G.R.

No. L-30977 January 31, 1972 at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of
a decree of legal separation, which, among others, would order that the defendant
CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner- Eufemio S. Eufemio should be deprived of his share of the conjugal partnership
appellant, profits.
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee. In his second amended answer to the petition, herein respondent Eufemio S.
Eufemio alleged affirmative and special defenses, and, along with several other
Jose W. Diokno for petitioner-appellant. claims involving money and other properties, counter-claimed for the declaration of
nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior
D. G. Eufemio for respondent-appellee. and subsisting marriage, celebrated according to Chinese law and customs, with one
Go Hiok, alias Ngo Hiok.

REYES J.B.L., J.:p Issues having been joined, trial proceeded and the parties adduced their respective
evidence. But before the trial could be completed (the respondent was already
Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an scheduled to present surrebuttal evidence on 9 and 18 June 1969), petitioner
order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of Manila, in Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for
its Civil Case No. 20387, dismissing said case for legal separation on the ground that petitioner duly notified the court of her death.
the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the
pendency of the case, abated the cause of action as well as the action itself. The On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal
dismissal order was issued over the objection of Macario Lapuz, the heir of the separation"1 on two (2) grounds, namely: that the petition for legal separation was
deceased plaintiff (and petitioner herein) who sought to substitute the deceased filed beyond the one-year period provided for in Article 102 of the Civil Code; and
and to have the case prosecuted to final judgment. that the death of Carmen abated the action for legal separation.

On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased
Eufemio S. Eufemio, alleging, in the main, that they were married civilly on 21 Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the motion.
September 1934 and canonically on 30 September 1934; that they had lived
together as husband and wife continuously until 1943 when her husband abandoned On 29 July 1969, the court issued the order under review, dismissing the case.2 In
her; that they had no child; that they acquired properties during their marriage; and the body of the order, the court stated that the motion to dismiss and the motion
that she discovered her husband cohabiting with a Chinese woman named Go Hiok for substitution had to be resolved on the question of whether or not the plaintiff's
cause of action has survived, which the court resolved in the negative. Petitioner's counterclaim, for legal separation pre-supposes a valid marriage, while the petition
moved to reconsider but the motion was denied on 15 September 1969. for nullity has a voidable marriage as a pre-condition.

After first securing an extension of time to file a petition for review of the order of The first real issue in this case is: Does the death of the plaintiff before final decree,
dismissal issued by the juvenile and domestic relations court, the petitioner filed the in an action for legal separation, abate the action? If it does, will abatement also
present petition on 14 October 1969. The same was given due course and answer apply if the action involves property rights? .
thereto was filed by respondent, who prayed for the affirmance of the said order.3
An action for legal separation which involves nothing more than the bed-and-board
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed separation of the spouses (there being no absolute divorce in this jurisdiction) is
counterclaims, he did not pursue them after the court below dismissed the case. He purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by
acquiesced in the dismissal of said counterclaims by praying for the affirmance of allowing only the innocent spouse (and no one else) to claim legal separation; and in
the order that dismissed not only the petition for legal separation but also his its Article 108, by providing that the spouses can, by their reconciliation, stop or
counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio. abate the proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of one party to the
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the action causes the death of the action itself actio personalis moritur cum persona.
lower court did not act on the motion for substitution) stated the principal issue to
be as follows: ... When one of the spouses is dead, there is no need for divorce, because the
marriage is dissolved. The heirs cannot even continue the suit, if the death of the
When an action for legal separation is converted by the counterclaim into one for a spouse takes place during the course of the suit (Article 244, Section 3). The action is
declaration of nullity of a marriage, does the death of a party abate the absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H.
proceedings? 1933, 332.")4 .

The issue as framed by petitioner injects into it a supposed conversion of a legal Marriage is a personal relation or status, created under the sanction of law, and an
separation suit to one for declaration of nullity of a marriage, which is without basis, action for divorce is a proceeding brought for the purpose of effecting a dissolution
for even petitioner asserted that "the respondent has acquiesced to the dismissal of of that relation. The action is one of a personal nature. In the absence of a statute to
his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal the contrary, the death of one of the parties to such action abates the action, for the
separation and the counterclaim to declare the nullity of the self same marriage can reason that death has settled the question of separation beyond all controversy and
stand independent and separate adjudication. They are not inseparable nor was the deprived the court of jurisdiction, both over the persons of the parties to the action
action for legal separation converted into one for a declaration of nullity by the and of the subject-matter of the action itself. For this reason the courts are almost
unanimous in holding that the death of either party to a divorce proceeding, before (4) The offending spouse shall be disqualified from inheriting from the innocent
final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; spouse by intestate succession. Moreover, provisions in favor of the offending
Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 spouse made in the will of the innocent one shall be revoked by operation of law.
Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. From this article it is apparent that the right to the dissolution of the conjugal
185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5 partnership of gains (or of the absolute community of property), the loss of right by
the offending spouse to any share of the profits earned by the partnership or
The same rule is true of causes of action and suits for separation and maintenance community, or his disqualification to inherit by intestacy from the innocent spouse
(Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208). as well as the revocation of testamentary provisions in favor of the offending spouse
made by the innocent one, are all rights and disabilities that, by the very terms of
A review of the resulting changes in property relations between spouses shows that the Civil Code article, are vested exclusively in the persons of the spouses; and by
they are solely the effect of the decree of legal separation; hence, they can not their nature and intent, such claims and disabilities are difficult to conceive as
survive the death of the plaintiff if it occurs prior to the decree. On the point, Article assignable or transmissible. Hence, a claim to said rights is not a claim that "is not
106 of the Civil Code provides: . thereby extinguished" after a party dies, under Section 17, Rule 3, of the Rules of
Court, to warrant continuation of the action through a substitute of the deceased
Art. 106. The decree of legal separation shall have the following effects: party.

(1) The spouses shall be entitled to live separately from each other, but the Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished,
marriage bonds shall not be severed; . the court shall order, upon proper notice, the legal representative of the deceased
to appear and to be substituted for the deceased, within a period of thirty (30) days,
(2) The conjugal partnership of gains or the absolute conjugal community of or within such time as may be granted...
property shall be dissolved and liquidated, but the offending spouse shall have no
right to any share of the profits earned by the partnership or community, without The same result flows from a consideration of the enumeration of the actions that
prejudice to the provisions of article 176; survive for or against administrators in Section 1, Rule 87, of the Revised Rules of
Court:
(3) The custody of the minor children shall be awarded to the innocent spouse,
unless otherwise directed by the court in the interest of said minors, for whom said SECTION 1. Actions which may and which may not be brought against executor or
court may appoint a guardian; administrator. No action upon a claim for the recovery of money or debt or interest
thereon shall be commenced against the executor or administrator; but actions to
recover real or personal property, or an interest therein, from the estate, or to provided in Article 87, paragraph 2, of the Code, requiring that the action for
enforce a lien thereon, and actions to recover damages for an injury to person or annulment should be brought during the lifetime of any one of the parties involved.
property, real or personal, may be commenced against him. And furthermore, the liquidation of any conjugal partnership that might have
resulted from such voidable marriage must be carried out "in the testate or intestate
Neither actions for legal separation or for annulment of marriage can be deemed proceedings of the deceased spouse", as expressly provided in Section 2 of the
fairly included in the enumeration.. Revised Rule 73, and not in the annulment proceeding.

A further reason why an action for legal separation is abated by the death of the ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic
plaintiff, even if property rights are involved, is that these rights are mere effects of Relations is hereby affirmed. No special pronouncement as to costs.
decree of separation, their source being the decree itself; without the decree such
rights do not come into existence, so that before the finality of a decree, these
claims are merely rights in expectation. If death supervenes during the pendency of
the action, no decree can be forthcoming, death producing a more radical and
definitive separation; and the expected consequential rights and claims would
necessarily remain unborn.

As to the petition of respondent-appellee Eufemio for a declaration of nullity ab
initio of his marriage to Carmen Lapuz, it is apparent that such action became moot
and academic upon the death of the latter, and there could be no further interest in
continuing the same after her demise, that automatically dissolved the questioned
union. Any property rights acquired by either party as a result of Article 144 of the
Civil Code of the Philippines 6 could be resolved and determined in a proper action
for partition by either the appellee or by the heirs of the appellant.

In fact, even if the bigamous marriage had not been void ab initio but only voidable
under Article 83, paragraph 2, of the Civil Code, because the second marriage had
been contracted with the first wife having been an absentee for seven consecutive
years, or when she had been generally believed dead, still the action for annulment
became extinguished as soon as one of the three persons involved had died, as
G.R. No. 79284 November 27, 1987 The respondent judge, as already stated, on 10 December 1986, ordered The
payment of support pendente lite.
FROILAN C. GANDIONCO, petitioner,
vs. In this recourse, petitioner contends that the civil action for legal separation and the
HON. SENEN C. PEARANDA, as Presiding Judge of the Regional Trial Court of incidents consequent thereto, such as, application for support pendente lite, should
Misamis Oriental, Branch 18, Cagayan de Oro City, and TERESITA S. GANDIONCO, be suspended in view of the criminal case for concubinage filed against him the
respondents. private respondent. In support of his contention, petitioner cites Art. III. Sec. 3 of the
1985 Rules on Criminal Procedure, which states:

PADILLA, J.: SEC. 3. Other Civil action arising from offenses. Whenever the offended party
shall have instituted the civil action to enforce the civil liability arising from the
A special civil action for certiorari, with application for injunction, to annul (1) the offense. as contemplated in the first Section 1 hereof, the following rules shall be
Order of the respondent Judge, dated 10 December 1986, ordering petitioner to pay observed:
support pendente lite to private respondent (his wife) and their child, and (2) the
Order of the same respondent Judge, dated 5 August 1987, denying petitioner's (a) After a criminal action has been commenced the pending civil action arising
motion to suspend hearings in the action for legal separation filed against him by from the same offense shall be suspended, in whatever stage it may be found, until
private respondent as well as his motion to inhibit respondent Judge from further final judgment in the criminal proceeding has been rendered. . . .
hearing and trying the case.
The civil action for legal separation, grounded as it is on concubinage, it is
On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the petitioner's position that such civil action arises from, or is inextricably tied to the
Regional Trial Court of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan criminal action for concubinage, so that all proceedings related to legal separation
de Oro City, presided over by respondent Judge, a complaint against petitioner for will have to be suspended to await conviction or acquittal for concubinage in the
legal separation, on the ground of concubinage, with a petition for support and criminal case. Authority for this position is this Court's decision in the case of
payment of damages. This case was docketed as Civil Case No. 10636. On 13 October Jerusalem vs. Hon. Roberto Zurbano. 1
1986, private respondent also filed with the Municipal Trial Court, General Santos
City, a complaint against petitioner for concubinage, which was docketed on 23 Petitioner's contention is not correct.
October 1986 as Criminal Case No. 15437111. On 14 November 1986, application for
the provisional remedy of support pendente lite, pending a decision in the action for In Jerusalem, the Court's statement to the effect that suspension of an action for
legal separation, was filed by private respondent in the civil case for legal separation. legal separation would be proper if an allegation of concubinage is made therein,
relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules of Court on dissolution of the conjugal partnership of gains, custody of offsprings, support, and
criminal procedure, to wit: disqualification from inheriting from the innocent spouse, among others. As
correctly pointed out by the respondent Judge in his Order dated 5 August 1987:
Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise
provided by law, the following rules shall he observed: The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of
Antique, et al., L-11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied
(a) When a criminal action is instituted, the civil action for recovery of civil paragraph C of Sec. 1, of then Rule 107 of the Rules of Court, which reads:
liability arising from the offense charged is impliedly instituted with the criminal
action, unless the offended party expressly waives the civil action or reserves his After a criminal action has been commenced, no civil action arising from the same
right to institute it separately; offense can be prosecuted and the same shall be suspended, in whatever stage it
may be found, until final judgment in the criminal proceeding has been rendered.
(b) Criminal and civil actions arising from the same offense may be instituted (Emphasis supplied)
separately, but after the criminal action has been commenced the civil action can
not be instituted until final judgment has been rendered in the criminal action; The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which
refers to "civil actions to enforce the civil liability arising from the offense" as
(c) After a criminal action has been commenced, no civil action arising from the contemplated in the first paragraph of Section 1 of Rule 111-which is a civil action
same offense can be prosecuted and the same shall be suspended in whatever stage "for recovery of civil liability arising from the offense charged." Sec. 1, Rule 111,
it may be found until final judgment in the criminal proceeding has been rendered ... (1985) is specific that it refers to civil action for the recovery of civil liability arising
(Emphasis supplied) from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to
"Civil action arising from the offense."
The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil
action to be suspended, with or upon the filing of a criminal action, is one which is As earlier noted this action for legal separation is not to recover civil liability, in the
"to enforce the civil liability arising from the offense". In other words, in view of the main, but is aimed at the conjugal rights of the spouses and their relations to each
amendment under the 1985 Rules on Criminal Procedure, a civil action for legal other, within the contemplation of Articles 7 to 108, of the Civil Code."2
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 Petitioner also argues that his conviction for concubinage will have to be first
civil liability arising from the offense" even if both the civil and criminal actions arise secured before the action for legal separation can prosper or succeed, as the basis of
from or are related to the same offense. Such civil action is one intended to obtain the action for legal separation is his alleged offense of concubinage.
the right to live separately, with the legal consequences thereof, such as, the
Petitioner's assumption is erroneous. and manifest partiality. This is more so, in this case, where we find the judge's
disposition of petitioner's motions to be sound and well-taken.
A decree of legal separation, on the ground of concubinage, may be issued upon
proof by preponderance of evidence in the action for legal separation. 3 No criminal WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.
proceeding or conviction is necessary. To this end, the doctrine in Francisco vs.
Tayao 4 has been modified, as that case was decided under Act. No. 2710, when SO ORDERED.
absolute divorce was then allowed and had for its grounds the same grounds for
legal separation under the New Civil Code, with the requirement, under such former
law, that the guilt of defendant spouses had to be established by final judgment in a
criminal action. That requirement has not been reproduced or adopted by the
framers of the present Civil Code, and the omission has been uniformly accepted as
a modification of the stringent rule in Francisco v. Tayao.5

Petitioner's attempt to resist payment of support pendente lite to his wife must also
fail, as we find no proof of grave abuse of discretion on the part of the respondent
Judge in ordering the same. Support pendente lite, as a remedy, can be availed of in
an action for legal separation, and granted at the discretion of the judge. 6 If G.R. No. L-10033 December 28, 1956
petitioner finds the amount of support pendente lite ordered as too onerous, he can
always file a motion to modify or reduce the same. 7 BENJAMIN BUGAYONG, plaintiff-appellant,
vs.
Petitioner lastly seeks to have the respondent Judge disqualified from hearing the LEONILA GINEZ, defendant-appellee.
case, as the grant of support pendente lite and the denial of the motion to suspend
hearings in the case, are taken by the petitioner as a disregard of applicable laws and Florencio Dumapias for appellant.
existing doctrines, thereby showing the respondent Judge's alleged manifest Numeriano Tanopo, Jr. for appellee.
partiality to private respondent.

