Persons and Family Relations Legal Separation Page |1
THIRD DIVISION opposition, the Pasig RTC granted the motion.6chanrobleslaw
G.R. No. 200072, June 20, 2016
PHILIP YU, Petitioner, v. VIVECA LIM YU, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the
Rules of Court seeking to reverse and set aside the Decision1 dated
September 30, 2011 and Resolution2 dated January 5, 2012 of the Court of
Appeals (CA) in CA-G.R. SP No. 111414 which granted the petition for the
annulment of the Decision3 dated August 20, 2008 of the Regional Trial
Court (RTC), Fourth Judicial Region, Branch 10, Balayan, Batangas.
The factual antecedents are as follows.
Petitioner Philip Yu and respondent Viveca Lim Yu were married on
November 18, 1984. They had four children and maintained their conjugal
home at Room 1603 Horizon Condominium, Meralco Avenue, Pasig, Metro
Manila. In 1993, however, Viveca left the conjugal home with their four
children and filed a Petition for Legal Separation against Philip before the
RTC of Pasig City, Branch 261, for repeated physical violence, grossly
abusive conduct against her and the children, sexual infidelity, and attempt
on her life. She prayed for permanent custody over the children, support,
and the dissolution and distribution of their conjugal partnership valued at
approximately P5,000,000.00.4chanrobleslaw
Philip denied the accusations against him claiming that it was Viveca who
actually attacked him a few times. He narrated that his marriage to Viveca
was arranged according to the Chinese tradition and that it was much later
when he discovered Viveca's excessively jealous, cynical, and insecure
behaviour. He countered that since she abandoned the family home, taking
their four children away, she was not entitled to support. She was, likewise,
unqualified to become the administrator of their conjugal funds, which had
outstanding obligations. Thus, Philip prayed in his Counterclaim for the
declaration of nullity of their marriage due to Viveca's psychological
incapacity, rendering her incapable of complying with her marital
obligations.5chanrobleslaw
On April 24, 2007, however, Philip filed a Motion to Withdraw Counterclaim
for Declaration of Nullity of Marriage revealing that he no longer had the
desire to have his marriage declared void. Despite Viveca's fervent
On July 1, 2009, the RTC of Pasig City rendered a Decision7 dismissing the
Petition for Legal Separation in the following
wise:ChanRoblesVirtualawlibrary
From the facts obtaining in this case, the Court finds that the
parties are in pari delicto warranting a denial of this
petition. Respondent's illicit relationship with Linda Daet and his repeated
verbal and physical abuses towards petitioner come within the purview of
pars. 8 and 1 of Art. 55 of the Family Code of the Philippines whereas
petitioner's unjustifiable abandonment bringing with her their children
without the knowledge and consent of respondent and her assaulting
respondent with a 10-inch knife are those contemplated in pars. 10 and 9 of
the same code.
Notwithstanding the foregoing Court's findings, the same becomes
moot with the declaration of nullity of the marriage of the parties,
on the ground of the psychological incapacity of petitioner, Viveca
Yu, pursuant to the Decision of Branch 10, RTC of Balayan,
Batangas, which attained its finality on October 13, 2008. Since the
marriage of the parties was declared a nullity there is, therefore, no legal
basis to issue a decree of legal separation to the spouses whose marriage
has already been declared of no force and effect.
WHEREFORE, premises considered, this petition should be, as it is hereby
DISMISSED, for lack of merit.
SO ORDERED.8chanroblesvirtuallawlibrary
Claiming to be completely unaware of the proceedings before the RTC of
Balayan, Batangas, nullifying her marriage with Philip on the ground of her
psychological incapacity, Viveca filed a Petition for Annulment of
Judgment9 before the CA seeking to annul the Decision dated August 20,
2008 of said court. According to Viveca, jurisdiction over her person did not
properly vest since she was not duly served with Summons. She alleged that
she was deprived of her right to due process when Philip fraudulently
declared that her address upon which she may be duly summoned was still
at their conjugal home, when he clearly knew that she had long left said
address for the United States of America. Viveca likewise maintained that
 Persons and Family Relations
had Philip complied with the legal requirements for an effective service of
summons by publication, she would have been able to rightly participate in
the proceedings before the Batangas court.
On September 30, 2011, the CA granted Viveca's petition ruling as
follows:ChanRoblesVirtualawlibrary
The Petition for Declaration of Nullity of Marriage affecting the personal
status of private respondent is in the nature of an action in rem. This is so
because the term "personal status" includes family relations, particularly the
relations between husband and wife.
With this premise in mind, it is beyond cavil that the court a quo was
justified in resorting to Summons by publication. Petitioner is a nonresident
defendant who left the Philippines with her children way back in 1997 and
has now been living in the United States of America. The court a quo validly
acquired jurisdiction to hear and decide the case given that as adumbrated,
in a proceeding in rem, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court, provided that the court
acquires jurisdiction over the res.
Still and all, there is more to this case than meets the eye. Private
respondent knew that petitioner left the conjugal home on account
of their marital difficulties. She temporarily resided at her parent's house
in Greenhills, Mandaluyong, Metro Manila. But during the pendency of
the Legal Separation case, she lived in Quezon City. This much was
revealed by private respondent himself in the Amended Answer
with Counterclaim filed in the Legal Separation suit-
"10. After abandoning the conjugal abode on 24 August 1993,
petitioner resided at her parent's house in Richbelt Condominium,
Annapolis Street, Greenhills, Mandaluyong, Metro Manila, until she
moved to her present address in October 1993. x x x x
This knowledge notwithstanding, private respondent declared
before the court a quo that the "last known address" of petitioner
was still her conjugal abode at Unit 1603 Horizon Condominium,
Mcralco Avenue, Ortigas, Pasig City. While private respondent knew
that it was well-nigh impossible for petitioner to
receive Summons and other court notices at their former conjugal
home, still, he supplied the aforesaid address.
We cannot turn a blind eye to the fact that private respondent
Legal Separation Page |2
moved for the dismissal of his counterclaim for nullity of marriage
in the Legal Separation case in 2007 as he had by then had the
sinister motive of filing the Petition for Declaration of Nullity of
Marriage before the court a quo. Private respondent knew that if he
breathed a word on the filing and pendency of the latter Petition,
petitioner would vigorously resist it as revealed by her tenacious
opposition in the proceedings before the RTC-Pasig.
The deceitful scheme employed by private respondent deprived
petitioner of her constitutional right to due process which ensued in
her failure to participate in the proceedings before the court a quo.
To Our mind, this compelling justification warrants the annulment
of judgement.10chanroblesvirtuallawlibrary
In its Resolution dated January 5, 2012, the CA denied Philip's Motion for
Reconsideration finding no cogent and persuasive reason to revise or reverse
its Decision. Hence, this petition invoking the following
grounds:ChanRoblesVirtualawlibrary
I.
THE COURT OF APPEALS ERRED WHEN IT SET ASIDE THE FINAL AND
EXECUTORY DECISION OF THE COURT A QUO DESPITE ITS ACCURATE
FINDINGS THAT THE COURT A QUO PROPERLY ACQUIRED JURISDICTION
OVER THE ACTION IN REM THROUGH SUMMONS BY PUBLICATION.
II.
THE PUBLICATION OF THE ORDER OF THE COURT A QUO, SUMMONS, THE
COMPLAINT AS WELL AS THE DECISION RENDERED THEREIN IS NOTICE
TO THE WHOLE WORLD INCLUDING RESPONDENT. RESPONDENT WAS
THEREFORE CONSTRUCTIVELY NOTIFIED OF THE PROCEEDINGS AND WAS
NOT DENIED DUE PROCESS HAVING BEEN DULY NOTIFIED BY
PUBLICATION.
III.
RESPONDENT HAS BEEN DOMICILED IN THE UNITED STATES OF AMERICA
 Persons and Family Relations
FOR MORE THAN TEN (10) YEARS AND WHOSE ADDRESS IS UNKNOWN TO
PETITIONER. AS FAR AS PETITIONER IS CONCERNED, UNIT 1603 HORIZON
CONDOMINIUM, MERALCO AVENUE, PASIG CITY IS THE LAST KNOWN
ADDRESS OF RESPONDENT, BEING THE CONJUGAL HOME.
IV.
PETITIONER IS CURRENTLY NOT A RESIDENT OF THE CONJUGAL HOME.
V.
THE OFFICE OF THE SOLICITOR GENERAL AND/OR THE OFFICE OF THE
CITY PROSECUTOR OF BALAYAN, BATANGAS, APPEARED AS COUNSEL FOR
THE STATE AND FULLY PROTECTED THE INTEREST OF THE STATE
INCLUDING THE INTEREST OF RESPONDENT.
VI.
PETITIONER CANNOT BE FAULTED FOR MOVING FOR THE WITHDRAWAL
OF HIS COUNTER-CLAIM FOR DECLARATION OF NULLITY OF MARRIAGE,
WHICH IS ALLOWED BY SECTION 2, RULE 17 OF THE NEW RULES OF
COURT AS AMENDED, AND SAID WITHDRAWAL WAS EVEN APPROVED BY
THE RTC OF PASIG.
VII.
THE PETITION FOR ANNULMENT OF DECISION FILED BEFORE THE COURT
OF APPEALS WAS DEFECTIVE AND NOT IN ACCORDANCE WITH RULE 47 OF
THE NEW RULES OF COURT, AS AMENDED, FOR HAVING FAILED TO STATE
AND ALLEGE THE DEFENSES THAT RESPONDENT HAS AGAINST
PETITIONER.
Legal Separation Page |3
VIII.
EVEN ASSUMING ARGUENDO THAT THE DEFENSES THAT ARE AVAILABLE
TO RESPONDENT ARE THOSE THAT WERE PRESENTED IN THE LEGAL
SEPARATION CASE THAT WAS DISMISSED BY THE RTC OF PASIG CITY,
SAID GROUNDS ONLY BOLSTER THE FACT THAT THE DECISION DATED
AUGUST 20, 2008 OF THE RTC OF BALAYAN, BATANGAS, CORRECTLY
NULLIFIED THE MARRIAGE DUE TO RESPONDENT'S PSYCHOLOGICAL
INCAPACITY.
IX.
THE COURT OF APPEALS DID NOT OBSERVE AND FOLLOW SECTIONS 6
AND 7 OF RULE 47 OF THE REVISED RULES OF COURT, AS AMENDED.
In essence, Philip questions the appellate court's judgment of setting aside
the decision of the Batangas RTC despite its own finding that said court
validly acquired jurisdiction when Summons was duly served on Viveca by
publication. He maintains that since service of summons was properly
accomplished by publication thereof in a newspaper of general circulation as
well as its personal service on Viveca at her last known address, it logically
follows that any and all resolutions rendered by the trial court are valid and
binding on the parties. Thus, the decision of the Batangas court which
acquired jurisdiction over the res should be immutable as it is already final
and executory.11chanrobleslaw
Philip also questions the appellate court's choice of supporting jurisprudence
alleging them to be inapplicable to the instant case. He asserts that the
teachings in Spouses Belen v. Judge Chavez,12Biaco v. Philippine Countryside
Rural Bank,13 and Ancheta v. Judge Ancheta14 fail to be instructive simply
because they involve substituted service of summons whereas the mode of
service in this case is by publication. Philip further asserts that said
jurisprudential doctrines even teach us that in proceedings in rem or quasi in
rem, such as the case at hand, jurisdiction over the defendant is not a
prerequisite to confer jurisdiction on the court for as long as the court
acquires jurisdiction over the res. Thus, summons must be served upon the
defendant not for the purpose of vesting the court with jurisdiction but
 Persons and Family Relations
merely for satisfying the due process requirements, which in this case was
duly complied with when Viveca, who is a non-resident, not found in the
Philippines, was served with summons by publication.15chanrobleslaw
Hence, Philip faults the CA in finding that due to his bad faith in maliciously
supplying the Batangas court with an erroneous address wherein Viveca may
supposedly be summoned, she was deprived of her constitutional right to
due process, warranting the annulment of the subject judgment. According
to him, as far as he was concerned, Viveca's last known address was their
conjugal home. This is because the addresses supplied in the proceedings of
the Legal Separation case before the RTC of Pasig City were merely
temporary in nature.16 Philip recalled that when Viveca left their conjugal
abode on August 24, 1993, she temporarily stayed at her parents' house in
Greenhills, Mandaluyong, for less than two months then, thereafter, stayed
at her temporary residence at Domingo Street, Cubao, Quezon City, in
October 1993. Considering that said addresses were merely temporary, Philip
claims that he should not be faulted for using their conjugal abode as
Viveca's "last known address." According to him, what is mandated by the
rules as the defendant's "last known address" is his or her last
known permanent address, and certainly not one of temporary
nature.17chanrobleslaw
The petition is bereft of merit.
Annulment of judgment is a recourse equitable in character, allowed only in
exceptional cases as where there is no available or other adequate remedy.
Section 2, Rule 47 of the 1997 Rules of Civil Procedure provides that
judgments may be annulled only on grounds of extrinsic fraud and lack of
jurisdiction or denial of due process.18 The objective of the remedy of
annulment of judgment or final order is to undo or set aside the judgment or
final order, and thereby grant to the petitioner an opportunity to prosecute
his cause or to ventilate his defense. If the ground relied upon is lack of
jurisdiction, the entire proceedings are set aside without prejudice to the
original action being refiled in the proper court. If the judgment or final order
or resolution is set aside on the ground of extrinsic fraud, the CA may on
