Family Code Assignment No.
1|1
1. A.M. No. MTJ-96-1088 July 19, 1996
RODOLFO G. NAVARRO, complainant, vs.
JUDGE HERNANDO C. DOMAGTOY, respondent.
ROMERO, J.:p
The complainant in this administrative case is the Municipal Mayor of Dapa,
Surigao del Norte, Rodolfo G. Navarro. He has submitted evidence in
relation to two specific acts committed by respondent Municipal Circuit Trial
Court Judge Hernando Domagtoy, which, he contends, exhibits gross
misconduct as well as inefficiency in office and ignorance of the law.
First, on September 27, 1994, respondent judge solemnized the wedding
between Gaspar A. Tagadan and Arlyn F. Borga, despite the knowledge
that the groom is merely separated from his first wife.
Second, it is alleged that he performed a marriage ceremony between
Floriano Dador Sumaylo and Gemma G. del Rosario outside his court's
jurisdiction on October 27, 1994. Respondent judge holds office and has
jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos,
Surigao del Norte. The wedding was solemnized at the respondent judge's
residence in the municipality of Dapa, which does not fall within his
jurisdictional area of the municipalities of Sta. Monica and Burgos, located
some 40 to 45 kilometers away from the municipality of Dapa, Surigao del
Norte.
In his letter-comment to the office of the Court Administrator, respondent
judge avers that the office and name of the Municipal Mayor of Dapa have
been used by someone else, who, as the mayor's "lackey," is overly
concerned with his actuations both as judge and as a private person. The
same person had earlier filed Administrative Matter No 94-980-MTC, which
was dismissed for lack of merit on September 15, 1994, and Administrative
Matter No. OCA-IPI-95-16, "Antonio Adapon v. Judge Hernando C.
Domagtoy," which is still pending.
In relation to the charges against him, respondent judge seeks exculpation
from his act of having solemnized the marriage between Gaspar Tagadan,
a married man separated from his wife, and Arlyn F. Borga by stating that
he merely relied on the Affidavit issued by the Municipal Trial Judge of
Basey, Samar, confirming the fact that Mr. Tagadan and his first wife have
not seen each other for almost seven years. 1 With respect to the second
charge, he maintains that in solemnizing the marriage between Sumaylo
and del Rosario, he did not violate Article 7, paragraph 1 of the Family
Code which states that: "Marriage may be solemnized by: (1) Any
incumbent member of the judiciary within the court's jurisdiction;" and that
article 8 thereof applies to the case in question.
The complaint was not referred, as is usual, for investigation, since the
pleadings submitted were considered sufficient for a resolution of the
case. 2
Since the countercharges of sinister motives and fraud on the part of
complainant have not been sufficiently proven, they will not be dwelt upon.
The acts complained of and respondent judge's answer thereto will suffice
and can be objectively assessed by themselves to prove the latter's
malfeasance.
The certified true copy of the marriage contract between Gaspar Tagadan
and Arlyn Borga states that Tagadan's civil status is "separated." Despite
this declaration, the wedding ceremony was solemnized by respondent
judge. He presented in evidence a joint affidavit by Maurecio A. Labado, Sr.
and Eugenio Bullecer, subscribed and sworn to before Judge Demosthenes
C. Duquilla, Municipal Trial Judge of Basey, Samar. 3 The affidavit was not
issued by the latter judge, as claimed by respondent judge, but merely
acknowledged before him. In their affidavit, the affiants stated that they
knew Gaspar Tagadan to have been civilly married to Ida D. Pearanda in
September 1983; that after thirteen years of cohabitation and having
borne five children, Ida Pearanda left the conjugal dwelling in Valencia,
Bukidnon and that she has not returned nor been heard of for almost seven
years, thereby giving rise to the presumption that she is already dead.
In effect, Judge Domagtoy maintains that the aforementioned joint
affidavit is sufficient proof of Ida Pearanda's presumptive death, and
ample reason for him to proceed with the marriage ceremony. We do not
agree.
Article 41 of the Family Code expressly provides:
A marriage contracted by any person during the
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage,
 Family Code Assignment No. 1|2

the prior spouse had been absent for four consecutive (1) Any incumbent member of the judiciary within the
years and the spouse present had a well-founded belief court's jurisdiction;
that the absent spouse was already dead. In case of
disappearance where there is danger of death under the xxx xxx xxx (Emphasis supplied.)
circumstances set forth in the provisions of Articles 391 of
the Civil Code, an absence of only two years shall be Art. 8. The marriage shall be solemnized publicly in the
sufficient. chambers the judge or in open court, in the church, chapel
or temple, or in the office of the consul-general, consul or
For the purpose of contracting the subsequent marriage vice-consul, as the case may be, and not elsewhere, except
under the preceding paragraph, the spouse present must in cases of marriages contracted on the point of death or in
institute a summary proceeding as provided in this Code for remote places in accordance with Article 29 of this Code, or
the declaration of presumptive death of the absentee, where both parties request the solemnizing officer in
without prejudice to the effect of reappearance of the writing in which case the marriage may be solemnized at a
absent spouse. (Emphasis added.) house or place designated by them in a sworn statement to
that effect.
There is nothing ambiguous or difficult to comprehend in this provision. In
fact, the law is clear and simple. Even if the spouse present has a well- Respondent judge points to Article 8 and its exceptions as the justification
founded belief that the absent spouse was already dead, a summary for his having solemnized the marriage between Floriano Sumaylo and
proceeding for the declaration of presumptive death is necessary in order Gemma del Rosario outside of his court's jurisdiction. As the aforequoted
to contract a subsequent marriage, a mandatory requirement which has provision states, a marriage can be held outside of the judge's chambers or
been precisely incorporated into the Family Code to discourage subsequent courtroom only in the following instances: (1) at the point of death, (2) in
marriages where it is not proven that the previous marriage has been remote places in accordance with Article 29 or (3) upon request of both
dissolved or a missing spouse is factually or presumptively dead, in parties in writing in a sworn statement to this effect. There is no pretense
accordance with pertinent provisions of law. that either Sumaylo or del Rosario was at the point of death or in the
remote place. Moreover, the written request presented addressed to the
In the case at bar, Gaspar Tagadan did not institute a summary proceeding respondent judge was made by only one party, Gemma del Rosario. 4
for the declaration of his first wife's presumptive death. Absent this judicial
declaration, he remains married to Ida Pearanda. Whether wittingly or More importantly, the elementary principle underlying this provision is the
unwittingly, it was manifest error on the part of respondent judge to have authority of the solemnizing judge. Under Article 3, one of the formal
accepted the joint affidavit submitted by the groom. Such neglect or requisites of marriage is the "authority of the solemnizing officer." Under
ignorance of the law has resulted in a bigamous, and therefore void, Article 7, marriage may be solemnized by, among others, "any incumbent
marriage. Under Article 35 of the Family Code, " The following marriage member of the judiciary within the court's jurisdiction." Article 8, which is a
shall be void from the beginning: (4) Those bigamous . . . marriages not directory provision, refers only to the venue of the marriage ceremony and
falling under Article 41." does not alter or qualify the authority of the solemnizing officer as provided
in the preceding provision. Non-compliance herewith will not invalidate the
The second issue involves the solemnization of a marriage ceremony marriage.
outside the court's jurisdiction, covered by Articles 7 and 8 of the Family
Code, thus: A priest who is commissioned and allowed by his local ordinary to marry
the faithful, is authorized to do so only within the area of the diocese or
Art. 7. Marriage may be solemnized by : place allowed by his Bishop. An appellate court Justice or a Justice of this
Court has jurisdiction over the entire Philippines to solemnize marriages,
 Family Code Assignment No. 1|3

regardless of the venue, as long as the requisites of the law are complied therefore void, and the other lacked the necessary authority of respondent
with. However, judges who are appointed to specific jurisdictions, may judge, the Court adopts said recommendation. Respondent is advised to be
officiate in weddings only within said areas and not beyond. Where a judge more circumspect in applying the law and to cultivate a deeper
solemnizes a marriage outside his court's jurisdiction, there is a resultant understanding of the law.
irregularity in the formal requisite laid down in Article 3, which while it may
not affect the validity of the marriage, may subject the officiating official to IN VIEW OF THE FOREGOING, respondent Judge Hernando C. Domagtoy is
administrative liability. 5 hereby SUSPENDED for a period of six (6) months and given a STERN
WARNING that a repetition of the same or similar acts will be dealt with
Inasmuch as respondent judge's jurisdiction covers the municipalities of more severely.
Sta. Monica and Burgos, he was not clothed with authority to solemnize a
marriage in the municipality of Dapa, Surigao del Norte. By citing Article 8
and the exceptions therein as grounds for the exercise of his misplaced
authority, respondent judge again demonstrated a lack of understanding of
the basic principles of civil law.

Accordingly, the Court finds respondent to have acted in gross ignorance of

the law. The legal principles applicable in the cases brought to our
attention are elementary and uncomplicated, prompting us to conclude that
respondent's failure to apply them is due to a lack of comprehension of the
law.

The judiciary should be composed of persons who, if not experts, are at

least, proficient in the law they are sworn to apply, more than the ordinary
laymen. They should be skilled and competent in understanding and
applying the law. It is imperative that they be conversant with basic legal
principles like the ones involved in instant case. 6 It is not too much to
expect them to know and apply the law intelligently. 7 Otherwise, the
system of justice rests on a shaky foundation indeed, compounded by the
errors committed by those not learned in the law. While magistrates may
at times make mistakes in judgment, for which they are not penalized, the
respondent judge exhibited ignorance of elementary provisions of law, in
an area which has greatly prejudiced the status of married persons.

The marriage between Gaspar Tagadan and Arlyn Borga is considered

bigamous and void, there being a subsisting marriage between Gaspar
Tagadan and Ida Pearanda.

The Office of the Court Administrator recommends, in its Memorandum to

the Court, a six-month suspension and a stern warning that a repetition of
the same or similar acts will be dealt with more severely. Considering that
one of the marriages in question resulted in a bigamous union and

2. G.R. No. 138322 October 2, 2001
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs.
REDERICK A. RECIO, respondents.
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the national law of
the foreigner. However, the divorce decree and the governing personal law
of the alien spouse who obtained the divorce must be proven. Our courts
do not take judicial notice of foreign laws and judgment; hence, like any
other facts, both the divorce decree and the national law of the alien must
be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court,
seeking to nullify the January 7, 1999 Decision1 and the March 24, 1999
Order2 of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil
Case No. 3026-AF. The assailed Decision disposed as follows:
"WHEREFORE, this Court declares the marriage between Grace J.
Garcia and Rederick A. Recio solemnized on January 12, 1994 at
Cabanatuan City as dissolved and both parties can now remarry
under existing and applicable laws to any and/or both parties."3
The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian
citizen, in Malabon, Rizal, on March 1, 1987.4 They lived together as
husband and wife in Australia. On May 18, 1989,5 a decree of divorce,
purportedly dissolving the marriage, was issued by an Australian family
court.
On June 26, 1992, respondent became an Australian citizen, as shown by a
"Certificate of Australian Citizenship" issued by the Australian
government.6 Petitioner a Filipina and respondent were married on
January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan
Family Code Assignment No. 1|4
City.7 In their application for a marriage license, respondent was declared
as "single" and "Filipino."8
Starting October 22, 1995, petitioner and respondent lived separately
without prior judicial dissolution of their marriage. While the two were still
in Australia, their conjugal assets were divided on May 16, 1996, in
accordance with their Statutory Declarations secured in Australia.9
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of
Marriage10 in the court a quo, on the ground of bigamy respondent
allegedly had a prior subsisting marriage at the time he married her on
January 12, 1994. She claimed that she learned of respondent's marriage
to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had
revealed to petitioner his prior marriage andits subsequent
dissolution.11 He contended that his first marriage to an Australian citizen
had been validly dissolved by a divorce decree obtained in Australian in
1989;12 thus, he was legally capacitated to marry petitioner in
1994.1wphi1.nt
On July 7, 1998 or about five years after the couple's wedding and while
the suit for the declaration of nullity was pending respondent was able to
secure a divorce decree from a family court in Sydney, Australia because
the "marriage ha[d] irretrievably broken down."13
Respondent prayed in his Answer that the Complained be dismissed on the
ground that it stated no cause of action.14 The Office of the Solicitor
General agreed with respondent.15 The court marked and admitted the
documentary evidence of both parties.16 After they submitted their
respective memoranda, the case was submitted for resolution.17
Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the
divorce issued in Australia was valid and recognized in the Philippines. It
deemed the marriage ended, but not on the basis of any defect in an
essential element of the marriage; that is, respondent's alleged lack of
legal capacity to remarry. Rather, it based its Decision on the divorce
 Family Code Assignment No. 1|5

decree obtained by respondent. The Australian divorce had ended the The Petition raises five issues, but for purposes of this Decision, we shall
marriage; thus, there was no more martial union to nullify or annual. concentrate on two pivotal ones: (1) whether the divorce between
respondent and Editha Samson was proven, and (2) whether respondent
Hence, this Petition.18 was proven to be legally capacitated to marry petitioner. Because of our
ruling on these two, there is no more necessity to take up the rest.
Issues
The Court's Ruling
Petitioner submits the following issues for our consideration:
The Petition is partly meritorious.
"I
First Issue:
The trial court gravely erred in finding that the divorce decree
obtained in Australia by the respondent ipso facto terminated his Proving the Divorce Between Respondent and Editha Samson
first marriage to Editha Samson thereby capacitating him to
contract a second marriage with the petitioner. Petitioner assails the trial court's recognition of the divorce between
respondent and Editha Samson. Citing Adong v. Cheong Seng
"2 Gee,20 petitioner argues that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction only upon proof of
The failure of the respondent, who is now a naturalized Australian, the existence of (1) the foreign law allowing absolute divorce and (2) the
to present a certificate of legal capacity to marry constitutes alleged divorce decree itself. She adds that respondent miserably failed to
absence of a substantial requisite voiding the petitioner' marriage establish these elements.
to the respondent.
Petitioner adds that, based on the first paragraph of Article 26 of the
"3 Family Code, marriages solemnized abroad are governed by the law of the
place where they were celebrated (the lex loci celebrationist). In effect, the
The trial court seriously erred in the application of Art. 26 of the Code requires the presentation of the foreign law to show the conformity of
Family Code in this case. the marriage in question to the legal requirements of the place where the
marriage was performed.
"4
At the outset, we lay the following basic legal principles as the take-off
The trial court patently and grievously erred in disregarding Arts. points for our discussion. Philippine law does not provide for absolute
11, 13, 21, 35, 40, 52 and 53 of the Family Code as the applicable divorce; hence, our courts cannot grant it.21 A marriage between two
provisions in this case. Filipinos cannot be dissolved even by a divorce obtained abroad, because
of Articles 1522 and 1723 of the Civil Code.24 In mixed marriages involving a
"5 Filipino and a foreigner, Article 2625 of the Family Code allows the former to
contract a subsequent marriage in case the divorce is "validly obtained
The trial court gravely erred in pronouncing that the divorce abroad by the alien spouse capacitating him or her to remarry."26 A divorce
gravely erred in pronouncing that the divorce decree obtained by obtained abroad by a couple, who are both aliens, may be recognized in
the respondent in Australia ipso facto capacitated the parties to the Philippines, provided it is consistent with their respective national
remarry, without first securing a recognition of the judgment laws.27
granting the divorce decree before our courts."19

A comparison between marriage and divorce, as far as pleading and proof
are concerned, can be made. Van Dorn v. Romillo Jr. decrees that "aliens
may obtain divorces abroad, which may be recognized in the Philippines,
provided they are valid according to their national law."28 Therefore, before
a foreign divorce decree can be recognized by our courts, the party
pleading it must prove the divorce as a fact and demonstrate its conformity
to the foreign law allowing it.29 Presentation solely of the divorce decree is
insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence,
it must first comply with the registration requirements under Articles 11,
13 and 52 of the Family Code. These articles read as follows:
"ART. 11. Where a marriage license is required, each of the
contracting parties shall file separately a sworn application for such
license with the proper local civil registrar which shall specify the
following:
xxx xxx xxx
"(5) If previously married, how, when and where the previous
marriage was dissolved or annulled;
xxx xxx xxx
"ART. 13. In case either of the contracting parties has been
previously married, the applicant shall be required to furnish,
instead of the birth of baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse or
the judicial decree of annulment or declaration of nullity of his or
her previous marriage. x x x.
"ART. 52. The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the
spouses, and the delivery of the children's presumptive legitimes
shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect their persons."
Family Code Assignment No. 1|6
Respondent, on the other hand, argues that the Australian divorce decree
is a public document a written official act of an Australian family court.
Therefore, it requires no further proof of its authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given
presumptive evidentiary value, the document must first be presented and
admitted in evidence.30 A divorce obtained abroad is proven by the divorce
decree itself. Indeed the best evidence of a judgment is the judgment
itself.31 The decree purports to be a written act or record of an act of an
officially body or tribunal of a foreign country.32
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or
document may be proven as a public or official record of a foreign country
by either (1) an official publication or (2) a copy thereof attested 33 by the
officer having legal custody of the document. If the record is not kept in
the Philippines, such copy must be (a) accompanied by a certificate issued
by the proper diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office.34
The divorce decree between respondent and Editha Samson appears to be
an authentic one issued by an Australian family court.35 However,
appearance is not sufficient; compliance with the aforemetioned rules on
evidence must be demonstrated.
Fortunately for respondent's cause, when the divorce decree of May 18,
1989 was submitted in evidence, counsel for petitioner objected, not to its
admissibility, but only to the fact that it had not been registered in the
Local Civil Registry of Cabanatuan City.36 The trial court ruled that it was
admissible, subject to petitioner's qualification.37Hence, it was admitted in
evidence and accorded weight by the judge. Indeed, petitioner's failure to
object properly rendered the divorce decree admissible as a written act of
the Family Court of Sydney, Australia.38
Compliance with the quoted articles (11, 13 and 52) of the Family Code is
not necessary; respondent was no longer bound by Philippine personal laws
after he acquired Australian citizenship in 1992.39 Naturalization is the legal
act of adopting an alien and clothing him with the political and civil rights
belonging to a citizen.40 Naturalized citizens, freed from the protective
cloak of their former states, don the attires of their adoptive countries. By
becoming an Australian, respondent severed his allegiance to the
 Family Code Assignment No. 1|7