Petitioner's contention is without merit. Divergence of opinions between a judge FELIX, J.:
hearing a case and a party's counsel, as to applicable laws and jurisprudence, is not a
sufficient ground to disqualify the judge from hearing the case, on the ground of bias
This is a case for legal separation filed in the Court of First Instance of Pangasinan plaintiff-husband, where they stayed and lived for 2 nights and 1 day as husband and
wherein on motion of the defendant, the case was dismissed. The order of dismissal wife. Then they repaired to the plaintiff's house and again passed the night therein
was appealed to the Court of Appeals, but said Tribunal certified the case to the as husband and wife. On the second day, Benjamin Bugayong tried to verify from his
Court on the ground that there is absolutely no question of fact involved, the motion wife the truth of the information he received that she had committed adultery but
being predicated on the assumption as true of the very facts testified to by plaintiff- Leonila, instead of answering his query, merely packed up and left, which he took as
husband. a confirmation of the acts of infidelity imputed on her. After that and despite such
belief, plaintiff exerted efforts to locate her and failing to find her, he went to
The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a Bacarra, Ilocos Norte, "to soothe his wounded feelings".
serviceman in the United States Navy, was married to defendant Leonila Ginez on
August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately after On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of
their marriage, the couple lived with their sisters who later moved to Sampaloc, Pangasinan a complaint for legal separation against his wife, Leonila Ginez, who
Manila. After some time, or about July, 1951, Leonila Ginez left the dwelling of her timely filed an answer vehemently denying the averments of the complaint and
sister-in-law and informed her husband by letter that she had gone to reside with setting up affirmative defenses. After the issues were joined and convinced that a
her mother in Asingan, Pangasinan, from which place she later moved to Dagupan reconciliation was not possible, the court set the case for hearing on June 9, 1953.
City to study in a local college there. Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiff-
husband finished testifying in his favor, counsel for the defendant orally moved for
As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana the dismissal of the complaint, but the Court ordered him to file a written motion to
Polangco (plaintiff's sister-in-law) and some from anonymous writers(which were that effect and gave plaintiff 10 days to answer the same.
not produced at the hearing) informing him of alleged acts of infidelity of his wife
which he did not even care to mention. On cross-examination, plaintiff admitted The motion to dismiss was predicted on the following grounds: (1) Assuming
that his wife also informed him by letter, which she claims to have destroyed, that a arguendo the truth of the allegations of the commission of "acts of rank infidelity
certain "Eliong" kissed her. All these communications prompted him in October, amounting to adultery", the cause of action, if any, is barred by the statute of
1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation limitations; (2) That under the same assumption, the act charged have been
between him and his wife on account of the latter's alleged acts of infidelity, and he condoned by the plaintiff-husband; and (3) That the complaint failed to state a cause
was directed to consult instead the navy legal department. of action sufficient for this court to render a valid judgment.

In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom The motion to dismiss was answered by plaintiff and the Court, considering only the
he met in the house of one Mrs. Malalang, defendant's godmother. She came along second ground of the motion to dismiss i. e., condonation, ordered the dismissal of
with him and both proceeded to the house of Pedro Bugayong, a cousin of the the action. After the motion for reconsideration filed by plaintiff was denied, the
case was taken up for review to the Court of Appeals, appellant's counsel ART. 102. An action for legal separation cannot be filed except within one year
maintaining that the lower court erred: from and after the date on which the plaintiff became cognizant of the cause and
within five years from and after the date when such cause occurred.
(a) In so prematurely dismissing the case;
As the only reason of the lower Court for dismissing the action was the alleged
(b) In finding that there were condonation on the part of plaintiff-appellant; and condonation of the charges of adultery that the plaintiff-husband had preferred in
the complaint against his wife, We will disregard the other 2 grounds of the motion
(c) In entertaining condonation as a ground for dismissal inasmuch as same was to dismiss, as anyway they have not been raised in appellant's assignment of errors.
not raised in the answer or in a motion to dismiss.
Condonation is the forgiveness of a marital offense constituting a ground for legal
As the questions raised in the brief were merely questions of law, the Court of separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the
Appeals certified the case to Superiority. "conditional forgiveness or remission, by a husband or wife of a matrimonial offense
which the latter has committed". It is to be noted, however, that in defendant's
The Civil Code provides: answer she vehemently and vigorously denies having committed any act of infidelity
against her husband, and even if We were to give full weight to the testimony of the
ART. 97. A petition for legal separation may be filed: plaintiff, who was the only one that had the chance of testifying in Court and link
such evidence with the averments of the complaint, We would have to conclude
(1) For adultery on the part of the wife and for concubinage for the part of the that the facts appearing on the record are far from sufficient to establish the charge
husband as defined on the Penal Code; or of adultery, or, as the complaint states, of "acts of rank infidelity amounting to
adultery" preferred against the defendant. Certainly, the letter that plaintiff claims
(2) An attempt by one spouse against the life of the other. to have received from his sister-in-law Valeriana Polangco, which must have been
too vague and indefinite as to defendant's infidelity to deserve its production in
ART. 100. The legal separation may be claimed only by the innocent spouse, evidence; nor the anonymous letters which plaintiff also failed to present; nor the
provided there has been no condonation of or consent to the adultery or alleged letter that, according to plaintiff, his wife addressed to him admitting that
concubinage. Where both spouses are offenders, a legal separation cannot by either she had been kissed by one Eliong, whose identity was not established and which
of them. Collusion between the parties to obtain legal separation shall cause the admission defendant had no opportunity to deny because the motion to dismiss was
dismissal of the petition. filed soon after plaintiff finished his testimony in Court, do not amount to anything
that can be relied upon.

But this is not a question at issue. In this appeal, We have to consider plaintiff's line Q. How long did you remain in the house of your cousin Pedro Bugayong? A. One
of conduct under the assumption that he really believed his wife guilty of adultery. day and one night. (p. 12. t.s.n.)
What did he do in such state of mind. In August, 1952, he went to Pangasinan and
looked for his wife and after finding her they lived together as husband and wife for Q. That night when you stayed in the house of your cousin Pedro Bugayong as
2 nights and 1 day, after which he says that he tried to verify from her the truth of husband and wife, did you slept together? A. Yes, sir. (p. 19, t.s.n.)
the news he had about her infidelity, but failed to attain his purpose because his
wife, instead of answering his query on the matter, preferred to desert him, Q. On the next night, when you slept in your own house, did you sleep together also
probably enraged for being subjected to such humiliation. And yet he tried to locate as husband and wife? A. Yes, sir. (p. 19. t.s.n.)
her, though in vain. Now, do the husband's attitude of sleeping with his wife for 2
nights despite his alleged belief that she was unfaithful to him, amount to a Q. When was that? A. That was in August, 1952. (p. 19 t.s.n.)
condonation of her previous and supposed adulterous acts? In the order appealed
from, the Court a quo had the following to say on this point: Q. How many nights did you sleep together as husband and wife? A. Only two
nights. (p. 19, t.s.n.)
In the hearing of the case, the plaintiff further testified as follows:
The New Civil Code of the Philippines, in its Art. 97, says:
Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife.
Please tell this Hon. Court why you want to separate from your wife? A. I came to A petition for legal separation may be filed:
know that my wife is committing adultery, I consulted the chaplain and he told me
to consult the legal adviser. (p. 11, t.s.n.) (1) For adultery on the part of the wife and concubinage on the part of the
husband as defined on the Penal Code.
Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival
she went to the house of our god-mother, and as a husband I went to her to come and in its Art. 100 it says:lawphil.net
along with me in our house but she refused. (p. 12, t.s.n.)lawphil.net
The legal separation may be claimed only by the innocent spouse, provided there
Q. What happened next? A. I persuaded her to come along with me. She has been no condonation of or consent to the adultery or concubinage. Where both
consented but I did not bring her home but brought her to the house of my cousin spouses are offenders, legal separation cannot be claimed by either of them.
Pedro Bugayong. (p. 12, t.s.n.) Collusion between the parties to obtain legal separation shall cause the dismissal of
the petition.

A detailed examination of the testimony of the plaintiff-husband, especially those the condition will revive the original offense as a ground for divorce. Condonation
portions quoted above, clearly shows that there was a condonation on the part of may be express or implied.
the husband for the supposed "acts of rank infidelity amounting to adultery"
committed by defendant-wife. Admitting for the sake of argument that the It has been held in a long line of decisions of the various supreme courts of the
infidelities amounting to adultery were committed by the defendant, a reconciliation different states of the U. S. that 'a single voluntary act of sexual intercourse by the
was effected between her and the plaintiff. The act of the latter in persuading her to innocent spouse after discovery of the offense is ordinarily sufficient to constitute
come along with him, and the fact that she went with him and consented to be condonation, especially as against the husband'. (27 Corpus Juris Secundum, section
brought to the house of his cousin Pedro Bugayong and together they slept there as 61 and cases cited therein).
husband and wife for one day and one night, and the further fact that in the second
night they again slept together in their house likewise as husband and wife all In the lights of the facts testified to by the plaintiff-husband, of the legal provisions
these facts have no other meaning in the opinion of this court than that a above quoted, and of the various decisions above-cited, the inevitable conclusion is
reconciliation between them was effected and that there was a condonation of the that the present action is untenable.
wife by the husband. The reconciliation occurred almost ten months after he came
to know of the acts of infidelity amounting to adultery. Although no acts of infidelity might have been committed by the wife, We agree
with the trial judge that the conduct of the plaintiff-husband above narrated despite
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that his belief that his wife was unfaithful, deprives him, as alleged the offended spouse,
"condonation is implied from sexual intercourse after knowledge of the other of any action for legal separation against the offending wife, because his said
infidelity. such acts necessary implied forgiveness. It is entirely consonant with conduct comes within the restriction of Article 100 of the Civil Code.
reason and justice that if the wife freely consents to sexual intercourse after she has
full knowledge of the husband's guilt, her consent should operate as a pardon of his The only general rule in American jurisprudence is that any cohabitation with the
wrong." guilty party, after the commission of the offense, and with the knowledge or belief
on the part of the injured party of its commission, will amount to conclusive
In Tiffany's Domestic and Family Relations, section 107 says: evidence of condonation; but this presumption may be rebutted by evidence (60 L. J.
Prob. 73).
Condonation. Is the forgiveness of a marital offense constituting a ground for
divorce and bars the right to a divorce. But it is on the condition, implied by the law If there had been cohabitation, to what extent must it be to constitute condonation?
when not express, that the wrongdoer shall not again commit the offense; and also
that he shall thereafter treat the other spouse with conjugal kindness. A breach of Single voluntary act of marital intercourse between the parties ordinarily is sufficient
to constitute condonation, and where the parties live in the same house, it is
presumed that they live on terms of matrimonial cohabitation (27 C. J. S., section 6- G.R. No. L-53880 March 17, 1994
d).
ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, EVELINA C.
A divorce suit will not be granted for adultery where the parties continue to live PACETE and EDUARDO C. PACETE, petitioners,
together after it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. vs.
974) or there is sexual intercourse after knowledge of adultery (Rogers vs. Rogers, HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS PACETE,
67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50 Atl. respondents.
401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So.
702), and many others. The resumption of marital cohabitation as a basis of Juan G. Sibug and Rodolfo B. Quiachon for petitioners.
condonation will generally be inferred, nothing appearing to the contrary, from the
fact of the living together as husband and wife, especially as against the husband Julio F. Andres, Jr. for private respondent.
(Marsh vs. Marsh, 14 N. J. Eq. 315).

There is no ruling on this matter in our jurisprudence but we have no reason to VITUG, J.:
depart from the doctrines laid down in the decisions of the various supreme courts
of the United States above quoted. The issue in this petition for certiorari is whether or not the Court of First Instance
(now Regional Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused its
There is no merit in the contention of appellant that the lower court erred in discretion in denying petitioners' motion for extension of time to file their answer in
entertaining condonation as a ground for dismissal inasmuch as same was not raised Civil Case No. 2518, in declaring petitioners in default and in rendering its decision of
in the answer or in a motion to dismiss, because in the second ground of the motion 17 March 1980 which, among other things, decreed the legal separation of
to dismiss. It is true that it was filed after the answer and after the hearing had been petitioner Enrico L. Pacete and private respondent Concepcion Alanis and held to be
commenced, yet that motion serves to supplement the averments of defendant's null and void ab initio the marriage of Enrico L. Pacete to Clarita de la Concepcion.
answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule
17 of the Rules of Court). On 29 October 1979, Concepcion Alanis filed with the court below a complaint for
the declaration of nullity of the marriage between her erstwhile husband Enrico L.
Wherefore, and on the strength of the foregoing, the order appealed from is hereby Pacete and one Clarita de la Concepcion, as well as for legal separation (between
affirmed, with costs against appellant. It is so ordered. Alanis and Pacete), accounting and separation of property. In her complaint, she
averred that she was married to Pacete on 30 April 1938 before the Justice of the
Peace of Cotabato, Cotabato; that they had a child named Consuelo who was born
on 11 March 1943; that Pacete subsequently contracted (in 1948) a second marriage On 17 March 1980, the court3 promulgated the herein questioned decision,
with Clarita de la Concepcion in Kidapawan, North Cotabato; that she learned of disposing of the case, thus
such marriage only on 01 August 1979; that during her marriage to Pacete, the latter
acquired vast property consisting of large tracts of land, fishponds and several motor WHEREFORE, order is hereby issued ordering:
vehicles; that he fraudulently placed the several pieces of property either in his
name and Clarita or in the names of his children with Clarita and other "dummies;" 1. The issuance of a Decree of Legal Separation of the marriage between, the
that Pacete ignored overtures for an amicable settlement; and that reconciliation plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants, Enrico L.
between her and Pacete was impossible since he evidently preferred to continue Pacete, in accordance with the Philippine laws and with consequences, as provided
living with Clarita. for by our laws;