motion order the trial court to try the case as if a timely motion for new trial
had been granted therein.19chanrobleslaw
Extrinsic fraud exists when there is a fraudulent act committed by the
prevailing party outside of the trial of the case, whereby the defeated party
Legal Separation Page |4
was prevented from presenting fully his side of the case by fraud or
deception practiced on him by the prevailing party.20 Fraud is extrinsic where
the unsuccessful party had been prevented from exhibiting fully his case, by
means of fraud or deception, as by keeping him away from court, or by a
false promise of a compromise; or where the defendant never had
knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or
where an attorney fraudulently or without authority assumes to represent a
party and connives at his defeat; these and similar cases which show that
there has never been a real contest in the trial or hearing of the case are
reasons for which a new suit may be sustained to set aside and annul the
former judgment and open the case for a new and fair hearing. Ultimately,
the overriding consideration is that the fraudulent scheme of the prevailing
litigant prevented a party from having his day in court.21chanrobleslaw
In the present case, We find that Viveca was completely prevented from
participating in the Declaration of Nullity case because of the fraudulent
scheme employed by Philip insofar as the service of summons is concerned.
Summons is a writ by which the defendant is notified of the action brought
against him. Through its service, the court acquires jurisdiction over his
person.22 As a rule, Philippine courts cannot try any case against a defendant
who does not reside and is not found in the Philippines because of the
impossibility of acquiring jurisdiction over his person unless he voluntarily
appears in court. Section 15, Rule 14 of the Rules of Court, however,
enumerates the actions in rem or quasi in rem when Philippine courts have
jurisdiction to hear and decide the case because they have jurisdiction over
the res, and jurisdiction over the person of the non-resident defendant is not
essential.23 Said section provides:ChanRoblesVirtualawlibrary
Section 15. Extraterritorial service. — When the defendant does not
reside and is not found in the Philippines, and the action affects the
personal status of the plaintiffor relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief demanded consists,
wholly or in part, in excluding the defendant from any interest therein, or the
property of the defendant has been attached within the Philippines, service
may, by leave of court, be effected out of the Philippines by personal service
as under section 6; or by publication in a newspaper of general
circulation in such places and for such time as the court may order,
in which case a copy of the summons and order of the court shall be
sent by registered mail to the last known address of the defendant,
 Persons and Family Relations
or in any other manner the court may deem sufficient. Any order
granting such leave shall specify a reasonable time, which shall not be less
than sixty (60) days after notice, within which the defendant must answer.
(17a)
Thus, under Section 15 of Rule 14, a defendant who is a non-resident and is
not found in the country may be served with summons by extraterritorial
service in four instances: (1) when the action affects the personal status of
the plaintiff; (2) when the action relates to, or the subject of which is
property within the Philippines, in which the defendant has or claims a lien or
interest, actual or contingent; (3) when the relief demanded consists, wholly
or in part, in excluding the defendant from any interest in property located in
the Philippines; or (4) when the property of the defendant has been attached
within the Philippines.24chanrobleslaw
In these instances, extraterritorial service of summons may be effected
under any of three modes: (1) by personal service out of the country, with
leave of court; (2) by publication and sending a copy of the summons and
order of the court by registered mail to the defendant's last known address,
also with leave of court; or (3) by any other means the judge may consider
sufficient.25cralawredchanrobleslaw
In the present case, it is undisputed that when Philip filed the Petition for
Declaration of Nullity of Marriage, an action which affects his personal status,
Viveca was already residing in the United States of America. Thus,
extraterritorial service of summons under Section 15, Rule 14 of the Rules of
Court is the proper mode by which summons may be served on Viveca, a
non-resident defendant who is not found in the Philippines. In compliance
therewith, Philip claims that Viveca was duly served summons because: (1)
copies of the summons, complaint, and order of the Batangas court were
published in Tempo, a newspaper of general circulation on March 27, 2008
and April 3, 2008;26 and (2) the sheriff served copies of the summons,
complaint, and order of the Batangas court on Viveca at their conjugal home
in Pasig City, her last known address.27 Thus, he contends that the second
mode of extraterritorial service of summons mentioned above - by
publication and sending a copy of the summons and order of the court by
registered mail to the defendant's last known address - was sufficiently
complied with. The Court finds, however, that such service of summons on
their conjugal home address cannot be deemed compliant with the
requirements of the rules and is even tantamount to deception warranting
the annulment of the Batangas court's judgment.
Legal Separation Page |5
Philip fervently asserts the propriety of their conjugal home address as
Viveca's "last known address," well within the true meaning and intent of the
rules. But as borne by the records of the instant case, not only is he
mistaken, factual considerations herein belie his claims of good faith. First
and foremost, it is undisputed that the parties herein are also parties in a
Legal Separation case, previously filed by Viveca way back in 1994. There
was, in said case, a disclosure of their basic personal information, which
customarily includes their respective local addresses, wherein they may be
served with court papers. In fact, as pointed out by the appellate court,
Philip knew that Viveca had already left their conjugal home and moved to a
different local address for purposes of the pendency of the Legal Separation
case, as shown by his stipulation in his Amended Answer with Counterclaim
that "after abandoning the conjugal abode on 24 August 1993, petitioner
resided at her parent's house in Richbelt Condominium, Annapolis Street,
Greenhills, Mandaluyong, Metro Manila, until she moved to her present
address in October 1993." Thus, Philip cannot be allowed to feign ignorance
to the fact that Viveca had already intentionally abandoned their conjugal
abode and that of all the addresses that Viveca resided at, their conjugal
home in Horizon Condominium is her least recent address. In fact, it may
very well be considered as the address she is least likely to be found
considering the circumstances in which she left the same. Note that from the
very beginning of the Legal Separation case in 1994, all the way up until the
promulgation by the Pasig RTC of its decision thereon in 2009, there is no
showing that Viveca had ever received any document in relation to said case,
nor is there any proof that Philip had ever sent any pertinent file to Viveca,
at the conjugal address. There is, therefore, no reason for Philip to assume,
in good faith, that said address is in truth and in fact Viveca's "last known
address" at which she may receive summons. His contention that the rules
require the defendant's "last known address" to be of a permanent, and not
of a temporary nature, has no basis in law or jurisprudence.
In addition, the Court is curious as to why Philip filed the instant Petition for
Declaration of Nullity of Marriage28 before the RTC of Batangas City on
February 15, 2008 when less than a year before filing the same, he had
motioned the RTC of Pasig City on April 24, 2007 to withdraw his
counterclaim for the same declaration of nullity of marriage.29 In his petition
before the Court, Philip explained that he withdrew his counterclaim in the
Legal Separation case in his "desire to explore the possibility of having a so-
called 'universal settlement' of all the pending cases with respondent and her
 Persons and Family Relations
relatives for the sake of his love for his four (4) children."30 Yet, in an
apparent, direct contravention of this so-called "desire," he filed an identical
action which sought the same nullity of his marriage with Viveca. Thus, while
there may be no outright admission on Philip's part as to a sinister motive,
his inconsistent actions effectively negate his claims of good faith.
It is interesting to note, moreover, that as pointed out by Viveca, Philip does
not even reside in Batangas, the city of the court wherein he filed his Petition
for Declaration of Nullity of Marriage. In a Certification31issued by Ricardo V.
Bautista, Barangay Chairman of Poblacion 1, Calatagan, Batangas, it was
categorically stated that "the name Philip Yu is not a resident of Barangay
Poblacion 1, Calatagan, Batangas." Section 4 of A.M. No. 02-11-10-SC,
otherwise known as the Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages, which took effect on March
15, 2003, provides:ChanRoblesVirtualawlibrary
Section 4. Venue. - The Petition shall be filed in the Family Court of
the province or city where the petitioner or the respondent has
been residing for at least six months prior to the date of filing. Or in
the case of non-resident respondent, where he may be found in the
Philippines, at the election of the petitioner.32chanroblesvirtuallawlibrary
It is, therefore, evident that not only did Philip contradict his previous Motion
to Withdraw his Counterclaim for the Declaration of Nullity of marriage, he
even violated a basic mandate of law so as to be able to file the same action
before a different court in a city he was not even a resident of.
Thus, while individually and in isolation, the aforementioned doubtful
circumstances may not instantly amount to extrinsic fraud, these
circumstances, when viewed in conjunction with each other, paint a deceitful
picture which resulted in a violation of Viveca's constitutional right to due
process. True, the service of summons in this case is not for the purpose of
vesting the court with jurisdiction, but for the purpose of complying with the
requirements of fair play or due process. But because of Philip's employment
of deceptive means in the service of summons on Viveca, said purpose of
satisfying the due process requirements was never accomplished. To this
Court, when Philip declared before the Batangas court that Viveca's last
known address was still their conjugal home with full and undisputed
knowledge that she had already intentionally abandoned the same and had
even established a more recent, local residence herein evinces a clear lack of
good faith. As a result, Viveca never had knowledge of the filing of the
Declaration of Nullity of Marriage suit, only finding out about the same when
Legal Separation Page |6
the Pasig City RTC had promulgated its decision on the Legal Separation
case. It is clear, therefore, that because of the service of summons at the
erroneous address, Viveca was effectively prevented from participating in the
proceedings thereon.
In Acance v. Court of Appeals,33 where the extraterritorial service of
summons on the non-resident, US citizen, defendants therein were held to
be defective due to the absence of proof that the summons, complaint, and
order of the court were duly served at their last known correct address, the
Court ruled that the failure to strictly comply correctly with the requirements
of the rules regarding the mailing of copies of the summons and the order
for its publication is a fatal defect in the service of summons.34Citing Dulap,
et al. v. Court of Appeals, et al.,35 it elucidated as
follows:ChanRoblesVirtualawlibrary
It is the duty of the court to require the fullest compliance with all the
requirements of the statute permitting service by publication. Where service
is obtained by publication, the entire proceeding should be closely scrutinized
by the courts and a strict compliance with every condition of law should be
exacted. Otherwise great abuses may occur, and the rights of persons and
property may be made to depend upon the elastic conscience of interested
parties rather than the enlightened judgment of the court or
judge.36chanroblesvirtuallawlibrary
Indeed, due process requires that those with interest to the thing in litigation
be notified and given an opportunity to defend those interests.37 When
defendants are deprived of such opportunity to duly participate in, and even
be informed of, the proceedings, due to a deceitful scheme employed by the
prevailing litigant, as in this case, there exists a violation of their due process
rights. Any judgment issued in violation thereof necessarily suffers a fatal
infirmity for courts, as guardians of constitutional rights cannot be expected
to deny persons their due process rights while at the same time be
considered as acting within their jurisdiction.38 This Court, therefore, deems
as proper the annulment of the Batangas court's judgment issued without
proper service of summons.
WHEREFORE, premises considered, the instant petition is DENIED. The
assailed Decision dated September 30, 2011 and Resolution dated January 5,
2012 of the Court of Appeals in CA-G.R. SP No. 111414 are AFFIRMED.
SO ORDERED
 Persons and Family Relations Legal Separation Page |7

