1991 edition). During the committee meetings of the drafters of the Family Code, Justice Caguioa insisted that the phrase “who should be a commissioned officer” qualifying a military commander be empha- sized in the law to show the mandatory character of the said qualification (Minutes of the 148th joint Civil Code and Family Law committees held on July 26, 1986, page 2). The word “unit,” according to the deliberations of the Civil Code Revision Committee, refers to a battalion under the present table of organization and not to a mere company (Minutes of the Civil Code Revision Committee held on May 23, 1983, page 4). A military commander may solemnize a marriage even if the contracting parties do not belong to his or her unit (Minutes of the 147th joint Civil Code and Family Law committees held on July 19, 1986, page 10). The phrase “within the zone of military operation” implies a widespread military activity over an area and does not refer to a simulated exercise because it requires absence of civilian authorities (Minutes of the 147th Joint Meeting of the Civil Code and Family Law committees held on July 19, 1986, page 13). Also, the committee agreed that this item shall include situations like maneuvers, police actions, declared and undeclared wars, civil war, rebellion and the like and that jurisprudence can define the application of this phrase more clearly (Minutes of the meeting of the Civil Code Revision Committee held on May 23, 1983, page 5). 138 PERSONS AND FAMILY RELATIONS LAW Art. 7 CONSUL-GENERAL, CONSUL, OR VICE CONSUL. Heads of consular posts are divided into four classes, namely: 1) consul- general; 2) consul; 3) vice-consul; 4) consul agents (Article 9, Vienna Convention of 1963). Only the first three are expressly authorized by the Family Code to solemnize marriage. They can solemnize marriage abroad only when the contracting parties are both Filipino citizens. They act not only as the solemnizer of a marriage but also perform the duties of the local civil registrar, such as the issuance of a marriage license. When the marriage, which in itself is a special type of contract, is to be solemnized by the consul-general, consul, or vice-consul abroad or, specifically in his place of assignment, the solemnities established by Philippine laws shall be observed in their execution (Article 17 of the Civil Code). Thus, the contracting parties shall personally appear before the consul-general, consul, or vice-consul in the latter’s office abroad and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. If the contracting parties desire to have their marriage solemnize in a place other than the office of the consul-general, consul, or vice- consul, they shall request the said official in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. A marriage between a Filipino and a foreigner abroad solem- nized by a Philippine consul appears to be void. This is so because the very authority of the consul-general, consul, or vice-consul to solemnize marriage is limited to Filipino citizens. This is gleaned from the provision in Art. 7 which provides that, among others, “marriage may be solemnized by . . . any consul-general, consul, or vice-consul in the case provided in Article 10.” The latter article, in turn, provides that marriages between Filipino citizens abroad may be solemnized by a consul-general, consul, or vice-consul of the Republic of the Philippines. The law therefore specifically limits their authority to solemnize marriages only in one particular case, namely, the marriage between Filipino citizens. Clearly, they do not have any authority or there is absence on their part of any author- ity to solemnize marriage between a foreigner and a Filipino. Such marriage, therefore, is wanting of one of the formal requirements of a valid marriage provided in Article 3(1), which is the authority of the solemnizing officer. Hence, in accordance with Article 4, such ab- sence makes the marriage void ab initio. However, by way of excep- Art. 8 MARRIAGE 139 Requisites of Marriage tion, if the marriage between the foreigner and the Filipino citizen abroad solemnized by a Philippine consul assigned in that country is recognized as valid in the host country, then such marriage shall be considered valid in the Philippines. This exception is pursuant to Article 26 of the Family Code. Also, Article 10 clearly refers to marriages “abroad.” Hence, a consul-general, consul, and vice-consul have no authority to solemnize a marriage within the territory of the Philippines. MAYOR. Pursuant to the Local Government Code which took effect on January 1, 1992, the mayor of a city or municipality is now empowered to solemnize a marriage, any provision of law to the contrary notwithstanding (Chapter 3, Article 1, Section 444[xviii] of the Local Government Code). When the mayor is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vice mayor or the highest ranking sangguniang bayan member shall automatically exercise the powers and perform the duties of the local chief executive concerned, except the power to appoint, suspend, dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty days (Section 46 in relation to Section 445[4] of the 1991 Local Government Code). Relevantly, it has been held that the vice mayor of a municipality acting as Acting Mayor has the authority to solemnize marriages, because if the vice mayor assumes the powers and duties of the office of the mayor, when proper, it is immaterial whether he is the Acting Mayor or merely acting as mayor, for in both cases, he discharges all the duties and wields the powers appurtenant to said office (People v. Bustamante, 105 Phil. 64, citing Laxamana v. Baltazar, 92 Phil. 32). GOOD FAITH OF PARTIES. Under Article 35(2), if the marriage was solemnized by a person not legally authorized to solemnize a marriage and either of the contracting parties believed in good faith that such solemnizing officer had such authority, then the marriage shall be considered as valid. This will be discussed in more detail under Article 35(2). Article 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in the 140 PERSONS AND FAMILY RELATIONS LAW Arts. 9-10 cases of marriages contracted at the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. (57a) VENUE. Article 8 is directory in nature. Its non-observance will not invalidate a marriage but can subject the person or persons who cause the violation to civil, criminal, or administrative liability. Exceptions to the rule on venue are provided by law, namely: marriages contracted in articulo mortis or in a remote place in accordance with Article 29 of the Family Code, and marriages where both of the parties request a solemnizing officer in writing (Navarro v. Domagtoy, July 19, 1996, A.M. No. MTJ 96-1088, 72 SCAD 328) in which case the marriage may be solemnized at a house or place designated by the parties at a house or place designated by them in a sworn statement to that effect. Article 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. (58a) PLACE OF ISSUE. The contracting parties should get a mar- riage license from the local civil registrar of the city or municipal- ity where either of them resides. If the contracting parties obtain a marriage license in a place other than the place where either of them reside, it is merely an irregularity which will not render null and void the marriage celebrated on the basis of such license (People v. Janssen, 54 Phil. 176). Article 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a) Art. 11 MARRIAGE 141 Requisites of Marriage CONSULAR OFFICIALS. The duties of the local civil registrar and the solemnizing officer are performed by the consul-general, consul, or vice consul of the Republic of the Philippines abroad. Hence, he or she issues the marriage license and likewise solemnizes the marriage of the contracting parties, which must be both Filipinos. The marriage ceremony shall be in accordance with the laws of the Philippines because Article 17 of the Civil Code pertinently provides that when contracts, among others, are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Article 11. Where a marriage license is re- quired, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: 1) Full name of the contracting parties; 2) Place of birth; 3) Age and date of birth; 4) Civil status; 5) If previously married, how, when and where the previous marriage was dissolved or annulled; 6) Present residence and citizenship; 7) Degree of relationship of the contracting parties; 8) Full name, residence and citizenship of the father; 9) Full name, residence and citizenship of the mother; and 10) Full name, residence and citizenship of the guardian or person having charge, in case the contracting parties has neither father nor mother and is under the age of twenty-one years. The applicants, their parents or guardians shall not be required to exhibit their residence certificate in any formality in connection with the securing of the marriage license. (59a) 142 PERSONS AND FAMILY RELATIONS LAW Art. 12 PURPOSE OF DOCUMENTARY REQUIREMENTS. It is the concern of the state to make marriages the secure and stable institution they should be (Kilburn v. Kilburn, 89 Cal. 46). In this regard, proper documents must be maintained to serve as proofs for their existence. Mainly, the task of seeing to it that these documentary proofs are accomplished is addressed to the local civil registrar to secure publicity (State v. Walker, 36 Kan. 297, 59 Am. Rep. 556), and to require a record to be made of marriages contracted (State v. Walker, 36 Kan. 297, 59 Am. Rep. 556). It is also the purpose of these statutes to discourage deception and seduction, prevent illicit intercourse under the guise of matrimony, and relieve from doubt the status of parties who live together as man and wife (State v. Walker, 36 Kan. 297, 59 Am. Rep. 556), by providing competent evidence of the marriage (Reeves v. Reeves, 15 Okla. 240). The record required to be made also furnishes evidence of the status and legitimacy of the offspring of the marriage (State v. Walker, 36 Kan 297, 59 Am. Rep. 556). MARRIAGE APPLICATION. A marriage application can be obtained by anybody. Once it is signed and sworn to by the parties and thereafter filed, the local civil registrar has no choice but to accept the application and process the same up to the time of the issuance of the marriage license. If the local civil registrar has knowledge of some legal impediment, he or she cannot discontinue processing the application. He must only note down the legal impediments in the application and thereafter issue the marriage license unless otherwise stopped by the court (Article 18). Article 12. The local civil registrar, upon re- ceiving such application, shall require the presen- tation of the original birth certificates or, in default thereof, the baptismal certificates of the contract- ing parties or copies of such document duly attest- ed by the persons having custody of the original. These certificates or certified copies of the docu- ments required by this article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person is- suing the certificate shall be sufficient proof of its authenticity. If either of the contracting parties is unable to produce his birth or baptismal certificate or a cer- tified copy of either because of the destruction or Arts. 13-14 MARRIAGE 143 Requisites of Marriage loss of the original, or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public offi- cial authorized to administer oaths. Such instru- ment shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting par- ty and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as wit- nesses, or, in their default, persons of good reputa- tion in the province or the locality. The presentation of the birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. (60a) Article 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual status and the name and date of death of the deceased spouse. (61a) Article 14. In case either or both of the con- tracting parties, not having been emancipated by 144 PERSONS AND FAMILY RELATIONS LAW Arts. 12-14 a previous marriage, are between the ages of eigh- teen and twenty-one, they shall, in addition to the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their mar- riage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said application. (61a) NO EMANCIPATION BY MARRIAGE. There is no more emancipation by marriage under the Family Code. Emancipation is attained if the child reaches the age of 18 years (Article 234, as amended by Republic Act No. 6809). PARENTAL CONSENT. The law requires also that if any of the contracting parties, not being emancipated by a previous marriage, is at least 18 years old but above and below 21 years of age, the consent of the father, mother, surviving parent, or guardian, or persons having legal charge of them, in the order mentioned, must be obtained before a marriage license can be issued to the contracting parties. However, considering that Article 236 of the Family Code, as amended by Republic Act No. 6809, provides that emancipation takes place when a person reaches the age of majority which is 18 years, a person under the present law who wishes to get married must necessarily be 18 years of age and emancipated. This is so because the marrying age and the age of majority are both 18 years. The reference, therefore, in Article 14 of the Family Code to contracting parties “not having been emancipated by a previous marriage” has been accordingly repealed and is now of no legal consequence. Nevertheless, the contracting parties between 18 years old and above but below 21 years of age must still obtain the consent of the parents as this is required under the second paragraph of Article 236 of the Family Code. Non-compliance with this requirement, however, does not make the marriage invalid or void but merely annullable which means that the marriage is valid Arts. 12-14 MARRIAGE 145 Requisites of Marriage until annulled. It is well-settled that the effect of statutes forbidding the issuance of marriage licenses without such consent is not to render such marriages void when solemnized without the required consent, the statute being regarded as directory only, in the absence of any provision declaring such marriages absolutely void (18 RCL 442, citing Browning vs. Browning, 89 Kan. 98). Parental consent required of parties between the ages of 18 and above but below 21 does not add anything to the legal capacity of the said contracting parties as the law itself declares that people 18 years and above can legally and validly contract marriage. The required parental consent provision simply means that the said contracting parties “may not be licensed to marry upon their own consent alone, but that the consent of their parents must be added thereto; lack of such consent, however, does not affect the validity of a marriage, but only subjects those who have neglected to acquire it to the penalties of the law’’ (Cushman v. Cushman, 80 Was. 615). Preference is given to the father to give consent. If he cannot give consent, the mother, surviving parent or guardian or persons having legal charge of them in the order mentioned shall give the consent. It must be remembered, however, that if any of the contracting parties is below 18 years of age, the marriage is void regardless of the existence or non-existence of the consent of the parents. The age of consent of the contracting parties is the age at which persons are considered in law to be capable of entering into the marriage relation. It is to be distinguished from the age below 18 in which the consent of the parents or guardian may be required by marriage. In this respect, parental consent may be considered as one of the statutory requirements for marriage, not owing to the capacity of the parties, but only to the formalities of a lawful marriage under the statute (52 Am. Jur. 2d footnote 18, citing Needam v. Needam, 183 Va. 681, 33 SE 2d 268; Cushman v. Cushman, 80 Was. 615, 142 P 26). It must be noted, however, that in the Family Code, parental consent is needed in relation to the procurement of a formal requisite, namely, a valid marriage license (Article 14) and, therefore, the absence of such parental consent should only be considered as an irregularity in a formal requirement which, pursuant to Article 4 of the Family Code, should not affect the validity of a marriage. However, under Article 45(1) of the Family Code, absence of the required parental consent makes the marriage annullable which means that it is valid up to the time it is judicially terminated. In this sense, the legal effect of the non-procurement of parental consent, though dealing with a formal requisite of a valid 146 PERSONS AND FAMILY RELATIONS LAW Arts. 15-16 marriage license, is the same as in the case where there is a defect in an essential requirement. In both instances, the marriage shall be voidable or annullable under Article 45 of the Family Code. Article 15. Any contracting party between the ages of twenty-one and twenty-five shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. (62a) Article 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counselor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counselling. Failure to attach said certificate of marriage counselling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage. Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counselling referred to in the preceding paragraph. (n) PARENTAL ADVICE. Absence of parental advice does not affect the marriage. It does not even make the marriage annullable, Art. 17 MARRIAGE 147 Requisites of Marriage as non-advise is not a ground for annulment provided for in Article 45 of the Family Code. While it is not an essential nor a formal requirement under Articles 2 and 3, prescribing parental advice for those 21-25 years of age is in keeping with Philippine tradition and it does not bar marriage totally. It is just a vehicle to induce further and more mature deliberation over the decision to get married (Minutes of the 185th Meeting of the Civil Code and Family Law committees, June 27, 1987, page 6). Article 17. The local civil registrar shall pre- pare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. (63a) DUTY OF THE LOCAL CIVIL REGISTRAR. After the mar- riage application has been properly filled up and submitted to the local civil registrar, the latter shall post a notice to inform everybody of the impending marriage. This notice shall be posted for ten con- secutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and ac- cessible to the general public. The notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. However, if the contracting parties between the ages of twenty-one and twenty-five do not obtain the advice of the parents or if such advice is unfavorable, the local civil registrar shall not issue the marriage license till after three months following the completion of the publication of the application therefor. If, however, the marriage license is issued within the said three months and the contracting parties were able to get married on the basis of 148 PERSONS AND FAMILY RELATIONS LAW Arts. 18-19 such marriage license, the said marriage is completely valid. It is not even annullable. Also, in case where parental consent (contracting parties between the ages of eighteen and above but below twenty-one) or parental advice is needed, the failure of the parties to attach to the marriage application a certification that they have undergone marriage counseling provided for in Article 16 of the Family Code shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage. Article 18. 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 the application for a marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interested party. No filing fee shall be charged for the petition nor a corresponding bond required for the issuance of the order. (64a) Article 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or a tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no visible means of income or whose income is insufficient for their subsistence, a fact established by their affidavit, or by their oath before the local civil registrar. (65a) INVESTIGATIVE POWER OF LOCAL CIVIL REGISTRAR AND COURT INTERVENTION. It is very important to note, however, that in case of any impediment known to the local civil registrar or brought to his attention, he shall merely note down the particulars thereof and his findings thereon in the application for a marriage license. He is nonetheless duty bound to issue said Arts. 18-19 MARRIAGE 149 Requisites of Marriage license after payment of the necessary fees unless exempted due to indigence, after the completion of the period of publication, or after a period of three months from the completion of such publication in cases where parental advice is necessary and the same was not obtained as well as in cases where undergoing marriage counseling is required and a certificate to that effect was not attached to the marriage application. During one of the joint meetings of the Civil Code and Family Law committees which drafted the Family Code, Justice Caguioa explained that the law does not restrain the local civil registrar from investigating any impediment on the part of the contracting parties, but the local civil registrar is only generally prohibited from withholding the marriage license despite the legal impediment (See Minutes of the 145th joint meeting of the Civil Code and Family Law committees held on June 28, 1986, page 10) because the purpose of Article 18, as agreed upon by the committee members, is “to eliminate any opportunity for extortion” (See Minutes of the 145th joint meeting of the Civil Code and Family Law committees held on June 28, 1986, page 10) and considering the observations obtained from the National Census and Statistics Office by the Civil Code and Family Laws committees that giving much leeway to the local civil registrar “could be a source of graft” (See Minutes of the 144th joint meeting of the Civil Code and Family Law committees held on June 21, 1986, page 13). Only court intervention directing the non-issuance of the marriage license can empower the local civil registrar to validly refuse to issue said license. The court action may be brought by the local civil registrar himself or by any interested party. Included in the phrase “interested party” are the contracting parties’ parents, brothers, sisters, existing spouse, if any, or those which may be prejudiced by the marriage. No filing fee shall be charged for the petition nor a corresponding bond required for the issuance of the order. If, despite an injunction order from the court, the local civil registrar nevertheless issues a marriage license and a marriage is solemnized on the basis of such marriage license, the marriage will still be valid because the validity of the marriage license is not affected by the violation of the injunction. The issuance of the license despite the restraining order can be considered only as an irregularity in the formal requisite of a valid marriage license which shall not affect the validity of the marriage but the party or parties 150 PERSONS AND FAMILY RELATIONS LAW Arts. 20-21 responsible for the irregularity shall be civilly, criminally and administratively liable. CRIMINAL LIABILITY OF LOCAL CIVIL REGISTRAR. Inte- estingly, two of the few provisions of the Marriage Law of 1929 which have not yet been repealed provide the following: SEC. 37. Influencing parties in religious respects. — Any municipal secretary or clerk of the Municipal Court (now the local civil registrar) of Manila who directly or indirectly attempts to influence any contracting party to marry or refrain from marrying in any church, sect, or religion or before any civil authority, shall be guilty of a misdemeanor and shall, upon conviction thereof, be punished by imprisonment for not more than one month and a fine of not more than two hundred pesos. SEC. 38. Illegal issuance or refusal of license. — Any municipal secretary (now local civil registrar) who issues a marriage license unlawfully or who maliciously refuses to issue a license to a person entitled thereto or fails to issue the same within twenty-four hours after the time when, according to law, it was proper to issue the same, shall be punished by imprisonment for not less than one month nor more than two years, or by a fine of not less than two hundred pesos nor more than two thousand pesos. Article 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters at the face of every license issued. (65a) MARRIAGE LICENSE AND DATE OF ISSUE. The marriage license is valid only within the Philippines and not abroad. It is good for 120 days from the date of issue. The date of the signing of the local civil registrar of the marriage license is the date of the issue. From the date of issue, it should be claimed by the parties. If it is not claimed and therefore not used within 120 days, it shall automatically become ineffective (Minutes of the 145th meeting of the Civil Code and Family Law committees, June 28, 1986, page 15). Article 21. When either or both of the contract- ing parties are citizens of a foreign country, it shall Art. 21 MARRIAGE 151 Requisites of Marriage be necessary for them before a marriage license can be obtained, to submit a certificate of legal ca- pacity to contract marriage, issued by their respec- tive diplomatic or consular officials. Stateless persons or refugees from other coun- tries shall, in lieu of the certificate of legal capac- ity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. (66a) CERTIFICATE OR AFFIDAVIT OF LEGAL CAPACITY. Citi- zens of any foreign country may contract marriage in the Philippines. If both contracting parties are foreigners and they intend to have their marriage solemnized by a judge, priest, imam, rabbi, or any minister of any church or religious sect as provided for in Article 7 of the Family Code, or the mayor pursuant to the Local Government Code, then they have to secure a marriage license in the Philippines. Before such license is issued, they have to submit a certificate of legal capacity. A certificate of legal capacity is necessary because the Philippines, in so far as marriage is concerned, adheres to the national law of the contracting parties with respect to their legal capacity to contract marriage. Hence, if a sixteen-year-old United States citizen is legally capacitated to marry in the United States and wants to marry a Filipino here or another foreigner for that matter, he can do so by obtaining a certificate of legal capacity stating that in the United States, persons sixteen years of age can be validly married. He can thereafter show this to the proper local civil registrar where he is residing in the Philippines and a marriage license will subsequently be issued. Without this certification of legal capacity, the local civil registrar will not issue the marriage license. The law clearly provides that, as to the foreigner, this is a necessary requisite before a marriage license can be obtained by him or her. This is an exception to the rule that the local civil registrar, even if he finds an impediment in the impending marriage, must nevertheless issue the marriage license unless, at his own instance or that of an interested party, he is judicially restrained from issuing the marriage license. If without the certificate of legal capacity the marriage license was nevertheless issued, the marriage celebrated on the basis of such marriage license will still be considered valid as this is merely an irregularity in complying with a formal requirement of the law in procuring a marriage license which, according to Article 152 PERSONS AND FAMILY RELATIONS LAW Arts. 22-23 4, will not affect the validity of the marriage (Garcia v. Recio, G.R. No. 138322, October 2, 2001). If they are stateless persons or refugees, they shall be required to file an affidavit stating the circumstances showing such capacity to contract marriage in lieu of the certificate of legal capacity. However, if the contracting parties who are citizens of a foreign country desire to have their marriage solemnized by their country’s consul-general officially assigned here in the Philippines, they can get married before such consul-general without procuring a marriage license here in the Philippines if their country’s laws allow the same. Such marriage shall be recognized here in the Philippines. Article 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state: 1) The full name, sex and age of each con- tracting party; 2) Their citizenship, religion and habitual residence; 3) The date and precise time of the celebra- tion of the marriage; 4) That the proper marriage license has been issued according to law, except in marriages provided for in Chapter 2 of this Title; 5) That either or both of the contracting par- ties have secured the parental consent in appropri- ate cases; 6) That either or both of the contracting par- ties have complied with the legal requirement re- garding parental advice in appropriate cases; and 7) That the parties have entered into a mar- riage settlement, if any, attaching a copy thereof. (67a) Article 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not Arts. 22-23 MARRIAGE 153 Requisites of Marriage later than fifteen days after the marriage, to the lo- cal civil registrar of the place where the marriage was solemnized. Proper receipt shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the original of the marriage license and, in proper cas- es, the affidavit of the contracting party regarding the solemnization of the marriage in a place other than those mentioned in Article 8. (68a) PRESUMPTION OF MARRIAGE. That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage is a presumption which is considered satisfactory if uncontradicted, but may be contradicted and overcome by evidence (Rule 131, Section 5[aa], New Rules of Court of the Philippines). The law and public policy favor matrimony. Consequently, every intendment of the law leans toward legalizing matrimony as it is the basis of human society throughout the civilized world (Perido v. Perido, 63 SCRA 97). This presumption of legality is said to be one of the strongest known to the law (In re Rash, 21 Mont. 170, 53 Pac 312), especially where the legitimacy of the children is involved, for the law presumes morality and not immorality; marriage and not concubinage; legitimacy and not bastardy (Pittinger v. Pittinger, 28 Colo. 308). The presumption gains strength through the lapse of time. Hence, persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and if the parties were not what they hold themselves out as being, they would be living in the constant violation of decency and law (Perido v. Perido, 63 SCRA 97). Also, when the celebration of the marriage is once shown, the contract of marriage, the capacity of the parties, and, in fact, everything necessary to the validity of the marriage, in the absence of proof to the contrary, will be presumed (Gaines v. New Orleans, 18 US [L. Ed.] 950). Thus, credible testimony stating that a wedding took place gives rise to the presumption that an exchange of vows was made between the parties declaring that they take each other 154 PERSONS AND FAMILY RELATIONS LAW Arts. 22-23 as husband and wife (Balogbog v. Court of Appeals, G.R. No. 83598, March 7, 1997, 80 SCAD 229). Public policy should aid acts intended to validate marriages and should retard acts intended to invalidate marriages. This is necessary for the order of society. SEMPER PRESUMITUR PRO MATRIMONIO (Always presume marriage) (Adong v. Cheong Seng Gee, 43 Phil. 43). It is settled law that when a marriage has been consum- mated in accordance with the forms of the law, it is presumed that no legal impediments existed to the parties entering into such marriage, and the fact, if shown, that either or both of the parties have been previously married, and that such wife or husband of the first marriage is still living, does not destroy the prima facie legality of the last marriage. The presumption in such case is that the former marriage has been legally dissolved, and the burden of proving that it has not rests upon the party seeking to impeach the last marriage (Wenning v. Teeple, 144 In. 189; Son Cui v. Guepangco, 22 Phil. 216). PROOF OF MARRIAGE. When the question as to whether or not a marriage has been contracted arises in litigation, said marriage may be proved by evidence of any kind (Pugeda v. Trias, 4 SCRA 849). But the primary or best evidence of a marriage is the marriage contract or the marriage certificate (Lim Tanhu v. Ramolete, 66 SCRA 425). A mere photostat copy of a marriage certificate is a worthless piece of paper (Vda. De Chua v. Court of Appeals, G.R. No. 116835, March 5, 1998) but if such photostat copy emanated from the Office of the Local Civil Registrar and duly certified by the local civil registrar as an authentic copy of the records in his office, such certified photostat copy is admissible as evidence. If the photostat copies, though not certified by the office of the local civil registrar, are presented in court without objection from the opposing parties and consequently admitted by the court, the said photostat copies are deemed sufficient proof of the facts contained therein and therefore can be proof of marriage (Sy v. Court of Appeals, G.R. No. 127263, April 12, 2000). Also, baptismal certificates, birth certificates, judicial decisions, and family bible in which the names of the spouses have been entered as married are good evidences of marriage (Trinidad v. Court of Appeals, 289 SCRA 188. See also Orfila v. Arellano, 482 SCRA 280, February 13, 2006). However, x x x Transfer Certificates of Title, Residence Certificates, passports and other similar documents cannot prove marriage especially so when the petitioner has submitted a certification Arts. 22-23 MARRIAGE 155 Requisites of Marriage from the Local Civil Registrar concerned that the alleged marriage was not registered and a letter from the judge alleged to have solemnized the marriage that he has not solemnized said alleged marriage (Vda. De Chua v. Court of Appeals, G.R. No. 116835, March 5, 1998). It has been declared that a certificate of marriage made many years after the marriage is inadmissible, especially where there was no register of the marriage in the official records (Gaines v. Relf, 13 US [L. Ed.] 1071). Relevantly, any officer, priest, or minister failing to deliver to either of the contracting parties one of the copies of the marriage contract or to forward the other copy to the authorities within the period fixed by law for said purpose, shall be punished by imprisonment for not more than one month or by a fine of not more than three hundred pesos, or both, in the discretion of the court (Section 41 of the Marriage Law of 1929). However, failure to present a marriage certificate is not fatal in a case where a marriage is in dispute, as the parties can still rely on the presumption of marriage. Thus, in Rivera v. IAC, 182 SCRA 322, it was held: It is true that Adelaido could not present his parents’ marriage certificate because as he explained it, the marriage records for 1942 were burned during the war. Even so, he could still rely on the presumption of marriage since it is not denied that Venancio Rivera and Maria Jocson lived together as husband and wife and for many years, begetting seven children in all during that time. In Delgado Vda. De La Rosa v. Heirs of Mariciana Rustia Vda. De Damian, G.R. No. 155733, January 27, 2006, 480 SCRA 334, where the absence of a record of the contested marriage was asserted to assail the existence of the marriage, the Supreme Court, after reviewing the evidence rejected such assertion by stating the following reasons: First, although a marriage contract is considered a primary evidence of marriage, its absence is not always proof that no marriage in fact took place. Once the presumption of marriage arises, other evidence may be presented in support thereof. The evidence need not necessarily or directly establish the marriage but must at least be enough to strengthen the presumption of marriage. Here, the certificate of identity issued to Josefa Delgado as Mrs. Guillermo Rustia, the passport issued to her as Josefa D. Rustia, the declaration under oath of no less 156 PERSONS AND FAMILY RELATIONS LAW Arts. 22-23 than Guillermo Rustia that he was married to Josefa Delgado and the titles to the properties in the name of “Guillermo Rustia married to Josefa Delgado,” more than adequately support the presumption of marriage. These are public documents which are prima facie evidence of the facts stated therein. No clear and convincing evidence sufficient to overcome the presumption of the truth of the recitals therein was presented by petitioners. Second, Elisa Vda. de Anson, petitioners’ own witness whose testimony they primarily relied upon to support their position, confirmed that Guillermo Rustia had proposed marriage to Josefa Delgado and that eventually, the two had “lived together as husband and wife.” This again could not but strengthen the presumption of marriage. Third, the baptismal certificate was conclusive proof only of the baptism administered by the priest who baptized the child. It was no proof of the veracity of the declarations and statements contained therein, such as the alleged single or unmarried (“Señorita”) civil status of Josefa Delgado who had no hand in its preparation. Petitioners failed to rebut the presumption of marriage of Guillermo Rustia and Josefa Delgado. In this jurisdiction, every intendment of the law leans toward legitimizing matrimony. Persons dwelling together apparently in marriage are presumed to be in fact married. This is the usual order of things in society and, if the parties are not what they hold themselves out to be, they would be living in constant violation of the common rules of law and propriety. Semper praesumitur pro matrimonio. Always presume marriage. A marriage, like any other contract, may be proved by parol evidence (Watson v. Lawrence, 134 La. 48). Testimony by one of the parties or witnesses to the marriage, or by the person who solemnized the same, is admissible (Pugeda v. Trias, 4 SCRA 849; People v. Velasco, G.R. Nos. 135231-33, February 28, 2001) and competent to prove marriage (Balogbog v. Court of Appeals, G.R. No. 83598, March 7, 1997, 80 SCAD 229). The testimonies must themselves be credible and must proceed from a witness who is likewise credible. In People v. Ignacio, G.R. No. 107801, March 26, 1997, 81 SCAD 138, the fact of marriage of the accused-appellant to the victim in the crime of parricide was established by the Supreme Court on the basis of the oral testimonies of the witnesses, thus: Here, apellant not only declared in court that the victim was her fourth husband but she also swore that they were Arts. 22-23 MARRIAGE 157 Requisites of Marriage married before a judge in Montalban, Rizal. The victim’s son testified that his father and appellant were husband and wife in much the same way that the appellant’s daughter, Milagros, held the victim to be her mother’s husband. Appellant’s admission that she was married to the victim was a confirmation of the semper praesumitur pro matrimonio and the presumption that a man and a woman had verily entered into a lawful contract of marriage. In a case where the complainant alleged in an admininstrative case that the marriage took place on March 15, 1993 but it appears that, in court records and pleadings in a previous case which was already terminated, the complainant stated that it was on June 9, 1993, the Supreme Court ruled that such allegation in the administrative case cannot be accepted to disprove that the marriage was celebrated on June 9, 1993. The Supreme Court held that the complainant himself admitted in his petition in a case for annulment of marriage, which he previously filed, that his marriage was celebrated on June 9, 1993. He was bound by such admission. Moreover, all other evidence led to the conclusion that the marriage could not have occurred on March 15, 1993. Thus, The allegation of the complainant that the marriage was actually celebrated on March 15, 1993 is belied by the documents supporting the application for marriage such as the Affidavit in Lieu of Legal Capacity to Contract Marriage for American Citizens, issued on May 19, 1993, and Pre-Marriage Counseling issued on May 25, 1993. In particular, the Affidavit in Lieu of Legal Capacity to Contract Marriage for American Citizens was subscribed and sworn to before the Consul of the United States on May 19, 1993 by complainant himself. It is difficult to see how a marriage could be celebrated on March 15, 1993 when the documents necessary for its validity were available only months later. It is well-settled that entries in official records made in the performance of a duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated (Young v. Mapayo, AM No. RTJ-00-1552, May 31, 2000). With respect to a marriage ceremony, the testimony of an eye- witness to be sufficient should disclose not only the performance of the ceremony by someone, but that all the circumstances attending it were such as to constitute it a legal marriage (State v. Hodgskins, 19 Me. 155, 36 Am. Dec. 702). It has been held, however, that the fact that a marriage has been solemnized gives rise to the presump- 158 PERSONS AND FAMILY RELATIONS LAW Arts. 22-23 tion that there has been an exchange of marital vows (Balogbog v. Court of Appeals, G.R. No. 83598, March 7, 1997, 80 SCAD 229). Also, public and open cohabitation as husband and wife after the alleged marriage, birth and baptismal certificates of children borne by the alleged spouses, and a statement of such marriage in subsequent documents are competent evidence to prove the fact of marriage (Pugeda v. Trias, 4 SCRA 849). A solemn statement in the will of a deceased as to the fact of his marriage is also admissible proof of such a marriage (Son Cui v. Guepangco, 22 Phil. 216). However, it has been held that mere cohabitation is not direct proof of marriage, which must be proved by the proper documents or by oral testimony in case these have been lost (Santiago v. Cruz, 19 Phil. 145; U.S. v. Evangelista, 29 Phil. 215). Thus, it has been held that whatever presumption of marriage there may have been by cohabitation of one claiming to share in the estate of the decedent as his wife, and the decedent, based upon their cohabitation between 1905 and 1914, was considered destroyed, in the light of lack of any documentary evidence of marriage by the conduct of the parties both during and after that time (Ramos v. Ortugar, August 29, 1951, L-3290). Significantly, to cohabit is to live together, to have the same habitation, so that where one lives and dwells, there does the other live and dwell with him (Kilburn v. Kilburn, 89 Cal. 46), but the conduct of the parties, in order to constitute evidence of marital consent must, generally speaking, be something more than mere living together; it must be an association, consciously and openly, as husband and wife (Cox v. State, 117 Ala. 103). PROOF TO ATTACK VALIDITY OF MARRIAGE. Anyone assailing the validity of a marriage is required to make plain, against the constant pressure of the presumption of legality, the truth of law and fact that the marriage was not legal. The evidence to repel that presumption must be strong, distinct and satisfactory (Murchison v. Green, 128 Ga. 339, 11 LRA [NS] 702). Thus, it has been held that: the statement of the civil status of a person in a certificate of title issued to him is not conclusive to show that he is not actually married to another. It is weak and insufficient to rebut the presumption that persons living together as husband and wife are married to each other. This presumption, especially where the legitimacy of the issue is involved, may be overcome only by cogent proof on the part of those who allege the illegitimacy (Perido v. Perido, 63 SCRA 97). Arts. 22-23 MARRIAGE 159 Requisites of Marriage In a case where the petitioner failed to assert the absence of a marriage license as ground for nullity in her petition based solely on psychological incapacity under Article 36 and where she only invoked such absence of a marriage license in her appeal to the Supreme Court, the Supreme Court made an exception to the general rule that litigants cannot raise an issue for the first time on appeal, and consequently, declared the marriage void due to the absence of a marriage license. The Supreme Court said that, in order to protect the substantive rights of the parties, it was making an exception to the application of the said general rule considering that the marriage contract itself, which was presented as evidence, clearly showed that the solemnization of the marriage occurred on November 15, 1973 before the issuance of the marriage license on September 17, 1974. Also the birth certificates of the children indicated that the marriage was celebrated on November 15, 1973. There was clearly no marriage license at the time of the marriage ceremony (Sy v. Court of Appeals, G.R. No. 127263, April 12, 2000). While obtaining a marriage license in a place which is not the place of residence of any of the contracting parties is merely an irregularity that does not invalidate a marriage (People v. Janssen, 54 Phil. 176), such circumstance is nevertheless an indication that the license may be spurious or non-existent (See Sy v. Court of Appeals, supra), which should necessitate further investigations as to its authenticity. An official certification issued by the Office of the Local Civil Registrar of a municipality, where a particular marriage license has been issued as indicated in the marriage contract, stating that, after earnest effort to locate and verify the existence of the particular marriage license, the said office has no record of the marriage license, or is issued to another couple, or is spurious and fabricated, is a convincing evidence to destroy the validity of marriage on the ground of absence of a valid marriage license (Republic of the Philippines v. Court of Appeals and Castro, 55 SCAD 157, 236 SCRA 257). In a case where it was shown that the marriage contract did not indicate the marriage license and where there was a certification from the pertinent local civil registrar stating that, after earnest efforts to look for the marriage license, the said office had no record of the marriage license of the parties and therefore, it cannot issue a true copy of the same, the Supreme Court said that such certification was adequate to prove the non-issuance of a marriage license and, absent any suspicion, it enjoyed probative value considering that the local civil registrar was the officer charged under the law to keep 160 PERSONS AND FAMILY RELATIONS LAW Arts. 22-23 a record of all data relative to the issuance of a marriage license (Nicdao Cariño v. Cariño, G.R. No. 132529, February 2, 2001). In a case however where the local civil registrar certified that that there was no marriage license despite the exertion of all efforts but with an admission that, due to the work load of the said office, it cannot give full force in locating the marriage license compounded by the fact that the custodian already retired, the Supreme Court did not allow the nullity of the marriage on the ground of absence of a marriage license considering that the circumstances and the certification do not categorically and with absolutely certainty show and state that the marriage license cannot be found and that there were earnest efforts to look for the same (Sevilla v. Cardenas, G.R. No. 167684, July 31, 2006, 497 SCRA 428). Also, it has been held that a marriage, followed by forty years of uninterrupted marital life, should not be impugned and discredited after the death of the husband and administration of his estate, through an alleged prior Chinese marriage, save upon proof so clear, strong, and unequivocal as to produce a moral conviction of the existence of such an impediment (Sy Joe Lieng v. Sy Quia, 228 US 335, 40 Phil. 113). It has been held, however, that any presumption of marriage from the fact that there was cohabitation between a man and a woman many years ago may be considered offset by the fact that, for the last 35 years of their lives, they lived separately and several thousands of miles away from each other (Fernandez v. Puatu, October 31, 1957, L-10071). In a case where one party, to prove the existence of a marriage, introduced as evidence, a birth certificate indicating the status of the child of the parties as legitimate and therefore implying a valid marriage of the child’s parents, and another party, to disprove the existence of a marriage, introduced as pieces of evidence a death certificate of the alleged husband indicating that he was a “widower” at the particular time material to the suit, a transfer certificate of title indicating also that he was a “widower” at such time, and the record of marriage of the local civil registrar which did not reflect any marriage of the parties after he became a widower, the Supreme Court said that, while a birth certificate can prove the fact of marriage between the parties, the pieces of evidences disproving the existence of the marriage also have probative value, such that the evidence, if weighed against each other, preponderated in favor Arts. 24-25 MARRIAGE 161 Requisites of Marriage of the assertion that there was no marriage (Sarmiento v. Court of Appeals, 305 SCRA 138). DECLARATORY RELIEF. In the event that the parties are not certain whether, under the law, they can proceed with a marriage, they can file a petition for declaratory relief, to seek from the court a judgment on their capacity to marry. A petition for declaratory relief may be brought by any person interested under a deed, will, contract, or other written instrument, or whose rights are affected by a statute, executive order, regulation, ordinance, or other governmental regulation for the purpose of determining any question of construction or validity arising therefrom, and for a declaration of his or her rights or duties thereunder, provided that the action is brought before any violation or breach (Republic v. Orbecido III, G.R. No. 154380, October 5, 2005, 472 SCRA 114). Clearly the legal status of a person to marry, his or her rights and duties are governed by law or contract and therefore can be a subject of a petition for declaratory relief. Article 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. (n) Article 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary. (n) EFFECT OF DUTY OF LOCAL CIVIL REGISTRAR. Because the local civil registrar is the specific government official charged with the preparation and keeping of all official documents in connection with marriage, any certification issued by him or her in connection with any matter involving the marriage of any particular individual within his or her jurisdiction is given high probative value. Thus, it has been held that a certification of the local civil registrar that there was no record in his office of any marriage license of the alleged spouses is enough to prove that the marriage 162 PERSONS AND FAMILY RELATIONS LAW Art. 26 is void due to the absence of a formal requirement, namely, a valid marriage license (Republic of the Philippines v. Court of Appeals, 55 SCAD 157, 236 SCRA 257; Nicdao Cariño v. Cariño, G.R. No. 132529, February 2, 2001). MARRIAGE REGISTER. The office of the local civil registrar keeps a marriage register of all persons married in its locality. In the marriage register, there shall be entered the full name and address of each of the contracting parties, their ages, the place and date of the solemnization of the marriage, the names and addresses of the witnesses, the full name, address and relationship with the contracting party or parties of the person or persons who gave their consent to the marriage, and the full name, title, and address of the person who solemnized the marriage (Section 7, Civil Registry Law, Act No. 3753). Article 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they are solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. (n) (As amended by Executive Order Number 227, July 17, 1987.) VALIDATION PROVISION. The Family Code expressly pro- vides that, except for marriages prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38, marriages solemnized abroad and which are valid there as such are recognized as valid here. As a general rule, therefore, the Philippines follows the lex loci celebrationis rule. The sanctity of the home and every just and enlightened sentiment require uniformity in the recognition of the marriage status — that persons legally married according to the law of one jurisdiction shall not be considered as living in adultery in another, and that children begotten in lawful wedlock in one place shall not be regarded as illegitimate in another. Accordingly, it is a general principle of international and interstate law that Art. 26 MARRIAGE 163 Requisites of Marriage the validity of a marriage, so far at least as it depends upon the preliminaries, and the manner or mode of its celebration, is to be determined in reference to the law of the place where it is celebrated. Therefore, a marriage valid where celebrated will generally be regarded as valid everywhere, and where there is bona fide attempt on the part of the parties to effect a legal marriage, every assumption will be in favor of the marriage. The converse of the proposition is equally true — that a marriage void where it is celebrated is void everywhere; but under the operation of the rule that all presumptions favor marriage and every bona fide attempt to effect it, and since the courts are extremely reluctant, and rightly so, to declare a marriage void except for the strongest and most obvious reasons, the converse rule stated above is subject to many exceptions and will not be enforced where the circumstances afford a reasonable ground for the course taken and show a bona fide attempt to effect a marriage (Medway v. Needham, 16 Mass. 157; State v. Tuffy, 41 Feb. 753; Alabama GSR Co. v. Carroll, 97 Ala. 126). A MATTER OF INTERNATIONAL COMITY. The legal effect which may be given by one state to the marriage laws of another state is merely because of comity (Gunter v. Dealers Transport Co., 120 Ind. 409), or because public policy and justice demand the recognition of such laws (Henderson v. Henderson, 199 Md. 449; Toles v. Oakwood Smokelen Coal Corp., 127 ALR 430; Sirois v. Sirois, 94 NH 215), and no state is bound by comity to give effect in its courts to laws which are repugnant to its own laws and policy (Brimson v. Brimson, 233 Ca. 417). This is because every sovereign state is the conservator of its own morals and the good order of society (Jackson v. Jackson, 82 Md. 17, 33 Atb. 317). Each sovereign state has the right to declare what marriages it will or will not recognize, regardless of whether the participants are domiciled within or without its borders (US ex rel Modianos v. Tutle, DC La 12 F2d 92) and notwithstanding such marriages’ validity under the laws of a foreign state where such marriages were contracted (Kapigan v. Der Minassian, 212 Mass. 412). Hence, applying the first paragraph of Article 26, marriages without a license solemnized abroad, and proxy marriages abroad shall be valid in the Philippines if such marriages are valid in accordance with the laws in force in the country where they are solemnized. Likewise foreign marriages solemnized by a professor of law shall be valid in the Philippines if legally valid in the country where they were celebrated. If, however, the foreign marriage is to be solemnized inside the Philippine Consulate abroad, such marriage 164 PERSONS AND FAMILY RELATIONS LAW Art. 26 must observe the forms and solemnities established by Philippine laws (Article 17 of the Civil Code). EXCEPTIONS. Under the Family Code, if either or both contracting parties are Filipinos and they are below 18 years of age, their marriage solemnized abroad will not be recognized in the Philippines as valid even if the marriage is valid in the place where it has been solemnized. Our law clearly adheres to the rule that the marrying capacity of the contracting parties is governed by the national law of that party, which is the Philippine law. Article 15 of the Civil Code provides that laws relating to family rights and duties, or to the status, conditions and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. In the Philippines, persons below 18 years of age are not legally capacitated to marry. Article 26 of the Family Code and Article 15 of the Civil Code express the “extra-territorial effect of the exception” (State v. Shattuck, 69 Vt. 403). Moreover, Article 17, paragraph 3 of the Civil Code provides that prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. However, if one is a Filipino and another an alien whose national laws capacitate persons below 18 years of age (for instance, 16 years of age) to marry, the Family Code does not seem to give a precise solution to this situation. It must be pointed out that Article 35(1), which is made an exception to the comity provision, provides that a marriage is void ab initio if “contracted by any party below eighteen years of age.” The law is addressed “to any party.” It does not distinguish whether one of the parties is a Philippine citizen or a foreigner. Hence, the law can be construed as a blanket exception that should apply likewise to a situation where the foreign spouse is below 18 years of age. The only problem with this construction is that it will lead to an absurdity if Article 26 and the exception under Article 35(1) are related to the other provisions of the Family Code, specifically Article 21. It should be remembered that under Article 21, a foreigner can get married in the Philippines even if he is below 18 years of age if he obtains a certificate of legal capacity from his diplomatic mission in the Philippines stating that, in his country, persons even under 18 years of age can marry. Upon showing of this certificate, he can be given by the local civil registrar a valid marriage license which will allow him to be able to marry a Filipino in the Philippines. The absurdity lies in the circumstance that while Art. 26 MARRIAGE 165 Requisites of Marriage such a marriage may be considered valid here, it will not be so if it were celebrated in the country of the foreigner. This should not be the case. With respect to legal capacity, our country follows the nationality rule and, hence, should accord respect to the laws of the country in so far as the legal capacity to marry of the foreigner is concerned. Hence, the better rule is that the exception under Article 26 referring to Article 35(1) should be construed as referring to a situation where the marriage abroad is between a Filipino and a Filipina and not between a Filipino or Filipina and an alien married in the alien’s state where he or she (the alien), though below 18 years of age, is capacitated to marry. Bigamous and polygamous marriages, though valid abroad, shall likewise not be recognized in the Philippines. A bigamous marriage is committed by a person who contracts a second marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceeding (US v. Mcleod, 3 Phil. 513; US v. Ibang, 13 Phil. 688; Article 349 of the Revised Penal Code of the Philippines). Polygamy is the act or state of a person who, knowing that he has two or more wives, or that she has two or more husbands, marries another (Bouvier’s Law Dictionary, Third edition, Volume 2, page 2630). Under Article 41 of the Family Code, however, a “bigamous” marriage may be recognized. This occurs when, before the celebration of the subsequent marriage, one of the spouses had been absent for four (4) consecutive years, or two consecutive years in cases where there is danger of death, and the spouse present has a well-founded belief that the absent spouse was already dead. The spouse present thereafter obtains a judicial declaration of presumptive death and subsequently marries again. The second marriage is valid without prejudice to the reappearance of the absentee spouse. Marriage abroad where there is mistake of identity of the other contracting party is also not recognized in the Philippines. This is true even if the one who committed the mistake is the foreigner- spouse. Also, if a spouse is able to annul or to declare as null and void his or her marriage but failed to record the judicial decree with the local civil registrar, to partition and distribute their properties and to deliver the presumptive legitime of their children, any subsequent marriage of either of the spouses shall be void. This is provided for under Article 53 in relation to Article 52 of the Family Code. 166 PERSONS AND FAMILY RELATIONS LAW Art. 26 If the said spouse contracts a subsequent marriage abroad without undertaking the aforementioned requirements, the said marriage shall not likewise be recognized. A marriage by a Filipino to a person who is psychologically incapacitated to perform the essential marital obligations abroad, even if valid in the foreign country where it has been solemnized, shall not be considered valid here. If the Filipino is himself the person who is psychologically incapacitated, such marriage is likewise considered void here in the Philippines. Marriages between ascendants and descendants of any degree as well as between brothers and sisters, whether of the full or half blood are likewise not considered as valid here even if such marriages are allowed in the country where they were celebrated. These marriages are void as they are incestuous. Marriages declared void under Philippine laws for being against public policy will not be recognized here even if such marriages are not against public policy or not illegal in the country where said marriages were solemnized. Marriages considered as going against public policy are those exclusively enumerated in Article 38 of the Family Code. Indeed, it has been held that: when the state of domicile has a strong public policy against the type of marriage which its domiciliaries have gone to another state to contract, and this policy is evidenced by a statute declaring such marriages to be void, then the state of domicile, as the one most interested in the status and welfare of the parties, will ordinarily look into its own law to determine the validity of the marriage (Metropolitan Life Ins. Co. vs. Chase, 294 F2d 500). ARE COMMON-LAW MARRIAGES OBTAINED ABROAD BY FILIPINOS VALID IN THE PHILIPPINES? Article 26 of the Family Code apparently does not specifically include common-law marriages contracted by Filipinos abroad as one of the exceptions to the general rule that marriages solemnized abroad is generally valid here in the Philippines if valid where they were solemnized. However, common-law marriages obtained by Filipinos abroad should not be recognized here. Article 26 clearly uses the word “solemnized” and not “contracted” or “performed.” “Solemnization,” as used in marriage statutes, has a very technical and limited meaning. It means the performance of the formal act or ceremony by Art. 26 MARRIAGE 167 Requisites of Marriage which a man and a woman contract marriage and assume the status of husband and wife (Ballantines Law Dictionary, 3rd edition). A marriage is solemnized when, in the presence of a judicial officer, priest or minister, the parties declare that they take each other as husband and wife; and the officer or minister who witnesses the ceremony is said to “solemnize” the marriage (Sharon v. Sharon, 75 Cal. 1, 16 P 345). It is a rule in statutory construction that words and phrases having a special and technical meaning are to be considered as having been used in their technical sense (State v. Bolsinger, 21 NW 2d, page 480 as cited in Statutory Construction by Martin, 6th edition, page 85). Also, technical words and phrases which have acquired a peculiar and appropriate meaning in law are presumed to have been used by the legislature according to their legal meaning (City of St. Louis v. Triangle Fuel Co., 193 SW 2d 914 as cited in Statutory Construction by Martin). Hence, if words used in a statute have a meaning which those who are or should be learned in the law are supposed to understand, the courts must accept such construction (St. Charles Bldg. & Loans Association v. Hamil, 319 Pa. 1220). Solemnization refers to or implies a ceremonial marriage and not one which was “contracted” or merely performed by way of a mere agreement of the parties, such as in cases of a common- law marriage. Indeed, the formality, namely, the solemnization, inherent in a ceremonial marriage is what primarily distinguishes it from a common law marriage (Pratt v. Pratt, 157 Mass. 503, 32 NE 747). Moreover, the terms “solemnized” and “contracted” are not entirely the same. The term solemnization has a narrower meaning, as stated previously. On the other hand, the term “contracted” is broader and may include as one of its modes the process of solemnization. This distinction has a practical and even legal significance. In fact, in marriage statutes in other jurisdiction having similarly worded comity provisions, it has been held that if the term used by the statute is “solemnized,” the law precludes local recognition of common law marriages, which did not undergo the process of solemnization, contracted in another state. The Supreme Court of Utah had occasion to interpret a similarly worded comity provision in the Re Veta’s case, 110 Utah 187, 170 P2d 183 (See also Beddow v. Beddow, 257 [Ky.] SW 2d). The pertinent portions of the said case are as follows: 168 PERSONS AND FAMILY RELATIONS LAW Art. 26 In the light of the foregoing, we return to a consideration of Sec. 40-1-2(3) U.C.A. 1943, declaring a marriage void when not solemnized by an authorized person. We consider it in connection with Sec. 40-1-4, U.C.A. 1943. x x x Sec. 40-1-4 declares: “marriages solemnized in any other country, state or territory, if valid where solemnized, are valid here.” The problem narrows down to this: Do these two sections evidence a legislative intent to recognize a marriage in another state between parties domiciled in Utah only if it is formally entered — “solemnized” — before a person