The defendants were each served with summons on 15 November 1979. They filed a 2. That the following properties are hereby declared as the conjugal properties
motion for an extension of twenty (20) days from 30 November 1979 within which of the partnership of the plaintiff, Concepcion (Conchita) Alanis Pacete and the
to file an answer. The court granted the motion. On 18 December 1979, appearing defendant, Enrico L. Pacete, half and half, to wit:
through a new counsel, the defendants filed a second motion for an extension of
another thirty (30) days from 20 December 1979. On 07 January 1980, the lower 1. The parcel of land covered by TCT No. V-815 which is a parcel of land
court granted the motion but only for twenty (20) days to be counted from 20 situated in the barrio of Langcong, Municipality of Matanog (previously of Parang),
December 1979 or until 09 January 1980. The Order of the court was mailed to province of Maguindanao (previously of Cotabato province) with an area of 45,265
defendants' counsel on 11 January 1980. Likely still unaware of the court order, the square meters registered in the name of Enrico Pacete, Filipino, of legal age, married
defendants, on 05 February 1980, again filed another motion (dated 18 January to Conchita Alanis as shown in Exhibits "B" and "B-1" for the plaintiff.
1980) for an extension of "fifteen (15) days counted from the expiration of the 30-
day period previously sought" within which to file an answer. The following day, or 2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with an
on 06 February 1980, the court denied this last motion on the ground that it was area of 538 square meters and covered by Tax Declaration No. 2650 (74) in the
"filed after the original period given . . . as first extension had expired."1 name of Enrico Pacete, situated in the Poblacion of Kidapawan, North Cotabato,
together with all its improvements, which parcel of land, as shown by Exhibits "K-1"
The plaintiff thereupon filed a motion to declare the defendants in default, which was acquired by way of absolute deed of sale executed by Amrosio Mondog on
the court forthwith granted. The plaintiff was then directed to present her January 14, 1965.
evidence.2 The court received plaintiff's evidence during the hearings held on 15, 20,
21 and 22 February 1980. 3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and
covered by Tax Declaration No. 803 (74), with an area of 5.1670 hectares, more or
less, as shown by Exhibit "R", the same was registered in the name of Enrico Pacete name of Enrico Pacete and which parcel of land he acquired last September 25, 1962
and the same was acquired by Enrico Pacete last February 17, 1967 from Ambag from Conchita dela Torre, as shown by Exhibit "P-1".
Ampoy, as shown by Exhibit "R-1", situated at Musan, Kidapawan, North Cotabato.
9. A parcel of land covered by Transfer Certificate of Title No. T-10301, situated
4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an area at Linao, Matalam, North Cotabato, with an area of 7.2547 hectares, registered in
of 5.0567 hectares, covered by Tax Declaration No. 4332 (74), as shown by Exhibit the name of Enrico Pacete and also covered by Tax Declaration No. 8716 (74) also in
"S", and registered in the name of Enrico Pacete. the name of Enrico Pacete which Enrico Pacete acquired from Agustin Bijo last July
16, 1963, as shown by Exhibit "N-1".
5. A parcel of land covered by Transfer Certificate of Title No. T-9750, situated
at Lika, Mlang, North Cotabato, with an area of 4.9841 hectares and the same is 10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the
covered by Tax Declaration No. 803 (74) and registered in the name of Enrico Pacete name of the defendant, Enrico L. Pacete, with an area of 10.9006 hectares, situated
and which land was acquired by Enrico Pacete from Salvador Pacete on September at Linao, Matalam, North Cotabato and is also covered by Tax Declaration No. 5745
24, 1962, as shown by Exhibit "Q-1". (74) in the name of Enrico Pacete, as shown on Exhibit "O" and which Enrico Pacete
acquired last December 31, 1963 from Eliseo Pugni, as shown on Exhibit "0-1".
6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with an
area of 9.9566 and also covered by Tax Declaration No. 8608 (74) and registered in 3. Ordering the Cancellation of Original Certificate of Title No. P-34243 covering
the name of the defendant Enrico L. Pacete which Enrico L. Pacete acquired from Lot No. 1066, issued in the name of Evelina Pacete, situated at Kiab, Matalam, North
Sancho Balingcos last October 22, 1962, as shown by Exhibit "L-1" and which parcel Cotabato, and ordering the registration of the same in the joint name of Concepcion
of land is situated at (Kialab), Kiab, Matalam, North Cotabato. (Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal property, with
address on the part of Concepcion (Conchita) Alanis Pacete at Parang, Maguindanao
7. A parcel of land covered by Transfer Certificate of Title No. T-9227, situated and on the part of Enrico L. Pacete at Kidapawan, North Cotabato.
at Kiab, Matalam, North Cotabato, with an area of 12.04339 hectares, more or less,
and also covered by Tax Declaration No. 8607 (74) both in the name of the 4. Ordering likewise the cancellation of Original Certificate of Title No. V-20101,
defendant Enrico L. Pacete which he acquired last October 15, 1962 from Minda covering Lot No. 77, in the name of Eduardo C. Pacete, situated at New Lawaan,
Bernardino, as shown by Exhibit "M-1". Mlang, North Cotabato, and the issuance of a new Transfer Certificate of Title in the
joint name of (half and half) Concepcion (Conchita) Alanis Pacete and Enrico L.
8. A parcel of land covered by Transfer Certificate of Title No. T-9228, situated Pacete.
at Kiab, Matalam, North Cotabato, with an area of 10.8908 hectares, registered in
the name of Enrico Pacete and also covered by Tax Declaration No. 5781 (74) in the
5. Ordering likewise the cancellation of Original Certificate of Title No. P-29890,
covering Lot 1068, situated at Kiab, Matalam, North Cotabato, with an area of f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv;
12.1031 hectares, in the name of Emelda C. Pacete and the issuance of a new Chassis No. 10F-13582-K; Type, Stake.
Transfer Certificate of Title in the joint name (half and half) of Concepcion (Conchita)
Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond situated at Barrio 7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of
Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares and covered by P46,950.00 which is the share of the plaintiff in the unaccounted income of the
Fishpond Lease Agreement of Emelda C. Pacete, dated July 29, 1977 be cancelled ricemill and corn sheller for three years from 1971 to 1973.
and in lieu thereof, the joint name of Concepcion (Conchita) Alanis Pacete and her
husband, Enrico L. Pacete, be registered as their joint property, including the 50 8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the
hectares fishpond situated in the same place, Barrio Timanan, Bislig, Surigao del Sur. monetary equipment of 30% of whether the plaintiff has recovered as attorney's
fees;
6. Ordering the following motor vehicles to be the joint properties of the
conjugal partnership of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, 9. Declaring the subsequent marriage between defendant Enrico L. Pacete and
viz: Clarita de la Concepcion to be void ab initio; and

a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T137- 10. Ordering the defendants to pay the costs of this suit.4
20561; Chassis No. 83920393, and Type, Mcarrier;
Hence, the instant special civil action of certiorari.
b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214-
229547; Chassis No. 10D-1302-C; and Type, Mcarrier; Under ordinary circumstances, the petition would have outrightly been dismissed,
for, as also pointed out by private respondents, the proper remedy of petitioners
c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW-116188; should have instead been either to appeal from the judgment by default or to file a
Chassis No. HOCC-GPW-1161-88-C; Type, Jeep; petition for relief from judgment.5 This rule, however, is not inflexible; a petition for
certiorari is allowed when the default order is improperly declared, or even when it
d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU5- is properly declared, where grave abuse of discretion attended such declaration.6 In
11111; Chassis No. HOCC-GPW-1161188-G; Type, Stake; these exceptional instances, the special civil action of certiorari to declare the nullity
of a judgment by default is available.7 In the case at bench, the default order
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED300- unquestionably is not legally sanctioned. The Civil Code provides:
45758; Chassis No. KB222-22044; Type, Stake; and
Art. 101. No decree of legal separation shall be promulgated upon a stipulation parties a "cooling-off" period. In this interim, the court should take steps toward
of facts or by confession of judgment. getting the parties to reconcile.

In case of non-appearance of the defendant, the court shall order the prosecuting The significance of the above substantive provisions of the law is further
attorney to inquire whether or not a collusion between the parties exists. If there is underscored by the inclusion of the following provision in Rule 18 of the Rules of
no collusion, the prosecuting attorney shall intervene for the State in order to take Court:
care that the evidence for the plaintiff is not fabricated.
Sec. 6. No defaults in actions for annulments of marriage or for legal separation.
The provision has been taken from Article 30 of the California Civil Code,8 and it is, If the defendant in an action for annulment of marriage or for legal separation fails
in substance, reproduced in Article 60 of the Family Code.9 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
Article 101 reflects the public policy on marriages, and it should easily explain the for the State in order to see to it that the evidence submitted is not fabricated.
mandatory tenor of the law. In Brown v. Yambao, 10 the Court has observed:
The special prescriptions on actions that can put the integrity of marriage to possible
The policy of Article 101 of the new Civil Code, calling for the intervention of the jeopardy are impelled by no less than the State's interest in the marriage relation
state attorneys in case of uncontested proceedings for legal separation (and of and its avowed intention not to leave the matter within the exclusive domain and
annulment of marriages, under Article 88), is to emphasize that marriage is more the vagaries of the parties to alone dictate.
than a mere contract; that it is a social institution in which the state is vitally
interested, so that its continuation or interruption can not be made to depend upon It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That
the parties themselves (Civil Code, Article 52; Adong vs. Cheong Gee, 43 Phil. 43; other remedies, whether principal or incidental, have likewise been sought in the
Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with same action cannot dispense, nor excuse compliance, with any of the statutory
this policy that the inquiry by the Fiscal should be allowed to focus upon any requirements aforequoted.
relevant matter that may indicate whether the proceedings for separation or
annulment are fully justified or not. WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings
below, including the Decision of 17 March 1980 appealed from, are NULLIFIED and
Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates SET ASIDE. No costs.
that an action for legal separation must "in no case be tried before six months shall
have elapsed since the filing of the petition," obviously in order to provide the SO ORDERED

G.R. No. L-49542 September 12, 1980 Court of First Instance of Davao, Branch IX. This case was docketed as Civil Case No.
263 (p. 1, ROA).
ANTONIO MACADANGDANG, petitioner,
vs. Defendant (now petitioner) Macadangdang filed his answer on June 30, 1972,
THE HONORABLE COURT OF APPEALS and ELIZABETH MEJIAS, respondents. opposing plaintiff's claim and praying for its dismissal (p. 3, ROA).

On August 9, 1972, the lower court in a pre-trial conference, issued a Pre-trial Order
MAKASIAR, J.: formalizing certain stipulations, admissions and factual issues on which both parties
agreed (pp. 4, 5, and 6, ROA). Correspondingly, upon agreement of the parties, an
This petition for review seeks to set aside the decision of the Court of Appeals in CA- amended complaint was filed by plaintiff on October 17, 1972 (pp. 7,8 and 9, ROA).
G.R. No. 54618-R which reversed the decision of the Court of First Instance of Davao,
Branch IX dismissing the action for recognition and support filed by respondent In its decision rendered on February 27, 1973, the lower court dismissed the
Elizabeth Mejias against petitioner Antonio Macadangdang, and which found minor complaint,. The decision invoked positive provisions of the Civil Code and Rules of
Rolando to be the illegitimate son of petitioner who was ordered to give a monthly Court and authorities (pp. 10-18, ROA).
support of P350.00 until his alleged son reaches the age of majority (p. 47, rec.; p.
10, ROA). On April 18, 1973, plaintiff appealed the CFI decision to the Court of Appeals (p. 59,
In her appeal, appellant assigned these errors:
The records show that respondent Elizabeth Mejias is a married woman, her
husband being Crispin Anahaw (pp. 61-62, t.s.n., Sept. 21, 1972; pp. 10-11, Brief for 1. The Honorable Trial Court erred in applying in the instant case the provisions
Respondent [P. 198, rec.]) She allegedly had intercourse with petitioner Antonio of Arts. 255 and 256 of the Civil Code and Secs. 4[a], 4[b] and 4[c], Rule 131, of the
Macadangdang sometime in March, 1967 (p. 38, t.s.n., June 7, 1972 in CC No. 109). Revised Rules of Court (p. 18, rec.);
She also alleges that due to the affair, she and her husband separated in 1967 (p. 63,
t.s.n., Sept. 21, 1972). On October 30, 1967 (7 months or 210 days following the 2. The Honorable Trial Court erred in holding that plaintiff-appellant cannot
illicit encounter), she gave birth to a baby boy who was named Rolando validly question the legitimacy of her son, Rolando Macadangdang, by a collateral
Macadangdang in baptismal rites held on December 24,1967 (Annex "A", List of attack without joining her legal husband as a party in the instant case (p. 18, rec.).
Exhibits).
In its decision handed down on June 2, 1978, the Court of Appeals reversed the
The records also disclose that on April 25, 1972, respondent (then plaintiff) filed a lower court's decision (p. 47, and thus declared minor Rolando to be an illegitimate
complaint for recognition and support against petitioner (then defendant) with the son of Antonio Macadangdang (p. 52, rec.).
 Q If these feelings: worries, mental shock and humiliation, if estimated in
On November 6, 1978, the Court of Appeals denied appellant's motions for monetary figures, how much win be the amount?
reconsideration for lack of merit. (p. 56, rec.).
A Ten thousand pesos, sir.
Hence, petitioner filed this petition on January 12, 1979.
Q And because of the incidental what happened to your with Crispin Anahaw.
The issues boil down to:
xxx xxx xxx
1. Whether or not the child Rolando is conclusively presumed the legitimate
issue of the spouses Elizabeth Mejias and Crispin Anahaw; and WITNESS:

2. Whether or not the wife may institute an action that would bastardize her A We separate, sir. (pp. 61-63, T.s.n., Civil Case No. 263, Sept. 21, 1972; emphasis
child without giving her husband, the legally presumed father, an opportunity to be supplied).
heard.
From the foregoing line of questions and answers, it can be gleaned that
The crucial point that should be emphasized and should be straightened out from respondent's answers were given with spontaneity and with a clear understanding
the very beginning is the fact that respondent's initial illicit affair with petitioner of the questions posed. There cannot be any other meaning or interpretation of the
occurred sometime in March, 1967 and that by reason thereof, she and her husband word "incident" other than that of the initial contact between petitioner and
separated. This fact surfaced from the testimony of respondent herself in the respondent. Even a layman would understand the clear sense of the question posed
hearing of September 21, 1972 when this case was still in the lower court. The before respondent and her categorical and spontaneous answer which does not
pertinent portions of her testimony are thus quoted: leave any room for interpretation. It must be noted that the very question of her
counsel conveys the assumption of an existing between respondent and her
By Atty. Fernandez: husband.

Q What did you feel as a result of the incident where Antonio Macadangdang The finding of the Court of Appeals that respondent and her husband were
used pill and took advantage of your womanhood? separated in 1965 cannot therefore be considered conclusive and binding on this
Court. It is based solely on the testimony of respondent which is self-serving.
A I felt worried, mentally shocked and humiliated. Nothing in the records shows that her statement was confirmed or corroborated by
another witness and the same cannot be treated as borne out by the record or that
which is based on substantial evidence. It is not even confirmed by her own borne out by the record or those which are based upon substantial evidence. The
husband, who was not impleaded. general rule laid down by the Supreme Court does not declare the absolute
correctness of all the findings of fact made by the Court of Appeals. There are
In the case of Tolentino vs. De Jesus (L-32797, 56 SCRA 167 [1974], this Court exceptions to the general rule, where we have reviewed the findings of fact of the
restated that the findings of facts of the Court of Appeals are conclusive on the Court of Appeals ... (emphasis supplied).
parties and on the Supreme Court, unless (1) the conclusion is a finding grounded
entirely on speculation, surmise, and conjectures; (2) the inference made is The following provisions of the Civil Code and the Rules of Court should be borne in
manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based mind:
on misapprehension of facts; (5) the Court of Appeals went beyond the issues of the
case and its findings are contrary to the admission of both appellant and appellee; Art. 255. Children born after one hundred and eighty days following the
(6) the findings of facts of the Court of Appeals are contrary to those of the trial celebration of the marriage, and before three hundred days following its dissolution
court; (7) said findings of facts are conclusions without citation of specific evidence or the separation of the spouses shall be presumed to be legitimate.
on which they are based; (8) the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the respondent; and (9) when Against this presumption, no evidence shall be admitted other than that of the
the finding of facts of the Court of Appeals is premised on the absence of evidence physical impossibility of the husband's having access to his wife within the first one
and is contradicted by evidence on record [Pioneer Insurance and Surety hundred and twenty days of the three hundred which preceded the birth of the
Corporation vs. Yap, L-36232, December 19, 1974; Roque vs. Buan, L-22459, 21 SCRA child.
642 (1967); Ramos vs. Pepsi-cola Bottling Company of the Philippines, L-225533, 19
SCRA 289 (1967); emphasis supplied]. This physical impossibility may be caused:

Again, in Roque vs. Buan, supra, this Court reiterated the aforestated doctrine (1) By the impotence of the husband;
adding four more exceptions to the general rule. This case invoked the same ruling
in the previous case of Ramos vs. Pepsi-Cola Bottling Company, etc., supra. (2) By the fact that the husband and wife were separately, in such a way that access
was not possible;
In the recent case of Francisca Alsua-Betts, et al. vs. Court of Appeals, et al. (L-
46430-31, July 30, 1979), which petitioner aptly invokes, this Court thus emphasized: (3) By the serious illness of the husband.

... But what should not be ignored by lawyers and litigants alike is the more basic Art. 256. The child shall be presumed legitimate, although the mother may have
principle that the "findings of fact" described as "final" or "conclusive" are those declared against its legitimacy or may have been sentenced as an adulteress.
 (b) The child shall be presumed legitimate although the mother may have
Art. 257. Should the wife commit adultery at or about the time of the declared against its legitimacy or may have been sentenced as an adulteress.
conception of the child, but there was no physical impossibility of access between
her and her husband as set forth in article 255, the child is prima facie presumed to (c) Should the wife commit adultery at or about the time of the conception of
be illegitimate if it appears highly improbable, for ethnic reasons, that the child is the child, but there was no physical impossibility of access between her and her
that of the husband. For the purposes of this article, the wife's adultery need not be husband as set forth above, the child is presumed legitimate, unless it appears highly
proved in a criminal case. improbable, for ethnic reasons, that the child is that of the husband. For the purpose
of the rule, the wife's adultery need not be proved in a criminal case. ... (Rule 131,
xxx xxx xxx Rules of Court).