Republic of the Philippines

on this case involving legal separation escalating to questions on dissolution
Supreme Court
Manila and partition of properties.

SECOND DIVISION
The Case
BRIGIDO B. QUIAO, G.R. No 176556
Petitioner,
Present: This case comes before us via Petition for Review
[1]
CARPIO, J., Chairperson, on Certiorari under Rule 45 of the Rules of Court. The petitioner seeks that
- versus - BRION, we vacate and set aside the Order[2]dated January 8, 2007 of the Regional
PEREZ,
SERENO, and Trial Court (RTC), Branch 1, Butuan City. In lieu of the said order, we are
REYES, JJ. asked to issue a Resolution defining the net profits subject of the forfeiture
RITA C. QUIAO, KITCHIE C. QUIAO,
LOTIS C. QUIAO, PETCHIE C. as a result of the decree of legal separation in accordance with the provision
QUIAO, represented by their Promulgated: of Article 102(4) of the Family Code, or alternatively, in accordance with the
mother RITA QUIAO, July 4, 2012
Respondents. provisions of Article 176 of the Civil Code.

x-----------------------------------------------------------------------------------------x
Antecedent Facts

DECISION
On October 26, 2000, herein respondent Rita C. Quiao (Rita) filed a
complaint for legal separation against herein petitioner Brigido B. Quiao
REYES, J.:
(Brigido).[3] Subsequently, the RTC rendered a Decision[4] dated October 10,
2005, the dispositive portion of which provides:
The family is the basic and the most important institution of
society. It is in the family where children are born and molded either to
WHEREFORE, viewed from the foregoing
become useful citizens of the country or troublemakers in the considerations, judgment is hereby rendered declaring the
legal separation of plaintiff Rita C. Quiao and defendant-
community. Thus, we are saddened when parents have to separate and fight
respondent Brigido B. Quiao pursuant to Article 55.
over properties, without regard to the message they send to their
children.Notwithstanding this, we must not shirk from our obligation to rule
 Persons and Family Relations Legal Separation Page |8

As such, the herein parties shall be entitled to live He is further ordered to reimburse [respondents] the
separately from each other, but the marriage bond shall not sum of [P]19,000.00 as attorney's fees and litigation
be severed. expenses of [P]5,000.00[.]

Except for Letecia C. Quiao who is of legal age, the SO ORDERED.[5]

three minor children, namely, Kitchie, Lotis and Petchie, all
surnamed Quiao shall remain under the custody of the
plaintiff who is the innocent spouse.
Neither party filed a motion for reconsideration and appeal within
Further, except for the personal and real properties the period provided for under Section 17(a) and (b) of the Rule on Legal
already foreclosed by the RCBC, all the remaining properties,
Separation.[6]
namely:

1. coffee mill in Balongagan, Las Nieves, Agusan

On December 12, 2005, the respondents filed a motion for
del Norte;
2. coffee mill in Durian, Las Nieves, Agusan del execution[7] which the trial court granted in its Order dated December 16,
Norte;
2005, the dispositive portion of which reads:
3. corn mill in Casiklan, Las Nieves, Agusan del
Norte;
4. coffee mill in Esperanza, Agusan del Sur; Wherefore, finding the motion to be well taken, the
5. a parcel of land with an area of 1,200 square same is hereby granted. Let a writ of execution be issued for
meters located in Tungao, Butuan City; the immediate enforcement of the Judgment.
6. a parcel of agricultural land with an area of 5
hectares located in Manila de Bugabos, Butuan City; SO ORDERED.[8]
7. a parcel of land with an area of 84 square
meters located in Tungao, Butuan City;
8. Bashier Bon Factory located in
Subsequently, on February 10, 2006, the RTC issued a Writ of
Tungao, Butuan City;
Execution[9] which reads as follows:
shall be divided equally between herein [respondents] and
[petitioner] subject to the respective legitimes of the NOW THEREFORE, that of the goods and chattels of
children and the payment of the unpaid conjugal liabilities of the [petitioner] BRIGIDO B. QUIAO you cause to be made
[P]45,740.00.
the sums stated in the afore-quoted DECISION [sic],
together with your lawful fees in the service of this Writ, all
[Petitioners] share, however, of the net profits in the Philippine Currency.
earned by the conjugal partnership is forfeited in favor of
the common children.
But if sufficient personal property cannot be found
whereof to satisfy this execution and your lawful fees, then
 Persons and Family Relations Legal Separation Page |9

we command you that of the lands and buildings of the said

[petitioner], you make the said sums in the manner required
by law. You are enjoined to strictly observed Section 9, Rule
39, Rule [sic] of the 1997 Rules of Civil Procedure.
You are hereby ordered to make a return of the said
proceedings immediately after the judgment has been
satisfied in part or in full in consonance with Section 14, Rule
39 of the 1997 Rules of Civil Procedure, as amended.[10]
On July 6, 2006, the writ was partially executed with the petitioner
paying the respondents the amount of P46,870.00, representing the
following payments:
offending spouse does not have any right to any share of the net profits
earned, pursuant to Articles 63, No. (2) and 43, No. (2) of the Family
Code.[15] The dispositive portion of the Order states:
WHEREFORE, there is no blatant disparity when the
sheriff intends to forfeit all the remaining properties after
deducting the payments of the debts for only separate
properties of the defendant-respondent shall be delivered to
him which he has none.
The Sheriff is herein directed to proceed with the
execution of the Decision.
IT IS SO ORDERED.[16]

(a) P22,870.00 as petitioner's share of the payment of the conjugal

Not satisfied with the trial court's Order, the petitioner filed a Motion
share;
for Reconsideration[17] on September 8, 2006. Consequently, the RTC issued
(b) P19,000.00 as attorney's fees; and
another Order[18]dated November 8, 2006, holding that although the Decision
(c) P5,000.00 as litigation expenses.[11]
dated October 10, 2005 has become final and executory, it may still consider
the Motion for Clarification because the petitioner simply wanted to clarify
On July 7, 2006, or after more than nine months from the
the meaning of net profit earned.[19] Furthermore, the same Order held:
promulgation of the Decision, the petitioner filed before the RTC a Motion for
Clarification,[12] asking the RTC to define the term Net Profits Earned.
ALL TOLD, the Court Order dated August 31, 2006
is hereby ordered set aside. NET PROFIT EARNED, which is
subject of forfeiture in favor of [the] parties' common
To resolve the petitioner's Motion for Clarification, the RTC issued an
children, is ordered to be computed in accordance [with]
[13]
Order dated August 31, 2006, which held that the phrase NET PROFIT par. 4 of Article 102 of the Family Code.[20]
EARNED denotes the remainder of the properties of the parties after
deducting the separate properties of each [of the] spouse and the
On November 21, 2006, the respondents filed a Motion for
debts.[14] The Order further held that after determining the remainder of the
Reconsideration,[21] praying for the correction and reversal of the Order
properties, it shall be forfeited in favor of the common children because the
dated November 8, 2006. Thereafter, on January 8, 2007,[22] the trial court
 Persons and Family Relations L e g a l S e p a r a t i o n P a g e | 10

had changed its ruling again and granted the respondents' Motion for
IV
Reconsideration whereby the Order dated November 8, 2006 was set aside
WHAT PROPERTIES SHALL BE INCLUDED IN THE
to reinstate the Order dated August 31, 2006.
FORFEITURE OF THE SHARE OF THE GUILTY SPOUSE IN
THE NET CONJUGAL PARTNERSHIP AS A RESULT OF THE
ISSUANCE OF THE DECREE OF LEGAL SEPARATION?[23]
Not satisfied with the trial court's Order, the petitioner filed on
February 27, 2007 this instant Petition for Review under Rule 45 of the Rules
of Court, raising the following: Our Ruling

Issues While the petitioner has raised a number of issues on the

applicability of certain laws, we are well-aware that the respondents have
I
called our attention to the fact that the Decision dated October 10, 2005 has
IS THE DISSOLUTION AND THE CONSEQUENT attained finality when the Motion for Clarification was filed.[24] Thus, we are
LIQUIDATION OF THE COMMON PROPERTIES OF THE
constrained to resolve first the issue of the finality of the Decision dated
HUSBAND AND WIFE BY VIRTUE OF THE DECREE OF LEGAL
SEPARATION GOVERNED BY ARTICLE 125 (SIC) OF THE October 10, 2005 and subsequently discuss the matters that we can clarify.
FAMILY CODE?
The Decision dated
II
October 10, 2005 has
become final and
WHAT IS THE MEANING OF THE NET PROFITS EARNED BY
executory at the time
THE CONJUGAL PARTNERSHIP FOR PURPOSES OF
the Motion for
EFFECTING THE FORFEITURE AUTHORIZED UNDER
Clarification was filed on
ARTICLE 63 OF THE FAMILY CODE?
July 7, 2006.
III