Philippines and the vinculum juris that had tied him to Philippine personal Respondent's contention is untenable. In its strict legal
laws. sense, divorce means the legal dissolution of a lawful union for a cause
arising after marriage. But divorces are of different types. The two basic
Burden of Proving Australian Law ones are (1) absolute divorce or a vinculo matrimonii and (2) limited
divorce or a mensa et thoro. The first kind terminates the marriage, while
Respondent contends that the burden to prove Australian divorce law falls the second suspends it and leaves the bond in full force. 45 There is no
upon petitioner, because she is the party challenging the validity of a showing in the case at bar which type of divorce was procured by
foreign judgment. He contends that petitioner was satisfied with the respondent.
original of the divorce decree and was cognizant of the marital laws of
Australia, because she had lived and worked in that country for quite a Respondent presented a decree nisi or an interlocutory decree a
long time. Besides, the Australian divorce law is allegedly known by conditional or provisional judgment of divorce. It is in effect the same as a
Philippine courts: thus, judges may take judicial notice of foreign laws in separation from bed and board, although an absolute divorce may follow
the exercise of sound discretion. after the lapse of the prescribed period during which no reconciliation is
effected.46
We are not persuaded. The burden of proof lies with "the party who alleges
the existence of a fact or thing necessary in the prosecution or defense of Even after the divorce becomes absolute, the court may under some
an action."41 In civil cases, plaintiffs have the burden of proving the foreign statutes and practices, still restrict remarriage. Under some other
material allegations of the complaint when those are denied by the answer; jurisdictions, remarriage may be limited by statute; thus, the guilty party
and defendants have the burden of proving the material allegations in their in a divorce which was granted on the ground of adultery may be
answer when they introduce new matters.42 Since the divorce was a prohibited from remarrying again. The court may allow a remarriage only
defense raised by respondent, the burden of proving the pertinent after proof of good behavior.47
Australian law validating it falls squarely upon him.
On its face, the herein Australian divorce decree contains a restriction that
It is well-settled in our jurisdiction that our courts cannot take judicial reads:
notice of foreign laws.43 Like any other facts, they must be alleged and
proved. Australian marital laws are not among those matters that judges "1. A party to a marriage who marries again before this decree
are supposed to know by reason of their judicial function.44 The power of becomes absolute (unless the other party has died) commits the
judicial notice must be exercised with caution, and every reasonable doubt offence of bigamy."48
upon the subject should be resolved in the negative.
This quotation bolsters our contention that the divorce obtained by
Second Issue: respondent may have been restricted. It did not absolutely establish his
legal capacity to remarry according to his national law. Hence, we find no
Respondent's Legal Capacity to Remarry basis for the ruling of the trial court, which erroneously assumed that the
Australian divorce ipso facto restored respondent's capacity to remarry
Petitioner contends that, in view of the insufficient proof of the divorce, despite the paucity of evidence on this matter.
respondent was legally incapacitated to marry her in 1994.
We also reject the claim of respondent that the divorce decree raises a
Hence, she concludes that their marriage was void ab initio. disputable presumption or presumptive evidence as to his civil status based
on Section 48, Rule 3949 of the Rules of Court, for the simple reason that
Respondent replies that the Australian divorce decree, which was validly no proof has been presented on the legal effects of the divorce decree
admitted in evidence, adequately established his legal capacity to marry obtained under Australian laws.
under Australian law.
 Family Code Assignment No. 1|8

Significance of the Certificate of Legal Capacity his status; or at the very least, to prove his legal capacity to contract the
second marriage.
Petitioner argues that the certificate of legal capacity required by Article 21
of the Family Code was not submitted together with the application for a Neither can we grant petitioner's prayer to declare her marriage to
marriage license. According to her, its absence is proof that respondent did respondent null and void on the ground of bigamy. After all, it may turn
not have legal capacity to remarry. out that under Australian law, he was really capacitated to marry petitioner
as a direct result of the divorce decree. Hence, we believe that the most
We clarify. To repeat, the legal capacity to contract marriage is determined judicious course is to remand this case to the trial court to receive
by the national law of the party concerned. The certificate mentioned in evidence, if any, which show petitioner's legal capacity to marry petitioner.
Article 21 of the Family Code would have been sufficient to establish the Failing in that, then the court a quo may declare a nullity of the parties'
legal capacity of respondent, had he duly presented it in court. A duly marriage on the ground of bigamy, there being already in evidence two
authenticated and admitted certificate is prima facie evidence of legal existing marriage certificates, which were both obtained in the Philippines,
capacity to marry on the part of the alien applicant for a marriage one in Malabon, Metro Manila dated March 1, 1987 and the other, in
license.50 Cabanatuan City dated January 12, 1994.

As it is, however, there is absolutely no evidence that proves respondent's WHEREFORE, in the interest of orderly procedure and substantial justice,
legal capacity to marry petitioner. A review of the records before this Court we REMAND the case to the court a quo for the purpose of receiving
shows that only the following exhibits were presented before the lower evidence which conclusively show respondent's legal capacity to marry
court: (1) for petitioner: (a) Exhibit "A" Complaint;51 (b) Exhibit "B" petitioner; and failing in that, of declaring the parties' marriage void on the
Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and ground of bigamy, as above discussed. No costs.
Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva
Ecija;52(c) Exhibit "C" Certificate of Marriage Between Rederick A. Recio SO ORDERED.
(Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon,
Metro Manila;53 (d) Exhibit "D" Office of the City Registrar of Cabanatuan
City Certification that no information of annulment between Rederick A.
Recto and Editha D. Samson was in its records;54 and (e) Exhibit "E"
Certificate of Australian Citizenship of Rederick A. Recto; 55 (2) for
respondent: (Exhibit "1" Amended Answer;56 (b) Exhibit "S" Family Law
Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of
Australia;57 (c) Exhibit "3" Certificate of Australian Citizenship of Rederick
A. Recto;58 (d) Exhibit "4" Decree Nisi of Dissolution of Marriage in the
Family Court of Australia Certificate;59 and Exhibit "5" Statutory
Declaration of the Legal Separation Between Rederick A. Recto and Grace
J. Garcia Recio since October 22, 1995.60

Based on the above records, we cannot conclude that respondent, who was
then a naturalized Australian citizen, was legally capacitated to marry
petitioner on January 12, 1994. We agree with petitioner's contention that
the court a quo erred in finding that the divorce decree ipso facto clothed
respondent with the legal capacity to remarry without requiring him to
adduce sufficient evidence to show the Australian personal law governing
 Family Code Assignment No. 1|9

3. G.R. No. 133778 March 14, 2000 (3) Whether or not plaintiffs are estopped from assailing the
validity of the second marriage after it was dissolved due to their
ENGRACE NIAL for Herself and as Guardian ad Litem of the minors father's death. 1
BABYLINE NIAL, INGRID NIAL, ARCHIE NIAL & PEPITO NIAL,
JR., petitioners, Thus, the lower court ruled that petitioners should have filed the action to
vs. declare null and void their father's marriage to respondent before his
NORMA BAYADOG, respondent. death, applying by analogy Article 47 of the Family Code which enumerates
the time and the persons who could initiate an action for annulment of
YNARES-SANTIAGO, J.: marriage. 2 Hence, this petition for review with this Court grounded on a
pure question of law.
May the heirs of a deceased person file a petition for the declaration of
nullity of his marriage after his death? This petition was originally dismissed for non-compliance with Section 11,
Rule 13 of the 1997 Rules of Civil Procedure, and because "the verification
Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out failed to state the basis of petitioner's averment that the allegations in the
of their marriage were born herein petitioners. Teodulfa was shot by Pepito petition are "true and correct"." It was thus treated as an unsigned
resulting in her death on April 24, 1985. One year and 8 months thereafter pleading which produces no legal effect under Section 3, Rule 7, of the
or on December 11, 1986, Pepito and respondent Norma Badayog got 1997 Rules. 3 However, upon motion of petitioners, this Court reconsidered
married without any marriage license. In lieu thereof, Pepito and Norma the dismissal and reinstated the petition for review. 4
executed an affidavit dated December 11, 1986 stating that they had lived
together as husband and wife for at least five years and were thus exempt The two marriages involved herein having been solemnized prior to the
from securing a marriage license. On February 19, 1997, Pepito died in a effectivity of the Family Code (FC), the applicable law to determine their
car accident. After their father's death, petitioners filed a petition for validity is the Civil Code which was the law in effect at the time of their
declaration of nullity of the marriage of Pepito to Norma alleging that the celebration. 5 A valid marriage license is a requisite of marriage under
said marriage was void for lack of a marriage license. The case was filed Article 53 of the Civil Code, 6 the absence of which renders the
under the assumption that the validity or invalidity of the second marriage marriage void ab initio pursuant to Article 80(3) 7 in relation to Article
would affect petitioner's successional rights. Norma filed a motion to 58. 8 The requirement and issuance of marriage license is the State's
dismiss on the ground that petitioners have no cause of action since they demonstration of its involvement and participation in every marriage, in
are not among the persons who could file an action for "annulment of the maintenance of which the general public is interested. 9 This interest
marriage" under Article 47 of the Family Code. proceeds from the constitutional mandate that the State recognizes the
sanctity of family life and of affording protection to the family as a basic
Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, "autonomous social institution." 10 Specifically, the Constitution considers
Branch 59, dismissed the petition after finding that the Family Code is marriage as an "inviolable social institution," and is the foundation of
"rather silent, obscure, insufficient" to resolve the following issues: family life which shall be protected by the State. 11 This is why the Family
Code considers marriage as "a special contract of permanent union" 12 and
(1) Whether or not plaintiffs have a cause of action against case law considers it "not just an adventure but a lifetime commitment." 13
defendant in asking for the declaration of the nullity of marriage of
their deceased father, Pepito G. Nial, with her specially so when at However, there are several instances recognized by the Civil Code wherein
the time of the filing of this instant suit, their father Pepito G. Nial a marriage license is dispensed with, one of which is that provided in
is already dead; Article 76, 14 referring to the marriage of a man and a woman who have
lived together and exclusively with each other as husband and wife for a
(2) Whether or not the second marriage of plaintiffs' deceased continuous and unbroken period of at least five years before the marriage.
father with defendant is null and void ab initio;

The rationale why no license is required in such case is to avoid exposing
the parties to humiliation, shame and embarrassment concomitant with the
scandalous cohabitation of persons outside a valid marriage due to the
publication of every applicant's name for a marriage license. The publicity
attending the marriage license may discourage such persons from
legitimizing their status. 15 To preserve peace in the family, avoid the
peeping and suspicious eye of public exposure and contain the source of
gossip arising from the publication of their names, the law deemed it wise
to preserve their privacy and exempt them from that requirement.
There is no dispute that the marriage of petitioners' father to respondent
Norma was celebrated without any marriage license. In lieu thereof, they
executed an affidavit stating that "they have attained the age of majority,
and, being unmarried, have lived together as husband and wife for at least
five years, and that we now desire to marry each other." 16 The only issue
that needs to be resolved pertains to what nature of cohabitation is
contemplated under Article 76 of the Civil Code to warrant the counting of
the five year period in order to exempt the future spouses from securing a
marriage license. Should it be a cohabitation wherein both parties are
capacitated to marry each other during the entire five-year continuous
period or should it be a cohabitation wherein both parties have lived
together and exclusively with each other as husband and wife during the
entire five-year continuous period regardless of whether there is a legal
impediment to their being lawfully married, which impediment may have This is
either disappeared or intervened sometime during the cohabitation period?
Working on the assumption that Pepito and Norma have lived together as
husband and wife for five years without the benefit of marriage, that five-
year period should be computed on the basis of a cohabitation as "husband
and wife" where the only missing factor is the special contract of marriage
to validate the union. In other words, the five-year common-law
cohabitation period, which is counted back from the date of celebration of
marriage, should be a period of legal union had it not been for the absence
of the marriage. This 5-year period should be the years immediately before
the day of the marriage and it should be a period of cohabitation
characterized by exclusivity meaning no third party was involved at
anytime within the 5 years and continuity that is unbroken. Otherwise, if
that continuous 5-year cohabitation is computed without any distinction as
to whether the parties were capacitated to marry each other during the
entire five years, then the law would be sanctioning immorality and
encouraging parties to have common law relationships and placing them on
Family Code Assignment No. 1|10
the same footing with those who lived faithfully with their spouse. Marriage
being a special relationship must be respected as such and its
requirements must be strictly observed. The presumption that a man and a
woman deporting themselves as husband and wife is based on the
approximation of the requirements of the law. The parties should not be
afforded any excuse to not comply with every single requirement and later
use the same missing element as a pre-conceived escape ground to nullify
their marriage. There should be no exemption from securing a marriage
license unless the circumstances clearly fall within the ambit of the
exception. It should be noted that a license is required in order to notify
the public that two persons are about to be united in matrimony and that
anyone who is aware or has knowledge of any impediment to the union of
the two shall make it known to the local civil registrar.17 The Civil Code
provides:
Art. 63: . . . This notice shall request all persons having knowledge
of any impediment to the marriage to advice the local civil registrar
thereof. . . .
Art. 64: Upon being advised of any alleged impediment to the
marriage, the local civil registrar shall forthwith make an
investigation, examining persons under oath. . . .
reiterated in the Family Code thus:
Art. 17 provides in part: . . . This notice shall request all persons
having knowledge of any impediment to the marriage to advise the
local civil registrar thereof. . . .
Art. 18 reads in part: . . . In case of any impediment known to the
local civil registrar or brought to his attention, he shall note down
the particulars thereof and his findings thereon in the application
for a marriage license. . . .
This is the same reason why our civil laws, past or present, absolutely
prohibited the concurrence of multiple marriages by the same person
during the same period. Thus, any marriage subsequently contracted
during the lifetime of the first spouse shall be illegal and void, 18 subject
only to the exception in cases of absence or where the prior marriage was
dissolved or annulled. The Revised Penal Code complements the civil law in
that the contracting of two or more marriages and the having of
 Family Code Assignment No. 1|11

extramarital affairs are considered felonies, i.e., bigamy and concubinage can never be ratified. A voidable marriage cannot be assailed collaterally
and adultery. 19 The law sanctions monogamy. except in a direct proceeding while a void marriage can be attacked
collaterally. Consequently, void marriages can be questioned even after the
In this case, at the time of Pepito and respondent's marriage, it cannot be death of either party but voidable marriages can be assailed only during
said that they have lived with each other as husband and wife for at least the lifetime of the parties and not after death of either, in which case the
five years prior to their wedding day. From the time Pepito's first marriage parties and their offspring will be left as if the marriage had been perfectly
was dissolved to the time of his marriage with respondent, only about valid. 22 That is why the action or defense for nullity is imprescriptible,
twenty months had elapsed. Even assuming that Pepito and his first wife unlike voidable marriages where the action prescribes. Only the parties to
had separated in fact, and thereafter both Pepito and respondent had a voidable marriage can assail it but any proper interested party may
started living with each other that has already lasted for five years, the fact attack a void marriage. Void marriages have no legal effects except those
remains that their five-year period cohabitation was not the cohabitation declared by law concerning the properties of the alleged spouses, regarding
contemplated by law. It should be in the nature of a perfect union that is co-ownership or ownership through actual joint contribution, 23 and its
valid under the law but rendered imperfect only by the absence of the effect on the children born to such void marriages as provided in Article 50
marriage contract. Pepito had a subsisting marriage at the time when he in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the
started cohabiting with respondent. It is immaterial that when they lived Family Code. On the contrary, the property regime governing voidable
with each other, Pepito had already been separated in fact from his lawful marriages is generally conjugal partnership and the children conceived
spouse. The subsistence of the marriage even where there was actual before its annulment are legitimate.
severance of the filial companionship between the spouses cannot make
any cohabitation by either spouse with any third party as being one as Contrary to the trial court's ruling, the death of petitioner's father
"husband and wife". extinguished the alleged marital bond between him and respondent. The
conclusion is erroneous and proceeds from a wrong premise that there was
Having determined that the second marriage involved in this case is not a marriage bond that was dissolved between the two. It should be noted
covered by the exception to the requirement of a marriage license, it is that their marriage was void hence it is deemed as if it never existed at all
void ab initio because of the absence of such element. and the death of either extinguished nothing.

The next issue to be resolved is: do petitioners have the personality to file Jurisprudence under the Civil Code states that no judicial decree is
a petition to declare their father's marriage void after his death? necessary in order to establish the nullity of a marriage. 24 "A void
marriage does not require a judicial decree to restore the parties to their
Contrary to respondent judge's ruling, Article 47 of the Family original rights or to make the marriage void but though no sentence of
Code 20 cannot be applied even by analogy to petitions for declaration of avoidance be absolutely necessary, yet as well for the sake of good order
nullity of marriage. The second ground for annulment of marriage relied of society as for the peace of mind of all concerned, it is expedient that the
upon by the trial court, which allows "the sane spouse" to file an nullity of the marriage should be ascertained and declared by the decree of
annulment suit "at anytime before the death of either party" is a court of competent jurisdiction." 25 "Under ordinary circumstances, the
inapplicable. Article 47 pertains to the grounds, periods and persons who effect of a void marriage, so far as concerns the conferring of legal rights
can file an annulment suit, not a suit for declaration of nullity of marriage. upon the parties, is as though no marriage had ever taken place. And
The Code is silent as to who can file a petition to declare the nullity of a therefore, being good for no legal purpose, its invalidity can be maintained
marriage. Voidable and void marriages are not identical. A marriage that is in any proceeding in which the fact of marriage may be material, either
annulable is valid until otherwise declared by the court; whereas a direct or collateral, in any civil court between any parties at any time,
marriage that is void ab initio is considered as having never to have taken whether before or after the death of either or both the husband and the
place21 and cannot be the source of rights. The first can be generally wife, and upon mere proof of the facts rendering such marriage void, it will
ratified or confirmed by free cohabitation or prescription while the other be disregarded or treated as non-existent by the courts." It is not like a
 Family Code Assignment No. 1|12

voidable marriage which cannot be collaterally attacked except in direct

proceeding instituted during the lifetime of the parties so that on the death
of either, the marriage cannot be impeached, and is made good ab
initio. 26 But Article 40 of the Family Code expressly provides that there
must be a judicial declaration of the nullity of a previous marriage, though
void, before a party can enter into a second marriage 27 and such absolute
nullity can be based only on a final judgment to that effect. 28 For the same
reason, the law makes either the action or defense for the declaration of
absolute nullity of marriage imprescriptible. 29 Corollarily, if the death of
either party would extinguish the cause of action or the ground for
defense, then the same cannot be considered imprescriptible.

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

necessary to declare a marriage an absolute nullity.1wphi1 For other
purposes, such as but not limited to determination of heirship, legitimacy
or illegitimacy of a child, settlement of estate, dissolution of property
regime, or a criminal case for that matter, the court may pass upon the
validity of marriage even in a suit not directly instituted to question the
same so long as it is essential to the determination of the case. This is
without prejudice to any issue that may arise in the case. When such need
arises, a final judgment of declaration of nullity is necessary even if the
purpose is other than to remarry. The clause "on the basis of a final
judgment declaring such previous marriage void" in Article 40 of the Family
Code connotes that such final judgment need not be obtained only for
purpose of remarriage.