Sec. 4. Quasi-conclusive presumptions of legitimacy Whether or not respondent and her husband were separated would be immaterial
to the resolution of the status of the child Rolando. What should really matter is the
(a) Children born after one hundred eighty days following the celebration of the fact that during the initial one hundred twenty days of the three hundred which
marriage, and before three hundred days following its dissolution or the separation preceded the birth of the renamed child, no concrete or even substantial proof was
of the spouses shall be presumed legitimate. presented to establish physical impossibility of access between respondent and her
spouse. From her very revealing testimony, respondent declared that she was
Against presumption no evidence be admitted other than that of the physical bringing two sacks of rice to Samal for her children; that her four children by her
impossibility of the husband's having access to his wife within the first one hundred husband in her mother's house in the said town; that her alleged estranged husband
and twenty days of the three hundred which preceded the birth of the child. also lived in her mother's place (p. 73, pp. 21 & 22, 64 & 65, t.s.n., Sept. 21, 1972). It
should also be noted that even during her affair with petitioner and right after her
This physical impossibility may be caused: delivery, respondent went to her mother's house in Samal for treatment. Thus, in
the direct examination of Patrocinia Avila (the boy's yaya), the following came out:
[1] By the impotence of the husband
Q Why were you taking care of the child Rolando, where was Elizabeth Mejias?
[2] By the fact that the husband and the wife were living separately, in such a
way that access was not possible; A Because Elizabeth went to her parents in Same Davao del Norte for treatment
because she had a relapse (p. 13, t.s.n., of Sept. 21, 1972).
[3] By the serious illness of the husband;

From the foregoing and since respondent and her husband continued to live in the Patrocinia Avila, declared that the baby was born in the rented house at Carpenter
same province, the fact remains that there was always the possibility of access to Street, which birth was obvisouly normal; that he was such a healthy baby that
each other. As has already been pointed out, respondent's self-serving statements barely 5 days after his birth, he was already cared for by said yaya when respondent
were never corroborated nor confirmed by any other evidence, more particularly became sick (pp. 28, 29 & 43, t.s.n., Sept. 21, 1972); and that when he was between
that of her husband. 15 days and 2 months of age, respondent left him to the care of the yaya when the
former left for Samal for treatment and returned only in February, 1968 (pp. 30-32,
The baby boy subject of this controversy was born on October 30, 1967, only seven t.s.n., Sept. 21, 1972). From the aforestated facts, it can be indubitably said that the
(7) months after March, 1967 when the "incident" or first illicit intercourse between child was a full-term baby at birth, normally delivered, and raised normally by the
respondent and petitioner took place, and also, seven months from their separation yaya. If it were otherwise or if he were born prematurely, he would have needed
(if there really was a separation). It must be noted that as of March, 1967, special care like being placed in an incubator in a clinic or hospital and attended to
respondent and Crispin Anahaw had already four children; hence, they had been by a physician, not just a mere yaya. These all point to the fact that the baby who
married years before such date (t.s.n., pp. 21-22, Sept. 21, 1972). The birth of was born on October 30, 1967 or 7 months from the first sexual encounter between
Rolando came more than one hundred eighty 180 days following the celebration of petitioner and respondent was conceived as early as January, 1967. How then could
the said marriage and before 300 days following the alleged separation between he be the child of petitioner?
aforenamed spouses.
In Our jurisprudence, this Court has been more definite in its pronouncements on
Under the aforequoted Article 255 of the Civil Code, the child Rolando is conclusively the value of baptismal certificates. It thus ruled that while baptismal and marriage
presumed to be the legitimate son of respondent and her husband. certificates may be considered public documents, they are evidence only to prove
the administration of the sacraments on the dates therein specified but not the
The fact that the child was born a mere seven (7) months after the initial sexual veracity of the states or declarations made therein with respect to his kinsfolk
contact between petitioner and respondent is another proof that the said child was and/or citizenship (Paa vs. Chan, L-25945, Oct. 31, 1967). Again, in the case of Fortus
not of petitioner since, from indications, he came out as a normal full-term baby. vs. Novero (L-22378, 23 SCRA 1331 [1968]), this Court held that a baptismal
administered, in conformity with the rites of the Catholic Church by the priest who
It must be stressed that the child under question has no birth certificate of Baptism baptized the child, but it does not prove the veracity of the declarations and
(attached in the List of Exhibits) which was prepared in the absence of the alleged statements contained in the certificate that concern the relationship of the person
father [petitioner]. Note again that he was born on October 30, 1967. Between baptized. Such declarations and statements, in order that their truth may be
March, 1967 and October 30, 1967, the time difference is clearly 7 months. The baby admitted, must indispensably be shown by proof recognized by law.
Rolando could have been born prematurely. But such is not the case. Respondent
underwent a normal nine-month pregnancy. Respondent herself and the yaya,
The child Rolando is presumed to be the legitimate son of respondent and her To defeat the presumption of legitimacy, therefore, there must be physical
spouse. This presumption becomes conclusive in the absence of proof that there impossibility of access by the husband to the wife during the period of conception.
was physical impossibility of access between the spouses in the first 120 days of the The law expressly refers to physical impossibility. Hence, a circumstance which
300 which preceded the birth of the child. This presumption is actually quasi- makes sexual relations improbable, cannot defeat the presumption of legitimacy;
conclusive and may be rebutted or refuted by only one evidence the physical but it may be proved as a circumstance to corroborate proof of physical impossibility
impossibility of access between husband and wife within the first 120 days of the of access (Tolentino, citing Bonet 352; 4 Valverde 408).
300 which preceded the birth of the child. This physical impossibility of access may
be caused by any of these: Impotence refers to the inability of the male organ to copulation, to perform its
proper function (Bouvier's Law Dictionary 514). As defined in the celebrated case of
1. Impotence of the husband; Menciano vs. San Jose (89 Phil. 63), impotency is the physical inability to have sexual
intercourse. It is not synonymous with sterility. Sterility refers to the inability to
2. Living separately in such a way that access was impossible and procreate, whereas, impotence refers to the physical inability to perform the act of
sexual intercourse. In respect of the impotency of the husband of the mother of a
3. Serious illness of the husband. child, to overcome the presumption of legitimacy on conception or birth in wedlock
or to show illegitimacy, it has been held or recognized that the evidence or proof
This presumption of legitimacy is based on the assumption that there is sexual union must be clear or satisfactory: clear, satisfactory and convincing, irresistible or
in marriage, particularly during the period of conception. Hence, proof of the positive (S.C. Tarleton vs. Thompson, 118 S.E. 421, 125 SC 182, cited in 10 C.J.S.
physical impossibility of such sexual union prevents the application of the 50).
presumption (Tolentino, Commentaries & Jurisprudence on the Civil Code, Vol. 1, p.
513 citing Bevilaqua, Familia p. 311). The separation between the spouses must be such as to make sexual access
impossible. This may take place when they reside in different countries or provinces,
The modern rule is that, in order to overthrow the presumption of legitimacy, it and they have never been together during the period of conception (Estate of Benito
must be shown beyond reasonable doubt that there was no access as could have Marcelo, 60 Phil. 442). Or, the husband may be in prison during the period of
enabled the husband to be the father of the child. Sexual intercourse is to be conception, unless it appears that sexual union took place through corrupt violation
presumed where personal access is not disproved, unless such presumption is of or allowed by prison regulations (1 Manresa 492-500).
rebutted by evidence to the contrary; where sexual intercourse is presumed or
proved, the husband must be taken to be the father of the child (Tolentino, citing The illness of the husband must be of such a nature as to exclude the possibility of
Madden, Persons and Domestic Relations, pp. 340-341). his having sexual intercourse with his wife; such as, when because of a injury, he was
placed in a plaster cast, and it was inconceivable to have sexual intercourse without
the most severe pain (Tolentino, citing Commissioner vs. Hotel 256 App. Div. 352, 9 contrary is shown (Ala. Franks vs. State, 161 So. 549, 26 . App. 430) and this includes
N.Y. Supp. p. 515); or the illness produced temporary or permanent impotence, children born after the separation [10 C.J.S. pp. 23 & 24; emphasis supplied].
making copulation impossible (Tolentino, citing Q. Bonet 352).
It must be stressed that Article 256 of the Civil Code which provides that the child is
Thus, in the case of Andal vs. Macaraig (89 Phil. 165), this Court ruled that just presumed legitimate although the mother may have declared against its legitimacy
because tuberculosis is advanced in a man does not necessarily mean that he is or may have been sentenced as an adulteress has been adopted for two solid
incapable of sexual intercourse. There are cases where persons suffering from reasons. First, in a fit of anger, or to arouse jealousy in the husband, the wife may
tuberculosis can do the carnal act even in the most crucial stage of health because have made this declaration (Power vs. State, 95 N.E., 660). Second, the article is
then they seemed to be more inclined to sexual intercourse. The fact that the wife established as a guaranty in favor of the children whose condition should not be
had illicit intercourse with a man other than her husband during the initial period, under the mercy of the passions of their parents. The husband whose honor if
does not preclude cohabitation between said husband and wife. offended, that is, being aware of his wife's adultery, may obtain from the guilty
spouse by means of coercion, a confession against the legitimacy of the child which
Significantly American courts have made definite pronouncements or rulings on the may really be only a confession of her guilt. Or the wife, out of vengeance and spite,
issues under consideration. The policy of the law is to confer legitimacy upon may declare the as not her husband's although the statement be false. But there is
children born in wedlock when access of the husband at the time of conception was another reason which is more powerful, demanding the exclusion of proof of
not impossible (N.Y. Milone vs. Milone, 290 N.Y. S. 863, 160 Misc. 830) and there is confession or adultery, and it is, that at the moment of conception, it cannot be
the presumption that a child so born is the child of the husband and is legitimate determined when a woman cohabits during the same period with two men, by
even though the wife was guilty of infidelity during the possible period of conception whom the child was begotten, it being possible that it be the husband himself
(N.Y. Dieterich vs. Dieterich, 278 N.Y. S. 645, Misc. 714; both cited in 10 C.J.S., pp. (Manresa, Vol. I, pp. 503-504).
18,19 & 20).
Hence, in general, good morals and public policy require that a mother should not
So firm was this presumption originally that it cannot be rebutted unless the be permitted to assert the illegitimacy of a child born in wedlock in order to obtain
husband was incapable of procreation or was absent beyond the four seas, that is, some benefit for herself (N.Y. Flint vs. Pierce, 136 N.Y. S. 1056, cited in 10 C.J.S.
absent from the realm, during the whole period of the wife's pregnancy (10 C.J.S. p. 77).
20).
The law is not willing that the child be declared illegitimate to suit the whims and
The presumption of legitimacy of children born during wedlock obtains, purposes of either parent, nor Merely upon evidence that no actual act of sexual
notwithstanding the husband and wife voluntarily separate and live apart, unless the intercourse occurred between husband and wife at or about the time the wife
became pregnant. Thus, where the husband denies having any intercourse with his
wife, the child was still presumed legitimate (Lynn vs. State, 47 Ohio App. 158,191 suit brought for the purpose (La Ducasse vs. Ducasse, 45 So. 565, 120 La. 731;
N.E. 100). Saloy's Succ. 10 So. 872, 44 La. Ann., cited in 10 C.J.S. 77; emphasis supplied).

With respect to Article 257 aforequoted, it must be emphasized that adultery on the Thus the mother has no right to disavow a child because maternity is never
part of the wife, in itself, cannot destroy the presumption of legitimacy of her child, uncertain; she can only contest the Identity of the child (La Eloi vs. Mader, 1 Rollo.
because it is still possible that the child is that of the husband (Tolentino, citing 1 581, 38 Am. D. 192).
Vera 170; 4 Borja 23-24).
Formerly, declarations of a wife that her husband was not the father of a child in
It has, therefore, been held that the admission of the wife's testimony on the point wedlock were held to be admissible in evidence; but the general rule now is that
would be unseemly and scandalous, not only because it reveals immoral conduct on they are inadmissible to bastardize the child, regardless of statutory provisions
her part, but also because of the effect it may have on the child, who is in no fault, obviating incompetency on the ground of interest, or the fact that the conception
but who nevertheless must be the chief sufferer thereby (7 Am. Jur. Sec. 21, pp. 641- was antenuptial. The rule is said to be founded in decency, morality and public policy
642). (Wallace vs. Wallace 137 Iowa 37,114 N.W. 527,14 L.R.A. [N.S.] 544,126 Am. St. Rep.
253,15 Ann. Cas. 761, Am. Jur. 26).
In the case of a child born or conceived in wedlock, evidence of the infidelity or
adultery of the wife and mother is not admissible to show illegitimacy, if there is no From the foregoing, particularly the testimony of respondent and her witnesses, this
proof of the husband's impotency or non-access to his wife (Iowa Craven vs. Court has every reason to believe that Crispin Anahaw was not actually separated
Selway, 246 N.W. 821, cited in 10 C.J.S. 36). from Elizabeth Mejias; that he was a very potent man, having had four children with
his wife; that even if he and were even separately (which the latter failed to prove
At this juncture, it must be pointed out that only the husband can contest the anyway) and assuming, for argument's sake, that they were really separated, there
legitimacy of a child born to his wife. He is the one directly confronted with the was the possibility of physical access to each other considering their proximity to
scandal and ridicule which the infidelity of his wife produces; and he should decide each other and considering further that respondent still visited and recuperated in
whether to conceal that infidelity or expose it, in view of the moral or economic her mother's house in Samal where her spouse resided with her children. Moreover,
interest involved (Tolentino, citing Bevilaqua, Familia, p. 314). Crispin Anahaw did not have any serious illness or any illness whatsoever which
would have rendered him incapable of having sexual act with his wife. No
The right to repudiate or contest the legitimacy of a child born in wedlock belongs substantial evidence whatsoever was brought out to negate the aforestated facts.
only to the alleged father, who is the husband of the mother and can be exercised
only by him or his heirs, within a fixed time, and in certain cases, and only in a direct Crispin Anahaw served as a refuge after respondent's reckless and immoral pursuits
or a "buffer" after her flings. And she deliberately did not include nor present her
husband in this case because she could not risk her scheme. She had to be certain moneyed paramours. This would be the form of wrecking the stability of two
that such scheme to bastardize her own son for her selfish motives would not be families. This would be a severe assault on morality.
thwarted.
And as between the paternity by the husband and the paternity by the paramour, all
This Court finds no other recourse except to deny respondent's claim to declare her the circumstances being equal, the law is inclined to follow the former; hence, the
son Rolando the illegitimate child of petitioner. From all indications, respondent has child is thus given the benefit of legitimacy.
paraded herself as a woman of highly questionable character. A married woman
who, on first meeting, rides with a total stranger who is married towards nightfall, Finally, Article 220 of the Civil Code reinforces the aforesaid principle when it
sleeps in his house in the presence of his children, then lives with him after their provides thus:
initial sexual contact the atmosphere for which she herself provided is patently
immoral and hedonistic. Although her husband was a very potent man, she readily Art. 220. In case of doubt, an presumptions favor the solidarity of the family.
indulged in an instant illicit relationship with a married man she had never known Thus, every of law or facts leans toward the validity of marriage, the indissolubility of
before. the marriage bonds, the legitimacy of children the community of property during
marriage, the authority of parents over their children, and the validity of defense for
Respondent had shown total lack of or genuine concern for her child (Rolando) for, any member of the family in case of unlawful aggression.
even after birth, she left him in the care of a yaya for several months. This is not the
normal instinct and behavior of a mother who has the safety and welfare of her child WHEREFORE, THE DECISION OF THE COURT OF APPEALS DATED JUNE 2, 1978, AND
foremost in her mind. The filing of this case itself shows how she is capable of ITS RESOLUTION DATED NOVEMBER 6, 1978 ARE HEREBY REVERSED AND SET ASIDE.
sacrificing the psycho-social future (reputation) of the child in exchange for some COSTS AGAINST PRIVATE RESPONDENT.
monetary consideration. This is blatant shamelessness.