authorized by the laws of such state to perform a marriage ceremony; or is Sec. 40-1-4, supra, to be construed as voicing the general rule that a marriage lawful where celebrated or contracted is lawful everywhere? What we may here say in resolving the question we confine to marriages of persons domiciled in Utah whose marriage in another state or country, while here domiciled, is brought into question; and shall assume, for the purpose of this decision, that in the enactments now under examination it was not the purpose to legislate with respect to the marriage in another jurisdiction of persons there domiciled. The purpose of enactments requiring the solemnization of marriage before an authorized person, together with those dealing with the prior procurement of a license, is doubtless to protect the parties to the marriage contracts in the rights flowing therefrom, and likewise to protect their offspring. A solemn record of the contract is made to which recourse may be had when the rights or obligations of the husband or wife arising from the marriage are in issue. So, too are the interest of third parties in dealing with either of the contracting parties, subsequent to marriage, thus protected. Other advantages of a formal recorded ceremony might be cited, but those just adverted to will suffice in considering the intendment of the provisions in question. To effect such objects, a marriage must, in this state, be “solemnized before an authorized person” to be valid. But should persons domiciled in this state go to a neighboring state and attempt to contract a common-law marriage, the protection of the parties, their offspring and the public, which the statute was designed to effect, would not result should such attempted marriage be recognized here. With this fact in mind, we consider Sec. 40-1-4. Insofar as neighboring states are concerned, the wording of this section is peculiar to Utah. Thus, the California Code provides: “all marriages contracted without this state, which would be valid by the laws of the country in which the same were Art. 26 MARRIAGE 169 Requisites of Marriage contracted are valid in this State.” x x x Identical provisions are found in Idaho xxx and Montana x x x, while Colorado has an identical enactment with a proviso relative to bigamy and polygamy x x x. By contrast with neighboring examples, the section of our code specifies that “marriages solemnized in any other country, state or territory, if valid where solemnized, are valid here.” (Emphasis added) We think that the use of the italicized word was made advisedly and that this section, construed with paragraph (3) of Sec. 40-1-2, supra, evidences a legislative pronouncement that as to domiciliaries of Utah a common-law marriage contracted in another jurisdiction would not be here recognized. To be valid as between domiciliaries of this state a marriage must be “solemnized’’ either in accordance with the laws of this state or those of another jurisdiction. Webster’s New International Dictionary, Second Edition, defines “solemnize” thus: “To perform with pomp and ceremony or according to legal form; specif.; to unite a couple in marriage with religious ceremony; * * * .” That the word was used in this sense was abundantly clear from its employment in the two provisions under examination, as well as elsewhere in the chapter of which they are part. Taking into consideration the purposes of the statute requiring solemnization within the state, the meaning of the words employed, the departure from neighboring examples in the employment of the word “solemnized” in Sec. 40-1-4, supra, the holding is compelled that persons domiciled in Utah may not go into another state, there contract a common-law marriage, and, returning here, have such marriage recognized as valid. The jurisprudence laid down in the aforequoted case may well be applicable here in the Philippines. The legislative history of the provision supports this view. The very first time a validation or comity provision existed in Philippine law history was when the United States introduced the same via Section 5 of General Order No. 68, which provides that: All marriages contracted without these Islands which would be valid by the law of the country in which the same were contracted, are valid in these Islands. The above provision clearly uses the word “contracted” rather than “performed” or “solemnized.” Thereafter, Section 19 of Act 3613, as amended, otherwise known as the Philippine Marriage Law of 1929, provided this comity-validation provision, to wit: Section 19. All marriages performed outside of the Philippine Islands in accordance with the laws in force in the 170 PERSONS AND FAMILY RELATIONS LAW Art. 26 country where they were performed and valid there as such, shall also be valid in the Islands. The word “contracted” in General Order No. 68 was changed to “performed.” Subsequently, the above provision was incorporated in the Philippine Civil Code of 1950 with substantial exceptions. Section 71 of the same provided that: Section 71. All marriages performed outside the Philip- pines in accordance with the laws in force in the country where they were performed, and valid there as such, shall also be val- id in this country, except bigamous, polygamous, or incestuous marriages as determined by Philippine law. Finally, this validation provision was again re-enacted in the Family Code as the first paragraph of Article 26, with substantial modifications and amendments. The term “performed” under the Civil Code was changed to “solemnized” and the exceptions were amended to read, thus: “except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.” This change in the wording from “performed” to “solemnized” is very significant. The change appears to signify the intent of the framers to limit the scope of the provision so as not to include common-law marriages. Moreover, the non-recognition of common-law marriage appears to be consistent with the jurisprudence laid down in Enriquez v. Enriquez (8 Phil. 565) stating that the Philippines, even during the Spanish rule, has never recognized common-law marriages. The second paragraph of Article 26 also uses the term “celebrated.” Again, this connotes a ceremonial marriage where solemnization is inherently involved. This is clearly consistent with the term “solemnized” used in the main validation provision, which is the first paragraph of Article 26. SAME SEX MARRIAGE OF FILIPINOS ABROAD INVALID. Public policy in the Philippines mandates that only a man and a woman can marry each other. This clear public policy consideration is enunciated in Article 1 of the Family Code, stating that marriage is a special contract of permanent union between a man and a woman. Article 2(1) also states that the contracting parties must be a male and a female. In fact, the Family Code is replete with terms and articles clearly indicating that marriage is a heterosexual relationship. It is based on the distinction between a man and a woman. Hence, words like “husband and wife,” “father and mother,” and “man and woman” are used. Same sex marriage, therefore, is Art. 26 MARRIAGE 171 Requisites of Marriage not allowed in the Philippines. If a Filipino contracts a marriage abroad with a person of the same sex, whether such person is another Filipino or a foreigner, such a marriage shall not be recognized here. Article 15 of the Civil Code provides that “laws relating to family rights and duties, or to status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.” In the Philippines, a person has legal capacity to marry only a person of the opposite sex. As stated previously, this public policy consideration can be clearly seen as one of the objects or bases of the Family Code. Hence, this limitation will follow the Filipino anywhere in the world. Moreover, the third paragraph of Article 17 of the Civil Code provides that “prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.” The Family Code mandates that only a male and a female can marry each other. This is, therefore, a public policy matter which cannot be rendered ineffective by any foreign law. PROOF OF FOREIGN MARRIAGE. To establish a valid marriage pursuant to the comity provision of Article 26, it is necessary to prove the foreign law as a question of fact and then to prove the celebration of marriage pursuant thereto by convincing evidence (See Ching Huat v. Co Heong, 77 Phil. 988). The presumption arises on proof of a marriage in another jurisdiction, that such marriage was performed in accordance with the law of that jurisdiction (Patterson v. Gaines, 12 L. Ed. 553). If such law of the other state is not pleaded nor proved and for the purpose of determining the validity of a marriage in the said state, the laws of such state, in the absence of proof to the contrary, will be presumed by the court to be the same as the laws of its own state (See Wong Woo Yin v. Vivo, 13 SCRA 552). Thus, in a particular case where a Chinese woman alleged that she was married to a Filipino and that their marriage in China was solemnized by a village leader, but the said woman failed to show proof of the marriage laws in China, the Supreme Court ruled that the marriage laws in China were presumed to be the same as the domestic laws on the subject, and considering that Philippine law only recognized a marriage celebrated before any of the officers mentioned in the law, and a village leader was not one of them, it was clear that the Chinese woman’s marriage to the said Filipino, 172 PERSONS AND FAMILY RELATIONS LAW Art. 26 even if true, cannot be recognized in the Philippines (See Wong Woo Yin v. Vivo, 13 SCRA 552). In previous cases decided by the Supreme Court prior to 1991, it has been held that the burden of proof to show the fact of marriage and the foreign marital law is upon the one who asserts the validity of the marriage celebrated abroad (See Yao kee v. Sy-Gonzales, 167 SCRA 736). However, in 1991, the Supreme Court decided the case of Board of Commissioners (CID) v. Dela Rosa, 197 SCRA 853, where it held that, considering that in case of doubt, all presumptions favor the solidarity of the family and every intendment of the law or facts leans toward the validity of marriage, “he who asserts that the marriage is not valid under our law bears the burden of proof to present the foreign law.” This case, therefore, shifted the burden of proof from the one who asserts the validity of a marriage to the one assailing the validity of the marriage. Pertinently, the Supreme Court stated, to wit: In Miciano v. Brimo (50 Phil. 867 [1924]; Lim and Lim v. Collector of Customs, 36 Phil. 472; Yam Ka Lim v. Collector of Customs, 30 Phil. 46 [1915]), this Court held that in the absence of evidence to the contrary, foreign laws on a particular subject are presumed to be the same as those of the Philippines. In the case at bar, there being no proof of Chinese law relating to marriage, there arises a presumption that it is the same as Philippine law. The lack of proof of Chinese law on the matter cannot be blamed on Santiago Gatchalian, much more on respondent William Gatchalian who was then a twelve year-old minor. The fact is, as records indicate, Santiago was not pressed by the Citizenship Investigation Board to prove the laws of China relating to marriage, having been content with the testimony of Santiago that the Marriage Certificate was lost or destroyed during the Japanese occupation of China. Neither was Francisco Gatchalian’s testimony subjected to the same scrutiny by the Board of Special Inquiry. Nevertheless, the testimonies of Santiago Gatchalian and Francisco Gatchalian before the Philippine consular and immigration authorities regarding their marriages, birth and relationship to each other are not self-serving but are admissible in evidence as statements or declarations regarding family relation, reputation or tradition in matters of pedigree (Sec. 34, Rule 130). Furthermore, this salutary rule of evidence finds support in substantive law. Thus, Art. 267 of the Civil Code provides: “Art. 267. In the absence of a record of birth, authentic document, final judgment or possession Art. 26 MARRIAGE 173 Requisites of Marriage of status, legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws” (See also Art. 172 of the Family Code). Consequently, the testimonies/affidavits of Santiago Gatchalian and Francisco Gatchalian aforementioned are not self-serving but are competent proofs of filiation (Art. 172[2], Family Code). Philippine law, following the lex loci celebrationis, adheres to the rule that a marriage formally valid where celebrated is valid everywhere. Referring to marriages contracted abroad, Art. 71 of the Civil Code (now Art. 26 of the Family Code) provides that “all marriages performed outside of the Philippines in accordance with the laws in force in the country where they were performed and valid there as such, shall also be valid in this country . . .” And any doubt as to the validity of the matrimonial unity and the extent as to how far the validity of such marriage may be extended to the consequences of the coverture is answered by Art. 220 of the Civil Code in this manner: “In case of doubt, all presumptions favor the solidarity of the family. Thus, every intendment of law or facts leans toward the validity of marriage, the indissolubility of marriage bonds, the legitimacy of children, the community of property during the marriage, the authority of parents over their children, and the validity of defense for any member of the family in case of unlawful aggression.” (Italics supplied). Bearing in mind the “processual presumption” enunciated in Miciano and other cases, he who asserts that the marriage is not valid under our law bears the burden of proof to present the foreign law. Interestingly and with reasons, Justice Florentino Feliciano strongly registered his dissent in the aforequoted ruling by stating that “the rule that a foreign marriage valid in accordance with the law of the place where it was performed shall be valid also in the Philippines, cannot begin to operate until after the marriage performed abroad and its compliance with the requirements for validity under the marriage law of the place where performed, are first shown as factual matters” (Ibid., pages 913-914). ABSOLUTE DIVORCE. Generally, absolute divorce between two citizens of the Philippines is not recognized in the Philippines (Garcia v. Recio, G.R. No. 138322, October 2, 2001). Hence, if the contracting parties who are citizens of the Philippines get validly married in the Philippines or anywhere in the world, their status, in so far as the Philippines is concerned, as married persons follow them anywhere in the world. They can only sever their relationship 174 PERSONS AND FAMILY RELATIONS LAW Art. 26 as husband and wife if anyone of them has a cause of action to declare the marriage void or to annul the marriage. Divorce initiated by a Filipino is against public policy (Cang v. Court of Appeals, 296 SCRA 128). Thus, in a case where a Filipina wife obtained a divorce from her Filipino husband in Nevada, USA, the divorce, though recog- nized in the USA or even in the rest of the world, was declared by the Supreme Court as not recognizable here in the Philippines. Therefore, in so far as the Philippines was concerned, the wife, in entering into a subsequent marriage with an American by virtue of the divorce, technically committed adultery. The Supreme Court anchored its decision mainly on Article 15 and the last paragraph of Article 17 of the New Civil Code. The former provides that laws relating to family rights and duties or to status, condition and le- gal capacity of persons are binding upon citizens of the Philippines, even though living abroad. The latter provides that prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country (Tenchavez v. Escano, 15 SCRA 256). Generally, states recognize divorces of aliens obtained in other states as a matter of international comity (Gildersleeve v. Gildersleeve, 88 Conn. 689). Aliens may obtain divorces abroad, which may be recognized in the Philippines, provided, they are valid according to their national law. The foreign marital law and the divorce decree must be duly proven and cannot be taken judicial notice of (Garcia v. Recio, G.R. No. 138322, October 2, 2001). Our civil law adheres to the nationality rule on the matter of status or legal capacity of a person (Recto v. Harden, 100 Phil. 427; Van Dorn v. Romillo, 139 SCRA 139; Pilapil v. Ibay Somera, 174 SCRA 653). This means that as to a person’s status or legal capacity, the law of the country of the person shall determine such status or legal capacity. The second paragraph of Article 26 of the Family Code provides the recognition in the Philippines of a particular absolute divorce obtained in another country which will allow the divorced Filipino to remarry. Hence, where a valid marriage is celebrated, either in the Philippines or abroad, between a Filipino citizen and a foreigner and, subsequently, the foreigner-spouse obtains a valid divorce abroad capacitating him or her to remarry, the Filipino spouse shall Art. 26 MARRIAGE 175 Requisites of Marriage likewise have capacity to remarry under Philippine law. The second paragraph of Article 26 is a codification of the jurisprudence laid down in the 1985 case of Van Dorn v. Romillo (supra, see San Luis v. San Luis, G.R. No. 133743, February 6, 2007). The second paragraph of Article 26 also applies to a situation where originally, at the time of the marriage ceremony, both parties were Filipinos, but at the time of the divorce, the petitioner was already a citizen of a foreign country that allows absolute divorce. For purposes of Article 26 therefore, the determinative point when the foreigner who procured the divorce should be a foreigner is at the time of the divorce and not at the time of the marriage ceremony (Republic v. Orbecido III, G.R. No. 154380, October 5, 2005, 472 SCRA 114). Although not expressly provided in Article 26, the Filipino spouse, who did not procure the divorce, must be a Filipino also at the time of the issuance of the divorce decree for Article 26 to be applicable. Hence, if the Filipino spouse subsequently acquires his or her foreign spouse’s citizenship before the divorce and he or she initiates the divorce proceeding, the eventual divorce decree will be recognized in the Philippines not because of Article 26 but because of our adherence to the nationality principle with respect to the status of a person (Quita v. Court of Appeals, 300 SCRA 406; Llorente v. Court of Appeals, G.R. No. 124371, November 23, 2000; Garcia v. Recio, supra). The nationality principle postulates that, as to the legal capacity of a person, the Philippines shall adhere or follow the law of the country of the person involved. It must be remembered that at the time of the divorce decree, the Filipino had already become a foreign citizen and, therefore, Philippine laws will not anymore govern his or her status. What will be followed will be the law of the foreign country of the person who was formerly a Filipino. In the event that the former Filipino spouse who has been naturalized as a foreign citizen decides to return to the Philippines and reacquire Philippine citizenship, the divorce decree will still be recognized here because, at the time of the filing of the petition for divorce and at the time of the issuance of the decree of divorce, he or she was not a citizen of the Philippines. His or her status, therefore, at the time of the divorce will be governed by the foreign country of which he or she is a naturalized citizen and will continue even after he or she successfully reacquires Philippine citizenship. His or her status will not be changed just because he or she reacquires Philippine citizenship. 176 PERSONS AND FAMILY RELATIONS LAW Art. 26 If the marriage is between two Filipinos and one of them obtains an absolute divorce abroad after he has been naturalized as a citizen of a foreign country where absolute divorce is recognized, such naturalized foreigner, who was formerly a Filipino, can come back to the Philippines and validly remarry. The nationality rule shall likewise apply to him. Article 26 will not apply but the law of the country where he was naturalized (Recio v. Garcia, supra). In the event that it is the Filipino who obtains the foreign absolute divorce, such divorce, as previously explained, will not be recognized here (Republic v. Iyoy, 407 SCRA 508). However, in so far as the foreigner is concerned, the divorce will be recognized here because of the Philippine’s adherence to the nationality rule. Thus, even if after an absolute divorce obtained in another country by the Filipino spouse has been decreed, a foreigner-spouse cannot claim that he or she still has an interest in the property acquired by the Filipino after the divorce on the ground that, as to Philippine laws, his or her marriage to the Filipino is not considered terminated. As to the foreigner, he or she shall be considered divorced and, therefore, will not have any interest in properties acquired by the Filipino after the divorce (See Van Dorn v. Romillo, 139 SCRA 139). In the event that a Filipino wife decides to have sexual intercourse with another man after such wife obtains an absolute divorce abroad, the foreigner husband cannot file a criminal case for adultery because, while the Filipino wife is still considered married to him under Philippine laws, such foreigner is not considered married to her and, therefore, does not have any legal standing to file such criminal case. Under Philippine criminal laws, only a spouse can file such a criminal case for adultery and, because as to legal capacity, the Philippines follows the nationality rule, the Philippines shall consider the foreigner as a divorced man and, therefore, not a spouse who can file the case (Pilapil v. Ibay Somera, 174 SCRA 653). The divorce recognized under Article 26 was prompted by the lamentable experiences and disadvantageous position of many Filipinos who, before the effectivity of the Family Code and though divorced by their alien-spouses abroad, could not validly marry again, thereby forcing them to live, in the eyes of Philippine law, in illicit relationships with others in the event they decide to “re- marry” abroad. PROVING FOREIGN DIVORCE. In Bayot v. Court of Appeals, G.R. Nos. 155635/163979, November 7, 2008, 570 SCRA 472, where the Supreme Court affirmed the dismissal of a case for declaration Art. 26 MARRIAGE 177 Requisites of Marriage of nullity on the ground that the petitioner thereof already obtained a divorce in another country, which can be recognized in the Philippines, the Supreme Court pertinently explained: Validity of Divorce Decree Going to the second core issue, we find Civil Decree Nos. 362/96 and 406/97 valid. First, at the time of the divorce, as above elucidated, Rebecca was still to be recognized, assuming for argument that she was in fact later recognized, as a Filipino citizen, but represented herself in public documents as an American citizen. At the very least, she chose, before, during, and shortly after her divorce, her American citizenship to govern her marital relationship. Second, she secured personally said divorce as an American citizen, as is evident in the text of the Civil Decrees, which pertinently declared: IN THIS ACTION FOR DIVORCE in which the parties expressly submit to the jurisdiction of this court, by reason of the existing incompatibility of temperaments x x x. The parties MARIA REBECCA M. BAYOT, of United States nationality, 42 years of age, married, domiciled and residing at 502 Acacia Ave., Ayala Alabang, Muntin Lupa, Philippines, x x x, who personally appeared before this court, accompanied by DR. JUAN ESTEBAN OLIVERO, attorney, x x x and VICENTE MADRIGAL BAYOT, of Philippine nationality, of 43 years of age, married and domiciled and residing at 502 Acacia Ave., Ayala Alabang, Muntin Lupa, Filipino, appeared before this court represented by DR. ALEJANDRO TORRENS, attorney, x x x, revalidated by special power of attorney given the 19th of February of 1996, signed before the Notary Public Enrico L. Espanol of the City of Manila, duly legalized and authorizing him to subscribe all the acts concerning this case. Third, being an American citizen, Rebecca was bound by the national laws of the United States of America, a country which allows divorce. Fourth, the property relations of Vicente and Rebecca were properly adjudicated through their Agreement executed on December 14, 1996 after Civil Decree No. 362/96 was rendered on February 22, 1996, and duly affirmed by Civil Decree No. 406/97 issued on March 4, 1997. Veritably, the foreign divorce secured by Rebecca was valid. To be sure, the Court has taken stock of the holding in Garcia v. Recio that a foreign divorce can be recognized here, 178 PERSONS AND FAMILY RELATIONS LAW Art. 26 provided the divorce decree is proven as a fact and as valid under the national law of the alien spouse. Be this as it may, the fact that Rebecca was clearly an American citizen when she secured the divorce and that divorce is recognized and allowed in any of the States of the Union, the presentation of a copy of foreign divorce decree duly authenticated by the foreign court issuing said decree is, as here, sufficient. It bears to stress that the existence of the divorce decree has not been denied, but in fact admitted by both parties. And neither did they impeach the jurisdiction of the divorce court nor challenge the validity of its proceedings on the ground of collusion, fraud, or clear mistake of fact or law, albeit both appeared to have the opportunity to do so. The same holds true with respect to the decree of partition of their conjugal property. As this Court explained in Roehr v. Rodriguez: Before our courts can give the effect of res judicata to a foreign judgment [of divorce] x x x, it must be shown that the parties opposed to the judgment had been given ample opportunity to do so on grounds allowed under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48, 1997 Rules of Civil Procedure), to wit: SEC. 50. Effect of foreign judgments.––The effect of a judgment of a tribunal of a foreign country, having jurisdiction to pronounce the judgment is as follows: (a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing; (b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title; but the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of Court clearly provide that with respect to actions in personam, as distinguished from actions in rem, a foreign judgment merely constitutes prima facie evidence of the justness of the claim of a party and, as such, is subject to proof to the contrary. Art. 26 MARRIAGE 179 Requisites of Marriage As the records show, Rebecca, assisted by counsel, personally secured the foreign divorce while Vicente was duly represented by his counsel, a certain Dr. Alejandro Torrens, in said proceedings. As things stand, the foreign divorce decrees rendered and issued by the Dominican Republic court are valid and, consequently, bind both Rebecca and Vicente. Finally, the fact that Rebecca may have been duly recognized as a Filipino citizen by force of the June 8, 2000 affirmation by Secretary of Justice Tuquero of the October 6, 1995 Bureau Order of Recognition will not, standing alone, work to nullify or invalidate the foreign divorce secured by Rebecca as an American citizen on February 22, 1996. For as we stressed at the outset, in determining whether or not a divorce secured abroad would come within the pale of the country’s policy against absolute divorce, the reckoning point is the citizenship of the parties at the time a valid divorce is obtained. Legal Effects of the Valid Divorce Given the validity and efficacy of divorce secured by Rebecca, the same shall be given a res judicata effect in this jurisdiction. As an obvious result of the divorce decree obtained, the marital vinculum between Rebecca and Vicente is considered severed; they are both freed from the bond of matrimony. In plain language, Vicente and Rebecca are no longer husband and wife to each other. As the divorce court formally pronounced: “[T]hat the marriage between MARIA REBECCA M. BAYOT and VICENTE MADRIGAL BAYOT is hereby dissolved x x x leaving them free to remarry after completing the legal requirements.” Consequent to the dissolution of the marriage, Vicente could no longer be subject to a husband’s obligation under the Civil Code. He cannot, for instance, be obliged to live with, observe respect and fidelity, and render support to Rebecca. The divorce decree in question also brings into play the second paragraph of Art. 26 of the Family Code, providing as follows: Art. 26. x x x x 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 likewise have capacity to remarry under Philippine law (As amended by E.O. 227). 180 PERSONS AND FAMILY RELATIONS LAW Art. 26 In Republic v. Orbecido III, we spelled out the twin elements for the applicability of the second paragraph of Art. 26, thus: x x x [W]e state the twin elements for the application of Paragraph 2 of Article 26 as follows: 1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and 2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. Both elements obtain in the instant case. We need not belabor further the fact of marriage of Vicente and Rebecca, their citizenship when they wed, and their professed citizenship during the valid divorce proceedings. Not to be overlooked of course is the fact that Civil Decree No. 406/97 and the Agreement executed on December 14, 1996 bind both Rebecca and Vicente as regards their property relations. The Agreement provided that the ex-couple’s conjugal property consisted only their family home, thus: 9. That the parties stipulate that the conjugal property which they acquired during their marriage consists only of the real property and all the improvements and personal properties therein contained at 502 Acacia Avenue, Ayala Alabang, Muntinlupa, covered by TCT No. 168301 dated Feb. 7, 1990 issued by the Register of Deeds of Makati, Metro Manila registered in the name of Vicente M. Bayot, married to Rebecca M. Bayot, x x x. This property settlement embodied in the Agreement was affirmed by the divorce court which, per its second divorce decree, Civil Decree No. 406/97 dated March 4, 1997, ordered that, “THIRD: That the agreement entered into between the parties dated 14th day of December 1996 in Makati City, Philippines shall survive in this Judgment of divorce by reference but not merged and that the parties are hereby ordered and directed to comply with each and every provision of said agreement.” Rebecca has not repudiated the property settlement contained in the Agreement. She is thus estopped by her representation before the divorce court from asserting that her Art. 26 MARRIAGE 181 Requisites of Marriage and Vicente’s conjugal property was not limited to their family home in Ayala Alabang. No Cause of Action in the Petition for Nullity of Marriage Upon the foregoing disquisitions, it is abundantly clear to the Court that Rebecca lacks, under the premises, cause of action. Philippine Bank of Communications v. Trazo explains the concept and elements of a cause of action, thus: A cause of action is an act or omission of one party in violation of the legal right of the other. A motion to dismiss based on lack of cause of action hypothetically admits the truth of the allegations in the complaint. The allegations in a complaint are sufficient to constitute a cause of action against the defendants if, hypothetically admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer therein. A cause of action exists if the following elements are present, namely: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages. One thing is clear from a perusal of Rebecca’s underlying petition before the RTC, Vicente’s motion to dismiss and Rebecca’s opposition thereof, with the documentary evidence attached therein: The petitioner lacks a cause of action for declaration of nullity of marriage, a suit which presupposes the existence of a marriage. To sustain a motion to dismiss for lack of cause of action, the movant must show that the claim for relief does not exist rather than that a claim has been defectively stated or is ambiguous, indefinite, or uncertain. With the valid foreign divorce secured by Rebecca, there is no more marital tie binding her to Vicente. There is in fine no more marriage to be dissolved or nullified. VOID AND VOIDABLE FOREIGN MARRIAGES. In the event that a Filipino contracts a foreign marriage which is null and void under the laws of the state where it has been solemnized, such marriage shall likewise be null and void in the Philippines. This is so because the first paragraph of Article 26 clearly provides that foreign marriages, to be considered valid in the Philippines, must 182 PERSONS AND FAMILY RELATIONS LAW Art. 26 be valid in accordance with the laws in force in the country where they are solemnized. Accordingly, if the marriage is not valid in the country where it has been solemnized, it is likewise not valid in the Philippines. In this regard, a civil case can be filed in the Philippines to nullify a foreign marriage using as basis the legal grounds for nullity provided by the marriage laws of the state where the marriage was celebrated. Implicit in the first paragraph of Article 26 is also the recogni- tion that a Filipino’s foreign marriage, which is invalid under the laws where such marriage has been solemnized but which would have been valid had such marriage been celebrated in the Philip- pines, is likewise invalid in the Philippines. Thus, if a Filipino con- tracts a marriage solemnized in the residence of the solemnizing judge in a country where the law provides that a marriage shall be void if celebrated in a place other than the chambers of the solemniz- ing judge, such marriage shall be considered void in the Philippines although such marriage would have been valid had the celebration been performed in the Philippines also in the residence of the judge. In the Philippines, provided that the judge is within his or her juris- diction, the venue of the marriage ceremony can be anywhere within his or her jurisdiction. In case of voidable or annullable marriage (valid up to the time of termination), the same rule as in null and void marriages applies. Under the general rules of private international law on marriage, it is a rule that, as to the extrinsic and intrinsic requirements of a marriage, the law where the marriage has been solemnized shall apply. 183 Chapter 2 MARRIAGES EXEMPT FROM LICENSE REQUIREMENT Article 27. In case either or both of the con- tracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. (72a) Article 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. (72a) Article 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so lo- cated that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relation- ship of the contracting parties and the absence of a legal impediment to the marriage. (72a) Article 30. The original of the affidavit re- quired in the last preceding article, together with a legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was per- 183 184 PERSONS AND FAMILY RELATIONS LAW Arts. 27-34 formed within the period of thirty days after the performance of the marriage. (73a) Article 31. A marriage in articulo mortis be- tween passengers or crew members may also be solemnized by a ship captain or by an airplane pi- lot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (74a) Article 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military opera- tion, whether members of the armed forces or civil- ians. (74a) Article 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of a marriage license, provided they are solemnized in accordance with their customs, rites or practices. (78a) Article 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five 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. (76a) EXEMPTION FROM MARRIAGE LICENSE. Articles 27, 28, 31, 32, 33 and 34 are situations where the contracting parties need not obtain a marriage license prior to getting validly married. These situations are explicitly declared by Article 3(2) as exceptions to the formal requirement of a valid marriage license. These exceptions are likewise referred to in Article 9, which provides that a “marriage license shall be issued by the local civil registrar of the city or municipality where either of the contracting parties habitually reside, except in a marriage where no license is required Arts. 27-34 MARRIAGE 185 Marriages Exempt from License Requirement in accordance with Chapter 2 of this Title.” Except for Muslims who are now governed by the Code of Muslim Personal Laws of the Philippines, the various ethnic groups in the Philippines and the contracting parties referred to in the said articles must comply with all other essential and formal requirements provided under Articles 2 and 3 of the Family Code. Also, the solemnizing officer must be authorized to solemnize the marriage under Article 7. Moreover, their marriage should not fall under those declared as void under Articles 35, 36, 37, 38, 40, 41, 44 and 53 of the Family Code. The reasons for the exceptions are mainly anchored on necessity and practicality such as in the case of marriages in articulo mortis where at least one of the parties is in the brink of death and of marriages in remote places; on the respect for and recognition of the customs and practices of Muslims and ethnic minorities; and on the policy of the state to, as much as possible, validate or legitimize illicit cohabitation between persons who do not suffer any legal impediment to marry. FAR AREAS. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. A sacred institution like marriage should always be encouraged. Without this provision, illicit relationships may proliferate only because the parties could not get a marriage license with really no fault on their part. SOLEMNIZING OFFICERS UNDER ARTICLE 7 AND THE MAYOR. It must be observed that, on the basis of Article 27, all those who are authorized to solemnize a marriage enumerated in Article 7 and the mayor are empowered to act as the solemnizer of a marriage even without a valid marriage license if either or both of the contracting parties are at the point of death. The marriage will remain valid even if the ailing party subsequently survives. The judge must, however, solemnize the marriage within his jurisdiction and the imam, priest or rabbi or any minister of a particular sect or religious group must comply with the requisites provided in Article 7(2). The consul or consul general abroad can only do so if the parties are both Filipinos as provided for in Article 7(5) in relation to Article 10. CHIEF PILOT AND SHIP CAPTAINS. A chief pilot or a ship captain may solemnize only marriages in articulo mortis while the plane is in flight or the ship is at sea and even during stopovers 186 PERSONS AND FAMILY RELATIONS LAW Arts. 27-34 at ports of call. They can solemnize marriages only among their passengers and crew members. MILITARY COMMANDER. As far as the military commander is concerned, he or she must be a commissioned officer, which means that his or her rank should start from a second lieutenant, ensign and above (Webster Dictionary, 1991 edition). He or she must likewise be a commander of a unit, which means any subdivision (regiment, battalion, etc.) of an army whose strength is laid down by regulations (Webster Dictionary, 1991 edition). However, from the deliberations of the Civil Code revision committee, it appears that “unit” has been referred to be at least a “battalion” (Minutes of the Civil Code Revision Committee held on May 23, 1983, page 4). Also he or she can only solemnize a marriage if it is in articulo mortis and in the absence of a chaplain. The marriage must be solemnized within the zone of military operation and during such military operation. The contracting parties may either be members of the armed forces or civilians. MUSLIM AND ETHNIC GROUPS. It is interesting to note that under the Civil Code, for as long as the marriages of ethnic groups, pagans and Muslims were performed in accordance with their customs, rites and practices, such marriages were considered valid (Article 78 of the Civil Code). The previous law likewise even provided that the formal requisites of a marriage need not be complied with including the authority of the solemnizing officer as defined in the Civil Code. The privilege given to these Filipinos, according to the Civil Code, was good only for twenty years from the time the Civil Code took effect in 1950 unless prolonged or shortened by the President. After the period had lapsed, these Filipinos had to comply with the mandates of the Civil Code just like any other Filipino. Subsequently, the Code of Muslim Personal Laws of the Philippines was signed on February 4, 1977 and became effective in the same year. This particular law governs the law on persons and family relations among Muslims. It does not provide that, for a marriage to be valid, a marriage license has to be procured by the contracting parties. On August 3, 1988, the new Family Code took effect, expressly providing that the Muslims and ethnic groups are exempted only from procuring a marriage license for as long as the marriage will be solemnized in accordance with their customs, rites and practices. In effect, the code commission was consistent with the Code of Muslim Personal Laws of the Philippines in so far as not requiring Muslims to obtain a marriage license. Arts. 27-34 MARRIAGE 187 Marriages Exempt from License Requirement Under Republic Act No. 6766, the Organic Act for the Cordillera Autonomous Region (CAR), Article X, sec. 2 provides: “Marriages solemnized between or among members of the indigenous tribal group or cultural community in accordance with the indigenous customary laws of the place shall be valid, and the dissolution thereof in accordance with these laws shall be recognized.” However, as to other ethnic groups in the Philippines, they are still governed by the Family Code, as they do not have a separate law like the Code of Muslim Personal Laws of the Philippines for the Muslims or the Organic Act of the Cordillera Autonomous Region. COHABITATION FOR FIVE YEARS. With respect to the exemption relative to persons cohabiting for at least five years under Article 34 of the Family Code, it must be observed that their living together as husband and wife must meet two distinct conditions namely: 1) they must live as such for at least five years characterized by exclusivity and continuity that is unbroken. (Republic v. Dayot, G.R. No. 175581, March 28, 2008, 550 SCRA 435); and 2) they must be without any legal impediment to marry each other. While both conditions must concur, they do not qualify each other. In other words, during the five-year period, it is not necessary that they must not have suffered from any legal impediment. The second condition as to the absence of any legal impediment must be construed to refer only to the time of the actual marriage celebration. Hence, the parties must be without legal impediment only at the time of the marriage ceremony and not during all those previous five (5) years. This must be the interpretation because the essential requirements under Article 2 and the formal requirements under Article 3 for a valid marriage must be present only at the celebration of the marriage and not at any other point in time. The five-year period is not among the said essential and formal requirements. Neither could such time element add or diminish the legal effects of the said essential and formal requirements. This, in fact, is the intention of the drafters of the Family Code. It was Justice Puno who recommended the phrase relative to the absence of legal impediment, thus: Justice Puno suggested that they say “and having no legal impediment to marry.” Justice Reyes, however, commented that the provision may be misinterpreted to mean that during the five years, the couple should have capacity to marry each other. Justice Puno opined that the idea in the provision is that, at the time of the marriage, there is no legal impediment to said marriage. Judge 188 PERSONS AND FAMILY RELATIONS LAW Arts. 27-34 Diy remarked that it may appear that they are consenting to an adulterous relationship. Justice Caguioa pointed out that what is important is that at the time of the marriage, both parties are capacitated to marry (Minutes of the 150th joint Civil Code and Family Law committees held on August 9, 1986, page 3). This must be the interpretation of the law if the intention of the Code Commission is to really improve the previous provision contained in Article 76 of the Civil Code. It must be noted that the said Article 76 of the Civil Code, which has been repealed by Article 34 of the Family Code, had three conditions for the exemption to apply, namely: 1) the contracting parties must have lived as husband and wife for at least five years; 2) they must have attained the age of majority; and 3) they must be unmarried. Although these conditions should likewise concur, they did not qualify each other. Clearly, instead of providing specific conditions such as the attainment of the age of majority and the status of being “unmarried” which seem to indicate that, under the Civil Code, these were the only legal impediments pertinent in determining the application of the exemption, the Family Code now provides a broader condition by an amendment providing that no legal impediment must exist with respect to the contracting parties. There are no more specific types of legal impediments. The phrase “legal impediment” under Article 34 of the Family Code refers to any possible ground or basis under the Family Code, including non-age and the status of being already married among others, to make a marriage infirm. But the presence or absence of such legal impediment should only be considered at the time of the celebration of the marriage ceremony. Unlike Article 34 of the Family Code, the repealed Article 76 of the Civil Code made it mandatory that, during the whole five (5)-year period, the contracting parties must be unmarried. Hence, under the repealed law, a person who was married at anytime during the five- year period and who was living with another person cannot avail of the exception in case he or she intends to marry his or her live- in partner after his or her legitimate spouse died. In short, there must be no such legal impediment during the whole five-year period (Niñal v. Bayadog, G.R. No. 133778, March 14, 2000, 328 SCRA 122). Under Article 34 of the Family Code, however, for as long as there is no legal impediment at the time of the marriage ceremony, the parties can avail of the exception (Manzano v. Sanchez, AM No. MTJ 00-1329, March 8, 2001). Hence, under the Family Code, a spouse who was living-in with his or her paramour can avail of Arts. 27-34 MARRIAGE 189 Marriages Exempt from License Requirement this exception and marry his or her paramour without a marriage license after the death of his or her legal spouse. Under this exception, the contracting parties shall state the fact of their cohabitation for at least five years and the absence of any legal impediment to marry 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. The failure of the solemnizing officer to investigate shall not invalidate the marriage. In Cosca v. Palaypayon, 55 SCAD 759, 237 SCRA 249, where a judge solemnized a marriage involving a party who was only 18 years of age without a marriage license on the basis of an affidavit where the parties indicated that they lived together as husband and wife for six years already, the Supreme Court held that the judge acted improperly because he should have conducted first an investigation as to the qualification of the parties. The judge should have been alerted by the fact that the child was 18 years old at the time of the marriage ceremony, which means that the parties started living together when the 18-year-old was barely 13 years of age. There was a probability that the affidavit was forged. Nevertheless, the Supreme Court did not state that the marriage was void because clearly at the time of the marriage ceremony, the parties had no legal impediment to marry. The aim of this provision 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 (De Castro v. Assidao-De Castro, G.R. No. 160172, February 13, 2008, 545 SCRA 162). In De Castro v. Assidao-De Castro, G.R. No. 160172, February 13, 2008, 545 SCRA 162, the Supreme Court ruled the nullity of a marriage on the ground of absence of a valid marriage license upon evidence that there was in fact no cohabitation for five years contrary to the statements in the falsified affidavit executed by the parties. The falsity of the affidavit cannot be considered to be a mere irregularity considering that the 5-year period is a substantial requirement of the law to be exempted from obtaining a marriage license (See also Republic v. Dayot, G.R. No. 175581, March 28, 2008, 550 SCRA 435). DIRECTORY REQUIREMENTS. The procedure laid down in Articles 29 to 30 of the Family Code relative to the duties of 190 PERSONS AND FAMILY RELATIONS LAW Arts. 27-34 the solemnizing officer with respect to the affidavit he or she has to execute is merely directory in character. Non-observance of the requirements will not render the marriage void or annullable (Loria v. Felix, 55 O.G. 8118). However, under the Marriage Law of 1929, any officer, priest or minister who, having solemnized a marriage in articulo mortis or any other marriage of an exceptional character, shall fail to comply with the provisions of Chapter II of this Act (now Chapter 2, Title I of the Family Code), shall be punished by imprisonment for not less than one month nor more than two years, or by a fine of not less than three hundred pesos nor more than two thousand pesos, or both, in the discretion of the court. 191 Chapter 3 VOID AND VOIDABLE MARRIAGES Article 35. The following marriages shall be void from the beginning: 1) Those contracted by any party below eighteen years of age even with the consent of par- ents or guardians; 2) Those solemnized by any person not le- gally authorized to perform marriages unless such marriages were contracted with either or both par- ties believing in good faith that the solemnizing of- ficer had the legal authority to do so; 3) Those solemnized without a license, ex- cept those covered by the preceding Chapter; 4) Those bigamous or polygamous marriag- es not falling under Article 41; 5) Those contracted through mistake of one contracting party as to the identity of the other; and 6) Those subsequent marriages that are void under Article 53. VOID MARRIAGES. A void marriage is that which is not valid from its inception. Article 4 of the Family Code declares that absence of any of the essential or formal requirements for a valid marriage as provided for in Articles 2 and 3 makes a marriage void. Exceptions are, however, provided for in Articles 27, 28, 31, 32, 33, 34 and 35(2). In addition, Articles 35, 36, 37, 38, 40, 41, 44, and 53 in relation to Article 52 of the Family Code enumerate marriages which are void. Only marriages declared void by the legislature should be treated as such. There can be no other void marriages 191 192 PERSONS AND FAMILY RELATIONS LAW Art. 35 outside of those specifically provided by law. Thus, in the absence of any other grounds to consider a marriage void, a court appointed guardian and his or her ward can marry each other and likewise stepbrothers and stepsisters can validly marry each other. The grounds for a void marriage may co-exist in one case. Thus, a person may claim that his or her marriage is void because he or she not only contracted it when he or she was 17 years of age but also it has been contracted without a valid marriage license and with a person who has a subsisting marriage and who is his or her collateral blood relative within the fourth civil degree of consanguinity. A petition for declaration of nullity, without any other incidental prayers like support, deals with only one cause of action, which is the invalidity of the marriage from the beginning. Hence, a petition may contain many grounds for nullity of marriage, such as absence of consent, no marriage license, psychological incapacity of the parties and bigamy, but it has only one cause of action, which is the nullity of the marriage (Mallion v. Alcantara, G.R. No. 141528, October 31, 2006). VOID AND VOIDABLE MARRIAGE. A void marriage is different from a voidable or annullable marriage under Article 45 of the Family Code. 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 marriage where the action prescribes. Only the parties (or those designated by the law such as parents and guardians) 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 Articles 43 and 44 as well as Articles 51, 53, Art. 35 MARRIAGE 193 Void and Voidable Marriages and 54 of the Family Code. On the contrary, the property regime governing voidable marriages is generally conjugal partnership (or absolute community) and the children conceived before its annulment are legitimate (Ninal v. Bayadog, 328 SCRA 122; matters inside parenthesis supplied). Void marriages can never be ratified or cured by any act of any of the contracting parties. Neither could estoppel or acquiescence apply to remedy the infirmity. Thus, even if one of the parties stated under oath in his or her marriage application that he or she was 21 years of age when in fact he or she was only 16 years of age and a marriage was solemnized at the time he or she was a minor, the marriage is still void and can still be judicially declared as void. The parties cannot invoke that the 16-year-old or the other party who knew of the infirmity is estopped from invoking the said infirmity just because in the marriage application the said parties agreed to state a false age. Likewise, if in order to be exempted from procuring a marriage license, the parties stated in their sworn statement that they were already cohabiting continuously for five years to comply with the time requirement of the law when in fact they only cohabited for two years and a marriage was consequently solemnized, such marriage is still void and the parties can nullify the marriage on the ground of absence of a marriage license as the infirmity in the marriage cannot be cured by their misrepresentation in their sworn statement or affidavit and neither could they be estopped by such misrepresentation (See De Castro v. Assidao-De Castro, G.R. No. 160172, February 13, 2008, 545 SCRA 162; Republic v. Dayot, G.R. No. 175581, March 28, 2008, 550 SCRA 435). However, in Mallion v. Alcantara, G.R. No. 141528, October 31, 2006, where the petitioner, after being denied the nullity of his marriage via a petition based on psychological incapacity, subsequently filed another petition for nullity of marriage based on the absence of a marriage license, the Supreme Court directed the dismissal of the subsequent case on the ground that the petitioner violated the rule on splitting-a-cause of action, that the rule on res judicata applied and that the petitioner waived the defect. The Supreme Court said that a case for nullity of marriage involved only one cause of action which was to declare the marriage void. The different grounds for nullity of marriage did not mean different causes of action. Hence, in not invoking the ground of absence of a marriage license in the first case and then in filing a subsequent case invoking the said ground, the petitioner violated the rule on splitting of a cause of action. Accordingly, the petitioner was considered to 194 PERSONS AND FAMILY RELATIONS LAW Art. 35 have been barred by res judicata. According to the Supreme Court, not having invoked the ground of absence of a marriage license in the first case, the petitioner was considered to have impliedly admitted the validity of the celebration of the marriage and he had therefore waived all the defects. This ruling in the Mallion case appears to have given more weight to procedure rather than substantial law which should not be the case The decision did not take into account that no amount of ratification, waiver, acquiescence, or estoppel can validate a void marriage. This is so because a void marriage is invalid from the very beginning. Marriage is a social institution affected by public interest. A legal declaration that a marriage is void is likewise a fiat vested with public interest. A null and void marriage cannot be validated directly or indirectly. In this particular case, the Supreme Court gave a valid effect to an invalid marriage which is inconsistent with the very notion of void marriages. BAD FAITH OR GOOD FAITH IN VOID MARRIAGES. As a general rule, good faith and bad faith are immaterial in determining whether or not a marriage is null and void. Hence, even if a woman believed in good faith that she married a man not related to her but who, in truth and in fact, was her long-lost brother, her good faith will not cure the infirmity even if she willingly and freely cohabited with him for a reasonable length of time after discovering the relationship. She can still nullify such a marriage because it is incestuous. Also, if a person marries without a marriage license or one that is spurious and does not fall under the exceptions, the marriage is void regardless of his or her good faith or bad faith. Likewise, if a person marries his or her first cousin knowing fully well of such a relationship which he or she conceals from his or her first cousin, the marriage is still void and it can be nullified even at the instance of the person who conceals the fact as such marriage is void for being against public policy. In Chi Ming Tsoi v. Court of Appeals, 78 SCAD 57, 266 SCRA 324, where the ground of psychological incapacity under Article 36 was invoked to nullify a marriage and where evidence showed that the spouses did not engage in sexual intercourse but there was no finding as to who between the husband and the wife refused to have sexual intercourse, the Supreme Court ruled that such absence of a finding as to the one who refused to have sex is immaterial because the action to declare a marriage void may be filed by either party, even the psychologically incapacitated one. In this regard, it has been authoritatively opined that the equitable doctrine of unclean hands where the court should not grant Art. 35 MARRIAGE 195 Void and Voidable Marriages relief to the wrongdoer is not a rule as applied in nullity actions because it is merely judge-made and has no statutory basis (See Faustin v. Lewis, 85 N.J. 507, 427 A. 2d 1105). Significantly, while the Family Code generally refers to an “injured party” in annullable or voidable marriages, it does not make any statutory reference to an “injured party” in null and void marriages. Moreover, what is sought to be protected here is also the interest and public policy of the State. In declaring a marriage void, the State expresses that it does not consider a union in a void marriage as serving the fundamental purpose of the state of fostering and nurturing a family which is the foundation of society. Hence, either the husband or the wife in a void marriage can file a case to declare it null and void. Nonetheless, the party who knew that he or she was entering a void marriage before its solemnization may be held liable for damages by the other contracting party under the provisions on Human Relations in the Civil Code, specially Articles 19, 20, and 21 thereof. There are only two exceptions to the general rule that good faith and bad faith are not relevant in void marriages. These exceptions are all expressly provided by law. First, Article 35(2) states that if either of the contracting parties is in good faith in believing that a solemnizing officer has authority to solemnize a marriage though he or she actually has none, the marriage will be considered valid. Second, in the case provided in Article 41 referring to a person whose spouse disappears for four years or two years, in the proper cases, the present spouse may validly marry again if he or she: 1) has a well-founded belief that his or her spouse is dead; 2) procures a judicial declaration of presumptive death; and 3) at the time of the subsequent marriage ceremony, is in good faith together with the subsequent spouse; otherwise, the subsequent marriage shall be considered void in accordance with Article 44. In these two cases, the good faith even of only one of the contracting parties shall make the marriage valid. To be void, both of the contracting parties must be in bad faith. BAD FAITH AS AFFECTING PROPERTY DISPOSITION. In determining the disposition of properties in a void marriage, good faith and bad faith of one of the parties at the time of the marriage ceremony are material. As a general rule, in a void marriage, the property regime is one of co-ownership. In the disposition of the co- ownership at the time of liquidation, whether or not one of the parties is in bad faith is a basic consideration. This is in accordance with Article 147 or 148 of the Family Code, as the case may be. Hence, when only one of the parties to a void marriage is in good faith, the 196 PERSONS AND FAMILY RELATIONS LAW Art. 35 share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon the termination of the cohabitation. This rule described in the preceding paragraph applies to all void marriages except to a subsequent void marriage due to the failure of a party to get a prior judicial declaration of nullity of the previous void marriage pursuant to Article 40 of the Family Code. Thus, if a person, whose existing marriage is void, remarries another without obtaining a judicial declaration of nullity, the subsequent marriage is void. However, even if the subsequent marriage is void, Article 147 or 148 will not apply but Article 50, which provides that paragraph (2), among others, of Article 43 shall apply in case of a subsequent void marriage under Article 40 (Valdes v. RTC, 72 SCAD 967, 260 SCRA 221). Paragraph (2) of Article 43 provides that, upon the termination of the marriage, the absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse. COLLATERAL AND DIRECT ATTACK. As a general rule, a void marriage can be collaterally attacked. This means that the nullity of a marriage can be asserted even if it is not the main or principal issue of a case and that no previous judicial declaration of nullity is required by law with respect to any other matter where the issue of the voidness of a marriage is pertinent or material, either directly or indirectly. Hence, if, in an inheritance case, it is important to show that certain children should get less inheritance because they are illegitimate due to the void marriage of the decedent with their mother, any proof to show the nullity of the marriage can be presented in court. There is no need to produce a judicial declaration of nullity to prove that the marriage is void. In short, it is not mandatory to show that, prior to the death of the decedent, either the decedent or the mother filed a civil case precisely and mainly for the purpose of judicially declaring the marriage void. Evidence other than a judicial decision declaring the said marriage void can Art. 35 MARRIAGE 197 Void and Voidable Marriages be presented to show the nullity of the marriage (Domingo v. Court of Appeals, 44 SCAD 955, 226 SCRA 572). In De Castro v. Assidao-De Castro, G.R. No. 160172, February 13, 2008, 545 SCRA 162, petitioner filed a complaint for support against her husband to compel the latter to support their child. The husband interposed an affirmative defense claiming that the petitioner and she were not married. The Supreme Court ruled that while the case was one of support, the lower court can make a declaration that the marriage was void to determine the rights of the child to be supported. The Supreme Court rejected the contention that a separate case for judicial declaration of nullity must be filed first before the lower court, in a case for support, can rule that the marriage was void. There are, however, three cases where a direct attack, not a collateral attack, on the nullity of a marriage must first be undertaken so that the proper effects provided by law can appropriately apply. Direct attack means filing a case precisely putting forth as principal issue the nullity of the marriage. It is a suit precisely filed to assail the validity of a marriage or to assert the nullity of a marriage for the court to issue the proper judicial declaration. In a direct attack, only the husband or the wife can file a case for declaration of nullity. The first case is provided in Article 40 of the Family Code which provides that “the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such marriage void.” This means that, if a person has a void marriage and he or she wants to remarry, he or she must first file a civil case precisely to obtain a judicial declaration of the nullity of the first marriage before he or she can remarry. In short, for purposes of remarriage, the only acceptable proof to show the voidness of the first marriage is a judicial declaration issued by the court directly stating that the first marriage is null and void (Domingo v. Court of Appeals, 44 SCAD 955, 226 SCRA 572). The second case where a direct attack is necessary has been alluded to by the Supreme Court in Niñal v. Bayadog, 328 SCRA 122, when it said that for purposes other than remarriage, no judicial declaration of nullity is necessary. However, for other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of the child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of a marriage even in a suit not directly instituted to question the same so long as 198 PERSONS AND FAMILY RELATIONS LAW Art. 35 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 arise, 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. (italics supplied) The third case where a direct attack is required is provided in Articles 50 in relation to Article 43(3) and in Article 86(1) of the Family Code. Thus, if a donor desires to revoke a donation propter nuptias (in consideration of marriage) given to one or both of the married couple on the ground that the marriage is void, it is important that a judicial declaration of nullity of the marriage must first be obtained. It is not enough that the marriage is void pursuant to law. There must first be a civil suit filed by either of the parties in the void marriage to have the marriage judicially declared null and void. The existence of a valid judicial declaration of nullity will give the donor the cause of action to revoke the donation (Article 86[1]) or to consider the donation as revoked by operation of law (Article 50 in relation to Article 43[3]), as the case may be. BELOW EIGHTEEN YEARS OF AGE. An individual below eighteen years of age is declared by law as not possessing the legal capacity to contract marriage. The consent of the parents is immaterial in the sense that, even if present, it will not make the marriage valid. Neither can subsequent parental consent ratify such a void marriage. The legal capacity to marry both for male and female is 18 years of age. Under the Spanish Civil Code, the marrying ages were 14 years old for male and 12 years old for female as these ages were considered to be the minimum ages when a male and a female can effectively procreate. These are the ages when puberty normally starts. Eventually, the level of maturity or responsibility of the marrying couple was taken into consideration such that the 1950 Civil Code changed the marrying-ages to 16 years of age for male and 14 years of age for female. This discrepancy in age under the old law has for its basis the primary obligation of a husband or father to support the family. Presumably, interwoven in the latter obligation is the recognition that natural order, taught both by history and reason, designates the male as the provider in the usual Art. 35 MARRIAGE 199 Void and Voidable Marriages marriage relation. That duty, different in recognizable degree than the other mutual duties of marriage, is sufficient reason to require males to be older and generally more suited to their duty before they may independently decide to marry (Friedrich v. Katz, 318 N.E. ed. 606). The above basis for the discrepancy in sex-age appears today as quite anachronistic considering the fact that women today can equally provide for the family. The above justification, in fact, has been abandoned in many states of the United States which declared statutes with age discrepancy between male and female as constitutionally infirm for being discriminatory (See Stanton v. Stanton, 421 U.S. 7, 95; 429 U.S. 501). The amendment therefore in the Family Code appears to give emphasis to the present-day reality that there is no significant difference as to the maturity of male and female of the same age. Moreover, scientific studies have been shown that adolescent child bearing on the part of the female (who is between 12 to 17 years of age) increases the probability of unsafe pregnancies such as those characterized by pre-eclampsia, eclampsia, prolonged labor, severe toxema, uterine inertia, prematurity, contracted pelvis and others. Those situations may even lead to cerebral palsy, epilepsy and mental retardation. Also, adolescent pregnancy can likewise deprive a fetus of proper nutrition. This is because, in her adolescent life, a female (like a male) is biologically developing such that she needs all the nutrients in her body to grow up as a healthy person. With a child in her womb, an adolescent female may not provide the fetus with enough nutrition as her own body is directly competing with the fetus for the said nutrients. This situation is not good both for the adolescent pregnant female and the fetus in her womb. NON-AUTHORITY OF SOLEMNIZER. As discussed in a previous chapter of this book, the present and the old marriage laws applicable in the Philippines exclusively recognize ceremonial marriage which involves the intervention of an ecclesiastical or civil functionary empowered by the state to declare a couple as husband and wife. If a person is not among those enumerated under Article 7, or if he or she is among those enumerated but does not comply with the specific requirements for his or her authority to vest on him or her as also provided by law, or he or she is not the mayor or, at least, a person empowered by law to act as mayor when the latter cannot perform his or her duties, he or she has no authority to solemnize a marriage. 