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

Trial Court, Toledo City, Cebu, Branch 59, dismissing Civil Case No. T-639,
is REVERSED and SET ASIDE. The said case is ordered
REINSTATED.1wphi1.nt

SO ORDERED.
 Family Code Assignment No. 1|13

4. A.M. No. MTJ-00-1329 March 8, 2001 On 25 October 2000, this Court required the parties to manifest whether
(Formerly A.M. No. OCA IPI No. 99-706-MTJ) they were willing to submit the case for resolution on the basis of the
pleadings thus filed. Complainant answered in the affirmative.
HERMINIA BORJA-MANZANO, petitioner, vs.
JUDGE ROQUE R. SANCHEZ, MTC, Infanta, Pangasinan, respondent. For his part, respondent Judge filed a Manifestation reiterating his plea for
the dismissal of the complaint and setting aside his earlier Comment. He
RESOLUTION therein invites the attention of the Court to two separate affidavits 5 of the
late Manzano and of Payao, which were allegedly unearthed by a member
DAVIDE, JR., C.J.: of his staff upon his instruction. In those affidavits, both David Manzano
and Luzviminda Payao expressly stated that they were married to Herminia
The solemnization of a marriage between two contracting parties who were Borja and Domingo Relos, respectively; and that since their respective
both bound by a prior existing marriage is the bone of contention of the marriages had been marked by constant quarrels, they had both left their
instant complaint against respondent Judge Roque R. Sanchez, Municipal families and had never cohabited or communicated with their spouses
Trial Court, Infanta, Pangasinan. For this act, complainant Herminia Borja- anymore. Respondent Judge alleges that on the basis of those affidavits,
Manzano charges respondent Judge with gross ignorance of the law in a he agreed to solemnize the marriage in question in accordance with Article
sworn Complaint-Affidavit filed with the Office of the Court Administrator 34 of the Family Code.
on 12 May 1999.
We find merit in the complaint.
Complainant avers that she was the lawful wife of the late David Manzano,
having been married to him on 21 May 1966 in San Gabriel Archangel Article 34 of the Family Code provides:
Parish, Araneta Avenue, Caloocan City.1 Four children were born out of that
marriage.2 On 22 March 1993, however, her husband contracted another No license shall be necessary for the marriage of a man and a
marriage with one Luzviminda Payao before respondent Judge.3 When woman who have lived together as husband and wife for at least
respondent Judge solemnized said marriage, he knew or ought to know five years and without any legal impediment to marry each other.
that the same was void and bigamous, as the marriage contract clearly The contracting parties shall state the foregoing facts in an affidavit
stated that both contracting parties were "separated." before any person authorized by law to administer oaths. The
solemnizing officer shall also state under oath that he ascertained
Respondent Judge, on the other hand, claims in his Comment that when he the qualifications of the contracting parties and found no legal
officiated the marriage between Manzano and Payao he did not know that impediment to the marriage.
Manzano was legally married. What he knew was that the two had been
living together as husband and wife for seven years already without the For this provision on legal ratification of marital cohabitation to apply, the
benefit of marriage, as manifested in their joint affidavit.4 According to following requisites must concur:
him, had he known that the late Manzano was married, he would have
advised the latter not to marry again; otherwise, he (Manzano) could be 1. The man and woman must have been living together as husband
charged with bigamy. He then prayed that the complaint be dismissed for and wife for at least five years before the marriage;
lack of merit and for being designed merely to harass him.
2. The parties must have no legal impediment to marry each other;
After an evaluation of the Complaint and the Comment, the Court
Administrator recommended that respondent Judge be found guilty of 3. The fact of absence of legal impediment between the parties
gross ignorance of the law and be ordered to pay a fine of P2,000, with a must be present at the time of marriage;
warning that a repetition of the same or similar act would be dealt with
more severely.
 Family Code Assignment No. 1|14

4. The parties must execute an affidavit stating that they have Clearly, respondent Judge demonstrated gross ignorance of the law when
lived together for at least five years [and are without legal he solemnized a void and bigamous marriage. The maxim "ignorance of the
impediment to marry each other]; and law excuses no one" has special application to judges, 8 who, under Rule
1.01 of the Code of Judicial Conduct, should be the embodiment of
5. The solemnizing officer must execute a sworn statement that he competence, integrity, and independence. It is highly imperative that
had ascertained the qualifications of the parties and that he had judges be conversant with the law and basic legal principles. 9 And when
found no legal impediment to their marriage.6 the law transgressed is simple and elementary, the failure to know it
constitutes gross ignorance of the law.10
Not all of these requirements are present in the case at bar. It is significant
to note that in their separate affidavits executed on 22 March 1993 and ACCORDINGLY, the recommendation of the Court Administrator is hereby
sworn to before respondent Judge himself, David Manzano and Luzviminda ADOPTED, with the MODIFICATION that the amount of fine to be imposed
Payao expressly stated the fact of their prior existing marriage. Also, in upon respondent Judge Roque Sanchez is increased to P20,000.
their marriage contract, it was indicated that both were "separated."
SO ORDERED.
Respondent Judge knew or ought to know that a subsisting previous
marriage is a diriment impediment, which would make the subsequent
marriage null and void.7 In fact, in his Comment, he stated that had he
known that the late Manzano was married he would have discouraged him
from contracting another marriage. And respondent Judge cannot deny
knowledge of Manzanos and Payaos subsisting previous marriage, as the
same was clearly stated in their separate affidavits which were subscribed
and sworn to before him.

The fact that Manzano and Payao had been living apart from their
respective spouses for a long time already is immaterial. Article 63(1) of
the Family Code allows spouses who have obtained a decree of legal
separation to live separately from each other, but in such a case the
marriage bonds are not severed. Elsewise stated, legal separation does not
dissolve the marriage tie, much less authorize the parties to remarry. This
holds true all the more when the separation is merely de facto, as in the
case at bar.

Neither can respondent Judge take refuge on the Joint Affidavit of David
Manzano and Luzviminda Payao stating that they had been cohabiting as
husband and wife for seven years. Just like separation, free and voluntary
cohabitation with another person for at least five years does not severe the
tie of a subsisting previous marriage. Marital cohabitation for a long period
of time between two individuals who are legally capacitated to marry each
other is merely a ground for exemption from marriage license. It could not
serve as a justification for respondent Judge to solemnize a subsequent
marriage vitiated by the impediment of a prior existing marriage.

5. G.R. No. 175581 March 28, 2008
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
JOSE A. DAYOT, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179474
FELISA TECSON-DAYOT, Petitioner,
vs.
JOSE A. DAYOT, Respondent.
DECISION
CHICO-NAZARIO, J.:
Before us are two consolidated petitions. G.R. No. 175581 and G.R. No.
179474 are Petitions for Review under Rule 45 of the Rules of Court filed
by the Republic of the Philippines and Felisa Tecson-Dayot (Felisa),
respectively, both challenging the Amended Decision1 of the Court of
Appeals, dated 7 November 2006, in CA-G.R. CV No. 68759, which
declared the marriage between Jose Dayot (Jose) and Felisa void ab initio.
The records disclose that on 24 November 1986, Jose and Felisa were
married at the Pasay City Hall. The marriage was solemnized by Rev.
Tomas V. Atienza.2 In lieu of a marriage license, Jose and Felisa executed a
sworn affidavit,3 also dated 24 November 1986, attesting that both of them
had attained the age of maturity, and that being unmarried, they had lived
together as husband and wife for at least five years.
On 7 July 1993, Jose filed a Complaint4 for Annulment and/or Declaration
of Nullity of Marriage with the Regional Trial Court (RTC), Bian, Laguna,
Branch 25. He contended that his marriage with Felisa was a sham, as no
marriage ceremony was celebrated between the parties; that he did not
execute the sworn affidavit stating that he and Felisa had lived as husband
and wife for at least five years; and that his consent to the marriage was
secured through fraud.
In his Complaint, Jose gave his version of the events which led to his filing
of the same. According to Jose, he was introduced to Felisa in 1986.
Family Code Assignment No. 1|15
Immediately thereafter, he came to live as a boarder in Felisas house, the
latter being his landlady. Some three weeks later, Felisa requested him to
accompany her to the Pasay City Hall, ostensibly so she could claim a
package sent to her by her brother from Saudi Arabia. At the Pasay City
Hall, upon a pre-arranged signal from Felisa, a man bearing three folded
pieces of paper approached them. They were told that Jose needed to sign
the papers so that the package could be released to Felisa. He initially
refused to do so. However, Felisa cajoled him, and told him that his refusal
could get both of them killed by her brother who had learned about their
relationship. Reluctantly, he signed the pieces of paper, and gave them to
the man who immediately left. It was in February 1987 when he discovered
that he had contracted marriage with Felisa. He alleged that he saw a piece
of paper lying on top of the table at the sala of Felisas house. When he
perused the same, he discovered that it was a copy of his marriage
contract with Felisa. When he confronted Felisa, the latter feigned
ignorance.
In opposing the Complaint, Felisa denied Joses allegations and defended
the validity of their marriage. She declared that they had maintained their
relationship as man and wife absent the legality of marriage in the early
part of 1980, but that she had deferred contracting marriage with him on
account of their age difference.5 In her pre-trial brief, Felisa expounded
that while her marriage to Jose was subsisting, the latter contracted
marriage with a certain Rufina Pascual (Rufina) on 31 August 1990. On 3
June 1993, Felisa filed an action for bigamy against Jose. Subsequently,
she filed an administrative complaint against Jose with the Office of the
Ombudsman, since Jose and Rufina were both employees of the National
Statistics and Coordinating Board.6 The Ombudsman found Jose
administratively liable for disgraceful and immoral conduct, and meted out
to him the penalty of suspension from service for one year without
emolument.7
On 26 July 2000, the RTC rendered a Decision8 dismissing the Complaint.
It disposed:
WHEREFORE, after a careful evaluation and analysis of the evidence
presented by both parties, this Court finds and so holds that the
[C]omplaint does not deserve a favorable consideration. Accordingly, the
above-entitled case is hereby ordered DISMISSED with costs against
[Jose].9
 Family Code Assignment No. 1|16

The RTC ruled that from the testimonies and evidence presented, the Moreover, on the matter of fraud, the RTC ruled that Joses action had
marriage celebrated between Jose and Felisa on 24 November 1986 was prescribed. It cited Article 8711 of the New Civil Code which requires that
valid. It dismissed Joses version of the story as implausible, and the action for annulment of marriage must be commenced by the injured
rationalized that: party within four years after the discovery of the fraud. Thus:

Any person in his right frame of mind would easily suspect any attempt to
make him or her sign a blank sheet of paper. [Jose] could have already
detected that something was amiss, unusual, as they were at Pasay City
Hall to get a package for [Felisa] but it [was] he who was made to sign the
pieces of paper for the release of the said package. Another indirect
suggestion that could have put him on guard was the fact that, by his own
admission, [Felisa] told him that her brother would kill them if he will not
sign the papers. And yet it took him, more or less, three months to
"discover" that the pieces of paper that he signed was [sic] purportedly the
marriage contract. [Jose] does not seem to be that ignorant, as perceived
by this Court, to be "taken in for a ride" by [Felisa.]
That granting even for the sake of argument that his consent was obtained
by [Felisa] through fraud, trickery and machinations, he could have filed an
annulment or declaration of nullity of marriage at the earliest possible
opportunity, the time when he discovered the alleged sham and false
marriage contract. [Jose] did not take any action to void the marriage at
the earliest instance. x x x.12
Undeterred, Jose filed an appeal from the foregoing RTC Decision to the
Court of Appeals. In a Decision dated 11 August 2005, the Court of Appeals
found the appeal to be without merit. The dispositive portion of the
appellate courts Decision reads:

[Joses] claim that he did not consent to the marriage was belied by the WHEREFORE, the Decision appealed from is AFFIRMED.13
fact that he acknowledged Felisa Tecson as his wife when he wrote
[Felisas] name in the duly notarized statement of assets and liabilities he The Court of Appeals applied the Civil Code to the marriage between Jose
filled up on May 12, 1988, one year after he discovered the marriage and Felisa as it was solemnized prior to the effectivity of the Family Code.
contract he is now claiming to be sham and false. [Jose], again, in his The appellate court observed that the circumstances constituting fraud as a
company I.D., wrote the name of [Felisa] as the person to be contacted in ground for annulment of marriage under Article 8614 of the Civil Code did
case of emergency. This Court does not believe that the only reason why not exist in the marriage between the parties. Further, it ruled that the
her name was written in his company I.D. was because he was residing action for annulment of marriage on the ground of fraud was filed beyond
there then. This is just but a lame excuse because if he really considers her the prescriptive period provided by law. The Court of Appeals struck down
not his lawfully wedded wife, he would have written instead the name of Joses appeal in the following manner:
his sister.
Nonetheless, even if we consider that fraud or intimidation was employed
When [Joses] sister was put into the witness stand, under oath, she on Jose in giving his consent to the marriage, the action for the annulment
testified that she signed her name voluntarily as a witness to the marriage thereof had already prescribed. Article 87 (4) and (5) of the Civil Code
in the marriage certificate (T.S.N., page 25, November 29, 1996) and she provides that the action for annulment of marriage on the ground that the
further testified that the signature appearing over the name of Jose Dayot consent of a party was obtained by fraud, force or intimidation must be
was the signature of his [sic] brother that he voluntarily affixed in the commenced by said party within four (4) years after the discovery of the
marriage contract (page 26 of T.S.N. taken on November 29, 1996), and fraud and within four (4) years from the time the force or intimidation
when she was asked by the Honorable Court if indeed she believed that ceased. Inasmuch as the fraud was allegedly discovered by Jose in
Felisa Tecson was really chosen by her brother she answered yes. The February, 1987 then he had only until February, 1991 within which to file
testimony of his sister all the more belied his claim that his consent was an action for annulment of marriage. However, it was only on July 7, 1993
procured through fraud.10 that Jose filed the complaint for annulment of his marriage to Felisa.15
 Family Code Assignment No. 1|17

Likewise, the Court of Appeals did not accept Joses assertion that his Furnish a copy of this Amended Decision to the Local Civil Registrar of
marriage to Felisa was void ab initio for lack of a marriage license. It ruled Pasay City.19
that the marriage was solemnized under Article 76 16 of the Civil Code as
one of exceptional character, with the parties executing an affidavit of In its Amended Decision, the Court of Appeals relied on the ruling of this
marriage between man and woman who have lived together as husband Court in Nial v. Bayadog,20 and reasoned that:
and wife for at least five years. The Court of Appeals concluded that the
falsity in the affidavit to the effect that Jose and Felisa had lived together In Nial v. Bayadog, where the contracting parties to a marriage
as husband and wife for the period required by Article 76 did not affect the solemnized without a marriage license on the basis of their affidavit that
validity of the marriage, seeing that the solemnizing officer was misled by they had attained the age of majority, that being unmarried, they had lived
the statements contained therein. In this manner, the Court of Appeals together for at least five (5) years and that they desired to marry each
gave credence to the good-faith reliance of the solemnizing officer over the other, the Supreme Court ruled as follows:
falsity of the affidavit. The appellate court further noted that on the dorsal
side of said affidavit of marriage, Rev. Tomas V. Atienza, the solemnizing "x x x In other words, the five-year common-law cohabitation period,
officer, stated that he took steps to ascertain the ages and other which is counted back from the date of celebration of marriage, should be a
qualifications of the contracting parties and found no legal impediment to period of legal union had it not been for the absence of the marriage. This
their marriage. Finally, the Court of Appeals dismissed Joses argument 5-year period should be the years immediately before the day of the
that neither he nor Felisa was a member of the sect to which Rev. Tomas marriage and it should be a period of cohabitation characterized by
V. Atienza belonged. According to the Court of Appeals, Article 56 17 of the exclusivity meaning no third party was involved at any time within the 5
Civil Code did not require that either one of the contracting parties to the years and continuity that is unbroken. Otherwise, if that continuous 5-
marriage must belong to the solemnizing officers church or religious sect. year cohabitation is computed without any distinction as to whether the
The prescription was established only in Article 7 18 of the Family Code parties were capacitated to marry each other during the entire five years,
which does not govern the parties marriage. then the law would be sanctioning immorality and encouraging parties to
have common law relationships and placing them on the same footing with
Differing with the ruling of the Court of Appeals, Jose filed a Motion for those who lived faithfully with their spouse. Marriage being a special
Reconsideration thereof.1avvphi1 His central opposition was that the relationship must be respected as such and its requirements must be
requisites for the proper application of the exemption from a marriage strictly observed. The presumption that a man and a woman deporting
license under Article 76 of the Civil Code were not fully attendant in the themselves as husband and wife is based on the approximation of the
case at bar. In particular, Jose cited the legal condition that the man and requirements of the law. The parties should not be afforded any excuse to
the woman must have been living together as husband and wife for at least not comply with every single requirement and later use the same missing
five years before the marriage. Essentially, he maintained that the affidavit element as a pre-conceived escape ground to nullify their marriage. There
of marital cohabitation executed by him and Felisa was false. should be no exemption from securing a marriage license unless the
circumstances clearly fall within the ambit of the exception. It should be
The Court of Appeals granted Joses Motion for Reconsideration and noted that a license is required in order to notify the public that two
reversed itself. Accordingly, it rendered an Amended Decision, dated 7 persons are about to be united in matrimony and that anyone who is aware
November 2006, the fallo of which reads: or has knowledge of any impediment to the union of the two shall make it
known to the local civil registrar.
WHEREFORE, the Decision dated August 11, 2005 is RECALLED and SET
ASIDE and another one entered declaring the marriage between Jose A. Article 80(3) of the Civil Code provides that a marriage solemnized without
Dayot and Felisa C. Tecson void ab initio. a marriage license, save marriages of exceptional character, shall be void
from the beginning. Inasmuch as the marriage between Jose and Felisa is

not covered by the exception to the requirement of a marriage license, it
is, therefore, void ab initio because of the absence of a marriage license.21
Felisa sought reconsideration of the Amended Decision, but to no avail. The
appellate court rendered a Resolution22 dated 10 May 2007, denying
Felisas motion.
Meanwhile, the Republic of the Philippines, through the Office of the
Solicitor General (OSG), filed a Petition for Review before this Court in G.R.
No. 175581, praying that the Court of Appeals Amended Decision dated 7
November 2006 be reversed and set aside for lack of merit, and that the
marriage between Jose and Felisa be declared valid and subsisting. Felisa
filed a separate Petition for Review, docketed as G.R. No. 179474, similarly
assailing the appellate courts Amended Decision. On 1 August 2007, this
Court resolved to consolidate the two Petitions in the interest of uniformity
of the Court rulings in similar cases brought before it for resolution.23
The Republic of the Philippines propounds the following arguments for the
allowance of its Petition, to wit:
I fact that the license was wrongfully obtained, so must a marriage not be
RESPONDENT FAILED TO OVERTHROW THE PRESUMPTION OF THE
VALIDITY OF HIS MARRIAGE TO FELISA.
II
RESPONDENT DID NOT COME TO THE COURT WITH CLEAN HANDS
AND SHOULD NOT BE ALLOWED TO PROFIT FROM HIS OWN
FRAUDULENT CONDUCT.
III
RESPONDENT IS ESTOPPED FROM ASSAILING THE LEGALITY OF
HIS MARRIAGE FOR LACK OF MARRIAGE LICEN[S]E.24
Correlative to the above, Felisa submits that the Court of Appeals
misapplied Nial.25 She differentiates the case at bar from Nial by
reasoning that one of the parties therein had an existing prior marriage, a
circumstance which does not obtain in her cohabitation with Jose. Finally,
Felisa adduces that Jose only sought the annulment of their marriage after
a criminal case for bigamy and an administrative case had been filed
Family Code Assignment No. 1|18
against him in order to avoid liability. Felisa surmises that the declaration
of nullity of their marriage would exonerate Jose from any liability.
For our resolution is the validity of the marriage between Jose and Felisa.
To reach a considered ruling on the issue, we shall jointly tackle the related
arguments vented by petitioners Republic of the Philippines and Felisa.
The Republic of the Philippines asserts that several circumstances give rise
to the presumption that a valid marriage exists between Jose and Felisa.
For her part, Felisa echoes the claim that any doubt should be resolved in
favor of the validity of the marriage by citing this Courts ruling in
Hernandez v. Court of Appeals.26 To buttress its assertion, the Republic
points to the affidavit executed by Jose and Felisa, dated 24 November
1986, attesting that they have lived together as husband and wife for at
least five years, which they used in lieu of a marriage license. It is the
Republics position that the falsity of the statements in the affidavit does
not affect the validity of the marriage, as the essential and formal
requisites were complied with; and the solemnizing officer was not required
to investigate as to whether the said affidavit was legally obtained. The
Republic opines that as a marriage under a license is not invalidated by the
invalidated by the fact that the parties incorporated a fabricated statement
in their affidavit that they cohabited as husband and wife for at least five
years. In addition, the Republic posits that the parties marriage contract
states that their marriage was solemnized under Article 76 of the Civil
Code. It also bears the signature of the parties and their witnesses, and
must be considered a primary evidence of marriage. To further fortify its
Petition, the Republic adduces the following documents: (1) Joses
notarized Statement of Assets and Liabilities, dated 12 May 1988 wherein
he wrote Felisas name as his wife; (2) Certification dated 25 July 1993
issued by the Barangay Chairman 192, Zone ZZ, District 24 of Pasay City,
attesting that Jose and Felisa had lived together as husband and wife in
said barangay; and (3) Joses company ID card, dated 2 May 1988,
indicating Felisas name as his wife.
The first assignment of error compels this Court to rule on the issue of the
effect of a false affidavit under Article 76 of the Civil Code. A survey of the
prevailing rules is in order.
It is beyond dispute that the marriage of Jose and Felisa was celebrated on
24 November 1986, prior to the effectivity of the Family Code. Accordingly,
 Family Code Assignment No. 1|19

the Civil Code governs their union. Article 53 of the Civil Code spells out
lived together as husband and wife for at least five years, desire to marry
the essential requisites of marriage as a contract: each other. The contracting parties shall state the foregoing facts in an
affidavit before any person authorized by law to administer oaths. The
ART. 53. No marriage shall be solemnized unless all these requisites are official, priest or minister who solemnized the marriage shall also state in
complied with: an affidavit that he took steps to ascertain the ages and other qualifications
of the contracting parties and that he found no legal impediment to the
(1) Legal capacity of the contracting parties; marriage.