It also appears that her claim against petitioner is a disguised attempt to evade the
responsibility and consequence of her reckless behavior at the expense of her
husband, her illicit lover and above all her own son. For this Court to allow, much
less consent to, the bastardization of respondent's son would give rise to serious and
far-reaching consequences on society. This Court will not tolerate scheming married
women who would indulge in illicit affairs with married men and then exploit the
children born during such immoral relations by using them to collect from such

DUTIES AND OBLIGATIONS On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so lovingly
inseparable from her husband some years ago, filed a petition with the Court of
Appeals1 for habeas corpus to have custody of her husband in consortium.

G.R. No. 139789 July 19, 2001 On April 5, 1999, the Court of Appeals promulgated its decision dismissing the
petition for lack of unlawful restraint or detention of the subject, Potenciano
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF POTENCIANO ILUSORIO, Ilusorio.
ERLINDA K. ILUSORIO, petitioner,
vs. Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the Supreme Court an appeal
ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, JOHN DOES and JANE via certiorari pursuing her desire to have custody of her husband Potenciano
DOES, respondents. Ilusorio.2 This case was consolidated with another case3 filed by Potenciano Ilusorio
x---------------------------------------------------------x and his children, Erlinda I. Bildner and Sylvia K. Ilusorio appealing from the order
giving visitation rights to his wife, asserting that he never refused to see her.
G.R. No. 139808 July 19, 2001
On May 12, 2000, we dismissed the petition for habeas corpus4 for lack of merit,
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, and granted the petition5 to nullify the Court of Appeals' ruling6 giving visitation
petitioners, rights to Erlinda K. Ilusorio.7
vs.
HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents. What is now before the Court is Erlinda's motion to reconsider the decision.8

R E S O L U T I O N On September 20, 2000, we set the case for preliminary conference on October 11,
2000, at 10:00 a. m., without requiring the mandatory presence of the parties.
PARDO, J.:
In that conference, the Court laid down the issues to be resolved, to wit:
Once again we see the sad tale of a prominent family shattered by conflicts on
expectancy in fabled fortune. (a) To determine the propriety of a physical and medical examination of
petitioner Potenciano Ilusorio;

(b) Whether the same is relevant; and
 Second. One reason why Erlinda K. Ilusorio sought custody of her husband was that
(c) If relevant, how the Court will conduct the same.9 respondents Lin and Sylvia were illegally restraining Potenciano Ilusorio to
fraudulently deprive her of property rights out of pure greed.14 She claimed that her
The parties extensively discussed the issues. The Court, in its resolution, enjoined two children were using their sick and frail father to sign away Potenciano and
the parties and their lawyers to initiate steps towards an amicable settlement of the Erlinda's property to companies controlled by Lin and Sylvia. She also argued that
case through mediation and other means. since Potenciano retired as director and officer of Baguio Country Club and
Philippine Oversees Telecommunications, she would logically assume his position
On November 29, 2000, the Court noted the manifestation and compliance of the and control. Yet, Lin and Sylvia were the ones controlling the corporations.15
parties with the resolution of October 11, 2000.10
The fact of illegal restraint has not been proved during the hearing at the Court of
On January 31, 2001, the Court denied Erlinda Ilusorio's manifestation and motion Appeals on March 23, 1999.16 Potenciano himself declared that he was not
praying that Potenciano Ilusorio be produced before the Court and be medically prevented by his children from seeing anybody and that he had no objection to
examined by a team of medical experts appointed by the Court.11 seeing his wife and other children whom he loved.

On March 27, 2001, we denied with finality Erlinda's motion to reconsider the Erlinda highlighted that her husband suffered from various ailments. Thus,
Court's order of January 31 , 2001.12 Potenciano Ilusorio did not have the mental capacity to decide for himself. Hence,
Erlinda argued that Potenciano be brought before the Supreme Court so that we
The issues raised by Erlinda K. Ilusorio in her motion for reconsideration are mere could determine his mental state.
reiterations of her arguments that have been resolved in the decision.
We were not convinced that Potenciano Ilusorio was mentally incapacitated to
Nevertheless, for emphasis, we shall discuss the issues thus: choose whether to see his wife or not. Again, this is a question of fact that has been
decided in the Court of Appeals.
First. Erlinda K. Ilusorio claimed that she was not compelling Potenciano to live with
her in consortium and that Potenciano's mental state was not an issue. However, As to whether the children were in fact taking control of the corporation, these are
the very root cause of the entire petition is her desire to have her husband's matters that may be threshed out in a separate proceeding, irrelevant in habeas
custody.13 Clearly, Erlinda cannot now deny that she wanted Potenciano Ilusorio to corpus.
live with her.
Third. Petitioner failed to sufficiently convince the Court why we should not rely on
the facts found by the Court of Appeals. Erlinda claimed that the facts mentioned in
the decision were erroneous and incomplete. We see no reason why the High Court IN VIEW WHEREOF, we DENY Erlinda's motion for reconsideration. At any rate, the
of the land need go to such length. The hornbook doctrine states that findings of case has been rendered moot by the death of subject.
fact of the lower courts are conclusive on the Supreme Court.17 We emphasize, it is
not for the Court to weigh evidence all over again.18 Although there are exceptions SO ORDERED.
to the rule,19 Erlinda failed to show that this is an exceptional instance.
Davide, Jr., C .J ., Puno, Kapunan and Ynares-Santiago, JJ ., concur.
Fourth. Erlinda states that Article XII of the 1987 Constitution and Articles 68 and 69
of the Family Code support her position that as spouses, they (Potenciano and
Erlinda) are duty bound to live together and care for each other. We agree.

The law provides that the husband and the wife are obliged to live together, observe
mutual love, respect and fidelity.20 The sanction therefor is the "spontaneous,
mutual affection between husband and wife and not any legal mandate or court
order" to enforce consortium.21
G.R. No. 11263 November 2, 1916
Obviously, there was absence of empathy between spouses Erlinda and Potenciano,
having separated from bed and board since 1972. We defined empathy as a shared ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,
feeling between husband and wife experienced not only by having spontaneous vs.
sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way JOSE CAMPOS RUEDA, defendant-appellee.
process.
Eduardo Gutierrez Repide and Felix Socias for appellant.
Marriage is definitely for two loving adults who view the relationship with "amor Sanz, Opisso and Luzuriaga for appellee.
gignit amorem" respect, sacrifice and a continuing commitment to togetherness,
conscious of its value as a sublime social institution.22
TRENT, J.:
On June 28, 2001, Potenciano Ilusorio gave his soul to the Almighty, his Creator and
Supreme Judge. Let his soul rest in peace and his survivors continue the much This is an action by the wife against her husband for support outside of the conjugal
prolonged fracas ex aequo et bono. domicile. From a judgment sustaining the defendant's demurrer upon the ground

that the facts alleged in the complaint do not state a cause of action, followed by an ceremony, a conjugal partnership is formed between the parties. (Sy Joc Lieng vs.
order dismissing the case after the plaintiff declined to amend, the latter appealed. Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage partakes of the nature of
an ordinary contract. But it is something more than a mere contract. It is a new
It was urged in the first instance, and the court so held, that the defendant cannot relation, the rights, duties, and obligations of which rest not upon the agreement of
be compelled to support the plaintiff, except in his own house, unless it be by virtue the parties but upon the general law which defines and prescribes those rights,
of a judicial decree granting her a divorce or separation from the defendant. duties, and obligations .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
The parties were legally married in the city of Manila on January 7, 1915, and terminate it at any shorter period by virtue of any contract they may make .The
immediately thereafter established their residence at 115 Calle San Marcelino, reciprocal rights arising from this relation, so long as it continues, are such as the law
where they lived together for about a month, when the plaintiff returned to the determines from time to time, and none other. When the legal existence of the
home of her parents. The pertinent allegations of the complaint are as follows: parties is merged into one by marriage, the new relation is regulated and controlled
by the state or government upon principles of public policy for the benefit of society
That the defendant, one month after he had contracted marriage with the plaintiff, as well as the parties. And when the object of a marriage is defeated by rendering its
demanded of her that she perform unchaste and lascivious acts on his genital continuance intolerable to one of the parties and productive of no possible good to
organs; that the plaintiff spurned the obscene demands of the defendant and the community, relief in some way should be obtainable. With these principles to
refused to perform any act other than legal and valid cohabitation; that the guide us, we will inquire into the status of the law touching and governing the
defendant, since that date had continually on other successive dates, made similar question under consideration.
lewd and indecorous demands on his wife, the plaintiff, who always spurned them,
which just refusals of the plaintiff exasperated the defendant and induce him to Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands
maltreat her by word and deed and inflict injuries upon her lips, her face and (Benedicto vs. De la Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil
different parts of her body; and that, as the plaintiff was unable by any means to Marriage of 1870, in force in the Peninsula, were extended to the Philippine Islands
induce the defendant to desist from his repugnant desires and cease from by royal decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705). Articles 44, 45,
maltreating her, she was obliged to leave the conjugal abode and take refuge in the and 48 of this law read:
home of her parents.
ART. 44. The spouses are obliged to be faithful to each other and to mutually assist
Marriage in this jurisdiction is a contract entered into in the manner and with the each other.
solemnities established by General Orders No. 68, in so far as its civil effects are
concerned requiring the consent of the parties. (Garcia vs. Montague, 12 Phil. Rep., ART. 45. The husband must live with and protect his wife. (The second paragraph
480, citing article 1261 of Civil Code.) Upon the termination of the marriage deals with the management of the wife's property.)
 obliged to support his wife may, at his option, do so by paying her a fixed pension or
ART. 48. The wife must obey her husband, live with him, and follow him when he by receiving and maintaining her in his own home. May the husband, on account of
charges his domicile or residence. his conduct toward his wife, lose this option and be compelled to pay the pension?
Is the rule established by article 149 of the Civil Code absolute? The supreme court
Notwithstanding the provisions of the foregoing paragraph, the court may for just of Spain in its decision of December 5, 1903, held:.
cause relieve her from this duty when the husband removes his residence to a
foreign country. That in accordance with the ruling of the supreme court of Spain in its decisions
dated May 11, 1897, November 25, 1899, and July 5, 1901, the option which article
And articles 143 and 149 of the Civil Code are as follows: 149 grants the person, obliged to furnish subsistence, between paying the pension
fixed or receiving and keeping in his own house the party who is entitled to the
ART. 143. The following are obliged to support each other reciprocally to the whole same, is not so absolute as to prevent cases being considered wherein, either
extent specified in the preceding article. because this right would be opposed to the exercise of a preferential right or
because of the existence of some justifiable cause morally opposed to the removal
1. The consorts. of the party enjoying the maintenance, the right of selection must be understood as
being thereby restricted.
x x x x x x x x x
Whereas the only question discussed in the case which gave rise to this appeal was
ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either whether there was any reason to prevent the exercise of the option granted by
by paying the pension that may be fixed or by receiving and maintaining in his own article 149 of the Civil Code to the person obliged to furnish subsistence, to receive
home the person having the right to the same. and maintain in his own house the one who is entitled to receive it; and inasmuch as
nothing has been alleged or discussed with regard to the parental authority of Pedro
Article 152 of the Civil Code gives the instances when the obligation to give support Alcantara Calvo, which he ha not exercised, and it having been set forth that the
shall cease. The failure of the wife to live with her husband is not one of them. natural father simply claims his child for the purpose of thus better attending to her
maintenance, no action having been taken by him toward providing the support
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the until, owing to such negligence, the mother was obliged to demand it; it is seen that
duties and obligations of the spouses. The spouses must be faithful to, assist, and these circumstances, together with the fact of the marriage of Pedro Alcantara, and
support each other. The husband must live with and protect his wife. The wife must that it would be difficult for the mother to maintain relations with her daughter, all
obey and live with her husband and follow him when he changes his domicile or constitute an impediment of such a nature as to prevent the exercise of the option
residence, except when he removes to a foreign country. But the husband who is in the present case, without prejudice to such decision as may be deemed proper
with regard to the other questions previously cited in respect to which no opinion plaintiff appealed to the supreme court and that high tribunal, in affirming the
should be expressed at this time. judgment of the Audencia Territorial, said:

The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Considering that article 143, No. 1, of the Civil Code, providing that the spouses are
Rep., 576), wherein the court held that the rule laid down in article 149 of the Civil mutually obliged to provide each other with support, cannot but be subordinate to
Code "is not absolute." but it is insisted that there existed a preexisting or the other provisions of said Code which regulates the family organization and the
preferential right in each of these cases which was opposed to the removal of the duties of spouses not legally separated, among which duties are those of their living
one entitled to support. It is true that in the first the person claiming the option was together and mutually helping each other, as provided in article 56 of the
the natural father of the child and had married a woman other than the child's aforementioned code; and taking this for granted, the obligation of the spouse who
mother, and in the second the right to support had already been established by a has property to furnish support to the one who has no property and is in need of it
final judgment in a criminal case. Notwithstanding these facts the two cases clearly for subsistence, is to be understood as limited to the case where, in accordance with
established the proposition that the option given by article 149 of the Civil Code may law, their separation has been decreed, either temporarily or finally and this case,
not be exercised in any and all cases. with respect to the husband, cannot occur until a judgment of divorce is rendered,
since, until then, if he is culpable, he is not deprived of the management of his wife's
Counsel for the defendant cite, in support of their contention, the decision of the property and of the product of the other property belonging to the conjugal
supreme court of Spain, dated November 3, 1905. In this case Don Berno Comas, as partnership; and
a result of certain business reverses and in order no to prejudice his wife, conferred
upon her powers to administer and dispose of her property. When she left him he Considering that, should the doctrine maintained in the appeal prevail, it would
gave her all the muniments of title, mortgage credits, notes, P10,000 in accounts allow married persons to disregard the marriage bond and separate from each other
receivable, and the key to the safe in which he kept a large amount of jewels, thus of their own free will, thus establishing, contrary to the legal provision contained in
depriving himself of all his possessions and being reduced in consequence to want. said article 56 of the Civil Code, a legal status entirely incompatible with the nature
Subsequently he instituted this civil action against his wife, who was then living in and effects of marriage in disregard of the duties inherent therein and disturbing the
opulence, for support and the revocation of the powers heretofore granted in unity of the family, in opposition to what the law, in conformity with good morals,
reference to the administration and disposal of her property. In her answer the wife has established; and.
claimed that the plaintiff (her husband) was not legally in a situation to claim
support and that the powers voluntarily conferred and accepted by her were Considering that, as the spouses D. Ramon Benso and Doa Adela Galindo are not
bilateral and could not be canceled by the plaintiff. From a judgment in favor of the legally separated, it is their duty to live together and afford each other help and
plaintiff the defendant wife appealed to the Audencia Territorial wherein, after due support; and for this reason, it cannot be held that the former has need of support
trial, judgment was rendered in her favor dismissing the action upon the merits. The from his wife so that he may live apart from her without the conjugal abode where it
is his place to be, nor of her conferring power upon him to dispose even of the fruits obligation to support his wife in fulfillment of the natural duty sanctioned in article
of her property in order therewith to pay the matrimonial expenses and, 56 of the Code in relation with paragraph 1 of article 143. In not so holding, the trial
consequently, those of his own support without need of going to his wife; wherefore court, on the mistaken ground that for the fulfillment of this duty the situation or
the judgment appealed from, denying the petition of D. Ramon Benso for support, relation of the spouses should be regulated in the manner it indicates, has made the
has not violated the articles of the Civil Code and the doctrine invoked in the errors of law assigned in the first three grounds alleged, because the nature of the
assignments of error 1 and 5 of the appeal. duty of affording mutual support is compatible and enforcible in all situations, so
long as the needy spouse does not create any illicit situation of the court above
From a careful reading of the case just cited and quoted from it appears quite clearly described.lawphil.net
that the spouses separated voluntarily in accordance with an agreement previously
made. At least there are strong indications to this effect, for the court says, "should If we are in error as to the doctrine enunciated by the supreme court of Spain in its
the doctrine maintained in the appeal prevail, it would allow married persons to decision of November 3, 1905, and if the court did hold, as contended by counsel for
disregard the marriage bond and separate from each other of their own free will." If the defendant in the case under consideration, that neither spouse can be
this be the true basis upon which the supreme court of Spain rested its decision, compelled to support the other outside of the conjugal abode, unless it be by virtue
then the doctrine therein enunciated would not be controlling in cases where one of of a final judgment granting the injured one a divorce or separation from the other,
the spouses was compelled to leave the conjugal abode by the other or where the still such doctrine or holding would not necessarily control in this jurisdiction for the
husband voluntarily abandons such abode and the wife seeks to force him to furnish reason that the substantive law is not in every particular the same here as it is in
support. That this is true appears from the decision of the same high tribunal, dated Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the
October 16, 1903. In this case the wife brought an action for support against her Peninsula are not in force in the Philippine Islands. The law governing the duties and
husband who had willfully and voluntarily abandoned the conjugal abode without obligations of husband and wife in this country are articles 44 to 78 of the Law of
any cause whatever. The supreme court, reversing the judgment absolving the Civil Marriage of 1870 .In Spain the complaining spouse has, under article 105 of the
defendant upon the ground that no action for divorce, etc., had been instituted, Civil Code, various causes for divorce, such as adultery on the part of the wife in
said: every case and on the part of the husband when public scandal or disgrace of the
wife results therefrom; personal violence actually inflicted or grave insults: violence
In the case at bar, it has been proven that it was Don Teodoro Exposito who left the exercised by the husband toward the wife in order to force her to change her
conjugal abode, although he claims, without however proving his contention, that religion; the proposal of the husband to prostitute his wife; the attempts of the
the person responsible for this situation was his wife, as she turned him out of the husband or wife to corrupt their sons or to prostitute their daughters; the
house. From this state of affairs it results that it is the wife who is party abandoned, connivance in their corruption or prostitution; and the condemnation of a spouse to
the husband not having prosecuted any action to keep her in his company and he perpetual chains or hard labor, while in this jurisdiction the only ground for a divorce
therefore finds himself, as long as he consents to the situation, under the ineluctable is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and
absolute doctrine was announced by this court in the case just cited after an impeachment of that public policy by which marriage is regarded as so sacred and
exhaustive examination of the entire subject. Although the case was appealed to the inviolable in its nature; it is merely a stronger policy overruling a weaker one; and
Supreme Court of the United States and the judgment rendered by this court was except in so far only as such separation is tolerated as a means of preserving the
there reversed, the reversal did not affect in any way or weaken the doctrine in public peace and morals may be considered, it does not in any respect whatever
reference to adultery being the only ground for a divorce. And since the decision impair the marriage contract or for any purpose place the wife in the situation of a
was promulgated by this court in that case in December, 1903, no change or feme sole.
modification of the rule has been announced. It is, therefore, the well settled and
accepted doctrine in this jurisdiction.