200 PERSONS AND FAMILY RELATIONS LAW Art. 35 GOOD FAITH MARRIAGE. If the marriage were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so when in fact he or she has none, then the marriage shall be considered valid. The good faith is clearly addressed to the contracting parties and not to the solemnizing officer. Likewise, the good faith that will validate the marriage refers to only one formal requisite, namely: authority of the solemnizing officer, and not to any other requisite, whether essential or formal. Without the declaration by the law of its validity, such good-faith marriage would have been an instance of a putative marriage which is void because of the absence of the authority of a solemnizing officer. The term “putative marriage” is applied to a matrimonial union which has been solemnized in due form and good faith on the part of one or of both of the parties but which by reason of some legal infirmity is either void or voidable. The essential basis of such marriage is the belief that it is valid (Estate of Foz, 109 Cal. App. 2d 329). Like a putative marriage, the good-faith marriage under Article 35(2) is not founded on the actual marriage or the ceremonial marriage, but on the reasonable belief by one or both of the parties that they were honestly married (Succession of Marinoni, 183 La. 776) and that the solemnizing officer had authority when, in fact, he had none. While the question of good faith is a question of fact, which must be determined by the trial court (Succession of Chavis, 211 La. 313), good faith is always presumed until the contrary is shown (Kunafoff v. Woods, 166 Cal App 2d J9 332 P2d 773). The scope of good faith in putative marriages may likewise be applicable to good faith marriages under Article 35(2). The term “good faith,” when used in connection with putative marriage, means an honest and reasonable belief that the marriage was valid at its inception, and that no legal impediment exists to impair its validity. A finding that a person entered a marriage in good faith is equivalent to a finding that he or she was innocent of fraud or wrongdoing in inducing or entering into the marriage. While it has frequently been said that a party may be in good faith so long as he receives no certain or authoritative knowledge of some legal impediment to the marriage, such person cannot close his ears to information or his eyes to suspicious circumstances, and must not act blindly or without reasonable precautions. The extent to which a person has the duty to ascertain the existence of an impediment to his Art. 35 MARRIAGE 201 Void and Voidable Marriages marriage depends ultimately upon the facts and circumstances in each individual case (52 Am. Jur. 2d 96). EXPLANATIONS OF JUSTICES RICARDO PUNO AND EDUARDO CAGUIOA. Justice Ricardo Puno, one of the framers of the present Family Code, had this to say on the aspect of good-faith marriage recognized under our present law in reply to the various criticisms on the same made during the deliberations on the Family Code in the Senate Committee on Women and Family Relation on January 27, 1988: Mr. Puno: xxx xxx She had, however, a very notable observation regarding Article 35, No. 2, where Judge Claraval proposes that the exception clause should be deleted — “Those solemnized by any person not legally authorized to perform marriages” — and the exception is sought to be deleted now — “UNLESS SUCH MARRIAGES WERE CONTRACTED WITH EITHER OR BOTH PARTIES BELIEVING IN GOOD FAITH THAT THE SOLEMNIZING OFFICER HAD LEGAL AUTHORITY TO DO SO.” Under the old jurisprudence, this was a recognized exception — that when the parties in good faith believe the authority of the solemnizing officer, the marriage would nevertheless be valid. But in the Civil Code of 1950, the rules were made stringent and, therefore, the authority of the solemnizing officer was an absolute condition. We feel, however, that the old rule should be brought back, in keeping with the remarks of Judge Claraval that this general rule is that the marriage should be protected. The general rule is that there should be marriage and, therefore, the good faith of the parties should come to their rescue. Sometimes, it is not really their fault. Sometimes the misrepresentation is made so well — signatures are forged with greater facility, it seems, these days. The art has been perfected. Therefore, sometimes we cannot really say with absolute certainty whether there has been falsification or not, and the solemnizing officer looks trustworthy, and he presents himself as duly authorized, then, the good faith, we feel, should come forth in order to save the validity of the marriage.” xxx xxx. Also, in the same committee hearing, Justice Eduardo Caguioa, another framer of the present Family Code explained, thus: Justice Caguioa: xxx xxx Well, when we say the marriage is void, and then we say “except,” it means that the exception is not void. 202 PERSONS AND FAMILY RELATIONS LAW Art. 35 In other words, it is an exception to the voidability of the marriage. Here is a marriage performed by a solemnizing officer where the parties believe or know that he is a solemnizing officer. But there is no authority of the solemnizing officer, so therefore, it is void. The exception where the marriage is not void is where the parties were made to believe, one or both, that the solemnizing officer has authority. The point of that is this: This is to prevent unscrupulous chauvinistic males from deceiving the girls, because they were made to believe that they are going to be married when marriage is not what they want. All right. So, what do they do? They asked a friend, a notary public, to appear as if he were the solemnizing officer when in fact he is not at all. And the girl believes because it is held in a place that is believable or the person is a very good actor and can be more the judge than the judge himself, the parties believe or the girl believes that he is really authorized. But in that case, we say, “why do you have to go and follow the deception of that male person?” We say that it is a valid marriage even though he has no authority. It is not void. We are not saying it is void, we are saying it is valid, not only as between the parties but everybody. It is valid. It is as if it was solemnized by a person with authority. If we are to take the example of a notary public made by Justice Caguioa as representative of the code committee’s thinking, it would appear that they are inclined to interpret the good faith provision literally. However, Dr. Arturo Tolentino has a different view. He distinguishes between “ignorance of the law” and “mistake of fact.” If the contracting parties go before a person not specifically mentioned by law as having any authority to solemnize a marriage, then the good faith or bad faith of the parties is immaterial because they cannot be excused from being ignorant of the persons authorized by law to solemnize marriage. Article 4 of the Civil Code provides that ignorance of the law excuses no one from compliance therewith. Hence, the marriage will still be void. But if the contracting parties go before a person stated by law as qualified to solemnize a marriage but in fact is not because of non-fulfillment of a requirement by law such as procuring a solemnizer’s license to be able to marry, then the good faith of the parties in believing that the solemnizer had authority is material. Such good faith will validate the marriage because the situation is a mistake of fact which is excusable (Civil Code by Tolentino, Vol. 1, 1983 ed., page 237). NO MARRIAGE LICENSE. As previously discussed elsewhere in this book, a marriage license is a formal requisite the absence of Art. 35 MARRIAGE 203 Void and Voidable Marriages which makes a marriage void. Exceptions, however, are provided for in Articles 27, 28, 29, 30, 31, 32, 33, and 34 of the Family Code. BIGAMOUS OR POLYGAMOUS MARRIAGE. Except those allowed under special laws such as the Muslim Code or under Article 41 of the Family Code, the law prohibits a married man or woman from contracting another bond of union as long as the consort is alive (U.S. v. Ibañez, 13 Phil. 686). Thus, a subsequent marriage contracted by a wife during the life of a former husband, with any person other than such former husband, is illegal and void from the beginning (Carratala v. Samson, 43 Phil. 75). Also, a subsequent marriage, contracted in Hongkong, by a husband who had secured a void Nevada divorce, is bigamous and void (Manila Surety & Fidelity Co., Inc. v. Teodoro, 20 SCRA 463). It is important to note, however, that in a bigamous marriage, the first marriage must have been valid. If the first marriage is in itself void and a subsequent marriage is contracted without a prior judicial declaration of nullity of the first marriage, the subsequent marriage is also void because it violates Article 40 in relation to Articles 52 and 53 of the Family Code. Essentially, Article 40 states that a judicial declaration of nullity must first be obtained before any of the contracting parties is to remarry and, in accordance with Article 52, such judicial declaration of nullity must be recorded with the local civil registrar also before any subsequent marriage. Non-observance of Article 40 in relation to Article 52 shall make the subsequent marriage void pursuant to the express provision of Article 53. In Nicdao Cariño v. Cariño, G.R. No. 132529, February 2, 2001, the Supreme Court said that violation of Article 40 make the subsequent marriage void because it is bigamous. The inaccuracy of this ruling is discussed under Article 40. MISTAKE IN IDENTITY. Under the Civil Code, mistake in identity is an instance of fraud which makes the marriage annullable. Under the new Family Code, however, mistake in identity is a ground for the nullity of the marriage. The oft-given example of mistake in identity is when one of the contracting parties marries the twin of the other party, believing that such twin is his or her lover. This ground goes into the very essentials of a valid marriage as there is complete absence of consent, thereby rendering the marriage void ab initio. The important thing to be remembered here is that the contracting party absolutely did not intend to marry the other, as the same is not the person he or she actually knew before the marriage. Mistake in identity as a ground for nullity covers 204 PERSONS AND FAMILY RELATIONS LAW Art. 36 only those situations in which there has been a mistake on the part of the party seeking the nullification of marriage as to the actual physical identity of the other party. It does not include mistake in the name, the character of the person, or in his or her attributes, his or her age, religion, social standing, pedigree, pecuniary means, temperaments, acquirements, condition in life, or previous habits (See Mckee v. Mckee, 50 ALR 3d 1290 [La App] 262 So 2d 111). Thus, a mistaken belief by one spouse as to the real name of the person he or she married does not indicate that such spouse had married one other than the person she intended to marry as to give a cause of action to nullify the marriage. Also, it has been held that mistake as to identity is not applicable in a situation where the husband had been led to believe that he was marrying a virtuous woman, when in fact she had previously led an immoral life (Delpit v. Young, 51 La Ann 923). VOID UNDER ARTICLE 53. For persons whose marriages have been annulled or declared null and void to be able to validly marry again, they must undertake the liquidation, partition and distribution of their properties, if any, and, only in proper cases, the delivery of the children’s presumptive legitimes and thereafter all these requirements, including the decree of annulment or nullity, should be recorded in the appropriate civil registry and the registries of property. Non-compliance with these requirements will render any subsequent marriage void. Article 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (n) (As amended by Executive Order Number 227 dated July 17, 1987) PSYCHOLOGICAL INCAPACITY. The law does not define what psychological incapacity is and therefore, the determination is left solely with the courts on a case-to-case basis. Determination of psychological incapacity “depends on the facts of the case. Each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts” (Republic v. Dagdag, G.R. No. 109975, February 9, 2001). From the Committee deliberations relative to the drafting of the Family Art. 36 MARRIAGE 205 Void and Voidable Marriages Code, it can be clearly deduced that this absence of definition was intentionally made because the situations contemplated by the law vary from one case to another. The rationale for this want of definition was succinctly explained by Justice Eduardo Caguioa, one of the members of the Civil Code Revision Committee and the main proponent for the incorporation of this provision in the Family Code, during the Congressional Hearing before the Senate Committee on Women and Family Relations on February 3, 1988. Thus, Justice Caguioa stated that — a code should not have so many definitions, because a definition straight-jackets the concept and, therefore, many cases that should go under it are excluded by the definition. That’s why we leave it up to the court to determine the meaning of psychological incapacity. However, this ground must be taken in its proper context and should not be equated with insanity or a total mental inability to function in all aspects of human life. Clearly, the ground is restricted to psychological incapacity “to comply with the essential marital obligations.” The malady or mental disposition of one or both of the spouses must be such as to seriously and effectively prevent them from having a functional and normal marital life clearly conducive to bringing up a healthy personal inter-marital relationship within the family which is necessary for its growth. It must be a psychological illness afflicting a party even before the celebration of the marriage (Perez-Ferraris v. Ferraris, G.R. No. 162368 July 17, 2006). It involves a senseless, protracted, and constant refusal to comply with the essential marital obligations by one or both of the spouses although he, she or they are physically capable of performing such obligations (Chi Ming Tsoi v. Court of Appeals, 78 SCAD 57, 266 SCRA 325). Hence, while a person may be truly very efficient and mentally capable in undertaking a particular profession in life, he or she can still be considered as a completely irresponsible person vis-a-vis his or her married life if he or she spends almost the whole day working and not minding his or her family (Tongol v. Tongol, G.R. No. 157610, October 19, 2007 537 SCRA 135). Also, the fact that a person really loves his or her spouse and children does not constitute a bar to successfully invoke this ground if it is clearly shown that, despite this very authentic feeling of love, he or she is so absolutely indifferent with respect to his or her duties as a father and husband or mother and wife, as the case may be. Indeed, there must be something wrong for one to feel affection and love inside a 206 PERSONS AND FAMILY RELATIONS LAW Art. 36 marital life for another and yet totally inhibited to foster the same. It is indeed a mental disposition. The ground, therefore, does not comprehend any and all forms of mental incapacity so as to preclude the individual from performing other endeavors in life, such as the carrying out of his or her profession or career. The incapacity is clearly limited to his and/ or her failure or disregard to comply with his and/or her essential marital obligations. The spouses simply refuse to perform these obligations although physically capable of doing so. It is not mere stubborn refusal but can be attributed to psychological causes. As Justice Caguioa stated during the committee deliberations relative to this particular ground, psychological incapacity solely refers to the “lack of appreciation of one’s marital obligation” (See Minutes of Civil Code Revision Committee Meeting of August 9, 1986) and that “psychological incapacity does not refer to mental faculties and has nothing to do with consent; it refers to obligations attendant to marriage” (Minutes of the 148th joint Civil Code and Family Law committees held on July 26, 1986, page 10). It does not deal with mental faculties in the sense that he or she or both should necessarily be shown to be insane. While insanity can be a good indicator of psychological incapacity, it is not a pre-requisite for the existence of the ground for nullity under Article 36. In the same vein, the eminent civilist likewise stated: The ground is a valid ground. How can you live with a wife or a husband who cannot perform his obligations with regard to the married life? That would be condemning the other to perpetually support the other party for that (p. 5, Transcript of the Senate Committee on Women and Family Relations during the hearing relative to the Family Code, February 3, 1986). Psychological incapacity, to perform the essential marital obligations, must be present at the time of the marriage ceremony, but can be manifested later on during the marriage. It is considered a ground to nullify a marriage. Such a marriage cannot be cured by cohabitation considering that it is void and, therefore, ratification cannot apply. Indeed, during one of the meetings of the joint Civil Code and Family Law committees and in response to the query: “Will not cohabitation be a defense?” Justice Puno stated that even the bearing of children and cohabitation should not be a sign that the psychological incapacity has been cured (Minutes of the 148th Joint Meeting Art. 36 MARRIAGE 207 Void and Voidable Marriages of the Civil Code and Family Law committees held on July 26, 1986, page 13). The very first case decided by the Supreme Court which dis- cussed the scope and meaning of Article 36 was the case of Santos v. Court of Appeals and Julia Rosario Bedia-Santos, G.R. No. 112019, 58 SCAD 17, promulgated on January 4, 1995. In denying the nul- lity case based on Article 36, the Supreme Court narrated: The present petition for review on certiorari, at the instance of Leouel Santos (“Leouel’’), brings into force the above provision which is now invoked by him. Undaunted by the decisions of the court a quo and the Court of Appeals, Leouel persists in beseeching its application in his attempt to have his marriage with herein private respondent, Julia Rosario Bedia- Santos (“Julia’’), declared a nullity. It was in Iloilo City where Leouel, who then held the rank of First Lieutenant in the Philippine Army, first met Julia. The meeting later proved to be an eventful day for Leouel and Julia. On 20 September 1986, the two exchanged vows before Municipal Trial Court Judge Cornelio G. Lazaro of Iloilo City, followed, shortly thereafter, by a church wedding. Leouel and Julia lived with the latter’s parents at the J. Bedia Compound, La Paz, Iloilo City. On 18 July 1987, Julia gave birth to a baby boy, who was christened Leouel Santos, Jr. The ecstasy, however, did not last long. It was bound to happen, Leouel averred, because of the frequent interference by Julia’s parents into the young spouses’ family affairs. Occasionally, the couple would also start a “quarrel’’ over a number of other things, like when and where the couple should start living independently from Julia’s parents or whenever Julia would express resentment on Leouel’s spending a few days with his own parents. On 18 May 1988, Julia finally left for the United States of America to work as a nurse, despite Leouel’s pleas to so dissuade her. Seven months after her departure, or on 01 January 1989, Julia called up Leouel for the first time by long distance telephone. She promised to return home upon the expiration of her contract in July 1989. She never did. When Leouel got a chance to visit the United States where he underwent a training program under the auspices of the Armed Forces of the Philippines from 10 April up to 25 August 1990, he desperately tried to locate, or to somehow get in touch with, Julia but all his efforts were of no avail. Having failed to get Julia to somehow come home, Leouel filed with the Regional Trial Court of Negros Oriental, Branch 208 PERSONS AND FAMILY RELATIONS LAW Art. 36 30, a complaint for “Voiding of Marriage Under Article 36 of the Family Code’’ (docketed, Civil Case No. 9814). Summons was served by publication in a newspaper of general circulation in Negros Oriental. On 31 May 1991, respondent Julia, in her answer (through counsel), opposed the complaint and denied its allegations, claiming, in main, that it was the petitioner who had, in fact, been irresponsible and incompetent. A possible collusion between the parties to obtain a decree of nullity of their marriage was ruled out by the Office of the Provincial Prosecutor (in its report to the court). On 25 October 1991, after pre-trial conferences had repeatedly been set, albeit unsuccessfully, by the court, Julia ultimately filed a manifestation, stating that she would neither appear nor submit evidence. On 06 November 1991, the court a quo finally dismissed the complaint for lack of merit. Leouel appealed to the Court of Appeals. The latter affirmed the decision of the trial court. The petition should be denied not only because of its non- compliance with Circular 28-91, which requires a certification of non-forum shopping, but also for its lack of merit. Leouel argues that the failure of Julia to return home, or at the very least to communicate with him, for more than five years are circumstances that clearly show her being psychologically incapacitated to enter into married life. In his own words, Leouel asserts: “x x x (T)here is no love, there is no affection for (him) because respondent Julia Rosario Bedia- Santos failed all these years to communicate with the petitioner. A wife who does not care to inform her husband about her whereabouts for a period of five years, more or less, is psychologically incapacitated to comply with the essential marital obligations of marriage. Respondent Julia Rosario Bedia-Santos is one such wife.’’ The Family Code did not define the term “psychological incapacity.’’ The deliberations during the sessions of the Family Code Revision Committee, which had drafted the Code, can, however, provide an insight on the import of the provision. “Article 35. — The following marriages shall be void from the beginning: Art. 36 MARRIAGE 209 Void and Voidable Marriages ‘x x x xxx xxx ‘Article 36. — x x x ‘(7) Those marriages contracted by any party who, at the time of the celebration, was wanting in the sufficient use of reason or judgment to understand the essential nature of marriage or was psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration.’ “On subparagraph (7), which as lifted from the Canon Law, Justice (Jose B.L.) Reyes suggested that they say ‘wanting in sufficient use’ instead of ‘wanting in the sufficient use,’ but Justice (Eduardo) Caguioa preferred to say ‘wanting in the sufficient use.’ On the other hand, Justice Reyes proposed that they say ‘wanting in sufficient reason.’ Justice Caguioa, however, pointed out that the idea is that one is not lacking in judgment but that he is lacking in the exercise of judgment. He added that lack of judgment would make the marriage voidable. Judge (Alicia) Sempio-Diy remarked that lack of judgment is more serious than insufficient use of judgment and yet, the latter would make the marriage null and void and the former, only voidable. Justice Caguioa suggested that subparagraph (7) be modified to read: “‘That contracted by any party who, at the time of the celebration, was psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration.’ “Justice Caguioa explained that the phrase ‘was wanting in sufficient use of reason or judgment to understand the essential nature of marriage’ refers to defects in the mental faculties vitiating consent, which is not the idea in subparagraph (7), but lack of appreciation of one’s marital obligations. “Judge Diy raised the question: Since ‘insanity’ is also a psychological or mental incapacity, why is ‘insanity’ only a ground for annulment and not for declaration of nullity? In reply, Justice Caguioa explained that in insanity, there is the appearance of consent, which is the reason why it is a ground for voidable marriages, while subparagraph (7) does not refer to consent but to the very essence of marital obligations. “Prof. (Araceli) Baviera suggested that in subparagraph (7), the word ‘mentally’ be deleted, with which Justice Caguioa 210 PERSONS AND FAMILY RELATIONS LAW Art. 36 concurred. Judge Diy, however, preferred to retain the word ‘mentally.’ “Justice Caguioa remarked that subparagraph (7) refers to psychological impotence. Justice (Ricardo) Puno stated that sometimes a person may be psychologically impotent with one but not with another. Justice (Leonor Ines) Luciano said that it is called selective impotency. “Dean (Fortunato) Gupit stated that the confusion lies in the fact that in inserting the Canon Law annulment in the Family Code, the Committee used a language which describes a ground for voidable marriages under the Civil Code. Justice Caguioa added that in Canon Law, there are no voidable marriages. Dean Gupit said that this is precisely the reason why they should make a distinction. “Justice Puno remarked that in Canon Law, the defects in marriage cannot be cured. “Justice Reyes pointed out that the problem is … Why is ‘insanity’ a ground for voidable marriage, while ‘psychological or mental incapacity’ is a ground for void ab initio marriages? In reply, Justice Caguioa explained that insanity is curable and there are lucid intervals, while psychological incapacity is not. “On another point, Justice Puno suggested that the phrase ‘even if such lack or incapacity is made manifest’ be modified to read ‘even if such lack or incapacity becomes manifest.’ “Justice Reyes remarked that in insanity, at the time of the marriage, it is not apparent. “Justice Caguioa stated that there are two interpretations of the phrase ‘psychologically or mentally incapacitated’: in the first one, there is vitiation of consent because one does not know all the consequences of the marriages, and if he had known these completely, he might not have consented to the marriage. “x x x xxx xxx “Prof. Bautista stated that he is in favor of making psychological incapacity a ground for voidable marriages since otherwise it will encourage one who really understood the consequences of marriage to claim that he did not and to make excuses for invalidating the marriage by acting as if he did not understand the obligations of marriage. Dean Gupit added that it is a loose way of providing for divorce. “x x x xxx xxx “Justice Caguioa explained that his point is that in the case of incapacity by reason of defects in the mental faculties, Art. 36 MARRIAGE 211 Void and Voidable Marriages which is less than insanity, there is a defect in consent and, therefore, it is clear that it should be a ground for voidable marriage because there is the appearance of consent and it is capable of convalidation for the simple reason that there are lucid intervals and there are cases when the insanity is curable. He emphasized that psychological incapacity does not refer to mental faculties and has nothing to do with consent; it refers to obligations attendant to marriage. “x x x xxx xxx “On psychological incapacity, Prof. (Flerida Ruth P.) Romero inquired if they do not consider it as going to the very essence of consent. She asked if they are really removing it from consent. In reply, Justice Caguioa explained that ultimately, consent in general is affected but he stressed that his point is that it is not principally a vitiation of consent since there is a valid consent. He objected to the lumping together of the validity of the marriage celebration and the obligations attendant to marriage, which are completely different from each other, because they require a different capacity, which is eighteen years of age, for marriage but in contract, it is different. Justice Puno, however, felt that psychological incapacity is still a kind of vice of consent and that it should not be classified as a voidable marriage, which is incapable of convalidation; it should be convalidated but there should be no prescription. In other words, as long as the defect has not been cured, there is always a right to annul the marriage and if the defect has been really cured, it should be a defense in the action for annulment so that when the action for annulment is instituted, the issue can be raised that actually, although one might have been psychologically incapacitated at the time the action is brought, it is no longer true that he has no concept of the consequence of marriage. ‘‘Prof. (Esteban) Bautista raised the question: Will not cohabitation be a defense? In response, Justice Puno stated that even the bearing of children and cohabitation should not be a sign that psychological incapacity has been cured. “Prof. Romero opined that psychological incapacity is still insanity of a lesser degree. Justice Luciano suggested that they invite a psychiatrist, who is the expert on this matter. Justice Caguioa, however, reiterated that psychological incapacity is not a defect in the mind but in the understanding of the consequences of marriage, and, therefore, a psychiatrist will not be of help. “Prof. Bautista stated that, in the same manner that there is a lucid interval in insanity, there are also momentary 212 PERSONS AND FAMILY RELATIONS LAW Art. 36 periods when there is an understanding of the consequences of marriage. Justice Reyes and Dean Gupit remarked that the ground of psychological incapacity will not apply if the marriage was contracted at the time when there is understanding of the consequences of marriage. “x x x xxx xxx “Judge Diy proposed that they include physical incapacity to copulate among the grounds for void marriages. Justice Reyes commented that in some instances, the impotence is only temporary and only with respect to a particular person. Judge Diy stated that they can specify that it is incurable. Justice Caguioa remarked that the term ‘incurable’ has a different meaning in law and in medicine. Judge Diy stated that ‘psychological incapacity’ can also be cured. Justice Caguioa, however, pointed out that ‘psychological incapacity’ is incurable. “Justice Puno observed that under the present draft provision, it is enough to show that at the time of the celebration of the marriage, one was psychologically incapacitated so that later on if already he can comply with the essential marital obligations, the marriage is still void ab initio. Justice Caguioa explained that since in divorce the psychological incapacity may occur after the marriage, in void marriages, it has to be at the time of the celebration of marriage. He, however, stressed that the idea in the provision is that at the time of the celebration of the marriage, one is psychologically incapacitated to comply with the essential marital obligations, which incapacity continues and later becomes manifest. “Justice Puno and Judge Diy, however, pointed out that it is possible that after the marriage, one’s psychological incapacity becomes manifest but later on he is cured. Justice Reyes and Justice Caguioa opined that the remedy in this case is to allow him to remarry. “x x x xxx xxx “Justice Puno formulated the next Article as follows: “ ‘Article 37. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential obligations of marriage shall likewise be void from the beginning even if such incapacity becomes manifest after its solemnization.’ “Justice Caguioa suggested that ‘even if’ be substituted with ‘although.’ On the other hand, Prof. Bautista proposed that the clause ‘although such incapacity becomes manifest after its Art. 36 MARRIAGE 213 Void and Voidable Marriages solemnization’ be deleted since it may encourage one to create the manifestation of psychological incapacity. Justice Caguioa pointed out that, as in other provisions, they cannot argue on the basis of abuse. “Judge Diy suggested that they also include mental and physical incapacities, which are lesser in degree than psycho- logical incapacity. Justice Caguioa explained that mental and physical incapacities are vices of consent, while psychological incapacity is not a species of vices of consent. “Dean Gupit read what Bishop Cruz said on the matter in the minutes of their February 9, 1984 meeting: “ ‘On the third ground, Bishop Cruz indicated that the phrase ‘psychological or mental impotence’ is an invention of some churchmen who are moralists but not canonists, that is why it is considered a weak phrase. He said that the Code of Canon Law would rather express it as ‘psychological or mental incapacity to discharge . . .’ “Justice Caguioa remarked that they deleted the word ‘mental’ precisely to distinguish it from vice of consent. He explained that ‘psychological incapacity’ refers to lack of understanding of the essential obligations of marriage. “Justice Puno reminded the members that at the last meeting, they have decided not to go into the classification of ‘psychological incapacity’ because there was a lot of debate on it and that this is precisely the reason why they classified it as a special case. “At this point, Justice Puno remarked that, since there have been annulments of marriages arising from psychological incapacity, Civil Law should not reconcile with Canon Law because it is a new ground even under Canon Law. “Prof. Romero raised the question: With this common provision in Civil Law and in Canon Law, are they going to have a provision in the Family Code to the effect that marriages annulled or declared void by the church on the ground of psychological incapacity is automatically annulled in Civil Law? The other members replied negatively. “Justice Puno and Prof. Romero inquired if Article 37 should be retroactive or prospective in application. “Judge Diy opined that she was for its retroactivity because it is their answer to the problem of church annulments of marriages, which are still valid under the Civil Law. On the 214 PERSONS AND FAMILY RELATIONS LAW Art. 36 other hand, Justice Reyes and Justice Puno were concerned about the avalanche of cases. “Dean Gupit suggested that they put the issue to a vote, which the Committee approved. “The members voted as follows: “(1) Justice Reyes, Justice Puno and Prof. Romero were for prospectivity. “(2) Justice Caguioa, Judge Diy, Dean Gupit, Prof. Bautista and Director Eufemio were for retroactivity. “(3) Prof. Baviera abstained. “Justice Caguioa suggested that they put in the prescriptive period of ten years within which the action for declaration of nullity of the marriage should be filed in court. The Committee approved the suggestion.’’ It could well be that, in sum, the Family Code Revision Committee in ultimately deciding to adopt the provision with less specificity than expected has, in fact, so designed the law as to allow some resiliency in its application. Mme. Justice Alicia V. Sempio-Diy, a member of the Code Committee, has been quoted by Mr. Justice Josue N. Bellosillo in Salita v. Hon. Magtolis (G.R. No. 106429, June 13, 1994, 52 SCAD 208), thus: “The Committee did not give any examples of psychological incapacity for fear that the giving of examples would limit the applicability of the provision under the principle of ejusdem generis. Rather, the Committee would like the judge to interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law.’’ A part of the provision is similar to Canon 1095 of the New Code of Canon Law, which reads: “Canon 1095. They are incapable of contracting marriage: 1. who lack sufficient use of reason; 2. who suffer from a grave defect of discre- tion of judgment concerning essential matrimonial rights and duties, to be given and accepted mutu- ally; Art. 36 MARRIAGE 215 Void and Voidable Marriages 3. who for causes of psychological nature are unable to assume the essential obligations of marriage.’’ (Underscoring supplied.) Accordingly, although neither decisive nor even perhaps all that persuasive for having no juridical or secular effect, the jurisprudence under Canon Law prevailing at the time of the Code’s enactment, nevertheless, cannot be dismissed as impertinent for its value as an aid, at least, to the interpretation or construction of the codal provision. One author, Ladislas Orsy, S.J., in his treatise, giving an account on how the third paragraph of Canon 1095 has been framed, states: “The history of the drafting of this canon does not leave any doubt that the legislator intended, indeed, to broaden the rule. A strict and narrow norm was proposed first: ‘Those who cannot assume the essential obligations of marriage because of a grave psycho-sexual anomaly (ob gravem anomaliam psychosexualem) are unable to contract marriage (cf. SCH/1975, canon 297, a new canon, novus); then a broader one followed: ‘. . . because of a grave psychological anomaly (ob gravem anomaliam psychicam) . . .’ (cf. SCH/1980, canon 1049); then the same wording was retained in the text submitted to the Pope (cf. SCH/1982, canon 1095, 3); finally, a new version was promulgated: ‘because of causes of a psychological nature (ob causas naturae psychiae).’ “So the progress was from psycho-sexual to psychological anomaly, then the term anomaly was altogether eliminated. It would be, however, incorrect to draw the conclusion that the cause of the incapacity need not be some kind of psychological disorder; after all, normal and healthy person should be able to assume the ordinary obligations of marriage.’’ Fr. Orsy concedes that the term “psychological incapacity’’ defies any precise definition since psychological causes can be of an infinite variety. In a book entitled “Canons and Commentaries on Marriage,’’ written by Ignatius Gramunt, Javier Hervada and LeRoy Wauck, the following explanation appears: This incapacity consists of the following . . . (a) a true inability to commit oneself to the essentials 216 PERSONS AND FAMILY RELATIONS LAW Art. 36 of marriage. Some psychosexual disorders and other disorders of personality can be the psychic cause of this defect, which is here described in legal terms. This particular type of incapacity consists of a real inability to render what is due by the contract. This could be compared to the incapacity of a farmer to enter a binding contract to deliver the crops which he cannot possibly reap; (b) this inability to commit oneself must refer to the essential obligations of marriage: the conjugal act, the community of life and love, the rendering of mutual help, the procreation and education of offspring; (c) the inability must be tantamount to a psychological abnormality. The mere difficulty of assuming these obligations, which could be overcome by normal effort, obviously does not constitute incapacity. The canon contemplates a true psychological disorder which incapacitates a person from giving what is due (cf. John Paul II, Address to R. Rota, Feb. 5, 1987). However, if the marriage is to be declared invalid under this incapacity, it must be proved not only that the person is afflicted by a psychological defect, but that the defect did in fact deprive the person, at the moment of giving consent, of the ability to assume the essential duties of marriage and, consequently, of the possibility of being bound by these duties. Justice Sempio-Diy cites with approval the work of Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila (Branch I), who opines that psychological incapacity must be characterized by: (a) gravity, (b) juridical antecedence, and (c) incurability. The incapacity must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in marriage; it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved. It should be obvious, looking at all the foregoing dis- quisitions, including, and most importantly, the deliberations of the Family Code Revision Committee itself, that the use of the phrase “psychological incapacity’’ under Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances (cited in Fr. Artemio Baluma’s “Void and Voidable Marriages in the Family Code and Their Parallels in Canon Art. 36 MARRIAGE 217 Void and Voidable Marriages Law,’’ quoting from the Diagnostic Statistical Manual of Mental Disorder by the American Psychiatric Association; Edward Hudson’s “Handbook II for Marriage Nullity Cases’’). Article 36 of the Family Code cannot be taken and construed independently of, but must stand in conjunction with, existing precepts in our law on marriage. Thus correlated, “psychological incapacity’’ should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of “psychological incapacity’’ to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be “legitimate.’’ The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or con- cealment of drug addiction, habitual alcoholism, homosexual- ity or lesbianism, merely render the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only dur- ing the marriage, they become mere grounds for legal separa- tion under Article 55 of the Family Code. These provisions of the Code, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity. Until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree, extent, and other conditions of that incapacity must, in every case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity is peremptorily decreed. The well-considered opinions of psychiatrists, psychologists, and persons with expertise in psychological disciplines might be helpful or even desirable. Marriage is not just an adventure but a lifetime commit- ment. We should continue to be reminded that innate in our 218 PERSONS AND FAMILY RELATIONS LAW Art. 36 society, then enshrined in our Civil Code, and even now still indelible in Article 1 of the Family Code, is that — “Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.’’ (Underscoring supplied) Our Constitution is no less emphatic: “Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State’’ (Article XV, 1987 Constitution). The above provisions express so well and so distinctly the basic nucleus of our laws on marriage and the family, and they are no doubt the tenets we still hold on to. The factual settings in the case at bench, in no measure at all, can come close to the standards required to decree a nullity of marriage. Undeniably and understandably, Leouel stands aggrieved, even desperate, in his present situation. Regrettably, neither law nor society itself can always provide all the specific answers to every individual problem. WHEREFORE, the petition is DENIED. CONSTITUTIONAL CONSIDERATION. In the case of Antonio v. Reyes, G.R. No. 155880, March 10, 2006, the Supreme Court discussed the proper perspective by which Article 36 must be implemented. Pertinently, it stated: xxx All too frequently, this Court and lower courts, in denying petitions of the kind, have favorably cited Sections 1 and 2, Article XV of the Constitution, which respectively state that “[t]he State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total developmen[t],” and that “[m]arriage, Art. 36 MARRIAGE 219 Void and Voidable Marriages as an inviolable social institution, is the foundation of the family and shall be protected by the State.” These provisions highlight the importance of the family and the constitutional protection accorded to the institution of marriage. But the Constitution itself does not establish the para- meters of state protection to marriage as a social institution and the foundation of the family. It remains the province of the legislature to define all legal aspects of marriage and prescribe the strategy and the modalities to protect it, based on whatever socio-political influences it deems proper, and subject of course to the qualification that such legislative enactment itself adheres to the Constitution and the Bill of Rights. This being the case, it also falls on the legislature to put into operation the constitutional provisions that protect marriage and the family. This has been accomplished at present through the enactment of the Family Code, which defines marriage and the family, spells out the corresponding legal effects, imposes the limitations that affect married and family life, as well as prescribes the grounds for declaration of nullity and those for legal separation. While it may appear that the judicial denial of a petition for declaration of nullity is reflective of the constitutional mandate to protect marriage, such action in fact merely enforces a statutory definition of marriage, not a constitutionally ordained decree of what marriage is. Indeed, if circumstances warrant, Sections 1 and 2 of Article XV need not be the only constitutional considerations to be taken into account in resolving a petition for declaration of nullity. Indeed, Article 36 of the Family Code, in classifying marriages contracted by a psychologically incapacitated person as a nullity, should be deemed as an implement of this constitutional protection of marriage. Given the avowed State interest in promoting marriage as the foundation of the family, which in turn serves as the foundation of the nation, there is a corresponding interest for the State to defend against marriages ill-equipped to promote family life. Void ab initio marriages under Article 36 do not further the initiatives of the State concerning marriage and family, as they promote wedlock among persons who, for reasons independent of their will, are not capacitated to understand or comply with the essential obligations of marriage. PROVING PSYCHOLOGICAL INCAPACITY. Unlike the other grounds for declaration of nullity and the grounds for annul- ment and legal separation which generally constitute clearly defin- able physical acts or situations such as impotency, non-age (below 220 PERSONS AND FAMILY RELATIONS LAW Art. 36 18 years of age), physical violence, infidelity, etc., psychological in- capacity is psychosomatic and deals with a state of mind and thus, can only be proven by indicators or external manifestations of the person claimed to be psychologically incapacitated. These indicators must be clearly alleged in the complaint filed in court. Pertinently, in a case where the plaintiff made a general description in the com- plaint of these indicators by essentially repeating the wordings of Article 36, the Supreme Court ruled that the following allegation made in a bill of particulars is sufficient as averring ultimate facts constituting psychological incapacity, to wit: x x x at the time of their marriage, respondent x x x was psychologically incapacitated to comply with the essential marital obligations of their marriage in that she was unable to understand and accept the demands made by his profession — that of newly qualified doctor of Medicine — upon petitioner’s time and efforts so that she frequently complained of his lack of attention to her even to her mother, whose intervention caused petitioner to lose his job (Salita v. Hon. Delilah Magtolis, et al., G.R. No. 106429, June 13, 1994, 52 SCAD 208). Also, as a start, one should see if the husband or wife observes his or her duty as such towards his or her spouse, the children, and the family. Article 68 of the Family Code provides that “the husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.” Procreation is likewise an essential obligation. Evidently, one of the essential marital obligations under the Family Code is to procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage. Constant non-fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage (Chi Ming Tsoi v. Court of Appeals, 78 SCAD 57, 266 SCRA 324). Articles 220, 221, and 225 of the Code likewise enumerate the rights, duties, and liabilities of parents relative to their parental authority over their children. Failure to comply with these rights, duties, and obligations is a good indicator of psychological incapacity to perform the essential marital obligation. The fear of a wife, who is afraid of children, to engage in sexual intercourse is an indicator of psychological incapacity (Minutes of the Civil Law and Family Code committees held on October 14, 1983, page 3). Art. 36 MARRIAGE 221 Void and Voidable Marriages If a spouse, although physically capable but simply refuses to perform his or her essential marital obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity (Chi Ming Tsoi v. Court of Appeals, 78 SCAD 57, 266 SCRA 324). Unreasonable attachment by the spouse to his or her family (meaning his or her father and mother, brothers and sisters) or to the spouse’s friends or “barkada” such that the importance and de- votion which should be given to his or her own spouse and children are subordinated to the said attachment is also a good indicator of psychological incapacity. Actual breakdown of family life character- ized by separation of husband and wife is also a good indicator of the presence of this particular ground. However, separation or abandon- ment alone is not conclusive proof of psychological incapacity (Re- public v. Quintero Hamano, 428 SCRA 735). Mere isolated idiosyncrasies of a spouse are not of themselves manifestations of psychological incapacity to perform the essential marital obligations. The manifestations of psychological incapacity must be attributed to a psychological illness and not merely physical illness (Bier v. Bier, G.R. No. 173294, February 27, 2008, 547 SCRA 123, Navales v. Navales, G.R. No. 167523, June 27, 2008). Psychological incapacity cannot be mere refusal or neglect to comply with the obligations, it must be downright incapacity to perform (Republic v. Cabantug-Baguio, G.R. No.171042, June 30, 2008). Also mere incompatibility and irreconcilable differences are not enough. (Aspillaga v. Aspillaga, G.R. No. 170925, October 26, 2009). The totality of the marriage life as affected by the gross irresponsibility and utter disregard by the subject spouse toward family life as manifested by his or her actions must be taken into consideration (Laurena v. Court of Appeals, G.R. No. 159220, September 22, 2008). Significantly, it must also be noted that this ground is a very personal and limited one. It does not mean that just because a person is psychologically incapacitated to perform his or her marital obligations with his or her present spouse, this would also be the case with any other person other than his or her present spouse. The fact that the person alleged to be psychologically incapaci- tated is a foreigner does not negate the existence of such incapacity. The Supreme Court in Republic v. Hamano, 428 SCRA 735 stated 222 PERSONS AND FAMILY RELATIONS LAW Art. 36 that “the medical and clinical rules to determine psychological inca- pacity were formulated on the basis of studies of human behavior in general. Hence, the norms used for determining psychological inca- pacity should apply to any person regardless of nationality.” In Te v. Te, G.R. No. 161793, February 13, 2009, the Supreme Court granted nullity of marriage as it was shown that the petitioner was suffering from dependent personality disorder and the respondent was also suffering from narcissistic and anti-social personality disorder, both consistent with psychological incapacity to perform the essential marital obligation. The parties’ whirlwind relationship lasted more or less six (6) months. They met in January 1996, eloped in March, exchanged marital vows in May, and parted ways in June. The psychologist who provided expert testimony found both parties psychologically incapacitated. Petitioner’s behavioral pattern falls under the classification of dependent personality disorder, and respondent’s, that of the narcissistic and antisocial personality disorder. By the very nature of Article 36, courts, despite having the primary task and burden of decision-making, must not discount but, instead, must consider as decisive evidence the expert opinion on the psychological and mental temperaments of the parties. Justice Romero explained this in Molina, as follows: Furthermore, and equally significant, the professional opinion of a psychological expert became increasingly important in such cases. Data about the person’s entire life, both before and after the ceremony, were presented to these experts and they were asked to give professional opinions about a party’s mental capacity at the time of the wedding. These opinions were rarely challenged and tended to be accepted as decisive evidence of lack of valid consent. The Church took pains to point out that its new openness in this area did not amount to the addition of new grounds for annulment, but rather was an accommodation by the Church to the advances made in psychology during the past decades. There was now the expertise to provide the all-important connecting link between a marriage breakdown and premarital causes. During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to that of a covenant. The result of this was that it could no longer be assumed in annulment cases that a person who could intellectually Art. 36 MARRIAGE 223 Void and Voidable Marriages understand the concept of marriage could necessarily give valid consent to marry. The ability to both grasp and assume the real obligations of a mature, lifelong commitment are now considered a necessary prerequisite to valid matrimonial consent. Rotal decisions continued applying the concept of incipient psychological incapacity, “not only to sexual anomalies but to all kinds of personality disorders that incapacitate a spouse or both spouses from assuming or carrying out the essential obligations of marriage. For marriage . . . is not merely cohabitation or the right of the spouses to each other’s body for heterosexual acts, but is, in its totality the right to the community of the whole of life; i.e., the right to a developing lifelong relationship. Rotal decisions since 1973 have refined the meaning of psychological or psychic capacity for marriage as presupposing the development of an adult personality; as meaning the capacity of the spouses to give themselves to each other and to accept the other as a distinct person; that the spouses must be ‘other oriented’ since the obligations of marriage are rooted in a self-giving love; and that the spouses must have the capacity for interpersonal relationship because marriage is more than just a physical reality but involves a true intertwining of personalities. The fulfillment of the obligations of marriage depends, according to Church decisions, on the strength of this interpersonal relationship. A serious incapacity for interpersonal sharing and support is held to impair the relationship and consequently, the ability to fulfill the essential marital obligations. The marital capacity of one spouse is not considered in isolation but in reference to the fundamental relationship to the other spouse. Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital relationship: “The courts consider the following elements crucial to the marital commitment: (1) a permanent and faithful commitment to the marriage partner; (2) openness to children and partner; (3) stability; (4) emotional maturity; (5) financial responsibility; (6) an ability to cope with the ordinary stresses and strains of marriage, etc.” Fr. Green goes on to speak about some of the psychological conditions that might lead to the failure of a marriage: “At stake is a type of constitutional impairment precluding conjugal communion even with the best intentions of the parties. Among the psychic factors possibly giving rise to his or her inability to fulfill marital obligations are the following: (1) antisocial personality with its fundamental lack of loyalty to persons or sense of moral values; (2) hyperesthesia, where the individual has no real freedom of sexual choice; (3) the 224 PERSONS AND FAMILY RELATIONS LAW Art. 36 inadequate personality where personal responses consistently fall short of reasonable expectations. xxxx The psychological grounds are the best approach for anyone who doubts whether he or she has a case for an annulment on any other terms. A situation that does not fit into any of the more traditional categories often fits very easily into the psychological category. As new as the psychological grounds are, experts are already detecting a shift in their use. Whereas originally the emphasis was on the parties’ inability to exercise proper judgment at the time of the marriage (lack of due discretion), recent cases seem to be concentrating on the parties’ incapacity to assume or carry out their responsibilities and obligations as promised (lack of due competence). An advantage to using the ground of lack of due competence is that at the time the marriage was entered into civil divorce and breakup of the family almost always is proof of someone’s failure to carry out marital responsibilities as promised at the time the marriage was entered into.” Hernandez v. Court of Appeals emphasizes the importance of presenting expert testimony to establish the precise cause of a party’s psychological incapacity, and to show that it existed at the inception of the marriage. And as Marcos v. Marcos asserts, there is no requirement that the person to be declared psychologically incapacitated be personally examined by a physician, if the totality of evidence presented is enough to sustain a finding of psychological incapacity. Verily, the evidence must show a link, medical or the like, between the acts that manifest psychological incapacity and the psychological disorder itself. This is not to mention, but we mention nevertheless for emphasis, that the presentation of expert proof presupposes a thorough and in-depth assessment of the parties by the psychologist or expert, for a conclusive diagnosis of a grave, severe and incurable presence of psychological incapacity. Parenthetically, the Court, at this point, finds it fitting to suggest the inclusion in the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, an option for the trial judge to refer the case to a court-appointed psychologist/expert for an independent assessment and evaluation of the psychological state of the parties. This will assist the courts, who are no experts in the field of psychology, to arrive at an intelligent and judicious determination of the Art. 36 MARRIAGE 225 Void and Voidable Marriages case. The rule, however, does not dispense with the parties’ prerogative to present their own expert witnesses. Going back, in the case at bench, the psychological assess- ment, which we consider as adequate, produced the findings that both parties are afflicted with personality disorders—to repeat, dependent personality disorder for petitioner, and nar- cissistic and antisocial personality disorder for respondent. We note that The Encyclopedia of Mental Health discusses person- ality disorders as follows — A group of disorders involving behaviors or traits that are characteristic of a person’s recent and long-term functioning. Patterns of perceiving and thinking are not usually limited to isolated episodes but are deeply ingrained, inflexible, maladaptive and severe enough to cause the individual mental stress or anxieties or to interfere with interpersonal relationships and normal functioning. Personality disorders are often recognizable by adolescence or earlier, continue through adulthood and become less obvious in middle or old age. An individual may have more than one personality disorder at a time. The common factor among individuals who have perso- nality disorders, despite a variety of character traits, is the way in which the disorder leads to pervasive problems in social and occupational adjustment. Some individuals with personality disorders are perceived by others as overdramatic, paranoid, obnoxious or even criminal, without an awareness of their behaviors. Such qualities may lead to trouble getting along with other people, as well as difficulties in other areas of life and often a tendency to blame others for their problems. Other individuals with personality disorders are not unpleasant or difficult to work with but tend to be lonely, isolated or dependent. Such traits can lead to interpersonal difficulties, reduced self-esteem and dissatisfaction with life. Causes of Personality Disorders. Different mental health viewpoints propose a variety of causes of personality disorders. These include Freudian, genetic factors, neurobiologic theories and brain wave activity. Freudian Sigmund Freud believed that fixation at certain stages of development led to certain personality types. Thus, some disorders as described in the Diagnostic and Statistical Manual of Mental Disorders (3d ed., rev.) are derived from his oral, anal and phallic character types. Demanding and dependent behavior (dependent and passive-aggressive) was thought to derive from fixation at the oral stage. Characteristics of obsessionality, rigidity and emotional aloofness were thought 226 PERSONS AND FAMILY RELATIONS LAW Art. 36 to derive from fixation at the anal stage; fixation at the phallic stage was thought to lead to shallowness and an inability to engage in intimate relationships. However, later researchers have found little evidence that early childhood events or fixation at certain stages of development lead to specific personality patterns. Genetic Factors. Researchers have found that there may be a genetic factor involved in the etiology of antisocial and borderline personality disorders; there is less evidence of in- heritance of other personality disorders. Some family, adoption and twin studies suggest that schizotypal personality may be related to genetic factors. Neurobiologic Theories. In individuals who have borderline personality, researchers have found that low cerebrospinal fluid 5-hydroxyindoleacetic acid (5-HIAA) negatively correlated with measures of aggression and a past history of suicide attempts. Schizotypal personality has been associated with low platelet monoamine oxidase (MAO) activity and impaired smooth pursuit eye movement. Brain Wave Activity. Abnormalities in electroencepha- lograph (EEG) have been reported in antisocial personality for many years; slow wave is the most widely reported abnormality. A study of borderline patients reported that 38 percent had at least marginal EEG abnormalities, compared with 19 percent in a control group. Types of Disorders. According to the American Psychi- atric Association’s Diagnostic and Statistical Manual of Mental Disorders (3d ed., rev., 1987), or DSM-III-R, personality disor- ders are categorized into three major clusters: Cluster A: Paranoid, schizoid and schizotypal personality disorders. Individuals who have these disorders often appear to have odd or eccentric habits and traits. Cluster B: Antisocial, borderline, histrionic and narcissistic personality disorders. Individuals who have these disorders often appear overly emotional, erratic and dramatic. Cluster C: Avoidant, dependent, obsessive-compulsive and passive-aggressive personality disorders. Individuals who have these disorders often appear anxious or fearful. The DSM-III-R also lists another category, “personality disorder not otherwise specified,” that can be used for other specific personality disorders or for mixed conditions that do not qualify as any of the specific personality disorders. Art. 36 MARRIAGE 227 Void and Voidable Marriages Individuals with diagnosable personality disorders usually have long-term concerns, and thus therapy may be long-term. Dependent personality disorder is characterized in the following manner — A personality disorder characterized by a pattern of dependent and submissive behavior. Such individuals usually lack self-esteem and frequently belittle their capabilities; they fear criticism and are easily hurt by others’ comments. At times they actually bring about dominance by others through a quest for overprotection. Dependent personality disorder usually begins in early adulthood. Individuals who have this disorder may be unable to make everyday decisions without advice or reassurance from others, may allow others to make most of their important decisions (such as where to live), tend to agree with people even when they believe they are wrong, have difficulty starting projects or doing things on their own, volunteer to do things that are demeaning in order to get approval from other people, feel uncomfortable or helpless when alone and are often preoccupied with fears of being abandoned. and antisocial personality disorder described, as follows — Characteristics include a consistent pattern of behavior that is intolerant of the conventional behavioral limitations imposed by a society, an inability to sustain a job over a period of years, disregard for the rights of others (either through exploitiveness or criminal behavior), frequent physical fights and, quite commonly, child or spouse abuse without remorse and a tendency to blame others. There is often a façade of charm and even sophistication that masks disregard, lack of remorse for mistreatment of others and the need to control others. Although characteristics of this disorder describe criminals, they also may befit some individuals who are prominent in business or politics whose habits of self-centeredness and disregard for the rights of others may be hidden prior to a public scandal. During the 19th century, this type of personality disorder was referred to as moral insanity. The term described immoral, guiltless behavior that was not accompanied by impairments in reasoning. According to the classification system used in the Diag- nostic and Statistical Manual of Mental Disorders (3d ed., rev. 1987), anti-social personality disorder is one of the four “dra- 228 PERSONS AND FAMILY RELATIONS LAW Art. 36 matic” personality disorders, the others being borderline, his- trionic and narcissistic. The seriousness of the diagnosis and the gravity of the disorders considered, the Court, in this case, finds as decisive the psychological evaluation made by the expert witness; and, thus, rules that the marriage of the parties is null and void on ground of both parties’ psychological incapacity. We further consider that the trial court, which had a first-hand view of the witnesses’ deportment, arrived at the same conclusion. Indeed, petitioner, who is afflicted with dependent per- sonality disorder, cannot assume the essential marital obliga- tions of living together, observing love, respect and fidelity and rendering help and support, for he is unable to make everyday decisions without advice from others, allows others to make most of his important decisions (such as where to live), tends to agree with people even when he believes they are wrong, has difficulty doing things on his own, volunteers to do things that are demeaning in order to get approval from other people, feels uncomfortable or helpless when alone and is often preoccupied with fears of being abandoned. As clearly shown in this case, petitioner followed everything dictated to him by the persons around him. He is insecure, weak and gullible, has no sense of his identity as a person, has no cohesive self to speak of, and has no goals and clear direction in life. Although on a different plane, the same may also be said of the respondent. Her being afflicted with antisocial personality disorder makes her unable to assume the essential marital obligations. This finding takes into account her disregard for the rights of others, her abuse, mistreatment and control of others without remorse, her tendency to blame others, and her intolerance of the conventional behavioral limitations imposed by society. Moreover, as shown in this case, respondent is impulsive and domineering; she had no qualms in manipulating petitioner with her threats of blackmail and of committing suicide. Both parties being afflicted with grave, severe and incurable psychological incapacity, the precipitous marriage which they contracted on April 23, 1996 is thus, declared null and void. In Halili v. Halili, G.R. No. 165424, June 9, 2009, the Supreme Court likewise granted the nullity of marriage based on the finding that the petitioner was suffering from “mixed personality disorder from self-defeating personality disorder to dependent personality disorder.” Art. 36 MARRIAGE 229 Void and Voidable Marriages EXPERT TESTIMONY. In the course of the proceedings, expert testimonies of a psychologist or psychiatrist evaluating the behavioral pattern of the person alleged to be psychologically incapacitated are extremely helpful (Matias v. Dagdag, G.R. No. 109975, February 9, 2001; Hernandez v. Court of Appeals, G.R. No. 126010, December 8, 1999). Significantly, in Marcos v. Marcos, G.R. No. 136490, October 19, 2000, the Supreme Court ruled that “the personal medical or psychological examination of respondent is not a requirement for a declaration of psychological incapacity” and that it is not “a conditio sine qua non for such declaration.” (Republic v. Tayag San Jose, G.R. No. 168328, February 28, 2007, 517 SCRA 123) However, the Court may or may not accept the testimony of the psychologist or psychiatrist because the decision must be based on the totality of the evidence. (Paras v. Paras, G.R. No. 147824, August 2, 2007, 529 SCRA 81) Nevertheless, the testimony of an expert witness, like a psychiatrist or psychologist, if credible and if consistent with the totality of the evidence, which is also credible, must be given great weight. In Azcueta v. Azcueta, G.R. No. 180660, May 26, 2009, the Supreme Court, in granting the nullity of marriage under Article 36 due to the dependent personality disorder of the respondent as reliably assessed by the competent psychiatrist who did not personally examine the respondent said that “[b]y the very nature of Article 36, courts, despite having the primary task and burden of decision-making, must not discount but, instead, must consider as decisive evidence the expert opinion on the psychological and mental temperaments of the parties.” In Antonio v. Reyes, G.R. No. 155880, March 10, 2006, the Supreme Court even adhered to the medical and clinical findings of the psychiatrist and psychologist who did not personally examine the subject but who were given reliable data about the respondent and read the pertinent court records in coming up with a more reliable assessment that the respondent was a pathological liar, as against the faulty clinical and medical findings of the psychiatrist of the respondent who examined the respondent and claimed that the respondent was not suffering from psychological incapacity. The mere fact therefore that a psychiatrist personally examined the subject person is not an assurance that his or her findings would be sustained. In Ting v. Ting, G.R. No. 166562, March 31, 2009, the Supreme Court did not grant the nullity of marriage. As between the psychiatrist presented by the petitioner and the one presented by the respondent, the Supreme Court adhered to the findings of the latter that respondent was not psychologically incapacitated 230 PERSONS AND FAMILY RELATIONS LAW Art. 36 considering that the psychiatrist of the respondent, aside from analyzing the transcripts of the respondent’s deposition, was able to consider the finding of another psychiatrist who personally examined the respondent and also to interview the respondent’s brothers. The psychiatrist of the petitioner, however, merely evaluated the respondent by only analyzing his deposition. In So v. Valera, G.R. No. 150677, June 5, 2009, the Supreme Court rejected the findings of the psychologist as unreliable and stated: In examining the psychologist’s Report, we find the “Particulars” and the “Psychological Conclusions” disproportionate with one another; the conclusions appear to be exaggerated extrapolations, derived as they are from isolated incidents, rather than from continuing patterns. The “particulars” are, as it were, snapshots, rather than a running account of the respondent’s life from which her whole life is totally judged. Thus, we do not see her psychological assessment to be comprehensive enough to be reliable. In Rumbaua v. Rumbaua, G.R. No. 166738, August 14, 2009, the Supreme Court denied the petition for nullity of marriage on the ground that the psychological report was very general and did not state specific linkages between the personality disorder and the behavioral pattern of the spouse during the marriage. In a particular case decided by the Supreme Court, a husband, in a hearing for nullity of marriage under Article 36, sought to introduce the confidential psychiatric evaluation report made by the psychiatrist with respect to his wife. This was objected to by the lawyer of the wife on the ground that such a report was within the privileged communication rule between doctor and patient. The Supreme Court ruled that the testimony of the husband with respect to the report was not within the doctor-patient privileged communication rule since the one who would testify is not the doctor but the husband. Also, the Supreme Court ruled that “neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report.” Also, counsel for petitioner indulged heavily in objecting to the testimony of private respondent on the ground that it was privileged. In his Manifestation before the trial court dated 10 May 1991, he invoked the rule on privileged communications but never questioned the testimony as hearsay. It was a fatal mistake. For, in failing to object to the testimony on the Art. 36 MARRIAGE 231 Void and Voidable Marriages ground that it was hearsay, counsel waived his right to make such objection, and consequently, the evidence offered may be admitted (Krohn v. Court of Appeals, G.R. No. 108854, June 14, 1994, 52 SCAD 250). In Najera v. Najera, G.R. No. 164817, July 3, 2009, where the testimony of the psychologist was also inadequate and, in fact, did not conform to one of the persuasive evidence, which is the decision of the church matrimonial tribunal that nullified the marriage not on psychological incapacity but on a different church ground, the Supreme ruled against the nullity of marriage. LIFTED FROM CANON LAW. This particular ground for nullity was essentially lifted from the Canon Laws of the Catholic Church. The learned opinion of Canon Law experts are greatly helpful in understanding Article 36. Indeed, during the discussions of the Civil Law revision committee on October 14 and 28, 1983 regarding this ground, the committee in fact invited Fr. Gerald Healy of the Society of Jesus and of the Ateneo De Manila University, an expert in Canon Law, to enlighten the members on the concept of psychological incapacity. For instance, when Justice Caguioa mentioned the case of a woman who submits herself to sexual intercourse just because she is obliged to do so. Fr. Healy said that if this happens right from the beginning, it could be an indicator of a psychological problem (Minutes of the Civil Code and Family Law committees held on October 14, 1983). The decisions of the Catholic tribunal on this matter, therefore, are greatly helpful and as a matter of fact persuasive. Also the interpretation of Catholic Canon Law is very helpful. In Te v. Te, supra, the Supreme Court highlighted this point by saying that the intendment of the law is consistent with Canon Law. The Supreme Court quoted the explanation of the eminent and foremost Jesuit Canon law expert in the Philippines, Fr. Adolfo Dacanay S.J., (Dacanay, Canon Law on Marriage: Introductory Notes and Comments, 2000 ed., pp. 110-119) thus 3.5.3.1. The Meaning of Incapacity to Assume. A sharp conceptual distinction must be made between the second and third paragraphs of C.1095, namely between the grave lack of discretionary judgment and the incapacity to assume the essential obligation. Mario Pompedda, a rotal judge, explains the difference by an ordinary, if somewhat banal, 232 PERSONS AND FAMILY RELATIONS LAW Art. 36 example. Jose wishes to sell a house to Carmela, and on the assumption that they are capable according to positive law to enter such contract, there remains the object of the contract, viz, the house. The house is located in a different locality, and prior to the conclusion of the contract, the house was gutted down by fire unbeknown to both of them. This is the hypothesis contemplated by the third paragraph of the canon. The third paragraph does not deal with the psychological process of giving consent because it has been established a priori that both have such a capacity to give consent, and they both know well the object of their consent [the house and its particulars]. Rather, C.1095.3 deals with the object of the consent/contract which does not exist. The contract is invalid because it lacks its formal object. The consent as a psychological act is both valid and sufficient. The psychological act, however, is directed towards an object which is not available. Urbano Navarrete summarizes this distinction: the third paragraph deals not with the positing of consent but with positing the object of consent. The person may be capable of positing a free act of consent, but he is not capable of fulfilling the responsibilities he assumes as a result of the consent he elicits. Since the address of Pius XII to the auditors of the Roman Rota in 1941 regarding psychic incapacity with respect to marriage arising from pathological conditions, there has been an increasing trend to understand as ground of nullity different from others, the incapacity to assume the essential obligations of marriage, especially the incapacity which arises from sexual anomalies. Nymphomania is a sample which ecclesiastical jurisprudence has studied under this rubric. The problem as treated can be summarized, thus: do sexual anomalies always and in every case imply a grave psychopathological condition which affects the higher faculties of intellect, discernment, and freedom; or are there sexual anomalies that are purely so — that is to say, they arise from certain physiological dysfunction of the hormonal system, and they affect the sexual condition, leaving intact the higher faculties however, so that these persons are still capable of free human acts. The evidence from the empirical sciences is abundant that there are certain anomalies of a sexual nature which may impel a person towards sexual activities which are not normal, either with respect to its frequency [nymphomania, satyriasis] or to the nature of the activity itself [sadism, masochism, homosexuality]. However, these anomalies notwithstanding, it is altogether possible that the higher faculties remain intact such that a person so afflicted continues to have an adequate understanding of what marriage is and of the gravity of its Art. 36 MARRIAGE 233 Void and Voidable Marriages responsibilities. In fact, he can choose marriage freely. The question though is whether such a person can assume those responsibilities which he cannot fulfill, although he may be able to understand them. In this latter hypothesis, the incapacity to assume the essential obligations of marriage issues from the incapacity to posit the object of consent, rather than the incapacity to posit consent itself. Ecclesiastical jurisprudence has been hesitant, if not actually confused, in this regard. The initial steps taken by church courts were not too clear whether this incapacity is incapacity to posit consent or incapacity to posit the object of consent. A case c. Pinna, for example, arrives at the conclusion that the intellect, under such an irresistible impulse, is prevented from properly deliberating and its judgment lacks freedom. This line of reasoning supposes that the intellect, at the moment of consent, is under the influence of this irresistible compulsion, with the inevitable conclusion that such a decision, made as it was under these circumstances, lacks the necessary freedom. It would be incontrovertible that a decision made under duress, such as this irresistible impulse, would not be a free act. But this is precisely the question: is it, as a matter of fact, true that the intellect is always and continuously under such an irresistible compulsion? It would seem entirely possible, and certainly more reasonable, to think that there are certain cases in which one who is sexually hyperaesthetic can understand perfectly and evaluate quite maturely what marriage is and what it implies; his consent would be juridically ineffective for this one reason that he cannot posit the object of consent, the exclusive jus in corpus to be exercised in a normal way and with usually regularity. It would seem more correct to say that the consent may indeed be free, but is juridically ineffective because the party is consenting to an object that he cannot deliver. The house he is selling was gutted down by fire. 3.5.3.2. Incapacity as an Autonomous Ground. Sab- attani seems to have seen his way more clearly through this tangled mess, proposing as he did a clear conceptual distinction between the inability to give consent on the one hand, and the inability to fulfill the object of consent, on the other. It is his opinion that nymphomaniacs usually understand the meaning of marriage, and they are usually able to evaluate its implica- tions. They would have no difficulty with positing a free and intelligent consent. However, such persons, capable as they are of eliciting an intelligent and free consent, experience difficulty in another sphere: delivering the object of the consent. Anne, another rotal judge, had likewise treated the difference between the act of consenting and the act of positing the object of consent 234 PERSONS AND FAMILY RELATIONS LAW Art. 36 from the point of view of a person afflicted with nymphomania. According to him, such an affliction usually leaves the process of knowing and understanding and evaluating intact. What it affects is the object of consent: the delivering of the goods. 3.5.3.3 Incapacity as Incapacity to Posit the Object of Consent. From the selected rotal jurisprudence cited, supra, it is possible to see a certain progress towards a consensus doctrine that the incapacity to assume the essential obligations of marriage (that is to say, the formal object of consent) can coexist in the same person with the ability to make a free decision, an intelligent judgment, and a mature evaluation and weighing of things. The decision coram Sabattani concerning a nymphomaniac affirmed that such a spouse can have difficulty not only with regard to the moment of consent but also, and especially, with regard to the matrimonium in facto esse. The decision concludes that a person in such a condition is incapable of assuming the conjugal obligation of fidelity, although she may have no difficulty in understanding what the obligations of marriage are, nor in the weighing and evaluating of those same obligations. Prior to the promulgation of the Code of Canon Law in 1983, it was not unusual to refer to this ground as moral impotence or psychic impotence, or similar expressions to express a specific incapacity rooted in some anomalies and disorders in the personality. These anomalies leave intact the faculties of the will and the intellect. It is qualified as moral or psychic, obviously to distinguish it from the impotence that constitutes the impediment dealt with by C.1084. Nonetheless, the anomalies render the subject incapable of binding himself in a valid matrimonial pact, to the extent that the anomaly renders that person incapable of fulfilling the essential obligations. According to the principle affirmed by the long tradition of moral theology: nemo ad impossibile tenetur. xxxx 3.5.3.5 Indications of Incapacity. There is incapacity when either or both of the contractants are not capable of initiating or maintaining this consortium. One immediately thinks of those cases where one of the parties is so self-centered [e.g., a narcissistic personality] that he does not even know how to begin a union with the other, let alone how to maintain and sustain such a relationship. A second incapacity could be due to the fact that the spouses are incapable of beginning or maintaining a heterosexual consortium, which goes to the very substance of matrimony. Another incapacity could arise when a spouse is unable to concretize the good of himself or of the other Art. 36 MARRIAGE 235 Void and Voidable Marriages party. The canon speaks, not of the bonum partium, but of the bonum conjugum. A spouse who is capable only of realizing or contributing to the good of the other party qua persona rather than qua conjunx would be deemed incapable of contracting marriage. Such would be the case of a person who may be quite capable of procuring the economic good and the financial security of the other, but not capable of realizing the bonum conjugale of the other. These are general strokes and this is not the place for detained and individual description. A rotal decision c. Pinto resolved a petition where the concrete circumstances of the case concerns a person diagnosed to be suffering from serious sociopathy. He concluded that while the respondent may have understood, on the level of the intellect, the essential obligations of marriage, he was not capable of assuming them because of his “constitutional immorality.” Stankiewicz clarifies that the maturity and capacity of the person as regards the fulfillment of responsibilities is determined not only at the moment of decision but also and especially during the moment of execution of decision. And when this is applied to constitution of the marital consent, it means that the actual fulfillment of the essential obligations of marriage is a pertinent consideration that must be factored into the question of whether a person was in a position to assume the obligations of marriage in the first place. When one speaks of the inability of the party to assume and fulfill the obligations, one is not looking at matrimonium in fieri, but also and especially at matrimonium in facto esse. In [the] decision of 19 Dec. 1985, Stankiewicz collocated the incapacity of the respondent to assume the essential obligations of marriage in the psychic constitution of the person, precisely on the basis of his irresponsibility as regards money and his apathy as regards the rights of others that he had violated. Interpersonal relationships are invariably disturbed in the presence of this personality disorder. A lack of empathy (inability to recognize and experience how others feel) is common. A sense of entitlement, unreasonable expectation, especially favorable treatment, is usually present. Likewise common is interpersonal exploitativeness, in which others are taken advantage of in order to achieve one’s ends. Authors have made listings of obligations considered as essential matrimonial obligations. One of them is the right to the communio vitae. This and their corresponding obligations are basically centered around the good of the spouses and of the children. Serious psychic anomalies, which do not have to be necessarily incurable, may give rise to the incapacity to assume any, or several, or even all of these rights. There are some cases in which interpersonal relationship is impossible. 236 PERSONS AND FAMILY RELATIONS LAW Art. 36 Some characteristic features of inability for interpersonal relationships in marriage include affective immaturity, nar- cissism, and antisocial traits. Marriage and Homosexuality. Until 1967, it was not very clear under what rubric homosexuality was understood to be invalidating of marriage – that is to say, is homosexuality invalidating because of the inability to evaluate the responsibilities of marriage, or because of the inability to fulfill its obligations. Progressively, however, rotal jurisprudence began to understand it as incapacity to assume the obligations of marriage so that by 1978, Parisella was able to consider, with charity, homosexuality as an autonomous ground of nullity. This is to say that a person so afflicted is said to be unable to assume the essential obligations of marriage. In this same rotal decision, the object of matrimonial consent is understood to refer not only to the jus in corpus but also the consortium totius vitae. The third paragraph of C.1095 [incapacity to assume the essential obligations of marriage] certainly seems to be the more adequate juridical structure to account for the complex phenomenon that homosexuality is. The homosexual is not necessarily impotent because, except in very few exceptional cases, such a person is usually capable of full sexual relations with the spouse. Neither is it a mental infirmity, and a person so afflicted does not necessarily suffer from a grave lack of due discretion because this sexual anomaly does not by itself affect the critical, volitive, and intellectual faculties. Rather, the homosexual person is unable to assume the responsibilities of marriage because he is unable to fulfill this object of the matrimonial contract. In other words, the invalidity lies, not so much in the defect of consent, as in the defect of the object of consent. 3.5.3.6 Causes of Incapacity. A last point that needs to be addressed is the source of incapacity specified by the canon: causes of a psychological nature. Pompedda proffers the opinion that the clause is a reference to the personality of the contractant. In other words, there must be a reference to the psychic part of the person. It is only when there is something in the psyche or in the psychic constitution of the person which impedes his capacity that one can then affirm that the person is incapable according to the hypothesis contemplated by C.1095.3. A person is judged incapable in this juridical sense only to the extent that he is found to have something rooted in his psychic constitution which impedes the assumption of these obligations. A bad habit deeply engrained in one’s consciousness would not seem to qualify to be a source of this invalidating incapacity. The difference being that there seems to be some Art. 36 MARRIAGE 237 Void and Voidable Marriages freedom, however remote, in the development of the habit, while one accepts as given one’s psychic constitution. It would seem then that the law insists that the source of the incapacity must be one which is not the fruit of some degree of freedom. JURISPRUDENTIAL GUIDELINES. In Republic of the Phil- ippines v. CA and Molina, G.R. No. 108763, February 13, 1997, 79 SCAD 462, the Supreme Court enumerated the guidelines in invok- ing and proving psychological incapacity under Article 36. They are as follows: (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it “as the foundation of the nation.” It decrees marriage as legally “inviolable,” thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be “protected” by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity. (2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts, and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological — not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming or, knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless, such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. (3) The incapacity must be proven to be existing at “the time of the celebration” of the marriage. The evidence must show that the illness was existing when the parties exchanged their “I do’s.” The manifestation of the illness need not be perceivable 238 PERSONS AND FAMILY RELATIONS LAW Art. 36 at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, “mild characteriological peculiarities, mood changes, occasional emotional outbursts” cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the new Code of Canon law, which became effective in 1983 and which provides: “The following are incapable of contracting marriage: Those who are unable to assume the essential obligations of marriage due to causes of psychological nature.” Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious Art. 36 MARRIAGE 239 Void and Voidable Marriages faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate tribunal. Ideally — subject to our law on evidence — what is decreed as canonically invalid should also be decreed civilly void. This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Church — while remaining independent, separate and apart from each other — shall walk together in synodal cadence towards the same goal of protecting and cherishing marriage and the family as the inviolable base of the nation. (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. The certification of the Solicitor General is not anymore needed pursuant to Supreme Court En Banc resolution in A.M. 00-11-01- SC. In Te v. Te, supra, however, the Supreme Court stressed that each case on psychological incapacity must be seen on its own merit. Thus, the Supreme Court said: Noteworthy is that in Molina, while the majority of the Court’s membership concurred in the ponencia of then Associate Justice (later Chief Justice) Artemio V. Panganiban, three justices concurred “in the result” and another three — including, as aforesaid, Justice Romero — took pains to compose their individual separate opinions. Then Justice Teodoro R. Padilla even emphasized that “each case must be judged, not on the basis of a priori assumptions, predelictions or generalizations, but according to its own facts. In the field of psychological incapacity as a ground for annulment of marriage, it is trite to say that no case is on ‘all fours’ with another case. The trial judge must take pains in examining the factual milieu and the appellate court must, as much as possible, avoid substituting its own judgment for that of the trial court.” Predictably, however, in resolving subsequent cases, the Court has applied the aforesaid standards, without too much regard for the law’s clear intention that each case is to be treated differently, as “courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.” 240 PERSONS AND FAMILY RELATIONS LAW Art. 36 In hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of psychological incapacity. Understandably, the Court was then alarmed by the deluge of petitions for the dissolution of marital bonds, and was sensitive to the OSG’s exaggeration of Article 36 as the “most liberal divorce procedure in the world.” The unintended consequences of Molina, however, has taken its toll on people who have to live with deviant behavior, moral insanity and sociopathic personality anomaly, which, like termites, consume little by little the very foundation of their families, our basic social institutions. Far from what was intended by the Court, Molina has become a strait-jacket, forcing all sizes to fit into and be bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage. Ironically, the Roman Rota has annulled marriages on account of the personality disorders of the said individuals. The Court need not worry about the possible abuse of the remedy provided by Article 36, for there are ample safeguards against this contingency, among which is the intervention by the State, through the public prosecutor, to guard against collusion between the parties and/or fabrication of evidence. The Court should rather be alarmed by the rising number of cases involving marital abuse, child abuse, domestic violence and incestuous rape. In dissolving marital bonds on account of either party’s psychological incapacity, the Court is not demolishing the foundation of families, but it is actually protecting the sanctity of marriage, because it refuses to allow a person afflicted with a psychological disorder, who cannot comply with or assume the essential marital obligations, from remaining in that sacred bond. It may be stressed that the infliction of physical violence, constitutional indolence or laziness, drug dependence or addiction, and psychosexual anomaly are manifestations of a sociopathic personality anomaly. Let it be noted that in Article 36, there is no marriage to speak of in the first place, as the same is void from the very beginning. To indulge in imagery, the declaration of nullity under Article 36 will simply provide a decent burial to a stillborn marriage. The prospect of a possible remarriage by the freed spouses should not pose too much of a concern for the Court. First and foremost, because it is none of its business. And second, because the judicial declaration of psychological incapacity operates as a warning or a lesson learned. On one hand, the normal spouse Art. 37 MARRIAGE 241 Void and Voidable Marriages would have become vigilant, and never again marry a person with a personality disorder. On the other hand, a would-be spouse of the psychologically incapacitated runs the risk of the latter’s disorder recurring in their marriage. Lest it be misunderstood, we are not suggesting the aban- donment of Molina in this case. We simply declare that, as aptly stated by Justice Dante O. Tinga in Antonio v. Reyes, there is need to emphasize other perspectives as well which should govern the disposition of petitions for declaration of nullity under Article 36. At the risk of being redundant, we reiterate once more the principle that each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts. And, to repeat for emphasis, courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals. DAMAGES. In a case involving psychological incapacity, the Supreme Court in Buenaventura v. Court of Appeals, G.R. Nos. 127358/127449, March 31, 2005, 454 SCRA 261 disallowed the award of moral damages, exemplary damages and attorney’s fees on the ground that the very nature of psychological incapacity which is non-cognizance of one’s essential marital obligation at the time of the marriage ceremony, negates bad faith, which is an essential element in awarding moral damages in contracting the marriage. Consequently, no award of exemplary damages and attorneys fees can also be made in the absence of a showing of bad faith. Article 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate: 1) Between ascendants and descendants of any degree; and 2) Between brothers and sisters, whether of the full or half-blood. (81a) REASONS FOR PROHIBITION OF INCESTUOUS MAR- RIAGE. Incestuous marriages have been universally condemned as grossly indecent, immoral, and inimical to the purity and happiness of the family and the welfare of future generations. Various reasons have been assigned why incestuous marriages should be prohibited, especially those between persons closely related by consanguinity. 242 PERSONS AND FAMILY RELATIONS LAW Art. 37 In the first place, they are abhorrent to the nature, not only of civi- lized men, but of barbarous and semi-civilized peoples and, in the second place, tend to the confusion of rights and duties incident to family relations (Gould v. Gould, 78 Conn. 242, 61 A 604, cited in 35 Am. Jur. 266). A child of an incestuous union creates a special problem of social placement, because its status is so confused, as is that of its parents. If the child is born to a union between daughter and father, then its mother is also its sister. Its father is married to its grandmother, and its father is simultaneously its grandfather. Its brother (half-brother) is also its uncle (i.e., the brother of its mother). Similar status discrepancies arise if the child is the offspring of a brother-sister union, or a mother-son union (W. Goode, The Family 24 [1964] cited in page 31 Family Law by Harry D. Krause). In addition, science and experience have established beyond cavil that such intermarriages very often result in deficient and degenerate offsprings, which, if occurring to any great extent, would amount to a serious deterioration of the race (Gould v. Gould, 78 Conn 242, 61 A 604, cited in 35 Am. Jur. 266). The genetic reason for advising against the marriage of related persons is, of course, to prevent the coming together in their offspring of any deleterious recessive genes (Farrow and Juberg, Genetics and Laws Prolubity Marriage in the United States, 209 U.A.M.A. 534, 537 [1959]). In breeding, therefore, yields an increased probability of homozygosity with respect to a particular trait — that is, a greater chance that the offspring will receive an identical genetic contribution from each parent. If the pedigree contains a recessive abnormality — a genetic defect that does not appear in an individual unless parents transmit the appropriate determinant — the increased probability of homozygosity in the first generation of offspring may have tragic consequences (American Law Institute, Model and Commentaries 230.2, pp. 403-407 [1980] contained in Family Law by Harry Krause, St. Paul, Min., West Publishing Co., 1983, pages 29-30). Another reason deals with the social and psychological aspects of an incestuous marriage. Social prohibitions against incest promote the solidarity of the nuclear family. The essentials of a nuclear family are a man and a woman in a relation of sexual intimacy and bearing a responsibility for Art. 38 MARRIAGE 243 Void and Voidable Marriages the upbringing of the woman’s children. This institution is the principal context for socialization of the individual. A critical component of that process is the channeling of the individual’s erotic impulses into socially acceptable patterns. The incest prohibition regulates erotic desire in two ways that contribute to preservation of the nuclear family. First, the prohibition controls sex rivalries and jealousies within the family unit. It inhibits competing relations of sexual intimacy that would disorganize the family structure and undermine the family’s role as the unit of socialization and personality development. Second, by ensuring suitable role models, the incest restriction prepares the individual for assumption of familial responsibility as an adult. Eventually, it propels the individual toward creation of a new nuclear family of his own marriage. It is worth noting also that the theory of the relation of incest to the nuclear family is consistent with Freudian psychology, which posits interfamily sexual attraction as one of the basic facts of mental life and attributes much psychic disturbance to failure of the personality to resolve the internal conflict between such desires and societal repression of them (American Law Institute, Model and Commentaries 230.2, pp. 403-407 [1980] contained in Family Law by Harry Krause, St. Paul, Min., West Publishing Co., 1983, pages 29-30). Article 38. The following marriages shall be void from the beginning for reasons of public poli- cy: 1) Between collateral blood relatives, wheth- er legitimate or illegitimate, up to the fourth civil degree; 2) Between step-parents and step-children; 3) Between parents-in-law and children-in- law; 4) Between the adopting parent and the ad- opted child; 5) Between the surviving spouse of the adopting parents and the adopted child; 6) Between the surviving spouse of the ad- opted child and the adopter; 7) Between an adopted child and a legiti- mate child of the adopter; 244 PERSONS AND FAMILY RELATIONS LAW Art. 38 8) Between the adopted children of the same adopter; 9) Between parties where one, with the in- tention to marry the other, killed that other per- son’s spouse or his or her own spouse. (82) REASONS FOR THE PROHIBITION OF VOID MARRIAGES. Article 38 of the Family Code clearly provides that the marriages described therein are against public policy. It is the policy of the state to foster a normal, peaceful, and wholesome integral nuclear family unit which would constitute the very foundation of society. For the state, therefore, the marriages described in Article 38 will not serve the fundamental objective of nurturing a stable family unit that can effectively be the foundation of society. Following the general rule that only those declared by law as a void marriage should be treated as such, the enumeration in Article 38 is exclusive. Hence, a guardian and his or her ward can validly marry each other as this relationship is not included in the enumeration. A principal and his or her agent can likewise marry each other provided they do not suffer from any other impediment provided in the Family Code. COLLATERAL BLOOD RELATIVES BY CONSANGUINITY. Marriage between collateral blood relatives up to the fourth civil degree may disturb the policy of the state as it may likely result though not of the same gravity, in the dangers and confusion attendant in incestuous marriages under Article 37. Moreover, the genetic reason for advising against marriage of related persons is, of course, to prevent the coming together in their offspring of any deleterious recessive genes. The probability of this event is determined by the coefficient of inbreeding, e.g., 0.125 for an uncle-niece mating, 0.0625 for the mating of first cousins, and 0.0156 in union of second cousins. Presumably, the role of the legislature has been to decide that risk is too much to allow citizens and then to enact a law accordingly (Farrow and Juberg, Genetics and Laws Prolubity Marriage in the United States, 209 U.A.M.A. 534, 537 [1959]). Pertinently, relationship by consanguinity is in itself not capa- ble of dissolution. Hence, the mere fact that a common ascendant, a grandfather for example, died does not sever the blood relationship of first cousins. To determine whether or not two persons are relatives of each other up to the fourth civil degree, they have to consider their Art. 38 MARRIAGE 245 Void and Voidable Marriages nearest and immediate common ascendant and then count the number of relatives from one of them to the common ascendant and from the common ascendant to the other one. Let us consider the blood-relation diagram of a person whom we shall designate Juan Junior and determine the relationship of Juan Junior to some other persons within his blood relationship. Leonor Carmela Great-grandmother Victoria Lolo Carding Roberta Juan Senior Pedro Juan Junior Julie Anita Rodolfo Jane Dolores Juan Junior is related to the following: 1. Anita is a first cousin of Juan Junior and is related to him by blood in the 4th collateral civil degree. Anita is the daughter of Juan Junior’s uncle, namely Pedro. The said uncle undoubtedly is the brother of Juan Junior’s father, namely, Juan Senior. The father of Juan Senior and Pedro is Lolo Carding. The nearest and immediate common ascendant of Juan Junior and Anita, therefore, is their grandfather Lolo Carding. To connect the blood relationship of Juan Junior and Anita, there are four immediate relatives. Excluding Juan Junior who is the reckoning point, the first relative going to the common ascendant is Juan Senior, the second relative is Lolo Carding (who is the common ascendant himself), the third relative from the common ascendant is Pedro and finally, the fourth 246 PERSONS AND FAMILY RELATIONS LAW Art. 38 relative is Anita. Anita, being the fourth relative from Juan to Lolo Carding (the common ascendant) and from Lolo Carding to Anita, Anita therefore is related to Juan by consanguinity in the fourth civil degree. Juan Junior is related to his uncle, Pedro Senior, in the 3rd civil degree; to Lolo Carding in the 2nd civil degree (in the direct ascending line not the collateral line); and to his father, Juan Senior, in the 1st civil degree (in the direct line and not collateral line). Juan Junior and Anita cannot marry each other. 2. Jane is a collateral relative by blood in the 3rd civil degree. Jane is the daughter of Julie who is the sister of Juan Junior. The immediate and nearest common ascendant of Juan Junior and Jane is Juan Senior. Though Lolo Carding is also their common ascendant, he is not the immediate and nearest common ascendant. Juan Junior and Jane cannot therefore validly marry each other. 3. Roberta is a collateral relative by blood in the 4th civil degree. Roberta is the daughter of Victoria who is the great- grandmother of Juan Junior. The immediate and nearest common ascendant of Roberta and Juan Junior is Victoria. From Juan Junior to Victoria and from Victoria to Roberta, there are four relatives (excluding Juan Junior but including Roberta), namely: Juan Senior, Lolo Carding, Victoria, and finally, Roberta. Juan Junior and Roberta cannot therefore validly marry each other. 4. Dolores is a collateral relative by blood in the 5th civil degree. Dolores is the daughter of Juan Junior’s cousin Anita. The nearest and immediate common ascendant of Juan Junior and Dolores is Lolo Carding. From Juan Junior to Lolo Carding and from Lolo Carding to Dolores, there are five relatives (excluding Juan Junior but including Dolores), namely: Juan Senior, Lolo Carding, Pedro, Anita, and finally Dolores. Juan Junior can therefore validly marry Dolores because she is not a collateral blood relative up to the 4th civil degree. 5. Leonor is a relative by blood in the 5th civil degree but in the direct ascending line. Juan Junior therefore cannot marry her pursuant to Article 37(1) which provides that a marriage between an ascendant and a descendant of any degree is void. COLLATERAL HALF-BLOOD RELATIVES BY CONSAN- GUINITY. Under the Family Code, the prohibition extends to the collateral blood relatives up to the fourth civil degree which include one’s uncle, aunt, niece, nephew, and first cousins. There is no ques- tion that the prohibition applies to full-blood relationships. How- Art. 38 MARRIAGE 247 Void and Voidable Marriages ever, it is interesting to point out that the law does not provide that marriages between collateral blood relatives by the half-blood are prohibited. Diana Angel Bea (deceased 1st wife) (second legal wife) Xeres Yolanda Jeff Lea In the illustration, Xeres is the son of Diana and Angel. Lea is the daughter of Yolanda who, in turn, is the daughter of Angel and Bea. Angel is the nearest and immediate common ascendant of Xeres and Lea. Lea and Xeres are relatives by consanguinity in the 3rd civil degree. However, they are only related in the half-blood because Lea comes from the line of Bea and Angel, while Xeres comes from the line of Diana and Angel. Lea and Xeres are therefore related only through Angel because they have different mothers. Xeres therefore is the half-blood uncle of Lea. There are two significant American cases which advance two different views as to whether or not such marriages are void. In the first case, Audley v. Audley, 230 NYS 652, the issue presented was whether or not the provision in a marital statute prohibiting marriages between uncles and nieces or aunts and nephews also include “half-blood relationships.” The Supreme Court Appellate Division of New York, speaking through Mr. Justice Laughlin, answered in the affirmative by observing and ruling, thus: The point presented for decision is whether the relation- ship of uncle and niece existed between the defendant and plaintiff within the purview of subdivisions 3 @ 5, of the Domes- tic Relations Law (Consolidated Laws, c. 14, arts. 2 @ 5), which so far as here material declares that a marriage is incestuous and void between “an uncle and niece or an aunt and nephew,” whether they are legitimate or illegitimate. Prior to 1893, inces- tuous and void marriages were limited to marriages between an ancestor and a descendant and a brother and a sister of either the whole or half-blood (2 R.S. p. 139, @ 3; Matter of Williams, 2 City Court Rep. 143), and marriages between uncles and nieces 248 PERSONS AND FAMILY RELATIONS LAW Art. 38 and aunts and nephews have only been prohibited in this state since the enactment of chapter 601 of the Laws of 1893, amend- ing said section 3 of the Revised Statutes (Weisberg v. Weisberg, 112 App. Div. 231, 98 N.Y. Supp. 260). It is argued in behalf of the respondent, that since, in said subdivision 3, which was added in 1893, there is no reference to whether uncles and nieces or aunts and nephews are of the whole or half-blood, the provisions should be construed as prohibiting only marriages between an uncle and a niece and an aunt or a nephew of the whole blood, for the reason that the preceding subdivision 2 of the section relating to marriages between brothers and sisters expressly provided that it applied to brothers and sisters either of the whole or of the half blood. In 1880 the United States Circuit Court for the Northern District of New York, in a very able and exhaustive opinion written by Judge Wallace, in Campbell v. Crampton, 8 Abb. New Cases, 363, in construing a statute of Alabama prohibiting marriages between an aunt and a nephew or an uncle and a niece, and containing no reference to whether they were of the whole or half-blood, held that the prohibition extended to relatives of the half-blood as well as relatives of the whole blood. It is, therefore, a reasonable inference that the Legislature which enacted the law in 1893 was aware of that decision, and deemed it necessary to specify whether the relationship was of the half or the whole blood. Moreover, in other jurisdictions it has been held that a statute prohibiting such marriages and making them criminal and containing no reference to whether the prohibition extended to relatives of the whole or half-blood, embraces relatives of the half blood as well as those of the whole blood; and that is the general rule of construction applied to such statutes (Shelley vs. State, 95 Tenn. 152, 31 S.W. 492, 49 Am. St. Rep. 926; State vs. Wyman, 59 Vt. 527, 8 Atl. 900, 59 Am. Rep. 753; State vs. Reedy, 44 Kan. 190-192, 24 Pac. 66; Bishop on Marriage and Divorce and Separation, @ 748). Furthermore, the specification of the whole or half blood with respect to brothers and sisters may have been incorporated for the reason that brothers and sisters of the half blood are commonly referred to as half-brothers and half-sisters, whereas in speaking of uncles and nieces and aunts and nephews, no distinction is made with respect to whether they are of the whole or half blood. It may also be that, in view of the fact that the former Legislature had by subdivision 2 expressly provided that the prohibition as to brothers and sisters was intended to relate to relatives of the half as well as of the whole blood, it was considered that the public policy of making no distinction between relatives of the whole and half blood in Art. 38 MARRIAGE 249 Void and Voidable Marriages legislating on questions of marriage and incest was sufficiently shown, and that it was not deemed necessary to repeat that specification of relationship. The decisions refer to the relationship of uncles and nieces and aunts and nephews as being of the whole or half blood, and for brevity I have done so; but that is not strictly accurate, because for an uncle and niece to be of the whole blood would require both parents of the niece to be of the whole blood with the uncle, and that could only be if the parents of the niece were brother and sister of the whole blood. A niece, one only of whose parents is of the blood, and of the whole blood, with her uncle, would be of the half blood of the common ancestor, while her uncle would be of his whole blood; and if the parent of the niece who is of the same blood as the uncle is only of the half blood, then the niece would only be of the quarter blood, while her uncle would be of the half blood of the common ancestor. This shows that it would not have been accurate for the Legislature to have adopted the same phraseology in said subdivision 3 as was adopted in subdivision 2; for, with respect to lawful marriages, uncles and nieces and aunts and nephews could not be of the whole blood. I deem it probable that the Legislature recognized this and addressed the prohibition against marriages in subdivision 3, not to the percentage of blood relationship, but to the relationship generally known and understood, and on that theory it has prohibited marriages between an uncle and a niece or an aunt and nephew without regard to the percentage of their blood relationship. The prohibition was enacted for the benefit of public health and the perpetuation of the human race. Since the closest relationship of an uncle and niece under a lawful marriage of those so related are plainly prohibited, I think it would be unreasonable to impute to the Legislature the belief that the evils which it was anticipated would flow from such marriages, would not befall the issue of a marriage between an uncle of the half blood and a niece of the quarter blood of the common ancestor. The marriage having been prohibited by law and declared void by said section 5 of the Statute, it is as if no marriage has taken place between the parties (McCullen v. McCullen, 162 App. Div. 599, 147 N.Y. Supp. 1069). The marriage on which the action is predicated being void, there is no basis for the maintenance of the action for divorce. The second case is that of In Re Simms Estate, 26 NY2d 163, 46 ALR 3d 1398, where the New York Court of Appeals stated that a marriage between uncle and niece by the half blood is not incestuous and void. The said court’s reason was that such a marriage is not 250 PERSONS AND FAMILY RELATIONS LAW Art. 38 specifically included by law as a void marriage and, therefore, cannot be considered as such. Pertinently, the court said: This omission would not ordinarily be troublesome since it would be assumed that the term would include relationship by the half blood were it not for the fact that the preceding subdivision 2 of the section, in dealing with marriages between brothers and sisters, spells out both the full and the half blood relationship, i.e., “A brother and sister of either the whole or the half blood.” In this context, it seems reasonable to think that if the legislature intended to prohibit marriages between uncles, nieces, aunts, and nephews whose parents were related to the contracting party only by the half blood, it would have used similar language, and its failure to do so in immediate context in dealing with a more remote relationship than brother and sister, suggests that it did not intend to put this limited class within the interdiction. This question was examined closely in 1921 in Audley v. Audley, 196 App Div 103, 187 NYS 652. In a direct action between the parties for annulment, it was held that a marriage between uncle and niece by the half blood was void. In some part of the rationale followed in the opinion by Justice Laughlin was based on the assumption that it would be technically inaccurate to use the term “half blood” in relation to uncle and niece; and that this was a probable reason the legislature did not use the term dealing with this type of marriage. Still, the term is one of common usage and meaning where the parent of the nephew or niece is not a full brother or sister of the contracting party. (See, e.g., the use of the term by Chief Judge Lewis in Matter of May’s Estate, 305 NY 486, 488, 114 NE2d 4, i.e., “his niece by the half blood’’). If the legislature had intended that its interdiction on this type of marriage should extend down to the rather more remote relationship of half blood between uncle and niece, it could have made suitable provision. Its failure to do so in the light of its explicit language relating to brothers and sisters, suggests it may not have intended to carry the interdiction this far. The second case of In Re Simms Estate, 26 NY2d 163, 46 ALR 3d 1398 appears to be the proper view. All doubts must be construed in favor of marriage. Only those expressly prohibited by law as void shall be treated as such. Also, since what is involved in Article 38(1) has been categorized as a marriage against public policy, it must be strictly construed in favor of the contracting parties and against its illegality. Art. 38 MARRIAGE 251 Void and Voidable Marriages RELATIONSHIP BY AFFINITY. Step-parents and step- children as well as parents-in-law and children-in-law are related by affinity. The doctrine of affinity grew out of the canonical maxim that marriage makes husband and wife one. The husband has the relation, by affinity, to his wife’s blood relatives as she has to them by consanguinity and vice versa (State v. Hooper, 37 P.2d 52, 140 Kan. 481). Affinity is a connection formed by marriage, which places the husband in the same degree of nominal propinquity to the relatives of the wife as that in which she herself stands towards them, and give the wife the same reciprocal connection with the relations of the husband. It is used in contra-distinction to consanguinity. It is no real kindred. Affinity arises from marriage, by which each party becomes related to all the consanguinei of the other party to the marriage, but in such case these respective consanguinei do not become related by affinity to each other (Kelly v. Neely, 12 Ark. 657, 659, 56 Am. Dec. 288). The only marriages by affinity prohibited in the Family Code are marriages between step-parents and step-children as well as parents-in-law and children-in-law. It is believed that these kinds of marital relationships, if allowed, can most likely destroy the peace- fulness of the family relations and also cause disturbance within the family circle. Philippine society is characterized as practicing what has been known as “extended families” which have proven most ad- vantageous and beneficial to the society itself. This is specially true with respect to parents-in-law and children-in-law as it is strongly believed that it would be scandalous for parents-in-law to marry their children-in-law because it is more in keeping with Philippine customs and traditions that parents-in-law treat children-in-law just like their own children and vice-versa (Minutes of the 152nd Joint Meeting of the Civil Code and Family Law committees held on August 23, 1986, page 3). Step-brother and step-sister can, however, marry each other as this relationship by affinity is not included in the prohibition. EFFECT OF TERMINATION OF MARRIAGE ON THE “AF- FINITY PROHIBITION.” In the event that the marriage is annulled or nullified in accordance with law, there can be no question that the relationship by affinity between step-parents and step-children as well as parents-in-law and children-in-law is terminated. The said 252 PERSONS AND FAMILY RELATIONS LAW Art. 38 persons become strangers to each other. This will allow them there- fore to marry each other legally. Thus, in an illustrative American case, namely Back v. Back, 125 Northwestern Reports (NW) 1009, where the marriage between a deceased husband and the daughter of his former wife by another man of a previous marriage was as- sailed as void under a statute providing that the marriage between a husband and his “wife’s daughter” is incestuous and, therefore, criminally punishable, the Supreme Court of Iowa pertinently ob- served and ruled, x x x Therefore, in determining that the construction to be put upon the words “wife’s daughter,” we are required to determine their meaning as defining a degree of relationship by affinity. Now it seems to be settled by the unanimous concurrence of authorities on the subject that relationship by affinity terminates with the termination of the marriage either by death or divorce which gave rise to the relationship of affinity between the parties. (Blodget v. Brismaid, 9 Vt 27; Noble vs. State, 22 Ohio St. 541; State v. Brown, 47 Ohio St. 102, 23 N.E. 747, 21 Am. St. Rep. 790; Wilson vs. State, 100 Tenn. 596, 46 S.W. 451, 66 Am. St. Rep. 789; Johnson v. State, 20 Tex. App. 609, 54 Am. Rep. 535; Pegues v. Baker, 110 Ala. 251, 17 South 943; Tagert v. State, 143 Ala. 88, 39 South 293, 111 Am. St. Rep. 17; Bigelow v. Spraguye, 140 Mass. 425, N.E. 144; Vannoy v. Givens N.J. Law 201; 1 Bishop, New. Crim. Procedure, @ 901; 26 Cyc. 845). Of the cases cited, those from Texas, Alabama and Ohio are directly in point as relating to a marriage between a man and the daughter of a former wife, deceased or divorced, and the only discrepancy between them is that in the Alabama cases, a modification of the rule is insisted upon, by which the relationship by affinity is held to continue after the dissolution of the marriage if and so long as there is surviving issue of such marriage. This qualification is suggested also in some of the other cases, but, as it appears in the case before us, there was no issue of the former marriage between decedent and plaintiff’s mother, the question need not now be determined. We reach the conclusion, therefore, that the relationship of affinity between the decedent and plaintiff which existed during the continuance of the marriage relation between decedent and plaintiff’s mother terminated when the latter procured a divorce from decedent, and after that time, plaintiff was not the daughter of decedent’s wife, and the marriage between them was valid. In case a marriage is terminated by the death of one of the spouses, there are conflicting views. There are some who believe Art. 38 MARRIAGE 253 Void and Voidable Marriages that relationship by affinity is not terminated whether there are children or not in the marriage (Carman v. Newell, N.Y., 1 Demo 25, 26). However, the better view supported by most judicial authorities in other jurisdictions is that, if the spouses have no living issues or children and one of the spouses dies, the relationship by affinity is dissolved. It follows the rule that relationship by affinity ceases with the dissolution of the marriage which produces it (Kelly v. Neely, 12 Ark. 657, 659, 56 Am. Dec. 288). On the other hand, the relationship by affinity is continued despite the death of one of the spouses where there are living issues or children of the marriage “in whose veins the blood of the parties are commingled, since the relationship of affinity was continued through the medium of the issue of the marriage” (Paddock v. Wells, 2 Barb. Ch. 331, 333). ADOPTIVE RELATIONSHIP. The relationship created in adoption is merely limited to one of parent and child. The void marriages in an adoptive relationship are specifically and expressly limited by law to those mentioned in Article 37(4), (5), (6), (7) and (8). The adopter cannot marry the adopted and the surviving spouse of the adopted. The adopted cannot marry any of the following: the adopter, the surviving spouse of the adopter, the legitimate child of the adopter, and the other adopted children of the adopter. It must be observed that while the adopted is, by law, not related to the surviving spouse, legitimate child and other adopted children of the adopter, the law makes an express declaration that they cannot marry each other, as the same will be considered void. In making these void marriages against public policy, the law seeks to duplicate, insofar as possible, the structure of the natural family and to ensure that the “artificial” family will mirror a natural family not only in terms of legal relationships but also in the emotional content and social significance of such a relationship. Nonetheless, since only void marriages are those expressly provided by law, it can be seen that, barring any other grounds to make the marriage void as provided in the Family Code and in line with the legal rule that the only relationship created in adoption is one of parent and child, an adopted can validly marry the following: the parents, illegitimate child, and other relatives, whether by consanguinity or affinity, of the adopter. There is no prohibition against the marriage between an adopted and the illegitimate child of the adopter as such a marriage will not most likely destroy the tranquility of the family home and the “artificial” family “because usually, an illegitimate child does not live in the same house where the adopted child and the legitimate child of the adopter are living’’ 254 PERSONS AND FAMILY RELATIONS LAW Art. 38 (Minutes of the 151st joint Civil Code and Family Law committees held on August 16, 1986, page 151). On the other hand, the adopter can validly marry the legitimate, illegitimate or adopted child, the natural parent, and other relatives, whether by consanguinity or affinity, of the adopted. It must likewise be observed that, since Article 38 qualifies the spouse of either the adopted or the adopter as a surviving spouse, this can only imply that the marriage between the surviving spouse of either the adopted or the adopter has been terminated by death. Hence, if the marriage of the adopter and his or her spouse is judicially nullified or annulled and barring any other ground to make the marriage void, the adopted can validly marry the previous spouse of the adopter because such spouse is not a surviving spouse as contemplated by law but a former spouse who, after the finality of the nullity or annulment decree, has become a complete stranger to the adopter. Likewise and under the same condition, the adopter can marry the spouse of the