(2) Their consent, freely given; The reason for the law,35 as espoused by the Code Commission, is that the
publicity attending a marriage license may discourage such persons who
(3) Authority of the person performing the marriage; and have lived in a state of cohabitation from legalizing their status.36

(4) A marriage license, except in a marriage of exceptional It is not contested herein that the marriage of Jose and Felisa was
character. (Emphasis ours.) performed without a marriage license. In lieu thereof, they executed an
affidavit declaring that "they have attained the age of maturity; that being
Article 5827 makes explicit that no marriage shall be solemnized without a unmarried, they have lived together as husband and wife for at least five
license first being issued by the local civil registrar of the municipality years; and that because of this union, they desire to marry each
where either contracting party habitually resides, save marriages of an other."37 One of the central issues in the Petition at bar is thus: whether
exceptional character authorized by the Civil Code, but not those under the falsity of an affidavit of marital cohabitation, where the parties have in
Article 75.28 Article 80(3)29 of the Civil Code makes it clear that a marriage truth fallen short of the minimum five-year requirement, effectively renders
performed without the corresponding marriage license is void, this being the marriage void ab initio for lack of a marriage license.
nothing more than the legitimate consequence flowing from the fact that
the license is the essence of the marriage contract.30 This is in stark We answer in the affirmative.
contrast to the old Marriage Law,31 whereby the absence of a marriage
license did not make the marriage void. The rationale for the compulsory Marriages of exceptional character are, doubtless, the exceptions to the
character of a marriage license under the Civil Code is that it is the rule on the indispensability of the formal requisite of a marriage license.
authority granted by the State to the contracting parties, after the proper Under the rules of statutory construction, exceptions, as a general rule,
government official has inquired into their capacity to contract marriage.32should be strictly38 but reasonably construed.39 They extend only so far as
their language fairly warrants, and all doubts should be resolved in favor of
Under the Civil Code, marriages of exceptional character are covered by the general provisions rather than the exception.40 Where a general rule is
Chapter 2, Title III, comprising Articles 72 to 79. To wit, these marriages established by statute with exceptions, the court will not curtail the former
are: (1) marriages in articulo mortis or at the point of death during peace or add to the latter by implication.41 For the exception in Article 76 to
or war, (2) marriages in remote places, (2) consular marriages,33 (3) apply, it is a sine qua non thereto that the man and the woman must have
ratification of marital cohabitation, (4) religious ratification of a civil attained the age of majority, and that, being unmarried, they have lived
marriage, (5) Mohammedan or pagan marriages, and (6) mixed together as husband and wife for at least five years.
marriages.34
A strict but reasonable construction of Article 76 leaves us with no other
The instant case pertains to a ratification of marital cohabitation under expediency but to read the law as it is plainly written. The exception of a
Article 76 of the Civil Code, which provides: marriage license under Article 76 applies only to those who have lived
together as husband and wife for at least five years and desire to marry
ART. 76. No marriage license shall be necessary when a man and a woman each other. The Civil Code, in no ambiguous terms, places a minimum
who have attained the age of majority and who, being unmarried, have
 Family Code Assignment No. 1|20

period requirement of five years of cohabitation. No other reading of the We cannot accept the insistence of the Republic that the falsity of the
law can be had, since the language of Article 76 is precise. The minimum statements in the parties affidavit will not affect the validity of marriage,
requisite of five years of cohabitation is an indispensability carved in the since all the essential and formal requisites were complied with. The
language of the law. For a marriage celebrated under Article 76 to be valid, argument deserves scant merit. Patently, it cannot be denied that the
this material fact cannot be dispensed with. It is embodied in the law not marriage between Jose and Felisa was celebrated without the formal
as a directory requirement, but as one that partakes of a mandatory requisite of a marriage license. Neither did Jose and Felisa meet the explicit
character. It is worthy to mention that Article 76 also prescribes that the legal requirement in Article 76, that they should have lived together as
contracting parties shall state the requisite facts42 in an affidavit before any husband and wife for at least five years, so as to be excepted from the
person authorized by law to administer oaths; and that the official, priest requirement of a marriage license.
or minister who solemnized the marriage shall also state in an affidavit that
he took steps to ascertain the ages and other qualifications of the Anent petitioners reliance on the presumption of marriage, this Court holds
contracting parties and that he found no legal impediment to the marriage. that the same finds no applicability to the case at bar. Essentially, when we
speak of a presumption of marriage, it is with reference to the prima facie
It is indubitably established that Jose and Felisa have not lived together for presumption that a man and a woman deporting themselves as husband
five years at the time they executed their sworn affidavit and contracted and wife have entered into a lawful contract of marriage.49 Restated more
marriage. The Republic admitted that Jose and Felisa started living explicitly, persons dwelling together in apparent matrimony are presumed,
together only in June 1986, or barely five months before the celebration of in the absence of any counter-presumption or evidence special to the case,
their marriage.43 The Court of Appeals also noted Felisas testimony that to be in fact married.50 The present case does not involve an apparent
Jose was introduced to her by her neighbor, Teresita Perwel, sometime in marriage to which the presumption still needs to be applied. There is no
February or March 1986 after the EDSA Revolution.44 The appellate court question that Jose and Felisa actually entered into a contract of marriage
also cited Felisas own testimony that it was only in June 1986 when Jose on 24 November 1986, hence, compelling Jose to institute a Complaint for
commenced to live in her house.45 Annulment and/or Declaration of Nullity of Marriage, which spawned the
instant consolidated Petitions.
Moreover, it is noteworthy that the question as to whether they satisfied
the minimum five-year requisite is factual in nature. A question of fact In the same vein, the declaration of the Civil Code 51 that every intendment
arises when there is a need to decide on the truth or falsehood of the of law or fact leans towards the validity of marriage will not salvage the
alleged facts.46Under Rule 45, factual findings are ordinarily not subject to parties marriage, and extricate them from the effect of a violation of the
this Courts review.47 It is already well-settled that: law. The marriage of Jose and Felisa was entered into without the requisite
marriage license or compliance with the stringent requirements of a
The general rule is that the findings of facts of the Court of Appeals are marriage under exceptional circumstance. The solemnization of a marriage
binding on this Court. A recognized exception to this rule is when the Court without prior license is a clear violation of the law and would lead or could
of Appeals and the trial court, or in this case the administrative body, make be used, at least, for the perpetration of fraud against innocent and unwary
contradictory findings. However, the exception does not apply in every parties, which was one of the evils that the law sought to prevent by
instance that the Court of Appeals and the trial court or administrative making a prior license a prerequisite for a valid marriage. 52 The protection
body disagree. The factual findings of the Court of Appeals remain of marriage as a sacred institution requires not just the defense of a true
conclusive on this Court if such findings are supported by the record or and genuine union but the exposure of an invalid one as well. 53 To permit a
based on substantial evidence.48 false affidavit to take the place of a marriage license is to allow an abject
circumvention of the law. If this Court is to protect the fabric of the
Therefore, the falsity of the affidavit dated 24 November 1986, executed institution of marriage, we must be wary of deceptive schemes that violate
by Jose and Felisa to exempt them from the requirement of a marriage the legal measures set forth in our laws.
license, is beyond question.
 Family Code Assignment No. 1|21

Similarly, we are not impressed by the ratiocination of the Republic that as
a marriage under a license is not invalidated by the fact that the license
was wrongfully obtained, so must a marriage not be invalidated by a
fabricated statement that the parties have cohabited for at least five years
as required by law. The contrast is flagrant. The former is with reference to
an irregularity of the marriage license, and not to the absence of one.
Here, there is no marriage license at all. Furthermore, the falsity of the
allegation in the sworn affidavit relating to the period of Jose and Felisas
cohabitation, which would have qualified their marriage as an exception to
the requirement for a marriage license, cannot be a mere irregularity, for it
refers to a quintessential fact that the law precisely required to be deposed
and attested to by the parties under oath. If the essential matter in the
sworn affidavit is a lie, then it is but a mere scrap of paper, without force
and effect. Hence, it is as if there was no affidavit at all.
refers to a period of legal union had it not been for the absence of a
marriage.57 It covers the years immediately preceding the day of the
marriage, characterized by exclusivity - meaning no third party was
involved at any time within the five years - and continuity that is
unbroken.58
WHEREFORE, the Petitions are DENIED. The Amended Decision of the
Court of Appeals, dated 7 November 2006 in CA-G.R. CV No. 68759,
declaring the marriage of Jose Dayot to Felisa Tecson-Dayot void ab initio,
is AFFIRMED, without prejudice to their criminal liability, if any. No costs.
SO ORDERED.

In its second assignment of error, the Republic puts forth the argument
that based on equity, Jose should be denied relief because he perpetrated
the fabrication, and cannot thereby profit from his wrongdoing. This is a
misplaced invocation. It must be stated that equity finds no room for
application where there is a law.54 There is a law on the ratification of
marital cohabitation, which is set in precise terms under Article 76 of the
Civil Code. Nonetheless, the authorities are consistent that the declaration
of nullity of the parties marriage is without prejudice to their criminal
liability.55

The Republic further avers in its third assignment of error that Jose is
deemed estopped from assailing the legality of his marriage for lack of a
marriage license. It is claimed that Jose and Felisa had lived together from
1986 to 1990, notwithstanding Joses subsequent marriage to Rufina
Pascual on 31 August 1990, and that it took Jose seven years before he
sought the declaration of nullity; hence, estoppel had set in.

This is erroneous. An action for nullity of marriage is imprescriptible. 56 Jose

and Felisas marriage was celebrated sans a marriage license. No other
conclusion can be reached except that it is void ab initio. In this case, the
right to impugn a void marriage does not prescribe, and may be raised any
time.

Lastly, to settle all doubts, jurisprudence has laid down the rule that the
five-year common-law cohabitation period under Article 76 means a five-
year period computed back from the date of celebration of marriage, and

6. G.R. No. L-9005 June 20, 1958
ARSENIO DE LORIA and RICARDA DE LORIA, petitioners,
vs.
FELIPE APELAN FELIX, respondent.
BENGZON, J.:
Review of a decision of the Court of Appeals, involving the central issue of
the validity of the marriage in articulo mortis between Matea de la Cruz
and Felipe Apelan Felix.
It appears that long before, and during the War of the Pacific, these two
persons lived together as wife and husband at Cabrera Street, Pasay City.
They acquired properties but had no children. In the early part of the
liberation of Manila and surrounding territory, Matea be came seriously ill.
Knowing her critical condition, two young ladies of legal age dedicated to
the service of God, named Carmen Ordiales and Judith Vizcarra1 visited
and persuaded her to go to confession. They fetched Father Gerardo
Bautista, Catholic parish priest of Pasay. The latter, upon learning that the
penitent had been living with Felipe Apelan Felix without benefit of
marriage, asked both parties to ratify their union according to the rites of
his Church. Both agreed. Whereupon the priest heard the confession of the
bed-ridden old woman, gave her Holy Communion, administered the
Sacrament of Extreme Unction and then solemnized her marriage with
Felipe Apelan Felix in articulo mortis,2 Carmen Ordiales and Judith Vizcarra
acting as sponsors or witnesses. It was then January 29 or 30, 1945.
After a few months, Matea recovered from her sickness; but death was not
to be denied, and in January 1946, she was interred in Pasay, the same Fr.
Bautista performing the burial ceremonies.
On May 12, 1952, Arsenio de Loria and Ricarda de Loria filed this complaint
to compel defendant to an accounting and to deliver the properties left by
the deceased. They are grandchildren of Adriana de la Cruz, sister of
Matea, and claim to be the only surviving forced heirs of the latter. Felipe
Apelan Felix resisted the action, setting up his rights as widower. They
obtained favorable judgment in the court of first instance, but on appeal
the Court of Appeals reversed and dismissed the complaint.
Their request for review here was given due course principally to consider
the legal question-which they amply discussed in their petition and printed
Family Code Assignment No. 1|22
brief whether the events which took place in January 1945 constituted,
in the eyes of the law, a valid and binding marriage.
According to the Court of Appeals:
There is no doubt at all in the mind of this Court, that Fr. Gerardo
Bautista, solemnized the marriage in articulo mortis of Defendant
Apelan Felix and Matea de la Cruz, on January 29 and 30, 1945,
under the circumstances set forth in the reverend's testimony in
court. Fr. Bautista, a respectable old priest of Pasay City then, had
no reason to side one or the other. . . . Notwithstanding this
positive evidence on the celebration or performance of the
marriage in question, Plaintiffs-Appellees contend that the same
was not in articulo mortis, because Matea de la Cruz was not then
on the point of death. Fr. Bautista clearly testified, however, that
her condition at the time was bad; she was bed-ridden; and
according to his observation, she might die at any moment (Exhibit
1), so apprehensive was he about her condition that he decided in
administering to her the sacrament of extreme unction, after
hearing her confession. . . . .The greatest objection of the
Appellees and the trial court against the validity of the marriage
under consideration, is the admitted fact that it was not registered.
The applicable legal provisions are contained in the Marriage Law of 1929
(Act No. 3613) as amended by Commonwealth Act No. 114 (Nov. 1936)
specially sections 1, 3, 20 and 21.
There is no question about the officiating priest's authority to solemnize
marriage. There is also no question that the parties had legal capacity to
contract marriage, and that both declared before Fr. Bautista and Carmen
Ordiales and Judith Vizcarra that "they took each other as husband and
wife."
The appellants' contention of invalidity rests on these propositions:
(a) There was no "marriage contract" signed by the wedded couple the
witnesses and the priest, as required by section 3 of the Marriage Law; and
(b) The priest filed no affidavit, nor recorded the marriage with the local
civil registry.

The factual basis of the first proposition no signing may seriously be
doubted. The Court of Appeals made no finding thereon. Indeed if
anything, its decision impliedly held such marriage contract to have been
executed, since it said "the marriage in articulo mortis was a fact", and the
only question at issue was whether "the failure of Fr. Bautista to send
copies of the certificate of marriage in question to the Local Civil Registrar
and to register the said marriage in the Record of Marriages of the Pasay
Catholic Church . . . renders the said marriage invalid." And such was the
only issue tendered in the court of first instance. (See p. 14, 34, Record on
Appeal.)
However, we may as well face this second issue: Does the failure to sign
the "marriage certificate or contract" constitute a cause for nullity?
Marriage contract is the "instrument in triplicate" mentioned in sec. 3 of
the Marriage Law which provides:
Sec. 3. Mutual Consent. No particular form for the ceremony of
marriage is required, but the parties with legal capacity to contract
marriage must declare, in the presence of the person solemnizing
the marriage and of two witnesses of legal age, that they take each
other as husband and wife. This declaration shall be set forth in an
instrument in triplicate, signed by signature or mark by the
contracting parties and said two witnesses and attested by the
person solemnizing the marriage. . . . (Emphasis ours).
In the first place, the Marriage Law itself, in sections 28, 29 and 30
enumerates the causes for annulment of marriage. Failure to sign the
marriage contract is not one of them.
In the second place, bearing in mind that the "essential requisites for
marriage are the legal capacity of the contracting parties and their
consent" (section 1), the latter being manifested by the declaration of "the
parties" "in the presence of the person solemnizing the marriage and of
two witnesses of legal age that they take each other as husband and wife"
which in this case actually occurred.3 We think the signing of the
marriage contract or certificate was required by the statute simply for the
purpose of evidencing the act.4 No statutory provision or court ruling has
been cited making it an essential requisite not the formal requirement of
evidentiary value, which we believe it is. The fact of marriage is one thing;
the proof by which it may be established is quite another.
Family Code Assignment No. 1|23
Certificate and Record. Statutes relating to the solemnization of
marriage usually provide for the issuance of a certificate of
marriage and for the registration or recording of marriage . . .
Generally speaking, the registration or recording of a marriage is
not essential to its validity, the statute being addressed to the
officials issuing the license, certifying the marriage, and making the
proper return and registration or recording. (Sec. 27 American
Jurisprudence "Marriage" p. 197-198.)
Formal Requisites. . . . The general rule, however, is that
statutes which direct that a license must be issued and procured,
that only certain persons shall perform the ceremony, that a
certain number of witnesses shall be present, that a certificate of
the marriage shall be signed, returned, and recorded, and that
persons violating the conditions shall be guilty of a criminal
offense, are addressed to persons in authority to secure publicity
and to require a record to be made of the marriage contract. Such
statutes do not void common-law marriages unless they do so
expressly, even where such marriage are entered into without
obtaining a license and are not recorded. It is the purpose of these
statutes to discourage deception and seduction, prevent illicit
intercourse under the guise of matrimony, and relieve from doubt
the status of parties who live together as man and wife, by
providing competent evidence of the marriage. . . . (Section 15
American Jurisprudence "Marriage" pp. 188-189.) Emphasis Ours.
(See also Corpus Juris Secundum "Marriage" Sec. 33.)
And our law says, "no marriage shall be declared invalid because of the
absence of one or several formal requirements of this Act . . . ." (Section
27.)
In the third place, the law, imposing on the priest the duty to furnish to the
parties copies of such marriage certificate (section 16) and punishing him
for its omission (section 41) implies his obligation to see that such
"certificate" is executed accordingly. Hence, it would not be fair to visit
upon the wedded couple in the form of annulment, Father Bautista's
omission, if any, which apparently had been caused by the prevailing
disorder during the liberation of Manila and its environs.
Identical remarks apply to the priest's failure to make and file the affidavit
required by sections 20 and 21. It was the priest's obligation; non-
 Family Code Assignment No. 1|24

compliance with it, should bring no serious consequences to the married

pair, specially where as in this case, it was caused by the emergency.

The mere fact that the parish priest who married the plaintiff's
natural father and mother, while the latter was in articulo mortis,
failed to send a copy of the marriage certificate to the municipal
secretary, does not invalidate said marriage, since it does not
appear that in the celebration thereof all requisites for its validity
were not present, the forwarding of a copy of the marriage
certificate not being one of the requisites. (Jones vs. Hortiguela, 64
Phil. 179.) See also Madridejo vs. De Leon, 55 Phil. 1.

The law permits in articulo mortis marriages, without marriage license; but
it requires the priest to make the affidavit and file it. Such affidavit
contains the data usually required for the issuance of a marriage license.
The first practically substitutes the latter. Now then, if a marriage
celebrated without the license is not voidable (under Act 3613), 5 this
marriage should not also be voidable for lack of such affidavit.

In line with the policy to encourage the legalization of the union of men
and women who have lived publicly in a state of concubinage 6, (section
22), we must hold this marriage to be valid.

The widower, needless to add, has better rights to the estate of the
deceased than the plaintiffs who are the grandchildren of her sister
Adriana. "In the absence of brothers or sisters and of nephews, children of
the former, . . . the surviving spouse . . . shall succeed to the entire estate
of the deceased. (Art 952, Civil Code.)