But it is argued that to grant support in an independent suit is equivalent to granting
divorce or separation, as it necessitates a determination of the question whether the
wife has a good and sufficient cause for living separate from her husband; and,
consequently, if a court lacks power to decree a divorce, as in the instant case,
power to grant a separate maintenance must also be lacking. The weakness of this G.R. No. 127406 November 27, 2000
argument lies in the assumption that the power to grant support in a separate action
is dependent upon a power to grant a divorce. That the one is not dependent upon OFELIA P. TY, petitioner,
the other is apparent from the very nature of the marital obligations of the spouses. vs.
The mere act of marriage creates an obligation on the part of the husband to THE COURT OF APPEALS, and EDGARDO M. REYES, respondents.
support his wife. This obligation is founded not so much on the express or implied
terms of the contract of marriage as on the natural and legal duty of the husband; an D E C I S I O N
obligation, the enforcement of which is of such vital concern to the state itself that
the laws will not permit him to terminate it by his own wrongful acts in driving his QUISUMBING, J.:
wife to seek protection in the parental home. A judgment for separate maintenance
is not due and payable either as damages or as a penalty; nor is it a debt in the strict This appeal seeks the reversal of the decision dated July 24, 1996, of the Court of
legal sense of the term, but rather a judgment calling for the performance of a duty Appeals in C.A. G.R. CV 37897, which affirmed the decision of the Regional Trial
made specific by the mandate of the sovereign. This is done from necessity and with Court of Pasig, Branch 160, declaring the marriage contract between private
a view to preserve the public peace and the purity of the wife; as where the husband respondent Edgardo M. Reyes and petitioner Ofelia P. Ty null and void ab initio. It
makes so base demands upon his wife and indulges in the habit of assaulting her. also ordered private respondent to pay P15,000.00 as monthly support for their
The pro tanto separation resulting from a decree for separate support is not an children Faye Eloise Reyes and Rachel Anne Reyes.
 1977, and his church marriage to said Anna Maria on August 27, 1977. These
As shown in the records of the case, private respondent married Anna Maria Regina documents were submitted as evidence during trial and, according to petitioner, are
Villanueva in a civil ceremony on March 29, 1977, in Manila. Then they had a church therefore deemed sufficient proof of the facts therein. The fact that the civil
wedding on August 27, 1977. However, on August 4, 1980, the Juvenile and marriage of private respondent and petitioner took place on April 4, 1979, before
Domestic Relations Court of Quezon City declared their marriage null and void ab the judgment declaring his prior marriage as null and void is undisputed. It also
initio for lack of a valid marriage license. The church wedding on August 27, 1977, appears indisputable that private respondent and petitioner had a church wedding
was also declared null and void ab initio for lack of consent of the parties. ceremony on April 4, 1982.1

Even before the decree was issued nullifying his marriage to Anna Maria, private The Pasig RTC sustained private respondents civil suit and declared his marriage to
respondent wed Ofelia P. Ty, herein petitioner, on April 4, 1979, in ceremonies herein petitioner null and void ab initio in its decision dated November 4, 1991. Both
officiated by the judge of the City Court of Pasay. On April 4, 1982, they also had a parties appealed to respondent Court of Appeals. On July 24, 1996, the appellate
church wedding in Makati, Metro Manila. court affirmed the trial courts decision. It ruled that a judicial declaration of nullity
of the first marriage (to Anna Maria) must first be secured before a subsequent
On January 3, 1991, private respondent filed a Civil Case 1853-J with the RTC of marriage could be validly contracted. Said the appellate court:
Pasig, Branch 160, praying that his marriage to petitioner be declared null and void.
He alleged that they had no marriage license when they got married. He also We can accept, without difficulty, the doctrine cited by defendants counsel that no
averred that at the time he married petitioner, he was still married to Anna Maria. judicial decree is necessary to establish the invalidity of void marriages. It does not
He stated that at the time he married petitioner the decree of nullity of his marriage say, however, that a second marriage may proceed even without a judicial decree.
to Anna Maria had not been issued. The decree of nullity of his marriage to Anna While it is true that if a marriage is null and void, ab initio, there is in fact no
Maria was rendered only on August 4, 1980, while his civil marriage to petitioner subsisting marriage, we are unwilling to rule that the matter of whether a marriage
took place on April 4, 1979. is valid or not is for each married spouse to determine for himself for this would be
the consequence of allowing a spouse to proceed to a second marriage even before
Petitioner, in defending her marriage to private respondent, pointed out that his a competent court issues a judicial decree of nullity of his first marriage. The results
claim that their marriage was contracted without a valid license is untrue. She would be disquieting, to say the least, and could not have been the intendment of
submitted their Marriage License No. 5739990 issued at Rosario, Cavite on April 3, even the now-repealed provisions of the Civil Code on marriage.
1979, as Exh. 11, 12 and 12-A. He did not question this document when it was
submitted in evidence. Petitioner also submitted the decision of the Juvenile and x x x
Domestic Relations Court of Quezon City dated August 4, 1980, which declared null
and void his civil marriage to Anna Maria Regina Villanueva celebrated on March 29,
WHEREFORE, upon the foregoing ratiocination, We modify the appealed Decision in III
this wise:
IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE CIVIL EFFECTS
1. The marriage contracted by plaintiff-appellant [herein private respondent] OF THE RELIGIOUS RATIFICATION WHICH USED THE SAME MARRIAGE LICENSE.
Eduardo M. Reyes and defendant-appellant [herein petitioner] Ofelia P. Ty is
declared null and void ab initio; IV

2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly support in the IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY DAMAGES TO THE
amount of P15,000.00 to his children Faye Eloise Reyes and Rachel Anne Reyes from DEFENDANT-APPELLANT.
November 4, 1991; and
The principal issue in this case is whether the decree of nullity of the first marriage is
3. Cost against plaintiff-appellant Eduardo M. Reyes. required before a subsequent marriage can be entered into validly? To resolve this
question, we shall go over applicable laws and pertinent cases to shed light on the
SO ORDERED.2 assigned errors, particularly the first and the second which we shall discuss jointly.

Petitioners motion for reconsideration was denied. Hence, this instant petition In sustaining the trial court, the Court of Appeals declared the marriage of petitioner
asserting that the Court of Appeals erred: to private respondent null and void for lack of a prior judicial decree of nullity of the
marriage between private respondent and Villanueva. The appellate court rejected
I. petitioners claim that People v. Mendoza3 and People v. Aragon4 are applicable in
this case. For these cases held that where a marriage is void from its performance,
BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR THE VALIDITY OF no judicial decree is necessary to establish its invalidity. But the appellate court said
PETITIONERS MARRIAGE TO RESPONDENT, A JUDICIAL DECREE NOT REQUIRED BY these cases, decided before the enactment of the Family Code (E.O. No. 209 as
LAW. amended by E.O No. 227), no longer control. A binding decree is now needed and
must be read into the provisions of law previously obtaining.5
II
In refusing to consider petitioners appeal favorably, the appellate court also said:
IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS. COURT OF
APPEALS.

Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory precedent for present at the time of contracting such subsequent marriage, or if the absentee is
this case. Although decided by the High Court in 1992, the facts situate it within the presumed dead according to articles 390 and 391. The marriage so contracted shall
regime of the now-repealed provisions of the Civil Code, as in the instant case. be valid in any of the three cases until declared null and void by a competent court.

x x x As to whether a judicial declaration of nullity of a void marriage is necessary, the
Civil Code contains no express provision to that effect. Jurisprudence on the matter,
For purposes of determining whether a person is legally free to contract a second however, appears to be conflicting.
marriage, a judicial declaration that the first marriage was null and void ab initio is
essential. . . .6 Originally, in People v. Mendoza,10 and People v. Aragon,11 this Court held that no
judicial decree is necessary to establish the nullity of a void marriage. Both cases
At the outset, we must note that private respondents first and second marriages involved the same factual milieu. Accused contracted a second marriage during the
contracted in 1977 and 1979, respectively, are governed by the provisions of the subsistence of his first marriage. After the death of his first wife, accused contracted
Civil Code. The present case differs significantly from the recent cases of Bobis v. a third marriage during the subsistence of the second marriage. The second wife
Bobis7 and Mercado v. Tan,8 both involving a criminal case for bigamy where the initiated a complaint for bigamy. The Court acquitted accused on the ground that
bigamous marriage was contracted during the effectivity of the Family Code,9 under the second marriage is void, having been contracted during the existence of the first
which a judicial declaration of nullity of marriage is clearly required. marriage. There is no need for a judicial declaration that said second marriage is
void. Since the second marriage is void, and the first one terminated by the death of
Pertinent to the present controversy, Article 83 of the Civil Code provides that: his wife, there are no two subsisting valid marriages. Hence, there can be no bigamy.
Justice Alex Reyes dissented in both cases, saying that it is not for the spouses but
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the court to judge whether a marriage is void or not.
the first spouse of such person with any person other than such first spouse shall be
illegal and void from its performance, unless: In Gomez v. Lipana,12 and Consuegra v. Consuegra,13 however, we recognized the
right of the second wife who entered into the marriage in good faith, to share in
(1) The first marriage was annulled or dissolved; or their acquired estate and in proceeds of the retirement insurance of the husband.
The Court observed that although the second marriage can be presumed to be void
(2) The first spouse had been absent for seven consecutive years at the time of the ab initio as it was celebrated while the first marriage was still subsisting, still there
second marriage without the spouse present having news of the absentee being was a need for judicial declaration of such nullity (of the second marriage). And since
alive, or if the absentee, though he has been absent for less than seven years, is the death of the husband supervened before such declaration, we upheld the right
generally considered as dead and before any person believed to be so by the spouse
of the second wife to share in the estate they acquired, on grounds of justice and At any rate, the confusion under the Civil Code was put to rest under the Family
equity.14 Code. Our rulings in Gomez, Consuegra, and Wiegel were eventually embodied in
Article 40 of the Family Code.20 Article 40 of said Code expressly required a judicial
But in Odayat v. Amante (1977),15 the Court adverted to Aragon and Mendoza as declaration of nullity of marriage
precedents. We exonerated a clerk of court of the charge of immorality on the
ground that his marriage to Filomena Abella in October of 1948 was void, since she Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of
was already previously married to one Eliseo Portales in February of the same year. remarriage on the basis solely of a final judgment declaring such previous marriage
The Court held that no judicial decree is necessary to establish the invalidity of void void.
marriages. This ruling was affirmed in Tolentino v. Paras.16
In Terre v. Terre (1992)21 the Court, applying Gomez, Consuegra and Wiegel,
Yet again in Wiegel v. Sempio-Diy (1986),17 the Court held that there is a need for a categorically stated that a judicial declaration of nullity of a void marriage is
judicial declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in necessary. Thus, we disbarred a lawyer for contracting a bigamous marriage during
1972. In 1978, she married another man, Wiegel. Wiegel filed a petition with the the subsistence of his first marriage. He claimed that his first marriage in 1977 was
Juvenile Domestic Relations Court to declare his marriage to Lilia as void on the void since his first wife was already married in 1968. We held that Atty. Terre should
ground of her previous valid marriage. The Court, expressly relying on Consuegra, have known that the prevailing case law is that "for purposes of determining
concluded that:18 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."
There is likewise no need of introducing evidence about the existing prior marriage
of her first husband at the time they married each other, for then such a marriage The Court applied this ruling in subsequent cases. In Domingo v. Court of Appeals
though void still needs according to this Court a judicial declaration (citing (1993),22 the Court held:
Consuegra) of such fact and for all legal intents and purposes she would still be
regarded as a married woman at the time she contracted her marriage with Came the Family Code which settled once and for all the conflicting jurisprudence on
respondent Karl Heinz Wiegel; accordingly, the marriage of petitioner and the matter. A declaration of absolute nullity of marriage is now explicitly required
respondent would be regarded VOID under the law. (Emphasis supplied). either as a cause of action or a ground for defense. (Art. 39 of the Family Code).
Where the absolute nullity of a previous marriage is sought to be invoked for
In Yap v. Court of Appeals,19 however, the Court found the second marriage void purposes of contracting a second marriage, the sole basis acceptable in law for said
without need of judicial declaration, thus reverting to the Odayat, Mendoza and projected marriage to be free from legal infirmity is a final judgment declaring the
Aragon rulings. previous marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50,
52, 54, 86, 99, 147, 148).23
 petitioner claimed as untruthful private respondents allegation that he wed
However, a recent case applied the old rule because of the peculiar circumstances of petitioner but they lacked a marriage license. Indeed we find there was a marriage
the case. In Apiag v. Cantero, (1997)24 the first wife charged a municipal trial judge license, though it was the same license issued on April 3, 1979 and used in both the
of immorality for entering into a second marriage. The judge claimed that his first civil and the church rites. Obviously, the church ceremony was confirmatory of their
marriage was void since he was merely forced into marrying his first wife whom he civil marriage. As petitioner contends, the appellate court erred when it refused to
got pregnant. On the issue of nullity of the first marriage, we applied Odayat, recognize the validity and salutary effects of said canonical marriage on a
Mendoza and Aragon. We held that since the second marriage took place and all the technicality, i.e. that petitioner had failed to raise this matter as affirmative defense
children thereunder were born before the promulgation of Wiegel and the during trial. She argues that such failure does not prevent the appellate court from
effectivity of the Family Code, there is no need for a judicial declaration of nullity of giving her defense due consideration and weight. She adds that the interest of the
the first marriage pursuant to prevailing jurisprudence at that time. State in protecting the inviolability of marriage, as a legal and social institution,
outweighs such technicality. In our view, petitioner and private respondent had
Similarly, in the present case, the second marriage of private respondent was complied with all the essential and formal requisites for a valid marriage, including
entered into in 1979, before Wiegel. At that time, the prevailing rule was found in the requirement of a valid license in the first of the two ceremonies. That this license
Odayat, Mendoza and Aragon. The first marriage of private respondent being void was used legally in the celebration of the civil ceremony does not detract from the
for lack of license and consent, there was no need for judicial declaration of its ceremonial use thereof in the church wedding of the same parties to the marriage,
nullity before he could contract a second marriage. In this case, therefore, we for we hold that the latter rites served not only to ratify but also to fortify the first.
conclude that private respondents second marriage to petitioner is valid. The appellate court might have its reasons for brushing aside this possible defense
of the defendant below which undoubtedly could have tendered a valid issue, but
Moreover, we find that the provisions of the Family Code cannot be retroactively which was not timely interposed by her before the trial court. But we are now
applied to the present case, for to do so would prejudice the vested rights of persuaded we cannot play blind to the absurdity, if not inequity, of letting the
petitioner and of her children. As held in Jison v. Court of Appeals,25 the Family wrongdoer profit from what the CA calls "his own deceit and perfidy."
Code has retroactive effect unless there be impairment of vested rights. In the
present case, that impairment of vested rights of petitioner and the children is On the matter of petitioners counterclaim for damages and attorneys fees.1wphi1
patent. Additionally, we are not quite prepared to give assent to the appellate Although the appellate court admitted that they found private respondent acted
courts finding that despite private respondents "deceit and perfidy" in contracting "duplicitously and craftily" in marrying petitioner, it did not award moral damages
marriage with petitioner, he could benefit from her silence on the issue. Thus, because the latter did not adduce evidence to support her claim.26
coming now to the civil effects of the church ceremony wherein petitioner married
private respondent using the marriage license used three years earlier in the civil Like the lower courts, we are also of the view that no damages should be awarded in
ceremony, we find that petitioner now has raised this matter properly. Earlier the present case, but for another reason. Petitioner wants her marriage to private
respondent held valid and subsisting. She is suing to maintain her status as G.R. No. 139789 July 19, 2001
legitimate wife. In the same breath, she asks for damages from her husband for
filing a baseless complaint for annulment of their marriage which caused her mental IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF POTENCIANO ILUSORIO,
anguish, anxiety, besmirched reputation, social humiliation and alienation from her ERLINDA K. ILUSORIO, petitioner,
parents. Should we grant her prayer, we would have a situation where the husband vs.
pays the wife damages from conjugal or common funds. To do so, would make the ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, JOHN DOES and JANE
application of the law absurd. Logic, if not common sense, militates against such DOES, respondents.
incongruity. Moreover, our laws do not comprehend an action for damages between x---------------------------------------------------------x
husband and wife merely because of breach of a marital obligation.27 There are
other remedies.28 G.R. No. 139808 July 19, 2001

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO,
dated July 24, 1996 and its Resolution dated November 7, 1996, are reversed petitioners,
partially, so that the marriage of petitioner Ofelia P. Ty and private respondent vs.
Edgardo M. Reyes is hereby DECLARED VALID AND SUBSISTING; and the award of HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents.
the amount of P15,000.00 is RATIFIED and MAINTAINED as monthly support to their
two children, Faye Eloise Reyes and Rachel Anne Reyes, for as long as they are of R E S O L U T I O N
minor age or otherwise legally entitled thereto. Costs against private respondent.
PARDO, J.:
SO ORDERED.
Once again we see the sad tale of a prominent family shattered by conflicts on
expectancy in fabled fortune.

On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so lovingly
inseparable from her husband some years ago, filed a petition with the Court of
Appeals1 for habeas corpus to have custody of her husband in consortium.



On April 5, 1999, the Court of Appeals promulgated its decision dismissing the The parties extensively discussed the issues. The Court, in its resolution, enjoined
petition for lack of unlawful restraint or detention of the subject, Potenciano the parties and their lawyers to initiate steps towards an amicable settlement of the
Ilusorio. case through mediation and other means.

Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the Supreme Court an appeal On November 29, 2000, the Court noted the manifestation and compliance of the
via certiorari pursuing her desire to have custody of her husband Potenciano parties with the resolution of October 11, 2000.10
Ilusorio.2 This case was consolidated with another case3 filed by Potenciano Ilusorio
and his children, Erlinda I. Bildner and Sylvia K. Ilusorio appealing from the order On January 31, 2001, the Court denied Erlinda Ilusorio's manifestation and motion
giving visitation rights to his wife, asserting that he never refused to see her. praying that Potenciano Ilusorio be produced before the Court and be medically
examined by a team of medical experts appointed by the Court.11
On May 12, 2000, we dismissed the petition for habeas corpus4 for lack of merit,
and granted the petition5 to nullify the Court of Appeals' ruling6 giving visitation On March 27, 2001, we denied with finality Erlinda's motion to reconsider the
rights to Erlinda K. Ilusorio.7 Court's order of January 31 , 2001.12

What is now before the Court is Erlinda's motion to reconsider the decision.8 The issues raised by Erlinda K. Ilusorio in her motion for reconsideration are mere
reiterations of her arguments that have been resolved in the decision.
On September 20, 2000, we set the case for preliminary conference on October 11,
2000, at 10:00 a. m., without requiring the mandatory presence of the parties. Nevertheless, for emphasis, we shall discuss the issues thus:

In that conference, the Court laid down the issues to be resolved, to wit: First. Erlinda K. Ilusorio claimed that she was not compelling Potenciano to live with
her in consortium and that Potenciano's mental state was not an issue. However,
(a) To determine the propriety of a physical and medical examination of the very root cause of the entire petition is her desire to have her husband's
petitioner Potenciano Ilusorio; custody.13 Clearly, Erlinda cannot now deny that she wanted Potenciano Ilusorio to
live with her.
(b) Whether the same is relevant; and
Second. One reason why Erlinda K. Ilusorio sought custody of her husband was that
(c) If relevant, how the Court will conduct the same.9 respondents Lin and Sylvia were illegally restraining Potenciano Ilusorio to
fraudulently deprive her of property rights out of pure greed.14 She claimed that her
two children were using their sick and frail father to sign away Potenciano and
Erlinda's property to companies controlled by Lin and Sylvia. She also argued that not for the Court to weigh evidence all over again.18 Although there are exceptions
since Potenciano retired as director and officer of Baguio Country Club and to the rule,19 Erlinda failed to show that this is an exceptional instance.
Philippine Oversees Telecommunications, she would logically assume his position
and control. Yet, Lin and Sylvia were the ones controlling the corporations.15 Fourth. Erlinda states that Article XII of the 1987 Constitution and Articles 68 and 69
of the Family Code support her position that as spouses, they (Potenciano and
The fact of illegal restraint has not been proved during the hearing at the Court of Erlinda) are duty bound to live together and care for each other. We agree.
Appeals on March 23, 1999.16 Potenciano himself declared that he was not
prevented by his children from seeing anybody and that he had no objection to The law provides that the husband and the wife are obliged to live together, observe
seeing his wife and other children whom he loved. mutual love, respect and fidelity.20 The sanction therefor is the "spontaneous,
mutual affection between husband and wife and not any legal mandate or court
Erlinda highlighted that her husband suffered from various ailments. Thus, order" to enforce consortium.21
Potenciano Ilusorio did not have the mental capacity to decide for himself. Hence,
Erlinda argued that Potenciano be brought before the Supreme Court so that we Obviously, there was absence of empathy between spouses Erlinda and Potenciano,
could determine his mental state. having separated from bed and board since 1972. We defined empathy as a shared
feeling between husband and wife experienced not only by having spontaneous
We were not convinced that Potenciano Ilusorio was mentally incapacitated to sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way
choose whether to see his wife or not. Again, this is a question of fact that has been process.
decided in the Court of Appeals.
Marriage is definitely for two loving adults who view the relationship with "amor
As to whether the children were in fact taking control of the corporation, these are gignit amorem" respect, sacrifice and a continuing commitment to togetherness,
matters that may be threshed out in a separate proceeding, irrelevant in habeas conscious of its value as a sublime social institution.22
corpus.
On June 28, 2001, Potenciano Ilusorio gave his soul to the Almighty, his Creator and
Third. Petitioner failed to sufficiently convince the Court why we should not rely on Supreme Judge. Let his soul rest in peace and his survivors continue the much
the facts found by the Court of Appeals. Erlinda claimed that the facts mentioned in prolonged fracas ex aequo et bono.
the decision were erroneous and incomplete. We see no reason why the High Court
of the land need go to such length. The hornbook doctrine states that findings of IN VIEW WHEREOF, we DENY Erlinda's motion for reconsideration. At any rate, the
fact of the lower courts are conclusive on the Supreme Court.17 We emphasize, it is case has been rendered moot by the death of subject.

G.R. No. 118305 February 12, 1998 Philippine Blooming Mills (hereinafter referred to as PBM) obtained a
P50,300,000.00 loan from petitioner Ayala Investment and Development
AYALA INVESTMENT & DEVELOPMENT CORP. and ABELARDO MAGSAJO, petitioners, Corporation (hereinafter referred to as AIDC). As added security for the credit line
vs. extended to PBM, respondent Alfredo Ching, Executive Vice President of PBM,
COURT OF APPEALS and SPOUSES ALFREDO & ENCARNACION CHING, respondents. executed security agreements on December 10, 1980 and on March 20, 1981 making
himself jointly and severally answerable with PBM's indebtedness to AIDC.

MARTINEZ, J.: PBM failed to pay the loan. Thus, on July 30, 1981, AIDC filed a case for sum of
money against PBM and respondent-husband Alfredo Ching with the then Court of
Under Article 161 of the Civil Code, what debts and obligations contracted by the First Instance of Rizal (Pasig), Branch VIII, entitled "Ayala Investment and
husband alone are considered "for the benefit of the conjugal partnership" which Development Corporation vs. Philippine Blooming Mills and Alfredo Ching,"
are chargeable against the conjugal partnership? Is a surety agreement or an docketed as Civil Case No. 42228.
accommodation contract entered into by the husband in favor of his employer
within the contemplation of the said provision? After trial, the court rendered judgment ordering PBM and respondent-husband
Alfredo Ching to jointly and severally pay AIDC the principal amount of
These are the issues which we will resolve in this petition for review. P50,300,000.00 with interests.

The petitioner assails the decision dated April 14, 1994 of the respondent Court of Pending appeal of the judgment in Civil Case No. 42228, upon motion of AIDC, the
Appeals in "Spouses Alfredo and Encarnacion Ching vs. Ayala Investment and lower court issued a writ of execution pending appeal. Upon AIDC's putting up of an
Development Corporation, et. al.," docketed as CA-G.R. CV No. 29632,1 upholding P8,000,000.00 bond, a writ of execution dated May 12, 1982 was issued. Thereafter,
the decision of the Regional Trial Court of Pasig, Branch 168, which ruled that the petitioner Abelardo Magsajo, Sr., Deputy Sheriff of Rizal and appointed sheriff in
conjugal partnership of gains of respondents-spouses Alfredo and Encarnacion Ching Civil Case No. 42228, caused the issuance and service upon respondents-spouses of
is not liable for the payment of the debts secured by respondent-husband Alfredo a notice of sheriff sale dated May 20, 1982 on three (3) of their conjugal properties.
Ching. Petitioner Magsajo then scheduled the auction sale of the properties levied.

A chronology of the essential antecedent facts is necessary for a clear understanding On June 9, 1982, private respondents filed a case of injunction against petitioners
of the case at bar. with the then Court of First Instance of Rizal (Pasig), Branch XIII, to enjoin the
auction sale alleging that petitioners cannot enforce the judgment against the
conjugal partnership levied on the ground that, among others, the subject loan did
not redound to the benefit of the said conjugal partnership. 2 Upon application of claim is ownership of the property attached or levied upon, a different legal
private respondents, the lower court issued a temporary restraining order to situation is presented; and that in this case, two (2) of the real properties are
prevent petitioner Magsajo from proceeding with the enforcement of the writ of actually in the name of Encarnacion Ching, a non-party to Civil Case No. 42228.
execution and with the sale of the said properties at public auction.
The lower court denied the motion to dismiss. Hence, trial on the merits proceeded.
AIDC filed a petition for certiorari before the Court of Appeals,3 questioning the Private respondents presented several witnesses. On the other hand, petitioners did
order of the lower court enjoining the sale. Respondent Court of Appeals issued a not present any evidence.
Temporary Restraining Order on June 25, 1982, enjoining the lower court4 from
enforcing its Order of June 14, 1982, thus paving the way for the scheduled auction On September 18, 1991, the trial court promulgated its decision declaring the sale
sale of respondents-spouses conjugal properties. on execution null and void. Petitioners appealed to the respondent court, which was
docketed as CA-G.R. CV No. 29632.
On June 25, 1982, the auction sale took place. AIDC being the only bidder, was
issued a Certificate of Sale by petitioner Magsajo, which was registered on July 2, On April 14, 1994, the respondent court promulgated the assailed decision, affirming
1982. Upon expiration of the redemption period, petitioner sheriff issued the final the decision of the regional trial court. It held that:
deed of sale on August 4, 1982 which was registered on August 9, 1983.
The loan procured from respondent-appellant AIDC was for the advancement and
In the meantime, the respondent court, on August 4, 1982, decided CA-G.R. SP No. benefit of Philippine Blooming Mills and not for the benefit of the conjugal
14404, in this manner: partnership of petitioners-appellees.

WHEREFORE, the petition for certiorari in this case is granted and the challenged x x x x x x x x x
order of the respondent Judge dated June 14, 1982 in Civil Case No. 46309 is hereby
set aside and nullified. The same petition insofar as it seeks to enjoin the respondent As to the applicable law, whether it is Article 161 of the New Civil Code or Article
Judge from proceeding with Civil Case No. 46309 is, however, denied. No 1211 of the Family Code-suffice it to say that the two provisions are substantially the
pronouncement is here made as to costs. . . . 5 same. Nevertheless, We agree with the trial court that the Family Code is the
applicable law on the matter . . . . . . .
On September 3, 1983, AIDC filed a motion to dismiss the petition for injunction filed
before Branch XIII of the CFI of Rizal (Pasig) on the ground that the same had Article 121 of the Family Code provides that "The conjugal partnership shall be liable
become moot and academic with the consummation of the sale. Respondents filed for: . . . (2) All debts and obligations contracted during the marriage by the
their opposition to the motion arguing, among others, that where a third party who designated Administrator-Spouse for the benefit of the conjugal partnership of gains
. . . ." The burden of proof that the debt was contracted for the benefit of the that the transaction was entered into for the benefit of the conjugal partnership.
conjugal partnership of gains, lies with the creditor-party litigant claiming as such. In Thus, petitioners aver that:
the case at bar, respondent-appellant AIDC failed to prove that the debt was
contracted by appellee-husband, for the benefit of the conjugal partnership of gains. The wordings of Article 161 of the Civil Code is very clear: for the partnership to be
held liable, the husband must have contracted the debt "for the benefit of the
The dispositive portion of the decision reads: partnership, thus:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered DISMISSING Art. 161. The conjugal partnership shall be liable for:
the appeal. The decision of the Regional Trial Court is AFFIRMED in toto.6
1) all debts and obligations contracted by the husband for the benefit of the
Petitioner filed a Motion for Reconsideration which was denied by the respondent conjugal partnership . . . .
court in a Resolution dated November 28, 1994.7
There is a difference between the phrases: "redounded to the benefit of" or
Hence, this petition for review. Petitioner contends that the "respondent court erred "benefited from" (on the one hand) and "for the benefit of (on the other). The
in ruling that the conjugal partnership of private respondents is not liable for the former require that actual benefit must have been realized; the latter requires only
obligation by the respondent-husband." that the transaction should be one which normally would produce benefit to the
partnership, regardless of whether or not actual benefit accrued.8
Specifically, the errors allegedly committed by the respondent court are as follows:
We do not agree with petitioners that there is a difference between the terms
I. RESPONDENT COURT ERRED IN RULING THAT THE OBLIGATION INCURRED "redounded to the benefit of" or "benefited from" on the one hand; and "for the
RESPONDENT HUSBAND DID NOT REDOUND TO THE BENEFIT OF THE CONJUGAL benefit of" on the other. They mean one and the same thing. Article 161 (1) of the
PARTNERSHIP OF THE PRIVATE RESPONDENT. Civil Code and Article 121 (2) of the Family Code are similarly worded, i.e., both use
the term "for the benefit of." On the other hand, Article 122 of the Family Code
II. RESPONDENT COURT ERRED IN RULING THAT THE ACT OF RESPONDENT provides that "The payment of personal debts by the husband or the wife before or
HUSBAND IN SECURING THE SUBJECT LOAN IS NOT PART OF HIS INDUSTRY, during the marriage shall not be charged to the conjugal partnership except insofar
BUSINESS OR CAREER FROM WHICH HE SUPPORTS HIS FAMILY. as they redounded to the benefit of the family." As can be seen, the terms are used
interchangeably.
Petitioners in their appeal point out that there is no need to prove that actual
benefit redounded to the benefit of the partnership; all that is necessary, they say, is
Petitioners further contend that the ruling of the respondent court runs counter to
the pronouncement of this Court in the case of Cobb-Perez vs. Lantin,9 that the . . . if he incurs an indebtedness in the legitimate pursuit of his career or profession
husband as head of the family and as administrator of the conjugal partnership is or suffers losses in a legitimate business, the conjugal partnership must equally bear
presumed to have contracted obligations for the benefit of the family or the the indebtedness and the losses, unless he deliberately acted to the prejudice of his
conjugal partnership. family. (G-Tractors)

Contrary to the contention of the petitioners, the case of Cobb-Perez is not However, in the cases of Ansaldo vs. Sheriff of Manila, Fidelity Insurance & Luzon
applicable in the case at bar. This Court has, on several instances, interpreted the Insurance Co.,14 Liberty Insurance Corporation vs. Banuelos, 15 and Luzon Surety
term "for the benefit of the conjugal partnership." Inc. vs. De Garcia, 16 cited by the respondents, we ruled that:

In the cases of Javier vs. Osmea, 10 Abella de Diaz vs. Erlanger & Galinger, Inc., 11 The fruits of the paraphernal property which form part of the assets of the conjugal
Cobb-Perez vs. Lantin 12 and G-Tractors, Inc. vs. Court of Appeals, 13 cited by the partnership, are subject to the payment of the debts and expenses of the spouses,
petitioners, we held that: but not to the payment of the personal obligations (guaranty agreements) of the
husband, unless it be proved that such obligations were productive of some benefit
The debts contracted by the husband during the marriage relation, for and in the to the family." (Ansaldo; parenthetical phrase ours.)
exercise of the industry or profession by which he contributes toward the support of
his family, are not his personal and private debts, and the products or income from When there is no showing that the execution of an indemnity agreement by the
the wife's own property, which, like those of her husband's, are liable for the husband redounded to the benefit of his family, the undertaking is not a conjugal
payment of the marriage expenses, cannot be excepted from the payment of such debt but an obligation personal to him. (Liberty Insurance)
debts. (Javier)
In the most categorical language, a conjugal partnership under Article 161 of the
The husband, as the manager of the partnership (Article 1412, Civil Code), has a right new Civil Code is liable only for such "debts and obligations contracted by the
to embark the partnership in an ordinary commercial enterprise for gain, and the husband for the benefit of the conjugal partnership." There must be the requisite
fact that the wife may not approve of a venture does not make it a private and showing then of some advantage which clearly accrued to the welfare of the
personal one of the husband. (Abella de Diaz) spouses. Certainly, to make a conjugal partnership respond for a liability that should
appertain to the husband alone is to defeat and frustrate the avowed objective of
Debts contracted by the husband for and in the exercise of the industry or the new Civil Code to show the utmost concern for the solidarity and well-being of
profession by which he contributes to the support of the family, cannot be deemed the family as a unit. The husband, therefore, is denied the power to assume
to be his exclusive and private debts. (Cobb-Perez).
unnecessary and unwarranted risks to the financial stability of the conjugal Luzon Surety, is that in the former, the husband contracted the obligation for his
partnership. (Luzon Surety, Inc.) own business; while in the latter, the husband merely acted as a surety for the loan
contracted by another for the latter's business.
From the foregoing jurisprudential rulings of this Court, we can derive the following
conclusions: The evidence of petitioner indubitably show that co-respondent Alfredo Ching
signed as surety for the P50M loan contracted on behalf of PBM. petitioner should
(A) If the husband himself is the principal obligor in the contract, i.e., he directly have adduced evidence to prove that Alfredo Ching's acting as surety redounded to
received the money and services to be used in or for his own business or his own the benefit of the conjugal partnership. The reason for this is as lucidly explained by
profession, that contract falls within the term . . . . obligations for the benefit of the the respondent court:
conjugal partnership." Here, no actual benefit may be proved. It is enough that the
benefit to the family is apparent at the time of the signing of the contract. From the The loan procured from respondent-appellant AIDC was for the advancement and
very nature of the contract of loan or services, the family stands to benefit from the benefit of Philippine Blooming Mills and not for the benefit of the conjugal
loan facility or services to be rendered to the business or profession of the husband. partnership of petitioners-appellees. Philippine Blooming Mills has a personality
It is immaterial, if in the end, his business or profession fails or does not succeed. distinct and separate from the family of petitioners-appellees this despite the fact
Simply stated, where the husband contracts obligations on behalf of the family that the members of the said family happened to be stockholders of said corporate
business, the law presumes, and rightly so, that such obligation will redound to the entity.
benefit of the conjugal partnership.
x x x x x x x x x
(B) On the other hand, if the money or services are given to another person or
entity, and the husband acted only as a surety or guarantor, that contract cannot, by . . . . The burden of proof that the debt was contracted for the benefit of the
itself, alone be categorized as falling within the context of "obligations for the conjugal partnership of gains, lies with the creditor-party litigant claiming as such. In
benefit of the conjugal partnership." The contract of loan or services is clearly for the the case at bar, respondent-appellant AIDC failed to prove that the debt was
benefit of the principal debtor and not for the surety or his family. No presumption contracted by appellee-husband, for the benefit of the conjugal partnership of gains.
can be inferred that, when a husband enters into a contract of surety or What is apparent from the facts of the case is that the judgment debt was
accommodation agreement, it is "for the benefit of the conjugal partnership." Proof contracted by or in the name of the Corporation Philippine Blooming Mills and
must be presented to establish benefit redounding to the conjugal partnership. appellee-husband only signed as surety thereof. The debt is clearly a corporate debt
and respondent-appellant's right of recourse against appellee-husband as surety is
Thus, the distinction between the Cobb-Perez case, and we add, that of the three only to the extent of his corporate stockholdings. It does not extend to the conjugal
other companion cases, on the one hand, and that of Ansaldo, Liberty Insurance and partnership of gains of the family of petitioners-appellees. . . . . . .17

Petitioners contend that no actual benefit need accrue to the conjugal partnership. But it could be argued, as the petitioner suggests, that even in such kind of contract
To support this contention, they cite Justice J.B.L. Reyes' authoritative opinion in the of accommodation, a benefit for the family may also result, when the guarantee is in
Luzon Surety Company case: favor of the husband's employer.

I concur in the result, but would like to make of record that, in my opinion, the In the case at bar, petitioner claims that the benefits the respondent family would
words "all debts and obligations contracted by the husband for the benefit of the reasonably anticipate were the following:
conjugal partnership" used in Article 161 of the Civil Code of the Philippines in
describing the charges and obligations for which the conjugal partnership is liable do (a) The employment of co-respondent Alfredo Ching would be prolonged and he
not require that actual profit or benefit must accrue to the conjugal partnership would be entitled to his monthly salary of P20,000.00 for an extended length of time
from the husband's transaction; but it suffices that the transaction should be one because of the loan he guaranteed;
that normally would produce such benefit for the partnership. This is the ratio
behind our ruling in Javier vs. Osmea, 34 Phil. 336, that obligations incurred by the (b) The shares of stock of the members of his family would appreciate if the PBM
husband in the practice of his profession are collectible from the conjugal could be rehabilitated through the loan obtained;
partnership.
(c) His prestige in the corporation would be enhanced and his career would be
The aforequoted concurring opinion agreed with the majority decision that the boosted should PBM survive because of the loan.
conjugal partnership should not be made liable for the surety agreement which was
clearly for the benefit of a third party. Such opinion merely registered an exception However, these are not the benefits contemplated by Article 161 of the Civil Code.
to what may be construed as a sweeping statement that in all cases actual profit or The benefits must be one directly resulting from the loan. It cannot merely be a by-
benefit must accrue to the conjugal partnership. The opinion merely made it clear product or a spin-off of the loan itself.
that no actual benefits to the family need be proved in some cases such as in the
Javier case. There, the husband was the principal obligor himself. Thus, said In all our decisions involving accommodation contracts of the husband, 18 we
transaction was found to be "one that would normally produce . . . benefit for the underscored the requirement that: "there must be the requisite showing . . . of
partnership." In the later case of G-Tractors, Inc., the husband was also the principal some advantage which clearly accrued to the welfare of the spouses" or "benefits to
obligor not merely the surety. This latter case, therefore, did not create any his family" or "that such obligations are productive of some benefit to the family."
precedent. It did not also supersede the Luzon Surety Company case, nor any of the Unfortunately, the petition did not present any proof to show: (a) Whether or not
previous accommodation contract cases, where this Court ruled that they were for the corporate existence of PBM was prolonged and for how many months or years;
the benefit of third parties. and/or (b) Whether or not the PBM was saved by the loan and its shares of stock
appreciated, if so, how much and how substantial was the holdings of the Ching . . . appellee-husband derives salaries, dividends benefits from Philippine Blooming
family. Mills (the debtor corporation), only because said husband is an employee of said
PBM. These salaries and benefits, are not the "benefits" contemplated by Articles
Such benefits (prospects of longer employment and probable increase in the value 121 and 122 of the Family Code. The "benefits" contemplated by the exception in
of stocks) might have been already apparent or could be anticipated at the time the Article 122 (Family Code) is that benefit derived directly from the use of the loan. In
accommodation agreement was entered into. But would those "benefits" qualify the the case at bar, the loan is a corporate loan extended to PBM and used by PBM
transaction as one of the "obligations . . . for the benefit of the conjugal itself, not by petitioner-appellee-husband or his family. The alleged benefit, if any,
partnership"? Are indirect and remote probable benefits, the ones referred to in continuously harped by respondents-appellants, are not only incidental but also
Article 161 of the Civil Code? The Court of Appeals in denying the motion for speculative. 19
reconsideration, disposed of these questions in the following manner:
We agree with the respondent court. Indeed, considering the odds involved in
No matter how one looks at it, the debt/credit respondents-appellants is purely a guaranteeing a large amount (P50,000,000.00) of loan, the probable prolongation of
corporate debt granted to PBM, with petitioner-appellee-husband merely signing as employment in PBM and increase in value of its stocks, would be too small to qualify
surety. While such petitioner-appellee-husband, as such surety, is solidarily liable the transaction as one "for the benefit" of the surety's family. Verily, no one could
with the principal debtor AIDC, such liability under the Civil Code provisions is say, with a degree of certainty, that the said contract is even "productive of some
specifically restricted by Article 122 (par. 1) of the Family Code, so that debts for benefits" to the conjugal partnership.
which the husband is liable may not be charged against conjugal partnership
properties. Article 122 of the Family Code is explicit "The payment of personal We likewise agree with the respondent court (and this view is not contested by the
debts contracted by the husband or the wife before or during the marriage shall not petitioners) that the provisions of the Family Code is applicable in this case. These
be charged to the conjugal partnership except insofar as they redounded to the provisions highlight the underlying concern of the law for the conservation of the
benefit of the family. conjugal partnership; for the husband's duty to protect and safeguard, if not
augment, not to dissipate it.
Respondents-appellants insist that the corporate debt in question falls under the
exception laid down in said Article 122 (par. one). We do not agree. The loan This is the underlying reason why the Family Code clarifies that the obligations
procured from respondent-appellant AIDC was for the sole advancement and entered into by one of the spouses must be those that redounded to the benefit of
benefit of Philippine Blooming Mills and not for the benefit of the conjugal the family and that the measure of the partnership's liability is to "the extent that
partnership of petitioners-appellees. the family is benefited."20

These are all in keeping with the spirit and intent of the other provisions of the Civil The fact that on several occasions the lending institutions did not require the
Code which prohibits any of the spouses to donate or convey gratuitously any part signature of the wife and the husband signed alone does not mean that being a
of the conjugal property. 21 Thus, when co-respondent Alfredo Ching entered into a surety became part of his profession. Neither could he be presumed to have acted
surety agreement he, from then on, definitely put in peril the conjugal property (in for the conjugal partnership.
this case, including the family home) and placed it in danger of being taken
gratuitously as in cases of donation. Article 121, paragraph 3, of the Family Code is emphatic that the payment of
personal debts contracted by the husband or the wife before or during the marriage
In the second assignment of error, the petitioner advances the view that acting as shall not be charged to the conjugal partnership except to the extent that they
surety is part of the business or profession of the respondent-husband. redounded to the benefit of the family.

This theory is new as it is novel. Here, the property in dispute also involves the family home. The loan is a corporate
loan not a personal one. Signing as a surety is certainly not an exercise of an industry
The respondent court correctly observed that: or profession nor an act of administration for the benefit of the family.

Signing as a surety is certainly not an exercise of an industry or profession, hence the On the basis of the facts, the rules, the law and equity, the assailed decision should
cited cases of Cobb-Perez vs. Lantin; Abella de Diaz vs. Erlanger & Galinger; G- be upheld as we now uphold it. This is, of course, without prejudice to petitioner's
Tractors, Inc. vs. CA do not apply in the instant case. Signing as a surety is not right to enforce the obligation in its favor against the PBM receiver in accordance
embarking in a business.22 with the rehabilitation program and payment schedule approved or to be approved
by the Securities & Exchange Commission.
We are likewise of the view that no matter how often an executive acted or was
persuaded to act, as a surety for his own employer, this should not be taken to mean WHEREFORE, the petition for review should be, as it is hereby, DENIED for lack of
that he had thereby embarked in the business of suretyship or guaranty. merit.

This is not to say, however, that we are unaware that executives are often asked to SO ORDERED.
stand as surety for their company's loan obligations. This is especially true if the
corporate officials have sufficient property of their own; otherwise, their spouses'
signatures are required in order to bind the conjugal partnerships.