WHAT LAW GOVERNS THE PROPERTY RELATIONS Section 3, Rule 41 of the Rules of Court provides:
BETWEEN THE HUSBAND AND WIFE WHO GOT MARRIED IN
1977? CAN THE FAMILY CODE OF THE PHILIPPINES BE
Section 3. Period of ordinary appeal. - The appeal
GIVEN RETROACTIVE EFFECT FOR PURPOSES OF
shall be taken within fifteen (15) days from notice of the
DETERMINING THE NET PROFITS SUBJECT OF FORFEITURE
judgment or final order appealed from. Where a record on
AS A RESULT OF THE DECREE OF LEGAL SEPARATION
appeal is required, the appellant shall file a notice of appeal
WITHOUT IMPAIRING VESTED RIGHTS ALREADY ACQUIRED
UNDER THE CIVIL CODE?
 Persons and Family Relations
and a record on appeal within thirty (30) days from notice of
the judgment or final order.
The period of appeal shall be interrupted by a timely motion
for new trial or reconsideration. No motion for extension of
time to file a motion for new trial or reconsideration shall be
allowed.
In Neypes v. Court of Appeals,[25] we clarified that to standardize the
appeal periods provided in the Rules and to afford litigants fair opportunity
to appeal their cases, we held that it would be practical to allow a fresh
period of 15 days within which to file the notice of appeal in the RTC,
counted from receipt of the order dismissing a motion for a new trial or
[26]
motion for reconsideration.
In Neypes, we explained that the "fresh period rule" shall also apply
to Rule 40 governing appeals from the Municipal Trial Courts to the RTCs;
Rule 42 on petitions for review from the RTCs to the Court of Appeals (CA);
Rule 43 on appeals from quasi-judicial agencies to the CA and Rule 45
governing appeals by certiorari to the Supreme Court. We also said, The new
rule aims to regiment or make the appeal period uniform, to be counted
from receipt of the order denying the motion for new trial, motion for
reconsideration (whether full or partial) or any final order or resolution.[27] In
other words, a party litigant may file his notice of appeal within a fresh 15-
day period from his receipt of the trial court's decision or final order denying
his motion for new trial or motion for reconsideration. Failure to avail of the
fresh 15-day period from the denial of the motion for reconsideration makes
the decision or final order in question final and executory.
L e g a l S e p a r a t i o n P a g e | 11
In the case at bar, the trial court rendered its Decision on October
10, 2005. The petitioner neither filed a motion for reconsideration nor a
notice of appeal. On December 16, 2005, or after 67 days had lapsed, the
trial court issued an order granting the respondent's motion for execution;
and on February 10, 2006, or after 123 days had lapsed, the trial court
issued a writ of execution. Finally, when the writ had already been partially
executed, the petitioner, on July 7, 2006 or after 270 days had lapsed, filed
his Motion for Clarification on the definition of the net profits earned. From
the foregoing, the petitioner had clearly slept on his right to question the
RTCs Decision dated October 10, 2005. For 270 days, the petitioner never
raised a single issue until the decision had already been partially
executed. Thus at the time the petitioner filed his motion for clarification, the
trial courts decision has become final and executory. A judgment becomes
final and executory when the reglementary period to appeal lapses and no
appeal is perfected within such period. Consequently, no court, not even this
Court, can arrogate unto itself appellate jurisdiction to review a case or
modify a judgment that became final.[28]
The petitioner argues that the decision he is questioning is a void
judgment. Being such, the petitioner's thesis is that it can still be disturbed
even after 270 days had lapsed from the issuance of the decision to the filing
of the motion for clarification. He said that a void judgment is no judgment
at all. It never attains finality and cannot be a source of any right nor any
obligation.[29] But what precisely is a void judgment in our jurisdiction? When
does a judgment becomes void?
 Persons and Family Relations
A judgment is null and void when the court which rendered it had no
power to grant the relief or no jurisdiction over the subject matter or over
the parties or both.[30] In other words, a court, which does not have the
power to decide a case or that has no jurisdiction over the subject matter or
[31]
the parties, will issue a void judgment or a coram non judice.
The questioned judgment does not fall within the purview of a void
judgment. For sure, the trial court has jurisdiction over a case involving legal
separation. Republic Act (R.A.) No. 8369 confers upon an RTC, designated as
the Family Court of a city, the exclusive original jurisdiction to hear and
decide, among others, complaints or petitions relating to marital status and
property relations of the husband and wife or those living together.[32] The
[33]
Rule on Legal Separation provides that the petition [for legal separation]
shall be filed in the Family Court of the province or city where the petitioner
or the respondent has been residing for at least six months prior to the date
of filing or in the case of a non-resident respondent, where he may be found
[34]
in the Philippines, at the election of the petitioner. In the instant case,
herein respondent Rita is found to reside in Tungao, Butuan City for more
than six months prior to the date of filing of the petition; thus, the RTC,
clearly has jurisdiction over the respondent's petition below.Furthermore, the
RTC also acquired jurisdiction over the persons of both parties, considering
that summons and a copy of the complaint with its annexes were served
upon the herein petitioner on December 14, 2000 and that the herein
petitioner filed his Answer to the Complaint on January 9, 2001.[35] Thus,
L e g a l S e p a r a t i o n P a g e | 12
without doubt, the RTC, which has rendered the questioned judgment, has
jurisdiction over the complaint and the persons of the parties.
From the aforecited facts, the questioned October 10, 2005
judgment of the trial court is clearly not void ab initio, since it was rendered
within the ambit of the court's jurisdiction. Being such, the same cannot
anymore be disturbed, even if the modification is meant to correct what may
be considered an erroneous conclusion of fact or law.[36]In fact, we have
ruled that for [as] long as the public respondent acted with jurisdiction, any
error committed by him or it in the exercise thereof will amount to nothing
more than an error of judgment which may be reviewed or corrected only by
appeal.[37] Granting without admitting that the RTC's judgment dated
October 10, 2005 was erroneous, the petitioner's remedy should be an
appeal filed within the reglementary period. Unfortunately, the petitioner
failed to do this. He has already lost the chance to question the trial court's
decision, which has become immutable and unalterable. What we can only
do is to clarify the very question raised below and nothing more.
For our convenience, the following matters cannot anymore be
disturbed since the October 10, 2005 judgment has already become
immutable and unalterable, to wit:
(a) The finding that the petitioner is the offending spouse since he
cohabited with a woman who is not his wife;[38]
 Persons and Family Relations
(b) The trial court's grant of the petition for legal separation of
[39]
respondent Rita;
(c) The dissolution and liquidation of the conjugal partnership;[40]
(d) The forfeiture of the petitioner's right to any share of the net
profits earned by the conjugal partnership;[41]
(e) The award to the innocent spouse of the minor children's
[42]
custody;
(f) The disqualification of the offending spouse from inheriting from
the innocent spouse by intestate succession;[43]
(g) The revocation of provisions in favor of the offending spouse
made in the will of the innocent spouse;[44]
(h) The holding that the property relation of the parties is conjugal
partnership of gains and pursuant to Article 116 of the Family Code, all
properties acquired during the marriage, whether acquired by one or both
spouses, is presumed to be conjugal unless the contrary is proved;[45]
(i) The finding that the spouses acquired their real and personal
properties while they were living together;[46]
L e g a l S e p a r a t i o n P a g e | 13
(j) The list of properties which Rizal Commercial Banking Corporation
(RCBC) foreclosed;[47]
(k) The list of the remaining properties of the couple which must be
dissolved and liquidated and the fact that respondent Rita was the one who
took charge of the administration of these properties;[48]
(l) The holding that the conjugal partnership shall be liable to
matters included under Article 121 of the Family Code and the conjugal
liabilities totaling P503,862.10 shall be charged to the income generated by
these properties;[49]
(m) The fact that the trial court had no way of knowing whether the
petitioner had separate properties which can satisfy his share for the support
of the family;[50]
(n) The holding that the applicable law in this case is Article
[51]
129(7);
(o) The ruling that the remaining properties not subject to any
encumbrance shall therefore be divided equally between the petitioner and
the respondent without prejudice to the children's legitime;[52]
(p) The holding that the petitioner's share of the net profits earned
by the conjugal partnership is forfeited in favor of the common
children;[53] and
 Persons and Family Relations L e g a l S e p a r a t i o n P a g e | 14

First, let us determine what governs the couple's property

(q) The order to the petitioner to reimburse the respondents the relation. From the record, we can deduce that the petitioner and the
sum of P19,000.00 as attorney's fees and litigation expenses respondent tied the marital knot on January 6, 1977. Since at the time of the
[54]
of P5,000.00. exchange of marital vows, the operative law was the Civil Code of
the Philippines (R.A. No. 386) and since they did not agree on a marriage
After discussing lengthily the immutability of the Decision dated settlement, the property relations between the petitioner and the respondent
October 10, 2005, we will discuss the following issues for the enlightenment is the system of relative community or conjugal partnership of
[55]
of the parties and the public at large. gains. Article 119 of the Civil Code provides:

Art. 119. The future spouses may in the marriage

settlements agree upon absolute or relative community of
Article 129 of the Family
property, or upon complete separation of property, or upon
Code applies to the
any other regime.In the absence of marriage settlements, or
present case since the
when the same are void, the system of relative community
parties' property relation
or conjugal partnership of gains as established in this Code,
is governed by
shall govern the property relations between husband and
the system of relative
wife.
community or conjugal
partnership of gains.

The petitioner claims that the court a quo is wrong when it applied
Article 129 of the Family Code, instead of Article 102. He confusingly argues
that Article 102 applies because there is no other provision under the Family
Code which defines net profits earned subject of forfeiture as a result of
legal separation.
Thus, from the foregoing facts and law, it is clear that what governs
the property relations of the petitioner and of the respondent is conjugal
partnership of gains. And under this property relation, the husband and the
wife place in a common fund the fruits of their separate property and the
income from their work or industry.[56] The husband and wife also own in
common all the property of the conjugal partnership of gains.[57]