Wherefore, the Court of Appeals' decision is affirmed, with costs. So

ordered.

7. G.R. No. 118904 April 20, 1998
ARTURIO TRINIDAD, petitioner,
vs.
COURT OF APPEALS, FELIX TRINIDAD (deceased) and LOURDES
TRINIDAD, respondents.
PANGANIBAN, J.:
In the absence of a marriage contract and a birth certificate, how may
marriage and filiation be proven?
The Case
This is the main question raised in this petition for review
on certiorari challenging the Court of Appeals 1 Decision promulgated Hence, this petition. 11
December 1, 1994 2 and Resolution promulgated on February 8, 1995 3 in
CA-GR CV No. 23275, which reversed the decision of the trial court and
dismissed petitioner's action for partition and damages.
On August 10, 1975, Petitioner Arturio Trinidad filed a complaint 4 for follows: 12
partition and damages against Private Respondents Felix and Lourdes, both
surnamed Trinidad, before the Court of First Instance of Aklan, Branch
I. 5 On October 25, 1982, Felix died without issue, so he was not
substituted as a party. 6
On July 4, 1989, the trial court rendered a twenty-page decision in favor
7 Patricio Trinidad, who was the original owner of the parcels of land.
of the petitioner, in which it ruled: 8
Considering therefore that this court is of the opinion that plaintiff
is the legitimate son of Inocentes Trinidad, plaintiff is entitled to
inherit the property left by his deceased father which is 1/3 of the
4 parcels of land subject matter of this case. Although the plaintiff
had testified that he had been receiving [his] share from said land
before and the same was stopped, there was no evidence
introduced as to what year he stopped receiving his share and for
how much. This court therefore cannot rule on that.
In its four-page Decision, Respondent Court reversed the trial court on the
ground that petitioner failed to adduce sufficient evidence to prove that his
parents were legally married to each other and that acquisitive prescription
against him had set in. The assailed Decision disposed: 9
Family Code Assignment No. 1|25
WHEREFORE, the Court REVERSES the appealed decision.
In lieu thereof, the Court hereby DISMISSES the [petitioner's]
complaint and the counterclaim thereto.
Without costs.
Respondent Court denied reconsideration in its impugned Resolution which
reads: 10
The Court DENIES defendants-appellants' motion for
reconsideration, dated December 15, 1994, for lack of merit. There
are no new or substantial matters raised in the motion that merit
the modification of the decision.
The Facts
The assailed Decision recites the factual background of this case, as
On August 10, 1978, plaintiff [herein petitioner] filed with the Court
of First Instance of Aklan, Kalibo, Aklan, an action for partition of
four (4) parcels of land, described therein, claiming that he was the
son of the late Inocentes Trinidad, one of three (3) children of
Patricio Trinidad died in 1940, leaving the four (4) parcels of land
to his three (3) children, Inocentes, Lourdes and Felix. In 1970,
plaintiff demanded from the defendants to partition the land into
three (3) equal shares and to give him the one-third (1/3)
individual share of his late father, but the defendants refused.
In their answer, filed on September 07, 1978, defendants denied
that plaintiff was the son of the late Inocentes Trinidad. Defendants
contended that Inocentes was single when he died in 1941 , before
plaintiff's birth. Defendants also denied that plaintiff had lived with
them, and claimed that the parcels of land described in the
complaint had been in their possession since the death of their
father in 1940 and that they had not given plaintiff a share in the
produce of the land.

Patricio Trinidad and Anastacia Briones were the parents of three
(3) children, namely, Inocentes, Lourdes and Felix. When Patricio
died in 1940, survived by the above named children, he left four
(4) parcels of land, all situated at Barrio Tigayon, Kalibo Aklan.
Arturio Trinidad, born on July 21, 1943, claimed to be the
legitimate son of the late Inocentes Trinidad.
Arturio got married in 1966 to Candelaria Gaspar, at the age of
twenty three (23). Sometime after the marriage, Arturio demanded
from the defendants that the above-mentioned parcels of land be
partitioned into three (3) equal shares and that he be given the
one-third (1/3) individual shares of his late father, but defendants
refused.
In order to appreciate more clearly the evidence adduced by both parties,
this Court hereby reproduces pertinent portions of the trial court's
decision: 13
EVIDENCE FOR THE PLAINTIFF:
Plaintiff presented as his first witness, Jovita Gerardo, 77 years old,
(at the time she testified in 1981) who is the barangay captain of
barrio Tigayon, Kalibo, Aklan, since 1972. She testified that before
being elected as barrio captain she held the position of barrio
council-woman for 4 years. Also she was [a member of the] board
of director[s] of the Parent-Teachers Association of Tigayon, Kalibo,
Aklan. That she knows the plaintiff because they are neighbors and
she knows him from the time of his birth. She knows the father of
the plaintiff as Inocentes Trinidad and his mother Felicidad Molato;
both were already dead, Inocentes having died in 1944 and his wife
died very much later. Witness recalls plaintiff was born in 1943 in
Barrio Tigayon, Kalibo, Aklan, on July 21, 1943. At the time of the
birth of the plaintiff, the house of the witness was about 30 meters
away from plaintiff's parents['] house and she used to go there 2 or
3 times a week. That she knows both the defendants as they are
also neighbors. That both Felix and Lourdes Trinidad are the uncle
and aunt of Arturio because Inocentes Trinidad who is the father of
the plaintiff is the brother of the defendants, Felix and Lourdes
Trinidad. She testified she also knows that the father of Inocentes,
Felix and Lourdes[,] all surnamed Trinidad[,] was Patricio Trinidad
Family Code Assignment No. 1|26
who is already dead but left several parcels of land which are the 4
parcels subject of this litigation. That she knows all these [parcels
of] land because they are located in Barrio Tigayon.
When asked about the adjoining owners or boundaries of the 4
parcels of land, witness answered and mentioned the respective
adjoining owners. That she knew these 4 parcels belonged to
Patricio Trinidad because said Patricio Trinidad was a native also of
Barrio Tigayon. Said Patricio died before the [war] and after his
death the land went to his 3 children, namely: Inocentes, Felix and
Lourdes. Since then the land was never partitioned or divided
among the 3 children of Patricio.
A picture, Exhibit A, was shown to the witness for identification and
she identified a woman in the picture as the defendant, Lourdes
Trinidad. A man with a hat holding a baby was identified by her as
Felix Trinidad, the defendant. The other woman in the picture was
pointed by the witness as the wife of the plaintiff, Arturio Trinidad.
When asked if Arturio Trinidad and Lourdes Trinidad and Felix
Trinidad pointed to by her in the picture are the same Arturio, Felix
and Lourdes, who are the plaintiff and the defendants in this case,
witness answered yes.
Another picture marked as Exhibit B was presented to the witness
for identification. She testified the woman in this picture as Lourdes
Trinidad. In said picture, Lourdes Trinidad was holding a child
which witness identified as the child Arturio Trinidad. When asked
by the court when . . . the picture [was] taken, counsel for the
plaintiff answered, in 1966. When asked if Arturio Trinidad was
baptized, witness answered yes, as she had gone to the house of
his parents. Witness then identified the certificate of baptism
marked as Exhibit C. The name Arturio Trinidad was marked as
Exhibit C-1 and the name of Inocentes Trinidad and Felicidad
Molato as father and mother respectively, were marked as Exhibit
C-2. The date of birth being July 21, 1943 was also marked. The
signature of Monsignor Iturralde was also identified.
On cross-examination, witness testified that she [knew] the land in
question very well as she used to pass by it always. It was located
just near her house but she cannot exactly tell the area as she
merely passes by it. When asked if she [knew] the photographer

who took the pictures presented as Exhibit A and B, witness
answered she does not know as she was not present during the
picture taking. However, she can identify everybody in the picture
as she knows all of them.
At this stage of the trial, Felix Trinidad [died] without issue and he
was survived by his only sister, Lourdes Trinidad, who is his co-
defendant in this case.
Next witness for the plaintiff was ISABEL MEREN who was 72 years
old and a widow. She testified having known Inocentes Trinidad as
the father of Arturio Trinidad and that Inocentes, Felix and Lourdes
are brothers and sister and that their father was Patricio Trinidad
who left them 4 parcels of land. That she knew Inocentes Trinidad
and Felicidad Molato who are the parents of Arturio, the plaintiff,
were married in New Washington, Aklan, by a protestant pastor by
the name of Lauriano Lajaylajay. That she knows Felicidad Molato
and Lourdes Trinidad very well because as a farmer she also owns
a parcel of land [and] she used to invite Felicidad and Lourdes to
help her during planting and harvesting season. That she knows
that during the lifetime of Inocentes the three of them, Inocentes,
Felix and Lourdes possessed and usufructed the 4 parcels they
inherited from their father, Patricio. That upon the death of
Inocentes, Lourdes Trinidad was in possession of the property
without giving the widow of Inocentes any share of the produce. As
Lourdes outlived her two brothers, namely: Felix and Inocentes,
she was the one possessing and usufructing the 4 parcels of land
up to the present. The witness testified that upon the death of
Inocentes, Lourdes took Arturio and cared for him when he was still
small, about 3 years old, until Arturio grew up and got married.
That while Arturio was growing up, he had also enjoyed the
produce of the land while he was being taken care of by Lourdes
Trinidad. That a misunderstanding later on arose when Arturio
Trinidad wanted to get his father's share but Lourdes Trinidad will
not give it to him.
Plaintiff, ARTURIO TRINIDAD, himself, was presented as witness.
He testified that defendants, Lourdes and Felix Trinidad, are his
aunt and uncle, they being the brother and sister of his father. That
the parents of his father and the defendants were Patricio Trinidad
and Anastacia Briones. That both his father, Inocentes Trinidad,
Family Code Assignment No. 1|27
and mother, Felicidad Molato, were already dead having died in
Tigayon, his father having died in 1944 and his mother about 25
years ago.
As proof that he is the son of Inocentes Trinidad and Felicidad
Molato, he showed a certificate of baptism which had been
previously marked as Exhibit C. That his birth certificate was
burned during World War 2 hut he has a certificate of loss issued
by the Civil Registrar of Kalibo, Aklan.
When he was 14 years old, the defendants invited him to live with
them being their nephew as his mother was already dead.
Plaintiff's mother died when he was 13 years old. They treated him
well and provided for all his needs. He lived with defendants for 5
years. At the age of 19, he left the house of the defendants and
lived on his own. He got married at 23 to Candelaria Gaspar and
then they were invited by the defendants to live with them. So he
and his wife and children lived with the defendants. As proof that
he and his family lived with the defendants when the latter invited
him to live with them, he presented a picture previously marked as
Exhibit B where there appears his aunt, Lourdes Trinidad, carrying
plaintiff's daughter, his uncle and his wife. In short, it is a family
picture according to him. Another family picture previously marked
Exhibit A shows his uncle, defendant Felix Trinidad, carrying
plaintiff's son. According to him, these 2 pictures were taken when
he and his wife and children were living with the defendants. That a
few years after having lived with them, the defendants made them
vacate the house for he requested for partition of the land to get
his share. He moved out and looked for [a] lawyer to handle his
case. He testified there are 4 parcels of land in controversy of
which parcel 1 is an upland.
Parcel 1 is 1,000 square meters, [has] 10 coconut trees and fruit
bearing. The harvest is 100 coconuts every 4 months and the cost
of coconuts is P2.00 each. The boundaries are: East-Federico
Inocencio; West-Teodulo Dionesio; North-Teodulo Dionesio; and
South-Bulalio Briones; located at Tigayon.
Parcel 2 is an upland with an area of 500 square meters; it has
only 1 coconut tree and 1 bamboo groove; also located in Tigayon,
Kalibo, Aklan. Adjoining owners are: East-Ambrosio Trinidad;

North-Federico Inocencio, West-Patricio Trinidad and South-
Gregorio Briones.
Parcel 3 is about 12,000 square meters and 1/4 of that belongs to
Patricio Trinidad, the deceased father of the defendants and
Inocentes, the father of the plaintiff.
Parcel 4 is a riceland with an area of 5,000 square meters. The
harvest is 40 cavans two times a years [sic]. Adjoining owners are:
East-Gregorio Briones; West-Bulalio Briones; South-Federico
Inocencio and North-Digna Carpio.
Parcel 1 is Lot No. 903.
Parcel 2 is Lot No. 864 of the cadastral survey of Kalibo and only
Lot 864-A with an area of 540 square meters is the subject of
litigation.
Parcel 3 is Lot No. 979 of the cadastral survey of Kalibo covered by
Tax Decl. No. 703310 with reference to one of the owners of the
land, Patricio Trinidad married to Anastacia Briones, one-half share.
Parcel 4 is covered by Original Certificate of Title No. 22502 RO-
174 covering Lot No. 863 of the cadastral survey of Kalibo. The
title is in the name of Patricio Trinidad married to Anastacia
Briones.
Parcel 1 is covered by Tax Decl. No. 11609 in the name of Patricio
Trinidad while parcel 2 is covered by Tax Decl. No. 10626 in the
name of Anastacia Briones and another Tax Declaration No. 11637
for Parcel 3 in the name of Ambrosio Trinidad while Parcel 4 is
covered by Tax Decl. No. 16378 in the name of Patricio Trinidad.
On cross-examination, plaintiff testified that during the lifetime of
his mother they were getting the share in the produce of the land
like coconuts, palay and corn. Plaintiff further testified that his
father is Inocentes Trinidad and his mother was Felicidad Molato.
They were married in New Washington, Aklan, by a certain Atty.
Lajaylajay. When asked if this Atty. Lajaylajay is a municipal judge
of New Washington, Aklan, plaintiff answered he does not know
because he was not yet born at that time. That he does not have
the death certificate of his father who died in 1944 because it was
Family Code Assignment No. 1|28
wartime. That after the death of his father, he lived with his
mother and when his mother died[,] he lived with his aunt and
uncle, the defendants in this case. That during the lifetime of his
mother, it was his mother receiving the share of the produce of the
land. That both defendants, namely Lourdes and Felix Trinidad, are
single and they have no other nephews and nieces. That
[petitioner's] highest educational attainment is Grade 3.
EVIDENCE FOR THE DEFENDANTS:
First witness for the defendants was PEDRO BRIONES, 68 years
old, unemployed and a resident of Nalook, Kalibo, Aklan. He
testified having known the defendants, Felix and Lourdes Trinidad.
They being his first cousins because the mother of Lourdes and
Felix by the name of Anastacia Briones and his father are sister and
brother. That he also knew Inocentes Trinidad being the brother of
Felix and Lourdes and he is already dead. According to the witness,
Inocentes Trinidad [died] in 1940 and at the time of his death
Inocentes Trinidad was not married. That he knew this fact
because at the time of the death of Inocentes Trinidad he was then
residing with his aunt, "Nanay Taya", referring to Anastacia Briones
who is mother of the defendants, Felix and Lourdes Trinidad, as
well as Inocentes Trinidad. That at the time of the death of
Inocentes Trinidad, according to this witness he stayed with his
aunt, Anastacia Trinidad, and with his children before 1940 for only
3 months. When asked if he knew Inocentes Trinidad cohabited
with anybody before his death, he answered, "That I do not know",
neither does he kn[o]w a person by the name of Felicidad Molato.
Furthermore, when asked if he can recall if during the lifetime of
Inocentes Trinidad witness knew of anybody with whom said
Inocentes Trinidad had lived as husband and wife, witness, Pedro
Briones, answered that he could not recall because he was then in
Manila working. That after the war, he had gone back to the house
of his aunt, Anastacia, at Tigayon, Kalibo, as he always visit[s] her
every Sunday, however, he does not know the plaintiff, Arturio
Trinidad. When asked if after the death of Inocentes Trinidad, he
knew anybody who has stayed with the defendants who claimed to
be a son of Inocentes Trinidad, witness, Pedro Briones, answered:
"I do not know about that."

On cross examination, witness testified that although he was born
in Tigayon, Kalibo, Aklan, he stated to reside in Nalook, Kalibo, as
the hereditary property of their father was located there. When
asked if he was aware of the 4 parcels of land which is the subject
matter of this case before the court, witness answered that he does
not know. What he knew is that among the 3 children of Patricio
Trinidad, Inocentes is the eldest. And that at the time of the death
of Inocentes in 1940, according to the witness when cross
examined, Inocentes Trinidad was around 65 years old. That
according to him, his aunt, Anastacia Briones, was already dead
before the war. When asked on cross examination if he knew
where Inocentes Trinidad was buried when he died in 1940,
witness answered that he was buried in their own land because the
Japanese forces were roaming around the place. When confronted
with Exhibit A which is the alleged family picture of the plaintiff and
the defendants, witness was able to identify the lady in the picture,
which had been marked as Exhibit A-1, as Lourdes Trinidad, and
the man wearing a hat on the said picture marked as Exhibit 2-A is
Felix Trinidad. However, when asked if he knew the plaintiff,
Arturio Trinidad, he said he does not know him.
Next witness for the defendants was the defendant herself,
LOURDES TRINIDAD. She stated that she is 75 years old, single
and jobless. She testified that Inocentes Trinidad was her brother
and he is already dead and he died in 1941 in Tigayon, Kalibo,
Aklan. That before the death of her brother, Inocentes Trinidad, he
had gone to Manila where he stayed for a long time and returned
to Tigayon in 1941. According to her, upon arrival from Manila in
1941 his brother, Inocentes Trinidad, lived only for 15 days before
he died. While his brother was in Manila, witness testified she was
not aware that he had married anybody. Likewise, when he arrived
in Tigayon in 1941, he also did [not] get married. When asked if
she knew one by the name of Felicidad Molato, witness answered
she knew her because Felicidad Molato was staying in Tigayon.
However, according to her[,] she does not kn[o]w if her brother,
Inocentes Trinidad, had lived with Felicidad Molato as husband and
wife. When asked if she knew the plaintiff, Arturio Trinidad, she
said, "Yes," but she denied that Arturio Trinidad had lived with
them. According to the witness, Arturio Trinidad did not live with
the defendants but he stayed with his grandmother by the name of
Maria Concepcion, his mother, Felicidad Molato, having died
Family Code Assignment No. 1|29
already. When asked by the court if there had been an instance
when the plaintiff had lived with her even for days, witness
answered, he did not. When further asked if Arturio Trinidad went
to visit her in her house, witness also said, "He did not."
Upon cross examination by counsel for the plaintiff, Lourdes
Trinidad testified that her parents, Anastacia Briones and Patricio
Trinidad, had 3 children, namely: Inocentes Trinidad, Felix Trinidad
and herself. But inasmuch as Felix and Inocentes are already dead,
she is the only remaining daughter of the spouses Patricio Trinidad
and Anastacia Briones. Defendant, Lourdes Trinidad, testified that
her brother, Felix Trinidad, died without a wife and children, in the
same manner that her brother, Inocentes Trinidad, died without a
wife and children. She herself testified that she does not have any
family of her own for she has [no] husband or children. According
to her[,] when Inocentes Trinidad [died] in 1941, they buried him
in their private lot in Tigayon because nobody will carry his coffin
as it was wartime and the municipality of Kalibo was occupied by
the Japanese forces. When further cross-examined that I[t] could
not be true that Inocentes Trinidad died in March 1941 because the
war broke out in December 1941 and March 1941 was still peace
time, the witness could not answer the question. When she was
presented with Exhibit A which is the alleged family picture wherein
she was holding was [sic] the child of Arturio Trinidad, she
answered; "Yes." and the child that she is holding is Clarita
Trinidad, child of Arturio Trinidad. According to her, she was only
requested to hold this child to be brought to the church because
she will be baptized and that the baptism took place in the parish
church of Kalibo. When asked if there was a party, she answered;
"Maybe there was." When confronted with Exhibit A-1 which is
herself in the picture carrying the child, witness identified herself
and explained that she was requested to bring the child to the
church and that the picture taken together with her brother and
Arturio Trinidad and the latter's child was taken during the time
when she and Arturio Trinidad did not have a case in court yet. She
likewise identified the man with a hat holding a child marked as
Exhibit A-2 as her brother, Felix. When asked if the child being
carried by her brother, Felix Trinidad, is another child of the
plaintiff, witness answered she does not know because her eyes
are already blurred. Furthermore, when asked to identify the
woman in the picture who was at the right of the child held by her