adopted if the marriage of the adopted and his or her spouse is severed by a final judicial nullity or annulment decree. INTENTIONAL KILLING OF SPOUSE. As to subparagraph 9 of Article 38, the situation described therein is highly criminal, involving as it does, grave moral turpitude, destructive not only of the family but the whole society itself. Indeed, if the guilty spouse can undertake a sinister scheme to kill his or her spouse in order to marry another person and can eventually be successful about it, there is no guarantee that he or she will not do the same evil act again to his or her subsequent spouse so that he or she can again marry for the third time. However, it must be emphasized that, in killing his or her spouse, the guilty party must be animated by an intention to marry another person. Thus, if a wife kills her husband because he was an incorrigible philanderer and thereafter marries her lawyer who has been defending her in the criminal case, the marriage is valid. The reason for killing the husband was obviously not for the purpose of marrying the lawyer. No prior criminal conviction by the court for the killing is required by the law. Justice Caguioa even said that mere preponderance of evidence is required to prove the killing (Minutes of the 149th Meeting of the joint Civil Code and Family Law committees held on August 2, 1986, page 3). Also, to come within the purview of Article 38(a) of the Family Code, Justice Puno explained that it Art. 39 MARRIAGE 255 Void and Voidable Marriages can be a unilateral intention and need not be shared by the other spouse so that even the unknowing party will be affected by the void character of the marriage (Minutes of the 149th Joint Meeting of the Civil Law and Family Law committees held on August 2, 1986, page 3). The reasons for a spouse killing his or her own spouse to marry another and thus making the subsequent marriage void, likewise apply to a person who kills the spouse of another to marry the latter. Article 39. The action or defense for the dec- laration of absolute nullity of a marriage shall not prescribe. (n) (Amended by Executive Order Num- ber 227 dated July 17, 1987 and further amended by Republic Act No. 8533 dated February 23, 1998) PRESCRIPTIVE PERIOD. The time within which to file an action for the declaration of nullity of a marriage or to invoke such nullity as a defense, whether in a direct or collateral manner, does not prescribe. A judicial decree of nullity of a marriage does not legally dissolve a marriage because such a marriage is invalid from the beginning and therefore, being non-existent, cannot be dissolved. The judicial decree merely declares or confirms the voidness, non- existence, or incipient invalidity of a marriage. Hence, the decree is known as a judicial declaration of nullity of marriage decree. In Niñal vs. Bayadog, 328 SCRA 122, where the petition for the declaration of nullity of marriage was filed by the children of the deceased contracting party only after the latter’s death, the Supreme Court ruled that such a petition can still proceed. The Supreme Court justified its decision by stating that a void marriage is considered as having never to have taken place and will be treated as non-existent by the courts. As such, the petition is imprescriptible and can be filed by the children even after the death of the contracting party, who was their father. The Supreme Court said that “if the death of either party would extinguish the cause of action or the ground for defense, then the same cannot be considered imprescriptible’’ which should not be the case. However under Supreme Court en banc resolution in A.M. No. 02-11-10 which took effect on March 15, 2003, the ruling in the Ninal case as to prescription does not hold anymore because said resolution provides that only the husband and wife can file the case and, if filed, the case will be closed or terminated if during its 256 PERSONS AND FAMILY RELATIONS LAW Art. 39 pendency, either the husband or wife should die. Moreover, under the said new rules on declaration of nullity (A.M. No. 02-11-10), the heirs can no longer file a case for the nullity of marriage of their parents or of their parent with their step-parent (Enrico v. Heirs of Medinaceli, G.R. No. 173614, September 28, 2007, 534 SCRA 419). Under Executive Order Number 227, if the ground for decla- ration of nullity is that the spouse is psychologically incapacitated to perform the essential marital obligations and the marriage cer- emony was celebrated prior to the effectivity of the Family Code which was on August 3, 1988, such action or defense must be filed or invoked within ten years from August 3, 1988, or more specifically up to August 1, 1998. However, if the marriage was celebrated after the effectivity of the Family Code, the action or defense shall not prescribe. Republic Act Number 8533 further amended Article 39 by deleting the prescriptive period of 10 years. Hence, as it now stands, there is no prescriptive period to nullify a marriage under Article 36 even if the marriage were celebrated before August 3, 1988. All void marriages under the Family Code do not prescribe. PARTIES. While the Family Code is silent as to who can file a petition to declare the nullity of a marriage (Ninal v. Bayadog, 328 SCRA 122), only the husband or the wife can file a court case declaring the marriage void (Supreme Court Resolution A.M. No. 02- 11-10-SC, Carlos v. Sandoval, G.R. No. 179922, December 16, 2008). Significantly, it has been authoritatively opined that the equitable doctrine of unclean hands where the court should not grant relief to the wrongdoer is not a rule as applied in nullity actions because it is merely judge-made and has no statutory basis (See Faustin v. Lewis, 85 N.J. 507, 427 A.2d 1105). Any of the parties in a void marriage can file a nullity case even though such party is the wrongdoer (See Chi Ming Tsoi v. Court of Appeals, 78 SCAD 57, 266 SCRA 324). Moreover, what is sought to be protected here is also the interest and public policy of the State. In declaring a marriage void, the State expresses that it does not consider such a union as serving the fundamental purpose of the state in fostering and nurturing a family which is the foundation of society. Nonetheless, the wrongdoer may be held liable for damages by way of counterclaim by the other contracting party under the provisions on Human Relations in the Civil Code, specially Articles 19, 20, and 21 thereof. Significantly prior to the Supreme Court Resolution in A.M. No. 02-11-10-SC which took effect on March 15, 2003, any interested party, such as a the father or the step-children, can file a direct Art. 40 MARRIAGE 257 Void and Voidable Marriages case for nullity of marriage. Moreover, under the new rules on declaration of nullity, the heirs can no longer file a case for the nullity of marriage of their parents or of their parent with their step- parent (Enrico v. Heirs of Medinaceli, G.R. No. 173614, September 28, 2007, 534 SCRA 419). Thus, previously a father can file a case for declaration of nullity of a bigamous marriage entered into by his daughter and a married man (Cojuangco v. Romillo, 167 SCRA 751). Likewise, the legitimate heirs can file a suit against their stepmother for the declaration of nullity of her marriage with their deceased father to protect their successional rights (Niñal v. Bayadog, 328 SCRA 122). Now, under the new rules, parents cannot file a case for nullity in relation to the marriage of their children. Neither can an heir file such a case in relation to the marriage of his or her parent with another (Enrico v. Heirs of Medinaceli, G.R. No. 173614, September 28, 2007, 534 SCRA 419). In Perez v. Court of Appeals, G.R. No. 162580, January 27, 2006, 480 SCRA 411 where the second wife filed a petition for intervention in the declaration-of-nullity-of marriage case filed by her husband in relation the latter’s first marriage, the Supreme Court denied such intervention on the ground that the second wife has no legal interest to justify her intervention. The Supreme Court said that, since the divorce obtained by her husband in the Dominican Republic from the first wife to be able to marry the second wife was not recognized in the Philippines, Philippine law does not recognize the second marriage of her husband to her (the second wife). However a void marriage can still be collaterally attacked by any interested party in any proceeding where the determination of the validity of marriage is necessary to give rise to certain rights or to negate certain rights. This can occur for example in an intestate proceeding where certain heirs can attack the validity of the marriage of the deceased parent so that the children of the deceased parent can be considered illegitimate for purposes of inheritance. Article 40. The absolute nullity of a previous marriage may be invoked for purposes of remar- riage on the basis solely of a final judgment declar- ing such previous marriage void. (n) JUDICIAL DECLARATION OF NULLITY. If a marriage between two contracting parties is void ab initio, any one of them 258 PERSONS AND FAMILY RELATIONS LAW Art. 40 cannot contract a subsequent valid marriage without a previous judicial declaration of nullity of the previous void marriage. A subsequent marriage without such judicial declaration of nullity of the previous void marriage is in itself void ab initio in accordance with Articles 40, 52, and 53. Also, in so far as Article 40 is concerned, if a judicial declaration of nullity were obtained and not registered with the local civil registrar and the liquidation, partition, and distribution of the properties, if any, were not also recorded in the proper registry of property in accordance with Articles 52 and 53 of the Family Code, any subsequent marriage is likewise void ab initio. Only after full compliance with Articles 52 and 53 can a subsequent valid marriage be entered into. Hence, though the first marriage is judicially declared void, any subsequent marriage may still be declared void because of the failure to comply with Articles 52 and 53. Also, if there is no judicial declaration of nullity and no decree of annulment, there can be no way by which the party can comply with Article 52 in the matter of the registration with the local civil registrar of a nullity or annulment decree prior to a subsequent marriage. In such, the marriage is likewise void under Articles 40, 52, and 53. For the sake of the good order of society and for the peace of mind of all persons concerned, it is generally expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction. Another reason why a judicial determination of such a marriage ought to be sanctioned is that an opportunity should be given, when the evidence is obtainable and the parties living, to have the proof of invalidity of such marriage presented in the form of a judicial record, so that it cannot be disputed or denied (35 Am. Jur. 220). HISTORICAL BACKGROUND OF THE NEED FOR A JUDI- CIAL DECLARATION OF NULLITY. Prior to the effectivity of the Family Code, the rule on the need for a judicial declaration of nullity of a void marriage for purposes of remarriage changed from time to time. Thus, in People v. Mendoza (95 Phil. 845) decided on September 28, 1954 and People v. Aragon (100 Phil. 1033) decided on February 28, 1957, the Supreme Court ruled that there was no need for a judicial declaration of nullity of a void marriage. Then, in Gomez v. Lipana (33 SCRA 614) decided on June 30, 1970 and Conseguera v. Conseguera (37 SCRA 315) decided on January 30, 1971, the Supreme Court changed the rule and pronounced that there was a need for a judicial declaration of nullity of a void marriage. Thereafter, in Odayat v. Amante (77 SCRA 338) decided on June 2, 1977 and in Art. 40 MARRIAGE 259 Void and Voidable Marriages Tolentino v. Paras (122 SCRA 525) decided on May 30, 1983, the Supreme Court reverted to the rule that there was no need for a judicial declaration for nullity of a void marriage. Subsequently, in Wiegel v. Sempio Diy (143 SCRA 499) decided later on August 19, 1986, the Supreme Court returned to the rule that there was a need for a judicial declaration of nullity of a void marriage. Then, in a later case, Yap v. Court of Appeals (145 SCRA 229), decided on October 28, 1986, the Supreme Court again reverted to the rule that there was no need for a judicial declaration of nullity of a void marriage. Finally, on August 3, 1988, the Family Code took effect which provides in Article 40 thereof that “the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void”; thus, by statute, the rule now is that there is a need for a judicial declaration of nullity of a void marriage only for purposes of remarriage. As a consequence of these changing rules, the status of a subsequent marriage depends upon the time of the solemnization of the said subsequent marriage. For example, Juan and Ana were married to each other on September 2, 1952. The marriage was, however, void because there was no marriage license. Without having his marriage with Ana judicially declared null and void, Juan married Gina. The following scenarios can happen, thus: 1) If Juan married Gina on March 7, 1960, this subse- quent marriage is valid because, at the time of the second mar- riage ceremony, the prevailing rule is the doctrine laid down in the Mendoza and Aragon cases allowing the validity of the subsequent marriage of Juan and Gina without need of a judi- cial declaration of nullity of Juan’s previous void marriage with Ana. 2) If Juan married Gina on March 7, 1972, this subse- quent marriage is void because, at the time of the second mar- riage ceremony, the prevailing rule is the doctrine laid down in the Gomez and Conseguera cases requiring a judicial declara- tion of nullity of Juan’s previous void marriage with Ana. 3) If Juan married Gina on March 7, 1978, this subse- quent marriage is valid because, at the time of the second mar- riage ceremony, the prevailing rule is the doctrine laid down in the Odayat case reasserting the rule in the Mendoza and Ara- gon cases allowing the validity of the subsequent marriage of Juan and Gina without need of a judicial declaration of nullity of Juan’s previous void marriage with Ana (See Ty v. Court of 260 PERSONS AND FAMILY RELATIONS LAW Art. 40 Appeals, G.R. No. 127406, November 27, 2000; Apiag v. Can- tero, 268 SCRA 1997). 4) If Juan married Gina on March 7, 1985, this subse- quent marriage is valid because, at the time of the second mar- riage ceremony, the prevailing rule is the doctrine laid down in the Tolentino case reasserting the rule in the Odayat, Mendoza and Aragon cases allowing the validity of the subsequent mar- riage of Juan and Gina without need of a judicial declaration of nullity of Juan’s previous void marriage with Ana. 5) If Juan married Gina on September 15, 1986, this subsequent marriage is void because, at the time of the second marriage ceremony, the prevailing rule is the doctrine laid down in the Wiegel case reasserting the rule in the Gomez and Conseguera cases requiring a judicial declaration of nullity of Juan’s previous void marriage with Ana. 6) If Juan married Gina on December 26, 1986, this subsequent marriage is valid because, at the time of the second marriage ceremony, the prevailing rule is the doctrine laid down in the Yap case reasserting the rule in the Odayat, Mendoza and Aragon cases allowing the validity of the subsequent marriage of Juan and Gina without need of a judicial declaration of nullity of Juan’s previous void marriage with Ana. 7) If Juan married Gina on March 7, 1991, this subsequent marriage is void because, at the time of the second marriage ceremony, the prevailing rule is Article 40 of the Family Code which provides that “the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void” reasserting the doctrine laid down in the Wiegel, Gomez and Conseguera cases requiring a judicial declaration of nullity of Juan’s previous void marriage with Ana (See Atienza v. Brilliantes, 60 SCAD 119, 243 SCRA 32; Terre v. Terre, 211 SCRA 7). The Supreme Court, in the case of Domingo v. Court of Appeals, et al., 44 SCAD 955, 226 SCRA 572, had the occasion to discuss the reason for the need to obtain a judicial declaration of nullity for purposes of remarriage and the proper interpretation of Article 40 of the Family Code. After tracing the changing doctrines in relation to the need of obtaining a judicial declaration of nullity, the Supreme Court said: Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required Art. 40 MARRIAGE 261 Void and Voidable Marriages either as a cause of action or a ground for defense. Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage to be free from legal infirmity is a final judgment declaring the previous marriage void. The Family Law Revision Committee and the Civil Code Revision Committee which drafted what is now the Family Code of the Philippines took the position that parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again. This is borne out by the following minutes of the 152nd Joint Meeting of the Civil Code and Family Code Committees where the present Article 40, then Art. 39, was discussed. “B. Article 39. — The absolute nullity of a marriage may be invoked only on the basis of a final judgment declaring the marriage void, except as provided in Article 41. Justice Caguioa remarked that the above provision should include not only void but also voidable marriages. He then suggested that the above provision be modified as follows: The validity of a marriage may be invoked only . . . Justice Reyes (J.B.L. Reyes), however, proposed that they say: The validity or invalidity of a marriage may be invoked only . . . On the other hand, Justice Puno suggested that they say: The invalidity of a marriage may be invoked only . . . Justice Caguioa explained that his idea is that one cannot determine for himself whether or not his marriage is valid and that a court action is needed. Justice Puno accordingly proposed that the provision be modified to read: The invalidity of a marriage may be invoked only on the basis of a final judgment annulling the marriage or declaring the marriage void, except as provided in Article 41. 262 PERSONS AND FAMILY RELATIONS LAW Art. 40 Justice Caguioa remarked that in annulment, there is no question. Justice Puno, however, pointed out that, even if it is a judgment of annulment, they still have to produce the judgment. Justice Caguioa suggested that they say: The invalidity of a marriage may be invoked only on the basis of a final judgment declaring the marriage invalid, except as provided in Article 41. Justice Puno raised the question: When a marriage is declared invalid, does it include the annulment of a marriage and the declaration that the marriage is void? Justice Caguioa replied in the affirmative. Dean Gupit added that in some judgments, even if the marriage is annulled, it is declared void. Justice Puno suggested that this matter be made clear in the provision. Prof. Baviera remarked that the original idea in the provision is to require first a judicial declaration of a void marriage and not annullable marriages, with which the other members concurred. Judge Diy added that annullable marriages are presumed valid until a direct action is filed to annul it, which the other members affirmed. Justice Puno remarked that if this is so, then the phrase ‘absolute nullity’ can stand since it might result in confusion if they change the phrase ‘invalidity’ if what they are referring to in the provision is the declaration that the marriage is void. Prof. Bautista commented that they will be doing away with collateral defense as well as collateral attack. Justice Caguioa explained that the idea in the provision is that there should be a final judgment declaring the marriage void and a party should not declare for himself whether or not the marriage is void, which the other members affirmed. Justice Caguioa added that they are, therefore, trying to avoid a collateral attack on that point. Prof. Bautista stated that there are actions which are brought on the assumption that the marriage is valid. He then asked: Are they depriving one of the rights to raise the defense that he has no liability because the basis of the liability is void? Prof. Bautista added that they cannot say that there will be no judgment on the validity or invalidity of the marriage because it will be taken up in the same proceeding. It will not be a unilateral declaration that it is a void marriage. Justice Caguioa saw the point of Prof. Bautista and suggested that they limit the provision to remarriage. He then proposed that Article 39 be reworded as follows: Art. 40 MARRIAGE 263 Void and Voidable Marriages The absolute nullity of a marriage for purposes of remarriage may be invoked only on the basis of final judgment . . . Justice Puno suggested that the above be modified as follows: The absolute nullity of a previous marriage may be invoked for purposes of establishing the validity of a subsequent marriage only on the basis of a final judgment declaring such previous marriage void, except as provided in Article 41. Justice Puno later modified the above as follows: For the purpose of establishing the validity of a subsequent marriage, the absolute nullity of a previous marriage may only be invoked on the basis of a final judgment declaring such nullity, except as provided in Article 41. Justice Caguioa commented that the above provision is too broad and will not solve the objection of Prof. Bautista. He proposed that they say: For the purpose of entering into a subsequent marriage, the absolute nullity of a previous marriage may only be invoked on the basis of a final judgment declaring such nullity, except as provided in Article 41. Justice Caguioa explained that the idea in the above provision is that if one enters into a subsequent marriage without obtaining a final judgment declaring the nullity of a previous marriage, said subsequent marriage is void ab initio. After further deliberation, Justice Puno suggested that they go back to the original wording of the provision as follows: The absolute nullity of a previous marriage may be invoked for purposes of remarriage only on the basis of a final judgment declaring such previous marriage void, except as provided in Article 41.” In fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy. Just over a year ago, the Court made the pronouncement that there is a necessity for a judicial declaration of absolute 264 PERSONS AND FAMILY RELATIONS LAW Art. 40 nullity of a prior subsisting marriage before contracting another in the recent case of Terre v. Terre (211 SCRA 6). The Court, in turning down the defense of respondent Terre who was charged with grossly immoral conduct consisting of contracting a second marriage and living with another woman other than complainant while his prior marriage with the latter remained subsisting, said that “for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential.” As regards the necessity for a judicial declaration of absolute nullity of marriage, petitioner submits that the same can be maintained only if it is for the purpose of remarriage. Failure to allege this purpose, according to petitioner’s theory, will warrant dismissal of the same. Article 40 of the Family Code provides: “Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.” (n) Crucial to the proper interpretation of Article 40 is the position in the provision of the word “solely.” As it is placed, the same shows that it is meant to qualify “final judgment declaring such previous marriage void.” Realizing the need for careful craftsmanship in conveying the precise intent of the Committee members, the provision in question, as it finally emerged, did not state “the absolute nullity of a previous marriage may be invoked solely for purposes of remarriage . . .,” in which case “solely” would clearly qualify the phrase “for purposes of remarriage.” Had the phraseology been such, the interpretation of petitioner would have been correct and, that is, that the absolute nullity of a previous marriage may be invoked solely for purposes of remarriage, thus rendering irrelevant the clause “on the basis solely of a final judgment declaring such previous marriage void.” That Article 40 as finally formulated included the signi- ficant clause denotes that such final judgment declaring the previous marriage void need not be obtained only for the purposes of remarriage. Undoubtedly, one can conceive of other instances where a party might well invoke the absolute nullity of a previous marriage for purposes other than remarriage, such as in the case of an action for liquidation, partition, distribution and separation of property between the erstwhile spouses, as well as an action for the custody and support of their children and the delivery of the latters’ presumptive legitimes. In Art. 40 MARRIAGE 265 Void and Voidable Marriages such cases, evidence needs must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void. Hence, in the instance where a party who has previously contracted a marriage which remains subsisting desires to enter into another marriage which is legally unassailable, he is required by law to prove that the previous one was an absolute nullity. But this he may do on the basis solely of a final judgment declaring such previous marriage void. This leads us to the question: Why the distinction? In other words, for purposes of remarriage, why should the only legally acceptable basis for declaring a previous marriage an absolute nullity be a final judgment declaring such previous marriage void? Whereas, for purposes other than remarriage, other evidence is acceptable? Marriage, a sacrosanct institution, declared by the Con- stitution as an “inviolable social institution, is the foundation of the family;” as such, it “shall be protected by the State.” In more explicit terms, the Family Code characterizes it as “a spe- cial contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life.” So crucial are marriage and the family to the stability and peace of the nation that their “nature, consequences, and inci- dents are governed by law and not subject to stipulation . . .” As a matter of policy, therefore, the nullification of a marriage for the purpose of contracting another cannot be accomplished merely on the basis of the perception of both parties or of one that their union is so defective with respect to the essential requisites of a contract of marriage as to render it void ipso jure and with no legal effect — and nothing more. Were this so, this inviolable social institution would be reduced to a mockery and would rest on very shaky foundations indeed. And the grounds for nullifying marriage would be as diverse and far-ranging as human ingenuity and fancy could conceive. For such a socially significant institution, an official state pronouncement through the courts, and nothing less, will satisfy the exacting norms of society. Not only would such an open and public declaration by the courts definitively confirm the nullity of the contract of mar- riage, but the same would be easily verifiable through records accessible to everyone. That the law seeks to ensure that a prior marriage is no impediment to a second sought to be contracted by one of the 266 PERSONS AND FAMILY RELATIONS LAW Art. 40 parties may be gleaned from new information required in the Family Code to be included in the application for a marriage license, viz., “If previously married, how, when and where the previous marriage was dissolved and annulled” (Article 11 of the Family Code). Significantly, Article 40 of the Family Code, which is a rule of procedure (Atienza v. Brillantes, Jr., 60 SCAD 119, 243 SCRA 32), in effect states that the only acceptable proof of the nullity of a first marriage for purposes of remarriage is a judicial declaration of nullity (Domingo v. Court of Appeals, 44 SCAD 955, 226 SCRA 572). Article 40, in relation to Articles 52 and 53, has the effect of making the subsequent marriage void if it were contracted before the declaration of nullity of the first void marriage. The aim of Article 40, in requiring for purposes of remarriage a judicial declaration of nullity by final judgment of the previously contracted void marriage, is “to do away with any continuing uncertainty on the status of the second marriage” (Valdes v. RTC, 72 SCAD 967, 260 SCRA 221). The second marriage shall likewise be void. In De Castro v. Assidao-De Castro, G.R. No. 160172, February 13, 2008, 545 SCRA 162, the Supreme Court ruled that in a case for support, a lower court can declare a marriage void even without prior judicial declaration of nullity of a void marriage filed in a separate action considering that the determination of the issue on the validity of marriage was important in the resolution of the right of the child to be supported. This is so because the validity of a marriage, as a general rule, can be collaterally attacked. It reiterated however the ruling in the Domingo case, supra, that, for purposes of remarriage, the only acceptable proof is a judicial declaration of nullity of marriage. ARTICLE 40 AND BIGAMY. The law distinctly separated the provisions of a subsequent void marriage contracted while a previous void marriage is still subsisting, which is contained in Articles 40 in relation to Articles 52 and 53, from the provisions on void bigamous marriage, which are contained in Article 35(4) and Article 41. All of these provisions contemplate a situation where the subsequent marriage is void but they differ on the status of the first marriage. If the first marriage is void and a party to that first marriage subsequently remarries without obtaining a judicial declaration of nullity of the first marriage, there is no doubt that the subsequent marriage is likewise void. It is void not because it is bigamous but because it failed to comply with the requirements under Article 40 Art. 40 MARRIAGE 267 Void and Voidable Marriages (See Valdes v. RTC, 72 SCAD 967, 260 SCRA 221) and, pertinently, Articles 52 and 53. Thus, if the contracting parties marry without a marriage license and they do not fall under the exceptions for obtaining a valid marriage license, their marriage is void on the ground of absence of a formal requirement namely: a valid marriage license. If one of them remarries without procuring a judicial declaration of nullity of the first marriage, the subsequent marriage is void not because it is bigamous but because it violates Article 40 in relation to Articles 52 and 53. Article 40 does not provide or expressly declare or define that a subsequent void marriage obtained in violation of Article 40 is bigamous. This is precisely because there is no bigamy if the first marriage is void and Article 40 precisely contemplates a situation where the first marriage is void. On the other hand, a subsequent void bigamous marriage contemplates a situation where such subsequent marriage was contracted at the time when the first marriage, which is valid in all respects, was still subsisting. A void bigamous marriage therefore involves a situation where the first marriage is not void but completely valid or at least annullable. In other words, in a bigamous void marriage, the subsisting first marriage is valid, while in Article 40 in relation to Articles 52 and 53, the subsisting first marriage is void. It is very interesting to note however that, in Nicdao Cariño v. Cariño, G.R. No. 132529, February 2, 2001, the Supreme Court, while acknowledging that the previous marriage was void for having been solemnized without a marriage license, nevertheless stated that the subsequent marriage of one of the parties was bigamous because the first marriage, though void, was still presumed to be valid considering that there was no judicial declaration of nullity of the first marriage. Accordingly, the Supreme Court applied the property regime under Article 148. This particular decision creates confusion for, in making the presumption, there seems to be no more distinction between the voidness of the subsequent marriage under Article 40 and the voidness of the subsequent marriage due to bigamy under Article 41. By the statement of the Supreme Court presuming the validity of the first marriage, though it is indeed void due to lack of marriage license, it obfuscates the difference between Articles 40 and 41. The question now is this: if the first marriage will always be presumed valid, though it is clearly void, would there still be any difference between Article 40 and bigamy under Article 41? Is it not the law in Article 40 that there is precisely no judicial 268 PERSONS AND FAMILY RELATIONS LAW Art. 40 declaration of nullity of the first void marriage? If in such case all subsequent marriages shall be considered void on the ground of bigamy anyway, what then would be the usefulness of Article 40 especially in the light of the doctrine laid down in the Valdez v. RTC case, 260 SCRA 221, that the subsequent void marriage in Article 40 is a very exceptional void marriage? It is submitted therefore that, despite the decision of the Supreme Court in the Nicdao Cariño case, the basic difference between Article 40 and Article 41 must still be maintained. ARTICLE 40 AND CRIMINAL BIGAMY. The crime of bigamy under our laws is committed by any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceeding (Article 349 of the Revised Penal Code). The crime of bigamy therefore contemplates a situation where the first marriage is valid or at least annullable and not void from the beginning. It likewise contemplates a situation where the subsequent marriage would have been valid had it not been bigamous. Hence, if the second marriage is likewise void because of legal grounds other than bigamy, there can be no crime of bigamy. It must likewise be pointed out that good faith in contracting the second marriage is a defense in the crime of bigamy. However in the case of Mercado v. Mercado, G.R. No. 137110, August 1, 2000, 337 SCRA 122, the Supreme Court held that the criminal offense of bigamy is committed for as long as a subsequent marriage was contracted by a person without him or her obtaining a judicial declaration of nullity of his or her first marriage pursuant to Article 40 of the Family Code. The Supreme Court did not find it material to focus on the nullity of the first marriage but instead merely reasoned that, for as long as Article 40 of the Family Code was not complied with, the subsequent marriage will always be criminally bigamous. Hence, the ruling, in effect, states, that criminal bigamy is determined not by the fact that the first marriage is really legally void but by the fact that no judicial declaration of nullity of the first marriage was obtained prior to the subsequent marriage. This decision is the subject of a strong dissenting opinion of Associate Justice Jose Vitug. He stated that the criminal law on bigamy contemplated an existing marriage or at least an annullable or voidable one but not a null and void one. When the criminal law on bigamy referred to a “legally dissolved’’ marriage, it clearly contemplates a marriage which is at least annullable or voidable Art. 40 MARRIAGE 269 Void and Voidable Marriages but not void. He observed that, it has been a sound rule in criminal law that a void marriage is a defense in a criminal bigamy case regardless of whether or not a judicial declaration of its nullity has been obtained. This is so because the criminal law on bigamy, as explained by the Supreme Court in the case of People v. Aragon, 100 Phil. 1033, does not require a judicial declaration of nullity in order to set up the defense of the nullity marriage in cases of criminal bigamy. He stated that the total nullity and inexistence of a void marriage “should be capable of being independently raised by way of a defense in a criminal case for bigamy.” He observes that there is “no incongruence between this rule in criminal law and of the Family Code and each may be applied within the respective spheres of governance.” The dissenting opinion of Associate Justice Jose Vitug in the Mercado case appears to be the correct rule. While the accused may have violated Article 40, such violation is not a bar in invoking the nullity of the first marriage because Article 40 merely aims to put certainty as to the void status of the subsequent marriage and is not aimed as a provision to define bigamy under the Family Code or criminal bigamy under the Revised Penal Code. The only effect of the non-observance of Article 40 is to make the subsequent marriage void pursuant to Articles 52 and 53. Relevantly, in an earlier case entitled People v. Cobar, CA-G.R. No. 19344, November 10, 1997, the Court of Appeals had occasion to discuss the crime of bigamy and Article 40, which is in consonance with the opinion of Justice Jose Vitug. The pertinent portions of the well-written decision are as follows: Is a party to a void marriage who remarries without a prior judicial declaration of nullity of such marriage guilty of bigamy? Accused Vicente Y. Cobar poses the above question in his appeal from the decision in Criminal Case No. 1268 of the Regional Trial Court, 10th Judicial Region Branch 13, at Oroquieta City, the dispositive portion of which reads as follows: WHEREFORE, finding him guilty beyond reasonable doubt of the crime of bigamy under Article 349 of the Revised Penal Code and applying the provisions of the Indeterminate Sentence Law, the Court hereby sentences accused Vicente Y. Cobar as principal, to suffer an indeterminate penalty of imprisonment from ONE (1) YEAR of prision correccional as its 270 PERSONS AND FAMILY RELATIONS LAW Art. 40 minimum to EIGHT (8) YEARS and ONE (1) DAY of prision mayor as maximum with the necessary penalty provided for by law and to pay the costs. Briefly stated in chronological order are the pertinent facts which are not in dispute: In September 1964, Marriage License No. 3942696 was issued at Marawi City in favor of appellant Vicente Y. Cobar and Rosalita Decena (Exh. 1-D). On September 1, 1965 or about a year later, the two were married before Marawi City Judge Demetrio B. Benitez (Exh. 2). On July 19, 1991, appellant contracted a second marriage with co-accused Genara Herodias. The marriage was solemnized by Judge Triumfo Velez of the Municipal Circuit Trial Court of Sapang Dalaga, Misamis Occidental (Exh. A). At that time, appellant’s marriage with Rosalita Decena had not been judicially declared void ab initio. To this day, Rosalita Decena is still alive. Under the foregoing facts, is appellant liable for bigamy as defined and penalized under Article 349 of the Revised Penal Code? The court a quo believes so, this despite its ruling, which we find to be in accord with law and the evidence, that accused Vicente Cobar and his first wife Rosalita Decena not having made use of their marriage license No. 3942490 within the limited period of 120 days from its issuance in September 1964 (“Exhibit 1-D”), the same was automatically cancelled thereafter and their marriage contracted on September 1, 1965 (Exhibit “D-4”) was deemed solemnized without a license and as such void from the beginning pursuant to paragraph 3 of Article 35 of the Family Code or paragraph 3 of Article 80 of the New Civil Code. xxx xxx xxx Not in agreement with the court a quo, the Solicitor General recommends appellant’s acquittal for the following reasons: An accused is entitled to acquittal unless his guilt is proven beyond reasonable doubt (People v. Dupali, 48 SCAD 269, 230 SCRA 621). In this case, it was established as a fact that appellant’s supposed first marriage was void ab initio; hence, he was never legally married to Rosalita Decena. However, the trial court convicted appellant based Art. 40 MARRIAGE 271 Void and Voidable Marriages on the Supreme Court’s pronouncement in Domingo vs. Court of Appeals, supra. The trial court’s reliance on Domingo is mis- placed. The pronouncements thereon has no rel- evance to a prosecution for bigamy. The petition which gave rise to the aforesaid decision “seeks the reversal of respondent court’s (Court of Appeals) ruling finding no grave abuse of discretion in the lower court’s order denying petitioner’s motion to dismiss the petition for declaration of nullity of mar- riage and separation of property” (on p. 574). The Supreme Court summarized the issues confronting it in said case as follows: “First, whether or not a petition for judi- cial declaration of a void marriage is necessary. If in affirmative, whether the same should be filed only for purposes of remarriage. Second, whether or not SP No. 1989-5 is the proper remedy of private respondent to recover certain real and personal properties allegedly belonging to her exclusively (on p. 577).” The Domingo v. Court of Appeals case is the authority for the rule that “in the instance where a party who has previously contracted a marriage which remains subsisting desires to enter into another marriage is legally unassailable, he is required by law to prove that the previous one was an absolute nullity. But this he may do on the basis solely of a final judgment declaring such previous marriage void (on p. 584); otherwise, said subsequent marriage is void ab initio. However, for purposes other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the erstwhile spouses as well as an action for the custody and support of their latter’s presumptive legitime, (i)n such cases, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void” (on pp. 583-584). In convicting appellant, the trial court dis- regarded the doctrine laid down in Domingo and 272 PERSONS AND FAMILY RELATIONS LAW Art. 40 focused wholly on the Supreme Court’s casual com- ment which actually cited the opinion of J. Alicia V. Sempio-Diy, found on page 46 of her book Handbook On the Family Code of the Philippines, stating that Article 40 of the Family Code is “also for the protec- tion of the spouse who believing that his or her mar- riage is null and void, marries again and (w)ith the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy.” Article 40 of the Family Code states: “Art. 40. The absolute nullity of a previ- ous marriage may be invoked for purposes of remarriage on the basis solely of a final judg- ment declaring such previous marriage void.” The foregoing opinion of J. Sempio-Diy only means that getting a court judgment declaring a previous marriage void ab initio makes matters clear between the parties and thus prevent the person who contracted a subsequent marriage from being exposed to a prosecution for bigamy. This is so because without such court declaration the other party to the previous marriage of his/her heirs naturally might contend that said marriage is valid, hence, raising doubts that the subsequent marriage could be bigamous. xxx xxx xxx It being established that appellant’s first marriage is void ab initio for lack of a valid marriage license at the time of its celebration, appellant is not liable for bigamy because the element that there should be a first valid marriage when he contracted the second one is lacking (pp. 59-63, Rollo). We share the view of the Solicitor General. In addition to the reasons given in support thereof, we shall state our own justification for that view. Bigamy is committed by “any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings” (Article 349, RPC). Thus, constitutive of said crime are the following essential ingredients: Art. 40 MARRIAGE 273 Void and Voidable Marriages FIRST: The offender has been legally married. This means that the former marriage is either valid or voidable, the latter being presumed valid until it is judicially annulled. Thus, in People v. Mendoza, 95 Phil. 845, it was held that a prosecution for bigamy based on a void marriage will not lie. And in People v. Aragon, 100 Phil. 1033, the Supreme Court reiterated its ruling in Mendoza that “no judicial decree is necessary to establish its invalidity as distinguished from mere annullable marriages.” SECOND: The marriage has not been legally dissolved or in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code. The term legally dissolved used in Article 349 presupposes a prior valid or voidable marriage. Such marriage is dissolved upon the death of either spouse and in case of a voidable marriage, by the annulment thereof. The term could not be deemed to embrace a marriage which is void ab initio because this is considered non-existent. Of course for purposes of remarriage, there is a necessity for a judicial declaration of nullity of a void marriage. But such declaration does not dissolve the marriage; it merely confirms its nullity or non-existence. THIRD: The offender contracts a second or subsequent marriage. FOURTH: The second or subsequent marriage has all the essential requisites for validity. An indispensable requisite to the validity of a marriage contracted subsequent to a void one is a final judgment declaring the former marriage a nullity (Article 40, Family Code), which must be recorded in the appropriate civil registry (Article 52, Ibid.). Without such declaration and registration, the subsequent marriage shall be null and void (Article 53, Ibid.). Clearly, appellant is entitled to an acquittal because of the absence of the first and fourth elements of bigamy. The nullity of appellant’s first marriage to Rosalita Decena is obvious from the marriage certificate, Exhibit “1,” which shows that the marriage license had already expired at the time of its celebration. Far from proving that appellant is legally married to Rosalita Decena, the prosecution’s evidence indubitably shows otherwise. As regards the fourth element, it must be emphasized that appellant’s subsequent marriage to Genara Herodias is void not because it is bigamous but for his failure to comply with Articles 274 PERSONS AND FAMILY RELATIONS LAW Art. 40 40 and 52 of the Family Code which require, as additional requisites for its validity, a judicial declaration of nullity of the former marriage and the registration of the judgment with the civil registry. This is not to say, however, that a party to a void marriage who remarries without such marriage being first judicially de- clared a nullity incurs no criminal liability. Prior to the effectiv- ity of the Family Code, not only would the party contracting such marriage be free from any penal sanction: his subsequent marriage would also be considered valid, a judicial declaration of nullity of the former marriage being then unnecessary. This no longer holds true in view of the provisions of Articles 40, 52 and 53 thereof. Without such judicial declaration and its regis- tration with the civil registry, the subsequent marriage will be null and void. What is more, the party contracting such mar- riage will be guilty of the crime defined and penalized under Article 350 of the Revised Penal Code, which provides inter alia as follows: Art. 350. Marriage contracted against provi- sions of laws. — The penalty of prison correccional in its medium and maximum periods shall be im- posed upon any person who, without being included in the provisions of the next preceding article, shall contract marriage knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment. (Un- derscoring supplied) It is not disputed that appellant entered into a subsequent marriage with Genara Herodias knowing that he had not complied with the requirements of Articles 40 and 52 of the Family Code. Undoubtedly, his acts come squarely within the purview of Article 350 not Article 349, of the Revised Penal Code. However, while the offense penalized under Article 350 is of lesser gravity than bigamy, it is not necessarily included in the latter. Hence, appellant may not be convicted of a violation of Article 350 under the information charging him with bigamy. We are aware of the strong dissent of Justice Alex Reyes in Mendoza to the effect that “though the logician may say that where the former marriage was void there would be nothing to dissolve, still it is not for the spouses to judge whether that marriage was void or not. That judgment is reserved to the courts.” It is worthy to note, however, that in Aragon, the majority of the Supreme Court while acknowledging the weighty reasons for the dissent, rejected it for the following reasons: Art. 41 MARRIAGE 275 Void and Voidable Marriages We are aware of the very weighty reasons expressed by Justice Alex Reyes in his dissent in the case above-quoted. But these weighty reasons notwithstanding the very fundamental principle of strict construction of penal laws in favor of the accused, which principle we may not ignore seems to justify our stand in the above-cited case of People v. Mendoza. Our Revised Penal Code is of recent enactment and had the rule enunciated in Spain and in America requiring judicial declaration of nullity of ab initio void marriages been within the contemplation of the legislature, an express provision to that effect would or should have been inserted in the law. In its absence, we are bound by said rule of strict interpretation already adverted to. To our mind, these reasons remain valid. And so, it is our opinion that the rule enunciated in Men- doza reiterated in Aragon, still prevails, this notwithstanding the provisions of the Family Code particularly Articles 40, 52 and 53 thereof and the prouncements of the Supreme Court in Consuegra v. GSIS, 37 SCRA 315; Weigel v. Sempio-Diy, 134 SCRA 499; Terre v. Terre, 211 SCRA 6; and Domingo v. CA, 44 SCAD 455, 226 SCRA 572. The provisions of the Family Code on judicial declaration of nullity of a void marriage and its registration with the proper civil registry merely impose additional requisites for the validity of a subsequent marriage contracted by a party to a void marriage and are not meant to change the concept of bigamy or its elements. As to the cases of Consuegra, Weigel, Terre, and Domingo, suffice it to stress that these do not involve prosecutions for bigamy. Consequently, any pronouncement made therein tending to imply that, in a case for bigamy, a judicial declaration is the only admissible proof of the nullity of the former marriage, would merely be an obiter dictum and as such, could not prevail over the rule enunciated by the Supreme Court in Mendoza. Article 41. A marriage contracted by any per- son during the subsistence of a previous marriage shall be null and void, unless before the celebra- tion of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disap- 276 PERSONS AND FAMILY RELATIONS LAW Arts. 41-42 pearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purposes of contracting the subse- quent marriage under the preceding paragraph, the spouse present must institute a summary pro- ceeding as provided for in this Code for the decla- ration of presumptive death of the absentee, with- out prejudice to the effect of reappearance of the absent spouse. (83a) Article 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of re- appearance of the absent spouse, unless there is a judgment annulling the previous marriage or de- claring it void ab initio. A sworn statement of the fact and circum- stances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any inter- ested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n) BIGAMOUS MARRIAGE. As a general rule, a marriage con- tracted during the lifetime of the first spouse is null and void (Gomez v. Lipana, 33 SCRA 615). A person who marries another, knowing that the latter is already married and that his marriage is valid and subsisting, can be prosecuted for bigamy (People v. Archilla, 1 SCRA 698). Even if the first marriage is annullable or voidable, any subsequent marriage celebrated without such prior annullable or voidable marriage being in fact annulled, is bigamous and therefore void ab initio. When the law states “the subsistence of a previous marriage,” the said phrase necessarily implies a valid marriage. It does not mean a void marriage because the same is technically non- existent. If the previous marriage is void and there is a subsequent marriage without judicial declaration of nullity of the first void marriage, the subsequent marriage is also void technically because it does not comply with Articles 40, 52, and 53 and not because it is Arts. 41-42 MARRIAGE 277 Void and Voidable Marriages bigamous. However in the Nicdao Carino (supra) and the Mercado case (supra), the Supreme Court appeared to have said that, for as long as, the first void marriage is not judicially declared void, any subsequent marriage is also bigamous. EXCEPTION. A “bigamous” marriage may be considered valid if, prior to the subsequent marriage and without prejudice to the effect of the reappearance of the other spouse, the present spouse obtains a judicial declaration of presumptive death via a summary proceeding in a court of competent jurisdiction. But before such declaration can be obtained, it must be shown that the prior spouse had been absent for four consecutive years and the present spouse had a well founded belief that the absent spouse is dead. The period is shortened to two years in case of disappearance where there is danger of death under the circumstances set forth in Article 391 of the Civil Code. These circumstances are when the absent spouse was on a vessel and the same was lost during a sea voyage and he has not been heard of for two years since the loss; when the absent spouse was on an airplane which was missing and such spouse was not heard of for two years since the loss of the airplane; when the absent spouse who was in the armed forces has taken part in the war and has been missing for two years; and when the absent spouse has been in danger of death under other circumstances. The judicial declaration of presumptive death is without prejudice to the effect of reappearance of the absent spouse. It must be remembered that the judicial declaration is merely a statement to the effect that the prior spouse is merely presumed dead. The declared presumption will still be only prima facie, and can be overthrown by evidence (People v. Archilla, 1 SCRA 698). Hence, the fact of death is not really established. A judicial declaration of presumptive death is a new require- ment under the Family Code. It was not required in the Civil Code which the Family Code amended (Valdez v. Republic, G.R. No. 180863, September 8, 2009). TERMINATION OF THE SUBSEQUENT MARRIAGE. Unless there is a judgment annulling the previous marriage or declaring it void ab initio, automatic termination of the subsequent marriage can be obtained by the recording of the affidavit of reappearance of the absent spouse in the civil registry of the residence of the parties to the subsequent marriage pursuant to Article 42. This is the only instance where a marriage is terminated extra-judicially. In case 278 PERSONS AND FAMILY RELATIONS LAW Arts. 41-42 the reappearance is disputed, the same shall be subject to judicial determination. If, however, the spouse reappeared and he or she or any inter- ested party does not file an affidavit or sworn statement with the civil register of the fact of reappearance, there will technically exist two valid marriages. It is at this point where a valid “bigamous” marriage shall exist if the marriage between the present spouse and the reappearing spouse is in itself valid. However, if the marriage between them is also void, there is no subsequent valid bigamous marriage. LIQUIDATION OF THE PROPERTIES OF THE FIRST MARRIAGE. Under Article 41 of the Family Code, the judicial declaration of presumptive death should be issued for the purpose of contracting the subsequent marriage. After the issuance of this judicial declaration, the properties of the first marriage should be liquidated using by analogy the provisions of Articles 103 and 130 of the Family Code if the marriage to be liquidated is in itself valid. If there is no liquidation and the present spouse immediately remarries, the property regime that will apply in the subsequent marriage will be the complete separation of property. However if there were a liquidation, the parties may agree in the settlement as to what type of property regime will govern their marital relationship and, in the absence of such marriage settlement or when the latter is void, the spouses shall be governed by the absolute community of property regime. If the marriage is void, then the rules of co-ownership will apply and the properties will be liquidated in accordance with the said rules. For purposes of opening the succession of the absent spouse after the community property of the first marriage has been liquidated, the second paragraph of Article 390 of the Civil Code will apply stating that “the absentee shall not be presumed dead for purposes of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.” If the absentee disappears under circumstances where the risk of death is high as provided in Article 391 of the Civil Code, four years shall be enough for purposes of the division of the estate. But if the person proves to be alive, Rule 73, Section 4 of the Rules of Court provides that “he shall be entitled to the balance of his estate after payment of all his debts. The balance may be recovered by motion in the same proceeding.” Arts. 41-42 MARRIAGE 279 Void and Voidable Marriages WELL-FOUNDED BELIEF OF DEATH. A comparison of Article 41 with the repealed Article 83(3) of the Civil Code shows the following crucial differences. Under Article 41, the time required for the presumption to arise has been shortened to four (4) years; however, there is a need for a judicial declaration of presumptive death to enable the spouse present to remarry. Also, Article 41 of the Family Code imposes a stricter standard than the Civil Code. Article 83 of the Civil Code merely required either that there be no news that such absentee was still alive, or the absentee was generally considered to be dead and believed to be so by the spouse present, or was presumed dead under Articles 390 and 391 of the Civil Code. The Family Code, upon the other hand, prescribes a “well- founded belief” that the absentee is already dead before a petition for declaration of presumptive death can be granted (Republic of the Philippines v. Gregorio Nolasco, 220 SCRA 20). The requirement of “well-founded belief” depends on the circumstances of the case. In the case of Republic of the Philippines v. Gregorio Nolasco, 220 SCRA 20, the Supreme Court discussed the concept of “well-founded belief.” In that case, a Filipino seaman wanted to get a judicial declaration of presumptive death from the court relative to his missing English spouse. The Supreme Court ruled that the Filipino seaman failed to conduct a search for the missing wife with such diligence to give rise to a “well-founded belief” that she was dead. Pertinently, the Supreme Court stated: United States v. Biasbas (25 Phil. 71) is instructive as to the degree of diligence required in searching for a missing spouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy. He set up the defense of a good faith belief that his first wife had already died. The Court held that defendant had not exercised due diligence to ascertain the whereabouts of his first wife, noting that: “While the defendant testified that he had made inquiries concerning the whereabouts of his wife, he fails to state of whom he made such inquiries. He did not even write to the parents of his first wife, who lived in the Province of Pampanga, for the purpose of securing information concerning her whereabouts. He admits that he had a suspicion only that his first wife was dead. He admits that the only basis of his suspicion was the fact that she had been absent. x x x ’’ In the case at bar, the Court considers that the investiga- tion allegedly conducted by respondent in his attempt to ascer- 280 PERSONS AND FAMILY RELATIONS LAW Arts. 41-42 tain Janet Monica Parker’s whereabouts is too sketchy to form the basis of a reasonable or well-founded belief that she was already dead. When he arrived in San Jose, Antique after learn- ing of Janet Monica’s departure, instead of seeking the help of local authorities or of the British Embassy, he secured another seaman’s contract and went to London, a vast city of many mil- lions of inhabitants, to look for her there. x x x. Respondent’s testimony, however showed that he confused London for Liverpool and this casts doubt on his supposed efforts to locate his wife in England. The Court of Appeal’s justification of the mistake, to wit: “x x x. Well, while the cognoscente (sic) would readily know the geographical difference between London and Liverpool, for a humble seaman like Gregorio the two places could mean one place in England, the port where his ship docked and where he found Janet. Our own provincial folks, every time they leave home to visit relatives in Pasay City, Kalookan City, or Parañaque, would announce to friends and relatives, ‘We’re going to Manila.’ This apparent error in naming of places of destination does not appear to be fatal, is not well taken. There is no analogy between Manila and its neighboring cities, on the one hand, and London and Liverpool, on the other, which, as pointed out by the Solicitor General, are around three hundred fifty (350) kilometers apart. We do not consider that walking into a major city like Liverpool or London with a simple hope of somehow bumping into one particular person there — which is in effect what Nolasco says he did — can be regarded as a reasonably diligent search. The Court also views respondent’s claim that Janet Monica declined to give any information as to her personal background even after she had married the respondent too convenient an excuse to justify his failure to locate her. The same can be said of the loss of the alleged letters respondent had sent to his wife which respondent claims were all returned to him. Respondent said he had lost these returned letters, under unspecified circumstances. Neither can this Court give much credence to respondent’s bare assertion that he had inquired from their friends of her whereabouts, considering that respondent did not identify those friends in his testimony. The Court of Appeals ruled that since the prosecutor failed to rebut this evidence during trial, it is good evidence. But this kind of evidence cannot, by its nature, be rebutted. In any case, admissibility is not Arts. 41-42 MARRIAGE 281 Void and Voidable Marriages synonymous with credibility. As noted before, there are serious doubts to respondent’s credibility. Moreover, even if admitted as evidence, said testimony merely tended to show that the missing spouse had chosen not to communicate with their common acquaintances and not that she was dead. Respondent testified that immediately after receiving his mother’s letter sometime in January 1983, he cut short his employment contract to return to San Jose, Antique. However, he did not explain the delay of nine (9) months from January 1983, when he allegedly asked leave from his captain, to November 1983 when he finally reached San Jose. Respondent, moreover, claimed he married Janet Monica Parker without inquiring about her parents and their place of residence. Also, respondent failed to explain why he did not even try to get help of the police or other authorities in London and Liverpool in his effort to find his wife. The circumstances of Janet Monica’s departure and respondent’s subsequent behaviour make it very difficult to regard the claimed belief that Janet Monica was dead a well-founded one x x x. x x x Since respondent failed to satisfy the clear requirements of the law, his petition for judicial declaration of presumptive death must be denied.’’ Also, in the case of Republic v. Court of Appeals, G.R. No. 159614, December 9, 2005, 477 SCRA 277, where the person seeking a judicial declaration presented only the Barangay Captain, but did not present the persons from whom he allegedly made inquiries, and did not even make inquiries with his parents-in-law who knew of his wife’s abandonment of the conjugal abode, the Supreme Court ruled that there was a failure to prove a well-founded belief that the wife was already dead. JUDICIAL DECLARATION OF PRESUMPTIVE DEATH. As a general rule, no judicial declaration of presumptive death is required as such presumption arises from the law (In Re Szatraw, 81 Phil. 461). Under Articles 390 and 391 of the Civil Code, it is provided that, after an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes except for those of succession, in which case, the absentee shall not be presumed dead till after an absence of ten years. It is shortened to five years if he disappears after the age of seventy-five. In cases where the disappearance happened under circumstances described in Article 391 of the Civil Code where the risk of death is high, the period to have an absentee presumed dead, including for purposes of succession, is only four (4) years. It is only in Article 41 282 PERSONS AND FAMILY RELATIONS LAW Arts. 41-42 of the Family Code that a judicial declaration of presumptive death is mandatorily required by law to be obtained by the present spouse only for the purpose of capacitating the present spouse to remarry. The judicial proceeding shall be summary in nature in accordance with Article 253. For purposes of remarriage, the period of absence to be able to presume an absentee dead has been shortened to a normal period of four (4) consecutive years and two (2) consecutive years, if the disappearance occurred under circumstances described in Article 391 of the Civil Code where the danger of death is high. Such judicial declaration of presumptive death is the best evidence of the “well-founded belief” on the part of the present spouse that the absent spouse is dead. It immunizes the present spouse from being charged of bigamy, adultery or concubinage (Manuel v. People, G.R. No. 165842, November 29, 2005, 476 SCRA 461). SWORN STATEMENT OF REAPPEARANCE. If the absent spouse reappears, such spouse can easily terminate the subsequent marriage by executing a sworn statement or affidavit of the fact and circumstance of such reappearance and recording the same with due notice to the spouses of the subsequent marriage. The subsequent marriage is automatically terminated by the recording of the affidavit of reappearance in the civil registry of the residence of the parties to the subsequent marriage. Also, any interested party may file this sworn statement of reappearance. This includes their parents, their children, the present spouse and even the subsequent spouse of the present spouse. The parents and children of the other contracting spouse in the subsequent marriage are also interested parties. In the case of Social Security System v. Jarque Vda. De Bailon, 485 SCRA 376, March 24, 2006, the Supreme Court said: If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or by court action, such absentee’s mere reappearance, even if made known to the spouses in the subsequent marriage, will not terminate such marriage. Since the second marriage has been contracted because of a presumption that the former spouse is dead, such presumption continues inspite of the spouse’s physical reappearance, and by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is terminated as provided by law. Nothwithstanding the view of the Supreme Court that the pre- sumption of death will subsist upon the appearance of the absentee Arts. 41-42 MARRIAGE 283 Void and Voidable Marriages prior to the filing of the sworn statement of reappearance, it is submitted that the better view is that if the reappearance of the absent spouse is authentic, the judicial declaration of presumptive death is immediately rendered functus officio. The mere fact of reappearance renders without effect the judicial declaration of presumptive death creating therefore a valid bigamous marriage prior to the filing of the sworn statement of reappearance While the law provides that the termination of the subsequent marriage shall be automatic upon the recording of the sworn statement in the proper civil registry, such termination is without prejudice to the outcome of any judicial proceeding questioning such reappearance. Hence, if a person, claiming to be the reappearing spouse files such sworn statement and later it is judicially determined that such alleged reappearing spouse is actually an impostor, the automatic termination will be rendered ineffectual. In effect, there was no automatic termination because the sworn statement filed was not the correct or proper sworn statement having been fraudulently filed without the absent spouse really reappearing. Also, not being the real absent spouse or an interested party, he or she is not qualified by law to file such sworn statement of reappearance. Hence, the subsequent marriage will continue to subsist. If the reappearing spouse or any interested party does not file any sworn statement of reappearance, the subsequent marriage remains validly subsisting, while the first marriage is likewise considered subsisting not having been judicially nullified or annulled. However, as between the two marriages, the law or the state shall continue to protect the second marriage rather than the first. This is so because, if indeed the reappearing spouse wants to assert his or her rights, he or she could easily file the affidavit of reappearance to terminate the subsequent marriage. If he or she does not do so, then he or she cannot just cause a disturbance in the subsequent marriage without following the requirements of the law. In essence, therefore, the statutory requirement of the filing of a sowrn statement of reappearance also serves as the best evidence to show that the State is also prepared to return the preference to the first marriage and consider it as the only marriage allowable under the circumstances if even one of the parties or any interested person so desires. Hence, the recording requirements of the law must be observed. However, it must be important to note that, in case no sworn statement of reappearance is filed, a lot of confusing situations may 284 PERSONS AND FAMILY RELATIONS LAW Art. 43 arise among the parties concerned. Thus, the reappearing spouse cannot enter into a contract of marriage with another person. This is so because he or she is still married to the present spouse. If the reappearing spouse really wants to get married to another person, the reappearing spouse has no choice but to file a nullity or annulment case against the present spouse if there are valid grounds to do so. If the reappearing spouse has no grounds, then he or she will forever live as a married person despite the fact that his or her spouse is validly living as the wife or husband of another. If he or she remarries without obtaining a nullity or annulment decree, such subsequent marriage is either bigamous or violative of Articles 40, 52 and 53 and therefore void. Also, a confusing situation will arise where the subsequent new spouse may file a case for legal separation based on sexual infidelity against the present spouse if the latter, without filing an affidavit of reappearance, decides to have amorous relations with the reappearing husband whose marriage with her is likewise subsisting. However, whether the case will prosper is questionable because the present spouse is still married to the reappearing spouse. Thus, it can also be observed, therefore, that the filing of an affidavit of reappearance serves as the legal and speedy process through which the maintenance of an ordered and harmonious family relationship can be achieved. If the parties do not desire to make use of this process, then the legal disadvantages attendant in the confusing situation they themselves, in effect, fostered must be suffered or borne by them. CRIMINAL LIABILITY. Article 349 of the Revised Penal Code provides that the penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceeding. Article 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: 1) The children of the subsequent marriage conceived prior to its termination shall be consid- ered legitimate and their custody and support in case of dispute shall be decided by the court in a proper proceeding; 2) The absolute community of property or the conjugal partnership, as the case may be, shall Arts. 43-44 MARRIAGE 285 Void and Voidable Marriages be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeit- ed in favor of the common children or, if there are none, the children of the guilty spouse by a previ- ous marriage or in default of children, the innocent spouse; 3) Donations by reason of marriage shall re- main valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; 4) The innocent spouse may revoke the des- ignation of the other spouse who acted in bad faith as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and 5) The spouse who contracted the subse- quent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and in- testate succession. (n) Article 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of mar- riage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n) STATUS OF CHILDREN. Under Article 43, children conceived during the subsequent marriage contemplated in Article 41 in cases of presumptive death of one of the spouses and before termination of the same shall be considered legitimate. This is so because the children have been conceived either inside a valid bigamous marriage or inside a valid marriage despite the non-observance of Articles 40, 52 and 53. This status of the children will be maintained even if one of the contracting parties is in bad faith. It must be noted that such subsequent marriage in cases of presumptive death under Article 41 can only be considered void if, according to Article 44, both spouses were in bad faith in contracting the subsequent marriage. If only one is in bad faith, the marriage would still be valid and hence, the children born inside such marriage are legitimate. 286 PERSONS AND FAMILY RELATIONS LAW Arts. 43-44 EFFECT OF TERMINATION ON THE PROPERTY REGIME. The effect of the termination of the subsequent marriage on the property regime, whether absolute community or conjugal partnership, is the same. The property regime shall be dissolved and liquidated. After payment of all debts and obligations of the absolute community or conjugal partnership, the spouses shall divide the property equally or in accordance with the sharing stipulated in a valid marriage settlement, unless there has been a voluntary waiver of share by either of the spouses upon the judicial separation of the property. If either of the spouses acted in bad faith, the guilty spouse shall not get his share in the net profits of the property regime. His or her share shall be forfeited in favor of the common children. In the absence of the latter, the children by a previous marriage of the guilty spouse shall be given the share of the latter. Finally, in the absence of common children and children by a previous marriage of the guilty party, the share of the latter shall be forfeited in favor of the innocent spouse. For purposes of computing the net profits subject to forfeiture, the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution (Article 102[4]). DONATIONS BY REASON OF MARRIAGE. Donations are essentially gratuitous. Hence, if both parties are in good faith, the donation by reason of marriage shall be valid even in the event that the subsequent marriage has been terminated. It shall also be valid even if the donor acted in bad faith in contracting the marriage. If the donee acted in bad faith in contracting the marriage, the donation by reason of marriage ipso jure is terminated by operation of law. This rule applies with more reason if both parties acted in bad faith considering that in such a case, the marriage is void in accordance with Article 44 and therefore, the principal consideration for such donation does not exist. It may be argued however that since the fault is on the part of both contracting parties, neither may recover what he has given by virtue of the contract pursuant to the ordinary rules on contract set out in Article 1412 of the Civil Code. This view should not apply considering the express mandate of Article 44 and because marriage is a special contract vested with public interest. It is not a simple ordinary contract. Also, the doctrine Arts. 43-44 MARRIAGE 287 Void and Voidable Marriages of estoppel on both parties will not apply considering that such doctrine is not applicable if public policy is violated. Undoubtedly, marriage is a matter of public policy. For instance, if the present spouse, after obtaining the judicial declaration of presumptive death and before celebration of the subsequent marriage, is able to talk to the reappearing spouse, thereby knowing that he or she is alive, such present spouse is already in bad faith. If the other contracting party of the subsequent marriage is likewise in bad faith, the subsequent marriage will be void. In this case, any donation propter nuptias of the present spouse who is in bad faith in favor of the other contracting party who is also in bad faith will surely prejudice the reappearing spouse as he or she is a presumptive heir of the present spouse. Also, it can be said that, technically speaking, since the subsequent marriage is void, the present spouse who has subsequently married may even be considered as committing an act of adultery or concubinage. Under Article 739 of the Civil Code, a donation made between persons who are guilty of adultery or concubinage at the time of the donation is void. Article 44, however, provides that, where both parties are in bad faith, testamentary dispositions made by one in favor of the other are revoked by operation of law. DESIGNATION AS BENEFICIARY IN INSURANCE POLI- CY. The innocent spouse has the choice of revoking or maintaining as beneficiary in an insurance policy the other spouse who acted in bad faith. If the innocent spouse opts to revoke, he can do so even if the designation as beneficiary is irrevocable. DISQUALIFICATION AS TO INHERITANCE. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. During the 153rd joint meeting of the Civil Code and Family Law committees held on August 30, 1986, Justice Puno made an important clarificatory point on this matter, thus: At this point, Justice Puno raised a clarificatory question: The present law provides that there can be succession up to the fifth degree. Supposing there is a subsequent marriage, the parties to this subsequent marriage are within the fifth degree and there is bad faith, are they also going to disqualify the spouse who contracted the subsequent marriage in bad faith to inherit from the innocent spouse? Justice Caguioa replied in the affirmative and added that the disqualification is by a voluntary act done in bad faith. It was therefore clarified that 288 PERSONS AND FAMILY RELATIONS LAW Arts. 43-44 subparagraph (4) will apply even if the parties are mutual heirs of each other but the innocent spouse can still succeed (Minutes of the 153rd joint meeting of the Civil Code and Family Law committees held on August 30, 1986, pages 16-17). If both parties in the subsequent marriage are in bad faith, such marriage is void and, according to Article 44, testamentary dis- positions made by one in favor of the other are revoked by operation of law. If a marriage is void, the contracting parties cannot likewise inherit by intestate succession because no legal relation binds them. MARRIAGE CONTRACTED IN BAD FAITH. If the subse- quent marriage in cases under Article 41 were contracted where only one of the parties, whether the present spouse or the new spouse, to the subsequent marriage was in bad faith, the said mar- riage is still valid. According to Article 44, the marriage shall be considered void only if both spouses in the subsequent marriage are in bad faith. Thus, if, prior to the subsequent marriage, the would- be spouse of the present spouse personally saw the absentee spouse, such would-be spouse is in bad faith in contracting the subsequent marriage. However, the subsequent marriage is still valid if the present spouse is in good faith. If the present spouse were able to personally know that the absent spouse was in fact alive prior to the issuance of any judicial declaration of presumptive death, such present spouse should not be issued such a judicial declaration. It is important to note that the good faith of the present spouse must be present up to the time of the celebration of the subsequent marriage. In other words, the present spouse must not be in bad faith up to the time of the solemnization of the subsequent marriage. However, if only the present spouse is in bad faith and the other contracting party is in good faith, the subsequent marriage will still be valid. Thus, if, after the issuance of the judicial declaration of presumptive death and before the celebration of the subsequent marriage, the present spouse personally sees and talks to the supposedly absent spouse who has been judicially presumed to be dead, such present spouse is already in bad faith in contracting the subsequent marriage. In the event that such present spouse still contracts the subsequent marriage with the other contracting party who is in good faith, such marriage will still be considered valid. It is only when the said other contracting party is also in bad faith will the marriage be considered void. Article 44 clearly provides that the subsequent marriage shall be considered void only if both spouses in the said subsequent marriage are in bad faith. Arts. 45-46 MARRIAGE 289 Void and Voidable Marriages Article 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: 1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the mar- riage was solemnized without the consent of the parents, guardian or person having substitute pa- rental authority over the party, in that order, un- less after attaining the age of twenty-one, such par- ty freely cohabited with the other and both lived together as husband and wife; 2) That either party was of unsound mind, unless such party after coming to reason, freely co- habited with the other as husband and wife; 3) That the consent of either party was ob- tained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; 4) That the consent of either party was ob- tained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife; 5) That either party was physically incapa- ble of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or 6) That either party was afflicted with a sex- ually transmissible disease found to be serious and appears to be incurable. (85a) Article 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: 1) Non-disclosure of a previous conviction by final judgment of the other party of a crime in- volving moral turpitude; 290 PERSONS AND FAMILY RELATIONS LAW Arts. 45-46 2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; 3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or 4) Concealment of drug addiction, habitual alcoholism, or homosexuality or lesbianism exist- ing at the time of the marriage. No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for ac- tion for the annulment of marriage. (86a) PUBLIC POLICY CONSIDERATION. The state is interested in the permanency of the marriage relation. The preservation of that relation is deemed essential to public welfare. The fundamental policy of the state, which regards marriage as indissoluble and sacred, being the foundation upon which society rests, is to be cautious and strict in granting annulment of marriage. Marriage is an institution, in the maintenance of which in its purity the public is deeply interested. It is a relation for life and the parties cannot terminate it at any shorter period by virtue of any contract they may make. The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time, and no other. When the legal existence of the parties is merged into one by the marriage, the new relation is regulated and controlled by the state or government upon principles of public policy for the benefit of society as well as the parties. And when the object of a marriage is defeated by rendering the continuance intolerable to one of the parties and productive of no possible good to the community, relief in some way should be obtainable (Goitia v. Campos Rueda, 35 Phil. 252). This state interest finds its expression in the Family Code provisions exclusively prescribing the grounds for annulment. The law favors marriage as the most important of the domestic relations and therefore allows only its dissolution under such restrictions and limitations as the legislature may deem best for the public welfare .As such, in order to annul a marriage, clear and undeniable proofs are necessary (Roque v. Encarnacion, O.G. 4193; Bucat v. De Buccat, Arts. 45-46 MARRIAGE 291 Void and Voidable Marriages 72 Phil. 19; Jamias v. Rodriguez, 81 Phil. 303; Sy Joc Lieng v. Sy Quia, 40 Phil. 113; Arca v. Javier, 95 Phil. 579). Marriage was instituted for the good of society, and the marital relation is the foundation of all forms of government. For that reason, the state has an interest in every divorce suit, and the marital relation, once established, continues until the marriage is dissolved on some grounds prescribed by the statute (Marshal v. Marshal, 115 Ark. 51, 170 S.W. 567). EXCLUSIVITY OF GROUNDS FOR ANNULMENT. Under the Family Code, annullable marriage is the same as a voidable marriage. Unlike a void marriage which is invalid from the beginning, an annullable or voidable marriage is considered valid up to the time it is terminated. Consequently, grounds for annulment are only those specified by law. Any ground not provided by law cannot be invoked to annul a marriage. The exclusivity of the grounds is in line with the policy of the state to enhance the permanence of marriage. The interest of the public in all actions for annulment or divorce is such that a policy has grown up, in accord with enlightened sentiment, to discourage and deny annulment or divorce unless claimed on proper grounds and sustained by an honest disclosure of the facts. Annulment cannot be left to the whims of the spouses, as the state has a serious concern and interest over the maintenance of the marriage and the family unit brought about by the same. Thus mere non-cohabitation is not a ground for annulment of marriage (Villanueva v. Court of Appeals, G.R. No. 132955, October 27, 2006, 505 SCRA 564). NO PARENTAL CONSENT. The law considers persons of the age of at least 18 years and below 21 years as not possessing that degree of maturity to be able to comprehend thoroughly the consequences and serious responsibilities of marital relations. Hence, before marriage, he or she must obtain parental consent. Any marriage contracted by persons of these ages are considered annullable at the instance of the party whose parent, guardian or person having substitute parental authority did not give his or her consent and of the parents, guardian or person having substitute parental authority over the party in that order. The opportunity to annul the marriage exists in this situation so that the probability of a troublesome, ill-advised or stormy marriage relationship due to unpreparedness of the contracting parties financially, emotionally and psychologically to enter into such relationship can be terminated or prevented. Also the age-of-parental-consent limitation provided 292 PERSONS AND FAMILY RELATIONS LAW Arts. 45-46 in the law of which all, including the youth, is put on notice, was enacted so that one in the sunlight of youth, standing on the threshold of life, should not walk precipitously into the marriage chamber but first should look with calm deliberation whether the step is both desirable and safe. In this concept, there has been ample sup- port in aphorism and precept. Certainly, it is based upon com- mon experience and logic (In re Barbara, 86 Pa D.C. 141). UNSOUND MIND. To successfully invoke unsoundness of mind as a ground for annulment, there must be such a derangement of the mind to prevent the party from comprehending the nature of the contract and from giving to it his free and intelligent consent. Ordinarily, the mental incapacity must relate specifically to the contract of marriage in order to affect it, and therefore any form of mental disease that does not render the afflicted party incapable of understanding or assenting to the marriage contract cannot be used as a basis for attacking the validity of the marriage (52 ALR 3d 880). Thus, it is clear that marriages are not invalidated by mere weakness of mind or dullness of intellect, nor by eccentricities or partial dementia (Ibid.). In one case, it was held that: a marriage contract will be invalidated by the want of consent of capable persons; it requires the mutual consent of two persons of sound mind, and if at the time one is mentally incapable of giving an intelligent consent to what is done, with an understanding of the obligations assumed, the solemnization is a mere idle ceremony — they must be capable of entering understandingly into the relation. It is impossible to prescribe a definite rule by which the mental condition as to sanity or insanity in regard to a marriage can in every case be tested; the question is not altogether of brain quantity or quality in the abstract, but whether the mind could and did act rationally regarding the precise thing in contemplation — marriage — and the particular marriage in dispute, not whether his or her conduct was wise, but whether it proceeded from a mind sane as respects the particular thing done. The decree here [denying annulment] is not contrary to the manifest weight of the evidence or to the law. Prior to and at the time of the marriage, the plaintiff noticed nothing abnormal about the defendant. There is no evidence that any of the unusual things she thought and did some months after the marriage had also occurred prior Arts. 45-46 MARRIAGE 293 Void and Voidable Marriages to and at the time of the marriage. Her first commitment to Elgin State Hospital was in 1952, more than two years after the marriage. In 1954, she was found to have recovered and was restored to all her civil rights. She got along well for awhile thereafter. Her second commitment was in 1956, more than four and one-half years after the marriage. The plaintiff continued to live regularly with the defendant as husband and wife except for such times when she was actually physically confined at the hospital. The doctor who testified had never examined, or treated the defendant and his entire testimony is based, necessarily on a hypothetical question. The ostensible diagnosis was evidently made by another or other doctors, who were not available or who did not testify here. No doctor, nurse, or attendant at the hospital who might have observed, examined or treated her testified. In the doctor’s opinion, even a patient of that type may have lucid intervals for months or years — she may not have had any symptoms which a layman would recognize as insanity — she might be all right for years — and he would not say a patient of such type could never be cured. Even he said that such a patient might be legally all right — not legally insane — though medically it may be very difficult to say. The other witness’ testimony was either quite remote in point of time, or related to an incident eight years after the marriage, or had to do with matters having no great legal significance. The plaintiff has not satisfied the burden of proving, clearly and definitely, that the defendant was an “insane person” at the particular time of this marriage, March 21, 1950 — that she was at that time incapable of understanding the nature of the act, that she had insufficient mental capacity to enter into the status and understand the nature, effect, duties, and obligations of the marriage contract, that she was mentally incapable of giving an intelligent, understanding consent, or that her mind could not and did not act rationally regarding the precise thing in contemplation, marriage, and this particular marriage dispute (Larson v. Larson, 42 Ill. App. 2d 467, 192 N.E. 2d 549). BURDEN OF PROOF. In all civil actions, it is generally held that the burden of proof of insanity rests upon him who alleges insanity, or seeks to avoid an act on account of it, and it devolves upon him to establish the fact of insanity by a preponderance of evidence. If, however, a previous state of insanity is proved, the burden of proof is then usually considered to shift to him who asserts that the act was done while the person was sane, though it has been frequently held that insanity which is not shown to be settled or general as contradistinguished from a mere temporary aberration 294 PERSONS AND FAMILY RELATIONS LAW Arts. 45-46 or hallucination will not be presumed to continue until the contrary is shown. A lucid interval is in its nature temporary and uncertain in its duration, and there is no legal presumption of its continuance (See Engle v. Doe, 47 Phil. 753). FRAUD. Under the Family Code, fraud refers to the non-dis- closure or concealment of certain circumstances which materially affect the essence of marriage. Hence, there is no fraud when there is no concealment or there is disclosure. The circumstances of fraud are limited to those specified in Article 46 of the same Code. The enumeration in the said article is exclusive (Anaya v. Palaroan, 36 SCRA 97). Hence, any act of fraud not included in Article 46 cannot be invoked to annul a marriage. Thus, it has been held: Non-disclosure of a husband’s pre-marital relationship with another woman is not one of the enumerated circumstances that would constitute a ground for fraud; and it is further excluded by the last paragraph of the article, providing that “no other misrepresentation or deceit as to . . . chastity” shall give ground for an action to annul a marriage. While a woman may detest such non-disclosure of pre-marital lewdness or feel having been cheated into giving her consent to the marriage, nevertheless the law does not assuage her grief after her consent was solemnly given, for upon marriage she entered into an institution in which society, and not herself alone, is interested (Anaya v. Palaroan, 36 SCRA 97). Explicitly, the last paragraph of Article 46 provides that no other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute fraud. These circumstances are accidental matters not going into the essence of the marriage and not affecting the free consent of the injured party thereto since it is the duty of the parties to inform themselves of such matters before entering into a contract of such importance to themselves and to society (Marshall v. Marshall, 212 Cal. 736, 800 P 816; Williamson v. Williamson, 34 App DC 536, 30 LRA[NS] 301; Brown v. Scott, 22 ALR 810). NON-DISCLOSURE OF PREVIOUS CONVICTION AS FRAUD. To constitute fraud, the party must have been convicted by final judgment of a crime involving moral turpitude. Homicide, for example, is a crime involving moral turpitude, the reasoning being that “moral” as here used is tautological, and that turpitude, as meaning inherent baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society Arts 45-46 MARRIAGE 295 Void and Voidable Marriages in general, contrary to accepted rule of right and duty between man and man, is comprehended by the intentional taking of human life contrary to law (See In re Basa, 41 Phil. 275; Holloway v. Holloway, 126 Ga. 459, cited in 17 Am Jur 282). Moral turpitude includes everything which is contrary to justice, honesty, or good morals (In re Vinzon, 19 SCRA 815). Generally, the crimes punishable under the Revised Penal Code are crimes involving moral turpitude. Thus, it has been held that: the marriage of an immature schoolgirl to an ex-convict who, at the time of marriage, had committed a crime for which he is subject to an indictment, will be annulled where it was brought about by his false representations as to his standing in society and his war record, so that not only would life be abhorrent to a person of ordinary instincts and refinement, but every purpose of the marriage relation would be defeated (Brown v. Scott, 140 Md. 258; 22 ALR 810). Under Article 46(1), there is a need for a conviction by final judgment. It is not necessary, however, that one of the parties investigates the other in order to determine whether the latter has a criminal record, and his or her failure to do so will not bar a case for annulment on this ground if it later develops that the party concerned has been convicted of a crime before the marriage. The burden is on the convicted party to reveal his criminal record. His failure to do so will constitute the non-disclosure. CONCEALMENT OF PREGNANCY AS FRAUD. The law limits the fraud to the wife only and not to the husband. According to the Code Commssion, this is so because if the wife is pregnant by another man, the husband would be misled in devoting all his attention and care on somebody else’s child. In addition, compared to pregnancy, the fact of the husband’s having a child in a concealed prior relationship is speculative and difficult to prove (185th Meeting of the Civil Code and Family Law committees, June 27, 1987, Pages 2 and 3). Indeed, maternity is always certain while paternity may be disputed. The concealment must have been done in bad faith. Thus, if a woman, after having sexual intercourse with another man previous to the marriage ceremony was diagnosed as not pregnant because she was completely barren and thereafter married her 296 PERSONS AND FAMILY RELATIONS LAW Arts. 45-46 fiancé believing that she was not pregnant, the marriage cannot later be annulled even if it turned out that her previous diagnosis was completely wrong and that actually she was really pregnant at the time of the marriage ceremony as a result of her sexual contact with the other man. There was no bad faith on her part. She could not even be guilty of concealment. Mere pregnancy alone at the time of the marriage is not suffi- cient to successfully annul a marriage on this ground. There must be a concealment of such pregnancy by the wife. However, if the woman did not expressly inform the man of her pregnancy but such physical condition was readily apparent to the man, he cannot claim lack of knowledge of such pregnancy (Buccat v. Buccat, 72 Phil. 19). Also, the mere fact that the woman at the time of the marriage is four months pregnant cannot be conclusive as to the apparency of such pregnancy so as to bar the man from invoking this particular ground. Thus, in the case of Aquino v. Delizo, 109 Phil. 21, the Supreme Court stated: In the case of Buccat v. Buccat (72 Phil. 19) cited in the decision sought to be reviewed, which was also an action for annulment of marriage on the ground of fraud, plaintiff’s claim that he did not even suspect the pregnancy of the defendant was held to be unbelievable, it having been proven that the latter was already in an advanced stage of pregnancy (7th month) at the time of the marriage. That pronouncement, however, cannot apply to the case at bar. Here, the defendant wife was alleged to be only more than four months pregnant at the time of her marriage to the plaintiff. At that stage, we are not prepared to say that her pregnancy was readily apparent, especially since she was “naturally plump” or fat as alleged by plaintiff. According to medical authorities, even on the 5th month of pregnancy, the enlargement of a woman’s abdomen is still below the umbilicus, that is to say, the enlargement is limited to the lower part of the abdomen so that it is hardly noticeable and may, if noticed, be attributed only to fat formation on the lower part of the abdomen. It is only on the 6th month of pregnancy that the enlargement of the woman’s abdomen reaches the height above the umbilicus, making the roundness of the abdomen more general and apparent (See Lull, Clinical Obstetrics, p. 122). If, as claimed by plaintiff, defendant is “naturally plump,” he could hardly be expected to know, merely by looking, whether or not she was pregnant at the time of their marriage, more so because she must have attempted to conceal the true state of affairs. Even physicians and surgeons, with the aid of the woman herself who shows and gives her subjective Arts. 45-46 MARRIAGE 297 Void and Voidable Marriages and objective symptoms, can only claim positive diagnosis of pregnancy in 33% at five months and 50% at six months (XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10). Interestingly, it has been held in Foss v. Foss, 94 Mass. 26, an American case, that where a man, who knew of the unchaste character of a woman with whom he likewise had extra-marital sexual intercourse, and who subsequently married such woman who, at the time of the marriage was pregnant and who assured him that it was his child when in fact it could not have been his child, the said man cannot be allowed to have his marriage annulled on this particular fraudulent act by the said unchaste wife. The four reasons generally given for the denial of the termination of the marriage in the said situation are as follows: (1) that the plaintiff in such case does not come into court with clean hands; (2) that the husband, knowing of the wife’s unchastity and pregnancy, was put upon his inquiry as to her condition and the paternity of any child she may have conceived, and that in the pursuit of his inquiry he was, in view of what he knew, put upon his guard as to the confidence to be reposed in her word, so that he was not entitled to rely on it, but was bound to pursue searching independent investigations; (3) that, having experienced and participated in the woman’s incontinence, he was thereby sufficiently apprised of her want of chastity to deprive him of the right to complain that he was deceived by her false assurance that he was the only participant in her illicit intercourse; (4) that, having taken the woman as his wife for better or for worse, he ought not to be permitted to say that she was worse than he expected (Lyman v. Lyman, 90 Conn. 399, 97 Atl. 312, L.R.A. 1916E, 643). If a woman misrepresented to her fiancé that she was pregnant for the purpose of inducing her fiancé to marry her when in fact she was not pregnant, such fiancé, who entered into the contract of marriage principally because of such inducement, cannot annul the marriage under Article 46(2) considering that there was in fact no pregnancy to conceal. Article 46(2) must already be re-examined as it is subject to attack for being unduly discriminatory against the woman. Fraud should also be imputed on a husband who did not disclose at the time of the marriage ceremony or prior thereto to his future wife that he impregnated another woman not his would-be-wife. This must be so for after all, the focus of the ground is fraud which can be committed either by the husband or the wife. 298 PERSONS AND FAMILY RELATIONS LAW Arts. 45-46 CONCEALMENT OF SEXUALLY-TRANSMISSIBLE DIS- EASE, REGARDLESS OF NATURE, AS FRAUD. In cases of fraud, the nature or gravity is irrelevant in order to invoke this ground. It is enough that there was concealment of the Sexually Transmissible Disease (STD) at the time of the marriage ceremony to warrant the annulment of such a marriage on the ground of fraud. The fact that the STD fraudulently concealed was of a less virulent character and one that, perhaps, would be more correctly described as local, will not bar this ground (See Anonymous v. Anonymous, 21 Misc. 765, 49 N.Y. Supp. 331). Also, it has been held: What a practical recovery from such a disease may import, where it has existed for more than two years, with the danger of its return and ultimate transmission, is difficult if not impossible to determine. But it is certain, at least, that at the time of the marriage, the defendant was incapable of meeting the obligations and performing the functions of a marital relation, and was morally and physically unfit to become or continue to be the husband of a pure and innocent girl. When he concealed that condition from her and still induced her to marry him in ignorance thereof, he was guilty of a base and an unmitigated fraud as to a matter essential to a relation into which they contracted to enter. Obviously, the principle that refuses relief in cases of ordinary ill health after the marriage contract has been actually consummated has no application to a case like this, where there has been no consummation, and the disease is one involving disgrace in its contraction and presence, contagion in marital association, and includes danger of transmission and heredity that even science cannot fathom or certainly define. The suppression of the presence of a disease including such dire and disastrous possibilities, directly affecting the marital relation, constitute fraud which clearly entitled the innocent party to a decree annulling the marriage contract, particularly when it has not been consummated (Svenson v. Svenson, 178 N.Y. 54, 70 N.E. 120). Under the Family Code, consummation is not required for this ground to exist. CONCEALMENT OF DRUG ADDICTION AND HABITUAL ALCOHOLISM AS FRAUD. These are new circumstances of fraud. Under American jurisprudence, “habitual drunkenness” and “habitual intemperance” are interchangeably used to refer to “habitual alcoholism” and are grounds for divorce. It is submitted Arts. 45-46 MARRIAGE 299 Void and Voidable Marriages that their concept or significance can be used under our jurisdiction as a ground for annulment on the basis of fraud. Although these terms are not susceptible to an exact meaning, they nevertheless have been defined as the persistent habit of becoming intoxicated, and that the nature and extent of the drunkenness must be such that the person by frequent indulgence may be said to have a fixed and irresistible habit of drunkenness, whereby he has lost the power or will to control his appetite for intoxicating liquor, as where he indulges in the practice of becoming intoxicated whenever the temptation is presented and the opportunity offered (Lewis v. Lewis, 235 Iowa 693, 17 NW2d 407; Ash v. Ash, 327 Ill. App 656). However, to be a habitual drunkard, a person does not have to drink all the time, nor necessarily be incapacitated from pursuing, during the working hours of the day, ordinary unskilled manual labor. One is a habitual drunkard, in the meaning of the divorce laws, who has a fixed habit of frequently getting drunk. It is not necessary that he be constantly or universally drunk, nor that he have more drunken than sober hours. It is enough that he has the habit so firmly fixed upon him that he becomes drunk periodically, or that he is unable to resist when the opportunity and temptation presented. It is true xxx that a man may drink occasionally to excess, and yet not be a habitual drunkard; but to constitute him as one, it is not necessary that he should be constantly under the influence of intoxicating liquors. A man may be a habitual drunkard even though there be intervals when he entirely refrains from the use of intoxicating drinks. But before he can be regarded as such, it must appear that he drinks to excess so frequently as to become a fixed practice or habit with him . . . . And where a person indulges in the practice of becoming intoxicated whenever the temptation is presented, and the opportunity is afforded him, it may safely be said that he is a habitual drunkard within the meaning of the statute relating to divorce (Page v. Page, 43 Wash. 293, 86, p. 582). Habitual drunkenness is a ground to sever the marriage relations not merely because it disqualifies the party from attending to business, but in part, if not mainly, because it renders him unfit for the duties of the marital relation and disqualifies him from properly rearing and caring for the children born of the marriage (Lewis v. Lewis, 235 Iowa 693). Thus, it has been said: When a man has reached such a state of demoralization that his inebriety has become habitual, its effect upon his 300 PERSONS AND FAMILY RELATIONS LAW Arts. 45-46 character and conduct is to disqualify him from properly attending to his business, and if he is married, to render his presence in the marriage relation disgusting and intolerable (Mcbee v. Mcbee, 22 Or. 329, 29, p. 887). Concealment of drug addiction is another situation constitut- ing fraud. The deleterious and evil effects resulting from the contin- ued and excessive use of drugs, such as opium or morphine, are well known, and that they interfere as much, to say the least, with the happiness of married life, and produce other effects upon the mar- riage relation as deplorable, as those resulting from excessive use of intoxicating liquors (Gowey v. Gowey, 191 Mass. 72, 77 N.E. 526). CONCEALMENT OF HOMOSEXUALITY OR LESBIANISM AS FRAUD. Concealment of homosexuality or lesbianism is also fraud under the Family Code. Since the very institution of marriage is based on trust and the difference of sexes both in the physical and psychological constitution of the parties, a lesbian or a homosexual, who is disposed to have affection toward the same sex to the extent that having relations with the other sex to him or her is repugnant to his or her being, may not serve the purpose of the law mandating a heterosexual relationship. Homosexuality and lesbianism indicate that questions of sexual identity strike so deeply at one of the most basic elements of marriage which is the exclusive sexual bond between the spouses (78 ALR 2d 807). It must, however, be importantly pointed out that the ground is not homosexuality or lesbianism per se but the concealment of such sexual orientation. Hence, the element of bad faith on the part of the one making the concealment is essential and must be duly proven. (Almelor v. Regional Trial Court, G.R. No. 179620, August 26, 2008). Homosexuality and lesbianism are not afflictions or diseases. They are sexual orientation or preference. They are not intrinsically abhorrent. The fact that their concealment is a ground for annulment and not nullity and therefore subject to ratification indicates that the parties could in fact eventually accept each other and lead a family life of their own with children. The effects to the “injured spouse” in case of concealment and discovery of the homosexuality or lesbianism of the other spouse may even seriously affect the innocent spouse’s performance of his or her marital duties. In the United States, homosexuality or lesbianism of a spouse has been considered as a basis for divorce coming within the purview Arts. 45-46 MARRIAGE 301 Void and Voidable Marriages of the statutory ground of “cruelty” to the other spouse because such behavior endangers the life or health of the aggrieved party or renders his or her life one of such extreme discomfort and wretchedness as to incapacitate him or her physically from discharging the marital duties (In Anonymous, 2 Ohio NP 342; H v. H, 78 ALR 2d 799; Poler v. Poler, 73 P 372). VITIATED CONSENT. One of the essential requisites for a valid marriage is that the consent of both parties must be freely given. Consent must not be obtained by force, intimidation or undue influence. It is not necessary that the coercion or force be such as a person of ordinary physical and mental stability would be unable to resist, and that if either party is mentally incapable of resisting the improper pressure applied, there is no consent such as the law requires. Violence constituting duress may be physical or moral — that is, it may consist of the coercion of the person continuing down to the moment of the celebration of the marriage, or of the coercion of the will by antecedent threats of bodily harm. In the latter case, the person is forced to elect between consenting to marry and exposure to the threatened evils (Quealy v. Waldron, 126 La 258, 52 So 479 as cited in 35 Am. Jur. 243). There is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. To determine the degree of intimidation, the age, sex and condition of the person shall be borne in mind (Article 1335 of the New Civil Code). However, the intimidation that will annul a contract has to do with the evil or harm arising from an unlawful act, not from the exercise of a right, such as the right to file a criminal complaint against a person who has committed a crime. Thus, a threat to prosecute a person for a crime he has committed does not constitute intimidation. A threat to enforce one’s claim through competent authority, if the claim is just or legal, does not vitiate consent. Also, where a man who had previous carnal knowledge of a girl, married her under the threat to oppose admission to the practice of law for immorality if he did not marry her, he cannot seek the annulment of the marriage on the ground of duress. For under existing rules, a man with bad moral character 302 PERSONS AND FAMILY RELATIONS LAW Arts. 45-46 should not be admitted to the bar. However, if the charge of immorality subject of the threat was false, the marriage can be annulled (Annotation, Annulment of Marriage by Judge Domingo Lucenario, 22 SCRA 525, citing Sotto v. Mariano, 36 OG 1056; Art. 1335 of the New Civil Code; Ruiz v. Atienza, Official Gazette, August 30, 1941, p. 1903; Soriente v. Aliman, CA-G.R. No. 29350-R, December 15, 1965; Collins v. Collins, 2 Brewst [Pa.] 515). The vitiated consent must be proven by preponderance of evidence which may include the actuations of the parties previous to the marriage. Thus, it has been held that: petitioner’s averment that his consent was obtained by private respondent through force, violence and intimidation and undue influence in entering a subsequent marriage is belied by the fact that both petitioner and private respondent executed an affidavit which stated that they had lived together as husband and wife without the benefit of marriage for five years, one month and one day until their marital union was formally ratified by the second marriage and that it was private respondent who eventually filed the civil action for nullity. Another event that militates against petitioner’s conten- tion is the fact that it was only when Civil Case No. E-02627 was filed on September 28, 1979, or more than the lapse of one year from the solemnization of the second marriage, that peti- tioner came up with the story that his consent to the marriage was secured through the use of force, violence, intimidation and undue influence. Petitioner also continued to live with private respondent until November 1978, when the latter left their abode upon learning that Leonilo Donato was already previ- ously married (Donato v. Luna, 160 SCRA 441). In Villanueva v. Court of Appeals, G.R. No. 132955, October 27, 2006, 505 SCRA 564, the Supreme Court again had the occasion to explain the nature of vitiated consent by quoting with approval the decision of the Court of Appeals, thus: Factual findings of the Court of Appeals, especially if they coincide with those of the trial court, as in the instant case, are generally binding on this Court. We affirm the findings of the Court of Appeals that petitioner freely and voluntarily married private respondent and that no threats or intimidation, duress or violence compelled him to do so, thus — To begin with, We are at once disturbed by the circum- stance that despite the alleged coerced consent which suppos- Arts. 45-46 MARRIAGE 303 Void and Voidable Marriages edly characterized his marriage with Lilia on April 13, 1988, it was only on November 17, 1992 or after a span of not less than four (4) years and eight (8) months when Orlando took serious step to have the same marriage annulled. Unexplained, the prolonged inaction evidently finds basis in Lilia’s allegation that this annulment suit was filed by Orlando solely in the hope that a favorable judgment thereon would bolster his defense, if not altogether bring about his acquittal in the criminal case for bigamy which was then already pending against him. Un- fortunately, however, let alone the fact that the criminal case was admittedly decided ahead with a judgment of conviction against Orlando x x x even the very outcome of the present case disappointed his expectation. At this late, with his appeal in the bigamy case still pending with this Court x x x Orlando must be hoping against hope that with a decree of annulment ensu- ing from this Court, he may yet secure an acquittal in the same bigamy charge. Viewed in this perspective, the instant appeal is, therefore, understandable. But even in terms of merit, the recourse must have to fall. Appellant anchored his prayer for the annulment of his marriage on the ground that he did not freely consent to be married to the appellee. He cited several incidents that created on his mind a reasonable and well-grounded fear of an imminent and grave danger to his life and safety, to wit: the harassing phone calls from the appellee and strangers as well as the unwanted visits by three men at the premises of the University of the East after his classes thereat, and the threatening presence of a certain Ka Celso, a supposed member of the New People’s Army whom appellant claimed to have been hired by appellee and who accompanied him in going to her home province of Palawan to marry her. The Court is not convinced that appellant’s apprehension of danger to his person is so overwhelming as to deprive him of the will to enter voluntarily to a contract of marriage. It is not disputed that at the time he was allegedly being harassed, appellant worked as a security guard in a bank. Given his employment at that time, it is reasonable to assume that appellant knew the rudiments of self-defense, or, at the very least, the proper way to keep himself out of harm’s way. For sure, it is even doubtful if threats were indeed made to bear upon appellant, what with the fact that he never sought the assistance of the security personnel of his school nor the police regarding the activities of those who were threatening him. And neither did he inform the judge about his predicament prior to solemnizing their marriage. 304 PERSONS AND FAMILY RELATIONS LAW Arts. 45-46 Appellant also invoked fraud to annul his marriage, as he was made to believe by appellee that the latter was pregnant with his child when they were married. Appellant’s excuse that he could not have impregnated the appellee because he did not have an erection during their tryst is flimsy at best, and an outright lie at worst. The complaint is bereft of any reference to his inability to copulate with the appellee. His counsel also conceded before the lower court that his client had a sexual relationship with the appellee x x x. He also narrated x x x that sometime in January 1988, he and the appellee went to a hotel where “the sexual act was consummated, with the defendant on top” x x x. Instead of providing proofs that he was tricked into mar- rying his wife, appellant resorted to undermining the credibility of the latter by citing her testimony that her child was born, and died, on August 29, 1989, a year off from August 29, 1988, the date of fetal death as appearing in the registry of deaths of the Office of the Civil Registrar of Puerto Princesa City x x x. To Our mind, appellant cannot make capital of the lapse because it is inconsequential, as there is no controversy regard- ing the date of death of appellee’s fetus. Nevertheless, during the continuation of the cross-examination of the appellee, she declared that her child was prematurely born on August 29, 1988, matching the date in the certification of the Civil Regis- trar x x x. The Court is not prepared to disbelieve the appellee and throw overboard her entire testimony simply on account of her confusion as to the exact date of the death of the fetus, es- pecially when she herself had presented documentary evidence that put August 29, 1988 as the date her fetus died. Appellant’s propensity to rely on his perceived weakness of the appellee’s evidence continues in his argument that if indeed there is truth to her claim that she was impregnated sometime in December 1987, then she could not have a premature delivery on August 29, 1988, as she had testified during the trial, because the 35-week period of pregnancy is complete by that time. Whether the appellee’s impression that she had delivered prematurely is correct or not will not affect the fact that she had delivered a fetus on August 29, 1988. In the light of appellant’s admission that he had a sexual intercourse with his wife in January 1988, and his failure to attribute the latter’s pregnancy to any other man, appellant cannot complain that he was deceived by the appellee into marrying her. Appellant also puts in issue the lower court’s appreciation of the letters allegedly written by him to the appellee. During his cross-examination, when confronted with thirteen (13) Arts. 45-46 MARRIAGE 305 Void and Voidable Marriages letters, appellant identified the seven (7) letters that he sent to the appellee, but denied the remaining six (6) x x x. The letters admitted by the appellant contained expressions of love and concern for his wife, and hardly the rantings of a man under duress. During the re-direct examination, however, appellant suddenly changed mind and denied authorship of those seven (7) letters, claiming that he was forced to admit them because he was threatened with harm by the appellee. If he was laboring under duress when he made the admission, where did he find the temerity to deny his involvement with the remaining six (6) letters? The recantation can only be motivated by a hindsight realization by the appellant of the evidentiary weight of those letters against his case. Relevantly, criminal liability attaches on anyone who uses violence, intimidation and fraud in contracting a marriage. Thus, the second paragraph of Article 350 of the Revised Penal Code provides that if either of the contracting parties shall obtain the consent of the other by means of violence, intimidation or fraud, he shall be punished by prision correccional in its maximum period. INCAPACITY TO CONSUMMATE. Incapacity to consummate denotes the permanent inability on the part of one of the spouses to perform the complete act of sexual intercourse. During the deliberations of the Civil Code and Family Law committees, the terms “impotent” and “physically” were present in the original drafts but were later deleted to highlight the concept that all types of causes for non-consummation, even psychological, which leads to physical inability, are included in the provision. However, the term “physically” was again reincorporated prior to the phrase “incapable of consummating the marriage.” However, Justice Caguioa clarified that the idea in subparagraph (5) is that either party was physically incapable of consummating the marriage with the other, arising not only from physical causes but also from whatever causes including psychological causes (Minutes of the 173rd Joint Meeting of the Civil Code and Family Law committees held on February 21, 1987, page 6). The word “impotent” was not reincorporated in the law because the term is limited only to males who cannot engage in sexual intercourse. Non-consummation of a marriage may be on the part of the husband or of the wife and may be caused by a physical or structural defect in the anatomy of one of the parties or it may be due to chronic illness and inhibitions or fears arising in whole or 306 PERSONS AND FAMILY RELATIONS LAW Arts. 45-46 in part from psychophysical conditions. It may also be caused by psychogenic causes, where such mental block or disturbance has the result of making the spouse physically incapable of performing the marriage act (Alcazar v. Alcazar, G.R. No. 174451, October 13, 2009). Also, it has been held that excessive sensibility, if medically and sufficiently proven on the part of the wife, rendering sexual intercourse practically impossible on account of the pain it must inflict, may be sufficient to show incapacity. Also, an incurable nervous disorder on the part of the wife known as vaginismus which renders sexual coition impossible is good proof of inability to perform the marital act (Vanden Berg v. Vanden Berg, 197 NYS 641). However, merely suffering from epilepsy is not sufficient to show incapacity. Likewise, physical incapability of consummating the marriage cannot be equated to the mere refusal of one party, without being physically incapable, to engage in sexual intercourse. Also, it must be observed that what is required is physical incapa- bility. Hence, if a husband can attain erection but is psychologically inhibited in engaging in sexual intercourse despite his erection, this situation will not fall under impotency as contemplated in the Family Code. The incapacity to consummate the marriage must exist at the time of the marriage ceremony. Thus, in a case where the wife, as a result of an accident which occurred after the marriage ceremony, became paralyzed which physically incapacitated her from consum- mating the marriage, it was held that the marriage cannot be an- nulled as the incapability did not exist at the time of the marriage ceremony (Anonymous v. Anonymous, 49 NYS 2d 314). Also, it must be continuous and appears to be incurable. Acci- dental or temporary impotency is not enough. Thus, it has been held that x x x as ground for annulment of marriage, impotency means permanent and incurable incapacity of one of the parties to the marriage contract to perform the complete act of sexual intercourse. Public policy considerations require that impotency, as a ground for either annulment or divorce, not encompass temporary or occasional incapacity for sexual intercourse (Dolan v. Dolan, 52 ALR 3d 577). Also, in a case where the firmness and rigidity of the hymen of the wife cannot easily be opened by natural means but could be broken by a simple surgical procedure, it was held that annulment on the ground of the wife’s incapacity to consummate the marriage Arts. 45-46 MARRIAGE 307 Void and Voidable Marriages cannot be availed of because the physical incapability was not incurable (Devanbagh v. Devanbagh, cited in 52 ALR 3d 607). BURDEN OF PROOF IN CASES OF INCAPACITY TO CONSUMMATE. An adult male is presumed to have normal powers of virility (People v. Fontanilla, 23 SCRA 1227). Whoever alleges the incapacity has the burden of proving the same. As a general rule, incapacity to engage in sexual intercourse cannot be presumed but must be proven by preponderance of evidence. Impotency, being an abnormal condition, should not be presumed. The presumption is in favor of potency (Menciano v. Neri San Jose, 89 Phil. 63). Thus, It was found that the plaintiff, husband, failed to prove that his wife was “physically incapable” within the meaning of the statute authorizing the annulment of marriage on that ground, where it was alleged, not that intercourse was impossible, but only that it was imperfect and not satisfactory to the husband owing to the shortness of the wife’s vagina, and where medical testimony indicated that the measurements of the defendant, although less than average, still came within normal lengths. (Schroter v. Schroter, 106 NYS 22). It has been ruled also that the incapacity or impotence need not be universal (Vanden Berg v. Vanden Berg, 197 NYS 641). Hence, it has been said that when impotence is psychological in origin, the condition may exist only as to the present spouse and not as to others (C v. C, 91 NJ Super 562). The Family Code adheres to the relative or selective nature of the incapacity to consummate as ground for annulment. It clearly provides in Article 45(5), that the physical incapability of consummating the marriage by either of the spouses must only be “with the other” spouse and not with all persons. RULE OF TRIENNIAL COHABITATION. However, the pre- sumption of impotence may arise if the situation comes within the purview of the rule of triennial cohabitation. This rule postulates that if the wife remains a virgin for at least 3 years from the time the spouses started cohabiting, the husband must show that he was not impotent during the said period and the burden will be upon him to overcome the presumption of impotence. Thus, in a case where the husband claimed that he did not engage in sexual intercourse with his wife allegedly because such act painfully hurt and distressed the wife, the court rejected the said argument considering that the wife was found out to be a virgin after five years of marriage 308 PERSONS AND FAMILY RELATIONS LAW Arts. 45-46 and that there was medical finding that she was physically and psychologically normal and, as a result, the court declared the husband incurably impotent though he was physically normal in other matters (Tompkins v. Tompkins, 92 NJ 113). STERILITY. Sterility is not impotency. A sterile person can successfully engage in sexual coition. Sterility does not imply want of power for copulation. Hence, sterility is not a ground for annulment (Menciano v. San Jose, 89 Phil. 63). Thus, in a case for annulment where the husband contended that his wife was physically incapable of entering into marriage due to an operation occurring prior to the marriage, in which his wife’s ovaries were removed, and as a result of which she was unable to bear children, the court dismissed the annulment suit and concluded that possession of the organs necessary to conception is not essential to entrance into the marriage state, so long as there is no impediment to the indulgence of the passion incident to that state (Wendel v. Wendel, 52 NYS 72). SEXUALLY TRANSMISSIBLE DISEASE. If the sexually transmissible disease were concealed at the time of the marriage ceremony, it constitutes fraud. As previously discussed, STD in cases of fraud need not be incurable. If the STD is not concealed, it can still be a ground for annulment of marriage but, to successfully invoke this ground, the sexually transmissible disease, unlike in case of fraud, must be found to be serious and incurable. During the discussion of this ground by the Civil Code and Family Laws Committee, Justice Caguioa stated that the prohibition is not in the inability to procreate but in the transmissibility of the disease to the other spouse. Justice Reyes agreed that the idea in the provision is that it is likely to contaminate the other spouse. Justice Caguioa added that the other point is the transmissibility of the disease to the fetus and the offspring (Minutes of the 158th joint meeting of the Civil Code and Family Law committees held on October 11, 1986, page 4). Thus, in a case where it was shown that, two months after the marriage ceremony, the husband contracted syphilis from his wife who had the said sexually transmissible disease at the time of the marriage ceremony and that while the syphilis temporarily regressed for a time, it again constantly recurred, and in fact their child who was born one year later died of a mass of syphilitic sores traceable to the wife and that subsequently, the husband cannot anymore engage in healthy and safe sexual intercourse with the Arts. 45-46 MARRIAGE 309 Void and Voidable Marriages wife without himself again contracting syphilis, the court, after presentation of the relevant evidence, ruled that the chronic syphilis was really grave and in an incurable diseased state at the time of the marriage ceremony which can justify the annulment of the marriage (Ryder v. Ryder, 66 Vt. 158). If the venereal disease were obtained after the marriage ceremony, it cannot be a ground for annulment. However, it can be used as evidence of sexual infidelity which is a ground for legal separation considering that, generally, such disease is communicated through sexual contact. RATIFICATION OF ANNULLABLE MARRIAGES. As pre- viously stated, the policy of the state is to enhance and promote the permanence of marriage. Everything must be undertaken to preserve the marriage and uphold the family as an integral unit of society. Hence, if there are circumstances to show that, despite the presence of some defects at the time of the marriage ceremony which would render the marriage annullable, the parties neverthe- less subsequently manifest their approval of the marital union, a decree of annulment cannot properly issue. Under the Family Code, ratification is made if the “injured” party freely cohabits with the guilty party in the proper situations provided by law. Thus, the law provides the following situations which will defeat any petition for annulment: 1. In case of no consent by the parents, guardian or person having substitute parental authority, the contracting party, who is eighteen years or over but below twenty-one and did not obtain such consent from his or her parents, guardian or person having parental authority over him or her, cannot file the suit if, after attaining the age of twenty-one, he or she freely cohabited with the other and lived as husband and