Offhand, the trial court's Decision dated October 10, 2005 held that Second, since at the time of the dissolution of the petitioner and the
Article 129(7) of the Family Code applies in this case. We agree with the trial respondent's marriage the operative law is already the Family Code, the
court's holding. same applies in the instant case and the applicable law in so far as the
liquidation of the conjugal partnership assets and liabilities is concerned is
 Persons and Family Relations
Article 129 of the Family Code in relation to Article 63(2) of the Family
Code. The latter provision is applicable because according to Article 256 of
the Family Code [t]his Code shall have retroactive effect insofar as it does
not prejudice or impair vested or acquired rights in accordance with the Civil
Code or other law.[58]
Now, the petitioner asks: Was his vested right over half of the
common properties of the conjugal partnership violated when the trial court
forfeited them in favor of his children pursuant to Articles 63(2) and 129 of
the Family Code?
We respond in the negative.
Indeed, the petitioner claims that his vested rights have been
impaired, arguing: As earlier adverted to, the petitioner acquired vested
rights over half of the conjugal properties, the same being owned in common
by the spouses. If the provisions of the Family Code are to be given
retroactive application to the point of authorizing the forfeiture of the
petitioner's share in the net remainder of the conjugal partnership
properties, the same impairs his rights acquired prior to the effectivity of the
Family Code.[59] In other words, the petitioner is saying that since the
property relations between the spouses is governed by the regime of
Conjugal Partnership of Gains under the Civil Code, the petitioner acquired
vested rights over half of the properties of the Conjugal Partnership of Gains,
pursuant to Article 143 of the Civil Code, which provides: All property of the
conjugal partnership of gains is owned in common by the husband and
L e g a l S e p a r a t i o n P a g e | 15
wife.[60] Thus, since he is one of the owners of the properties covered by the
conjugal partnership of gains, he has a vested right over half of the said
properties, even after the promulgation of the Family Code; and he insisted
that no provision under the Family Code may deprive him of this vested right
by virtue of Article 256 of the Family Code which prohibits retroactive
application of the Family Code when it will prejudice a person's vested right.
However, the petitioner's claim of vested right is not one which is
written on stone. In Go, Jr. v. Court of Appeals,[61] we define and explained
vested right in the following manner:
A vested right is one whose existence, effectivity
and extent do not depend upon events foreign to the will of
the holder, or to the exercise of which no obstacle exists,
and which is immediate and perfect in itself and not
dependent upon a contingency. The term vested right
expresses the concept of present fixed interest which, in
right reason and natural justice, should be protected against
arbitrary State action, or an innately just and imperative
right which enlightened free society, sensitive to inherent
and irrefragable individual rights, cannot deny.
To be vested, a right must have become a titlelegal
or equitableto the present or future enjoyment of
property.[62] (Citations omitted)
In our en banc Resolution dated October 18, 2005 for ABAKADA
Guro Party List Officer Samson S. Alcantara, et al. v. The Hon. Executive
Secretary Eduardo R. Ermita,[63] we also explained:
The concept of vested right is a consequence of
the constitutional guaranty of due process that
 Persons and Family Relations
expresses a present fixed interest which in right reason and
natural justice is protected against arbitrary state action; it
includes not only legal or equitable title to the enforcement
of a demand but also exemptions from new obligations
created after the right has become vested.Rights are
considered vested when the right to enjoyment is a present
interest, absolute, unconditional, and perfect or fixed and
irrefutable.[64] (Emphasis and underscoring supplied)
From the foregoing, it is clear that while one may not be deprived of
his vested right, he may lose the same if there is due process and such
deprivation is founded in law and jurisprudence.
In the present case, the petitioner was accorded his right to due
process. First, he was well-aware that the respondent prayed in her
[65]
complaint that all of the conjugal properties be awarded to her. In fact, in
his Answer, the petitioner prayed that the trial court divide the community
assets between the petitioner and the respondent as circumstances and
evidence warrant after the accounting and inventory of all the community
[66]
properties of the parties. Second, when the Decision dated October 10,
2005 was promulgated, the petitioner never questioned the trial court's
ruling forfeiting what the trial court termed as net profits, pursuant to Article
129(7) of the Family Code.[67] Thus, the petitioner cannot claim being
deprived of his right to due process.
Furthermore, we take note that the alleged deprivation of the
petitioner's vested right is one founded, not only in the provisions of the
Family Code, but in Article 176 of the Civil Code. This provision is like Articles
L e g a l S e p a r a t i o n P a g e | 16
63 and 129 of the Family Code on the forfeiture of the guilty spouse's share
in the conjugal partnership profits. The said provision says:
Art. 176. In case of legal separation, the guilty
spouse shall forfeit his or her share of the conjugal
partnership profits, which shall be awarded to the children of
both, and the children of the guilty spouse had by a prior
marriage. However, if the conjugal partnership property
came mostly or entirely from the work or industry, or from
the wages and salaries, or from the fruits of the separate
property of the guilty spouse, this forfeiture shall not apply.
In case there are no children, the innocent spouse
shall be entitled to all the net profits.
From the foregoing, the petitioner's claim of a vested right has no
basis considering that even under Article 176 of the Civil Code, his share of
the conjugal partnership profits may be forfeited if he is the guilty party in a
legal separation case. Thus, after trial and after the petitioner was given the
chance to present his evidence, the petitioner's vested right claim may in fact
be set aside under the Civil Code since the trial court found him the guilty
party.
More, in Abalos v. Dr. Macatangay, Jr.,[68] we reiterated our long-
standing ruling that:
[P]rior to the liquidation of the conjugal partnership, the
interest of each spouse in the conjugal assets is inchoate, a
mere expectancy, which constitutes neither a legal nor an
equitable estate, and does not ripen into title until it appears
that there are assets in the community as a result of the
liquidation and settlement. The interest of each spouse is
 Persons and Family Relations L e g a l S e p a r a t i o n P a g e | 17

limited to the net remainder or remanente liquido (haber products of their labor
ganancial) resulting from the liquidation of the affairs of the and industry.
partnership after its dissolution. Thus, the right of the
husband or wife to one-half of the conjugal assets does not
vest until the
The petitioner inquires from us the meaning of net profits earned by
dissolution and liquidation of the conjugal partnership, or
after dissolution of the marriage, when it is finally the conjugal partnership for purposes of effecting the forfeiture authorized
determined that, after settlement of conjugal obligations,
under Article 63 of the Family Code. He insists that since there is no other
there are net assets left which can be divided between the
spouses or their respective heirs.[69] (Citations omitted) provision under the Family Code, which defines net profits earned subject of
forfeiture as a result of legal separation, then Article 102 of the Family Code
applies.
Finally, as earlier discussed, the trial court has already decided in its
Decision dated October 10, 2005 that the applicable law in this case is Article
What does Article 102 of the Family Code say? Is the computation of
129(7) of the Family Code.[70] The petitioner did not file a motion for
net profits earned in the conjugal partnership of gains the same with the
reconsideration nor a notice of appeal. Thus, the petitioner is now precluded
computation of net profits earned in the absolute community?
from questioning the trial court's decision since it has become final and
executory. The doctrine of immutability and unalterability of a final judgment
Now, we clarify.
prevents us from disturbing the Decision dated October 10, 2005 because
final and executory decisions can no longer be reviewed nor reversed by this
First and foremost, we must distinguish between the applicable law
Court.[71]
as to the property relations between the parties and the applicable law as to
the definition of net profits. As earlier discussed, Article 129 of the Family
From the above discussions, Article 129 of the Family Code clearly
Code applies as to the property relations of the parties. In other words, the
applies to the present case since the parties' property relation is governed by
computation and the succession of events will follow the provisions under
the system of relative community or conjugal partnership of gains and since
Article 129 of the said Code. Moreover, as to the definition of net profits, we
the trial court's Decision has attained finality and immutability.
cannot but refer to Article 102(4) of the Family Code, since it expressly
The net profits of the provides that for purposes of computing the net profits subject to forfeiture
conjugal partnership of
under Article 43, No. (2) and Article 63, No. (2), Article 102(4) applies. In
gains are all the fruits of
the separate properties this provision, net profits shall be the increase in value between the market
of the spouses and the
value of the community property at the time of the celebration of the
 Persons and Family Relations
marriage and the market value at the time of its dissolution.[72] Thus, without
any iota of doubt, Article 102(4) applies to both the dissolution of the
absolute community regime under Article 102 of the Family Code, and to the
dissolution of the conjugal partnership regime under Article 129 of the Family
Code. Where lies the difference? As earlier shown, the difference lies in the
processes used under the dissolution of the absolute community regime
under Article 102 of the Family Code, and in the processes used under the
dissolution of the conjugal partnership regime under Article 129 of the Family
Code.
Let us now discuss the difference in the processes between the
absolute community regime and the conjugal partnership regime.
On Absolute Community Regime:
When a couple enters into a regime of absolute community, the
husband and the wife becomes joint owners of all the properties of the
marriage. Whatever property each spouse brings into the marriage, and
those acquired during the marriage (except those excluded under Article 92
of the Family Code) form the common mass of the couple's properties. And
when the couple's marriage or community is dissolved, that common mass is
divided between the spouses, or their respective heirs, equally or in the
proportion the parties have established, irrespective of the value each one
[73]
may have originally owned.
L e g a l S e p a r a t i o n P a g e | 18
Under Article 102 of the Family Code, upon dissolution of marriage,
an inventory is prepared, listing separately all the properties of the absolute
community and the exclusive properties of each; then the debts and
obligations of the absolute community are paid out of the absolute
community's assets and if the community's properties are insufficient, the
separate properties of each of the couple will be solidarily liable for the
unpaid balance. Whatever is left of the separate properties will be delivered
to each of them. The net remainder of the absolute community is its net
assets, which shall be divided between the husband and the wife; and for
purposes of computing the net profits subject to forfeiture, said profits shall
be the increase in value between the market value of the community
property at the time of the celebration of the marriage and the market value
at the time of its dissolution.[74]
Applying Article 102 of the Family Code, the net profits requires that
we first find the market value of the properties at the time of the
community's dissolution. From the totality of the market value of all the
properties, we subtract the debts and obligations of the absolute community
and this result to the net assets or net remainder of the properties of the
absolute community, from which we deduct the market value of the
properties at the time of marriage, which then results to the net profits.[75]
Granting without admitting that Article 102 applies to the instant
case, let us see what will happen if we apply Article 102:
 Persons and Family Relations
(a) According to the trial court's finding of facts, both husband and
wife have no separate properties, thus, the remaining properties in the list
above are all part of the absolute community. And its market value at the
time of the dissolution of the absolute community constitutes the market
value at dissolution.
(b) Thus, when the petitioner and the respondent finally were legally
separated, all the properties which remained will be liable for the debts and
obligations of the community. Such debts and obligations will be subtracted
from the market value at dissolution.
(c) What remains after the debts and obligations have been paid
from the total assets of the absolute community constitutes the net
remainder or net asset. And from such net asset/remainder of the petitioner
and respondent's remaining properties, the market value at the time of
marriage will be subtracted and the resulting totality constitutes the net
profits.
(d) Since both husband and wife have no separate
properties, and nothing would be returned to each of them, what will be
divided equally between them is simply the net profits. However, in the
Decision dated October 10, 2005, the trial court forfeited the half-share of
the petitioner in favor of his children. Thus, if we use Article 102 in the
instant case (which should not be the case), nothing is left to the petitioner
since both parties entered into their marriage without bringing with them any
property.
L e g a l S e p a r a t i o n P a g e | 19
On Conjugal Partnership Regime:
Before we go into our disquisition on the Conjugal Partnership
Regime, we make it clear that Article 102(4) of the Family Code applies in
the instant case for purposes only of defining net profit. As earlier
explained, the definition of net profits in Article 102(4) of the Family Code
applies to both the absolute community regime and conjugal partnership
regime as provided for under Article 63, No. (2) of the Family Code, relative
to the provisions on Legal Separation.
Now, when a couple enters into a regime of conjugal
partnership of gains under Article 142 of the Civil Code, the husband and
the wife place in common fund the fruits of their separate property and
income from their work or industry, and divide equally, upon the dissolution
of the marriage or of the partnership, the net gains or benefits obtained
indiscriminately by either spouse during the marriage.[76] From the foregoing
provision, each of the couple has his and her own property and debts. The
law does not intend to effect a mixture or merger of those debts or
properties between the spouses. Rather, it establishes a complete separation
of capitals.[77]
Considering that the couple's marriage has been dissolved under the
Family Code, Article 129 of the same Code applies in the liquidation of the
couple's properties in the event that the conjugal partnership of gains is
dissolved, to wit:
Art. 129. Upon the dissolution of the conjugal
partnership regime, the following procedure shall apply:
 Persons and Family Relations L e g a l S e p a r a t i o n P a g e | 20

(8) The presumptive legitimes of the common

(1) An inventory shall be prepared, listing separately
all the properties of the conjugal partnership and the
exclusive properties of each spouse.
(2) Amounts advanced by the conjugal partnership
in payment of personal debts and obligations of either
spouse shall be credited to the conjugal partnership as an
asset thereof.
(3) Each spouse shall be reimbursed for the use of
his or her exclusive funds in the acquisition of property or
for the value of his or her exclusive property, the ownership
of which has been vested by law in the conjugal partnership.
children shall be delivered upon the partition in accordance
with Article 51.
(9) In the partition of the properties, the conjugal
dwelling and the lot on which it is situated shall, unless
otherwise agreed upon by the parties, be adjudicated to the
spouse with whom the majority of the common children
choose to remain. Children below the age of seven years are
deemed to have chosen the mother, unless the court has
decided otherwise. In case there is no such majority, the
court shall decide, taking into consideration the best
interests of said children.