brother, Felix, and who was previously identified by plaintiff,
Arturio Trinidad, as his wife, witness answered that she cannot
identify because she had a poor eyesight neither can she identify
plaintiff, Arturio Trinidad, holding another child in the picture for
the same reason. When asked by counsel for the plaintiff if she
knows that the one who took this picture was the son of Ambrosio
Trinidad by the name of Julito Trinidad who was also their cousin,
witness testified that she does not know.
Third witness for the defendants was BEATRIZ TRINIDAD SAYON
who testified that she knew Arturio Trinidad because he was her
neighbor in Tigayon. In the same manner that she also knew the
defendants, Felix and Lourdes, and Inocentes all surnamed Trinidad
because they were her cousins. She testified that a few months
after the war broke out Inocentes Trinidad died in their lola's house
whose names was Eugenia Rufo Trinidad. She further testified that
Inocentes Trinidad had lived almost in his lifetime in Manila and he
went home only when his father fetched him in Manila because he
was already sick. That according to her, about 1 1/2 months after
his arrival from Manila, Inocentes Trinidad died. She also testified
that she knew Felicidad Molato and that Felicidad Molato had never
been married to Inocentes Trinidad. According to her, it was in
1941 when Inocentes Trinidad died. According to her she was horn
in 1928, therefore, she was 13 or 14 years old when the war broke
out. When asked if she can remember that it was only in the early
months of the year 1943 when the Japanese occupied Kalibo, she In finding that petitioner was not a child, legitimate or otherwise, of the
said she [was] not sure. She further testified that Inocentes late Inocentes Trinidad, Respondent Court ruled:
Trinidad was buried in their private lot because Kalibo was then
occupied by the Japanese forces and nobody would carry his body
to be buried in the Poblacion.
For rebuttal evidence, [petitioner] presented ISABEL MEREN, who
was 76 years old and a resident of Tigayon. Rebuttal witness
testified that . . . she knew both the [petitioner] and the [private
respondents] in this case very well as her house is only around 200
meters from them. When asked if it is true that according to
Lourdes Trinidad, [Inocentes Trinidad] arrived from Manila in 1941
and he lived only for 15 days and died, witness testified that he did
not die in that year because he died in the year 1944, and that
Inocentes Trinidad lived with his sister, Lourdes Trinidad, in a
house which is only across the street from her house. According to
Family Code Assignment No. 1|30
the said rebuttal witness, it is not true that Inocentes Trinidad died
single because he had a wife by the name of Felicidad Molato
whom he married on May 5, 1942 in New Washington, Aklan. That
she knew this fact because she was personally present when couple
was married by Lauriano Lajaylajay, a protestant pastor.
On cross examination, rebuttal witness testified that when
Inocentes Trinidad arrived from Manila he was in good physical
condition. That she knew both Inocentes Trinidad and Felicidad
Molato to be Catholics but that according to her, their marriage was
solemnized by a Protestant minister and she was one of the
sponsors. That during the marriage of Inocentes Trinidad and
Felicidad Molato, Lourdes Trinidad and Felix Trinidad were also
present.
When plaintiff, ARTURIO TRINIDAD, was presented as rebuttal
witness, he was not able to present a marriage contract of his
parents but instead a certification dated September 5, 1978 issued
by one Remedios Eleserio of the Local Civil Registrar of the
Municipality of New Washington, Aklan, attesting to the fact that
records of births, deaths, and marriages in the municipality of New
Washington were destroyed during the Japanese time.
Respondent Court's Ruling
14
We sustain the appeal on the ground that plaintiff has not
adduced sufficient evidence to prove that he is the son of
the late Inocentes Trinidad. But the action to claim
legitimacy has not prescribed.
Plaintiff has not established that he was recognized, as a
legitimate son of the late Inocentes Trinidad, in the record
of birth or a final judgment, in a public document or a
private handwritten instrument, or that he was in
continuous possession of the status of a legitimate child.
Two witnesses, Pedro Briones and Beatriz Trinidad Sayon,
testified for the defendants that Inocentes Trinidad never
married. He died single in 1941. One witness, Isabel

Maren, testified in rebuttal for the plaintiff, that Inocentes
Trinidad married Felicidad Molato in New Washington,
Aklan, on May 5, 1942, solemnized by a pastor of the
protestant church and that she attended the wedding
ceremony (t.s.n. Sept. 6, 1988, p. 4). Hence, there was no
preponderant evidence of the marriage, nor of Inocentes'
acknowledgment of plaintiff as his son, who was born on
July 21, 1943.
The right to demand partition does not prescribe (de Castro
vs. Echarri, 20 Phil. 23). Where one of the interested
parties openly and adversely occupies the property without
recognizing the co-ownership (Cordova vs. Cordova, L-
9936, January 14, 1958) acquisitive prescription may set in
(Florenz D. Regalado, Remedial Law Compendium, Vol. I,
Fifth Revised Edition, 1988, p. 497). Admittedly, the
defendants have been in possession of the parcels of land
involved in the concept of owners since their father died in
1940. Even if possession be counted from 1964, when
plaintiff attained the age of majority, still, defendants
possessed the land for more than ten (10) years, thus
acquiring ownership of the same by acquisitive prescription
(Article 1134, Civil Code of the Philippines).
The Issues
Petitioner submits the following issues for resolution: 15
1. Whether or not petitioner (plaintiff-appellee) has proven
by preponderant evidence the marriage of his parents.
2. Whether or not petitioner (plaintiff-appellee) has
adduced sufficient evidence to prove that he is the son of
the late Inocentes Trinidad, brother of private respondents
(defendants-appellants) Felix and Lourdes Trinidad.
3. Whether or not the Family Code is applicable to the case
at bar[,] the decision of the Regional Trial Court having
been promulgated on July 4, 1989, after the Family Code
became effective on August 3, 1988.
Family Code Assignment No. 1|31
4. Whether or not petitioner's status as a legitimate child
can be attached collaterally by the private respondents.
5. Whether or not of private respondent (defendants-
appellants) have acquired ownership of the properties in
question by acquisitive prescription.
Simply stated, the main issues raised in this petition are:
1. Did petitioner present sufficient evidence of his parents' marriage and of
his filiation?
2. Was petitioner's status as a legitimate child subject to collateral attack
in the action for partition?
3. Was his claim time-barred under the rules on acquisitive prescription?
The Court's Ruling
The merits of this petition are patent. The partition of the late Patricio's
real properties requires preponderant proof that petitioner is a co-owner or
co-heir of the decedent's estate. 16 His right as a co-owner would, in turn,
depend on whether he was born during the existence of a valid and
subsisting marriage between his mother (Felicidad) and his putative father
(Inocentes). This Court holds that such burden was successfully discharged
by petitioner and, thus, the reversal of the assailed Decision and Resolution
is inevitable.
First and Second Issues: Evidence of and Collateral Attack on
Filiation
At the outset, we stress that an appellate court's assessment of the
evidence presented by the parties will not, as a rule, be disturbed because
the Supreme Court is not a trier of facts. But in the face of the
contradictory conclusions of the appellate and the trial courts, such rule
does not apply here. So, we had to meticulously pore over the records and
the evidence adduced in this case. 17
Petitioner's first burden is to prove that Inocentes and his mother
(Felicidad) were validly married, and that he was born during the
subsistence of their marriage. This, according to Respondent Court, he
failed to accomplish.
 Family Code Assignment No. 1|32

This Court disagrees. Pugeda vs. Trias 18 ruled that when the question of
whether a marriage has been contracted arises in litigation, said marriage
may be proven by relevant evidence. To prove the fact of marriage, the
following would constitute competent evidence: the testimony of a witness
to the matrimony, the couple's public and open cohabitation as husband
and wife after the alleged wedlock, the birth and the baptismal certificates
of children born during such union, and the mention of such nuptial in
subsequent documents. 19
Art. 266. In the absence of the titles indicated in the preceding
article, the filiation shall be proved by the continuous possession of
status of a legitimate child.
Art. 267. In the absence of a record of birth, authentic document,
final judgment or possession of status, legitimate filiation may be
proved by any other means allowed by the Rules of Court and
special laws. 27

In the case at bar, petitioner secured a certification 20 from the Office of Petitioner submitted in evidence a certification 28 that records relative to
the Civil Registrar of Aklan that all records of births, deaths and marriages his birth were either destroyed during the last world war or burned when
were either lost, burned or destroyed during the Japanese occupation of the old town hall was razed to the ground on June 17, 1956. To prove his
said municipality. This fact, however, is not fatal to petitioner's case. filiation, he presented in evidence two family pictures, his baptismal
Although the marriage contract is considered the primary evidence of the certificate and Gerardo's testimony.
marital union, petitioner's failure to present it is not proof that no marriage
took place, as other forms of relevant evidence may take its place. 21 The first family picture (Exhibit A) shows petitioner (Exhibit A-5) carrying
his second daughter and his wife (Exhibit A-4) together with the late Felix
In place of a marriage contract, two witnesses were presented by Trinidad (Exhibit A-2) carrying petitioner's first daughter, and Lourdes
petitioner: Isabel Meren, who testified that she was present during the Trinidad (Exhibit A-1). Exhibit B is another picture showing Lourdes
nuptial of Felicidad and Inocentes on May 5, 1942 in New Washington, Trinidad (Exhibit B-1) carrying petitioner's first child (Exhibit B-2). These
Aklan; and Jovita Gerardo, who testified that the couple deported pictures were taken before the case was instituted. Although they do not
themselves as husband and wife after the marriage. Gerardo, the 77-year directly prove petitioner's filiation to Inocentes, they show that petitioner
old barangay captain of Tigayon and former board member of the local was accepted by the private respondents as Inocentes' legitimate son ante
parent-teachers' association, used to visit Inocentes and Felicidad's house litem motam.
twice or thrice a week, as she lived only thirty meters away. 22 On July 21,
1943, Gerardo dropped by Inocentes' house when Felicidad gave birth to Lourdes' denials of these pictures are hollow and evasive. While she
petitioner. She also attended petitioner's baptismal party held at the same admitted that Exhibit B shows her holding Clarita Trinidad, the petitioner's
house. 23 Her testimony constitutes evidence of common reputation daughter, she demurred that she did so only because she was requested to
respecting marriage. 24 It further gives rise to the disputable presumption carry the child before she was baptized. 29 When shown Exhibit A, she
that a man and a woman deporting themselves as husband and wife have recognized her late brother but not petitioner, his wife and the couple's
entered into a lawful contract of marriage. 25 Petitioner also presented his children slyly explaining that she could not clearly see because of an
baptismal certificate (Exhibit C) in which Inocentes and Felicidad were alleged eye defect. 30
named as the child's father and mother. 26

Although a baptismal certificate is indeed not a conclusive proof of filiation,

On the other hand, filiation may be proven by the following:
Art. 265. The filiation of legitimate children is proved by the record
of birth appearing in the Civil Register, or by an authentic
document or a final judgment.
it is one of "the other means allowed under the Rules of Court and special
laws" to show pedigree, as this Court ruled in Mendoza vs. Court of
Appeals: 31
What both the trial court and the respondent court did not take into
account is that an illegitimate child is allowed to establish his
claimed filiation by "any other means allowed by the Rules of Court

and special laws," according to the Civil Code, or "by evidence of
proof in his favor that the defendant is her father," according to the
Family Code. Such evidence may consist of his baptismal
certificate, a judicial admission, a family Bible in which his name
has been entered, common reputation respecting his pedigree,
admission by silence, the testimony of witnesses, and other kinds
of proof admissible under Rule 130 of the Rules of Court. [Justice
Alicia Sempio-Diy, Handbook on the Family Code of the Phil. 1988
ed., p. 246]
Concededly, because Gerardo was not shown to be a member of the
Trinidad family by either consanguinity or affinity, 32 her testimony does
not constitute family reputation regarding pedigree. Hence, it cannot, by
itself, be used to establish petitioner's legitimacy.
Be that as it may, the totality of petitioner's positive evidence clearly
preponderates over private respondents' self-serving negations. In sum,
private respondents' thesis is that Inocentes died unwed and without issue
in March 1941. Private respondents' witness, Pedro Briones, testified that
Inocentes died in 1940 and was buried in the estate of the Trinidads,
because nobody was willing to carry the coffin to the cemetery in Kalibo,
which was then occupied by the Japanese forces. His testimony, however,
is far from credible because he stayed with the Trinidads for only three
months, and his answers on direct examination were noncommittal and
evasive: 33
Q: At the time of his death, can you tell the Court if
this Inocentes Trinidad was married or not?
A: Not married.
Q: In 1940 at the time of death of Inocentes
Trinidad, where were you residing?
A: I was staying with them.
Q: When you said "them", to whom are you
referring to [sic]?
A: My aunt Nanay Taya, Anastacia.
xxx xxx xxx
Family Code Assignment No. 1|33
Q: Will you please tell the Court for how long did
you stay with your aunt Anastacia Trinidad and his
children before 1940?
A: For only three months.
Q: Now, you said at the time of his death,
Inocentes Trinidad was single. Do you know if he
had cohabited with anybody before his death?
A: [T]hat I do not know.
Q: You know a person by the name of Felicidad
Molato?
A: No, sir.
Q: Can you recall if during the lifetime of Inocentes
Trinidad if you have known of anybody with whom
he has lived as husband and wife?
A: I could not recall because I was then in Manila
working.
Q: After the war, do you remember having gone
back to the house of your aunt Anastacia at
Tigayon, Kalibo, Aklan?
A: Yes, sir.
Q: How often did you go to the house of your aunt?
A: Every Sunday.
xxx xxx xxx
Q: You know the plaintiff Arturio Trinidad?
A: I do not know him.
Q: After the death of Inocentes Trinidad, do you
know if there was anybody who has stayed with the

defendants who claimed to be a son of Inocentes
Trinidad?
A: I do not know about that.
Beatriz Sayon, the other witness of private respondent, testified, that when
the Japanese occupied Kalibo in 1941, her father brought Inocentes from
Manila to Tigayon because he was sick. Inocentes stayed with their
grandmother, Eugenia Roco Trinidad, and died single and without issue in
March 1941, one and a half months after his return to Tigayon. She knew
Felicidad Molato, who was also a resident of Tigayon, but denied that
Felicidad was ever married to Inocentes. 34
Taking judicial notice that World War II did not start until December 7,
1941 with the bombing of Pearl Harbor in Hawaii, the trial court was not
convinced that Inocentes dies in March 1941. 35 The Japanese forces
occupied Manila only on January 2, 1942; 36 thus, it stands to reason that
Aklan was not occupied until then. It was only then that local residents
were unwilling to bury their dead in the cemetery In Kalibo, because of the
Japanese soldiers who were roaming around the area.37
Furthermore, petitioner consistently used Inocentes' surname (Trinidad)
without objection from private respondents a presumptive proof of his
status as Inocentes' legitimate child. 38
Preponderant evidence means that, as a whole, the evidence adduced by
one side outweighs that of the adverse party. 39Compared to the detailed
(even if awkwardly written) ruling of the trial court, Respondent Court's
holding that petitioner failed to prove his legitimate filiation to Inocentes is
unconvincing. In determining where the preponderance of evidence lies, a
trial court may consider all the facts and circumstances of the case,
including the witnesses' manner of testifying, their intelligence, their
means and opportunity of knowing the facts to which they are testifying,
the nature of the facts, the probability or improbability of their testimony,
their interest or want thereof, and their personal credibility. 40 Applying
this rule, the trial court significantly and convincingly held that the weight
of evidence was in petitioner's favor. It declared:
. . . [O]ne thing sure is the fact that plaintiff had lived with
defendants enjoying the status of being their nephew . . .
before plaintiff [had] gotten married and had a family of his
Family Code Assignment No. 1|34
own where later on he started demanding for the partition
of the share of his father, Inocentes. The fact that plaintiff
had so lived with the defendants . . . is shown by the
alleged family pictures, Exhibits A & B. These family
pictures were taken at a time when plaintiff had not
broached the idea of getting his father's share. . . . His
demand for the partition of the share of his father provoked
the ire of the defendants, thus, they disowned him as their
nephew. . . . In this case, the plaintiff enjoyed the
continuous possession of a status of the child of the alleged
father by the direct acts of the defendants themselves,
which status was only broken when plaintiff demanded for
the partition . . . as he was already having a family of his
own. . . . .
However, the disowning by the defendant [private
respondent herein], Lourdes Trinidad, of the plaintiff
[petitioner herein] being her nephew is offset by the
preponderance of evidence, among them the testimony of
witness, Jovita Gerardo, who is the barrio captain. This
witness was already 77 years old at the time she testified.
Said witness had no reason to favor the plaintiff. She had
been a PTA officer and the court sized her up as a civic
minded person. She has nothing to gain in this case as
compared to the witness for the defendants who are either
cousin or nephew of Lourdes Trinidad who stands to gain in
the case for defendant, Lourdes Trinidad, being already 75
years old, has no husband nor children. 41
Doctrinally, a collateral attack on filiation is not permitted. 42 Rather than
rely on this axiom, petitioner chose to present evidence of his filiation and
of his parents' marriage. Hence, there is no more need to rule on the
application of this doctrine to petitioner's cause.
Third Issue: No Acquisitive Prescription
Respondent Court ruled that, because acquisitive prescription sets in when
one of the interested parties openly and adversely occupies the property
without recognizing the co-ownership, and because private respondents
had been in possession in the concept of owners of the parcels of land
 Family Code Assignment No. 1|35

in issue since Patricio died in 1940, they acquired ownership of these Considering the foregoing, Respondent Court committed reversible error in
parcels. holding that petitioner's claim over the land in dispute was time-barred.

The Court disagrees. Private respondents have not acquired ownership of
the property in question by acquisitive prescription. In a co-ownership, the
act of one benefits all the other co-owners, unless the former repudiates
the co-ownership. 43 Thus, no prescription runs in favor of a co-owner or
co-heir against his or her co-owners or co-heirs, so long as he or she
expressly or impliedly recognizes the co-ownership.
WHEREFORE, the petition is GRANTED and the assailed Decision and
Resolution are REVERSED and SET ASIDE. The trial court's decision dated
July 4, 1989 is REINSTATED. No costs.
SO ORDERED.

In this particular case, it is undisputed that, prior to the action for partition,
petitioner, in the concept of a co-owner, was receiving from private
respondents his share of the produce of the land in dispute. Until such
time, recognition of the co-ownership by private respondents was beyond
question. There is no evidence, either, of their repudiation, if any, of the
co-ownership of petitioner's father Inocentes over the land. Further, the
titles of these pieces of land were still in their father's name. Although
private respondents had possessed these parcels openly since 1940 and
had not shared with petitioner the produce of the land during the pendency
of this case, still, they manifested no repudiation of the co-ownership.
In Mariategui vs. Court of Appeals, the Court held: 44

. . . Corollarily, prescription does not run again private respondents

with respect to the filing of the action for partition so long as the
heirs for whose benefit prescription is invoked, have not expressly
or impliedly repudiated the co-ownership. In the other words,
prescription of an action for partition does not lie except when the
co-ownership is properly repudiated by the co-owner (Del Banco
vs. Intermediate Appellate Court, 156 SCRA 55 [1987] citing Jardin
vs. Hollasco, 117 SCRA 532 [1982]).

Otherwise stated, a co-owner cannot acquire by prescription the

share of the other co-owners absent a clear repudiation of co-
ownership duly communicated to the other co-owners (Mariano vs.
De Vega, 148 SCRA 342 [1987]). Furthermore, an action to
demand partition is imprescriptible and cannot be barred by laches
(Del Banco vs. IAC, 156 SCRA 55 (1987). On the other hand, an
action for partition may be seen to be at once an action for
declaration of co-ownership and for segregation and conveyance of
a determinate portion of the property involved (Rogue vs. IAC, 165
SCRA 118 [1988]).

8. G.R. No. 154380 October 5, 2005
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
CIPRIANO ORBECIDO III, Respondent.
DECISION
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens, where one party is
later naturalized as a foreign citizen and obtains a valid divorce decree
capacitating him or her to remarry, can the Filipino spouse likewise
remarry under Philippine law?
Before us is a case of first impression that behooves the Court to make a
definite ruling on this apparently novel question, presented as a pure
question of law.
In this petition for review, the Solicitor General assails the Decision1 dated
May 15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur,
Branch 23 and its Resolution2 dated July 4, 2002 denying the motion for
reconsideration. The court a quo had declared that herein respondent
Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned
Decision reads:
WHEREFORE, by virtue of the provision of the second paragraph of Art. 26
of the Family Code and by reason of the divorce decree obtained against
him by his American wife, the petitioner is given the capacity to remarry
under the Philippine Law.
IT IS SO ORDERED.3
The factual antecedents, as narrated by the trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva
at the United Church of Christ in the Philippines in Lam-an, Ozamis City.
Their marriage was blessed with a son and a daughter, Kristoffer
Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.
Family Code Assignment No. 1|36
In 1986, Ciprianos wife left for the United States bringing along their son
Kristoffer. A few years later, Cipriano discovered that his wife had been
naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife had
obtained a divorce decree and then married a certain Innocent Stanley.
She, Stanley and her child by him currently live at 5566 A. Walnut Grove
Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority to
remarry invoking Paragraph 2 of Article 26 of the Family Code. No
opposition was filed. Finding merit in the petition, the court granted the
same. The Republic, herein petitioner, through the Office of the Solicitor
General (OSG), sought reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF
THE FAMILY CODE4
The OSG contends that Paragraph 2 of Article 26 of the Family Code is not
applicable to the instant case because it only applies to a valid mixed
marriage; that is, a marriage celebrated between a Filipino citizen and an
alien. The proper remedy, according to the OSG, is to file a petition for
annulment or for legal separation.5 Furthermore, the OSG argues there is
no law that governs respondents situation. The OSG posits that this is a
matter of legislation and not of judicial determination.6
For his part, respondent admits that Article 26 is not directly applicable to
his case but insists that when his naturalized alien wife obtained a divorce
decree which capacitated her to remarry, he is likewise capacitated by
operation of law pursuant to Section 12, Article II of the Constitution.7
At the outset, we note that the petition for authority to remarry filed before
the trial court actually constituted a petition for declaratory relief. In this
connection, Section 1, Rule 63 of the Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petitionAny person interested under a deed, will,
contract or other written instrument, or whose rights are affected by a
statute, executive order or regulation, ordinance, or other governmental
regulation may, before breach or violation thereof, bring an action in the
appropriate Regional Trial Court to determine any question of construction
or validity arising, and for a declaration of his rights or duties, thereunder.
...
The requisites of a petition for declaratory relief are: (1) there must be a
justiciable controversy; (2) the controversy must be between persons
whose interests are adverse; (3) that the party seeking the relief has a
legal interest in the controversy; and (4) that the issue is ripe for judicial
determination.8
This case concerns the applicability of Paragraph 2 of Article 26 to a
marriage between two Filipino citizens where one later acquired alien
citizenship, obtained a divorce decree, and remarried while in the U.S.A.
The interests of the parties are also adverse, as petitioner representing the
State asserts its duty to protect the institution of marriage while
respondent, a private citizen, insists on a declaration of his capacity to
remarry. Respondent, praying for relief, has legal interest in the
controversy. The issue raised is also ripe for judicial determination
inasmuch as when respondent remarries, litigation ensues and puts into
question the validity of his second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article 26 of the
Family Code apply to the case of respondent? Necessarily, we must dwell
on how this provision had come about in the first place, and what was the
intent of the legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive
Order No. 209, otherwise known as the "Family Code," which took effect on
August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance with the
laws in force in the country where they were solemnized, and valid there as
such, shall also be valid in this country, except those prohibited under
Articles 35, 37, and 38.
Family Code Assignment No. 1|37
On July 17, 1987, shortly after the signing of the original Family Code,
Executive Order No. 227 was likewise signed into law, amending Articles
26, 36, and 39 of the Family Code. A second paragraph was added to
Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance
with the laws in force in the country where they were solemnized, and valid
there as such, shall also be valid in this country, except those prohibited
under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (Emphasis supplied)
On its face, the foregoing provision does not appear to govern the situation
presented by the case at hand. It seems to apply only to cases where at
the time of the celebration of the marriage, the parties are a Filipino citizen
and a foreigner. The instant case is one where at the time the marriage
was solemnized, the parties were two Filipino citizens, but later on, the
wife was naturalized as an American citizen and subsequently obtained a
divorce granting her capacity to remarry, and indeed she remarried an
American citizen while residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings9 on the Family Code, the
Catholic Bishops Conference of the Philippines (CBCP) registered the
following objections to Paragraph 2 of Article 26:
1. The rule is discriminatory. It discriminates against those whose spouses
are Filipinos who divorce them abroad. These spouses who are divorced
will not be able to re-marry, while the spouses of foreigners who validly
divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce even for
Filipino citizens. For those whose foreign spouses validly divorce them
abroad will also be considered to be validly divorced here and can re-
marry. We propose that this be deleted and made into law only after more
widespread consultation. (Emphasis supplied.)
Legislative Intent

Records of the proceedings of the Family Code deliberations showed that
the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-
Diy, a member of the Civil Code Revision Committee, is to avoid the absurd
situation where the Filipino spouse remains married to the alien spouse
who, after obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case
of Van Dorn v. Romillo, Jr.10 The Van Dorn case involved a marriage
between a Filipino citizen and a foreigner. The Court held therein that a
divorce decree validly obtained by the alien spouse is valid in the
Philippines, and consequently, the Filipino spouse is capacitated to remarry
under Philippine law.
Does the same principle apply to a case where at the time of the
celebration of the marriage, the parties were Filipino citizens, but later on,
one of them obtains a foreign citizenship by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of
Appeals.11 In Quita, the parties were, as in this case, Filipino citizens when
they got married. The wife became a naturalized American citizen in 1954
and obtained a divorce in the same year. The Court therein hinted, by way
of obiter dictum, that a Filipino divorced by his naturalized foreign spouse
is no longer married under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule
of reason, we hold that Paragraph 2 of Article 26 should be interpreted to
include cases involving parties who, at the time of the celebration of the
marriage were Filipino citizens, but later on, one of them becomes
naturalized as a foreign citizen and obtains a divorce decree. The Filipino
spouse should likewise be allowed to remarry as if the other party were a
foreigner at the time of the solemnization of the marriage. To rule
otherwise would be to sanction absurdity and injustice. Where the
interpretation of a statute according to its exact and literal import would
lead to mischievous results or contravene the clear purpose of the
legislature, it should be construed according to its spirit and reason,
disregarding as far as necessary the letter of the law. A statute may
therefore be extended to cases not within the literal meaning of its terms,
so long as they come within its spirit or intent.12
If we are to give meaning to the legislative intent to avoid the absurd
situation where the Filipino spouse remains married to the alien spouse
Family Code Assignment No. 1|38
who, after obtaining a divorce is no longer married to the Filipino spouse,
then the instant case must be deemed as coming within the contemplation
of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the application of
Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has been celebrated between a Filipino
citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating him
or her to remarry.
The reckoning point is not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at the time a valid divorce
is obtained abroad by the alien spouse capacitating the latter to remarry.
In this case, when Ciprianos wife was naturalized as an American citizen,
there was still a valid marriage that has been celebrated between her and
Cipriano. As fate would have it, the naturalized alien wife subsequently
obtained a valid divorce capacitating her to remarry. Clearly, the twin
requisites for the application of Paragraph 2 of Article 26 are both present
in this case. Thus Cipriano, the "divorced" Filipino spouse, should be
allowed to remarry.
We are also unable to sustain the OSGs theory that the proper remedy of
the Filipino spouse is to file either a petition for annulment or a petition for
legal separation. Annulment would be a long and tedious process, and in
this particular case, not even feasible, considering that the marriage of the
parties appears to have all the badges of validity. On the other hand, legal
separation would not be a sufficient remedy for it would not sever the
marriage tie; hence, the legally separated Filipino spouse would still remain
married to the naturalized alien spouse.
However, we note that the records are bereft of competent evidence duly
submitted by respondent concerning the divorce decree and the
naturalization of respondents wife. It is settled rule that one who alleges a
fact has the burden of proving it and mere allegation is not evidence.13
Accordingly, for his plea to prosper, respondent herein must prove his
allegation that his wife was naturalized as an American citizen. Likewise,
before a foreign divorce decree can be recognized by our own courts, the
 Family Code Assignment No. 1|39

party pleading it must prove the divorce as a fact and demonstrate its
conformity to the foreign law allowing it.14 Such foreign law must also be
proved as our courts cannot take judicial notice of foreign laws. Like any
other fact, such laws must be alleged and proved.15 Furthermore,
respondent must also show that the divorce decree allows his former wife
to remarry as specifically required in Article 26. Otherwise, there would be
no evidence sufficient to declare that he is capacitated to enter into
another marriage.

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

26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should
be interpreted to allow a Filipino citizen, who has been divorced by a
spouse who had acquired foreign citizenship and remarried, also to
remarry. However, considering that in the present petition there is no
sufficient evidence submitted and on record, we are unable to declare,
based on respondents bare allegations that his wife, who was naturalized
as an American citizen, had obtained a divorce decree and had remarried
an American, that respondent is now capacitated to remarry. Such
declaration could only be made properly upon respondents submission of
the aforecited evidence in his favor.

ACCORDINGLY, the petition by the Republic of the Philippines

is GRANTED. The assailed Decision dated May 15, 2002, and
Resolution dated July 4, 2002, of the Regional Trial Court of Molave,
Zamboanga del Sur, Branch 23, are hereby SET ASIDE.

No pronouncement as to costs.

SO ORDERED.
 Family Code Assignment No. 1|40

9. G.R. No. 166676 September 12, 2008 The petition was published in a newspaper of general circulation for three
(3) consecutive weeks and was posted in conspicuous places by the sheriff
REPUBLIC OF THE PHILIPPINES, Petitioner of the court. The Solicitor General entered his appearance and authorized
the Assistant Provincial Prosecutor to appear in his behalf.
vs
To prove her claim, respondent testified and presented the testimony of
JENNIFER B. CAGANDAHAN, Respondent Dr. Michael Sionzon of the Department of Psychiatry, University of the
Philippines-Philippine General Hospital. Dr. Sionzon issued a medical
DECISION certificate stating that respondents condition is known as CAH. He
explained that genetically respondent is female but because her body
QUISUMBING, J.: secretes male hormones, her female organs did not develop normally and
she has two sex organs female and male. He testified that this condition
This is a petition for review under Rule 45 of the Rules of Court raising is very rare, that respondents uterus is not fully developed because of lack
purely questions of law and seeking a reversal of the Decision[1] dated of female hormones, and that she has no monthly period. He further
January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, testified that respondents condition is permanent and recommended the
Laguna, which granted the Petition for Correction of Entries in Birth change of gender because respondent has made up her mind, adjusted to
Certificate filed by Jennifer B. Cagandahan and ordered the following her chosen role as male, and the gender change would be advantageous to
changes of entries in Cagandahans birth certificate: (1) the name "Jennifer her.
Cagandahan" changed to "Jeff Cagandahan" and (2) gender from "female"
to "male." The RTC granted respondents petition in a Decision dated January 12,
2005 which reads:
The facts are as follows.
The Court is convinced that petitioner has satisfactorily shown that he is
On December 11, 2003, respondent Jennifer Cagandahan filed a Petition entitled to the reliefs prayed [for]. Petitioner has adequately presented to
for Correction of Entries in Birth Certificate 2 before the RTC, Branch 33 of the Court very clear and convincing proofs for the granting of his petition.
Siniloan, Laguna. It was medically proven that petitioners body produces male hormones,
and first his body as well as his action and feelings are that of a male. He
In her petition, she alleged that she was born on January 13, 1981 and has chosen to be male. He is a normal person and wants to be
was registered as a female in the Certificate of Live Birth but while growing acknowledged and identified as a male.
up, she developed secondary male characteristics and was diagnosed to
have Congenital Adrenal Hyperplasia (CAH) which is a condition where WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is
persons thus afflicted possess both male and female characteristics. She hereby ordered to make the following corrections in the birth [c]ertificate
further alleged that she was diagnosed to have clitoral hyperthropy in her of Jennifer Cagandahan upon payment of the prescribed fees:
early years and at age six, underwent an ultrasound where it was
discovered that she has small ovaries. At age thirteen, tests revealed that a) By changing the name from Jennifer Cagandahan to JEFF
her ovarian structures had minimized, she has stopped growing and she CAGANDAHAN; and
has no breast or menstrual development. She then alleged that for all
interests and appearances as well as in mind and emotion, she has become b) By changing the gender from female to MALE.
a male person. Thus, she prayed that her birth certificate be corrected such
that her gender be changed from female to male and her first name be It is likewise ordered that petitioners school records, voters registry,
changed from Jennifer to Jeff. baptismal certificate, and other pertinent records are hereby amended to
conform with the foregoing corrected data.

SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General (OSG) seeking a
reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING
THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT
HAVE NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF
"SEX" OR "GENDER" IN THE BIRTH CERTIFICATE, WHILE RESPONDENTS
MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES
NOT MAKE HER A "MALE."4
Simply stated, the issue is whether the trial court erred in ordering the
correction of entries in the birth certificate of respondent to change her sex
or gender, from female to male, on the ground of her medical condition
known as CAH, and her name from "Jennifer" to "Jeff," under Rules 103
and 108 of the Rules of Court.
The OSG contends that the petition below is fatally defective for non-
compliance with Rules 103 and 108 of the Rules of Court because while the
local civil registrar is an indispensable party in a petition for cancellation or
correction of entries under Section 3, Rule 108 of the Rules of Court,
respondents petition before the court a quo did not implead the local civil
registrar.5 The OSG further contends respondents petition is fatally
defective since it failed to state that respondent is a bona fide resident of
the province where the petition was filed for at least three (3) years prior
to the date of such filing as mandated under Section 2(b), Rule 103 of the
Rules of Court.6 The OSG argues that Rule 108 does not allow change of
sex or gender in the birth certificate and respondents claimed medical
condition known as CAH does not make her a male.7
Family Code Assignment No. 1|41
On the other hand, respondent counters that although the Local Civil
Registrar of Pakil, Laguna was not formally named a party in the Petition
for Correction of Birth Certificate, nonetheless the Local Civil Registrar was
furnished a copy of the Petition, the Order to publish on December 16,
2003 and all pleadings, orders or processes in the course of the
proceedings,8 respondent is actually a male person and hence his birth
certificate has to be corrected to reflect his true sex/gender,9 change of sex
or gender is allowed under Rule 108,10 and respondent substantially
complied with the requirements of Rules 103 and 108 of the Rules of
Court.11
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME
Section 1. Venue. A person desiring to change his name shall present the
petition to the Regional Trial Court of the province in which he resides, [or,
in the City of Manila, to the Juvenile and Domestic Relations Court].
Sec. 2. Contents of petition. A petition for change of name shall be
signed and verified by the person desiring his name changed, or some
other person on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the province where
the petition is filed for at least three (3) years prior to the date of such
filing;
(b) The cause for which the change of the petitioner's name is sought;
(c) The name asked for.
Sec. 3. Order for hearing. If the petition filed is sufficient in form and
substance, the court, by an order reciting the purpose of the petition, shall
fix a date and place for the hearing thereof, and shall direct that a copy of
the order be published before the hearing at least once a week for three
(3) successive weeks in some newspaper of general circulation published in
the province, as the court shall deem best. The date set for the hearing
shall not be within thirty (30) days prior to an election nor within four (4)
months after the last publication of the notice.

Sec. 4. Hearing. Any interested person may appear at the hearing and
oppose the petition. The Solicitor General or the proper provincial or city
fiscal shall appear on behalf of the Government of the Republic.
Sec. 5. Judgment. Upon satisfactory proof in open court on the date fixed
in the order that such order has been published as directed and that the
allegations of the petition are true, the court shall, if proper and reasonable
cause appears for changing the name of the petitioner, adjudge that such
name be changed in accordance with the prayer of the petition.
Sec. 6. Service of judgment. Judgments or orders rendered in connection
with this rule shall be furnished the civil registrar of the municipality or city
where the court issuing the same is situated, who shall forthwith enter the
same in the civil register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
Section 1. Who may file petition. Any person interested in any act, event,
order or decree concerning the civil status of persons which has been
recorded in the civil register, may file a verified petition for the cancellation
or correction of any entry relating thereto, with the Regional Trial Court of
the province where the corresponding civil registry is located.
Sec. 2. Entries subject to cancellation or correction. Upon good and valid
grounds, the following entries in the civil register may be cancelled or
corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments declaring marriages
void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k) election, loss
or recovery of citizenship; (l) civil interdiction; (m) judicial determination of
filiation; (n) voluntary emancipation of a minor; and (o) changes of name.
Sec. 3. Parties. When cancellation or correction of an entry in the civil
register is sought, the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the
proceeding.
Family Code Assignment No. 1|42
Sec. 4. Notice and publication. Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same, and
cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once a week
for three (3) consecutive weeks in a newspaper of general circulation in the
province.
Sec. 5. Opposition. The civil registrar and any person having or claiming
any interest under the entry whose cancellation or correction is sought
may, within fifteen (15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition thereto.
Sec. 6. Expediting proceedings. The court in which the proceedings is
brought may make orders expediting the proceedings, and may also grant
preliminary injunction for the preservation of the rights of the parties
pending such proceedings.
Sec. 7. Order. After hearing, the court may either dismiss the petition or
issue an order granting the cancellation or correction prayed for. In either
case, a certified copy of the judgment shall be served upon the civil
registrar concerned who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective for non-
compliance with Rules 103 and 108 of the Rules of Court because
respondents petition did not implead the local civil registrar. Section 3,
Rule 108 provides that the civil registrar and all persons who have or claim
any interest which would be affected thereby shall be made parties to the
proceedings. Likewise, the local civil registrar is required to be made a
party in a proceeding for the correction of name in the civil registry. He is
an indispensable party without whom no final determination of the case
can be had.[12] Unless all possible indispensable parties were duly notified
of the proceedings, the same shall be considered as falling much too short
of the requirements of the rules.13 The corresponding petition should also
implead as respondents the civil registrar and all other persons who may
have or may claim to have any interest that would be affected
thereby.14 Respondent, however, invokes Section 6,[15] Rule 1 of the
Rules of Court which states that courts shall construe the Rules liberally to
promote their objectives of securing to the parties a just, speedy and
inexpensive disposition of the matters brought before it. We agree that
there is substantial compliance with Rule 108 when respondent furnished a
copy of the petition to the local civil registrar.