wife. However, if he or she were between 18 and 21 years of age, even if he or she freely cohabited with the other, this will not constitute ratification. It is only the free cohabitation after reaching the age of 21 that will constitute ratification; 2. In case of insanity, if the contracting party with unsound mind, after coming to reason, freely cohabited with the other as husband and wife, ratification has set in. Only the insane spouse can ratify by free cohabitation. It must be noted that the sane spouse who knew of the insanity of the other at the time of the marriage ceremony cannot ratify. Also, the subsequent free cohabitation of a sane spouse, who had no knowledge of the insanity of the other at the time of the marriage ceremony but who later found out such insanity after 310 PERSONS AND FAMILY RELATIONS LAW Art. 47 the marriage ceremony, will not constitute ratification and he or she can still file an action for annulment; 3. In case of fraud, if the injured party, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife, there is likewise ratification; and 4. In case of vitiated consent, if the injured party, after the disappearance or cessation of the force, intimidation or undue influence, freely cohabited with the other as husband and wife, there is also ratification. However, if the ground relied upon is either the incurable physical incapacity to consummate the marriage by either party or the affliction of either party with an incurable sexually-transmissible disease, both existing at the time of the marriage ceremony, the mere free cohabitation as husband and wife of the parties will not ratify the annullable marriage. Also, even if the impotency or incurable sexually-transmissible disease is known to both parties prior to the marriage ceremony, the injured party can still file a case for annulment on the said grounds. This is so because these grounds are not based on defective consent like the others but based on the fact that the impotency or disease is incurable. Moreover, they negate the other important purpose of marriage which is to procreate normal, healthy and upright children. In fact, in the case of incurable sexually-transmissible disease, the continuance of the marriage may even pose a danger to the life of the other contracting party. However, if the aggrieved parties in these cases do not bring the suit within five years after the marriage ceremony, they are barred forever from annulling the marriage. Article 47. The action for annulment of mar- riage must be filed by the following persons and within the periods indicated herein: 1) For causes mentioned in Number 1 of Ar- ticle 45, by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one; or by the parent or guardian or person having legal charge of the mi- nor, at any time before such party reached the age of twenty-one; 2) For causes mentioned in Number 2 of Ar- ticle 45, by the sane spouse who had no knowledge Art. 47 MARRIAGE 311 Void and Voidable Marriages of the other’s insanity; by any relative, guardian or person having legal charge of the insane, at any time before the death of either party; or by the in- sane spouse during a lucid interval or after regain- ing sanity; 3) For causes mentioned in Number 3 of Ar- ticle 45, by the injured party, within five years after the discovery of the fraud; 4) For causes mentioned in Number 4 of Ar- ticle 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased; 5) For causes mentioned in Numbers 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a) NATURE OF ANNULMENT CASE. Annulment cases are actions in rem, for they concern the status of the parties, and status affects or binds the whole world. The “res” is the relation between the said parties, or their marriage tie. Jurisdiction over the same by the proper Regional Trial Court depends upon the nationality or domicile of the parties, not the place of the celebration of the marriage, or the locus celebrationis (Rayray v. Chae Kyung Lee, 18 SCRA 450). Thus, where the plaintiff, a Filipino, is domiciled in the Philippines, the lower court has jurisdiction to annul his marriage to a Korean girl contracted by him in Korea (Ibid.). GROUNDS, PARTIES, PRESCRIPTIVE PERIOD. A prescrip- tive period is the time within which a case can be filed in court. After the lapse of the prescriptive period, the case cannot be filed anymore. Hereunder is a tabulation of the grounds, parties and pre- scriptive period for bringing an action for annulment. GROUND PARTY TO PRESCRIPTION FILE THE SUIT PERIOD 1. No Parental-Consent a. Parent or Guardian Anytime before ‘‘no-con- having Legal Charge sent party’’ reaches age of of ‘‘no-consent party’’ Twenty-one b. ‘‘No-Consent’’ Party Within Five Years after attaining Twenty-one 2. Insanity a. Sane Spouse without At any time before death knowledge of insan- of either party ity 312 PERSONS AND FAMILY RELATIONS LAW Art. 47 b. Relative, guardian or At any time before death person having legal of either party charge of insane c. Insane spouse During lucid interval or after regaining sanity 3. Fraud Injured Party Within Five Years after discovery of Fraud 4. Vitiated Consent Injured Party Within Five Years from time force, intimidation or undue influence disap- peared or ceased 5. Incapability to Injured Party Within Five Years after Consummate/ the marriage ceremony Sexually transmissible disease The law clearly provides the person or persons who can file a case for annulment depending on the grounds involved. Thus, the parents, guardian or person exercising substitute parental authority can only file a case for annulment if the ground invoked is that the child is 18 and above but below 21 years of age and he or she or both got married without parental consent. Accordingly, if for example, the ground invoked is fraud or force and intimidation, only the “injured party,” which means the aggrieved spouse and not the parents, can file the case for annulment. Parents, guardian or person having legal charge of the child can never file an annulment case on a ground other than those provided in Article 45(1) and (2) even if he or she alleges a cause of action for and on behalf of the child. And even if the ground is under Article 45(1), the parents, guardian or person having legal charge of the child can only file it anytime before the child reaches the age of 21. If the child is 21 years old or over, the parents, guardian, or person having legal charge of the child has no more legal standing to file the annulment case. It is not enough for the plaintiff-parent to allege a cause of action in favor of someone; he or she must show that it exists in favor of himself or herself (Siman v. Leus, 37 Phil. 967). After reaching the age of 21 years, the child or contracting party herself or himself does not even need a guardian ad litem in order to bring the suit (Siman v. Leus, 37 Phil. 967). In case of insanity, if the sane spouse knew that his or her spouse has already been insane previous to the marriage, such sane spouse cannot file the suit for annulment as he or she is already estopped. If the sane spouse only knew of the insanity after the Art. 47 MARRIAGE 313 Void and Voidable Marriages marriage ceremony, he or she is given legal standing to file the suit at anytime prior to the death of the insane spouse. A relative, guardian or person having legal charge of the insane is likewise given legal standing to file the annulment case based on insanity of the insane spouse. The insane himself or herself can file during a lucid interval. In cases provided for under Article 45(3), (4), (5) and (6), the person given legal standing is the “injured party.” In these cases, no other person can file the case for the injured party. Not even the parents, the guardian or person having charge of the injured party can file the case for him or her. Thus, even if the injured party were married because of force or intimidation and thereafter, such injured party became insane, the parents or the person who is legally charged of such aggrieved party who eventually became insane, cannot file a case for annulment for him or her. The starting points of the prescriptive period differ depending on the ground invoked. For “non-consent,” the parents, guardians or person given legal charge of the child can file the case at any time after the marriage ceremony but before the child reaches the age of 21. As to the child himself or herself, the law provides that he or she can file the case within five years after reaching the age of 21. It may be argued, however, that the lowering of the majority age from 21 to 18 by Republic Act 6809 amending Article 234 of the Family Code has, in effect, extended the prescriptive period in favor of the child. He or she is emancipated upon reaching the age of 18 years, thereby qualifying him or her to do all acts of civil life, save exceptions established by existing laws in special cases (Article 236). For insanity, the prescriptive period for those who are given legal standing to file the case is at any time before the death of either party. Where one of the parties is insane, he or she cannot reciprocate the marital commitment of the sane spouse. The insane spouse cannot even appreciate and comply with the essential marital obligations. To a great extent, an insane person is even worse than a person who is merely psychologically incapacitated to perform the essential marital obligations. The failure of insane person’s mental faculties to perform normally even affects not only his or her marital life but the totality of his life. For vitiated consent, the five-year period is counted from the time of the disappearance of the force, intimidation or undue influence. For fraud, the five-year period starts from the discovery of 314 PERSONS AND FAMILY RELATIONS LAW Arts. 48-49 the fraud. Lastly, for incurable impotency and sexually transmissible disease, the five-year period begins from the time of the marriage ceremony. It must be borne in mind, however, that, except for the grounds of incurable physical incapacity to consummate and incurable sexually transmissible disease, the other grounds are subject to the rule on ratification. Hence, even if the aggrieved party has five years from the discovery of the fraud within which to file a petition for annulment based on the said ground, his or her action to annul the marriage filed within the said five years will not succeed if it is shown that at anytime during the said five-year period, he or she freely cohabited with the other as husband and wife. Article 48. In all cases of annulment or declara- tion of absolute nullity of marriage, the court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In all cases referred to in the preceding para- graph, no judgment shall be based upon a stipula- tion of facts or confession of judgment. (88a) Article 49. During the pendency of the action and in the absence of adequate provisions in a writ- ten agreement between the spouses, the court shall provide for the support of the spouses and the cus- tody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It shall also pro- vide for appropriate visitation rights of the other parent. (n) PROCEDURE IN ANNULMENT AND IN DECLARATION OF NULLITY CASES. The procedure is now governed by Supreme Court En Banc Resolution in A.M. No. 00-11-01-SC effective March 15, 2003. It is reproduced in full at the end of this chapter. After a complaint for the annulment or for the declaration of nullity of marriage has been filed with the proper Regional Trial Court, the defendant shall be given 15 days from receipt of the Arts. 48-49 MARRIAGE 315 Void and Voidable Marriages summons and of a copy of the complaint within which to file an answer. In the event that the defendant fails to file an answer, he or she cannot be declared in default (See Section 3[e], Rule 9, 1997 Rules of Civil Procedure) unlike in ordinary civil cases, and the Court will order the full-blown hearing of the case where the fiscal shall appear on behalf of the State to make sure that there is no collusion or the evidence is not fabricated. However, if, erroneously, the court renders a default judgment in an annulment case, this would not prevent the decree from having legal effect. “An erroneous judgment is not a void judgment” (See De La Cruz v. Ejercito, 68 SCRA 1, citing Chereau v. Fuentabella, 43 Phil. 216). In the event that the defendant answers, the issues of the case are considered joined and, thereafter, the court shall order the hearing of the case. The fiscal shall likewise appear on behalf of the State to make sure that there is no collusion between the parties or the evidence is not fabricated. If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated (Section 3[e], 1997 Rules of Civil Procedure). If the Court issues an order directing the fiscal to investigate whether or not there is collusion and the petitioner, upon being subpoenaed by the Fiscal, does not appear claiming that she does not want to reveal her evidence prematurely to the fiscal, the annulment case may be dismissed by the Court upon motion of the fiscal (Tolentino v. Villanueva, 56 SCRA 1). The inquiry of the fiscal can focus upon any relevant matter that may indicate whether the proceedings for annulment, nullity or legal separation are fully justified or not (Brown v. Yambao, 102 Phil. 168). No suspension of the case can be made for the purpose of discussing a compromise upon the question of the validity of the marriage. An annulment suit cannot be terminated by way of a compromise agreement. No valid compromise is legally possible on the issue of the validity of marriage (Mendoza v. CA, 19 SCRA 756). In all cases, a full-blown hearing must be undertaken where the parties are duty-bound to prove their grounds by preponderance of evidence. Summary proceedings are not allowed. Also, a 316 PERSONS AND FAMILY RELATIONS LAW Arts. 48-49 counterclaim seeking to annul defendant’s marriage to petitioner, although not denied or resisted by the latter, cannot be decided by summary judgment proceeding — first, because such action is not one to “recover upon a claim” or “to obtain a declaratory relief,” and second, because it is the avowed policy of the State to prohibit annulment of marriages by summary proceedings (See Roque v. Encarnacion, 95 Phil. 643). Even if the allegations in the petition as to the grounds for annulment are categorically admitted by the respondent, judgment on the pleadings cannot be decreed by the court. In actions for declaration of nullity or annulment of marriage or legal separation, the material facts alleged in the complaint shall always be proved (Section 1, Rule 34 of the 1997 Rules of Procedure). The fundamental policy of the State, which is predomi- nantly Catholic and considers marriage as indissoluble (there is no divorce under the Civil Code of the Philippines), is to be cautious and strict in granting annulment of marriage x x x. Pursuant to this policy the Rules of Court expressly prohibit an- nulment of marriages without actual trial. x x x The mere fact that no genuine issue was presented, and the desire to expedite the dispatch of the case, cannot justify a misinterpretation of the rule adopted or a violation of the avowed policy of the State (Ibid.). ROLE OF FISCAL AND SOLICITOR GENERAL. In annul- ment and nullity cases, the prosecuting attorney or the fiscal must be present. While Article 48 does not specifically mention the Office of the Solicitor General, such office nevertheless can intervene in the proceeding considering that the issue of the validity of marriage is vested with public interest. (Republic v. Iyoy, G.R. No. 152577, Sep- tember 21, 2005, 470 SCRA 508). The Office of the Solicitor General can also be required to submit a memorandum. Aside from making sure that there is no collusion or that the evidence is not fabricated, it is the duty of the Fiscal and the Solicitor General not only to de- fend a valid marriage but also to expose an invalid one (Sin v. Sin, G.R. No. 137590, March 26, 2001). The prosecuting attorney must actively participate (Republic v. Cuison-Melgar, G.R. No. 139676, March 31, 2006 486 SCRA 177). Hence, in Sin v. Sin, supra, where the fiscal merely filed a manifestation that there was no collusion and where he merely entered his appearance at certain hearings of the case but was not heard of anymore, the Supreme Court remand- ed the case for further proceeding even if the judge of the lower court already denied the petition for nullity. Arts. 48-49 MARRIAGE 317 Void and Voidable Marriages In Maquilan v. Maquilan, G.R. No. 155409, June 8, 2007, 524 SCRA 167, the Supreme Court ruled that a partial voluntary separation of property agreed upon by the parties via a compromise agreement duly approved by the court prior to the judicial declaration of nullity of marriage is valid. It cannot be voided because of non-participation of the prosecuting attorney or the Office of the Solicitor General. An agreement to separate property is not of itself an indicator of collusion. In fact, there is no need for the fiscal to participate in the negotiation leading to the agreement. The task of the fiscal is to determine if the parties colluded or fabricated their evidence to get a nullity or annulment of marriage. If there is no showing that the compromise agreement for the separation of property touched on the merits of the nullity or annulment case, the participation of the fiscal or the Office of the Solicitor General in such an agreement is not needed. However, if the annulment or declaration of nullity case were strongly opposed and heatedly contested in that the defendant filed his answer, and was represented by counsel who filed several pleadings and actively participated in the case and even cross- examined the witnesses of the plaintiff, it is clear that the litigation was characterized by a no-holds-barred contest and not by collusion. Under these circumstances, the non-intervention of the fiscal or prosecuting-attorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in court especially when it was not shown that evidence was suppressed or fabricated by any of the parties. These kinds of situations do not call for the strict application of Articles 48 and 60 of the Family Code (Tuason v. Court of Appeals, 256 SCRA 158). COLLUSION. Collusion occurs where, for purposes of getting an annulment or nullity decree, the parties come up with an agreement making it appear that the marriage is defective due to the existence of any of the grounds for the annulment of marriage or the declaration of its nullity provided by law and agreeing to represent such false or non-existent cause of action before the proper court with the objective of facilitating the issuance of a decree of annulment or nullity of marriage. The commission of a matrimonial offense, or the creation of the appearance of having committed it, with the consent or privity of the other party, or under an arrangement between the spouses, has been held to be collusion (9 R.C.L. 789). Collusion implies a corrupt agreement between the husband and wife and, therefore, renders dismissible any annulment or nullity case initiated through the same. 318 PERSONS AND FAMILY RELATIONS LAW Arts. 48-49 Significantly, the failure to file an answer by the defendant or his or her failure, whether deliberate or not to appear in court or be represented by counsel after the filing of his or her answer cannot of itself be taken against the plaintiff as conclusive evidence of collusion, especially since the fiscal is ordered, in any case, to represent the government precisely to prevent such collusion (See Aquino v. Delizo, 109 Phil. 21). However, failure to answer, in connection with other circumstances such as an agreement between the parties, duly proven in court, that the respondent shall withdraw his or her opposition or shall not defend the action, can be evidence of collusion (2 ALR 705) but is not THE evidence of collusion. Indeed, even if there is an agreement between the parties to file the annulment or nullity case, collusion will not exist if the grounds relied upon for the annulment or nullity truly exist and are not just concocted. As held in the case of Ocampo v. Florenciano, 107 Phil. 35, which is a case for legal separation but which is undoubtedly applicable in annulment and nullity cases in so far as the concept of collusion is concerned, there will be collusion only if the parties had arranged to make it appear that a ground existed or had been committed although it was not, or if the parties had connived to bring about a matrimonial case even in the absence of grounds therefor. To say that mere agreement is collusion and therefore enough to dismiss a case is dangerous because this could very well leave the fate of the proceeding to the defendant who would, if he or she wishes to proceed with the case, deny an agreement, or who, if he or she desires to terminate the case, merely invoke that the parties agreed to file the suit even though there is a real ground for the matrimonial case. Also, in this connection, it has been held that collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it (Williams v. Williams [N.Y.] 40 N.E. [2d] 1017; Rosenweig v. Rosenweig, 246 N.Y. Suppl. 231; Conyers v. Conyers, 224 S.W. [2d] 688, cited in Ocampo v. Florenciano, 107 Phil. 36). And proof that the defendant desires the divorce and makes no defense, is not by itself collusion (Pohlman v. Pohlman, [N.J.] 46 Atl. Rep. 658, cited in Ocampo v. Florenciano, 107 Phil. 36). A judge who does not order an investigation for collusion when the situation falls squarely within the rules for him to order such investigation can be subject to administrative sanction (Corpus v. Ochotorena, AM No. RTJ-04-1861, July 30, 2004, 435 SCRA 446). Arts. 48-49 MARRIAGE 319 Void and Voidable Marriages STIPULATION OF FACTS OR CONFESSION OF JUDG- MENT. An annulment or nullity decree cannot be issued by the court on the sole basis of a stipulation of facts, or a confession of judgment (Cardenas v. Cardenas and Rinen, 98 Phil. 73). The for- mer is practically an admission by both parties made in court agree- ing to the existence of the act constituting the ground for annulment or for the declaration of nullity of the marriage, while the latter is the admission made in court by the respondent or defendant admit- ting fault as invoked by the plaintiff to sever the marriage ties. The prohibition expressed in the aforesaid laws and rules is predicated on the fact that the institutions of marriage and of the family are sacred and, therefore, are as much the concern of the State as of the spouses; because the state and the public have vital interest in the maintenance and preservation of these social institutions against desecration by collusion between the parties or by fabricated evidence. The prohibition against annulling a marriage based on the stipulation of facts or by confession of judgment or by non-appearance of the defendant stresses the fact that marriage is more than a mere contract between the parties; and for this reason, when the defendant fails to appear, the law enjoins the court to direct the prosecuting officer to intervene for the State in order to preserve the integrity and sanctity of the marital bonds (Tolentino v. Villanueva, 56 SCRA 1). However, stipulation of facts or confession of judgment, if suffi- ciently supported or corroborated by other independent substantial evidence to support the main ground relied upon, may warrant an annulment of a marriage or the declaration of nullity of the same. Interpreting the provision under the Civil Code relative to confes- sion of judgment and stipulation of facts in legal separation cases which interpretation is also applicable in annulment and declara- tion of nullity cases both under the Civil Code and the Family Code, the Supreme Court, in Ocampo v. Florenciano, 107 Phil. 35, stated: As we understand the article it does not exclude as evidence, any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff’s demand. This did not occur. Yet, even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch 320 PERSONS AND FAMILY RELATIONS LAW Arts. 48-49 as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly on defendant’s confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it. The mere circumstance that defendant told the fiscal that she “liked also” to be legally separated from her husband, is no obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes precaution against collusion, which implies more than consent or lack of opposition to the agreement. However, in the case of Cardenas v. Cardenas and Rinen, 98 Phil. 73, where the first wife filed an annulment of marriage case with respect to the subsequent marriage of her husband with the “second wife” and where, during the hearing, there was a stipulation of facts entered into by the first wife and the defendants, whereby the parties agreed that the first wife was married to her husband (one of the defendants) prior to his marriage to the “second wife” (the other defendant), and where the marriage certificates of the first and second marriages were duly attached to the stipulation of facts, the Supreme Court ruled that the stipulation of facts and the attached marriage certificates were sufficient to declare as null and void the second marriage. The Supreme Court stated thus: In disposing of this appeal we did not overlook Article 88 of the New Civil Code which provides that “No judgment annulling a marriage shall be promulgated upon a stipulation of facts * * *.” This Article and Article 101 on legal separation of the same Code contemplate the annulment of marriage or their legal separation by collusion. In this case, the possibility of such collusion is remote, because the interest of the two wives are conflicting. Apart from this, the marriage certificates attached to the stipulation of facts are evidence and cannot be deemed as stipulation of facts. SUPPORT OF SPOUSES AND CUSTODY OF CHILDREN. While the annulment of marriage or declaration of nullity suit is being tried, the support of the spouses and the custody and support of the common children shall be governed by whatever agreement Arts. 48-49 MARRIAGE 321 Void and Voidable Marriages the parties have made with respect to the same. Principally, the spouses and their children shall be supported from the properties of the absolute community of property or the conjugal partnership of gains as the case may be during the pendency of the suit for annulment or nullity of marriage in proper cases (Article 198 of the Family Code). Hence, support pendente lite and custody pendente lite can be ordered. However, should the court find the agreement to be inadequate, it may disregard the same and make the necessary provisions which, in its sound discretion, would be adequate under the circumstances. In nullity cases, however, where the court provisionally gives support pendente lite to a spouse who, at the end of the case, has been found out to be not entitled to the support because his or her marriage with the one giving the support is void ab initio, the court shall order the recipient to return to the person who furnished the support the amounts already paid with legal interest from the dates of actual payment (See Section 7, Rule 61 of the 1997 Rules of Civil Procedure). Unless there are other reasons later proven to show non- entitlement to the support, the support given to one of the spouses during the pendency of an annulment-of-marriage case need not be reimbursed because, in such cases, the marriage is valid up to the time it is dissolved. The court shall give extra attention on the issue relative to the support and custody of the common children. The court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain. In making its decision as to the custody of the children, the sex and age of the children are indeed very important considerations; however, the court must go beyond these to consider the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; their respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between the child and the parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any 322 PERSONS AND FAMILY RELATIONS LAW Arts. 48-49 expert witness or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose (Ex Parte Devine, 398 So. 2d 686). Pertinently, Article 213 of the Family Code provides that “no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” The court shall also provide for appropriate visitation rights to the other parent. VISITATION RIGHTS. While custody of a child may be awarded to a particular parent, this does not deprive the other parent from exercising his or her visitorial rights unless the court, for some compelling reason, deprives him or her of this right. And even if a parent has been legally deprived of his or her visitorial rights, this can be reinstated if it can be shown that the grounds for deprivation have become too harsh or are not anymore present. In the case of Silva v. Court of Appeals, 84 SCAD 651, 275 SCRA 604, the Supreme Court explained the reason for a parent’s visitorial rights, thus: Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their proper upbringing and safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them. Even when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child. The petition bears upon this concern. Carlitos E. Silva, a married businessman, and Suzanne T. Gonzales, an unmarried local actress, cohabited without the benefit of marriage. The union saw the birth of two children: Ramon Carlos and Rica Natalia. Not very long after, a rift in their relationship surfaced. It began, according to Silva, when Gonzales decided to resume her acting career over his vigorous objections. The assertion was quickly refuted by Gonzales who claimed that she, in fact, had never stopped working throughout their relationship. At any rate, the two eventually parted ways. The instant controversy was spawned, in February 1986, by the refusal of Gonzales to allow Silva, in apparent contravention of a previous understanding, to have the children in his company on weekends. Silva filed a petition for custodial Arts. 48-49 MARRIAGE 323 Void and Voidable Marriages rights over the children before the Regional Trial Court (“RTC”), Branch 78, of Quezon City. The petition was opposed by Gonzales who averred that Silva often engaged in “gambling and womanizing” which she feared could affect the moral and social values of the children. In an order, dated 07 April 1989, the trial court adjudged: “WHEREFORE, premises considered, judg- ment is rendered directing respondent to allow here- in petitioner visitorial rights to his children during Saturdays and/or Sundays, but in no case should he take out the children without the written consent of the mother or respondent herein. No pronouncement as to costs.” (Rollo, p. 29) Silva appeared somehow satisfied with the judgment for only Gonzales interposed an appeal from the RTC’s order to the Court of Appeals. In the meantime, Gonzales got married to a Dutch national. The newly-weds emigrated to Holland with Ramon Carlos and Rica Natalia. On 23 September 1993, the appellate tribunal ruled in favor of Gonzales. It held: “‘In all questions, regarding the care, custody, education and property of the child, his welfare shall be the paramount consideration’ — not the welfare of the parents (Article 8, PD 603). Under the predicament and/or status of both petitioner- appellee and respondent-appellant, We find it more wholesome morally and emotionally for the children if we put a stop to the rotation of custody of said children. Allowing these children to stay with their mother on weekdays and then with their father and the latter’s live-in partner on weekends may not be conducive to a normal upbringing of children of tender age. There is no telling how this kind of set- up, no matter how temporary and/or remote, would affect the moral and emotional conditions of the minor children. Knowing that they are illegitimate is hard enough, but having to live with it, witnessing their father living with a woman not their mother may have a more damaging effect upon them. “Article 3 of PD 603, otherwise known as the Child and Youth Welfare Code, provides in part: “‘Art. 3. Rights of the Child. — x x x 324 PERSONS AND FAMILY RELATIONS LAW Arts. 48-49 ‘(1) xxx ‘(2) xxx ‘(3) xxx ‘(4) xxx ‘(5) Every child has the right to be brought up in an atmosphere of morality and rectitude for the enrichment and the strengthening of his character. ‘(6) xxx ‘(7) xxx ‘(8) Every child has the right to protection against exploitation, improper influences, hazards and other conditions or circumstances prejudicial to his physical, mental, emotional, social and moral development. ‘x x x “With Articles 3 and 8 of P.D. No. 603 in mind, We find it to the best interest of the minor children to deny visitorial and/or temporary custodial rights to the father, even at the expense of hurting said parent. After all, if indeed his love for the children is genuine and more divine than the love for himself, a little self-sacrifice and self-denial may bring more benefit to the children. While petitioner-appellee, as father, may not intentionally prejudice the children by improper influence, what the children may witness and hear while in their father’s house may not be in keeping with the atmosphere of morality and rectitude where they should be brought up. “The children concerned are still in their early formative years of life. The molding of the character of the child starts at home. A home with only one parent is more normal than two separate houses (one house where one parent lives and another house where the other parent with another woman/ man lives). After all, under Article 176 of the Family Code, illegitimate children are supposed to use the surname of and shall be under the parental authority of their mother. “The child is one of the most important assets of the nation. It is thus important we be careful in rearing the children especially so if they are illegitimates, as in this case. Arts. 48-49 MARRIAGE 325 Void and Voidable Marriages “WHEREFORE, in view of all the foregoing, judgment is hereby rendered giving due course to the appeal, The Order of the Regional Trial Court of Quezon City dated April 7, 1989 is hereby reversed. Petitioner-appellee’s petition for visitorial rights is hereby denied. “SO ORDERED.” (Rollo, pp. 22-23) The issue before us is not really a question of child custody; instead, the case merely concerns the visitation right of a parent over his children which the trial court has adjudged in favor of petitioner by holding that he shall have “visitorial rights to his children during Saturdays and/or Sundays, but in no case (could) he take out the children without the written consent of the mother x x x.” The visitation right referred to is the right of access of a noncustodial parent to his or her child or children (See Black’s Law Dictionary, Sixth edition, p. 1572). There is, despite a dearth of specific legal provisions, enough recognition on the inherent and natural right of parents over their children. Article 150 of the Family Code expresses that “(f)amily relations include those x x x (2) (b)etween parents and children; x x x.” Article 209, in relation to Article 220, of the Code states that it is the natural right and duty of parents and those exercising parental authority to, among other things, keep children in their company and to give them love and affection, advice and counsel, companionship and understanding. The Constitution itself speaks in terms of the “natural and primary rights” of parents in the rearing of the youth. (Article II, Sec. 12, 1987 Constitution). There is nothing conclusive to indicate that these provisions are meant to solely address themselves to legitimate relationships. Indeed, although in varying degrees, the laws on support and successional rights, by way of examples, clearly go beyond the legitimate relationships as well. (Articles. 176, 195, Family Code). Then, too, and most importantly, in the declaration of nullity of marriages, a situation that presupposes a void or inexistent marriage, Article 49 of the Family Code provides for appropriate visitation rights to parents who are not given custody of their children. There is no doubt that in all cases involving a child, his interest and welfare is always the paramount consideration. The Court shares the view of the Solicitor General, who has recommended due course to the petition, that a few hours spent by petitioner with the children, however, could not all be that detrimental to the children. Similarly, what the trial court has observed is not entirely without merit. Thus: 326 PERSONS AND FAMILY RELATIONS LAW Art. 50 “The allegations of respondent against the character of petitioner, even assuming as true, can- not be taken as sufficient basis to render petitioner an unfit father. The fears expressed by respondent to the effect that petitioner shall be able to corrupt and degrade their children once allowed to even temporarily associate with petitioner is but the product of respondent’s unfounded imagination, for no man, bereft of all moral persuasions and goodness, would ever take the trouble and expense in instituting a legal action for the purpose of seeing his illegitimate children. It can just be imagined the deep sorrows of a father who is deprived of his children of tender ages.” (Rollo, p. 29). The Court appreciates the apprehensions of private respondent and her well-meant concern for the children; nevertheless, it seems unlikely that petitioner would have ulterior motives or undue designs more than a parent’s natural desire to be able to call on, even if it were only on brief visits, his own children. The trial court, in any case, has seen it fit to understandably provide this precautionary measure, i.e., “in no case (can petitioner) take out the children without the written consent of the mother.” WHEREFORE, the decision of the trial court is REINSTATED, reversing thereby the judgment of the appellate court which is hereby SET ASIDE. No costs. SO ORDERED. Article 50. The effects provided for in para- graphs (2), (3), (4) and (5) of Article 43 and in Arti- cle 44 shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and sup- port of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceed- ings. Arts. 50-51 MARRIAGE 327 Void and Voidable Marriages All creditors of the spouses as well as of the ab- solute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129. (n) Article 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already pro- vided for such matters. The children or their guardian, or the trustee of their property, may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ul- timate successional rights of the children accruing upon the death of either or both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (n) JUDGMENT OF ANNULMENT OR NULLITY OF MAR- RIAGE. The judgment of annulment or nullity of marriage shall state the factual and the legal basis for its dispositive conclusion. A court cannot grant any relief which is not based on the allegation of the petition unless issues related to the main case were present- ed without objection from any party. Should a court render a judg- ment which is not in conformity with the allegations in a pleading or which grants a relief which is not based on the pleadings, the judgment is void for being coram-non-judice. However, even if the judgment is void but was not assailed in a motion for reconsidera- tion and therefore not made an issue on appeal, such void judgment shall not be set aside and will continue to be effective (Lam v. Chua, 426 SCRA 29). The finding of the trial court as to the existence or non-existence of a party’s psychological incapacity at the time of the marriage is 328 PERSONS AND FAMILY RELATIONS LAW Arts. 50-51 final and binding on the Supreme Court unless it can be sufficiently shown that the trial court’s factual findings and evaluation of the testimonies and the pieces of evidence presented are clearly and manifestly erroneous (Tuason v. Court of Appeals, 256 SCRA 158). Considering that the judgment in an annulment or nullity of marriage case in proper cases shall involve the dissolution of the conjugal or absolute property regime of the parties or the co- ownership of the parties, the liquidation, partition and distribution of the same shall be provided for in the said judgment unless such matters had been adjudicated in previous judicial proceedings or the parties had agreed in their marriage settlement executed prior to the marriage that the regime of separation of property governed their marriage. Thus, in Domingo v. Court of Appeals, et al., 44 SCAD 955, 226 SCRA 572, the Supreme Court ruled that, based on the second paragraph of Article 50 and the effects of a nullity decree of a void marriage which are contained in paragraphs (2), (3), (4) and (5) of Article 43, private respondent’s ultimate prayer for separation of property will simply be one of the necessary consequences of the judicial declaration of absolute nullity of their marriage. Thus, petitioner’s suggestion that in order for their properties to be separated, an ordinary civil action has to be instituted for that purpose is baseless. The Family Code has clearly provided the effects of the declaration of nullity of marriage, one of which is the separation of property according to the regime of property relations governing them. It stands to reason that the lower court before whom the issue of nullity of a first marriage is brought is likewise clothed with jurisdiction to decide the incidental questions regarding the couple’s properties. In so far as void marriages are concerned, paragraphs (2), (3), (4) and (5) of Article 43 exceptionally apply only to void subsequent marriages that occur as a result of the non-observance of Article 40. Specifically, they apply only to the subsequent void marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void (Valdes v. RTC, 72 SCAD 967, 260 SCRA 221). This is the clear mandate of Article 50. In this case, though the subsequent marriage is void, the property shall be liquidated as if there is a conjugal partnership of gains or an absolute community of property. In all other cases of a void marriage other than the void subsequent marriage that occurs as a result of the non-observance of Article 40, the property regime shall be governed by the rule on co-ownership provided for in Articles 147 and 148, as the case Arts. 50-51 MARRIAGE 329 Void and Voidable Marriages may be, and not the conjugal partnership of gains or the absolute community of property. Hence, in these cases where Article 147 or 148 will apply, the property regime shall be liquidated pursuant to the ordinary rules on co-ownership pursuant to the Civil Code provided they are not contrary to the Family Code (Valdes v. RTC, 72 SCAD 967, 260 SCRA 221). However, in the case of Nicdao Cariño v. Cariño, G.R. No. 132529, February 2, 2001, the Supreme Court ruled that a subsequent marriage celebrated in violation of Article 40 is void because it is bigamous and therefore the property regime in the said subsequent void marriage is co-ownership under Article 148 of the Family Code. If this is the case, then the presumptive legitime need not be delivered as it now follows the general rule. This Nicdao Cariño ruling is inaccurate. The legal rationale of the Supreme Court in the Valdez ruling must still be followed considering that it is a clear application of what Article 50 provides. Significantly, the Supreme Court En Banc Resolution in A.M. No. 02-11-10-SC which took effect on March 15, 2003 provides in Section 21 thereof that, after the entry of judgment as a consequence of the finality of a nullity or annulment decree, the presumptive legitime of the common children shall be delivered “pursuant to Articles 50 and 51 of the Family Code.” The wordings of the said rule referring to Article 50 does not detract from the Valdez ruling. Indeed, the new rules seem to have acknowledged that, for purposes of a void marriage, the presumptive legitime shall be delivered in accordance with Article 50 which, in turn expressly provides that, the proper case of a void marriage referred to is only the one under Article 40 which is the subsequent void marriage resulting from the failure to get a judicial declaration of nullity of the first void marriage. In the partition of the conjugal dwelling and the lot on which it is situated, Article 102(6) (on the absolute community of property regime) and Article 129(9) (on the conjugal partnership of gains regime) shall apply in case the marriage has been annulled under Article 45 or in case the marriage is the void subsequent marriage that occurs as a result of the non-observance of Article 40 in relation to Articles 52 and 53. Pertinently, Articles 102(6) and 129(9) identically provide that: Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with 330 PERSONS AND FAMILY RELATIONS LAW Arts. 50-51 whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide taking into consideration the best interest of the children. In other cases of a void marriage (e.g., not the void subsequent marriage referred in Article 40 in relation to Articles 52 and 53), the above provision is not applicable. The rule that will apply is the rule on co-ownership (Valdes v. RTC, 72 SCAD 967, 260 SCRA 221). The dwelling shall be co-owned equally in the absence of any evidence that it is the exclusive property of only one party in accordance with the rules on co-ownership. In case of liquidation, it can be sold and the proceeds thereof be divided equally between the co-owners or, if it can be shown that it is legally owned only by one party, it shall be awarded to such party. In order that their interest will be amply protected, all the creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the liquidation proceeding. For instance, if in the dissolution and partition, one of the parties decides to waive his or her rights, share or interest in the community or conjugal property in favor of the other party or any other person, the creditors of the one who makes the waiver can seek the rescission of the waiver to the extent of the amount sufficient to cover the amount of their credit (Articles 89 and 107). ENTRY OF JUDGMENT AND DECREE OF NULLITY OR ANNULMENT. Unless there is a motion for reconsideration or an appeal made after the decision, such decision will become final upon the expiration of 15 days from receipt of the parties of the decision. Upon finality, the Entry of Judgment shall be issued. Subsequently, a Decree of Absolute Nullity of Marriage or Annulment of Marriage shall be issued. This decree shall be the best evidence of nullity or annulment of Marriage. However, the decree will issue only after the registrations of the Entry of Judgment in the proper local civil registries and of the approved partition and distribution of properties of the spouses in the proper registry of deeds, and the delivery of the presumptive legitime. PRESUMPTIVE LEGITIME. Legitime is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs (Article 886 of the Civil Code). The decree of annulment or nullity of marriage shall also provide that the presumptive legitime of the common children shall be delivered to the same in cash, Arts. 50-51 MARRIAGE 331 Void and Voidable Marriages property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matter. During the hearing on the Family Code in the Senate Committee on Women and Family Relations held on January 27, 1988, Justices JBL Reyes and Puno had the following remarks on the purpose of the delivery of the presumptive legitime: JUSTICE REYES. xxx xxx May I point out that the reason for this was to protect the legitime of the children against the result of subsequent marriages that might be contracted after an annulment or its declaration as void. You will notice that the question of its being a presumptive legitime is expressed in the Code. It is not a real legitime and, of course, if he is incapacitated to have any legitime at all at the time of the transmission that is an objection that will be raised by the transferor and can be decided by the court. Second point: Assuming that he has received a presumptive legitime and the transferee becomes incapacitated to receive, it is a matter of recovery of the property that has been transmitted to him, or its value, since the legitime anyway is a matter of values and not of specific property. xxx xxx (copied verbatim from the transcript of the Senate hearing January 27, 1988). xxx xxx xxx MR. PUNO. xxx xxx Well, this is not a new phrase: This is not a new provision. It is contained in the Civil Code of 1950 and even in the Spanish Code. It is contained in Article 201, for instance, of the present Civil Code of 1950 where in the case of absolute community the law excludes from the community, among others, a portion of the property of either of the presumptive legitime of the children by the former marriage. Now, the term “presumptive legitime” is exactly what it is, it is a presumption. It is not actual legitime. Actual legitime is that which is present at the time of death. Now, since the parties are still alive, we can only presume what legitime is, what is the basis of the presumption? The basis of the presumption is that properties of the persons involved at the time of this particular situation arises would be the same as when he dies which is not a fact. Because these properties may increase or they may decrease or they may disappear. But the point is, certain persons have to be protected. In the case of the system of absolute community when the two parties to the marriage merge their properties, the law looks forward. It is possible that there have been children by a former marriage. If you do not exclude the presumptive legitime, 332 PERSONS AND FAMILY RELATIONS LAW Arts. 50-51 then the children of the first marriage will be at a disadvantage because they will have to share that part which should have belonged to them, to one of the children of the second marriage. That is why in the present Code, in a system of absolute community, we exclude that presumptive legitime. Meaning, that property which would have belonged to the children, if there had been death at this moment. But there is no doubt; the parties are still alive. So therefore, we can only presume. That is the same theory insofar as the Family Code is concerned. We except this, we exclude this, as presumptive legitime, meaning that we assumed that if he died at this moment, this would have been the legitime of the children, but they have to be protected for the time being. That’s why we set aside the property. xxx xxx (Copied verbatim from the Transcript of the hearing of January 27, 1988). The presumptive legitime shall be computed as of the date of the final judgment of the trial court. It shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The judicial proceeding for the approval of the mutual agreement of the spouses shall be summary in nature in accordance with Article 253. Significantly, the law also provides that the delivery of the presumptive legitime will in no way prejudice the ultimate successional rights of the children accruing upon the death of either or both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. In case the marriage is annulled, the presumptive legitime of the common children, if there are any, must be delivered to them. However, in void marriages, the delivery of the presumptive legitime is generally not required except only in the void subsequent marriage resulting from the non-observance of Article 40 in relation to Articles 52 and 53. In Valdes v. RTC, 72 SCAD 967, 260 SCRA 221, the Supreme Court ruled that, as a general rule, in case of void marriages, the special rules on co-ownership under Articles 147 and 148, as the case may be, are applicable and, in case of liquidation and partition of such co-ownership, the ordinary rules of co-ownership under the Civil Code are applicable and not Articles 50, 51 and 52 of the Family Code. It must be observed that Article 50, among others, requires the delivery of the presumptive legitime. Article 51 provides how, in the delivery of the presumptive legitime, the same shall be valued. Article 52, among others, requires the recording of the delivery of the presumptive legitime in the proper Arts. 50-51 MARRIAGE 333 Void and Voidable Marriages registry of property. In the ordinary liquidation and partition rules of co-ownership under the Civil Code as well as in Articles 147 and 148 which are generally applicable to void marriages, there is no provision requiring the delivery of the presumptive legitime similar to Articles 50, 51 and 52 of the Family Code. Following therefore the rationale of the Valdes ruling, delivery of the presumptive legitime is not required as a general rule in void marriages; but, as an exception to this general rule, the Valdes ruling also states that paragraphs (2), (3), (4) and (5) of Article 43 relates only, by the explicit terms of Article 50, to voidable marriages under Article 45 and, exceptionally, to void marriages under Article 40 of the Family Code, namely, the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void. Paragraph (2) of Article 43, in turn, provides for the liquidation of the conjugal partnership of gains or the absolute community of property. Hence, the liquidation of the property of the void subsequent marriage referred to in Article 40 will be done as if the property relationship is the absolute community of property or the conjugal partnership of gains. It shall therefore follow the liquidation procedures under Articles 102 referring to the absolute community of property and 129 referring to the conjugal partnership of gains, which expressly include the mandatory delivery of the presumptive legitime in accordance with Article 51 (See Article 102[5] and Article 129[8]). By way of exception, therefore, and following the spirit of the Valdes ruling, Articles 50, 51 and 52 requiring the delivery of the presumptive legitime, exceptionally applies to a subsequent void marriage resulting from the non-observance of Article 40. However, in the case of Nicdao Cariño v. Cariño, G.R. No. 132529, February 2, 2001, the Supreme Court ruled that a subsequent marriage celebrated in violation of Article 40 is void because it is bigamous and therefore the property regime in the said subsequent void marriage is co-ownership under Article 148 of the Family Code. This Nicdao Cariño ruling is inaccurate. The legal rationale of the Supreme Court in the Valdez ruling must still be followed considering that it is a clear application of what Article 50 provides. While the common children are not parties to the annulment case relative to voidable marriages under Article 45 or a nullity case relative to a subsequent void marriage under Article 40, but considering that they are materially affected by the nullity or annulment judgment in so far as the presumptive legitime 334 PERSONS AND FAMILY RELATIONS LAW Arts. 52-54 is concerned, they are specially granted by law legal standing to seek the enforcement of the judgment. The children’s guardian or the trustee of their property may likewise ask for the enforcement for and on behalf of the children. The delivery of the presumptive legitime can be done by filing a summary court proceeding praying for such delivery (Article 253 in relation to Chapter 2 of Title XI of the Family Code). Article 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children’s presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n) Article 53. Either of the former spouses may marry again after complying with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. (n) Article 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory, shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. (n) LIQUIDATION AND PARTITION OF PROPERTIES. In case of nullity of marriage, the properties shall be liquidated in accordance with the ordinary rules of co-ownership. In Valdez vs. RTC, 260 SCRA 221, the Supreme Court ruled that the liquidation process provided under the chapters on the absolute community of property and the conjugal partnership of gains will not apply in a void marriage except in one exceptional case which is the subsequent void marriage under Article 40 of the Family Code. In voidable marriage, the properties shall be liquidated in accordance with the rules provided for under the chapters in the absolute community of property and the conjugal partnership of gains. If the there were a pre-nuptial agreement providing that separation of property regime governed the marriage, then there is no need for liquidation and partition. In Maquilan v. Maquilan, G.R. No. 155409, June 8, 2007, 524 SCRA 167, the Supreme Court ruled that a partial voluntary Arts. 52-54 MARRIAGE 335 Void and Voidable Marriages separation of property agreed upon by the parties via a compromise agreement duly approved by the court prior to the judicial declaration of nullity of marriage is valid. RECORDING IN THE CIVIL REGISTRY AND REGISTRY OF PROPERTY. The recording in the civil registry and in the registry of property of the judgment of annulment or of absolute nullity of the marriage and the partition and distribution, as well as the delivery of the presumptive legitimes of the common children in an annulled marriage based on Article 45 or a nullified subsequent marriage under Article 40 in relation to Articles 52 and 53 are necessary to bind third persons. Such recordings are also necessary for the parties to be able to validly contract a subsequent marriage. Non-compliance with the requirement mandated under Article 52 of the Family Code shall not affect third persons and therefore renders any subsequent marriage null and void pursuant to Article 53. It must be noted, however, that, except in the subsequent void marriage that may arise due to the non-observance of Article 40 in relation to Articles 52 and 53, there is no need for the delivery of the presumptive legitime after a marriage is judicially declared void (See Valdes v. RTC, 72 SCAD 967, 260 SCRA 221; see discussions under Article 147). Non-compliance with the liquidation and partition require- ments, as well as the delivery of the presumptive legitime shall be a cause for the non-issuance of a decree of nullity or annulment. It must be pointed out that the observance or non-observance of the requirements of liquidation, partition, distribution and the delivery of the presumptive legitimes is crucially material in determining whether or not the subsequent marriage is void only if the previous marriage has been judicially nullified or annulled in accordance with law. Hence, if the first marriage were terminated by the death of one of the spouses and the surviving spouse remarried, complying with all the essential and formal requirements of Articles 2 and 3 of the Family Code for a marriage, such subsequent marriage is valid even if there has been no previous liquidation, partition, and distribution of the properties of the first marriage as well as no delivery of the presumptive legitimes or actual legitime of the children. The failure to liquidate in this instance will only be determinative of the property regime that will govern the subsequent marriage. Articles 103 and 130 of the Family Code provide, among others, that if a surviving spouse subsequently remarries without liquidating the community or conjugal properties of the first 336 PERSONS AND FAMILY RELATIONS LAW Arts. 52-54 marriage, the mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. APPROPRIATE CIVIL REGISTRY AND REGISTRIES OF PROPERTY. When Article 52 requires that the judgment of annul- ment or the judicial declaration of nullity shall be recorded in the appropriate civil registry, it refers to the local civil registry of the city or municipality where the court that issued the decision is func- tioning (Article 409 of the Civil Code) and also the local civil registry of the city or municipality where the marriage was solemnized (Sec- tion 7 of the Civil Registry Law, Act No. 3753). Upon finality of judgment, an entry of judgment and a Decree of Nullity or annullment shall be issued which shall be registered in the local civil registries where the marriage was recorded and where the court granting the petition is located. It shall be the duty of the successful petitioner to send the copy of the final decree of the court to the proper local civil registrars. Upon the other hand, it shall be the duty of the clerk of court which issued the decree to ascertain whether the same has been registered, and if this has not been done, to send a copy of the said decree to the civil registry of the city or municipality where the court is functioning (Article 409 of the Civil Code). The registries of property referred to in Article 52 refer to the registries of properties where the properties are located. If there are many properties located in various places, registration must be made in each of the registries of properties where each property is located. STATUS OF CHILDREN. Generally, children conceived and born outside a valid marriage or inside a void marriage are illegitimate. Children conceived or born inside an annullable or voidable marriage are legitimate while those conceived and born inside a void marriage are illegitimate except as provided for in Article 54 of the Family Code. Hence, if the marriage is null and void because one of the parties is psychologically incapacitated to perform the essential marital obligations or because the parties to the subsequent marriage have not complied with the mandatory recording and distribution requirements under Article 52 in relation to Article 53, the children conceived or born inside a void marriage under Article 36 and before finality of the judgment of nullity in psychological incapacity case, or those conceived or born in a marriage which does not comply with Sec. 1 MARRIAGE 337 Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages Article 52 in relation to Article 53, shall be considered legitimate. The judicial decree of nullity becomes final after the lapse of fifteen (15) days from the receipt of the parties of the said decree, unless in the meantime the decree has been appealed to a higher court. Thus, if, after only two days from receipt of a judicial nullity decree on the basis of Article 36, the parties, whose marriage was the subject of nullification, met and had sexual intercourse which resulted in the conception of the child, the said child shall be considered their legitimate child after birth. It must be understood, however, that the children referred to under Article 54 referring to Article 36 do not involve those con- ceived and born before the marriage ceremony of the parents but to those conceived or born after the marriage ceremony of the parents but before final judgment of nullity. Thus, a child conceived and born before the marriage ceremony is illegitimate. If the child were conceived at a time when the parents do not suffer any legal impedi- ment to marry each other, the subsequent marriage of such parents will legitimate the child pursuant to Article 178 of the Family Code. If such subsequent marriage is declared void because of Article 36 (psychological incapacity), the child shall be an illegitimate child. The child will not be considered legitimate. Article 54 will not apply because the child was not conceived or born inside the void marriage but was conceived and born when there was no marriage ceremony yet. Under Article 53, if either of the former spouses does not comply with the requirements under Article 52 and he or she remarries, the subsequent marriage is void but the children conceived or born inside the said void marriage are legitimate. Hence, if the marriage of A and B are annulled and A, even before the liquidation of his conjugal properties with B and without delivering the presumptive legitime of their common legitimate child, subsequently marries X, the said marriage is void but any child conceived or born inside such void marriage is legitimate. RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES (Supreme Court En Banc Resolution A.M. 02-11-10-SC) Section 1. Scope. — This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of the Philippines. 338 PERSONS AND FAMILY RELATIONS LAW Secs. 2-3 The Rules of Court shall apply suppletorily. Sec. 2. Petition for declaration of absolute nullity of void marriages. — (a) Who may file. — A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (n) (b) Where to file. — The petition shall be filed in the Family Court. (c) Imprescriptibility of action or defense. — An action or defense for the declaration of absolute nullity of void marriage shall not prescribe. (d) What to allege. — A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. Sec. 3. Petition for annulment of voidable marriages. — (a) Who may file. — The following persons may file a petition for annulment of voidable marriage based on any of the grounds under Article 45 of the Family Code and within the period herein indicated: (1) The contracting party whose parent, or guardian, or person exercising substitute parental authority did not give his or her consent, within five years after attaining the age of twenty-one unless, after attaining the age of twenty-one, such party freely cohabitated with the other as husband or wife; or the parent, guardian or person having legal charge of the contracting party, at any time before such party has reached the age of twenty-one; (2) The sane spouse who had no knowledge of the other’s insanity; or by any relative, guardian, or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during a lucid interval or after regaining sanity, provided that the petitioner, after coming to Secs. 4-5 MARRIAGE 339 Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages reason, has not freely cohabited with the other as husband or wife; (3) The injured party whose consent was obtained by fraud, within five years after the discovery of the fraud, provided that said party, with full knowledge of the facts constituting the fraud, has not freely cohabited with the other as husband or wife; (4) The injured party whose consent was obtained by force, intimidation, or undue influence, within five years from the time the force, intimidation, or undue influence disappeared or ceased, provided that the force, intimidation or undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other as husband or wife; (5) The injured party where the other spouse is physically incapable of consummating the marriage with the other and such incapacity continues and appears to be incurable, within five years after the celebration of marriage; and (6) The injured party where the other party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable, within five years after the celebration of marriage. (b) Where to file. — The petition shall be filed in the Family Court. Sec. 4. 