(4) The debts and obligations of the conjugal

In the normal course of events, the following are the steps in the
partnership shall be paid out of the conjugal assets. In case
of insufficiency of said assets, the spouses shall be solidarily liquidation of the properties of the spouses:
liable for the unpaid balance with their separate properties,
in accordance with the provisions of paragraph (2) of Article
121. (a) An inventory of all the actual properties shall be made,
(5) Whatever remains of the exclusive properties of
separately listing the couple's conjugal properties and their separate
the spouses shall thereafter be delivered to each of them.
properties.[78] In the instant case, the trial court found that the couple
has no separate properties when they married.[79] Rather, the trial
(6) Unless the owner had been indemnified from
whatever source, the loss or deterioration of movables used court identified the following conjugal properties, to wit:
for the benefit of the family, belonging to either spouse,
even due to fortuitous event, shall be paid to said spouse
1. coffee mill in Balongagan, Las Nieves, Agusan del Norte;
from the conjugal funds, if any.
2. coffee mill in Durian, Las Nieves, Agusan del Norte;
(7) The net remainder of the conjugal partnership
properties shall constitute the profits, which shall be divided
3. corn mill in Casiklan, Las Nieves, Agusan del Norte;
equally between husband and wife, unless a different
proportion or division was agreed upon in the marriage
4. coffee mill in Esperanza, Agusan del Sur;
settlements or unless there has been a voluntary waiver or
forfeiture of such share as provided in this Code.
5. a parcel of land with an area of 1,200 square meters
located in Tungao, Butuan City;
 Persons and Family Relations
6. a parcel of agricultural land with an area of 5 hectares
located in Manila de Bugabos, Butuan City;
7. a parcel of land with an area of 84 square meters located
in Tungao, Butuan City;
8. Bashier Bon Factory located in Tungao, Butuan City.[80]
(b) Ordinarily, the benefit received by a spouse from the conjugal
partnership during the marriage is returned in equal amount to the assets of
the conjugal partnership;[81]and if the community is enriched at the expense
of the separate properties of either spouse, a restitution of the value of such
properties to their respective owners shall be made.[82]
(c) Subsequently, the couple's conjugal partnership shall pay the
debts of the conjugal partnership; while the debts and obligation of each of
the spouses shall be paid from their respective separate properties. But if the
conjugal partnership is not sufficient to pay all its debts and obligations, the
spouses with their separate properties shall be solidarily liable.[83]
(d) Now, what remains of the separate or exclusive properties of the
husband and of the wife shall be returned to each of them.[84] In the instant
case, since it was already established by the trial court that the
[85]
spouses have no separate properties, there is nothing to return
to any of them. The listed properties above are considered part of the
conjugal partnership. Thus, ordinarily, what remains in the above-listed
properties should be divided equally between the spouses and/or their
respective heirs.[86] However, since the trial court found the petitioner the
L e g a l S e p a r a t i o n P a g e | 21
guilty party, his share from the net profits of the conjugal partnership is
forfeited in favor of the common children, pursuant to Article 63(2) of the
Family Code. Again, lest we be confused, like in the absolute community
regime, nothing will be returned to the guilty party in the conjugal
partnership regime, because there is no separate property which may
be accounted for in the guilty party's favor.
In the discussions above, we have seen that in both instances, the
petitioner is not entitled to any property at all. Thus, we cannot but uphold
the Decision dated October 10, 2005 of the trial court. However, we must
clarify, as we already did above, the Order dated January 8, 2007.
WHEREFORE, the Decision dated October 10, 2005 of the Regional
Trial Court, Branch 1 of Butuan City is AFFIRMED. Acting on the Motion for
Clarification dated July 7, 2006 in the Regional Trial Court, the Order dated
January 8, 2007 of the Regional Trial Court is hereby CLARIFIED in
accordance with the above discussions.
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice
WE CONCUR:
 Persons and Family Relations L e g a l S e p a r a t i o n P a g e | 22

ANTONIO T. CARPIO
Senior Associate Justice
Chairperson, Second Division

ARTURO D. BRION JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.

ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296
The Judiciary Act of 1948, as
amended)

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION
 Persons and Family Relations
G.R. No. 179620 August 26, 2008
MANUEL G. ALMELOR, petitioner,
vs.
THE HON. REGIONAL TRIAL COURT OF LAS PIÑAS CITY, BRANCH
254, and LEONIDA T. ALMELOR, respondents.
DECISION
REYES, R.T., J.:
MARRIAGE, in its totality, involves the spouses' right to the community of
their whole lives. It likewise involves a true intertwining of personalities.1
2 Her suspicions were first aroused when she noticed Manuel's peculiar
This is a petition for review on certiorari of the Decision of the Court of
Appeals (CA) denying the petition for annulment of judgment and
affirming in toto the decision of the Regional Trial Court (RTC), Las Piñas,
Branch 254. The CA dismissed outright the Rule 47 petition for being the
wrong remedy.
The Facts
Petitioner Manuel G. Almelor (Manuel) and respondent Leonida Trinidad
(Leonida) were married on January 29, 1989 at the Manila Cathedral.3 Their
union bore three children: (1) Maria Paulina Corinne, born on October 20,
1989; (2) Napoleon Manuel, born on August 9, 1991; and (3) Manuel Homer,
born on July 4, 1994.4 Manuel and Leonida are both medical practitioners, an
anesthesiologist and a pediatrician, respectively.5
After eleven (11) years of marriage, Leonida filed a petition with the RTC in
Las Piñas City to annul their marriage on the ground that Manuel was
psychologically incapacitated to perform his marital obligations. The case,
docketed as LP-00-0132 was raffled off to Branch 254.
During the trial, Leonida testified that she first met Manuel in 1981 at the
San Lazaro Hospital where they worked as medical student clerks. At that
time, she regarded Manuel as a very thoughtful person who got along well
L e g a l S e p a r a t i o n P a g e | 23
with other people. They soon became sweethearts. Three years after, they
got married.6
Leonida averred that Manuel's kind and gentle demeanor did not last long. In
the public eye, Manuel was the picture of a perfect husband and father. This
was not the case in his private life. At home, Leonida described Manuel as a
harsh disciplinarian, unreasonably meticulous, easily angered. Manuel's
unreasonable way of imposing discipline on their children was the cause of
their frequent fights as a couple.7 Leonida complained that this was in stark
contrast to the alleged lavish affection Manuel has for his mother. Manuel's
deep attachment to his mother and his dependence on her decision-making
were incomprehensible to Leonida.8
Further adding to her woes was his concealment to her of his homosexuality.
closeness to his male companions. For instance, she caught him in an
indiscreet telephone conversation manifesting his affection for a male
caller.9 She also found several pornographic homosexual materials in his
possession.10 Her worse fears were confirmed when she saw Manuel kissed
another man on the lips. The man was a certain Dr. Nogales.11 When she
confronted Manuel, he denied everything. At this point, Leonida took her
children and left their conjugal abode. Since then, Manuel stopped giving
support to their children.12
Dr. Valentina del Fonso Garcia, a clinical psychologist, was presented to
prove Leonida's claim. Dr. del Fonso Garcia testified that she conducted
evaluative interviews and a battery of psychiatric tests on Leonida. She also
had a one-time interview with Manuel and face-to-face interviews with Ma.
Paulina Corrinne (the eldest child).13 She concluded that Manuel is
psychologically incapacitated.14 Such incapacity is marked by antecedence; it
existed even before the marriage and appeared to be incurable.
Manuel, for his part, admitted that he and Leonida had some petty
arguments here and there. He, however, maintained that their marital
relationship was generally harmonious. The petition for annulment filed by
Leonida came as a surprise to him.
Manuel countered that the true cause of Leonida's hostility against him was
their professional rivalry. It began when he refused to heed the
 Persons and Family Relations
memorandum15 released by Christ the King Hospital. The memorandum
ordered him to desist from converting his own lying-in clinic to a primary or
secondary hospital.16 Leonida's family owns Christ the King Hospital which is
situated in the same subdivision as Manuel's clinic and residence.17 In other
words, he and her family have competing or rival hospitals in the same
vicinity.
Manuel belied her allegation that he was a cruel father to their children. He
denied maltreating them. At most, he only imposed the necessary discipline
on the children.
He also defended his show of affection for his mother. He said there was
nothing wrong for him to return the love and affection of the person who
reared and looked after him and his siblings. This is especially apt now that
his mother is in her twilight years.18 Manuel pointed out that Leonida found
fault in this otherwise healthy relationship because of her very jealous and
possessive nature.19
This same overly jealous behavior of Leonida drove Manuel to avoid the
company of female friends. He wanted to avoid any further
misunderstanding with his wife. But, Leonida instead conjured up stories
about his sexual preference. She also fabricated tales about pornographic
materials found in his possession to cast doubt on his masculinity.20
To corroborate his version, he presented his brother, Jesus G. Almelor. Jesus
narrated that he usually stayed at Manuel's house during his weekly trips to
Manila from Iriga City. He was a witness to the generally harmonious
relationship between his brother Manuel and sister-in-law, Leonida. True,
they had some quarrels typical of a husband and wife relationship. But there
was nothing similar to what Leonida described in her testimony.21
Jesus further testified that he was with his brother on the day Leonida
allegedly saw Manuel kissed another man. He denied that such an incident
occurred. On that particular date,22 he and Manuel went straight home from
a trip to Bicol. There was no other person with them at that time, except
their driver.23
Manuel expressed his intention to refute Dr. del Fonso Garcia's findings by
presenting his own expert witness. However, no psychiatrist was presented.
L e g a l S e p a r a t i o n P a g e | 24
RTC Disposition
By decision dated November 25, 2005, the RTC granted the petition for
annulment, with the following disposition:
WHEREFORE, premised on the foregoing, judgment is hereby
rendered:
1. Declaring the marriage contracted by herein parties on 29 January
1989 and all its effects under the law null and void from the
beginning;
2. Dissolving the regime of community property between the same
parties with forfeiture of defendant's share thereon in favor of the
same parties' children whose legal custody is awarded to plaintiff
with visitorial right afforded to defendant;
3. Ordering the defendant to give monthly financial support to all the
children; and
4. Pursuant to the provisions of A.M. No. 02-11-10-SC:
a. Directing the Branch Clerk of this Court to enter this
Judgment upon its finality in the Book of Entry of Judgment
and to issue an Entry of Judgment in accordance thereto;
and
b. Directing the Local Civil Registrars of Las Piñas City and
Manila City to cause the registration of the said Entry of
Judgment in their respective Books of Marriages.
Upon compliance, a decree of nullity of marriage shall be issued.
SO ORDERED.24 (Emphasis supplied)
The trial court nullified the marriage, not on the ground of Article 36, but
Article 45 of the Family Code. It ratiocinated:
 Persons and Family Relations L e g a l S e p a r a t i o n P a g e | 25

x x x a careful evaluation and in-depth analysis of the surrounding
circumstances of the allegations in the complaint and of the evidence
presented in support thereof (sic) reveals that in this case (sic) there
is more than meets the eyes (sic).
Both legally and biologically, homosexuality x x x is, indeed,
generally incompatible with hetero sexual marriage. This is reason
enough that in this jurisdiction (sic) the law recognizes marriage as a
special contract exclusively only between a man and a woman x x x
and thus when homosexuality has trespassed into marriage, the
same law provides ample remedies to correct the situation [Article
45(3) in relation to Article 46(4) or Article 55, par. 6, Family Code].
This is of course in recognition of the biological fact that no matter
how a man cheats himself that he is not a homosexual and forces
himself to live a normal heterosexual life, there will surely come a
time when his true sexual preference as a homosexual shall prevail
in haunting him and thus jeopardizing the solidity, honor, and
Petitioner Manuel takes the present recourse via Rule 45, assigning to the CA
welfare of his own family.25
the following errors:
It is obvious that the petitioner is questioning the propriety of the
decision rendered by the lower Court. But the remedy assuming
there was a mistake is not a Petition for Annulment of Judgment but
an ordinary appeal. An error of judgment may be reversed or
corrected only by appeal.
What petitioner is ascribing is an error of judgment, not of
jurisdiction, which is properly the subject of an ordinary appeal.
In short, petitioner admits the jurisdiction of the lower court but he
claims excess in the exercise thereof. "Excess" assuming there was is
not covered by Rule 47 of the 1997 Rules of Civil Procedure. The
Rule refers the lack of jurisdiction and not the exercise thereof.28
Issues