The determination of a persons sex appearing in his birth certificate is a
legal issue and the court must look to the statutes. In this connection,
Article 412 of the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected without
a judicial order.
Together with Article 376[16] of the Civil Code, this provision was
amended by Republic Act No. 9048[17] in so far as clerical or
typographical errors are involved. The correction or change of such matters
can now be made through administrative proceedings and without the need
for a judicial order. In effect, Rep. Act No. 9048 removed from the ambit of
Rule 108 of the Rules of Court the correction of such errors. Rule 108 now
applies only to substantial changes and corrections in entries in the civil
register.18
Under Rep. Act No. 9048, a correction in the civil registry involving the
change of sex is not a mere clerical or typographical error. It is a
substantial change for which the applicable procedure is Rule 108 of the
Rules of Court.19
The entries envisaged in Article 412 of the Civil Code and correctable under
Rule 108 of the Rules of Court are those provided in Articles 407 and 408
of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth.20
Respondent undisputedly has CAH. This condition causes the early or
"inappropriate" appearance of male characteristics. A person, like
Family Code Assignment No. 1|43
respondent, with this condition produces too much androgen, a male
hormone. A newborn who has XX chromosomes coupled with CAH usually
has a (1) swollen clitoris with the urethral opening at the base, an
ambiguous genitalia often appearing more male than female; (2) normal
internal structures of the female reproductive tract such as the ovaries,
uterus and fallopian tubes; as the child grows older, some features start to
appear male, such as deepening of the voice, facial hair, and failure to
menstruate at puberty. About 1 in 10,000 to 18,000 children are born with
CAH.
CAH is one of many conditions[21] that involve intersex anatomy. During
the twentieth century, medicine adopted the term "intersexuality" to apply
to human beings who cannot be classified as either male or
female.[22] The term is now of widespread use. According to Wikipedia,
intersexuality "is the state of a living thing of a gonochoristic species whose
sex chromosomes, genitalia, and/or secondary sex characteristics are
determined to be neither exclusively male nor female. An organism with
intersex may have biological characteristics of both male and female
sexes."
Intersex individuals are treated in different ways by different cultures. In
most societies, intersex individuals have been expected to conform to
either a male or female gender role.[23] Since the rise of modern medical
science in Western societies, some intersex people with ambiguous
external genitalia have had their genitalia surgically modified to resemble
either male or female genitals.[24] More commonly, an intersex individual
is considered as suffering from a "disorder" which is almost always
recommended to be treated, whether by surgery and/or by taking lifetime
medication in order to mold the individual as neatly as possible into the
category of either male or female.
In deciding this case, we consider the compassionate calls for recognition
of the various degrees of intersex as variations which should not be subject
to outright denial. "It has been suggested that there is some middle ground
between the sexes, a no-mans land for those individuals who are neither
truly male nor truly female."[25] The current state of Philippine statutes
apparently compels that a person be classified either as a male or as a
female, but this Court is not controlled by mere appearances when nature
itself fundamentally negates such rigid classification.
 Family Code Assignment No. 1|44

In the instant case, if we determine respondent to be a female, then there anatomy. To him belongs the human right to the pursuit of happiness and
is no basis for a change in the birth certificate entry for gender. But if we of health. Thus, to him should belong the primordial choice of what courses
determine, based on medical testimony and scientific development showing of action to take along the path of his sexual development and maturation.
the respondent to be other than female, then a change in the In the absence of evidence that respondent is an "incompetent"[27] and in
the absence of evidence to show that classifying respondent as a male will
subjects birth certificate entry is in order. harm other members of society who are equally entitled to protection
under the law, the Court affirms as valid and justified the respondents
Biologically, nature endowed respondent with a mixed (neither consistently position and his personal judgment of being a male.
and categorically female nor consistently and categorically male)
composition. Respondent has female (XX) chromosomes. However, In so ruling we do no more than give respect to (1) the diversity of nature;
respondents body system naturally produces high levels of male hormones and (2) how an individual deals with what nature has handed out. In other
(androgen). As a result, respondent has ambiguous genitalia and the words, we respect respondents congenital condition and his mature
phenotypic features of a male. decision to be a male. Life is already difficult for the ordinary person. We
cannot but respect how respondent deals with his unordinary state and
Ultimately, we are of the view that where the person is biologically or thus help make his life easier, considering the unique circumstances in this
naturally intersex the determining factor in his gender classification would case.
be what the individual, like respondent, having reached the age of
majority, with good reason thinks of his/her sex. Respondent here thinks of As for respondents change of name under Rule 103, this Court has held
himself as a male and considering that his body produces high levels of that a change of name is not a matter of right but of judicial discretion, to
male hormones (androgen) there is preponderant biological support for be exercised in the light of the reasons adduced and the consequences that
considering him as being male. Sexual development in cases of intersex will follow.[28] The trial courts grant of respondents change of name from
persons makes the gender classification at birth inconclusive. It is at Jennifer to Jeff implies a change of a feminine name to a masculine name.
maturity that the gender of such persons, like respondent, is fixed. Considering the consequence that respondents change of name merely
recognizes his preferred gender, we find merit in respondents change of
Respondent here has simply let nature take its course and has not taken name. Such a change will conform with the change of the entry in his birth
unnatural steps to arrest or interfere with what he was born with. And certificate from female to male.
accordingly, he has already ordered his life to that of a male. Respondent
could have undergone treatment and taken steps, like taking lifelong WHEREFORE, the Republics petition is DENIED. The Decision dated
medication,[26] to force his body into the categorical mold of a female but January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan,
he did not. He chose not to do so. Nature has instead taken its due course Laguna, is AFFIRMED. No pronouncement as to costs.
in respondents development to reveal more fully his male characteristics.
SO ORDERED.
In the absence of a law on the matter, the Court will not dictate on
respondent concerning a matter so innately private as ones sexuality and
lifestyle preferences, much less on whether or not to undergo medical
treatment to reverse the male tendency due to CAH. The Court will not
consider respondent as having erred in not choosing to undergo treatment
in order to become or remain as a female. Neither will the Court force
respondent to undergo treatment and to take medication in order to fit the
mold of a female, as society commonly currently knows this gender of the
human species. Respondent is the one who has to live with his intersex
 Family Code Assignment No. 1|45

10. G.R. No. 174689 October 22, 2007 psychological examination, hormone treatment and breast augmentation.
His attempts to transform himself to a "woman" culminated on January 27,
ROMMEL JACINTO DANTES SILVERIO, petitioner, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand.
vs. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic
REPUBLIC OF THE PHILIPPINES, respondent. and reconstruction surgeon in the Philippines, who issued a medical
certificate attesting that he (petitioner) had in fact undergone the
DECISION procedure.

CORONA, J.: From then on, petitioner lived as a female and was in fact engaged to be
married. He then sought to have his name in his birth certificate changed
When God created man, He made him in the likeness of God; He from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."
created them male and female. (Genesis 5:1-2)
An order setting the case for initial hearing was published in the Peoples
Amihan gazed upon the bamboo reed planted by Bathala and she Journal Tonight, a newspaper of general circulation in Metro Manila, for
heard voices coming from inside the bamboo. "Oh North Wind! three consecutive weeks.3 Copies of the order were sent to the Office of
North Wind! Please let us out!," the voices said. She pecked the the Solicitor General (OSG) and the civil registrar of Manila.
reed once, then twice. All of a sudden, the bamboo cracked and slit
open. Out came two human beings; one was a male and the other On the scheduled initial hearing, jurisdictional requirements were
was a female. Amihan named the man "Malakas" (Strong) and the established. No opposition to the petition was made.
woman "Maganda" (Beautiful). (The Legend of Malakas and
Maganda) During trial, petitioner testified for himself. He also presented Dr. Reysio-
Cruz, Jr. and his American fianc, Richard P. Edel, as witnesses.
When is a man a man and when is a woman a woman? In particular, does
the law recognize the changes made by a physician using scalpel, drugs On June 4, 2003, the trial court rendered a decision4 in favor of petitioner.
and counseling with regard to a persons sex? May a person successfully Its relevant portions read:
petition for a change of name and sex appearing in the birth certificate to
reflect the result of a sex reassignment surgery? Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive but
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a solely for the purpose of making his birth records compatible with
petition for the change of his first name and sex in his birth certificate in his present sex.
the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP
Case No. 02-105207, impleaded the civil registrar of Manila as respondent. The sole issue here is whether or not petitioner is entitled to the
relief asked for.
Petitioner alleged in his petition that he was born in the City of Manila to
the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, The [c]ourt rules in the affirmative.
1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his
certificate of live birth (birth certificate). His sex was registered as "male." Firstly, the [c]ourt is of the opinion that granting the petition would
be more in consonance with the principles of justice and equity.
He further alleged that he is a male transsexual, that is, "anatomically With his sexual [re-assignment], petitioner, who has always felt,
male but feels, thinks and acts as a female" and that he had always thought and acted like a woman, now possesses the physique of a
identified himself with girls since childhood. Feeling trapped in a mans
1 female. Petitioners misfortune to be trapped in a mans body is not
body, he consulted several doctors in the United States. He underwent his own doing and should not be in any way taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice
will be caused to anybody or the community in granting the
petition. On the contrary, granting the petition would bring the
much-awaited happiness on the part of the petitioner and her
[fianc] and the realization of their dreams.
Finally, no evidence was presented to show any cause or ground to female, he became entitled to the civil registry changes sought. We
deny the present petition despite due notice and publication disagree.
thereof. Even the State, through the [OSG] has not seen fit to
interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition right.12 Petitions for change of name are controlled by statutes.13 In this
and ordering the Civil Registrar of Manila to change the entries connection, Article 376 of the Civil Code provides:
appearing in the Certificate of Birth of [p]etitioner, specifically for
petitioners first name from "Rommel Jacinto" to MELY and
petitioners gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the
OSG, filed a petition for certiorari in the Court of Appeals. 6 It alleged that
there is no law allowing the change of entries in the birth certificate by
reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor
of the Republic. It ruled that the trial courts decision lacked legal basis.
There is no law allowing the change of either name or sex in the certificate
of birth on the ground of sex reassignment through surgery. Thus, the
Court of Appeals granted the Republics petition, set aside the decision of
the trial court and ordered the dismissal of SP Case No. 02-105207.
Petitioner moved for reconsideration but it was denied.9 Hence, this
petition.
Petitioner essentially claims that the change of his name and sex in his
birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules
103 and 108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Persons First Name Cannot Be Changed On the Ground of Sex
Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for
change of name and sex. As found by the trial court:
Family Code Assignment No. 1|46
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive
but solely for the purpose of making his birth records
compatible with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a
The State has an interest in the names borne by individuals and entities for
purposes of identification.11 A change of name is a privilege, not a
ART. 376. No person can change his name or surname without
judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In
particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and
Change of First Name or Nickname. No entry in a civil register
shall be changed or corrected without a judicial order, except for
clerical or typographical errors and change of first name or
nickname which can be corrected or changed by the concerned city
or municipal civil registrar or consul general in accordance with the
provisions of this Act and its implementing rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power and
authority to entertain petitions for change of first name to the city or
municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The intent
and effect of the law is to exclude the change of first name from the
coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and
unless an administrative petition for change of name is first filed and
subsequently denied.15 It likewise lays down the corresponding
venue,16 form17 and procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in nature, not
judicial.

RA 9048 likewise provides the grounds for which change of first name may
be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. The
petition for change of first name or nickname may be allowed in
any of the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous,
tainted with dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly known
by that first name or nickname in the community; or
(3) The change will avoid confusion.
Petitioners basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex
he thought he transformed himself into through surgery. However, a
change of name does not alter ones legal capacity or civil status.18 RA
9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioners first
name for his declared purpose may only create grave complications in the
civil registry and the public interest.
Before a person can legally change his given name, he must present proper
or reasonable cause or any compelling reason justifying such change.19 In
addition, he must show that he will be prejudiced by the use of his true and
official name.20 In this case, he failed to show, or even allege, any
prejudice that he might suffer as a result of using his true and official
name.
In sum, the petition in the trial court in so far as it prayed for the change
of petitioners first name was not within that courts primary jurisdiction as
the petition should have been filed with the local civil registrar concerned,
assuming it could be legally done. It was an improper remedy because the
proper remedy was administrative, that is, that provided under RA 9048. It
was also filed in the wrong venue as the proper venue was in the Office of
the Civil Registrar of Manila where his birth certificate is kept. More
importantly, it had no merit since the use of his true and official name does Under RA 9048, a correction in the civil registry involving the change of sex
not prejudice him at all. For all these reasons, the Court of Appeals is not a mere clerical or typographical error. It is a substantial change for
Family Code Assignment No. 1|47
correctly dismissed petitioners petition in so far as the change of his first
name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To
Sex On the Ground of Sex Reassignment
The determination of a persons sex appearing in his birth certificate is a
legal issue and the court must look to the statutes.21 In this connection,
Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or
corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by
RA 9048 in so far as clerical or typographical errors are involved. The
correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors.22 Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2. Definition of Terms. As used in this Act, the following
terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers to a mistake
committed in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil register
that is harmless and innocuous, such as misspelled name
or misspelled place of birth or the like, which is visible to
the eyes or obvious to the understanding, and can be
corrected or changed only by reference to other existing
record or records: Provided, however, That no correction
must involve the change of nationality, age, status
or sex of the petitioner. (emphasis supplied)
which the applicable procedure is Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under
Rule 108 of the Rules of Court are those provided in Articles 407 and 408
of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil
status of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void
from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11)
loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation of a
minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth.25 However, no
reasonable interpretation of the provision can justify the conclusion that it
covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or
error from" while to change means "to replace something with something
else of the same kind or with something that serves as a substitute."26 The
birth certificate of petitioner contained no error. All entries therein,
including those corresponding to his first name and sex, were all correct.
No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate
children and naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as legal separations,
annulments of marriage, declarations of nullity of marriages, adoptions,
naturalization, loss or recovery of citizenship, civil interdiction, judicial
determination of filiation and changes of name). These acts, events and
judicial decrees produce legal consequences that touch upon the legal
capacity, status and nationality of a person. Their effects are expressly
sanctioned by the laws. In contrast, sex reassignment is not among those
acts or events mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.
Family Code Assignment No. 1|48
"Status" refers to the circumstances affecting the legal situation (that is,
the sum total of capacities and incapacities) of a person in view of his age,
nationality and his family membership.27
The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not. The comprehensive
term status include such matters as the beginning and end of
legal personality, capacity to have rights in general, family
relations, and its various aspects, such as birth, legitimation,
adoption, emancipation, marriage, divorce, and sometimes even
succession.28 (emphasis supplied)
A persons sex is an essential factor in marriage and family relations. It is a
part of a persons legal capacity and civil status. In this connection, Article
413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil
status shall be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. The declaration of
the physician or midwife in attendance at the birth or, in default
thereof, the declaration of either parent of the newborn child, shall
be sufficient for the registration of a birth in the civil register. Such
declaration shall be exempt from documentary stamp tax and shall
be sent to the local civil registrar not later than thirty days after
the birth, by the physician or midwife in attendance at the birth or
by either parent of the newborn child.
In such declaration, the person above mentioned shall certify to the
following facts: (a) date and hour of birth; (b) sex and
nationality of infant; (c) names, citizenship and religion of parents
or, in case the father is not known, of the mother alone; (d) civil
status of parents; (e) place where the infant was born; and (f)
such other data as may be required in the regulations to be issued.
 Family Code Assignment No. 1|49

xxx xxx xxx (emphasis supplied) The trial court opined that its grant of the petition was in consonance with
the principles of justice and equity. It believed that allowing the petition
Under the Civil Register Law, a birth certificate is a historical record of the would cause no harm, injury or prejudice to anyone. This is wrong.
facts as they existed at the time of birth.29 Thus, the sex of a person is
determined at birth, visually done by the birth attendant (the physician or The changes sought by petitioner will have serious and wide-ranging legal
midwife) by examining the genitals of the infant. Considering that there is and public policy consequences. First, even the trial court itself found that
no law legally recognizing sex reassignment, the determination of a the petition was but petitioners first step towards his eventual marriage to
persons sex made at the time of his or her birth, if not attended by his male fianc. However, marriage, one of the most sacred social
error,30is immutable.31 institutions, is a special contract of permanent union between a man and a
woman.37 One of its essential requisites is the legal capacity of the
When words are not defined in a statute they are to be given their common contracting parties who must be a male and a female.38 To grant the
and ordinary meaning in the absence of a contrary legislative intent. The changes sought by petitioner will substantially reconfigure and greatly alter
words "sex," "male" and "female" as used in the Civil Register Law and the laws on marriage and family relations. It will allow the union of a man
laws concerning the civil registry (and even all other laws) should therefore with another man who has undergone sex reassignment (a male-to-female
be understood in their common and ordinary usage, there being no post-operative transsexual). Second, there are various laws which apply
legislative intent to the contrary. In this connection, sex is defined as "the particularly to women such as the provisions of the Labor Code on
sum of peculiarities of structure and function that distinguish a male from a employment of women,39 certain felonies under the Revised Penal
female"32 or "the distinction between male and female."33 Female is "the Code40 and the presumption of survivorship in case of calamities under
sex that produces ova or bears young"34 and male is "the sex that has Rule 131 of the Rules of Court,41 among others. These laws underscore the
organs to produce spermatozoa for fertilizing ova."35 Thus, the words public policy in relation to women which could be substantially affected if
"male" and "female" in everyday understanding do not include persons who petitioners petition were to be granted.
have undergone sex reassignment. Furthermore, "words that are employed
in a statute which had at the time a well-known meaning are presumed to It is true that Article 9 of the Civil Code mandates that "[n]o judge or court
have been used in that sense unless the context compels to the shall decline to render judgment by reason of the silence, obscurity or
contrary."36 Since the statutory language of the Civil Register Law was insufficiency of the law." However, it is not a license for courts to engage in
enacted in the early 1900s and remains unchanged, it cannot be argued judicial legislation. The duty of the courts is to apply or interpret the law,
that the term "sex" as used then is something alterable through surgery or not to make or amend it.
something that allows a post-operative male-to-female transsexual to be
included in the category "female." In our system of government, it is for the legislature, should it choose to
do so, to determine what guidelines should govern the recognition of the
For these reasons, while petitioner may have succeeded in altering his effects of sex reassignment. The need for legislative guidelines becomes
body and appearance through the intervention of modern surgery, no law particularly important in this case where the claims asserted are statute-
authorizes the change of entry as to sex in the civil registry for that based.
reason. Thus, there is no legal basis for his petition for the correction or
change of the entries in his birth certificate. To reiterate, the statutes define who may file petitions for change of first
name and for correction or change of entries in the civil registry, where
Neither May Entries in the Birth Certificate As to First Name or Sex they may be filed, what grounds may be invoked, what proof must be
Be Changed on the Ground of Equity presented and what procedures shall be observed. If the legislature intends
to confer on a person who has undergone sex reassignment the privilege to
change his name and sex to conform with his reassigned sex, it has to
 Family Code Assignment No. 1|50

enact legislation laying down the guidelines in turn governing the

conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when

a person may be recognized as having successfully changed his sex.
However, this Court has no authority to fashion a law on that matter, or on
anything else. The Court cannot enact a law where no law exists. It can
only apply or interpret the written word of its co-equal branch of
government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of

happiness, contentment and [the] realization of their dreams." No
argument about that. The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the commonly recognized
parameters of social convention and that, at least for them, life is indeed
an ordeal. However, the remedies petitioner seeks involve questions of
public policy to be addressed solely by the legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.