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. Sec. 5. Contents and form of petition. — (1) The petition shall allege the complete facts constituting the cause of action. (2) It shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved. 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 matters similarly requiring urgent action. 340 PERSONS AND FAMILY RELATIONS LAW Secs. 6-8 (3) It must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally 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) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period. Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of the petition. Sec. 6. Summons. — The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules: (1) 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 places as the court may order. In addition, a copy of the summons shall be served on the respondent at his last known address by registered mail or any other means the court may deem sufficient. (2) The summons to be published shall be contained in an order of the court with the following data: (a) title of the case; (b) docket number; (c) nature of the petition; (d) principal grounds of the petition and the reliefs prayed for; and (e) a directive for the respondent to answer within thirty days from the last issue of publication. Sec. 7. 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. Sec. 8. Answer. — (1) The respondent shall file his answer within fifteen days from service of summons, or within thirty days Secs. 9-11 MARRIAGE 341 Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages from the last issue of publication in case of service of summons by publication. The answer must be verified by the respondent himself and not by counsel or attorney-in-fact. (2) If the respondent fails to file an answer, the court shall not declare him or her in default. (3) 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. Sec. 9. Investigation report of public prosecutor. — (1) Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any. (2) 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 a copy of the report. The court shall set the report for hearing and if convinced that the parties are in collusion, it shall dismiss the petition. (3) 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. Sec. 10. Social worker. — The court may require a social worker to conduct a case study and 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. Sec. 11. Pre-trial. — (1) 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. (2) Notice of pre-trial. — (a) The notice of pre-trial shall contain: (1) the date of pre-trial conference; and (2) 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. 342 PERSONS AND FAMILY RELATIONS LAW Secs. 12-13 (b) 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. (c) 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-trail shall be sent to respondent at his last known address. Sec. 12. Contents of pre-trial brief. — The pre-trial brief shall contain the following: (a) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof; (b) A concise statement of their respective claims together with the applicable laws and authorities; (c) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues; (d) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof; (e) The number and names of the witnesses and their respective affidavits; and (f) 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 paragraphs. Sec. 13. Effect of failure to appear at the pre-trial. — (a) 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. (b) If the respondent has 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 thereafter 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. Secs. 14-15 MARRIAGE 343 Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages Sec. 14. Pre-trial conference. — At the pre-trial conference, the court: (a) 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. (b) In case meditation 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. Sec. 15. 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 declaration of nullity or annulment, 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 16 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. (c) 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. (d) 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. 344 PERSONS AND FAMILY RELATIONS LAW Secs. 16-18 (e) The parties shall have five days from receipt of the pre- trial order to propose corrections or modifications. Sec. 16. Prohibited compromise. — The court shall not allow compromise on prohibited matters, such as the following: (a) The civil status of persons; (b) The validity of a marriage or of a legal separation; (c) Any ground for legal separation; (d) Future support; (e) The jurisdiction of courts; and (f) Future legitime. Sec. 17. Trial. — (1) 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. (2) The grounds for declaration of absolute nullity or annulment of marriage must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed. (3) 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 that 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 right of a party to privacy; or would be offensive to decency or public morals. (4) 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. Sec. 18. Memoranda. — The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. 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. Secs. 19-21 MARRIAGE 345 Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages Sec. 19. Decision. — (1) If the court renders a decision grant- ing the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rules on Liquidation, Partition and Distribution of Properties. (2) 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 be published once in a newspaper of general circulation. (3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public prosecutor, or the Solicitor General. (4) Upon the finality of the decision, the court shall forthwith issue the corresponding decree if the parties have no properties. If the parties have no properties, the court shall observe the procedure prescribed in Section 21 of this Rule. The entry of judgment shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry where the Family Court granting the petition for declaration of absolute nullity or annulment of marriage is located. Sec. 20. Appeal. — (1) 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. (2) 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 on the adverse parties. Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. — 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, support of common 346 PERSONS AND FAMILY RELATIONS LAW Secs. 22-23 children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings. Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage. — (a) The court shall issue the Decree after: (1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located; (2) Registration of the approved partition and distribu- tion of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and (3) The delivery of the children’s presumptive legitimes in cash, property, or sound securities. (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. Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected. Sec. 23. Registration and publication of the decree; decree as best evidence. — (a) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, 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 from receipt of the copy of the Decree. (b) 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) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children. Secs. 1-2 MARRIAGE 347 Rule on Provisional Orders Sec. 24. Effect of death of a party; duty of the Family Court or Appellate Court. — (a) In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated, without prejudice to the settlement of the estate in proper proceedings in the regular courts. (b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts. Sec. 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. RULE ON PROVISIONAL ORDERS (Supreme Court En Banc Resolution A.M. 02-11-12-SC) SECTION 1. When issued. — Upon receipt of a verified petition for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation, and at any time during the proceeding, the court, motu proprio or upon application under oath of any of the parties, guardian or designated custodian, may issue provisional orders and protection orders with or without a hearing. These orders may be enforced immediately, with or without a bond, and for such period and under such terms and conditions as the court may deem necessary. SECTION 2. Spousal Support. — In determining support for the spouses, the court may be guided by the following rules: (a) In the absence of adequate provisions in a written agreement between the spouses, the spouses may be supported from the properties of the absolute community or the conjugal partnership. (b) The court may award support to either spouse in such amount and for such period of time as the court may deem just and reasonable based on their standard of living during the marriage. (c) The court may likewise consider the following factors: (1) whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment; (2) the time necessary to acquire sufficient education and training to enable the spouse seeking support to find 348 PERSONS AND FAMILY RELATIONS LAW Secs. 3-4 appropriate employment, and that spouse’s future earning capacity; (3) the duration of the marriage; (4) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; (5) the needs and obligations of each spouse; (6) the contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career building of the other spouse; (7) the age and health of the spouses; (8) the physical and emotional conditions of the spouses; (9) the ability of the supporting spouse to give support, taking into account that spouse’s earning capacity, earned and unearned income, assets, and standard of living; and (10) any other factor the court may deem just and equitable. (d) The Family Court may direct the deduction of the provi- sional support from the salary of the spouse. SECTION 3. Child Support. — The common children of the spouses shall be supported from the properties of the absolute community or the conjugal partnership. Subject to the sound discretion of the court, either parent or both may be ordered to give an amount necessary for the support, maintenance, and education of the child. It shall be in proportion to the resources or means of the giver and to the necessities of the recipient. In determining the amount of provisional support, the court may likewise consider the following factors: (1) the financial resources of the custodial and non-custodial parent and those of the child; (2) the physical and emotional health of the child and his or her special needs and aptitudes; (3) the standard of living the child has been accustomed to; (4) the non-monetary contributions that the parents will make toward the care and well-being of the child. The Family Court may direct the deduction of the provisional support from the salary of the parent. SECTION 4. Child Custody. — In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child. The court may likewise consider the following factors: (a) the agreement of the parties; (b) the desire and ability of each parent to foster an open and loving relationship between the child and Secs. 5-6 MARRIAGE 349 Rule on Provisional Orders the other parent; (c) the child’s health, safety, and welfare; (d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent; (e) the nature and frequency of contact with both parents; (f) habitual use of alcohol or regulated substances; (g) marital misconduct; (h) the most suitable physical, emotional, spiritual, psychological and educational environment; and (i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit. The court may award provisional custody in the following order of preference: (1) to both parents jointly; (2) to either parent taking into account all relevant considerations under the foregoing paragraph, especially the choice of the child over seven years of age, unless the parent chosen is unfit; (3) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified; (4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; (5) to the child’s actual custodian over twenty-one years of age, unless unfit or disqualified; or (6) to any other person deemed by the court suitable to provide proper care and guidance for the child. The custodian temporarily designated by the court shall give the court and the parents five days notice of any plan to change the residence of the child or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the parents. SECTION 5. Visitation Rights. — Appropriate visitation rights shall be provided to the parent who is not awarded provisional custody unless found unfit or disqualified by the court. SECTION 6. Hold Departure Order. — Pending resolution of the petition, no child of the parties shall be brought out of the country without prior order from the court. The court, motu proprio or upon application under oath, may issue ex-parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the child from the Philippines without the permission of the court. The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold 350 PERSONS AND FAMILY RELATIONS LAW Sec. 7 departure order issued within twenty-four hours from the time of its issuance and through the fastest available means of transmittal. The hold-departure order shall contain the following infor- mation: (a) the complete name (including the middle name), the date and place of birth, and the place of last residence of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined; (b) the complete title and docket number of the case in which the hold departure was issued; (c) the specific nature of the case; and (d) the date of the hold-departure order. If available, a recent photograph of the person against whom a hold departure order has been issued or whose departure from the country has been enjoined should also be included. The court may recall the order, motu proprio or upon verified motion of any of the parties after summary hearing, subject to such terms and conditions as may be necessary for the best interests of the child. SECTION 7. Order of Protection. — The court may issue an Order of Protection requiring any person: (a) to stay away from the home, school, business, or place of employment of the child, other parent or any other party, and to stay away from any other specific place designated by the court; (b) to refrain from harassing, intimidating, or threatening such child or the other parent or any person to whom custody of the child is awarded; (c) to refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the child; (d) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods; (e) to permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court; (f) to comply with such other orders as are necessary for the protection of the child. Secs. 8-9 MARRIAGE 351 Rule on Provisional Orders SECTION 8. Administration of Common Property. — If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the court may, upon application of the aggrieved party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property subject to such precautionary conditions it may impose. The receiver or administrator may not dispose of or encumber any common property or specific separate property of either spouse without prior authority of the court. The provisional order issued by the court shall be registered in the proper Register of Deeds and annotated in all titles of properties subject of the receivership or administration. SECTION 9. 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. 352 PERSONS AND FAMILY RELATIONS LAW TITLE II. — LEGAL SEPARATION Article 55. A petition for legal separation may be filed on any of the following grounds: 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; 2. Physical violence or moral pressure to compel the petitioner to change religious or politi- cal affiliation; 3. Attempt of respondent to corrupt or in- duce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or conniv- ance in such corruption or inducement; 4. Final judgment sentencing the respon- dent to imprisonment of more than six years, even if pardoned; 5. Drug addiction or habitual alcoholism of the respondent; 6. Lesbianism or homosexuality of the res- pondent; 7. Contracting by the respondent of a sub- sequent bigamous marriage, whether in the Philip- pines or abroad; 8. Sexual infidelity or perversion; 9. Attempt by the respondent against the life of the petitioner; or 10. Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article, the term “child” shall include a child by nature or by adoption. (97a) 352 Art. 55 LEGAL SEPARATION 353 LEGAL SEPARATION. A decree of legal separation or relative divorce does not affect the marital status, there being no severance of the vinculum (Laperal v. Republic, 6 SCRA 357). It does not dissolve the marriage. A legal separation decree involves nothing more than bed-and-board separation (a mensa et thoro) of the spouses (Lapuz v. Eufemio, 43 SCRA 177). However, the decree is terminable at the will of the parties by merely filing a manifestation in court, the mar- riage continuing in regard to everything not necessarily withdrawn from its operation (Pettis v. Pettis, 91 Conn. 608, 101 Atl. 13, 4 ALR 852). Significantly, the Family Code, like the Civil Code, does not admit absolute divorce (Tenchavez v. Escano, 15 SCRA 355) except under the second paragraph of Article 26 of the Family Code. Strictly speaking, the word “divorce” means a dissolution of the bond of matrimony, based on the theory of a valid marriage, for some cause arising after the marriage, while an annulment proceeding is maintained upon the theory that, for some cause existing at the time of the marriage ceremony, the marriage is terminable (Miller v. Miller, 175 Cal. 797, 162 Pac. 394 Ann. Cas. 1918E, LRA 1918B 415). Legal separation, under the Family Code, is known as relative divorce. EXCLUSIVITY OF GROUNDS FOR LEGAL SEPARATION. The grounds enumerated by law to warrant a judicial decree of legal separation are only those enumerated in Article 55. They may or may not exist at the time of the marriage ceremony. As a general rule, they usually occur after the celebration of the marriage. No other grounds can be invoked by any party other than those stated by law. This is in furtherance of the policy of the State to foster unity in and to preserve the marital relation as the same is essential to the public welfare. Thus, the Supreme Court in Lacson v. San Jose- Lacson, 24 SCRA 837, stated that separation by the spouses is a “state which is abnormal and fraught with grave danger to all concerned.” We would like to douse the momentary seething of 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. REPEATED PHYSICAL VIOLENCE OR GROSSLY ABUSIVE CONDUCT. The frequency of physical violence inflicted upon the 354 PERSONS AND FAMILY RELATIONS LAW Art. 55 petitioner, a common child, or a child of the petitioner warrants a decree of legal separation. This ground, however, does not include repeated physical violence upon the child of the respondent or the guilty spouse. The law does not give a cause of action to the petitioner to file a case for legal separation on the ground that the respondent-spouse repeatedly inflicts physical violence upon his or her own child with another person. However, such repeated physical violence may be a cause to suspend or terminate, depending on the severity of the violence, the parental authority of the respondent upon his or her own minor child with another person pursuant to Article 231(1) of the Family Code. Physical violence connotes the infliction of bodily harm. Although the physical infliction must generally cause a certain degree of pain, the frequency of the act and not the severity of the same is the determinative factor under this ground. Indeed, the act may involve some form of violence although the same is not that severe. However, it must be inflicted with bad faith and malice. In the original draft of the Civil Law and Family Code committees, the phrase used was “habitual physical violence.” Justice Caguioa objected to the use of the phrase “habitual” as it connotes a length of time and accordingly, Justice Reyes suggested the word “repeated” which was adopted by the committee (Minutes of the 156th joint meeting of the Civil Code and Family Law committees held on September 27, 1986, page 11). However, even if the act is not repeated or does not involve physical violence, such act may nevertheless constitute grossly abusive conduct on the part of the respondent which may warrant the issuance of a legal separation decree. “Grossly abusive conduct” has no exact definition and, therefore, is determined on a case- to-case basis. Hence, a singular but serious act “of squeezing of neck, pulling of hair and the like without the intent to kill” may be included in this phrase (Minutes of the 156th joint meeting of the Civil Code and Family Law committees held on September 27, 1986, page 11). Also, the continued manifestation by one spouse of indifference or aversion to the other coupled with persistent neg- lect of the duties incident to the marital relation has been declared by American jurisprudence as cruelty enough to warrant a decree of divorce (Ann Cas 1918B 480). In the same vein, this may be an example of grossly abusive conduct as a ground for legal separation. If, however, such indifference or neglect are manifestations of the respondent’s psychological incapacity to perform the essential marital obligations, the same may be a ground for nullity of marriage Art. 55 LEGAL SEPARATION 355 under Article 36 of the Family Code if such behavior exists at the time of the marriage ceremony and is grave and incurable. Also, where it appears that a spouse has deliberately adopted, as a course of conduct, the use of offensive language toward the other spouse, continually calling him or her vile and opprobrious names, with the intent and fixed purpose of causing unhappiness, American courts usually consider such conduct to be legal cruelty or abusive treatment which can justify a divorce (Ann. Cas. 1918B 487). Under the Family Code, such a situation can fall under grossly abusive conduct. COMPULSION BY PHYSICAL VIOLENCE OR MORAL PRESSURE TO CHANGE RELIGIOUS OR POLITICAL AFFILIA- TION. Answering queries and comments relative to this parti-cular ground, Justice Ricardo Puno during the hearing on February 3, 1988 in the Senate Committee of Women and Family Relations, re- marked: I did catch one suggestion that Article 55(2), physical violence and moral pressure to compel the petitioner to change religious or political affiliation should be amended to remove “political affiliation” so that it would merely be “physical violence or moral pressure to compel the petitioner to change his religious affiliation.’’ I would like to call attention to paragraph 1. In paragraph 1, it says: “physical violence or grossly abusive conduct directed against the petitioner, the common child or a child of the petitioner.” The “physical violence” here is for any purpose. So, no matter how insignificant the purpose is, as long as there is repeated physical violence, there will be a ground for legal separation. If we remove “political affiliation” here, it will mean that it can still be an item for purposes of legal separation except that you have to do it repeatedly. So, if you’re going to have your wife change her political affiliation and you would exert physical violence repeatedly, it will also be a ground for legal separation. Now, what we did here is, we equate it with religious conviction, so that with one attempt, one incident of physical violence or moral pressure to compel the change in religious affiliation or the change in political affiliation, it can be a ground for legal separation. Now, with due respect, we believe that political ideas are probably quite as important as religious ideas. We feel that 356 PERSONS AND FAMILY RELATIONS LAW Art. 55 there should be unity within the family, we think that the couple should learn to live with each other’s political ideas. That is the main context of reconciliation. If they cannot live together within the family, how can we live together as a nation sharing different political ideals? We feel that this is an answer to the human rights concept which includes, among others, the right to accept one another’s political beliefs. So, we feel that the nuance is not really as important as imagined because what will happen here merely, is that you would have a repetition of the physical violence and that would then be a ground for legal separation. Finally, this is not divorce, this is not a cutting of the marital ties. It is just a separation from bed and board but they remain married, now, perhaps, thereafter, there may still be a reconciliation that would enable them to restore their family life. That was the main point that moved the committee members to include “political affiliation” in paragraph 2 (copied verbatim from transcript of Hearing dated February 3, 1988, 10:30 a.m.). CORRUPTION OR INDUCEMENT TO ENGAGE IN PROSTI- TUTION. Parents and those exercising parental authority have the duty, among others, to provide their unemancipated children with moral and spiritual guidance, to instruct them by right precept and good example, and to protect them from bad company and prevent them from acquiring habits detrimental to their health, studies and morals. Hence, if one of the spouses induces the petitioner, a com- mon child, or a child of the petitioner to engage in prostitution or if such spouse connives in such corruption or inducement, a valid legal separation decree may issue to prevent the guilty spouse from exercising such morally depraved acts detrimental to the growth of the children and the family as a whole. The children here may or may not be emancipated. The immoral and corrupt act referred to is prostitution only. The inducement likewise refers to prostitution only. It cannot be any other immoral or corrupt act. Otherwise, the undue stretching of the import of the article will not serve the policy of the law of discouraging legal separation. It must likewise be observed that a mere “attempt” is enough to be a ground for legal separation. It is not important that the respondent successfully corrupted or induced the petitioner, a common child or a child of the petitioner to engage in prostitution, or connivance in such corruption or inducement. If the respondent is successful, it is, of course, definitely a ground for legal separation. Art. 55 LEGAL SEPARATION 357 The ground, however, does not include as the subjects of such an “attempt” the child of the respondent or the guilty spouse with another person. The law does not give a cause of action to the petitioner to file a case for legal separation on the ground that the respondent-spouse committed the ground provided in Article 55(3) upon his or her own child with another person. However, such act may be a cause to suspend or terminate, depending on severity of the corruption, inducement or connivance, the parental authority of the respondent upon his or her own minor child with another person pursuant to Article 231(2) and (4) of the Family Code. If such corruption, inducement or connivance is successful, it can even give cause of action to permanently terminate parental authority under Article 232 of the Family Code. FINAL JUDGMENT INVOLVING MORE THAN SIX YEARS OF IMPRISONMENT. The offense for which the spouse is sentenced by final judgment of more than six years of imprisonment need not be necessarily against the other spouse, their common children or the petitioner’s children. The offense could have been committed against anybody. This ground can be invoked even if the convicted party has been validly pardoned. During one of the Civil Code and Family Law joint meetings, Justice Reyes and Justice Caguioa stated that the idea is the stigma created by one spouse being sentenced to imprisonment for more than six years (Minutes of the 156th joint meeting of the Civil Code and Family Law committees held on September 27, 1986, page 12). The judgment must likewise be final. Hence, the injured spouse cannot file a case for legal separation while the criminal conviction is still on appeal because, in such a case, the decision has not yet become final. While the case is still on appeal, the erring spouse is still presumed innocent and there is still a possibility that the conviction can be reversed by the higher courts. DRUG ADDICTION, HABITUAL ALCOHOLISM, LESBIA- NISM AND HOMOSEXUALITY. The extent and nature of drug addiction, habitual alcoholism, lesbianism and homosexuality as grounds for legal separation are the same as those in annulment cases. However, in annulment cases, the drug addiction, habitual alcoholism, lesbianism and homosexuality are instances of fraud which must exist at the time of the celebration of the marriage. In legal separation, such grounds can exist even after the marriage ceremony. 358 PERSONS AND FAMILY RELATIONS LAW Art. 55 In cases where a spouse had engaged in homosexual activities despite repeated demands from the other spouse for him to desist from undertakings such activities, American courts usually granted a divorce decree to the complaining spouse by considering the homosexual activity within the purview of the statutory ground of “cruelty,” as the continued acts can create serious mental anguish on the part of the innocent spouse as to endanger her life and health. It must be noted however that the law should not have lumped lesbianism and homosexuality with drug addiction and habitual alcoholism as they are clearly different in nature. Lesbianism and homosexuality are not afflictions. They deal with sexual orientation that do not by themselves affect the mental state of a person in relation to his or her judgment, while drug addiction and habitual alcoholism deal with a mental state that is detrimental to ones social and personal well-being as well as to the society as a whole as they prevent the one afflicted from properly exercising their judgment. BIGAMY. Bigamy is the act of illegally contracting a second marriage despite full knowledge that the first marriage is still validly existing or without obtaining the needed judicial declaration of presumptive death of the first spouse who was absent for four or two consecutive years pursuant to Article 41 of the Family Code. Whether the illegal subsequent marriage has been solemnized in the Philippines or abroad is immaterial. So long as there has been a second bigamous marriage, wherever celebrated, a legal separation decree may issue. However, if the bigamous marriage were committed abroad, the guilty party cannot be criminally prosecuted for bigamy in the Philippines as our penal statutes are territorial in nature. SEXUAL INFIDELITY OR PERVERSION. The husband and the wife are obliged to observe mutual love, respect and fidelity. Although adultery and concubinage are included in acts of sexual infidelity, other acts of sexual infidelity short of adultery and concubinage are enough so long as the said acts committed by one spouse would constitute a clear betrayal of the trust of his or her spouse by having intimate love affairs with other persons. Hence, even a husband’s single act of sexual intercourse with a woman other than his wife may warrant the issuance of a decree of legal separation. This is true even if the husband and the woman did not commit concubinage. This is a drastic departure from the requirements under the Civil Code where, in so far as the husband is concerned, he must have committed concubinage which is done in Art. 55 LEGAL SEPARATION 359 any of the following manner, to wit: (a) maintaining a mistress in the conjugal dwelling; (b) sexual intercourse with another woman under scandalous circumstances; and (c) cohabiting with her in any other place. Also, it has been held that a Filipina who obtains an absolute divorce abroad and subsequently marries a foreigner and cohabits with the same, has technically committed “intercourse with a person other than her husband,” considering that the divorce obtained abroad is not recognized in the Philippines and her subsequent marriage therefore, is bigamous (Tenchavez v. Escano, 15 SCRA 355; Manila Surety & Fidelity Co., Inc. v. Teodoro, 20 SCRA 463). As to sexual perversion, this would include engaging in such behavior not only with third persons but also with the spouse. Thus, the joint Civil Code and Family Law revision committees clarified that it would include sexual perversion with one’s spouse and other sexual practices like oral sexual intercourse but that if one condones sexual infidelity or perversion, he is estopped from raising it as a ground for legal separation because condonation would be tantamount to consent (Minutes of the 156th Joint Meeting of the Civil Code and Family Law committees held on September 27, 1986, page 12). Interestingly, in the United States, certain acts of perversion such as bestiality are not only grounds for relative divorce but also for absolute divorce under the ground of “cruelty” against the other spouse as they exert such an unsettling effect not only on the marital relationship but on the mental condition of the other spouse, as it can create great psychological and physical agony on the part of the said innocent spouse. Thus, in a case where a wife and her relatives saw her husband on different occasions engaging in carnal intercourse with a cow and, when confronted about the situation by the wife, the husband merely evaded the issue and even resorted to vile language, necessitating the wife to separate from the husband, an American court ruled that for the wife to continue living with the erring spouse can seriously impair the wife’s health and imperil her life, and, therefore, the divorce is justified (Prather v. Prather, 68 NW 806). ATTEMPT ON LIFE. A criminal attempt to kill a spouse is clearly an act of moral depravity which warrants a decree of legal separation. However, the attempt on the life of the spouse must proceed from an evil design and not from any justifiable cause like 360 PERSONS AND FAMILY RELATIONS LAW Art. 55 self-defense or from the fact that the spouse caught the other in flagrante delicto having carnal knowledge with another man or woman. No previous criminal conviction is required for the legal separation case to prosper. The criminal attempt can be proven by a preponderance of evidence in the civil case for legal separation. If the guilty spouse has been criminally convicted by a competent court, the innocent spouse can disinherit the guilty spouse even if no legal separation case has been filed (Article 921 of the Civil Code). Their children likewise can disinherit the guilty spouse unless there has been a reconciliation between them (Article 920[8]). If the innocent spouse had previously made provisions in a will in favor of the guilty spouse, a legal separation decree will have the effect of revoking such provision by operation of law (Article 63[4]). UNJUSTIFIED ABANDONMENT. The abandonment or desertion must be willful. The act is willful when there is a design to forsake the other spouse intentionally, or without cause and, there- fore, break up the marital union; deliberate intent to cease living with the other spouse; abnegation of all duties of the marriage rela- tion, not to return. Mere severance of the relation is not sufficient. There must be a wrongful intent to desert, continued for the statuto- ry period (Tipton v. Tipton, 169 Ia. 182, 151 N.W. 90). It must be an abandonment without justifiable cause. Thus, in a case where the wife left the conjugal abode because she was being battered by the husband, the Supreme Court ruled that the act of the wife was for a justifiable cause and therefore cannot be a ground for legal separa- tion (Ong v. Ong, G.R. No. 153206, October 23, 2006, 505 SCRA 76). Physical separation alone is not the full meaning of the term “abandonment,” if the husband or the wife, despite his or her voluntary departure from the society of his or her spouse, neither neglects the management of the conjugal partnership nor ceases to give support to his wife or her husband (See Dela Cruz v. Dela Cruz, 22 SCRA 333). There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual separation (Partosa-Jo v. Court of Appeals, 216 SCRA 692). Abandonment implies a total renunciation of his or her duties. The fact that the defendant never ceased to give support to his wife and children negatives any intent on his part not to return to the conjugal abode and resume his marital duties and rights. In People v. Schelske (154 N.W. 781, 783), it was held that where a husband, after leaving his wife, continued to make Art. 55 LEGAL SEPARATION 361 small contributions at intervals to her support and that of their minor child, he was not guilty of their “abandonment,” which is an act of separation with intent that it shall be perpetual, since contributing to their support negatived such intent. In re Hoss’ Estate (257 NYS 278), supra, it was ruled that a father did not abandon his family where the evidence disclosed that he almost always did give his wife part of his earnings during the period of their separation and that he gradually paid some old rental and grocery bills (Dela Cruz v. Dela Cruz, 22 SCRA 333). The act of separation, and the continued intent to remain separate, must be wrongful in the sense that there is no reasonable excuse for the one who separated. Thus, it has been held to be abandonment by a husband where he forces his wife to leave his home by his refusal to leave with her unless she gets rid of children by a former marriage whom he knows are entirely dependent on her and where he had agreed when he married her that she might bring them to his home (Williamson v. Williamson, 183 Ky. 435, 209 S.W. 503, 3 ALR 799). Also, a separation in which both parties willingly concur is not, in any sense of the word, a willful desertion of one by the other (Smythe v. Smythe, 80 Ore. 150, 149 Pac. 516). The abandonment must be for more than one year to warrant a decree of legal separation. It will not be granted, however, as against a spouse who became insane after the initial act of desertion or abandonment, but before the statutory period had expired, the general rule being that, in computing such period, the time during which the offending spouse has been insane cannot be included (Wright v. Wright, 99 S.E. 515, 4 ALR 1331). The rule is grounded on the theory that the desertion must continue to be willful or intentional for the full statutory period, and that an insane person cannot be said to have or maintain such an intention, and, in addition, if he had retained the power of reason, he might have repented and returned before the expiration of the full period (4 ALR 1333). It has also been held that where a husband used reasonable remonstrance and has endeavored without avail to persuade his wife not to leave him, the fact that he had submitted to the inevitable and has rendered her some assistance in connection with her going, should not be construed to imply consent to the separation (Nunn v. Nunn, 91 Ore. 384, 178 Pac. 986, 3 ALR 500). A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. 362 PERSONS AND FAMILY RELATIONS LAW Arts. 56-57 The spouse who left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling (Articles 101 and 128 of the Family Code). Article 56. The petition for legal separation shall be denied on any of the following grounds: 1) Where the aggrieved party has condoned the offense or act complained of; 2) Where the aggrieved party has consented to the commission of the offense or act complained of; 3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation; 4) Where both parties have given ground for legal separation; 5) Where there is collusion between the parties to obtain the decree of legal separation; or 6) Where the action is barred by prescription. (100a) Article 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (102a) CONDONATION. Condonation is the act of forgiving the offense after its commission. However, it has been held that condonation implies a condition of future good behavior by the offending spouse. Condonation of the violation of the marital duties and obligations being conditional on the future good conduct of the offending spouse, subsequent offense on his or her part revokes or nullifies the condonation and revives the original offense (Ann. Cas. 1918A 657 note; Brown v. Brown, 103 Kan. 53, 172 Pac. 1005, LRA 1918F 1033 and note). Also, where condonation of adultery has been obtained by a false pretense of repentance, the original offense may be revived, although there is only a presumption, and no strict proof, of a Arts. 56-57 LEGAL SEPARATION 363 subsequent matrimonial offense (Jordan v. Jordan, 6 Eng. Rul. Cas. 581). In Ocampo v. Florenciano, 107 Phil. 35, the Supreme Court held that the failure of the husband to look actively for his adulterous wife after she left the conjugal home does not constitute condonation or consent of the wife’s adulterous acts. The Supreme Court said that: It must be remembered that she “left” him after having sinned with Arcalas and after he had discovered her dates with other men. Consequently, it was not his duty to search for her to bring her home. Hers was the obligation to return. Also, it has been held that the act of giving money to an erring wife and the fact that no action was taken against her before the courts of justice are sufficient to establish forgiveness amounting to condonation, for condonation is the forgiveness of one of the married parties of an offense which he knows the other has committed against the other and, at any rate, pardon or condonation does not require sexual intercourse and it may be express or implied (Almacen v. Baltazar, 103 Phil. 1147). CONSENT. There is consent when either of the spouses agreed to or did not object, despite full knowledge, to the act giving rise to a ground for legal separation, before such act was in fact committed. Hence, an agreement between the parties that they agree to live separately from each other, and that they will not object to the other’s act of sexual infidelity, adultery or concubinage has been declared by the Supreme Court as void but, though void, is nevertheless an expression of their clear consent to the commission of the sexual infidelity (People v. Schneckenburger, 73 Phil. 413; People v. Guinucud, 58 Phil. 621). Consent may be deduced also from the acts of the spouses. Thus, in People v. Sensano, 58 Phil. 73, where the husband, knowing that his wife resumed living with her paramour, did nothing to interfere with their relations or to assert his rights as husband and, instead, left for the Territory of Hawaii where he remained for seven years totally abandoning his wife and child, the Supreme Court ruled that the acts of the husband constituted consent to the adulterous acts of the wife; hence, he cannot file a case for adultery against the wife. CONNIVANCE. In Greene v. Greene (Court of Appeals of North Carolina, 1972, 15 N.C. App. 314, 190 S.E.d 258), it was held that: 364 PERSONS AND FAMILY RELATIONS LAW Arts. 56-57 connivance, or procurement, denotes direction, influence, per- sonal exertion, or other action with knowledge and belief that such action would produce certain results and which results are produced (Cohen, Divorce and Alimony in North Carolina, 59, IV, p. 98). “The basis of the defense of connivance is the maxim ‘volenti non fit injuria,’” or that one is not legally injured if he has consented to the act complained of or was willing that it should occur. It is also said that the basis of the defense of connivance is the doctrine of unclean hand” (24 Am. Jur. 2d, Divorce and Separation, 193, p. 352). In this regard, it has also been held that where a husband employed agents to induce, persuade and coerce his wife into participating in illicit sexual activities, this act of the husband can be considered as active connivance. “When a husband lays a lure for his wife, either acting in person or through an agent, his will necessarily concurs in her act’’ (Witherspoon v. Witherspoon, 108 Pa. Super. 309, 64 A. 842, 84e). RECRIMINATION OR EQUAL GUILT. The reason for this rule lies in the equitable maxim that he who comes into equity must come with clean hands (Ann. Cas. 1917A 178 note). Also, it is also a rule that, when two persons acted in bad faith, they should be considered as having acted in good faith. They are in pari delicto. Hence, the plaintiff-spouse cannot invoke the guilt of the other if such plaintiff-spouse is guilty of giving grounds for legal separation. In Ong v. Ong, G.R. No. 153206, October 23, 2006, 505 SCRA 76, where a husband who subjected his wife to physical beatings sought the dismissal of the case for legal separation filed against him by the wife on the ground of equal guilt contending that the wife abandoned him, the Supreme Court rejected such position and stated that there was no equal guilt involved. The law specifically provides that, for abandonment to be a ground for legal separation, it must have been without justifiable cause. In the case of this battered wife, her separation from her husband was clearly with just cause. COLLUSION. Although collusion and connivance are closely related, it has been held that the distinction between them is that collusion is a corrupt agreement, while connivance is a corrupt consenting. While the courts have not always been careful to distinguish between connivance and collusion, it seems to be well- settled that to constitute collusion there must be an agreement between husband and wife looking to the procuring of a divorce (2 ALR 701 note). In Ocampo v. Florenciano, 107 Phil. 35, the Supreme Court expounded on the concept of collusion, thus: Arts. 56-57 LEGAL SEPARATION 365 The mere circumstance that defendant told the Fiscal that she ‘liked also’ to be legally separated from her husband, is not obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes precautions against collusion, which implies more than consent or lack of opposition to the agreement. Needless to say, when the court is informed that defendant equally desires the separation and admitted the commission of the offense, it should be doubly careful lest the collusion exists. xxx Collusion in divorce or legal separation means the agree- ment “* * * between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the parties. It is a ground for denying divorce” (Griffith v. Griffith, 69 N.J. Eq. 689, 60 Atl. 1099; Sandoz v. Sandoz, 107 Ore. 282, 214 Pas. 590). In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial offense had been committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of grounds therefor. Here, the offense of adultery had really taken place according to the evidence. The defendant could not have falsely told the adulterous acts to the Fiscal, because her story might send her to jail the moment her husband requests the Fiscal to prosecute. She could not have practiced deception at such a personal risk. In this connection, it has been held that collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it (Williams v. Williams, [N.Y.] 40 N.E. [2d] 1017; Rosenweig v. Rosenweig, 246 N.Y. Suppl. 231; Conyers v. Conyers, 224 S.W. [2d] 688). And proof that the defendant desires the divorce and makes no defense, is not by itself collusion (Pohlman v. Pohlman, [N.J.] 46 Atl. Rep. 658). PRESCRIPTION. An action for legal separation must be filed within five years from the occurrence of the cause. After the lapse 366 PERSONS AND FAMILY RELATIONS LAW Arts. 58-60 of the five-year period, the legal separation case cannot be filed. The time of discovery of the ground for legal separation is not material in counting the prescriptive period. Hence, if the wife commits sexual infidelity and the husband discovered such ground only after six (6) years from the time it was actually committed, the husband cannot anymore file the legal separation case as the filing of the same has already prescribed. During the Senate Committee Hearing on the Family Code on January 28, 1988, Justice Ricardo Puno had the occasion to explain the reason for the prescriptive period, to wit: JUSTICE PUNO. Madam Chairman, this is a provision in the Family Code that is precisely in answer to certain objections in the Code of 1950, where “discovery” was one of the starting points of prescription. In the Code of 1950, the law says that “the action for legal separation must be filed within one year from the discovery of the cause, but not later than five years from the occurrence of the cause.” The discovery, however, could only serve to shorten but not to lengthen the period. So that if there is discovery before the five-year period, immediately the period for prescription commences to run and it lapses after one year. But if the discovery occurs after the occurrence, the discovery no longer serves to affect the prescriptive period. So, this is really an improvement over the provisions of the Code of 1950 because now, we made the five-year limitation an absolute prescriptive period so that irrespective of when it was discovered, it is the occurrence that will govern and, therefore, it will always be for five years. It will never be shortened to the period of one year. Since the law wants to preserve marriage rather than destroy it, we therefore make this five-year limitation a uniform period of prescription. The danger, Madam Chairman, is that the discovery may come so many years later and, therefore, it will make the stability of the marriage very precarious. The law assumes that if you discover it after five years, forgiveness is already the order of the day, and no longer recrimination. Article 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (103a) Article 59. No legal separation may be decreed unless the court has taken steps toward the re- conciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (n) Article 60. No decree of legal separation shall Arts. 58-62 LEGAL SEPARATION 367 be based upon a stipulation of facts or a confession of judgment. In any case, the court shall order the prosecut- ing attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or sup- pressed. (101a) Article 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agree- ment between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. (104a) Article 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common chil- dren. (105a) PROCEDURE. The procedure is governed by Supreme Court Resolution En Banc, A.M. No. 00-11-01-SC reproduced at the end of this chapter. Upon the filing of a complaint for legal separation by the plaintiff, the defendant shall be required to answer within 15 days from receipt of the summons and a copy of the petition. If the defending party fails to answer, he or she cannot be defaulted and the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated (Section 3[e], Rule 9, 1997 Rules of Civil Procedure). Even if the party answers, the fiscal is also mandated to be present during the trial to further make sure that there is no collusion and the evidence is not fabricated. However, if the legal separation case were vehemently opposed and heatedly contested, it is clear that the litigation was characterized by a no-holds barred contest and not by collusion. Under these circumstances, the non- intervention of the prosecuting-attorney to assure lack of collusion between the contending parties is not fatal to the validity of the 368 PERSONS AND FAMILY RELATIONS LAW Arts. 58-62 proceedings in court especially when it was not shown that evidence was suppressed or fabricated by any of the parties. These kinds of situations do not call for the strict application of Articles 48 and 60 of the Family Code (See Tuason v. Court of Appeals, 256 SCRA 158). Whether or not the defendant files an answer to the complaint, no hearing on the merits shall be set by the courts for six months. This six-month period is designed to give the parties enough time to further contemplate their positions with the end in view of attaining reconciliation between them. This is called the cooling-off period. It is understandable why there should be a period during which the court is precluded from acting. Ordinarily, of course, no such delay is permissible. Justice to the parties would not thereby be served. The sooner the dispute is resolved, the better for all concerned. A suit for legal separation, however, is something else again. It involves a relationship on which the law for the best of reasons would attach the quality of permanence. That there are times when domestic felicity is much less than it ought to be, is not of course to be denied. Grievances, whether fancied or real, may be entertained by one or both of the spouses. There may be constant bickering. The loss of affection on the part of one or both may be discernible. Nonetheless, it will not serve public interest, much less the welfare of the husband or the wife, to allow them to go their respective ways. Where there are offsprings, the reason for maintaining the conjugal union is even more imperative. It is a mark of realism of the law that for certain cases, adultery on the part of the wife and concubinage on the part of the husband, or an attempt of one spouse against the life of the other, it recognizes, albeit reluctantly, that the couple is better off apart. A suit for legal separation lies. Even then the hope that the parties may settle their differences is not all together abandoned. The healing balm of time may aid in the process. Hopefully, the guilty parties may mend his or her ways, and the offended party may in turn exhibit magnanimity. Hence, the interposition of a six-month period before an action for legal separation is tried (Somosa-Ramos v. Vamenta, Jr., 46 SCRA 110, 112, 113). x x x The recital of their grievances against each other in court may only fan their already inflamed passions against one another, and the lawmaker has imposed the period to give them opportunity for dispassionate reflection (Ibid., page 114). It is important to note that the six-month-cooling-off-period requirement can be dispensed with if the ground for legal separation involves violence against the woman or the child. Thus, Section 19 Arts. 58-62 LEGAL SEPARATION 369 of Republic Act No. 9262 (Anti-Violence Against Women and their Children [VAWC] law) provides that “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.” Unless, excepted by law, failure to observe the six-month cooling-off period is a ground to set aside a decision granting legal separation. Thus, in Pacete v. Carriaga, 49 SCAD 673, 231 SCRA 321, where the legitimate wife filed a case with two causes of action, namely: to nullify the bigamous marriage between her husband and the latter’s mistress and, at the same time, to obtain a legal separation decree against her husband, and where the trial court, without observing the required six-month cooling-off period, tried the case on the merits and rendered a judgment voiding the bigamous marriage and issuing a legal separation decree, the Supreme Court set aside the decision on the ground that the six- month cooling-off period was a mandatory requirement and its non- compliance made the decision infirm. “That other remedies, whether principal or incidental, have likewise been sought in the same action cannot dispense, nor excuse compliance, with any of the statutory requirement” (Pacete v. Carrianga, 49 SCAD 673, 231 SCRA 321). Nevertheless, what is prevented from being heard during the six-month period is the hearing on the merits with respect to the validity or invalidity of the ground for legal separation. Any other incident such as the determination of the custody of the children, alimony and support pendente lite may be heard inside the six-month cooling-off period. The law expressly enjoins that these should be determined by the court according to the circumstances. If these are ignored or the courts close their eyes to actual facts, rank injustice may be caused. If the administrator spouse is dissipating the conjugal assets during this cooling-off period, a motion for injunction may be filed and heard seeking the prevention of the erring spouse from further undertaking such harmful acts (Somosa-Ramos v. Vamenta, Jr., 46 SCRA 110). A motion to dismiss during the six-month cooling- off period may likewise be filed if there are grounds to do so. Hence, if from the face of the petition or complaint, it clearly appears that the legal separation case has already prescribed, a motion to dismiss the suit can be filed within the six-month cooling off period and may even be decided by the court within the said period. 370 PERSONS AND FAMILY RELATIONS LAW Arts. 58-62 Also, no legal separation may be decreed unless the court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. It must be remembered that, unlike in a case of annulment or declaration of nullity of a marriage where the objective of the plaintiff in such cases is the complete severance of the marriage ties, a legal separation decree will not sever such marital ties but will merely separate the husband and wife from bed and board. Proof by preponderance of evidence is required to substantiate the ground for legal separation (Gandionco v. Peñaranda, 155 SCRA 725). In actions for legal separation, the material facts alleged in the complaint shall always be proved (Section 1, Rule 34 of the 1997 Rules of Civil Procedure). In the event that a civil case for legal separation is filed on the ground of sexual infidelity because the husband committed concubinage and, thereafter, a criminal case is filed for concubinage against the husband, the 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 liability arising from the offense” (See Rule 111, Section 3 of the Rules on Criminal Procedure), 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 absolute community or the conjugal partnership of gains, custody of offsprings, support and disqualification from inheriting from the innocent spouse, among others (Gandionco v. Peñaranda, 155 SCRA 725). After the case had been submitted for decision, judgment shall be issued by the judge, either granting the legal separation or denying the same. Judgment, however, cannot be based on a confession of judgment or stipulation of facts. The Supreme Court had occasion in the case of Ocampo v. Florenciano, 107 Phil. 35, to explain the probative value of a confession of judgment under Article 101 of the Civil Code, now Article 60 of the Family Code, relative to legal separation cases, thus: As to the adultery with Nelson Orzame, the Appellate Court found that in the night of June 18, 1955, the husband upon discovering the illicit connection, expressed his wish to file a petition for legal separation and defendant readily agreed to Arts. 58-62 LEGAL SEPARATION 371 such filing. And when she was questioned by the fiscal upon orders of the court, she reiterated her conformity to the legal separation even as she admitted having had sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a confession of judgment, the Appellate Court declared that under Article 101, legal separation could not be decreed. As we understand the article, it does not exclude, as evidence, any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff’s demand. This did not occur. Yet, even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it is not based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly on defendant’s confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it. If the petition is denied, the court, however, cannot compel the parties to live with each other as cohabitation is purely a personal act (Arroyo v. Vasquez, 42 Phil. 54). If the legal separation decree is issued, the effects of the same are those provided in Articles 63 and 64. MANAGEMENT OF PROPERTIES DURING SUIT. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties, as those of a guardian under the Rules of Court. Interestingly, in Sabalones v. Court of Appeals, G.R. No. 106169, February 14, 1994, 48 SCAD 286, a husband, after his long years of service as a diplomat, went back to the Philippines. Instead of going back to his legitimate spouse and children, he went to reside with his bigamous “wife” and illegitimate children. During the nineteen years that he was abroad, it was the legitimate wife who administered the conjugal properties without complaint from the husband. After his arrival, the husband filed a case in court to seek approval of an intended sale of one of the conjugal partnership 372 PERSONS AND FAMILY RELATIONS LAW Arts. 58-62 properties. The wife opposed the petition and counterclaimed for legal separation and praying for the forfeiture of the husband’s share in the conjugal partnership property. The wife won as the court found out that the husband really committed bigamy. The case was appealed to the Court of Appeals. The wife filed a motion for the issuance of a preliminary injunction to stop the husband from interfering with her management of the conjugal properties. The husband likewise filed a similar motion to prevent the wife from entering into a renewal of contract with the tenants of their conjugal properties. The Court of Appeals granted the motion of the wife and rejected that of the husband. On a petition for review to the Supreme Court, the husband contended that the Court of Appeals erred in granting the injunction because under Article 124 of the Family Code, the husband and the wife are joint administrators of the property and, hence, no injunctive relief can be issued against one or the other because no right will be violated. The husband further contended that the Court of Appeals failed to appoint an administrator as mandated by Article 61 of the Family Code. The Supreme Court ruled against the husband, stating thus: We agree with the respondent court that pending the appointment of an administrator over the whole mass of conjugal assets, the respondent court was justified in allowing the wife to continue with her administration. It was also correct, taking into account the evidence adduced at the hearing, in enjoining the petitioner from interfering with his wife’s administration pending the resolution of the appeal. The law does indeed grant the spouses joint administration over the conjugal properties as clearly provided in the above- mentioned Article 124 of the Family Code. However, Article 61, also above-quoted, states that after a petition for legal separation had been filed, the trial court shall, in the absence of a written agreement between the couple, appoint either one of the spouses or a third person to act as the administrator. While it is true that no formal designation of the administrator has been made, such designation was implicit in the decision of the trial court denying the petitioner any share in the conjugal properties (and thus disqualifying him as administrator thereof). The designation was in effect approved by the Court of Appeals when it issued in favor of the respondent wife the preliminary injunction now under challenge. The primary purpose of the provisional remedy of injunction is to preserve the status quo of the things subject of the action or the relations between the parties and thus protect Arts. 58-62 LEGAL SEPARATION 373 the rights of the plaintiff respecting these matters during the pendency of the suit. Otherwise, the defendant may, before final judgment, do or continue doing the act which the plaintiff asks the court to restrain and thus make ineffectual the final judgment that may be rendered afterwards in favor of the plaintiff. xxx xxx xxx The Court notes that the wife has been administering the subject properties for almost nineteen years now, apparently without complaint on the part of the petitioner. He has not alleged, much less shown, that her administration has caused prejudice to the conjugal partnership. What he merely suggests is that the lease of the Forbes Park property could be renewed on better terms, or he should at least be given his share of the rentals xxx xxx xxx x x x Regardless of the outcome of the appeal, it cannot be denied that as the petitioner’s legitimate wife (and the complainant and injured spouse in the action for legal separation), the private respondent has a right to a share (if not the whole) of the conjugal estate. There is also, in our view, enough evidence to raise the apprehension that entrusting said estate to the petitioner may result in its improvident disposition to the detriment of his wife and children. We agree that inasmuch as the trial court had earlier declared the forfeiture of the petitioner’s share in the conjugal properties, it would be prudent not to allow him in the meantime to participate in its management. Let it be stressed that the injunction has not permanently installed the respondent wife as the administrator of the whole mass of conjugal assets. It has merely allowed her to continue administering the properties in the meantime without interference from the petitioner, pending the express designation of the administrator in accordance with Article 61 of the Family Code (Sabalones v. Court of Appeals, G.R. No. 106169, February 14, 1994, 48 SCAD 286). DEATH TERMINATES LEGAL SEPARATION CASE. In Lapuz v. Eufemio, 43 SCRA 177, the questions posed for resolution were: 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? The pertinent ruling of the Supreme Court, which is applicable under the provisions on 374 PERSONS AND FAMILY RELATIONS LAW Arts. 58-62 legal separation or relative divorce in the Family Code, is as follows, to wit: 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. x x x 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