Manuel filed a notice of appeal which was, however, denied due course.
I
Undaunted, he filed a petition for annulment of judgment with the CA.26
THE HONORABLE COURT OF APPEALS ERRED IN NOT TREATING
Manuel contended that the assailed decision was issued in excess of the
THE PETITION FOR ANNULMENT OF JUDGMENT AS A PETITION
lower court's jurisdiction; that it had no jurisdiction to dissolve the absolute
FOR REVIEW IN VIEW OF THE IMPORTANCE OF THE ISSUES
community of property and forfeit his conjugal share in favor of his children.
INVOLVED AND IN THE INTEREST OF JUSTICE;

CA Disposition
II

On July 31, 2007, the CA denied the petition, disposing as follows:

WHEREFORE, the present Petition for Annulment of Judgment is
hereby DENIED. The Court AFFIRMS in toto the Decision (dated
November 25, 2005) of the Regional Trial Court (Branch 254), in Las
Piñas City, in Civil Case No. LP-00-0132. No costs.27
THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE
DECISION OF THE TRIAL COURT AS REGARDS THE ORDER
DECLARING THE MARRIAGE AS NULL AND VOID ON THE GROUND
OF PETITIONER'S PSYCHOLOGICAL INCAPACITY;
III

The CA stated that petitioner pursued the wrong remedy by filing the
THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE
extraordinary remedy of petition for annulment of judgment. Said the
DECISION OF THE TRIAL COURT AS REGARDS THE ORDER TO
appellate court:
 Persons and Family Relations
FORFEIT THE SHARE OF PETITIONER IN HIS SHARE OF THE
CONJUGAL ASSETS.29
Our Ruling
I. The stringent rules of procedures may be relaxed to serve the
demands of substantial justice and in the Court's exercise of equity
jurisdiction.
Generally, an appeal taken either to the Supreme Court or the CA by the
wrong or inappropriate mode shall be dismissed.30This is to prevent the party
from benefiting from one's neglect and mistakes. However, like most
rules, it carries certain exceptions. After all, the ultimate purpose of all
rules of procedures is to achieve substantial justice as expeditiously as
possible.31
Annulment of judgment under Rule 47 is a last remedy. It can not be
resorted to if the ordinary remedies are available or no longer available
through no fault of petitioner.32 However, in Buenaflor v. Court of
Appeals,33 this Court clarified the proper appreciation for technical rules of
procedure, in this wise:
Rules of procedures are intended to promote, not to defeat,
substantial justice and, therefore, they should not be
applied in a very rigid and technical sense. The exception is
that while the Rules are liberally construed, the provisions
with respect to the rules on the manner and periods for
perfecting appeals are strictly applied. As an exception to
the exception, these rules have sometimes been relaxed on
equitable considerations. Also, in some cases the Supreme Court
has given due course to an appeal perfected out of time where a
stringent application of the rules would have denied it, but only
when to do so would serve the demands of substantial justice and in
the exercise of equity jurisdiction of the Supreme Court.34 (Emphasis
and underscoring supplied)
For reasons of justice and equity, this Court has allowed exceptions to the
stringent rules governing appeals.35 It has, in the past, refused to sacrifice
justice for technicality.36
L e g a l S e p a r a t i o n P a g e | 26
After discovering the palpable error of his petition, Manuel seeks the
indulgence of this Court to consider his petition before the CA instead as a
petition for certiorari under Rule 65.
A perusal of the said petition reveals that Manuel imputed grave abuse of
discretion to the lower court for annulling his marriage on account of his
alleged homosexuality. This is not the first time that this Court is faced with
a similar situation. In Nerves v. Civil Service Commission,37 petitioner Delia R.
Nerves elevated to the CA a Civil Service Commission (CSC) decision
suspending her for six (6) months. The CSC ruled Nerves, a public school
teacher, is deemed to have already served her six-month suspension during
the pendency of the case. Nevertheless, she is ordered reinstated without
back wages. On appeal, Nerves stated in her petition, inter alia:
1. This is a petition for certiorari filed pursuant to Article IX-A,
Section 7 of the Constitution of the Philippines and under Rule 65 of
the Rules of Court.
2. But per Supreme Court Revised Administrative Circular No. 1-95
(Revised Circular No. 1-91) petitioner is filing the instant petition
with this Honorable Court instead of the Supreme
Court.38 (Underscoring supplied)
The CA dismissed Nerves' petition for certiorari for being the wrong remedy
or the inappropriate mode of appeal.39 The CA opined that "under the
Supreme Court Revised Administrative Circular No. 1-95 x x x appeals from
judgments or final orders or resolutions of CSC is by a petition for review."40
This Court granted Nerves petition and held that she had substantially
complied with the Administrative Circular. The Court stated:
That it was erroneously labeled as a petition for certiorari under Rule
65 of the Rules of Court is only a minor procedural lapse, not fatal to
the appeal. x x x
More importantly, the appeal on its face appears to be impressed
with merit. Hence, the Court of Appeals should have overlooked the
insubstantial defects of the petition x x x in order to do justice to the
 Persons and Family Relations
parties concerned. There is, indeed, nothing sacrosanct about
procedural rules, which should be liberally construed in order to
promote their object and assist the parties in obtaining just, speedy,
and inexpensive determination of every action or proceeding. As it
has been said, where the rigid application of the rules would
frustrate substantial justice, or bar the vindication of a legitimate
grievance, the courts are justified in exempting a particular case
from the operation of the rules.41(Underscoring supplied)
Similarly, in the more recent case of Tan v. Dumarpa,42 petitioner Joy G. Tan
availed of a wrong remedy by filing a petition for review on certiorari instead
of a motion for new trial or an ordinary appeal. In the interest of justice, this
Court considered the petition, pro hac vice, as a petition for certiorari under
Rule 65.
This Court found that based on Tan's allegations, the trial court prima facie
committed grave abuse of discretion in rendering a judgment by default. If
uncorrected, it will cause petitioner great injustice. The Court elucidated in
this wise:
Indeed, where as here, there is a strong showing that grave
miscarriage of justice would result from the strict application of the
Rules, we will not hesitate to relax the same in the interest of
substantial justice.43 (Underscoring supplied)
Measured by the foregoing yardstick, justice will be better served by giving
due course to the present petition and treating petitioner's CA petition as one
for certiorari under Rule 65, considering that what is at stake is the validity
or non-validity of a marriage.
In Salazar v. Court of Appeals,44 citing Labad v. University of Southeastern
Philippines, this Court reiterated:
x x x The dismissal of appeals on purely technical grounds is
frowned upon. While the right to appeal is a statutory, not a natural
right, nonetheless it is an essential part of our judicial system and
courts should proceed with caution so as not to deprive a party of
the right to appeal, but rather, ensure that every party-litigant has
L e g a l S e p a r a t i o n P a g e | 27
the amplest opportunity for the proper and just disposition of his
cause, free from the constraints of technicalities.45
Indeed, it is far better and more prudent for a court to excuse a technical
lapse and afford the parties a review of the case on the merits to attain the
ends of justice.46
Furthermore, it was the negligence and incompetence of Manuel's counsel
that prejudiced his right to appeal. His counsel, Atty. Christine Dugenio,
repeatedly availed of inappropriate remedies. After the denial of her notice of
appeal, she failed to move for reconsideration or new trial at the first
instance. She also erroneously filed a petition for annulment of judgment
rather than pursue an ordinary appeal.
These manifest errors were clearly indicative of counsel's incompetence.
These gravely worked to the detriment of Manuel's appeal. True it is that the
negligence of counsel binds the client. Still, this Court has recognized certain
exceptions: (1) where reckless or gross negligence of counsel deprives the
client of due process of law; (2) when its application will result in outright
deprivation of the client's liberty and property; or (3) where the interest of
justice so require.47
The negligence of Manuel's counsel falls under the exceptions. Ultimately,
the reckless or gross negligence of petitioner's former counsel led to the loss
of his right to appeal. He should not be made to suffer for his counsel's
grave mistakes. Higher interests of justice and equity demand that he be
allowed to ventilate his case in a higher court.
In Apex Mining, Inc. v. Court of Appeals,48 this Court explained thus:
It is settled that the negligence of counsel binds the client. This is
based on the rule that any act performed by a counsel within the
scope of his general or implied authority is regarded as an act of his
client. However, where counsel is guilty of gross ignorance,
negligence and dereliction of duty, which resulted in the client's
being held liable for damages in a damage suit, the client is deprived
of his day in court and the judgment may be set aside on such
ground. In the instant case, higher interests of justice and equity
demand that petitioners be allowed to present evidence on their
 Persons and Family Relations
defense. Petitioners may not be made to suffer for the lawyer's
mistakes. This Court will always be disposed to grant relief to
parties aggrieved by perfidy, fraud, reckless inattention and
downright incompetence of lawyers, which has the
consequence of depriving their clients, of their day in
court.49(Emphasis supplied)
Clearly, this Court has the power to except a particular case from the
operation of the rule whenever the demands of justice require it. With more
conviction should it wield such power in a case involving the sacrosanct
institution of marriage. This Court is guided with the thrust of giving a party
the fullest opportunity to establish the merits of one's action.50
The client was likewise spared from counsel's negligence in Government
Service Insurance System v. Bengson Commercial Buildings,
Inc.51 and Ancheta v. Guersey-Dalaygon.52 Said the Court in Bengson:
But if under the circumstances of the case, the rule deserts its
proper office as an aid to justice and becomes a great hindrance and
chief enemy, its rigors must be relaxed to admit exceptions thereto
and to prevent a miscarriage of justice. In other words, the court
has the power to except a particular case from the operation of the
rule whenever the purposes of justice require it.53
II. Concealment of homosexuality is the proper ground to annul a
marriage, not homosexuality per se.
Manuel is a desperate man determined to salvage what remains of his
marriage. Persistent in his quest, he fought back all the heavy accusations of
incapacity, cruelty, and doubted masculinity thrown at him.
The trial court declared that Leonida's petition for nullity had "no basis at all
because the supporting grounds relied upon can not legally make a case
under Article 36 of the Family Code." It went further by citing Republic
v. Molina:54
Indeed, mere allegations of conflicting personalities, irreconcilable
differences, incessant quarrels and/or beatings, unpredictable mood
L e g a l S e p a r a t i o n P a g e | 28
swings, infidelities, vices, abandonment, and difficulty, neglect, or
failure in the performance of some marital obligations do not suffice
to establish psychological incapacity.55
If so, the lower court should have dismissed outright the petition for not
meeting the guidelines set in Molina. What Leonida attempted to
demonstrate were Manuel's homosexual tendencies by citing overt acts
generally predominant among homosexual individuals.56 She wanted to
prove that the perceived homosexuality rendered Manuel incapable of
fulfilling the essential marital obligations.
But instead of dismissing the petition, the trial court nullified the marriage
between Manuel and Leonida on the ground of vitiated consent by virtue of
fraud. In support of its conclusion, the lower court reasoned out:
As insinuated by the State (p. 75, TSN, 15 December 2003), when
there is smoke surely there is fire. Although vehemently denied by
defendant, there is preponderant evidence enough to establish with
certainty that defendant is really a homosexual. This is the fact that
can be deduced from the totality of the marriage life scenario of
herein parties.
Before his marriage, defendant knew very well that people around
him even including his own close friends doubtedhis true sexual
preference (TSN, pp. 35-36, 13 December 2000; pp. 73-75, 15
December 2003). After receiving many forewarnings, plaintiff told
defendant about the rumor she heard but defendant did not do
anything to prove to the whole world once and for all the truth of all
his denials. Defendant threatened to sue those people but nothing
happened after that. There may have been more important matters
to attend to than to waste time and effort filing cases against and be
effected by these people and so, putting more premiums on
defendant's denials, plaintiff just the same married him. Reasons
upon reasons may be advanced to either exculpate or nail to the
cross defendant for his act of initially concealing his homosexuality
to plaintiff, but in the end, only one thing is certain - even during his
marriage with plaintiff, the smoke of doubt about his real preference
continued and even got thicker, reason why obviously defendant
 Persons and Family Relations
failed to establish a happy and solid family; and in so failing, plaintiff
and their children became his innocent and unwilling victims.
Yes, there is nothing untoward of a man if, like herein defendant, he
is meticulous over even small details in the house (sic) like wrongly
folded bed sheets, etc. or if a man is more authoritative in knowing
what clothes or jewelry shall fit his wife (pp. 77-81, TSN, 15
December 2003); but these admissions of defendant taken in the
light of evidence presented apparently showing that he had extra
fondness of his male friends (sic) to the extent that twice on
separate occasions (pp. 4-7, TSN, 14 February 2001) he was
allegedly seen by plaintiff kissing another man lips-to-lips plus the
homosexual magazines and tapes likewise allegedly discovered
underneath his bed (Exhibits "L" and "M"), the doubt as to his real
sex identity becomes stronger. The accusation of plaintiff versus
thereof of defendant may be the name of the game in this case; but
the simple reason of professional rivalry advanced by the defendant
is certainly not enough to justify and obscure the question why
plaintiff should accuse him of such a very untoward infidelity at the
expense and humiliation of their children and family as a whole.57
Evidently, no sufficient proof was presented to substantiate the allegations
that Manuel is a homosexual and that he concealed this to Leonida at the
time of their marriage. The lower court considered the public perception of
Manuel's sexual preference without the corroboration of witnesses. Also, it
took cognizance of Manuel's peculiarities and interpreted it against his
sexuality.
Even assuming, ex gratia argumenti, that Manuel is a homosexual, the lower
court cannot appreciate it as a ground to annul his marriage with Leonida.
The law is clear - a marriage may be annulled when the consent of either
party was obtained by fraud,58 such as concealment of
homosexuality.59 Nowhere in the said decision was it proven by
preponderance of evidence that Manuel was a homosexual at the onset of
his marriage and that he deliberately hid such fact to his wife.60 It is the
concealment of homosexuality, and not homosexuality per se, that vitiates
the consent of the innocent party. Such concealment presupposes bad faith
and intent to defraud the other party in giving consent to the marriage.
L e g a l S e p a r a t i o n P a g e | 29
Consent is an essential requisite of a valid marriage. To be valid, it must be
freely given by both parties. An allegation of vitiated consent must be proven
by preponderance of evidence. The Family Code has enumerated an
exclusive list of circumstances61 constituting fraud. Homosexuality per se is
not among those cited, but its concealment.
This distinction becomes more apparent when we go over the
deliberations62 of the Committees on the Civil Code and Family Law, to wit:
Justice Caguioa remarked that this ground should be eliminated in
the provision on the grounds for legal separation. Dean Gupit,
however, pointed out that in Article 46, they are talking only of
"concealment," while in the article on legal separation, there is
actuality. Judge Diy added that in legal separation, the ground
existed after the marriage, while in Article 46, the ground existed at
the time of the marriage. Justice Reyes suggested that, for clarity,
they add the phrase "existing at the time of the marriage" at the end
of subparagraph (4). The Committee approved the suggestion.63
To reiterate, homosexuality per se is only a ground for legal separation. It is
its concealment that serves as a valid ground to annul a
marriage.64 Concealment in this case is not simply a blanket denial, but one
that is constitutive of fraud. It is this fundamental element that respondent
failed to prove.
In the United States, homosexuality has been considered as a basis for
divorce. It indicates that questions of sexual identity strike so deeply at one
of the basic elements of marriage, which is the exclusive sexual bond
between the spouses.65 In Crutcher v. Crutcher,66 the Court held:
Unnatural practices of the kind charged here are an infamous
indignity to the wife, and which would make the marriage relation so
revolting to her that it would become impossible for her to discharge
the duties of a wife, and would defeat the whole purpose of the
relation. In the natural course of things, they would cause mental
suffering to the extent of affecting her health.67
However, although there may be similar sentiments here in the Philippines,
the legal overtones are significantly different. Divorce is not recognized in
 Persons and Family Relations
the country. Homosexuality and its alleged incompatibility to a healthy
heterosexual life are not sanctioned as grounds to sever the marriage bond
in our jurisdiction. At most, it is only a ground to separate from bed and
board.
What was proven in the hearings a quo was a relatively blissful marital union
for more than eleven (11) years, which produced three (3) children. The
burden of proof to show the nullity of the marriage rests on Leonida. Sadly,
she failed to discharge this onus.
The same failure to prove fraud which purportedly resulted to a vitiated
marital consent was found in Villanueva v. Court of Appeals.68 In Villanueva,
instead of proving vitiation of consent, appellant resorted to baseless
portrayals of his wife as a perpetrator of fraudulent schemes. Said the Court:
Factual findings of the Court of Appeals, especially if they coincide
with those of the trial court, as in the instant case, are generally
binding on this Court. We affirm the findings of the Court of Appeals
that petitioner freely and voluntarily married private respondent and
that no threats or intimidation, duress or violence compelled him to
do so, thus -
Appellant anchored his prayer for the annulment of his marriage on
the ground that he did not freely consent to be married to the
appellee. He cited several incidents that created on his mind a
reasonable and well-grounded fear of an imminent and grave danger
to his life and safety. x x x
The Court is not convinced that appellant's apprehension of danger
to his person is so overwhelming as to deprive him of the will to
enter voluntarily to a contract of marriage. It is not disputed that at
the time he was allegedly being harassed, appellant worked as a
security guard in a bank. Given the rudiments of self-defense, or, at
the very least, the proper way to keep himself out of harm's way. x x
x recourse to the court by the wife for a proper remedy, which must
Appellant also invoked fraud to annul his marriage, as he was made
to believe by appellee that the latter was pregnant with his child
when they were married. Appellant's excuse that he could not have
L e g a l S e p a r a t i o n P a g e | 30
impregnated the appellee because he did not have an erection
during their tryst is flimsy at best, and an outright lie at worst. The
complaint is bereft of any reference to his inability to copulate with
the appellee. x x x
xxxx
x x x The failure to cohabit becomes relevant only if it arises as a
result of the perpetration of any of the grounds for annulling the
marriage, such as lack of parental consent, insanity, fraud,
intimidation, or undue influence x x x. Since the appellant failed to
justify his failure to cohabit with the appellee on any of these
grounds, the validity of his marriage must be upheld.69
Verily, the lower court committed grave abuse of discretion, not only by
solely taking into account petitioner's homosexuality per se and not its
concealment, but by declaring the marriage void from its existence.
This Court is mindful of the constitutional policy to protect and strengthen
the family as the basic autonomous social institution and marriage as the
foundation of the family.70 The State and the public have vital interest in the
maintenance and preservation of these social institutions against desecration
by fabricated evidence.71 Thus, any doubt should be resolved in favor of the
validity of marriage.
III. In a valid marriage, the husband and wife jointly administer
and enjoy their community or conjugal property.
Article 96 of the Family Code, on regimes of absolute community property,
provides:
Art. 96. The administration and enjoyment of the community
property shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
be availed of within five years from the date of the contract
implementing such decision.
 Persons and Family Relations L e g a l S e p a r a t i o n P a g e | 31

In the event that one spouse is incapacitated or otherwise unable to

MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO
participate in the administration of the common properties, the other
Associate Justice Associate Justice
spouse may assume sole powers of administration. These powers do
not include the powers of disposition or encumbrance without the ANTONIO EDUARDO B. NACHURA
authority of the court or the written consent of the other spouse. In Associate Justice
the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be ATTESTATION
construed as a continuing offer on the part of the consenting spouse
and the third person, and may be perfected as a binding contract I attest that the conclusions in the above Decision had been reached in
upon the acceptance by the other spouse or authorization by the consultation before the case was assigned to the writer of the opinion of the
court before the offer is withdrawn by either or both offerors. Court's Division.

A similar provision, Article 12472 prescribes joint administration and CONSUELO YNARES-SANTIAGO
enjoyment in a regime of conjugal partnership. In a valid marriage, both Associate Justice
spouses exercise administration and enjoyment of the property regime, Chairperson, Third Division
jointly.

In the case under review, the RTC decreed a dissolution of the community
property of Manuel and Leonida. In the same breath, the trial court forfeited CERTIFICATION
Manuel's share in favor of the children. Considering that the marriage is
upheld valid and subsisting, the dissolution and forfeiture of Manuel's share Pursuant to Section 13, Article VIII of the Constitution and the Division
in the property regime is unwarranted. They remain the joint administrators Chairperson's Attestation, I certify that the conclusions in the above Decision
of the community property. had been reached in consultation before the case was assigned to the writer
of the opinion of the Court's Division.
WHEREFORE, the petition is GRANTED. The appealed Decision
is REVERSED and SET ASIDE and the petition in the trial court to annul REYNATO S. PUNO
the marriage is DISMISSED. Chief Justice

SO ORDERED.

RUBEN T. REYES
Associate Justice

WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson