G.R. No. 1056            March 13, 1907

AGUEDA BENEDICTO DE LA RAMA, appellee, vs. ESTEBAN DE LA RAMA, appellant.

Ledesma, Sumulong & Quintos for appellant.

Coudert Brothers, Aylett R. Cotton & Lionel D. Hargis for appellee.

WILLARD, J.:

On July 5, 1902, the Court of First Instance of the Province of Iloilo entered a final judgment in this case, decreeing a divorce to the plaintiff on the ground of the husband's adultery, as well as the payment of 81,042.76 pesos due her as her unpaid share of the property belonging to the conjugal partnership, as well as the sum of 3,200 pesos as an allowance for their support since the date on which the action was instituted.

From the judgment the defendant appealed to this court, which, on December 8, 1903, reversed the decree of the Court of First Instance, incorporated in its opinion certain findings of fact, and ordered judgment absolute that the complaint be dismissed. (Benedicto vs. De la Rama, 3 Phil. Rep., 34.) Thereafter the plaintiff appealed to the Supreme Court of the United States, which on April 2, 1906, reversed the judgment of this Court. (De la Rama, vs. De la Rama, 201, U. S., 303.) The opinion of the supreme court of the United States concludes as follows:

We have reached the conclusion that there is no such preponderance of evidence in favor of the theory of plaintiffs guilt as authorized the Supreme Court to set aside the conclusions of the court below upon the ground that these findings were plainly and manifestly against the weight of the evidence. In this connection it is proper to bear in mind that the trial judge had all these witnesses before him and doubtless formed his conclusions largely from their appearance on the stand, their manner of giving testimony, and their apparent credibility. Under the circumstances we think the Supreme Court should have affirmed rather than reversed the action of the lower court.

While the right of the plaintiff to her proportion of the original property, to alimony pending suit, and to other allowances claimed is the basis of our jurisdiction, the decree of the Supreme Court in dismissing plaintiff's petition renders it unnecessary to review the action of the Court of First Instance in fixing the amount that it held plaintiff was entitled to recover. We are, therefore, of the opinion that the decree of the Supreme Court dismissing the action must be reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion.

After the case had been remanded to this court, and on the 2d of November, 1906, the plaintiff made a motion that the judgment of the Court of First Instance be

affirmed an order was made for the submission of printed briefs upon certain questions of adultery. This court sustained those assignments and said:

Our conclusion is that neither one of the parties is entitled to a divorce. The result makes in unnecessary to consider that part of the judgment which relates to the settlement of the conjugal partnership.

The action of this court upon those four assignment of error relating to adultery was reversed by the Supreme Court of the United States, and by the decision of that court there were definitely disposed of. The other assignment of error relate to that part of the decision of the Court of First Instance with treats of the division of the conjugal property, the allowance of alimony, and the order of the court below that the case be referred to the fiscal for criminal proceedings against the defendant. As has been said, these assignments of error were not considered by this court in view of the result which it reached upon the other assignments. Nor were they discussed by the Supreme Court of the United States.

The claim of the appellant now is, however, that the whole case was finally disposed of by the decision of the latter court, and that the only thing remaining for this court as to do is to affirm the judgment of the Court of First Instance in its entirely.

With this view we can not agree. The only thing considered by the Supreme Court of the United States was that part of the decision of the Court of First Instance which related to the right of the plaintiff to a divorce. It did not pass upon the division of the conjugal property. Its order was that the case be remanded to this court for further proceedings not inconsistent with its opinion. If the contention of the plaintiff is true, it seems that the order of that court and affirming that of the Court of First Instance. By remanding the case to this court for further proceedings not inconsistent with the opinion of the Supreme Court, it seems to have been the intention of that court that this court should dispose of the assignments of error not already of.

The fifth assignment of error is as follows:

Se ha infringido el articulo 1418 y otros del Codigo Civil al admitir el Juzgado, dentro del presente juicio, el avaluo y division efectiva de los supuestos bienes gananciales.

It was claimed by this defendant, in his brief in his original appeal to this court in support of this assignment of error, that it was not proper to settle the affairs of the conjugal partnership in divorce proceedings, and that no such settlement of a conjugal partnership could ever be made until there had been a final judgment ordering the divorce, from which no appeal had been taken, or as to which the time to appeal had expired, and in his argument in this court in the motion presented on the 2ds of November, 1906, the repeats the same claim.

In our opinion, however, this assignment of error was disposed of by the decision of the Supreme Court of the United States. As was said in that decision , the jurisdiction of that court depended entirely upon that part of the judgment of the Court of First Instance which directed the payment of 81,000 pesos. If the Court of

First Instance had no jurisdiction to make any order for the payment of money in a divorce proceeding, that part of the judgment would have to be eliminated. In taking jurisdiction of the case the Supreme Court of the United States necessarily held that a liquidation of the affairs of the conjugal partnership could be had in a divorce proceeding. The fifth assignment of error, therefore, can not be urged by the defendant.

The sixth assignment of error was as follows:

Ha incurrido en error en cuanto fija la cuantia de la mitad de dichos supuestos bienes gananciales en 81,042 pesos y 75 centimos, sin haber tenido a la vista los antecedentes y datos necesarios y sin haber tenido en cuenta ademas las perdidas sufridas y las deudas contraidas por la razon social Hijos de I. de la Rama.

This assignment of error not having been considered either by the Supreme Court of the United States or by his court, be sustained. The Civil Code states in detail the manner in which the affairs of a conjugal partnership shall be settled after the same has been dissolved. Article 1418 provides, except in certain cases not here important, that an inventory shall at once be made. We have held in the case of Alfonso vs. Natividad 1 (4 Off. Gaz., 461), that when the partnership is dissolved by the death of the husband this inventory be made in the proceedings for the settlement of his estate. And in the case of Prado vs. Lagera 2 (5 Off. Gaz., 146), that the inventory thus formed must include the bienes parafernales of the wife. It is very evident from the provisions of the Civil Code that the inventory includes the capital of the husband, the dowry of the wife, in the second place the bienes parafernales of the wife, in the third place the debts and obligations of the conjugal partnership, and in the fourth place the capital of the husband. Articles 1424 and 1426 then provide as follows:

ART. 1424. After the deductions from the inventoried estate specified in the three preceding articles have been made, the remainder of the same estate shall constitute the assets of the conjugal partnership.

ART. 1426. The net remainder of the partnership property shall be divided, share and share alike, between the husband and wife, or their respective heirs.

It is thus seen that the conjugal property which is to be divided when the partnership is dissolved, is determined not with reference to the income or profits, which may have been received during the partnership by the spouses but rather by the amount of the actual property possessed by them at such dissolution after making the deductions and payments aforesaid. This is positively provided by article 1424.

An examination of the decision of the Court of First Instance shows that no attempt was made to comply with any of these statutory provisions. No inventory of the partnership property existing at the time of the trial, at which the liquidation was made, was ever formed. No provision was made for paying to the wife the sum of 2,000 pesos, which was either the dowry or bienes parafernales of the wife. No

provision was made for returning to the husband his capital in the partnership, which amounted to at least one third of the assets of the firm of hijos de I. de la Rama, which assets, according to the inventory made January 30, 1901, amounted to 1,130,568 pesos. The court below rejected entirely the method prescribed and in fact liquidated it, as appears from the decision, upon an entirely different basis. He determined in the first place the income which each person had received from his or her property, during the partnership, finding that the wife during that time had received from her property 345 pesos as income and that the husband had received 162,430.53 pesos. He then says:

The total value therefore of the conjugal partnership existing between the plaintiff and the defendant in the present case amounts to 162,775,53 pesos. The words of the statute say that the same must be divided share and share alike. The means that each should have 81,387.76 pesos. The wife already having in her possession 345 pesos of this sum, she is entitled to receive from the husband 81,042.76 pesos as being the sum necessary to equalize the holdings of the property which, according to the statute, must be regarded as belonging to the conjugal partnership.

It needs no argument to show that this manner of liquidating the affairs of the conjugal partnership is entirely unwarranted by the law. The Theory of the Civil Code is that the conjugal property is the actual property which is left at the dissolution of the partnership. It, can therefore, never be determined by adding up the profits, which had been made each year during its existence, and then saying that the result is the conjugal property. The difference between the two systems of liquidation is well illustrated in this case., The court below found that the profits of the partnership of Hijos de I. de la Rama from the time of its organization up to June 30, 1901, amounted to 290,101,31 pesos. The evidence in this case shows, however, that the capital with which the firm started was 1,058.192 pesos, and that on June 30, 1901, the value of its entire property was 1,130,568 pesos, an increase of only 72,376 pesos. Taking the method adopted by the court below, if the conjugal partnership had been dissolved on June 30, 1901, it would have had as an asset one fourth of this sum of 290,101.31 pesos, but following the rule laid by the Civil Code it would have only had one fourth of 72,376 pesos, the difference between the value of the property of said firm when it was organized and its value of the 39th of June, 1901.

The other assignments of error were not urged in the last brief presented by the appellant and in any event we do not think they can be sustained.

The result is that part of the judgment of the Court of First Instance ordering the divorce, ordering the payment of 3,200 pesos, Mexican currency, by the defendant to the plaintiff, and the costs of the action, is affirmed. That part of it ordering the payment by the defendant to the plaintiff of 81,042.76 pesos, Mexican currency, is set aside, and the case is remanded to the court below for the purpose of liquidating in this action the affairs of the conjugal partnership (considering the same to have been dissolved on the 5th of July, 1902) in accordance with the rules laid down in the Civil Code, and a judgment will be entered in that court for the amount which appears from such liquidation to be due from the defendant to the plaintiff. No costs will be allowed to either party in this court.

After the expiration of twenty days let judgment be entered in accordance herewith, and ten days thereafter the record be remanded to the court from whence it came for execution. So ordered.

Arellano, C.J., Torres, Mapa and Tracey, JJ., concur.

Separate Opinions

JOHNSON, J., dissenting:

This cause was originally tried in the Court of First Instance of the Province of Iloilo. A judgment was there rendered in favor of the plaintiff and against the defendant. The defendant appealed to this court and the judgment was reversed. The plaintiff appealed to the Supreme Court of the United States, were the judgment of this court was reversed, and the cause was remanded for further proceedings not inconsistent with the opinion of the Supreme Court of the United States.

On the 9th day of November, 1906, the plaintiff presented a motion in this court asking that the original judgment of the Court of First Instance be affirmed. The attorney for the defendant opposed this motion, and this court ordered that the respective parties submit briefs. These briefs were duly submitted and on the 23d day of January 1907, a majority of this court, after an examination of the evidence adduced during the trial of said cause in the Court of First Instance of the Province of Iloilo, decided that the inventory, made by the Court of First Instance, had not been made in accordance with the provisions of the Civil Code. We are of the opinion that this court has no right or authority to examine the evidence adduced during the trial of said cause in the court below for the reason that the defendant and appellant did not there make a property motion for a new trial, justifying this court in examining the evidence. We are of the opinion that this court have no authority to examine the evidence adduced during the trial in the Court of First Instance unless the appellant has made a motion for a new trial in that court "upon the ground that the findings of fact are plainly and manifestly against the weight of the evidence" (paragraph 3, section 497 of the Coddfe of Procedure in Civil Actions), and the judge of the said lower court has overruled said motion, and the defendant has duly excepted to such ruling.

By reference to the motion for a new trial presented in this cause in the court below, it will be seen that the same was not based upon these grounds. We are of the opinion that the motion presented for a new trial comes under the provisions of sections 145 and 146 of said code, and the overruling of the same does not constitute a ground of exception upon which an appeal can be based for the purpose of securing a reexamination of the evidence in this court.

Admitting, however, that said motion was sufficient to justify this court in examining the evidence, we are of the opinion that even then the evidence adduced during the trial upon the question of the conjugal property is sufficient to justify the conclusions of the said Court of First Instance and that the judgment of the lower court should be affirmed in this particular. And, moreover, in view of the fact that the defendant

made no appearance in the Supreme Court of the United States when the case was pending there, and made no defense when the very question was being considered by that court which is presented to this court now, we are of the opinion that a new trial should not be granted, and that the plaintiff, who is clearly entitled to the relief granted by the lower court, at the close of the trial should not be further annoyed or kept out of that portion of the conjugal property to which she is clearly entitled.

Torres, Mapa and Tracey, JJ., concurs.

A.M. No. 1022-MJ May 7, 1976

REDENTOR ALBANO, complainant, vs. MUNICIPAL JUDGE PATROCINIO C. GAPUSAN of Dumalneg, Ilocos Norte, respondent.

R E S O L U T I O N

AQUINO, J.:

Redentor Albano in a verified complaint dated August 18, 1975 charged Municipal Judge Patrocinio C. Gapusan of Dumalneg and Adams, Ilocos Norte (1) with incompetence and Ignorance of the law for having prepared and notarized a document providing for tile personal separation of husband and wife and the extrajudicial liquidation of their conjugal partnership and (2) with having allegedly influenced Judge Zacarias A. Crispin of the Court of First Instance of Ilocos Norte in deciding two criminal cases.

Malpractice as a notary. — In 1941 or five years before his appointment to the bench, respondent Gapusan notarized a document for the personal separation of the spouses Valentina Andres and Guillermo Maligta of Barrio 6, Vintar, Ilocos Norte and for the extrajudicial liquidation of their conjugal partnership.

It was stipulated in that document that if either spouse should commit adultery or concubinage, as the case may be, then the other should refrain from filing an action against the other.

Judge Gapusan denied that he drafted the agreement. He explained that the spouses had been separated for a long time when they signed the separation agreement and that the wife had begotten children with her paramour. He said that there was a stipulation in the agreement that the spouses would live together in case of reconciliation. His belief was that the separation agreement forestalled the occurrence of violent incidents between the spouses.

Albano in filing the malpractice charge is in effect asking this Court to take belated disciplinary action against Judge Gapusan as a member of the bar or as a notary. (He was admitted to the bar in 1937).

There is no question that the covenents contained in the said separation agreement are contrary to law, morals and good customs (Biton vs. Momongan, 62 Phil. 7). Those stipulations undermine the institutions of marriage and the family, "Marriage is not a mere contract but an inviolable social institution". "The family is a basic social institution which public policy cherishes and protects." (Arts. 52 and 216, Civil Code). Marriage and the family are the bases of human society throughout the civilized world (Adong vs. Cheong Seng Gee, 43 Phil. 43; Ramirez vs. Gmur, 42 Phil. 855, 864; Goitia vs. Campos Rueda, 35 Phil. 252, 254; Brown vs. Yambao, 102 Phil. 168).

To preserve the institutions of marriage and the family, the law considers as void "any contract for personal separation between husband and wife" and "every extrajudicial agreement, during the marriage, for the dissolution of the conjugal partnership" (Art. 221, Civil Code). Before the new Civil Code, it was held that the extrajudicial dissolution of the conjugal partnership without judicial sanction was void (Quintana vs. Lerma, 24 Phil. 285; De Luna vs. Linatoc, 74 Phil. 15).

A notary should not facilitate the disintegration of a marriage and the family by encouraging the separation of the spouses and extrajudically dissolving the conjugal partnership. Notaries were severely censured by this Court for notarizing documents which subvert the institutions of marriage and the family (Selanova vs. Mendoza, Adm. Matter No. 804-CJ, May 19, 1975, 64 SCRA 69; Miranda vs. Fuentes, Adm. Case No. 241, April 30, 1966, 16 SCRA 802; Biton vs. Momongan, supra,, Panganiban vs. Borromeo, 58 Phil. 367; In re Santiago, 70 Phil. 66; Balinon vs. De Leon, 94 Phil. 277).

Respondent Gapusan as a member of the bar should be censured for having notarized the void separation agreement already mentioned.

However, his notarization of that document does not warrant any disciplinary action against him as a municipal judge (he was appointed in 1946 as justice of the peace) especially considering that his appointment to the judiciary was screened by the Commission on Appointments (See Ty vs. San Diego, Adm. Matter No. 169-J, June 29, 1972).

Alleged misconduct in influencing CFI Judge. — Albano complains that Judge Gapusan took advantage of his intimacy with Judge Crispin. He implies that by reason of that intimacy Judge Crispin acquitted of frustrated murder the defendants in Criminal Case No. 102-III, People vs. Freddie Gapusan Gamboa, et al. and convicted Albano (complainant herein) of double frustrated murder with triple attempted murder in Criminal Case No. 70-III.

Albano said that Freddie Gapusan, an accused in the first criminal case above-mentioned and a complaining witness in the other case against Albano, is a relative of Judge Gapusan. He revealed that after the acquittal decision was rendered by Judge Crispin in Criminal Case No. 102 III, the relatives of the accused in that case were saying that their relationship to Judge Gapusan, a friend of Judge Crispin, proved to be "worthwhile and useful".

Judge Gapusan admitted in his answer that he is close to Judge Crispin because they used to be members of the Municipal Judges League (when it was headed by Judge Crispin) and because the latter used to be an Executive Judge (with supervision over municipal judges). Respondent said that his association with Judge Crispin "was purely official".

Judge Gapusan also admitted that Freddie Gapusan is his distant relative. He denied that he influenced Judge Crispin in rendering his decisions in the two criminal cases.

It is manifest that Alliano's imputation that Judge Gapusan influenced Judge Crispin is anchored on mere suspicion. If he has any evidence that Judge Crispin committed any irregularity due to the alleged influence exerted by Judge Gapusan, then Albano should have complained against Judge Crispin's actuations. He should riot vent his ire on Judge Gapusan alone.

When an officer or court allows itself to enter upon the sea of suspicion, it permits itself to enter upon a sea which has no shore, and the embarkation is without a rudder or compass to control the direction or to ascertain its bearing." (Dy Keng vs. Collector of Customs, 40 Phil, 118, 123).

A person has freedom to choose his friends and to hobnob with them. It is not a crime nor unethical per se for a municipal judge to fraternize with a Judge of the Court of First Instance. Whether the fraternization resulted in an unjust verdict rendered by the Judge of the Court of First Instance due to the sinister or corruptive influence of the municipal judge cannot be shown by mere inference, or conjecture. It should be Substantiated by solid evidence. The unjustness of the decision should be indubitably established.

The second charge should be dismissed for being speculative and unfair to Judge Crispin. (He retired in September, 1975).

WHEREFORE, the respondent, as a member of the bar, is for having notarized the above-mentioned void agreement. The second charge is dismissed.

SO ORDERED.

Fernando, Actg. C.J., Antonio and Martin, JJ, concur.

Concepcion, Jr., J., is on leave.

Separate Opinions 

BARREDO, J., concurring:

Because offense was committed thirty-five years ago, otherwise, there would have been a heavier sanction.

A.M. No. 1637 July 6, 1976

IN RE: ATTY. RUFILLO D. BUCANA, respondent.

R E S O L U T I O N

ANTONIO, J.:

Acting upon the letter of Mrs. Angela Drilon Baltazar, Barangay Captain of Victories, Dumangas, Iloilo, dated February 26, 1976, respondent Notary Public Rufillo D. Bucana was required by this Court in its Resolution of March 23, 1976, to show cause within ten (10) days from notice, why he should not be disciplinarily dealt with for having notarized on November 10, 1975 at Dumangas, Iloilo an Agreement executed by the spouses Gonzalo Baltazar and Luisa Sorongon wherein the afore-mentioned spouses agreed therein that "in case anyone of them will remarry both parties offer no objection and waive all civil and criminal actions against them" and that the afore-mentioned Agreement was "entered into for the purpose of agreement to allow each and everyone of them to remarry without objection or reservation ...", which affidavit is contrary to law because it sanctions an illicit and immoral purpose.

On April 21, 1976, respondent . submitted his explanation, admitting that he notarized the afore-mentioned document and that the Agreement is "immoral and against public policy", but in mitigation he asserted that the document in question was Prepared by his clerk, Lucia D. Doctolero without his previous knowledge; that when said document was presented to him for signature after it was signed by the parties, he vehemently refused to sign it and informed the parties that the document was immoral; that he placed the said document on his table among his files and more than a week later, he asked his clerk where the document was for the purpose of destroying it, but to his surprise he found that the same was notarized by him as per his file copies in the office; that he dispatched his clerk to get the copy from the parties, but the afore-mentioned parties could not be found in their respective residences; that he must have inadvertently notarized the same in view of the numerous documents on his table and at that time he was emotionally disturbed as his father (now deceased) was then seriously ill. The foregoing contentions of respondent were corroborated substantially by the separate sworn statements of his clerk, Lucia D. Doctolero and Angela Drilon Baltazar, both dated April 20, 1976. 1

There is no question that the afore-mentioned Agreement is contrary to law, morals and good customs. Marriage is an inviolable social institution, in the maintenance of which in its purity the public is deeply interested for it is the foundation of the family and of society without which there could be neither civilization nor progress. 2

The contract, in substance, purports to formulate an agreement between the husband and the wife to take unto himself a concubine and the wife to live in adulterous relations with another man, without opposition from either one, and what is more, it induces each party to commit bigamy. 3 This is not only immoral but in effect abets the commission of a crime. A notary public, by virtue of the nature of his

office, is required to exercise his duties with due care and with due regard to the provisions of existing law.

As stressed by Justice Malcolm in Panganiban v. Borromeo, 4 "it is for the notary to inform himself of the facts to which he intends to certify and to take part in no illegal enterprise. The notary public is usually a person who has been admitted to the practice of law, and as such, in the commingling of his duties notary and lawyer, must be held responsible for both. We are led to hold that a member of the bar who performs an act as a notary public of a disgraceful or immoral character may be held to account by the court even to the extent of disbarment."

In the case at bar, respondent in effect pleads for clemency, claiming that the notarization of the questioned document was due to his negligence. We find, however, that the aforementioned document could not have been notarized if the respondent had only exercised the requisite care required by law in the exercise of his duties as notary public.

WHEREFORE, We hold that respondent Rufillo D. Bucana is guilty of malpractice and is hereby suspended from the office of not try public for a period of six (6) months, with the admonition that a repetition of the same or a similar act in the future will be dealt with more severely.

Fernando (Chairman), Barredo, Aquino and Martin, JJ., concur.

Concepcion, Jr., J., is on leave.

Martin, J., was designated to sit in the Second Division.

G.R. No. 138322           October 2, 2001

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A. RECIO, respondents.

PANGANIBAN, J.:

A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgment; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999 Decision1 and the March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026-AF. The assailed Decision disposed as follows:

"WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now remarry under existing and applicable laws to any and/or both parties."3

The assailed Order denied reconsideration of the above-quoted Decision.

The Facts

Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1, 1987.4 They lived together as husband and wife in Australia. On May 18, 1989,5 a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court.

On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian Citizenship" issued by the Australian government.6

Petitioner – a Filipina – and respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.7 In their application for a marriage license, respondent was declared as "single" and "Filipino."8

Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.9

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage10

in the court a quo, on the ground of bigamy – respondent allegedly had a prior subsisting marriage at the time he married her on January 12, 1994. She claimed that she learned of respondent's marriage to Editha Samson only in November, 1997.

In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage and its subsequent dissolution.11 He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree obtained in Australian in 1989;12 thus, he was legally capacitated to marry petitioner in 1994.1âwphi1.nêt

On July 7, 1998 – or about five years after the couple's wedding and while the suit for the declaration of nullity was pending – respondent was able to secure a divorce decree from a family court in Sydney, Australia because the "marriage ha[d] irretrievably broken down."13

Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no cause of action.14 The Office of the Solicitor General agreed with respondent.15 The court marked and admitted the documentary evidence of both parties.16 After they submitted their respective memoranda, the case was submitted for resolution.17

Thereafter, the trial court rendered the assailed Decision and Order.

Ruling of the Trial Court

The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential element of the marriage; that is, respondent's alleged lack of legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian divorce had ended the marriage; thus, there was no more martial union to nullify or annual.

Hence, this Petition.18

Issues

Petitioner submits the following issues for our consideration:

"I

The trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him to contract a second marriage with the petitioner.

"2

The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity to marry constitutes absence of a substantial requisite voiding the petitioner' marriage to the respondent.

"3

The trial court seriously erred in the application of Art. 26 of the Family Code in this case.

"4

The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in this case.

"5

The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to remarry, without first securing a recognition of the judgment granting the divorce decree before our courts."19

The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these two, there is no more necessity to take up the rest.

The Court's Ruling

The Petition is partly meritorious.

First Issue:

Proving the Divorce Between Respondent and Editha Samson

Petitioner assails the trial court's recognition of the divorce between respondent and Editha Samson. Citing Adong v. Cheong Seng Gee,20 petitioner argues that the divorce decree, like any other foreign judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that respondent miserably failed to establish these elements.

Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized abroad are governed by the law of the place where they were celebrated (the lex loci celebrationist). In effect, the Code requires the presentation of the foreign law to show the conformity of the marriage in question to the legal requirements of the place where the marriage was performed.

At the outset, we lay the following basic legal principles as the take-off points for our discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.21 A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 1522 and 1723 of the Civil Code.24 In mixed marriages involving a Filipino and a foreigner, Article 2625 of the Family Code allows the former to contract a subsequent marriage in case the divorce is "validly obtained abroad by the alien spouse capacitating him or her to remarry."26 A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws.27

A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that "aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law."28 Therefore, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.29 Presentation solely of the divorce decree is insufficient.

Divorce as a Question of Fact

Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows:

"ART. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following:

x x x     x x x     x x x

"(5) If previously married, how, when and where the previous marriage was dissolved or annulled;

x x x      x x x      x x x

"ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth of baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of annulment or declaration of nullity of his or her previous marriage. x x x.

"ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the

delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect their persons."

Respondent, on the other hand, argues that the Australian divorce decree is a public document – a written official act of an Australian family court. Therefore, it requires no further proof of its authenticity and due execution.

Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and admitted in evidence.30 A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.31 The decree purports to be a written act or record of an act of an officially body or tribunal of a foreign country.32

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested33 by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.34

The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian family court.35 However, appearance is not sufficient; compliance with the aforemetioned rules on evidence must be demonstrated.

Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil Registry of Cabanatuan City.36 The trial court ruled that it was admissible, subject to petitioner's qualification.37 Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia.38

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer bound by Philippine personal laws after he acquired Australian citizenship in 1992.39 Naturalization is the legal act of adopting an alien and clothing him with the political and civil rights belonging to a citizen.40

Naturalized citizens, freed from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws.

Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of the divorce decree and

was cognizant of the marital laws of Australia, because she had lived and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly known by Philippine courts: thus, judges may take judicial notice of foreign laws in the exercise of sound discretion.

We are not persuaded. The burden of proof lies with "the party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action."41

In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when those are denied by the answer; and defendants have the burden of proving the material allegations in their answer when they introduce new matters.42

Since the divorce was a defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him.

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.43 Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function.44 The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.

Second Issue:

Respondent's Legal Capacity to Remarry

Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to marry her in 1994.

Hence, she concludes that their marriage was void ab initio.

Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately established his legal capacity to marry under Australian law.

Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves the bond in full force.45 There is no showing in the case at bar which type of divorce was procured by respondent.

Respondent presented a decree nisi or an interlocutory decree – a conditional or provisional judgment of divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of the prescribed period during which no reconciliation is effected.46

Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be prohibited from remarrying again. The court may allow a remarriage only after proof of good behavior.47

On its face, the herein Australian divorce decree contains a restriction that reads:

"1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has died) commits the offence of bigamy."48

This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did not absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian divorce ipso facto restored respondent's capacity to remarry despite the paucity of evidence on this matter.

We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive evidence as to his civil status based on Section 48, Rule 3949 of the Rules of Court, for the simple reason that no proof has been presented on the legal effects of the divorce decree obtained under Australian laws.

Significance of the Certificate of Legal Capacity

Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry.

We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.50

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

Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioner's contention that the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very least, to prove his legal capacity to contract the second marriage.

Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive evidence, if any, which show petitioner's legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties' marriage on the ground of bigamy, there being already in evidence two existing marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.

WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the court a quo for the purpose of receiving evidence which conclusively show respondent's legal capacity to marry petitioner; and failing in that, of declaring the parties' marriage void on the ground of bigamy, as above discussed. No costs.

SO ORDERED.

G.R. No. 11263             November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant, vs. JOSE CAMPOS RUEDA, defendant-appellee.

Eduardo Gutierrez Repide and Felix Socias for appellant.

Sanz, Opisso and Luzuriaga for appellee.

 

TRENT, J.:

          This is an action by the wife against her husband for support outside of the conjugal domicile. From a judgment sustaining the defendant's demurrer upon the ground that the facts alleged in the complaint do not state a cause of action, followed by an order dismissing the case after the plaintiff declined to amend, the latter appealed.

          It was urged in the first instance, and the court so held, that the defendant cannot be compelled to support the plaintiff, except in his own house, unless it be by virtue of a judicial decree granting her a divorce or separation from the defendant.

          The parties were legally married in the city of Manila on January 7, 1915, and immediately thereafter established their residence at 115 Calle San Marcelino, where they lived together for about a month, when the plaintiff returned to the home of her parents. The pertinent allegations of the complaint are as follows:

          That the defendant, one month after he had contracted marriage with the plaintiff, demanded of her that she perform unchaste and lascivious acts on his genital organs; that the plaintiff spurned the obscene demands of the defendant and refused to perform any act other than legal and valid cohabitation; that the defendant, since that date had continually on other successive dates, made similar lewd and indecorous demands on his wife, the plaintiff, who always spurned them, which just refusals of the plaintiff exasperated the defendant and induce him to maltreat her by word and deed and inflict injuries upon her lips, her face and different parts of her body; and that, as the plaintiff was unable by any means to induce the defendant to desist from his repugnant desires and cease from maltreating her, she was obliged to leave the conjugal abode and take refuge in the home of her parents.

          Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities established by General Orders No. 68, in so far as its civil effects are concerned requiring the consent of the parties. (Garcia vs. Montague, 12 Phil. Rep., 480, citing article 1261 of Civil Code.) Upon the termination of the marriage ceremony, a conjugal partnership is formed between the parties. (Sy Joc Lieng vs.

Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage partakes of the nature of an ordinary contract. But it is something more than a mere contract. It is a new relation, the rights, duties, and obligations of which rest not upon the agreement of the parties but upon the general law which defines and prescribes those rights, duties, and obligations .Marriage is an institution, in the maintenance of which in its purity the public is deeply interested. It is a relation for life and the parties cannot terminate it at any shorter period by virtue of any contract they may make .The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time, and none other. When the legal existence of the parties is merged into one by marriage, the new relation is regulated and controlled by the state or government upon principles of public policy for the benefit of society as well as the parties. And when the object of a marriage is defeated by rendering its continuance intolerable to one of the parties and productive of no possible good to the community, relief in some way should be obtainable. With these principles to guide us, we will inquire into the status of the law touching and governing the question under consideration.

          Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De la Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in the Peninsula, were extended to the Philippine Islands by royal decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705). Articles 44, 45, and 48 of this law read:

          ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each other.

          ART. 45. The husband must live with and protect his wife. (The second paragraph deals with the management of the wife's property.)

          ART. 48. The wife must obey her husband, live with him, and follow him when he charges his domicile or residence.

          Notwithstanding the provisions of the foregoing paragraph, the court may for just cause relieve her from this duty when the husband removes his residence to a foreign country.

          And articles 143 and 149 of the Civil Code are as follows:

          ART. 143. The following are obliged to support each other reciprocally to the whole extent specified in the preceding article.

          1. The consorts.

x x x           x x x           x x x

          ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by paying the pension that may be fixed or by receiving and maintaining in his own home the person having the right to the same.

          Article 152 of the Civil Code gives the instances when the obligation to give support shall cease. The failure of the wife to live with her husband is not one of them.

          The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations of the spouses. The spouses must be faithful to, assist, and support each other. The husband must live with and protect his wife. The wife must obey and live with her husband and follow him when he changes his domicile or residence, except when he removes to a foreign country. But the husband who is obliged to support his wife may, at his option, do so by paying her a fixed pension or by receiving and maintaining her in his own home. May the husband, on account of his conduct toward his wife, lose this option and be compelled to pay the pension? Is the rule established by article 149 of the Civil Code absolute? The supreme court of Spain in its decision of December 5, 1903, held:.

          That in accordance with the ruling of the supreme court of Spain in its decisions dated May 11, 1897, November 25, 1899, and July 5, 1901, the option which article 149 grants the person, obliged to furnish subsistence, between paying the pension fixed or receiving and keeping in his own house the party who is entitled to the same, is not so absolute as to prevent cases being considered wherein, either because this right would be opposed to the exercise of a preferential right or because of the existence of some justifiable cause morally opposed to the removal of the party enjoying the maintenance, the right of selection must be understood as being thereby restricted.

          Whereas the only question discussed in the case which gave rise to this appeal was whether there was any reason to prevent the exercise of the option granted by article 149 of the Civil Code to the person obliged to furnish subsistence, to receive and maintain in his own house the one who is entitled to receive it; and inasmuch as nothing has been alleged or discussed with regard to the parental authority of Pedro Alcantara Calvo, which he ha not exercised, and it having been set forth that the natural father simply claims his child for the purpose of thus better attending to her maintenance, no action having been taken by him toward providing the support until, owing to such negligence, the mother was obliged to demand it; it is seen that these circumstances, together with the fact of the marriage of Pedro Alcantara, and that it would be difficult for the mother to maintain relations with her daughter, all constitute an impediment of such a nature as to prevent the exercise of the option in the present case, without prejudice to such decision as may be deemed proper with regard to the other questions previously cited in respect to which no opinion should be expressed at this time.

          The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576), wherein the court held that the rule laid down in article 149 of the Civil Code "is not absolute." but it is insisted that there existed a preexisting or

preferential right in each of these cases which was opposed to the removal of the one entitled to support. It is true that in the first the person claiming the option was the natural father of the child and had married a woman other than the child's mother, and in the second the right to support had already been established by a final judgment in a criminal case. Notwithstanding these facts the two cases clearly established the proposition that the option given by article 149 of the Civil Code may not be exercised in any and all cases.

          Counsel for the defendant cite, in support of their contention, the decision of the supreme court of Spain, dated November 3, 1905. In this case Don Berno Comas, as a result of certain business reverses and in order no to prejudice his wife, conferred upon her powers to administer and dispose of her property. When she left him he gave her all the muniments of title, mortgage credits, notes, P10,000 in accounts receivable, and the key to the safe in which he kept a large amount of jewels, thus depriving himself of all his possessions and being reduced in consequence to want. Subsequently he instituted this civil action against his wife, who was then living in opulence, for support and the revocation of the powers heretofore granted in reference to the administration and disposal of her property. In her answer the wife claimed that the plaintiff (her husband) was not legally in a situation to claim support and that the powers voluntarily conferred and accepted by her were bilateral and could not be canceled by the plaintiff. From a judgment in favor of the plaintiff the defendant wife appealed to the Audencia Territorial wherein, after due trial, judgment was rendered in her favor dismissing the action upon the merits. The plaintiff appealed to the supreme court and that high tribunal, in affirming the judgment of the Audencia Territorial, said:

          Considering that article 143, No. 1, of the Civil Code, providing that the spouses are mutually obliged to provide each other with support, cannot but be subordinate to the other provisions of said Code which regulates the family organization and the duties of spouses not legally separated, among which duties are those of their living together and mutually helping each other, as provided in article 56 of the aforementioned code; and taking this for granted, the obligation of the spouse who has property to furnish support to the one who has no property and is in need of it for subsistence, is to be understood as limited to the case where, in accordance with law, their separation has been decreed, either temporarily or finally and this case, with respect to the husband, cannot occur until a judgment of divorce is rendered, since, until then, if he is culpable, he is not deprived of the management of his wife's property and of the product of the other property belonging to the conjugal partnership; and

          Considering that, should the doctrine maintained in the appeal prevail, it would allow married persons to disregard the marriage bond and separate from each other of their own free will, thus establishing, contrary to the legal provision contained in said article 56 of the Civil Code, a legal status entirely incompatible with the nature and effects of marriage in disregard of the duties inherent therein and disturbing the unity of the family, in opposition to what the law, in conformity with good morals, has established; and.

          Considering that, as the spouses D. Ramon Benso and Doña Adela Galindo are not legally separated, it is their duty to live together and afford each other help and support; and for this reason, it cannot be held that the former has need of support from his wife so that he may live apart from her without the conjugal abode where it is his place to be, nor of her conferring power upon him to dispose even of the fruits of her property in order therewith to pay the matrimonial expenses and, consequently, those of his own support without need of going to his wife; wherefore the judgment appealed from, denying the petition of D. Ramon Benso for support, has not violated the articles of the Civil Code and the doctrine invoked in the assignments of error 1 and 5 of the appeal.

          From a careful reading of the case just cited and quoted from it appears quite clearly that the spouses separated voluntarily in accordance with an agreement previously made. At least there are strong indications to this effect, for the court says, "should the doctrine maintained in the appeal prevail, it would allow married persons to disregard the marriage bond and separate from each other of their own free will." If this be the true basis upon which the supreme court of Spain rested its decision, then the doctrine therein enunciated would not be controlling in cases where one of the spouses was compelled to leave the conjugal abode by the other or where the husband voluntarily abandons such abode and the wife seeks to force him to furnish support. That this is true appears from the decision of the same high tribunal, dated October 16, 1903. In this case the wife brought an action for support against her husband who had willfully and voluntarily abandoned the conjugal abode without any cause whatever. The supreme court, reversing the judgment absolving the defendant upon the ground that no action for divorce, etc., had been instituted, said:

          In the case at bar, it has been proven that it was Don Teodoro Exposito who left the conjugal abode, although he claims, without however proving his contention, that the person responsible for this situation was his wife, as she turned him out of the house. From this state of affairs it results that it is the wife who is party abandoned, the husband not having prosecuted any action to keep her in his company and he therefore finds himself, as long as he consents to the situation, under the ineluctable obligation to support his wife in fulfillment of the natural duty sanctioned in article 56 of the Code in relation with paragraph 1 of article 143. In not so holding, the trial court, on the mistaken ground that for the fulfillment of this duty the situation or relation of the spouses should be regulated in the manner it indicates, has made the errors of law assigned in the first three grounds alleged, because the nature of the duty of affording mutual support is compatible and enforcible in all situations, so long as the needy spouse does not create any illicit situation of the court above described.lawphil.net

          If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of November 3, 1905, and if the court did hold, as contended by counsel for the defendant in the case under consideration, that neither spouse can be compelled to support the other outside of the conjugal abode, unless it be by virtue of a final judgment granting the injured one a divorce or separation from the other, still such doctrine or holding would not necessarily control in this jurisdiction for the reason that the substantive law is not in every particular the same here as it

is in Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the Peninsula are not in force in the Philippine Islands. The law governing the duties and obligations of husband and wife in this country are articles 44 to 78 of the Law of Civil Marriage of 1870 .In Spain the complaining spouse has, under article 105 of the Civil Code, various causes for divorce, such as adultery on the part of the wife in every case and on the part of the husband when public scandal or disgrace of the wife results therefrom; personal violence actually inflicted or grave insults: violence exercised by the husband toward the wife in order to force her to change her religion; the proposal of the husband to prostitute his wife; the attempts of the husband or wife to corrupt their sons or to prostitute their daughters; the connivance in their corruption or prostitution; and the condemnation of a spouse to perpetual chains or hard labor, while in this jurisdiction the only ground for a divorce is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and absolute doctrine was announced by this court in the case just cited after an exhaustive examination of the entire subject. Although the case was appealed to the Supreme Court of the United States and the judgment rendered by this court was there reversed, the reversal did not affect in any way or weaken the doctrine in reference to adultery being the only ground for a divorce. And since the decision was promulgated by this court in that case in December, 1903, no change or modification of the rule has been announced. It is, therefore, the well settled and accepted doctrine in this jurisdiction.

          But it is argued that to grant support in an independent suit is equivalent to granting divorce or separation, as it necessitates a determination of the question whether the wife has a good and sufficient cause for living separate from her husband; and, consequently, if a court lacks power to decree a divorce, as in the instant case, power to grant a separate maintenance must also be lacking. The weakness of this argument lies in the assumption that the power to grant support in a separate action is dependent upon a power to grant a divorce. That the one is not dependent upon the other is apparent from the very nature of the marital obligations of the spouses. The mere act of marriage creates an obligation on the part of the husband to support his wife. This obligation is founded not so much on the express or implied terms of the contract of marriage as on the natural and legal duty of the husband; an obligation, the enforcement of which is of such vital concern to the state itself that the laws will not permit him to terminate it by his own wrongful acts in driving his wife to seek protection in the parental home. A judgment for separate maintenance is not due and payable either as damages or as a penalty; nor is it a debt in the strict legal sense of the term, but rather a judgment calling for the performance of a duty made specific by the mandate of the sovereign. This is done from necessity and with a view to preserve the public peace and the purity of the wife; as where the husband makes so base demands upon his wife and indulges in the habit of assaulting her. The pro tanto separation resulting from a decree for separate support is not an impeachment of that public policy by which marriage is regarded as so sacred and inviolable in its nature; it is merely a stronger policy overruling a weaker one; and except in so far only as such separation is tolerated as a means of preserving the public peace and morals may be considered, it does not in any respect whatever impair the marriage contract or for any purpose place the wife in the situation of a feme sole.

          The foregoing are the grounds upon which our short opinion and order for judgment, heretofore filed in this case, rest.

Torres, Johnson and Carson, JJ., concur.

Separate Opinions

MORELAND, J., concurring:

          I based my vote in this case upon the ground that a husband cannot, by his own wrongful acts, relieve himself from the duty to support his wife imposed by law; and where a husband, by wrongful, illegal, and unbearable conduct, drives his wife from the domicile fixed by him, he cannot take advantage of her departure to abrogate the law applicable to the marital relation and repudiate his duties thereunder. In law and for all purposes within its purview, the wife still remains an inmate of the conjugal domicile; for I regard it as a principle of law universally recognized that where a person by his wrongful and illegal acts creates a condition which under ordinary circumstances would produce the loss of rights or status pertaining to another, the law will, whenever necessary to protect fully the rights or status of the person affected by such acts, regard the condition by such acts created as not existing and will recur to and act upon the original situation of the parties to determine their relative rights or the status of the person adversely affected.

          I do not believe, therefore, that the case is properly conceived by defendant, when the consideration thereof proceeds solely on the theory that the wife is outside the domicile fixed by the husband. Under the facts alleged in the complainant the wife is legally still within the conjugal domicile.

G.R. No. L-3047             May 16, 1951

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. GUADALUPE ZAPATA and DALMACIO BONDOC, defendants-appellees.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Jaime de los Angeles for appellant.

Francisco M. Ramos and Moises Sevilla Ocampo for appellee Dalmacio Bondoc.Hernandez and Laquian for appellee Guadalupe Zapata.

PADILLA, J.:

In the Court of First Instance of Pampanga a complaint for adultery was filed by Andres Bondoc against Guadalupe Zapata, his wife, and Dalmacio Bondoc, her paramour, for cohabiting and having repeated sexual intercourse during the period from the year 1946 14 March 1947, the date of the filing of the complaint, Dalmacio Bondoc knowing his codefendant to be a married woman (criminal case No. 426). The defendant wife entered the plea of guilty and was sentenced to suffer four months of arresto mayor which penalty she served. In the same court, on 17 September 1948, the offended husband filed another complaint for adulterous acts committed by his wife and her paramour from 15 March 1947 to 17 September 1948, the date of the filing of the second complaint (criminal case No. 735). On 21 February 1949, each of the defendants filed a motion to quash the complaint of the ground that they would be twice put in jeopardy of punishment for the same offense. The trial court upheld the contention of the defendants and quashed the second complaint. From the other sustaining the motions to quash the prosecution has appealed.

The trial court held that the adulterous acts charged in the first and second complains must be deemed one continuous offense, the defendants in both complaints being the same and identical persons and the two sets of unlawful acts having taken place continuously during the years 1946, 1947 and part of 1948, and that the acts or two sets of acts that gave rise to the crimes of adultery complained of in both cases constitute one and the same offense, within the scope and meaning of the constitutional provision that "No person shall be twice put in jeopardy of punishment for the same offense.".

Adultery is a crime of result and not of tendency, as the Supreme Court of Spain has held (S. 10 December 1945); it is a instantaneous crime which is consummated and exhausted or completed at the moment of the carnal union. Each sexual intercourse constitutes a crime of adultery (Cuello Calon, Derecho Penal, Vol. II, p. 569). True, two or more adulterous acts committed by the same defendants are against the same person — the offended husband, the same status — the union of the husband and wife by their marriage, and the same community represented by the State for its interest in maintaining and preserving such status. But this identity of the offended party, status society does not argue against the commission of the crime of adultery as many times as there were carnal consummated, for as long as the status remain unchanged, the nexus undissolved and unbroken, an encroachment or

trespass upon that status constitutes a crime. There is no constitutional or legal provision which bars the filing of as many complaints for adultery as there were adulterous acts committed, each constituting one crime.

The notion or concept of a continuous crime has its origin in the juridical fiction favorable to the law transgressors and in many a case against the interest of society (Cuello Calon, Derecho Penal, Vol. II, p. 521). For it to exist there would be plurality of acts performed seperately during a period of time; unity of penal provision infringed upon or violated; and unity of criminal intent or purpose, which means that two or more violations of the same penal provision are united in one and the same intent leading to the perpetration of the same criminal purpose or aim ( Ibid. p. 520).In the instant case the last unity does not exist, because as already stated the culprits perpetrate the crime in every sexual intercourse and they need not to another or other adulterous acts to consummate it. After the last acts of adultery had been committed as charged in the first complaint, the defendants again committed adulterous acts not included in the first complaint and for which the second complaint was filed. It was held by the Supreme Court of Spain that another crime of adultery was committed, if the defendants, after their provincional release during the pendency of the case in which they were sent to prison to serve the penalty imposed upon them(S. 28 February 1906; 76 Jur. Crim. pp. 208-210).

Another reason why a second complaint charging the commission of adulterous acts not included in the first complaint does not constitute a violation of the double jeopardy clause of the constitution is that, if the second places complaint the defendants twice in jeopardy of punishment for the same offense, the adultery committed by the male defendant charged in the second complaint, should he be absolved from, or acquitted of, the first charge upon the evidence that he did not know that his codefendant was a married woman, would remain or go unpunished. The defense set up by him against the first charge upon which he was acquitted would no longer be available, because at the time of the commission of the crime charged in the second complaint, he already knew that this defendant was a married woman and he continued to have carnal knowledge of her. Even if the husband should pardon his adulterous wife, such pardon would not exempt the wife and her paramour from criminal liability for adulterous acts committed after the pardon was granted because the pardon refers to previous and not to subsequent adulterous acts(Viada [5th ed.] Vol. 5, p. 208; Groizard [2nd ed.] Vol. 5, pp. 57-58).

The order appealed from, which quashed the second complaint for adultery, is hereby reversed and set aside, and trial court directed to proceed with the trial of the defendants in accordance with law, with costs against the appellees.

G.R. No. 79284 November 27, 1987

FROILAN C. GANDIONCO, petitioner, vs. HON. SENEN C. PEÑARANDA, as Presiding Judge of the Regional Trial Court of Misamis Oriental, Branch 18,

Cagayan de Oro City, and TERESITA S. GANDIONCO, respondents.

PADILLA, J.:

A special civil action for certiorari, with application for injunction, to annul (1) the Order of the respondent Judge, dated 10 December 1986, ordering petitioner to pay support pendente lite to private respondent (his wife) and their child, and (2) the Order of the same respondent Judge, dated 5 August 1987, denying petitioner's motion to suspend hearings in the action for legal separation filed against him by private respondent as well as his motion to inhibit respondent Judge from further hearing and trying the case.

On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial Court of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided over by respondent Judge, a complaint against petitioner for legal separation, on the ground of concubinage, with a petition for support and payment of damages. This case was docketed as Civil Case No. 10636. On 13 October 1986, private respondent also filed with the Municipal Trial Court, General Santos City, a complaint against petitioner for concubinage, which was docketed on 23 October 1986 as Criminal Case No. 15437111. On 14 November 1986, application for the provisional remedy of support pendente lite, pending a decision in the action for legal separation, was filed by private respondent in the civil case for legal separation. The respondent judge, as already stated, on 10 December 1986, ordered The payment of support pendente lite.

In this recourse, petitioner contends that the civil action for legal separation and the incidents consequent thereto, such as, application for support pendente lite, should be suspended in view of the criminal case for concubinage filed against him the private respondent. In support of his contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules on Criminal Procedure, which states:

SEC. 3. Other Civil action arising from offenses. — Whenever the offended party shall have instituted the civil action to enforce the civil liability arising from the offense. as contemplated in the first Section 1 hereof, the following rules shall be observed:

(a) After a criminal action has been commenced the pending civil action arising from the same offense shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered. . . .

The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that such civil action arises from, or is inextricably tied to the criminal action for concubinage, so that all proceedings related to legal separation

will have to be suspended to await conviction or acquittal for concubinage in the criminal case. Authority for this position is this Court's decision in the case of Jerusalem vs. Hon. Roberto Zurbano. 1

Petitioner's contention is not correct.

In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation would be proper if an allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules of Court on criminal procedure, to wit:

Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise provided by law, the following rules shall he observed:

(a) When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately;

(b) Criminal and civil actions arising from the same offense may be instituted separately, but after the criminal action has been commenced the civil action can not be instituted until final judgment has been rendered in the criminal action;

(c) After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted and the same shall be suspended in whatever stage it may be found until final judgment in the criminal proceeding has been rendered ... (Emphasis supplied)

The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be suspended, with or upon the filing of a criminal action, is one which is "to enforce the civil liability arising from the offense". In other words, in view of the amendment under the 1985 Rules on Criminal Procedure, a civil action for legal separation, based on concubinage, may proceed ahead of, or simultaneously with, a criminal action for concubinage, because said civil action is not one "to enforce the civil liability arising from the offense" even if both the civil and criminal actions arise from or are related to the same offense. Such civil action is one intended to obtain the right to live separately, with the legal consequences thereof, such as, the dissolution of the conjugal partnership of gains, custody of offsprings, support, and disqualification from inheriting from the innocent spouse, among others. As correctly pointed out by the respondent Judge in his Order dated 5 August 1987:

The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al., L-11935, April 24, 1959 (105 Phil.

1277) is not controlling. It applied paragraph C of Sec. 1, of then Rule 107 of the Rules of Court, which reads:

After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted and the same shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered. (Emphasis supplied)

The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil actions to enforce the civil liability arising from the offense" as contemplated in the first paragraph of Section 1 of Rule 111-which is a civil action "for recovery of civil liability arising from the offense charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action for the recovery of civil liability arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to "Civil action arising from the offense."

As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed at the conjugal rights of the spouses and their relations to each other, within the contemplation of Articles 7 to 108, of the Civil Code." 2

Petitioner also argues that his conviction for concubinage will have to be first secured before the action for legal separation can prosper or succeed, as the basis of the action for legal separation is his alleged offense of concubinage.

Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon proof by preponderance of evidence in the action for legal separation. 3 No criminal proceeding or conviction is necessary. To this end, the doctrine in Francisco vs. Tayao 4 has been modified, as that case was decided under Act. No. 2710, when absolute divorce was then allowed and had for its grounds the same grounds for legal separation under the New Civil Code, with the requirement, under such former law, that the guilt of defendant spouses had to be established by final judgment in a criminal action. That requirement has not been reproduced or adopted by the framers of the present Civil Code, and the omission has been uniformly accepted as a modification of the stringent rule in Francisco v. Tayao. 5

Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no proof of grave abuse of discretion on the part of the respondent Judge in ordering the same. Support pendente lite, as a remedy, can be availed of in an action for legal separation, and granted at the discretion of the judge. 6 If petitioner finds the amount of support pendente lite ordered as too onerous, he can always file a motion to modify or reduce the same. 7

Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant of support pendente lite and the denial of the motion to suspend hearings in the case, are taken by the petitioner as a disregard of applicable laws

and existing doctrines, thereby showing the respondent Judge's alleged manifest partiality to private respondent.

Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and a party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge from hearing the case, on the ground of bias and manifest partiality. This is more so, in this case, where we find the judge's disposition of petitioner's motions to be sound and well-taken.

WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

G.R. No. L-29138 May 29, 1970

ELENA CONTRERAS, plaintiff-appellant, vs. CESAR J. MACARAIG, defendant-appellee.

Jose T. Nery for plaintiff-appellee.

The City fiscal for defendant-appellant.

Cesar J. Macaraig in his own behalf.

 

DIZON, J.:

Appeal taken by Elena Contreras from a decision of the Juvenile and Domestic Relations Court of Manila in Civil Case No. 00138 dismissing her complaint upon the ground that the same was filed more than one year from and after the date on which she had become cognizant of the cause for legal separation.

The following, facts found by the trial court are not in dispute:

Plaintiff and defendant were married on March 16, 1952 in the Catholic Church of Quiapo, Manila. Out of their Marriage, three children were born: Eusebio C. Macaraig, on January 11, 1953; Victoria C. Macaraig, on March 26, 1956; and Alexander C. Macaraig, on August 4, 1958. All the children are in the care of plaintiff wife.

Sometime in 1958, the couple acquired rights, as lessee and purchaser under a conditional sale agreement, to own a house and lot, known as Lot 4, Block 8 of the Philamlife Homes in Quezon City which they transferred in favor of their three children on October 29, 1958 (Exh. F). Installment payments are being made by plaintiff's father. The spouses own no other conjugal property.

Immediately before the election of 1961, defendant was employed as manager of the printing establishment owned by plaintiff's father known as the MICO Offset. In that capacity, defendant met and came to know Lily Ann Alcala, who place orders with MICO Offset for propaganda materials for Mr. Sergio Osmeña, who was then a Vice-Presidential candidate. After the elections of 1961, defendant resigned from MICO Offset to be a special agent at Malacañang. He began to be away so often and to come home very late. Upon plaintiff's inquiry, defendant explained that he was out on a series of confidential missions.

In September, 1962, Avelino Lubos, driver of the family car, told plaintiff that defendant was living in Singalong with Lily Ann Alcala. When defendant, the following October, returned to the conjugal home, plaintiff refrained from verifying Lubos' report from defendant in her desire not to anger nor drive defendant away. Although plaintiff, in April 1963, also received rumors that defendant was seen with a woman who was on the family way on Dasmariñas St., she was so happy that defendant again return to the family home in May, 1963 that she once more desisted from discussing the matter with him because she did not wish to precipitate a quarrel and drive him away. All this while, defendant, if and whenever he returned to the family fold, would only stay for two or three days but would be gone for a period of about a month.

After plaintiff received reports that Lily Ann Alcala had given birth to a baby, she sent Mrs. Felicisima Antioquia, her father's employee, to verify the reports. The latter was driven by Lubos to the house in Singalong and between 5:00 and 6:00 o'clock that afternoon, she saw defendant was carrying a baby in his arms. Mrs. Antioquia then went to the parish priest of Singalong where she inquired about the child of Cesar Macaraig and Lily Ann Alcala and she was given a copy of the baptismal certificate of Maria Vivien Mageline Macaraig (Exh. G) which she gave to plaintiff sometime in October, 1963.

Plaintiff then entreated her father-in-law, Lucilo Macaraig, to intercede with defendant and to convince him to return to his family. Mr. Macaraig, after talking to his son and seeking him with the latter's child told plaintiff that he could not do anything.

In November, 1963, plaintiff requested the cooperation of defendant's older sister, Mrs. Enriqueta Majul, and the latter obliged and arranged a meeting at her home in Buendia between plaintiff and Lily Ann Alcala. Lily Ann said she was willing to give up defendant as she had no desire to be accused criminally but it was defendant who refused to break relationship with her.

In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and Alexander, and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on España Extension in front of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant, where plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal home, assuring him that she was willing to forgive him. Defendant informed plaintiff that he could no longer leave Lily Ann and refused to return to his legitimate family.

On December 14, 1963, plaintiff instituted the present action for legal separation. When defendant did not interpose any answer

after he was served summons, the case was referred to the Office of the City Fiscal of Manila pursuant to the provisions of Article 101 of the Civil Code. After a report was received from Asst. Fiscal Primitivo M. Peñaranda that he believed that there was no collusion present, plaintiff was allowed to present her evidence. Defendant has never appeared in this case.

The reasons relied upon by the trial court in dismissing the complaint are set forth in the appealed decision as follows:

Under the facts established by plaintiff's evidence, although the infidelity of the husband is apparent, yet the case will have to be dismissed. Article 102 provides that, an action for legal separation cannot be instituted except within one year after plaintiff "became cognizant of the cause." In the absence of a clear-cut decision of the Supreme Court as to the exact import of the term "cognizant," the practical application of said Article can be attended with difficulty. For one thing; that rules might be different in case of adultery, which is an act, and for concubinage, which may be a situation or a relationship.

In respect of concubinage, the word 'cognizant' may not connote the date when proof thereof sufficient to establish the cause before a court of law is possessed. Otherwise, the one year period would be meaningless for practical purposes because all a wife would have to do would be to claim that the necessary proof was secured only within one year before the filing of the complaint. On the other hand, it should be hard to concede that what the law envisages (and, in a way, encourages) is the filing of a complaint within one year after the innocent spouses has received information of the other's infidelity, howsoever baseless the report might be.

The Court believes that the correct rule lies between the two extremes. At the time a wife acquired information, which can be reasonably relied upon as true, that her husband is living in concubinage with another woman, the one-year period should be deemed to have started even if the wife shall not then be in possession of proof sufficient to establish the concubinage before a court of law. The one-year period may be viewed, inter alia, as an alloted time within which proof should be secured. It is in the light of this rule that the Court will determine whether or not plaintiff's action for legal separation has prescribed.

After her husband resigned from MICO Offset to be a special agent in Malacañan, subsequent to the elections of 1961, he would seldom come home. He allayed plaintiff's suspicions with the explanation that he had been away on 'confidential missions.' However, in September, 1962, Avelino Lubos, plaintiff's driver, reported to plaintiff that defendant was living in Singalong with Lily Ann Alcala. As a matter of fact, it was also Lubos who brought

Mrs. F. Antioquia (when plaintiff had asked to verify the reports) to the house in Singalong where she saw defendant, Lily Ann and the baby.

The requirement of the law that a complaint for legal separation be filed within one year after the date plaintiff become cognizant of the cause is not of prescriptive nature, but is of the essence of the cause of action. It is consonant with the philosophy that marriage is an inviolable social institution so that the law provides strict requirements before it will allow a disruption of its status.

In the instant action, the Court has to find that plaintiff became cognizant of defendant's infidelity in September, 1962. Plaintiff made successive attempts to induce the husband to amend his erring ways but failed. Her desire to bring defendant back to the connubial fold and to preserve family solidarity deterred her from taking timely legal action.

The only question to be resolved is whether the period of one year provided for in Article 102 of the Civil Code should be counted, as far as the instant case is concerned from September 1962 or from December 1963. Computing the period of one year from the former date, it is clear that plaintiff's complaint filed on December 14, 1963 came a little too late, while the reverse would be true if said period is deemed to have commenced only in the month of December 1963.

The period of "five years from after the date when such cause occurred" is not here involved.

Upon the undisputed facts it seems clear that, in the month of September 1962, whatever knowledge appellant had acquired regarding the infidelity of her husband, that is, of the fact that he was then living in Singalong with Lily Ann Alcala, was only through the information given to her by Avelino Lubos, driver of the family car. Much as such hearsay information had pained and anguished her, she apparently thought it best — and no reasonable person may justifiably blame her for it — not to go deeper into the matter herself because in all probability even up to that time, notwithstanding her husband's obvious neglect of his entire family, appellant still cherished the hope — however forlorn — of his coming back home to them. Indeed, when her husband returned to the conjugal home the following October, she purposely refrained from bringing up the matter of his marital infidelity "in her desire not to anger nor drive defendant away" — quoting the very words of the trial court. True, appellant likewise heard in April 1963 rumors that her husband was seen with a woman on the family way on Dasmariñas Street, but failed again to either bring up the matter with her husband or make attempts to verify the truth of said rumors, but this was due, as the lower court itself believed, because "she was so happy that defendant again returned to the family home in May 1963 that she once more desisted from discussing the matter with him because she did not wish to precipitate a quarrel and drive him away." As a matter of fact, notwithstanding all these painful informations which would not have been legally sufficient to make a case for legal separation — appellant still made brave if desperate attempts to persuade her husband to come back home. In the words of the lower court, she "entreated her father-in-law, Lucilo Macaraig, to intercede with defendant and to

convince him to return to his family" and also "requested the cooperation of defendant's older sister, Mrs. Enriqueta Majul" for the same purpose, but all that was of no avail. Her husband remained obdurate.

After a careful review of the record, We are persuaded that, in the eyes of the law, the only time when appellant really became cognizant of the infidelity of her husband was in the early part of December 1963 when, quoting from the appealed decision, the following happened —

In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and Alexander, and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on España Extension in front of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant, where plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal home, assuring him that she was willing to forgive him. Defendant informed plaintiff that he could no longer leave Lily Ann and refused to return to his legitimate family.

From all the foregoing We conclude that it was only on the occasion mentioned in the preceding paragraph when her husband admitted to her that he was living with and would no longer leave Lily Ann to return to his legitimate family that appellant must be deemed to be under obligation to decide whether to sue or not to sue for legal separation, and it was only then that the legal period of one year must be deemed to have commenced.

WHEREFORE, the decision appealed from is set aside and another is hereby rendered holding that appellant is entitled to legal separation as prayed for in her complaint; and the case is hereby remanded to the lower court for appropriate proceedings in accordance with law.

G.R. No. L-30977 January 31, 1972

CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant, vs. EUFEMIO S. EUFEMIO alias EUFEMIO SY UY,

respondent-appellee.

Jose W. Diokno for petitioner-appellant.

D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:

Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for legal separation on the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as the action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the case prosecuted to final judgment.

On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically on 30 September 1934; that they had lived together as husband and wife continuously until 1943 when her husband abandoned her; that they had no child; that they acquired properties during their marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal separation, which, among others, would order that the defendant Eufemio S. Eufemio should be deprived of his share of the conjugal partnership profits.

In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged affirmative and special defenses, and, along with several other claims involving money and other properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok.

Issues having been joined, trial proceeded and the parties adduced their respective evidence. But before the trial could be completed (the respondent was already scheduled to present surrebuttal evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for petitioner duly notified the court of her death.

On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two (2) grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation.

On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the motion.

On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the order, the court stated that the motion to dismiss and the motion for substitution had to be resolved on the question of whether or not the plaintiff's cause of action has survived, which the court resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969.

After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969. The same was given due course and answer thereto was filed by respondent, who prayed for the affirmance of the said order. 3

Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio.

But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute — for the lower court did not act on the motion for substitution) stated the principal issue to be as follows:

When an action for legal separation is converted by the counterclaim into one for a declaration of nullity of a marriage, does the death of a party abate the proceedings?

The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that "the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self same marriage can stand independent and separate adjudication. They are not inseparable nor was the action for legal separation converted into one for a declaration of nullity by the counterclaim, for legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage as a pre-condition.

The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal separation, abate the action? If it does, will abatement also apply if the action involves property rights? .

An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself — actio personalis moritur cum persona.

... When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved. The heirs cannot even continue the suit, if the death of the spouse takes place during the course of the suit (Article 244, Section 3). The action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H. 1933, 332.") 4 .

Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject-matter of the action itself. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5

The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).

A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree. On the point, Article 106 of the Civil Code provides: .

Art. 106. The decree of legal separation shall have the following effects:

(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; .

(2) The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated, but the

offending spouse shall have no right to any share of the profits earned by the partnership or community, without prejudice to the provisions of article 176;

(3) The custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest of said minors, for whom said court may appoint a guardian;

(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law.

From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule 3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased party.

Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted...

The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in Section 1, Rule 87, of the Revised Rules of Court:

SECTION 1. Actions which may and which may not be brought against executor or administrator. No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him.

Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration..

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

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

In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership that might have resulted from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding.

ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is hereby affirmed. No special pronouncement as to costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

G.R. No. L-11766            October 25, 1960

SOCORRO MATUBIS, plaintiff-appellant, vs. ZOILO PRAXEDES, defendant-appellee.

Luis N. de Leon for appellant.

Lucio La. Margallo for appellee.

PAREDES, J.:

Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed with the Court of First Instance of Camarines Sur, on April 24, 1956, a complaint for legal Separation and changed of surname against her husband defendant Zoilo Praxedes.

The allegations of the complaint were denied by defendant spouse, who interposed the defense that it was plaintiff who left the conjugal home.

During the trial, wherein the plaintiff alone introduced oral as well as documentary evidence, the following facts were established:.

Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines Sur. For failure to agree on how they should live as husband and wife, the couple, on May 30, 1944, agreed to live separately from each other, which status remained unchanged until the present. On April 3, 1948, plaintiff and defendant entered into an agreement (Exhibit B), the significant portions of which are hereunder reproduced..

. . . (a) That both of us relinquish our right over the other as legal husband and wife.

(b) That both without any interference by any of us, nor either of us can prosecute the other for adultery or concubinage or any other crime or suit arising from our separation.

(c) That I, the, wife, is no longer entitled for any support from my husband or any benefits he may received thereafter, nor I the husband is not entitled for anything from my wife.

(d) That neither of us can claim anything from the other from the time we verbally separated, that is from May 30, 1944 to the present when we made our verbal separation into writing.

In January, 1955, defendant began cohabiting with one Asuncion Rebulado and on September 1, 1955, said Asuncion gave birth to a child who was recorded as the child of said defendant (Exh. C.).It was shown also that defendant and Asuncion

deported themselves as husband and wife and were generally reputed as such in the community.

After the trial, without the defendant adducing any evidence, the court a quo rendered judgment holding that the acts of defendant constituted concubinage, a ground for legal separation. It however, dismissed the complaint by stating:

While this legal ground exist, the suit must be dismissed for two reasons, viz:

Under Art. 102 of the new Civil Code, an action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when the cause occurred. The plaintiff became aware of the illegal cohabitation of her husband with Asuncion Rebulado in January, 1955. The complaint was filed on April 24, 1956. The present action was, therefore, filed out of time and for that reason action is barred.

Article 100 of the new Civil Code provides that the legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. As shown in Exhibit B, the plaintiff has consented to the commission of concubinage by her husband. Her consent is clear from the following stipulations:

(b) That both of us is free to get any mate and live with as husband and wife without any interference by any of us, nor either of us can prosecute the other for adultery or concubinage or any other crime or suit arising from our separation. (Exh. B).

This stipulation is an unbridled license she gave her husband to commit concubinage. Having consented to the concubinage, the plaintiff cannot claim legal separation.

The above decision is now before us for review, plaintiff- appellant claiming that it was error for the lower court to have considered that the period to bring the action has already elapsed and that there was consent on the part of the plaintiff to the concubinage. The proposition, therefore, calls for the interpretation of the provisions of the law upon which the lower court based its judgment of dismissal.

Article 102 of the new Civil Code provides:

An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from after the date when cause occurred.

The complaint was filed outside the periods provided for by the above Article. By the very admission of plaintiff, she came to know the ground (concubinage) for the legal

separation in January, 1955. She instituted the complaint only on April 24, 1956. It is to be noted that appellant did not even press this matter in her brief.

The very wording of the agreement Exhibit B. gives no room for interpretation other than that given by the trial judge. Counsel in his brief submits that the agreement is divided in two parts. The first part having to do with the act of living separately which he claims to be legal, and the second part — that which becomes a license to commit the ground for legal separation which is admittedly illegal. We do not share appellant's view. Condonation and consent on the part of plaintiff are necessarily the import of paragraph 6(b) of the agreement. The condonation and consent here are not only implied but expressed. The law (Art. 100 Civil Code), specifically provides that legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Having condoned and/or consented in writing, the plaintiff is now undeserving of the court's sympathy (People vs. Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even agrees that the complaint should be dismissed. He claims however, that the grounds for the dismissal should not be those stated in the decision of the lower court, "but on the ground that plaintiff and defendant have already been legally separated from each other, but without the marital bond having been affected, long before the effectivity of the new Civil Code" (appellants brief, pp. 7-8). Again, we cannot subscribed to counsel's contention, because it is contrary to the evidence.

Conformably with the foregoing, we find that the decision appealed from is in accordance with the evidence and the law on the matter. The same is hereby affirmed, with costs.

G.R. No. L-10033        December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant, vs. LEONILA GINEZ, defendant-appellee.

Florencio Dumapias for appellant.

Numeriano Tanopo, Jr. for appellee.

FELIX, J.:

This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion of the defendant, the case was dismissed. The order of dismissal was appealed to the Court of Appeals, but said Tribunal certified the case to the Court on the ground that there is absolutely no question of fact involved, the motion being predicated on the assumption as true of the very facts testified to by plaintiff-husband.

The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the United States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately after their marriage, the couple lived with their sisters who later moved to Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez left the dwelling of her sister-in-law and informed her husband by letter that she had gone to reside with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a local college there.

As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's sister-in-law) and some from anonymous writers(which were not produced at the hearing) informing him of alleged acts of infidelity of his wife which he did not even care to mention. On cross-examination, plaintiff admitted that his wife also informed him by letter, which she claims to have destroyed, that a certain "Eliong" kissed her. All these communications prompted him in October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation between him and his wife on account of the latter's alleged acts of infidelity, and he was directed to consult instead the navy legal department.

In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the house of one Mrs. Malalang, defendant's godmother. She came along with him and both proceeded to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day as husband and wife. Then they repaired to the plaintiff's house and again passed the night therein as husband and wife. On the second day, Benjamin Bugayong tried to verify from his wife the truth of the information he received that she had committed adultery but Leonila, instead of answering his query, merely packed up and left, which he took as a confirmation of the acts of infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to locate her and failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings".

On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a complaint for legal separation against his wife, Leonila Ginez, who timely filed an answer vehemently denying the averments of the complaint and setting up affirmative defenses. After the issues were joined and convinced that a reconciliation was not possible, the court set the case for hearing on June 9, 1953. Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiff-husband finished testifying in his favor, counsel for the defendant orally moved for the dismissal of the complaint, but the Court ordered him to file a written motion to that effect and gave plaintiff 10 days to answer the same.

The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of the allegations of the commission of "acts of rank infidelity amounting to adultery", the cause of action, if any, is barred by the statute of limitations; (2) That under the same assumption, the act charged have been condoned by the plaintiff-husband; and (3) That the complaint failed to state a cause of action sufficient for this court to render a valid judgment.

The motion to dismiss was answered by plaintiff and the Court, considering only the second ground of the motion to dismiss i. e., condonation, ordered the dismissal of the action. After the motion for reconsideration filed by plaintiff was denied, the case was taken up for review to the Court of Appeals, appellant's counsel maintaining that the lower court erred:

(a) In so prematurely dismissing the case;

(b) In finding that there were condonation on the part of plaintiff-appellant; and

(c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss.

As the questions raised in the brief were merely questions of law, the Court of Appeals certified the case to Superiority.

The Civil Code provides:

ART. 97. A petition for legal separation may be filed:

(1) For adultery on the part of the wife and for concubinage for the part of the husband as defined on the Penal Code; or

(2) An attempt by one spouse against the life of the other.

ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal

separation cannot by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.

ART. 102. An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred.

As the only reason of the lower Court for dismissing the action was the alleged condonation of the charges of adultery that the plaintiff-husband had preferred in the complaint against his wife, We will disregard the other 2 grounds of the motion to dismiss, as anyway they have not been raised in appellant's assignment of errors.

Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission, by a husband or wife of a matrimonial offense which the latter has committed". It is to be noted, however, that in defendant's answer she vehemently and vigorously denies having committed any act of infidelity against her husband, and even if We were to give full weight to the testimony of the plaintiff, who was the only one that had the chance of testifying in Court and link such evidence with the averments of the complaint, We would have to conclude that the facts appearing on the record are far from sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank infidelity amounting to adultery" preferred against the defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-law Valeriana Polangco, which must have been too vague and indefinite as to defendant's infidelity to deserve its production in evidence; nor the anonymous letters which plaintiff also failed to present; nor the alleged letter that, according to plaintiff, his wife addressed to him admitting that she had been kissed by one Eliong, whose identity was not established and which admission defendant had no opportunity to deny because the motion to dismiss was filed soon after plaintiff finished his testimony in Court, do not amount to anything that can be relied upon.

But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under the assumption that he really believed his wife guilty of adultery . What did he do in such state of mind. In August, 1952, he went to Pangasinan and looked for his wife and after finding her they lived together as husband and wife for 2 nights and 1 day, after which he says that he tried to verify from her the truth of the news he had about her infidelity, but failed to attain his purpose because his wife, instead of answering his query on the matter, preferred to desert him, probably enraged for being subjected to such humiliation. And yet he tried to locate her, though in vain. Now, do the husband's attitude of sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to him, amount to a condonation of her previous and supposed adulterous acts? In the order appealed from, the Court a quo had the following to say on this point:

In the hearing of the case, the plaintiff further testified as follows:

Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell this Hon. Court why you want to separate from your

wife? — A. I came to know that my wife is committing adultery, I consulted the chaplain and he told me to consult the legal adviser. (p. 11, t.s.n.)

Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went to the house of our god-mother, and as a husband I went to her to come along with me in our house but she refused. (p. 12, t.s.n.)lawphil.net

Q. What happened next? — A. I persuaded her to come along with me. She consented but I did not bring her home but brought her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.)

Q. How long did you remain in the house of your cousin Pedro Bugayong? — A. One day and one night. (p. 12. t.s.n.)

Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and wife, did you slept together? — A. Yes, sir. (p. 19, t.s.n.)

Q. On the next night, when you slept in your own house, did you sleep together also as husband and wife? — A. Yes, sir. (p. 19. t.s.n.)

Q. When was that? — A. That was in August, 1952. (p. 19 t.s.n.)

Q. How many nights did you sleep together as husband and wife? — A. Only two nights. (p. 19, t.s.n.)

The New Civil Code of the Philippines, in its Art. 97, says:

A petition for legal separation may be filed:

(1) For adultery on the part of the wife and concubinage on the part of the husband as defined on the Penal Code.

and in its Art. 100 it says:lawphil.net

The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.

A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted above, clearly shows that there was a condonation on the part of the husband for the supposed "acts of rank infidelity amounting to adultery" committed by defendant-wife. Admitting for the sake of argument that the infidelities amounting to adultery were committed by the defendant, a reconciliation was effected between her and

the plaintiff. The act of the latter in persuading her to come along with him, and the fact that she went with him and consented to be brought to the house of his cousin Pedro Bugayong and together they slept there as husband and wife for one day and one night, and the further fact that in the second night they again slept together in their house likewise as husband and wife — all these facts have no other meaning in the opinion of this court than that a reconciliation between them was effected and that there was a condonation of the wife by the husband. The reconciliation occurred almost ten months after he came to know of the acts of infidelity amounting to adultery.

In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation is implied from sexual intercourse after knowledge of the other infidelity. such acts necessary implied forgiveness. It is entirely consonant with reason and justice that if the wife freely consents to sexual intercourse after she has full knowledge of the husband's guilt, her consent should operate as a pardon of his wrong."

In Tiffany's Domestic and Family Relations, section 107 says:

Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer shall not again commit the offense; and also that he shall thereafter treat the other spouse with conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce. Condonation may be express or implied.

It has been held in a long line of decisions of the various supreme courts of the different states of the U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is ordinarily sufficient to constitute condonation, especially as against the husband'. (27 Corpus Juris Secundum, section 61 and cases cited therein).

In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and of the various decisions above-cited, the inevitable conclusion is that the present action is untenable.

Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that the conduct of the plaintiff-husband above narrated despite his belief that his wife was unfaithful, deprives him, as alleged the offended spouse, of any action for legal separation against the offending wife, because his said conduct comes within the restriction of Article 100 of the Civil Code.

The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of the offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to conclusive evidence of condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73).

If there had been cohabitation, to what extent must it be to constitute condonation?

Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation, and where the parties live in the same house, it is presumed that they live on terms of matrimonial cohabitation (27 C. J. S., section 6-d).

A divorce suit will not be granted for adultery where the parties continue to live together after it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption of marital cohabitation as a basis of condonation will generally be inferred, nothing appearing to the contrary, from the fact of the living together as husband and wife, especially as against the husband (Marsh vs. Marsh, 14 N. J. Eq. 315).

There is no ruling on this matter in our jurisprudence but we have no reason to depart from the doctrines laid down in the decisions of the various supreme courts of the United States above quoted.

There is no merit in the contention of appellant that the lower court erred in entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss, because in the second ground of the motion to dismiss. It is true that it was filed after the answer and after the hearing had been commenced, yet that motion serves to supplement the averments of defendant's answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule 17 of the Rules of Court).

Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with costs against appellant. It is so ordered.

G.R. No. L-996             October 13, 1902

LUIS R. YANGCO, petitioner, vs. WILLIAM J. ROHDE, judge of the Court of First Instance of Manila, respondent.

Francisco Ortigas, for petitioner.

Fred. G. Waite, for respondent.

 

ARELLANO, C.J.:

          The petitioner, Luis R. Yangco, filed in this court a petition for a writ of prohibition, alleging that before Judge William J. Rohde, of the Court of First Instance of the city of Manila, a complaint had been filed by Victorina Obin against the petitioner praying that she be declared the lawful wife of the said Yangco, and that she be granted a divorce, an allowance for alimony, and attorney's fees during the pendency of the suit; that the demurrer filed by the petitioner was overruled by the said judge, said ruling being in part as follows: "I am of the opinion that the marriage alleged in the complaint is valid under the laws in force, although the question is not clear nor without doubt. The facts alleged in the complaint compel me to resolve the doubt in favor of the plaintiff;" and that the petitioner, in answer to the complaint, denied the principal allegation of fact therein, to wit, the mutual agreement to be husband and wife alleged by the plaintiff to have been entered into before witnesses; that while the case was in this condition the plaintiff filed a motion for a monthly allowance as alimony, costs, and attorney's fees; that on the 22nd of July last the said judge ordered the petitioner to pay the plaintiff, in advance, a monthly allowance of 250 Mexican pesos from and after the 11th of March last past, and to pay on the 1st day of August following all accrued allowances, in addition to the allowance for the said month, amounting to the sum of 1,500 pesos; that the plaintiff in the said action owns no property, and the judge not having required from her any security, it is certain that the petitioner, defendant in the said action below, should judgment be rendered in his favor, would be unable to recover such sums as the judge might compel him to disburse; that against the ruling of the court he had no right of appeal or any plain, speedy, or adequate remedy; therefore he prays the court to render judgment declaring the Hon. William J. Rohde, judge of the Court of First Instance of Manila, has acted in excess of his jurisdiction in attempting to oblige petitioner to pay to the said Victorina Obin the said allowance, and to direct that a writ of prohibition issue to the said William J. Rohde prohibiting him from attempting to compel petitioner to pay the said amount.

          Against this petition the attorney for the respondent, William J. Rohde, filed a demurrer and motion to dismiss upon the following grounds: (1) That this court is without jurisdiction over the subject-matter of the action; (2) that the petition does not state facts sufficient to constitute a cause of action. It is to be observed that in the oral argument and brief filed no denial was made, but on the contrary the fact alleged by the petitioner was affirmed in that the ruling on the demurrer in the Court

of First Instance the respondent had expressed his opinion that "the question (as to the alleged marriage) is not clear nor free from doubt."

          Nevertheless, he says, "this being so, the said Victorina Obin acquired a right to all conjugal rights, and in particular to the allowance of alimony pendente lite." And upon this supposition he cited articles of the Civil Code as to rights enjoyed by a married woman by virtue of the marriage, and those which she may further exercise by reason of divorce pending litigation and those granted to her finally in case of a favorable judgment.

          The entire theory developed by the demurrer now before us may be expressed in the following terms: The respondents judge had jurisdiction to try the divorce case and its incidents, among others that of alimony; in an interlocutory ruling he held that the alleged matrimony existed, although it appeared to him to be a matter not clear or free from doubt; in another interlocutory order, notwithstanding the fact that the existence of the marriage is not clear or free from doubt, he directed the allowance of alimony pendente lite in favor of the plaintiff; against this interlocutory order no appeal lies on behalf of the alleged husband who is to pay this allowance; this alleged husband must pay it without any guaranty of recovery in the event that the proof should established a contrary condition of affairs to that assumed to be correct, notwithstanding the fact that the question is not clear or free from doubt; and as the judge is not devoid of jurisdiction, and as no appeal lies against an interlocutory order, that such an opinion, such an interlocutory order so rendered, although erroneous and causing irreparable damage, can not be reviewed by any other court during the course of the trial.

          Such a theory was not possible in these Islands under its former Law of Civil Procedure, nor is it possible now under the present Code of Civil Procedure. Under article 1591 of the old Code any person believing himself entitled to that provisional alimony or support was required to file with the complaint documents proving conclusively the title by virtue of which the same was sued for. If the title was based upon a right created by law, it was necessary to present the documents establishing the bond of relationship between the plaintiff and defendant or the circumstances which gave a right to the alimony, such evidence to be completed by the testimony of witnesses if necessary. The judge, under article 1592, could not admit the complaint unless the documents referred to in the preceding article were submitted. It is evident from this that under the provisions of the law then in force a suit for alimony could not prosper upon the mere opinion of the judge expressed, not in a final judgment causing status, but in an interlocutory order which has no other purpose than to facilitate the continuance of the trial. This, apart from the fact that under the former procedural law ever interlocutory order not merely of practice was appealable, and consequently the case of one finding himself prejudiced by an order capable of causing him irreparable damage, such as that of paying an allowance without security or possibility of recovery, could never arise under that system of legislation.

          The necessity of founding the action for support or alimony on a title, and a title supported by documentary evidence, is a consequence of the precepts of article 143 of the Civil Code cited by the respondent judge himself. In this article the right to support is granted (1) to spouses inter se; (2) to legitimate descendants and

ascendants inter se; (3) to parents and certain legitimated and acknowledged natural children; (4) to other illegitimate children, and (5) to brothers and sisters. In all these cases in is a civil status or a juridical relation which is the basis of the action for support — the civil status of marriage or that of relationship.

          In the present case the action for the support or alimony is brought by a woman who alleges that she is a wife; therefore it is necessary for her to prove possession of the civil status of a spouse — that is, a marriage, without which one has no right to the title to husband or wife. Marriages celebrated before the adoption of the Civil Code must be proven by the means established by the former laws (art. 53). "Marriages celebrated before the operation of the Code," says Q. Mucius Scaevola, "must be proven by the canonical certificate." (Vol. 2, p. 137.) "Before the Council of Trent," says Manresa, "no absolute provision of law required the parish priests to make entries in their books with regard to the birth, marriage, or death of their parishioners ... . The council required the parish priests to open books in which to record baptisms, marriages, and deaths ... The State, the attention of which was called for the first time to the importance of the records established by the provisions of the council, gave evidence of its interest by issuing the royal order of March 21, 1794, according to which the prelates of the Kingdom were directed to require the evidence referred to be kept exclusively in the churches." (Commentaries, vol. 1, p. 262.)

          This evidence being lacking, and the civil status of marriage being in litigation, it is evident that nothing can be taken for granted upon the point in issue. There is no law or reason which authorizes the granting of alimony to a person who claims to be a spouse in the same manner as to a person who conclusively establishes by legal proof that he or she is such spouse, and sues for divorce or separation. In this case the legal evidence raises a presumption of law; in the former there is no presumption, there is nothing but a mere allegation — a fact in issue — and a simple fact in issue must not be confounded with an established right recognized by a final judgment or based upon a legal presumption. The civil status of marriage being denied, and this civil status, from which the right to support is derived, being issue, it is difficult to see how any effect can be given to such a claim until an authoritative declaration has been made as to the existence of the cause. It is evident that there is of necessity a substantial difference between the capacity of a person after the rendition of a final judgment in which that person is declared to be in possession of the status of marriage and his capacity prior to such time when nothing exists other than his suit or claim to be declared in possession of such status of marriage. Any other view would render useless all the legal effects which flow from the authority of res adjudicata.

          Nor can such a theory be sustained under the Code of Civil Procedure now in force. It is true that an interlocutory order such as that rendered by the respondent judge in the present case is not appealable during the course of the trial, but only after a final judgment has been rendered therein; but it is none the less true that it can not be the intention of the law, when prohibiting an appeal against interlocutory orders, to give executory force to all kinds of interlocutory orders which the judge may see fit to make in the course of a trial, and still less when the effect would be to cause irreparable damage, such as that alleged by the petitioner in the present case, by reason of the insolvency of the person in whose favor the granting of alimony has been ordered, and which allegation has not been objected to or denied by the respondent. It is indeed a wise rule of procedure which refuses to permit the

interruption of a trial by means of incidental appeals; but, if the judge incidentally in the course of a trial proceeds without or in excess of his jurisdiction, this rule which prohibits an appeal does not leave the party aggrieved without remedy. The same Code of Civil Procedure establishes several means by which such excess may be prevented.

          In this case the remedy of prohibition is invoked. (Art. 516 in relation with 226.) This remedy must be based upon a lack of jurisdiction or an excess in the exercise of jurisdiction in order that the judge may be prohibited from continuing the proceedings. This remedy having been established by the Code of Civil Procedure now in force, it is not allowable to apply the theories and principles concerning the lack of jurisdiction or an excess in its exercise which prevailed in the law of these Islands prior to the promulgation of that Code. We must of necessity apply the theories and principles which prevail in the law which has established the remedy, or the authorities which, in the American law, establish the doctrine upon the subject, and more especially the views prevailing in the State of California, whose Code of Procedure is strictly in accord with the Code in these Islands as to the remedy in question, with respect to which it may be said that the California Code is its true legal precedent.

          To this end and as an illustration of the case as to the propriety of the remedy by prohibition, we may cite a decision of the supreme court of California of July 9, 1890 (Havemeyer & Co., petitioners, vs. the Superior Court, Judge Wallace, respondent.)

          This was a case of quo warranto brought by the attorney-general of the State against a California corporation, the American Sugar Refinery Company, for the cancellation of its charter, and in which case judgment was rendered on the 8th of January, 1890; an incident having arisen as to the appointment of a receiver to take charge of the property of the company pending the taking of an appeal or to proceed to distribute the same according to law in case an appeal should not be taken, inasmuch as the corporation had been dissolved and its corporate rights forfeited, the judge made an order appointing a receiver. The receiver attempted to take possession of the sugar refinery, which he found in the possession of Messrs. Havemeyer & Co, who claimed to have purchased it in the month of March, 1889, and asserted that since that time they had been in full and complete possession as absolute owners in their own exclusive right. After several other incidental proceedings the judge made an order directing the sheriff to put the receiver in possession of the locus in quo. Havemeyer & Co. then applied to the supreme court for a writ of prohibition, which was issued. "The question now remains," says the court in its decision, "whether the superior court had jurisdiction to make an order appointing the receiver and ordering him to take from the possession of the petitioners certain property, the petitioners not having been a party to the quo warranto proceedings and alleging a right of their own to the said property."

          In disposing of this question the court holds that the judge was without jurisdiction to make this order, and continues: "We now come to the question as to the remedy. Prohibition arrests the proceedings of an inferior judicial tribunal or officer when such proceedings are without or in excess of the jurisdiction of such tribunal or officer, and the writ issues in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of the law. We have shown that the superior court in appointing a receiver exceeded its jurisdiction, and there is no

question that the petitioners are seriously injured by the enforcement of the order. If then they have no plain, speedy and adequate remedy in the ordinary course of law, they are clearly entitled to the benefit of the writ of prohibition to arrest the proceedings under the void order." The court, to fortify its decision, takes up and discusses various objections, such as the following: (1) That the petitioners might have bowed to the authority of the receiver, giving him possession, and then obtained leave from the court to sue him in ejectment; (2) that the order appointing the receiver was appealable, and that, therefore, the remedy for prohibition would not lie; (3) that before availing themselves of this remedy petitioners should show that an objection to the order in question had been overruled. With respect to the first point the court says: "It is true petitioners might have done this, but the remedy would have been neither speedy nor adequate. They had the right not merely to get their property back after along and expensive litigation — they had a right to keep it. The wrong with which they were threatened when they applied for the writ and when the writ issued was the deprivation of the possession and the use of their property. To give the property up in the hope of being allowed by the superior court to sue for it and to recover it after years of litigation was neither an adequate nor speedy remedy. It would be as reasonable to say that an injunction should never issue to restrain a threatened injury because the injured party may always have his action for damages." As to the second point the court states: "There must not only be a right of appeal but the appeal must furnish an adequate remedy in order to prevent the issuance of the writ. A number of cases have been decided in this court in which writs of prohibition have been refused because there was a right of appeal, but in all of those cases the appeal afforded a complete and adequate remedy for the threatened excess of jurisdiction."

          With respect to the third point the court says that "the following propositions applicable to the case are fully supported by the decision in the case of the Mayor of London vs. Cox, L.R., H.L., 278-280: (1) If a want of jurisdiction is apparent on the face of the proceedings in the lower court, no plea or preliminary objection is necessary before suing out the writ of prohibition. (2) If the proceeding in the lower court is not on its face without the jurisdiction of such court, but is so in fact by reason of the existence of some matter not disclosed, such matter ought to be averred in some proper form in order to make the want of jurisdiction appear. (3) But this is not essential to the jurisdiction of the superior court to grant prohibition. It is only laches which may or may not be excused, according to circumstances.

          Accordingly, we find that frequently a failure to plead in the lower court was excused for the reason that it appeared that the plea would have been rejected if made.

          By judgment of the 12th of December, 1891, the same supreme court in a similar proceeding against the superior court of San Francisco, Judge Wallace used the following language:

          Prohibition lies in all cases where there have been proceedings "without or in excess" of jurisdiction, and there "is not a plain, speedy, and adequate remedy in the ordinary course of law." Jurisdiction is usually defined as "the power to hear and determine;" but, of course, it is difficult to express in abstract terms a statement of the distinction between error in exercising jurisdiction and jurisdiction itself that can be readily applied to all cases as they may arise. The law endeavors to fix definitely everything

that can in its nature be so fixed, so as to leave as little as possible to the judgment or caprice of those who administer it. But as many future events can not, in the nature of things, be foreseen and provided for, it follows necessarily that much must be left to the discretion of courts and other tribunals.

          This doctrine was applied to the procedure of the judge who had taken action upon a void information presented by a grand jury which by reason of its defective organization was not regarded as a legally existing body, and the court decided "that the jury not being a legal body and the so-called indictment being void, the court below was without jurisdiction to try the accused upon such an indictment, hence the attempted action of the court was without and in excess of its jurisdiction." As to whether the petitioner had any other prompt, speedy, and adequate remedy in the ordinary course of law, the court said:

          If there be such remedy, it must be by appeal. But it would be a difficult proposition to maintain that a defendant in a criminal case, forced through all the stages of a trial for felony without any indictment against him, or, which is the same thing in effect, upon a void indictment, would have a plain, speedy, and adequate remedy, because, after conviction and judgment, and perhaps after suffering the ignominy of imprisonment in the state prison, he could have the illegal proceeding reversed on appeal. ... We are of opinion, therefore, that there is no jurisdiction in the respondent to proceed with the trial of petitioner; that the latter has no "plain, speedy, and adequate remedy in the ordinary course of law," and that prohibition is the proper remedy.

          Mr. Justice Garmette added:

          The case of Quimbo Appo vs. People, 20 N.Y., 542, received an exhaustive consideration from the court of that State, and, after referring to many authorities upon the question as to when the writ of prohibition should issue, it said: "These cases prove that the writ lies to prevent the exercise of any unauthorized power in a cause or proceeding of which the subordinate tribunal has jurisdiction, no less than when the entire cause is without the jurisdiction." And again: "This shows that the writ was never governed by any narrow, technical rules, but was resorted to as a convenient mode of exercising a wholesome control over inferior tribunals. The scope of this remedy ought not, I think, to be abridged, as it is far better to prevent the exercise of unauthorized power that to be driven to the necessity of correcting the error after it is committed."

          In its decision of December 8, 1890, the same supreme court in a proceeding similar to that now before us, instituted, by J.M. McDowell against Aaron Bell, judge of the superior court of Shasta County, upon the ground that this judge in an incidental proceeding similar to that which now occupies our attention directed that certain property claimed by a third person be subjected to the satisfaction of a judgment rendered against the grantee, held as follows:

          In this the respondent exceeded his jurisdiction and the jurisdiction of his court. His only power in the premises was to make an order authorizing

the judgment creditor to institute an action in the proper court against the parties claiming the property for the recovery of the property and the subjection of the same to the satisfaction of the debt, and forbidding a transfer of the property until such action could be commenced and prosecuted to judgment.

          This indicates what is meant by an act without or in excess of jurisdiction in accordance with the principles upon which article 226 of the present Code of Civil Procedure is based.

          The court below had jurisdiction to try the divorce suit, but he was without jurisdiction to grant alimony when the right to claim alimony had not accrued in accordance with the provisions of the Civil Code. This Code only grants the rights to alimony to a wife. This status not appearing by a final judgment, the court is without jurisdiction to make any order in the matter. Therefore mandamus is the proper remedy upon the facts related.

          It is not necessary to decide at this time if an exception could be made with respect to a case in which the fact of the marriage is admitted of record by the defendant. In the case before us this fact was denied. The motion and demurrer are overruled and the defendant is authorized to answer the complaint within twenty days from this date.

Torres, Willard, and Ladd, JJ., concur.Smith and Mapa, JJ., did not sit in this case.

Separate Opinions 

COOPER, J., dissenting:

          The petition for the writ of prohibition presents a case in which the Court of First Instance of Manila in an action for divorce has, by an interlocutory order upon application of the alleged wife after a hearing had thereon, granted the alleged wife, the plaintiff in the suit, alimony pendente lite. The defendant bases his application for a writ of prohibition, staying and annulling the order granting the alimony, on the grounds that the Court of First Instance in granting alimony pendente lite has acted in excess of its jurisdiction; that the alleged wife, the plaintiff in the divorce suit, has no resources whatever, and that the judge not having required of her security for the return of the money to be received as alimony, in the event of the rendition of judgment against her upon the final trial the money will be lost to him, and that the remedy by appeal is not a plain, speedy, and adequate remedy. A demurrer was presented to the application which has been overruling are summarized as follows: (1) The Court of First Instance had jurisdiction in the matter of divorce; (2) in this suit the power to grant alimony depends exclusively upon the provisions of the Civil Code, and that this favor of a wife; and (3) that such status not having been established by a final judgment the court lacks jurisdiction to pass any judgment upon the matter of alimony.

          I regard this decision as establishing an inequitable rule in cases of alimony, and also a practice in the granting of writs of prohibition not authorized by law.

          The learned Chief Justice in his opinion seems to have in view the practice prevailing in the ecclesiastical tribunals formerly existing here, but which have passed out with the Spanish domination.

          These courts having ceased to exist, the practice peculiar to them has been abolished.

          The jurisdiction of the ecclesiastical courts depended upon a canonical marriage, proof of which was jurisdictional and was the prerequisite to an action. Only one kind of proof was admissible — this was the evidence contained in the registers of the church. If this character of proof was not forthcoming and the marriage was disputed the party was sent to the civil tribunal to establish the marriage; the action would not be admitted otherwise. Again, alimony could not be granted in the ecclesiastical court, the court which had cognizance of the main suit, because the ecclesiastical decree produced no civil effects whatever; therefore, in order that it might be granted, the matter was remitted to the civil tribunals which had power to deal with the property of the parties, and this was usually done under the provisions of articles 1591-1599 of the Code of Civil Procedure formerly in force in these Islands. These provisions are for temporary maintenance and apply generally to all cases where the applicant is entitled to support under the law.

          Actions for divorce were invariably brought in the ecclesiastical courts, but this was on account of the universal custom of the celebration of canonical marriages. The ecclesiastical courts, as stated, exercise jurisdiction only in cases of a canonical marriage. They had no jurisdiction in cases of civil marriage or any other form of marriage such as marriages under foreign laws. The civil tribunals had jurisdiction of divorce suits and suits for nullity of marriage in these cases, and not only had jurisdiction of the main suit but they were also given jurisdiction of the proceedings for alimony pendente lite. Article 103 and 107 of the Civil Code, with vest this jurisdiction, read as follows:

          (103) The civil tribunal shall take cognizance of the suits for nullity of marriages celebrated in conformity with the provisions of this chapter (regulating civil marriages) and shall adopt the measures indicated in article 68 (the article providing for alimony pendente lite), and shall give sentence definitely.

          Article 107 is as follows:

          The provisions of article 103 shall be applicable to suits for divorce and their incidents.

          From this it will be seen that the ecclesiastical courts and the civil tribunals admitted suits in their respective jurisdictions on different principles — the former only where the marriage was not contested or where the status of marriage had been established in a civil tribunal. The latter did not require proof of marriage was only one of the issues involved in the suit. The decrees of the ecclesiastical courts produced no civil effects whatever, and it was necessary to call to their aid the civil tribunals in order to deal with the property of a party. On the other hand, the civil tribunal might settle the whole dispute in one proceeding, they having the power

both to adjudge and to enforce their decrees upon the property of the parties. A party in this tribunal would never have been remitted to any other proceeding to establish the civil status of the wife, nor to any other proceeding to enforce its decrees against the property. Consequently the civil tribunals having the full power to adjudge every matter in dispute between the parties after taking cognizance of the cause would retain it until its final termination and the fruits of the judgment had been secured. In the clear language of the statute, it has jurisdiction of divorce suits and its incidents and the granting of the alimony; the law in express terms gives it this jurisdiction.

          While section 68 of the Civil Code gives alimony to the wife, the jurisdiction of the court can not be made to depend upon this article, nor can the word "wife" in any manner be regarded as a word of limitation on the power to adjudicate alimony.

          Nor do we apprehend that the Court of First Instance as now organized, with general jurisdiction and with its admitted power to hear divorce suits, can be circumscribed in its power by any such reasons as that the civil status of the wife is a prerequisite to its power to adjudicate the case.

          If it is intended to be asserted in the decision that in order to obtain alimony it is necessary that the parties should resort to the special proceedings as provided in article 1591, a serious objection to such position is that it is probable these provisions of law are no longer in force. Our present Code of Civil Procedure contains a sweeping clause in the repeal of all other procedure. It reads as follows:

          SEC. 795. All codes, statutes, acts, decrees, and orders or parts thereof heretofore promulgated, enacted, or in force in the Philippine Islands prescribed in the Procedure in Civil Actions or Special Proceedings in any court or tribunal are hereby repealed, and the procedure in all civil actions and special proceedings and all courts and tribunals shall hereafter be in accordance with the provisions of this Act.

          However this may be, the courts organized under our present laws of procedure pursue their course in the exercise of jurisdiction in accordance with American laws. The Spanish system of procedure is scarcely recognized among its enactments.1awphil.net

          In divorce suits, according to American practice, alimony is regarded as an incident to the suit and the granting of alimony as an auxiliary proceeding. (Encl. PI. and Prac., 408, alimony; 2 Am. and Eng. Encl. Law, 93.) Such a practice as dividing up the suit and trying the issues in the divorce suit in a separate and distinct action in an American court. (Bennet vs. Southard, 35 Cal., 691.) Nor would it be practicable to separate the two proceedings. Alimony being a provision for the wife pendente lite, if the granting of it was separated from the main suit its adjudication might not reach a final conclusion until long after the principal suit, in aid of which it is supposed to be granted, has been disposed of; besides, it would require a multiplicity of suits without any compensating benefit whatever.

          The proper parties being duly before the court and the court having the power to hear and determine the matter as issue between them constitutes its jurisdiction.

The Court of First Instance in this case clearly had the power to hear and determine all the issues involved in the main suit and in the application for alimony, and having the power to hear and determine these questions, in both of which marriage is an issue, it did not exceed its jurisdiction, and prohibition will not lie to correct any errors that may have been committed in the hearing.

          If it be admitted that the court was not acting without or in excess of its jurisdiction the language of our statute authorizing prohibition seems too plain for controversy. Section 226 reads as follows:

          When the complainant in an action pending in any Court of First Instance alleges that the proceedings of any inferior tribunal, corporation, board, or person where exercising functions judicial or ministerial were without or in excess of the jurisdiction of such tribunal, corporation, board, or person, and the court on trial shall find that the allegations of the complainant are true and that the plaintiff has no other plain, speedy, and adequate remedy in the ordinary course of law, it shall render a judgment in favor of the complainant including an order commanding the defendant absolutely to desist or refrain from further proceeding in the action or matter specified therein.

          In order for a party to avail himself of this remedy the inferior tribunal must be acting without or in excess of its jurisdiction, and in addition to this there must be no other plain, speedy, and adequate remedy in the ordinary course of law.

          As we have attempted to show, the Court of First Instance had the jurisdiction to hear and determine the issues upon which the right to alimony depended, and whether the remedy by an appeal from an erroneous exercise of this jurisdiction is a plain, speedy, and adequate remedy that had been provided, and if cases occur in which it does not afford adequate relief it is the default of the legislative power and it rests with it to provide additional remedies. The case of Havemeyer vs. Superior Court, 84 Cal., 327, is in no way in conflict with these views, but rather supports them. The same may be said of the other cases cited.

          Let us now examine the nature of alimony pendente lite and the principles upon which it is granted. Article 68 of the Civil Code provides that after a petition for a nullity of marriage or for a divorce has been interposed and admitted certain provisions shall be adopted during the pendency of the suit, among which is a provision for the support of the wife and such children as do not remain under the power of the husband. This provision of law contemplates a separation of the consorts in every case. This character of suit is generally marked by obstinacy and bitterness. For here is found property and the offspring as the stake at issue. Passions engendered by resentment, pride, cupidity, and affection find scope in the action.

          The husband and wife thus involved in litigation and their position as to the right and wrong of the matter being as yet unascertained, we find with reference to their resources the law has placed them in the following condition: The wife's estate consists of her dowry, paraphernalia, and one-half of the conjugal community property. Her dowry is composed of the property and rights brought as such by her to the marriage at the time of contracting it and those which she acquires during the

marriage by donation, inheritance, or legacy as total property. The dowry may have been obligatory, i. e., such as the law has required the parents to give to their legitimate daughter on marriage. Now, dowry, if it be an estimated dowry — that is, if the property of which it consists was appraised at the time of its constitution — is transferred in ownership to the husband, who only upon the dissolution of the marriage is pledged to return its value. Of this he has absolute control and power of disposition.

          The ownership of the dowry not estimated is retained by the wife, but she can alienate, encumber or mortgage it only with the license of the husband, who, in case of such litigation, is not likely to consent. Of this part of the dowry the husband is the administrator and usufructuary. 1awphil.net

          The paraphernalia is the property which the wife brings to the marriage, not included in the dowry and what she acquires after the constitution of the same, and which is not added to the dowry; of this the wife still retains the dominion as well as its management, unless she has delivered the same to the husband with the intent that he may administer it. This property she can not alienate, encumber, or mortgage without the like permission of her husband, and when it consists of available property, such as money or public stocks, or valuable personal property, the husband has the right to require that it be deposited or invested in such a way that the alienation of the same should be impossible without his consent.

          With reference to the conjugal community property, which is the earnings or profits indiscriminately obtained by either of the consorts during the marriage and which belongs to the husband and wife share and share alike, when the marriage is dissolved she finds herself in no better position, for the husband is the administrator of his property and has the exclusive disposition of it.

          So we find that the husband at the beginning of this litigation, in which a separation is contemplated, has all of his individual separate property brought to the marriage or acquired during the marriage by him with the absolute power of control and disposition; he is the administrator of the conjugal community property and has the power of its control and disposition; he is the owner, and has the control and disposition over the wife's estimated dowry, and is the administrator and usufructuary of the dowry not estimated; he has a veto power upon the right of the wife to alienate, encumber, or mortgage the dowry not estimated and the paraphernalia. The wife has been shorn of power over all of that which she possesses in her separate right as well as that held in her conjugal community right.

          In this situation she turns in despair to the law and finds that it has done her scant justice by making provisions for her alimony.

          But this court so construes the law as to substantially deprive her of this benefit. She asks for support while she carries on the litigation; she is told that she must institute an independent action to establish her status as a wife, and that this action must be prosecuted to final judgment. Upon her is thus imposed the additional burden of another suit, in which no provision has been made for alimony; and further, this second suit being commenced subsequent to the divorce suit and the judgment being alike appealable, according to the natural course of events, will

probably not reach a final determination until the main suit has been settled; as a result alimony pendente lite is made impossible.

          She is also met by another objection, which is that she is totally without resources and will unable to return the amount of the alimony received form the husband in the event that she fails in the litigation unless she gives security for it. We have seen that the law absolutely prohibits her from encumbering, without license of her husband, that part of her separate property which it has not taken from her and given to the husband.

          The law thus mocks her in helplessness in which it has placed her. She asks for bread, a stone is given her.

          Conclusions leading to such inequitable results ought not to be readily adopted by a court of justice.

          For the reasons stated I dissent from the opinion of the court.

G.R. No. L-13982             July 31, 1920

DIEGO DE LA VIÑA, petitioner, vs. ANTONIO VILLAREAL, as Auxiliary Judge of First Instance, and NARCISA GEOPANO, respondents.

Del Rosario and Del Rosario and W. F. Mueller for petitioner.

J. Lopez Vito for respondents.

JOHNSON, J.:

This is an original petition presented in the Supreme Court. Its purpose is to obtain an order declaring: (a) That the respondent, the Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First Instance of the province of Iloilo, has no jurisdiction to take cognizance of a certain action for divorce instituted in said court by the respondent Narcisa Geopano against her husband, Diego de la Viña, the petitioner herein; (b) that the said respondent judge has exceeded his power and authority in issuing, in said action, a preliminary injunction against the said petitioner prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action; and (c) that all the proceedings theretofore had in said court were null and void.

It appears from the record that on September 17, 1917, Narcisa Geopano filed a complaint in the Court of First Instance of the Province of Iloilo against Diego de la Viña, alleging: (1) That she was a resident of the municipality of Iloilo, Province of Iloilo, and that the defendant was a resident of the municipality of Vallehermoso, Province of Oriental Negros; (2) that she was the legitimate wife of the defendant, having been married to him in the municipality of Guijulñgan, Province of Negros Oriental, in the year 1888; (3) that since their said marriage plaintiff and defendant had lived as husband and wife and had nine children, three of whom were living and were already of age; (4) that during their marriage plaintiff and defendant had acquired property, real and personal, the value of which was about P300,000 and all of which was under the administration of the defendant; (5) that since the year 1913 and up to the date of the complaint, the defendant had been committing acts of adultery with one Ana Calog, sustaining illicit relations with her and having her as his concubine, with public scandal and in disgrace of the plaintiff; (6) that because of said illicit relations, the defendant ejected the plaintiff from the conjugal home, for which reason she was obliged to live in the city of Iloilo, where she had since established her habitual residence; and (7) that the plaintiff, scorned by her husband, the defendant, had no means of support and was living only at the expense of one of her daughters. Upon said allegations she prayed for (a) a decree of divorce, (b) the partition of the conjugal property, and (c) alimony pendente lite in the sum of P400 per month.

Subsequent to the filing of the said complaint, Narcisa Geopano, the plaintiff therein, presented a motion, which was later amended, alleging, among other things, that since the filing of her complaint she had personal knowledge that the defendant was trying to alienate or encumber the property which belonged to the conjugal partnership between the plaintiff and the defendant, to the prejudice of the plaintiff,

and prayed that a preliminary injunction be issued against the defendant restraining and prohibiting him in the premises.

The defendant Diego de la Viña, petitioner herein, opposed the said motion for a preliminary injunction, and, subsequently, demurred to the complaint upon the ground that the court had no jurisdiction to take cognizance of the cause, "nor over the person of the defendant."

After hearing the respective parties the respondent judge, in to separate orders, dated November 1 and November 2, 1917, respectively, overruled the defendant's demurrer, and granted the preliminary injunction prayed for by the plaintiff.

Thereafter and on April 27, 1918, the defendant, Diego de la Viña filed the present petition for certiorari in this court, upon the ground that the respondent judge had no jurisdiction to take cognizance of the action in question, and had exceeded his power and authority in issuing said preliminary injunction.

The questions arising out of the foregoing facts are as follows:

1. May a married woman ever acquire a residence or domicile separate from that of her husband during the existence of the marriage?

2. In an action for divorce, brought by the wife against her husband, in which the partition of the conjugal property is also prayed for, may the wife obtain a preliminary injunction against the husband restraining and prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action?

I.

The petitioner contends that the Court of First Instance of Iloilo had no jurisdiction to take cognizance of the said action for divorce because the defendant therein was a resident of the Province of Negros Oriental and the plaintiff, as the wife of the defendant, must also be considered a resident of the same province inasmuch as, under the law, the domicile of the husband is also the domicile of the wife; that the plaintiff could not acquire a residence in Iloilo before the arriage between her and the defendant was legally dissolved.

This contention of the petitioner is not tenable. It is true, as a general of law, that the domicile of the wife follows that of her husband. This rule is founded upon the theoretic identity of person and of interest between the husband and the wife, and the presumption that, from the nature of the relation, the home of the one is that of the other. It is intended to promote, strenghten, and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail. But the authorities are unanimous in holding that this is not an absolute rule. "Under modern laws it is clear that many exceptions to the rule that the domicile from of the wife is determined by that of her husband must obtain. Accordingly, the wife may acquire another and seperate domicile from that of her husband where the theorical unity of

husband and wife is is dissolved, as it is by the institution of divorce proceedings; or where the husband has given cause for divorce; or where there is a separation of the parties by agreement, or a permanent separation due to desertion of the wife by the husband or attributable to cruel treatment on the part of the husband; or where there has been a forfeiture by the wife of the benefit of the husband's domicile." (9 R. C. L., 545.)

The case of Narcisa Geopano comes under one of the many exceptions above-mentioned, to wit: "Where the husband has given cause for divorce, the wife may acquire another and seperate domicile from that of her husband." In support of this proposition there is a formidable array of authorities. We shall content ourselves with illustrative quotations from a few of them, as follows:

Although the law fixes the domicile of the wife as being that of her husband, universal jurisprudence recognizes an exception to the rule in the case where the husband's conduct has been such as to furnish lawful ground for a divorce, which justifies her in leaving him, and, therefore, necessarily authorities her to live elsewhere and to acquire a separate domicile. Cheever vs. Wilson, 9 Wall. (U. S.), 108; Barber vs. Barber, 21 How. (U. S.), 582; 2 Bishop, Mar. and Div., 475; Schouler, Hus. and Wife, sec. 574; 5 Am. and Eng. Encyc. of Law, p. 756." (Smith vs. Smith, 43 La. Ann., 1140, 1146.)

The matrimonial domicile of the wife is usually that of the husband, but if she is justified in leaving him because his conduct has been such as to entitle her to a divorce, and she thereupon does leave him and go into another state for the purpose of there permanently residing, she acquires a domicile in the latter state. (Atherton vs. Atherton, 155 N. Y., 129; 63 Am. St. Rep., 650.)

The law will recognize a wife as having a separate existence, and separate interests, and separate rights, in those cases where the express object of all proceedings is to show that the relation itself ougth to be dissolved, or so modified as to establish separate interests, and especially a separate domicile and home, bed and board being put, apart for the whole, as expressive of the idea of home. Otherwise the parties, in this respect, would stand upon very unequal ground, it being in the power of the husband to change his domicile at will, but not in that of the wife. (Harteau vs. Harteau, 14 Pick. [Mass.], 181; 25 Am. Dec., 372, 375-376.)

Under the pauper laws, and upon general principles, the wife is regarded as having the domicile of her husband; hut this results from his marital rights, and the duties of the wife. If the husband has forfeited those rights be misbehavior, and has left and deserted the wife, they may have different domiciles, in the view of the law regulating divorces. (Harding vs. Alden, 9 Greenl. [Me.], 140; 23 Am. Dec., 549, 552.)

Though as a general principle of law the domicile of the husband is regarded as the domicile of the wife, according to the prevailing view a wife may acquire a residence or domicile separate from her husband so as to confer jurisdiction upon the courts of the state, in which her domicile or

residence is established, to decree a divorce in her favor. (9 R. C. L. 400-401, citing various cases.)

The law making the domicile of the husband that of the wife is applicable only to their relations with third parties, and has no application in cases of actual separation and controversy between themselves as to the temporary or permanent severance of the marriage ties by judicial proceedings. Vence vs. Vence, 15 How. Pr., 497; Schonwald vs. Schonwald, 55 N. C., 367; Cheever vs. Wilson, 76 U. S. (9 Wall.), 109; 19 L. ed., 605. (Notes, p. 498, 16 L. R. A.)

In the case of Schonwald vs. Schonwald (55 N. C., 343), the plaintiff tried to do what the petitioner in this case insists the respondent Narcisa Geopano should have done. In that case the wife filed a bill of divorce in a court in North Carolina, where her husband resided. She herself had not resided in that state for three years previous to the filing of the suit, as required by the statute; but she claimed that the domicile of her husband was also her domicile and, inasmuch as her husband, the defendant, had been a resident of North Carolina for more than three years, she had also been a resident of that state during that time. The court dismissed the bill, holding that the legal maxim that "her domicile is that of her husband" would not avail in the stead of an actual residence. The court said:

It is true that for many purpose the domicile of the husband is the domicile of the wife, but it is not so for every purpose. The maxim that the domicile of the wife follows that of the husband cannot be applied to oust the court of its jurisdiction; neither, from party of reasons can it give jurisdiction. (P. 344.)

Turning to the Spanish authorities, we find that they agree with the American authorities in holding that the maxim or rule that the domicile of the wife follows that of the husband, is not an absolute one. Scaevola, commenting on article 40 of the Civil Code (which is the only legal provision or authority relied upon by the petitioner in this case), says:

Although article 64 of the Law of Civil Procedure provides that the domicile of a married woman, not legally separated from her husband, is that of the latter, yet, when the tacit consent of the husband and other circumstances justify it, for the purpose of determining jurisdiction, the habitual residence of the woman should be considered as her domicile where her right may be exercised in accordance with article 63. (Scaevola, Civil Code, p. 354.)

Manresa, commenting upon the same article (art. 40) says:

The domicile of married women not legally separated from their husband shall be that of the latter. This principle, maintained by the Supreme Court in numerous decisions, was modified in a particular case by the decision of June 17, 1887, and in conformity with this last decision, three others were afterwards rendered on October 13, 23, and 28, 1899, in all of which it is declared that when married women as well as children subject to parental authority live, with the acquiescence of their husbands or fathers, in a place

distinct from where the latter live, they have their own independent domicile, which should be considered in determining jurisdiction in cases of provisional support guardianship of persons, etc. (1 Manresa, 233.)

If the wife can acquire a separate residence when her husband consents or acquiesces, we see no reason why the law will not allow her to do so when, as alleged in the present case, the husband unlawfully ejects her from the conjugal home in order that he may freely indulge in his illicit relations with another woman. Under no other circumstance could a wife be more justified in establishing a separate residence from that of her husband. For her to continue living with him, even if he had permitted it, would have been a condonation of his flagrant breach of fidelity and marital duty. Furthermore, in this case no longer was there an "identity of persons and of interest between the husband and the wife." Therefore the law allowed her to acquire a separate residence. For, "it would do violence to the plainest principle of common sense and common justice of to call this residence of the guilty husband, where the wife is forbidden to come, . . . the domicile of the wife." (Champon vs. Champon, 40 La. Ann., 28.)

It is clear, therefore, that a married woman may acquire a residence or domicile separate from that of her husband, during the existence of the marriage, where the husband has given cause for divorce.

II.

We come now to the second question — whether or not the respondent judge exceeded his power in issuing the preliminary injunction complained of by the petitioner.

Section 164 of Act No. 190 provides:

A preliminary injunction may be granted when it is established, in the manner hereinafter provided, to the satisfaction of the judge granting it:

1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists in restraining the commission or continuance of the acts complained of either for a limited period or perpetually;

2. That the commission or continuance of some act complained of during the litigation would probably work injustice to the plaintiff;

3. That the defendant is doing, or threatens, on is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual.

The petitioner quotes the foregoing section and argues that the respondent Narcisa Geopano was not entitled to have a preliminary injunction issued against her husband because contrary to the requirement of the first paragraph of said section, she was not entitled to the relief demanded, which consisted in restraining the

power and authority which the law confers upon the husband; that under articles 1412 and 1413 of the Civil Code, the husband is the manager of the conjugal partnership and, as such, is empowered to alienate and encumber and conjugal property without the consent of the wife; that neither could the wife obtain a preliminary injunction under paragraph 3 of said section, upon the ground that the defendant was committing some acts in violation of the plaintiff's rights, because the plaintiff, as the wife of the defendant, had nor right to intervene in the administration of the conjugal property, and therefore no right of hers was violated.

We cannot subscribe to that argument of counsel. The law making the husband the sole administrator of the property of the conjugal partnership is founded upon necessity and convenience as well as upon the presumption that, from the very nature of the relating between husband and wife, the former will promote and not injure the interests of the latter. So long as this harmonious relation, as contemplated by law, continues, the wife cannot and should not interfere with the husband in his judicious administration of the conjugal property. But when that relation ceases and, in a proper action, the wife seeks to dissolve the marriage and to partition the conjugal property, it is just and proper, in order to protect the interests of the wife, that the husband's power of administration be curtailed, during the pendency of the action, insofar as alienating or encumbering the conjugal property is concerned.

In her motion for a preliminary injunction, Narcisa Geopano alleged that the defendant was about to alienate or encumber the property belonging to the conjugal partnerships, with the object of injuring her interests; and this allegation does not appear to have been controverted by the defendant either in this court or in the court below. In view of this fact, we are of the opinion that under both paragraphs 2 and 3 of section 164 of Act No. 190, above quoted, the respondent judge was empowered and justified in granting the preliminary injunction prayed for by her. It cannot be doubted that, if the defendant should dispose of all or any part of the conjugal property during the pendency of the action for divorce, and squander or fraudulently conceal the proceeds, that act "would probably work injustice to the plaintiff," or that it would probably be "in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual." In this case the plaintiff's rights sought to be protected by said paragraph 3 is not the right to administer the conjugal property, as counsel for the petitioner believes, but the right to share in the conjugal property upon the dissolution of the conjugal partnership.

The case under consideration, then, is covered or contemplated by the statute (sec. 164, Act No. 190), so that there can be no question, in our opinion, as to the power of the respondent judge to issue the preliminary injunction complained of by the petitioner. Indeed, even in a case not covered by the statute this court had upheld the power of Court of First Instance to grant preliminary injunctions. In the case of Manila Electric Railroad and Light Company vs. Del Rosario and Jose (22 Phil., 433), Doroteo Jose asked for, and the Court of First Instance granted ex parte, a writ of preliminary mandatory injunction directing the Manila Electric Railroad and Light Company to continue furnishing electricity to Jose. Thereupon the Light Company filed in this court a petition for the writ of certiorari against Judge S. del Rosario upon the ground that Courts of First Instance in these Islands are wholly without jurisdiction to issue preliminary mandatory injunctions under any circumstances

whatever. This court denied that petition, determining the power of the Courts of First Instance to issue preliminary injunction, as follows:

The power to grant preliminary injunctions, both preventative and mandatory, is a logical and necessary incident of the general powers conferred upon Courts of First Instance in these Islands, as courts of record of general and unlimited original jurisdiction, both legal and equitable.

Insofar as the statute limits or prescribes the exercise of this power it must be followed: but beyond this, and in cases not covered by or contemplated by the statute, these courts must exercise their jurisdiction in the issuance of preliminary injunctions upon sound principles applicable to the circumstances of each particular case, having in mind the nature of the remedy, and the doctrine and practice established in the courts upon which our judicial is modeled.

The only limitation upon the power of Courts of First Instance to issue preliminary injunctions, either mandatory of preventative, is that they are to be issued in the "manner" or according to the "method" provided therefor in the Code of Civil Procedure.

We conclude, therefore, that in an action for divorce brought by the wife against the husband, in which the partition of the conjugal property is also prayed for, the wife may obtain a preliminary injunction against the husband, prohibiting the latter from alienating or encumbering any part of the conjugal property during the pendency of the action.

It follows from all of the foregoing that the respondent, the Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First Instance of the Province of Iloilo, had jurisdiction to hear and determine the action for divorce instituted in said court by the respondent Narcisa Geopano, and that he did not exceed his power and authority in issuing a preliminary injunction against the defendant, prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action.

Therefore, the petition should be and is hereby denied, with costs against the petitioner. So ordered.

[G.R. No. L-9667.  July 31, 1956.]

LUIS MA. ARANETA, Petitioner, vs. HONORABLE HERMOGENES CONCEPCION, as judge of the Court of First Instance of Manila, Branch VI

and EMMA BENITEZ ARANETA, Respondents.

 

D E C I S I O N

LABRADOR, J.:

The main action was brought by Petitioner against his wife, one of the Respondent herein, for legal separation on the ground of adultery. After the issues were joined Defendant therein filed an omnibus petition to secure custody of their three minor children, a monthly support of P5,000 for herself and said children, and the return of her passport, to enjoin Plaintiff from ordering his hirelings from harassing and molesting her, and to have Plaintiff therein pay for the fees of her attorney in the action. The petition is supported by her affidavit. Plaintiff opposed the petition, denying the misconduct imputed to him and alleging that Defendant had abandoned the children; chan roblesvirtualawlibraryalleging that conjugal properties were worth only P80,000, not one million pesos as alleged by Defendant; chan roblesvirtualawlibrarydenying the taking of her passport or the supposed vexation, and contesting her right to attorney’s fees. Plaintiff prayed that as the petition for custody and support cannot be determined without evidence, the parties be required to submit their respective evidence. He also contended that Defendant is not entitled to the custody of the children as she had abandoned them and had committed adultery, that by her conduct she had become unfit to educate her children, being unstable in her emotions and unable to give the children the love, respect and care of a true mother and without means to educate them. As to the claim for support, Plaintiff claims that there are no conjugal assets and she is not entitled to support because of her infidelity and that she was able to support herself. Affidavits and documents were submitted both in support and against the omnibus petition.

The Respondent judge resolved the omnibus petition, granting the custody of the children to Defendant and a monthly allowance of P2,300 for support for her and the children, P300 for a house and P2,000 as attorney’s fees. Upon refusal of the judge to reconsider the order, Petitioner filed the present petition for certiorari against said order and for mandamus to compel the Respondent judge to require the parties to submit evidence before deciding the omnibus petition. We granted a writ of preliminary injunction against the order.

The main reason given by the judge, for refusing Plaintiff’s request that evidence be allowed to be introduced on the issues, is the prohibition contained in Article 103 of the Civil Code, which reads as follows:chanroblesvirtuallawlibrary

“ART. 103.  An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition.”

Interpreting the spirit and policy of the provision the trial judge says:chanroblesvirtuallawlibrary

“This provision of the code is mandatory. This case cannot be tried within the period of six months from the filing of the complaint. The court understands that the introduction of any evidence, be it on the merits of the case or on any incident, is prohibited. The law, up to the last minute, exerts efforts at preserving the family and

the home from utter ruin. Interpreting the intent of said article, the court understands that every step it should take within the period of six months above stated should be taken toward reconciling the parties. Admitting evidence now will make reconciliation difficult if not impossible. In this case the court should act as if nothing yet had happened. The children must be given for custody to him or her who by family custom and tradition is the custodian of the children. The court should ignore that Defendant had committed any act of adultery or the Plaintiff, any act of cruelty to his wife. The status quo of the family must be restored as much as possible. In this country, unlike perhaps in any other country of the globe, a family or a home is a petite corporation. The father is the administrator who earns the family funds, dictates rules in the home for all to follow, and protects all members of his family. The mother keeps home, keeps children in her company and custody, and keeps the treasure of that family. In a typical Filipino family, the wife prepares home budget and makes little investment without the knowledge of her husband. A husband who holds the purse is un-Filipino. He is shunned in Filipino community. The court therefore, in taking action on petition No. 1 should be guided by the above considerations.” (pp. 116-117, Record on Appeal.)

It may be noted that since more than six months have elapsed since the filing of the petition the question offered may not be allowed. It is, however, believed that the reasons for granting the preliminary injunction should be given that the scope of the article cited may be explained.

It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently intended as a cooling off period to make possible a reconciliation between the spouses. The recital of their grievances against each other in court may only fan their already inflamed passions against one another, and the lawmaker has imposed the period to give them opportunity for dispassionate reflection. But this practical expedient, necessary to carry out legislative policy, does not have the effect of overriding other provisions such as the determination of the custody of the children and alimony and support pendente lite according to the circumstances. (Article 105, Civil Code.) The law expressly enjoins that these should be determined by the court according to the circumstances. If these are ignored or the courts close their eyes to actual facts, rank in justice may be caused.

Take the case at bar, for instance. Why should the court ignore the claim of adultery by Defendant in the face of express allegations under oath to that effect, supported by circumstantial evidence consisting of letter the authenticity of which cannot be denied. And why assume that the children are in the custody of the wife, and that the latter is living at the conjugal dwelling, when it is precisely alleged in the petition and in the affidavits, that she has abandoned the conjugal abode? Evidence of all these disputed allegations should be allowed that the discretion of the court as to the custody and alimony pendente lite may be lawfully exercised.

The rule is that all the provisions of the law even if apparently contradictory, should be allowed to stand and given effect by reconciling them if necessary.

“The practical inquiry in litigation is usually to determine what a particular provision, clause or word means. To answer it one must proceed as he would with any other composition — construe it with reference to the leading idea or purpose of the whole instrument. A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intend. Consequently, each part of section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus it is not proper to confine interpretation to the one

section to be construed.” (Southerland, Statutory Construction section 4703, pp. 336-337.)

Thus the determination of the custody and alimony should be given effect and force provided it does not go to the extent of violating the policy of the cooling off period. That is, evidence not affecting the cause of the separation, like the actual custody of the children, the means conducive to their welfare and convenience during the pendency of the case, these should be allowed that the court may determine which is best for their custody.

The writ prayed for is hereby issued and the Respondent judge or whosoever takes his place is ordered to proceed on the question of custody and support pendente lite in accordance with this opinion. The court’s order fixing the alimony and requiring payment is reversed. Without costs.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes A., Bautista Angelo, Concepcion, Reyes, J.B.L., and Endencia, JJ., concur.

G.R. No. L-34132 July 29, 1972

LUCY SOMOSA-RAMOS, petitioner, vs. THE HONORABLE CIPRIANO VAMENTA, JR., Presiding Judge of the Court of First Instance of Negros Oriental and

CLEMEN G. RAMOS, respondents.

T. R. Reyes & Associates for petitioner.

Soleto J. Erames for respondents.

 

FERNANDO, J.:p

The question raised in this petition for certiorari is whether or not Article 103 of the Civil Code prohibiting the hearing of an action for legal separation before the lapse of six months from the filing of the petition, would likewise preclude the court from acting on a motion for preliminary mandatory injunction applied for as an ancillary remedy to such a suit. Respondent Cipriano Vamenta, Jr., of the Court of First Instance of Negros Oriental, answered the question in the affirmative, in view of the absolute tenor of such Civil Code provision, which reads thus: "An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition." He therefore ordered the suspension, upon the plea of the other respondent the husband Clemente G. Ramos, of the hearing on a motion for a writ of preliminary mandatory injunction filed by petitioner at the same time the suit for legal separation was instituted. Petitioner, Lucy Somosa-Ramos, the wife who brought the action for legal separation would dispute such a ruling. Hence, this certiorari proceeding. As will be shown later there is justification for such a move on the part of petitioner. The respondent Judge ought to have acted differently. The plea for a writ of certiorari must be granted.

The pleadings show that on June 18, 1971, petitioner filed Civil Case No. 5274 in the sala of respondent Judge against respondent Clemente Ramos for legal separation, on concubinage on the respondent's part and an attempt by him against her life being alleged. She likewise sought the issuance of a writ of preliminary mandatory injunction for the return to her of what she claimed to be her paraphernal and exclusive property, then under the administration and management of respondent Clemente Ramos. There was an opposition to the hearing of such a motion, dated July 3, 1971, based on Article 103 of the Civil Code. It was further manifested by him in a pleading dated July 16, 1971, that if the motion asking for preliminary mandatory injunction were heard, the prospect of the reconciliation of the spouses would become even more dim. Respondent Judge ordered the parties to submit their respective memoranda on the matter. Then on September 3, 1971, petitioner received an order dated August 4, 1971 of respondent Judge granting the motion of respondent Ramos to suspend the hearing of the petition for a writ of mandatory preliminary injunction. That is the order complained of in this petition for certiorari. Respondents were required to answer according to our resolution of October 5, 1971. The answer was filed December 2 of that year. Then on January 12, 1972

came a manifestation from parties in the case submitting the matter without further arguments.

After a careful consideration of the legal question presented, it is the holding of this Court that Article 103 the Civil Code is not an absolute bar to the hearing motion for preliminary injunction prior to the expiration of the six-month period.

1. It is understandable why there should be a period during which the court is precluded from acting. Ordinarily of course, no such delay is permissible. Justice to parties would not thereby be served. The sooner the dispute is resolved, the better for all concerned. A suit for legal separation, however, is something else again. It involves a relationship on which the law for the best reasons would attach the quality of permanence. That there are times when domestic felicity is much less than it ought to be is not of course to be denied. Grievances, whether fancied or real, may be entertained by one or both of the spouses. There may be constant bickering. The loss affection on the part of one or both may be discernible. Nonetheless, it will not serve public interest, much less the welfare of the husband or the wife, to allow them to go their respective ways. Where there are offspring, the reason for maintaining the conjugal union is even more imperative. It is a mark of realism of the law that for certain cases, adultery on the part of the wife and concubinage on the part of the husband, or an attempt of one spouse against the life of the other, 1 it recognizes, albeit reluctantly, that the couple is better off apart. A suit for legal separation lies. Even then, the hope that the parties may settle their differences is not all together abandoned. The healing balm of time may aid in the process. Hopefully, the guilty parties may mend his or her ways, and the offended party may in turn exhibit magnanimity. Hence, the interposition of a six-month period before an action for legal separation is to be tried.

The court where the action is pending according to Article 103 is to remain passive. It must let the parties alone in the meanwhile. It is precluded from hearing the suit. There is then some plausibility for the view of the lower court that an ancillary motion such as one for preliminary mandatory injunction is not to be acted on. If it were otherwise, there would be a failure to abide by the literal language of such codal provision. That the law, however, remains cognizant of the need in certain cases for judicial power to assert itself is discernible from what is set forth in the following article. It reads thus: "After the filing of the petition for legal separation, the spouse shall be entitled to live separately from each other and manage their respective property. The husband shall continue to manage the conjugal partnership property but if the court deems it proper, it may appoint another to manage said property, in which case the administrator shall have the same rights and duties as a guardian and shall not be allowed to dispose of the income or of the capital except in accordance with the orders of the court." 2 There would appear to be then a recognition that the question of management of their respective property need not be left unresolved even during such six-month period. An administrator may even be appointed for the management of the property of the conjugal partnership. The absolute limitation from which the court suffers under the preceding article is thereby eased. The parties may in the meanwhile be heard. There is justification then for the petitioner's insistence that her motion for preliminary mandatory injunction should not be ignored by the lower court. There is all the more reason for this response from respondent Judge, considering that the husband whom she accused of concubinage and an attempt against her life would in the meanwhile

continue in the management of what she claimed to be her paraphernal property, an assertion that was not specifically denied by him. What was held by this Court in Araneta v. Concepcion, 3 thus possesses relevance: "It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently intended as a cooling off period to make possible a reconciliation between the spouses. The recital of their grievances against each other in court may only fan their already inflamed passions against one another, and the lawmaker has imposed the period to give them opportunity for dispassionate reflection. But this practical expedient, necessary to carry out legislative policy, does not have the effect of overriding other provisions such as the determination of the custody of the children and alimony and support pendente lite according to the circumstance ... The law expressly enjoins that these should be determined by the court according to the circumstances. If these are ignored or the courts close their eyes to actual facts, rank injustice may be caused." 4 At any rate, from the time of the issuance of the order complained of on August 4, 1971, more than six months certainly had elapsed. Thus there can be no more impediment for the lower court acting on the motion of petitioner for the issuance of a writ of preliminary mandatory injunction.

WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and the order of respondent Court of August 4, 1971, suspending the hearing on the petition for a writ of preliminary mandatory injunction is set aside. Respondent Judge is directed to proceed without delay to hear the motion for preliminary mandatory injunction. Costs against respondent Clemente G. Ramos.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

 

Separate Opinions

Reyes, J.B.L.,. J., concurring:

Concurs, specially in view of the ruling in De la Viña vs. Villareal, 41 Phil. 13, 24.

 

G.R. No. L-48183            November 10, 1941

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.RODOLFO A. SCHNECKENBURGER, ET AL., defendants-appellants.

Cardenas & Casal for appellants.

Office of the Solicitor-General Ozaeta and Acting Solicitor Luciano for appellee.

MORAN, J.:

On March 16, 1926, the accused Rodolfo A. Schneckenburger married the compliant Elena Ramirez Cartagena and after seven years of martial life, they agreed, for reason of alleged incompatibility of character, to live separately each other and on May 25, 1935 they executed a document which in part recites as follows:

Que ambos comparecientes convienen en vivir separados el uno del otro por el resto de su vida y se comprometen, y obligan reciprocamente a no molastarse ni intervenir ni mezclarse bajo ningun concepto en la vida publica o privada de los mismos, entre si, quendado cada uno de los otorgantes en completa libertad de accion en calquier acto y todos concepto.

On June 15, 1935, the accused Schneckenburger, without leaving the Philippines, secured a decree of divorce from the civil court of Juarez, Bravos District, State of Chihuahua, Mexico. On May 11, 1936, he contracted another marriage with his co-accused, Julia Medel, in the justice of the peace court of Malabon, Rizal, and since then they lived together as husband and wife in the city of Manila. Because of the nullity of the divorce decreed by the Mexico Court, complaint herein instituted two actions against the accused, one for bigamy in the Court of First Instance of Rizal and the other concubinage in the court of First Instance of Manila. The first culminated in the conviction of the accused for which he was sentenced to penalty of two months and one day of arresto mayor. On the trial for the offense of concubinage accused interposed the plea of double jeopardy, and the case was dismissed; but, upon appeal by the fiscal, this Court held the dismissal before the trial to be premature this was under the former procedure and without deciding the question of double jeopardy, remanded the case to the trial court for trial on the merits. Accused was convicted of concubinage through reckless imprudence and sentenced to a penalty of two months and one day of arresto mayor. Hence this appeal.

As to appellant's plea of double jeopardy, it need only be observed that the office of bigamy for which he was convicted and that of concubinage for which he stood trial in the court below are two distinct offenses in law and in fact as well as in the mode of their prosecution. The celebration of the second marriage, with the first still existing, characterizes the crime of bigamy; on the other hand, in the present case, mere cohabitation by the husband with a woman who is not his wife characterizes the crime of concubinage. The first in an offense against civil status which may be

prosecuted at the instance of the state; the second, an offense against chastity and may be prosecuted only at the instance of the offended party. And no rule is more settled in law than that, on the matter of double jeopardy, the test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. (Diaz v. U. S., 223 U. S., 422; People v. Cabrera, 43 Phil., 82)

Upon the other hand, we believe and so hold that the accused should be acquitted of the crime of concubinage. The document executed by and between the accused and the complaint in which they agreed to be "en completa libertad de accion en cualquier acto y en todos conceptos," while illegal for the purpose for which it was executed, constitutes nevertheless a valid consent to the act of concubinage within the meaning of section 344 of the Revised Penal Code. There can be no doubt that by such agreement, each party clearly intended to forego to illicit acts of the other.

We said before (People vs. Guinucod, 58 Phil., 621) that the consent which bars the offended party from instituting a criminal prosecution in cases of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness is that which has been given expressly or impliedly after the crime has been committed. We are now convinced that this is a narrow view in way warranted by the language, as well as the manifest policy, of the law. The second paragraph of article 344 of the Revised Penal Code provides:

The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders. (Emphasis ours.)

As the term "pardon" unquestionably refers to the offense after its commission, "consent" must have been intended agreeably with its ordinary usage, to refer to the offense prior to its commission. No logical difference can indeed be perceived between prior and subsequent consent, for in both instances as the offended party has chosen to compromise with his/her dishonor, he/she becomes unworthy to come to court and invoke its aid in the vindication of the wrong. For instance, a husband who believers his wife another man for adultery, is as unworthy, if not more, as where, upon acquiring knowledge of the adultery after its commission, he says or does nothing. We, therefore, hold that the prior consent is as effective as subsequent consent to bar the offended party from prosecuting the offense.

In this arriving at this conclusion we do not with to be misconstrued as legalizing an agreement to do an illicit act, in violation of law. Our view must be taken only to mean that an agreement of the tenor entered into between the parties herein, operates, within the plain language and manifest policy of the law, to bar the offended party from prosecuting the offense. If there is anything morally condemnatory in a situation of his character, the remedy lies not with us but with the legislative department of the government. What the law is, not what it should be, defines the limits of our authority.

Judgment is reversed and the accused is hereby acquitted, without costs.

G.R. No. L-10699           October 18, 1957

WILLIAM H. BROWN, plaintiff-appellant, vs. JUANITA YAMBAO, defendant-appellee.

Jimenez B. Buendia for appellant.

Assistant City Fiscal Rafel A. Jose for appellee.

REYES, J.B.L., J.:

On July 14, 1955, William H. Brown filed suit in the Court of First Instance of Manila to obtain legal separation from his lawful wife Juanita Yambao. He alleged under oath that while interned by the Japanese invaders, from 1942 to 1945, at the University of Sto. Tomas internment camp, his wife engaged in adulterous relations with one Carlos Field of whom she begot a baby girl that Brown learned of his wifes misconduct only in 1945, upon his release from internment; that thereafter the spouse lived separately and later executed a document (Annex A ) liquidating their conjugal partnership and assigning certain properties to the erring wife as her share. The complaint prayed for confirmation of the liquidation agreement; for custody of the children issued of the marriage; that the defendant be declared disqualified to succeed the plaintiff; and for their remedy as might be just and equitable.

Upon petition of the plaintiff, the court subsequently declared the wife in default, for failure to answer in due time, despite service of summons; and directed the City Fiscal or his representatives to—

investigate, in accordance with Article 101 of the Civil Code, whether or not a collusion exists between the parties and to report to this Court the result of his investigation within fifteen (15) days from receipt of copy of this order. The City Fiscal or his representative is also directed to intervene in the case in behalf of the State. (Rec. App. p. 9).

As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and cross-examined plaintiff Brown. His questions (strenuously objected to by Brown's counsel) elicited the fact that after liberation, Brown had lived maritally with another woman and had begotten children by her. Thereafter, the court rendered judgment denying the legal separation asked, on the ground that, while the wife's adultery was established, Brown had incurred in a misconduct of similar nature that barred his right of action under Article 100 of the new Civil Code, providing:

ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no condonation or of consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.

that there had been consent and connivance, and because Brown's action had prescribed under Article 102 of the same Code:

ART. 102 An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after date when such cause occurred.

since the evidence showed that the learned of his wife's infidelity in 1945 but only filed action in 1945.

Brown appeared to this Court, assigning the following errors:

The court erred in permitting the Assistant Fiscal Rafel Jose of Manila to act as counsel for the defendant, who defaulted.

The court erred in declaring that there was condonation of or consent to the adultery.

The court erred in dismissing the plaintiff's complaint.

Appellant Brown argues that in cross-examining him with regard to his marital relation with Lilia Deito, who was not his wife, the Assistant Fiscal acted as consel for the defaulting wife, "when the power of the prosecuting officer is limited to finding out whether or not there is collusion, and if there is no collusion, which is the fact in the case at bar, to intervene for the state which is not the fact in the instant case, the truth of the matter being that he intervened for Juanita Yambao, the defendant-appellee, who is private citizen and who is far from being the state.".

The argument is untenable. Collusion in matrimonial cases being "the act of married persons in procuring a divorce by mutual consent, whether by preconcerted commission by one of a matrimonial offense, or by failure, in pursuance of agreement to defend divorce proceedings" (Cyclopedia Law Dictionary; Nelson, Divorce and Separation, Section 500), it was legitimate for the Fiscal to bring to light any circumstances that could give rise to the inference that the wife's default was calculated, or agreed upon, to enable appellant to obtain the decree of legal separation that he sought without regard to the legal merits of his case. One such circumstance is obviously the fact of Brown's cohabitation with a woman other than his wife, since it bars him from claiming legal separation by express provision of Article 100 of the new Civil Code. Wherefore, such evidence of such misconduct, were proper subject of inquiry as they may justifiably be considered circumstantial evidence of collusion between the spouses.

The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in case of uncontested proceedings for legal separation (and of annulment of marriages, under Article 88), is to emphasize that marriage is more than a mere contract; that it is a social institution in which the state is vitally interested, so that its continuation or interruption cannot be made depend upon the parties themselves (Civil Code, Article 52; Adong vs, Cheong Gee, 43 Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos, 35 Phil. 252). It is consonant with this policy that the injury by the Fiscal should be allowed to focus upon any relevant matter that may indicate whether the proceedings for separation or annulment are fully justified or not.

The court below also found, and correctly held that the appellant's action was already barred, because Brown did not petition for legal separation proceedings until ten years after he learned of his wife's adultery, which was upon his release from internment in 1945. Under Article 102 of the new Civil Code, action for legal separation can not be filed except within one (1) year from and after the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. Appellant's brief does not even contest the correctness of such findings and conclusion.

It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can take cognizance thereof, because actions seeking a decree of legal separation, or annulment of marriage, involve public interest and it is the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record.

Hence, there being at least two well established statutory grounds for denying the remedy sought (commission of similar offense by petitioner and prescription of the action), it becomes unnecesary to delve further into the case and ascertain if Brown's inaction for ten years also evidences condonation or connivance on his part. Even if it did not, his situation would not be improved. It is thus needless to discuss the second assignment of error.

The third assignment of error being a mere consequence of the others must necessarily fail with them.

The decision appealed from is affirmed, with costs against appellant. So ordered.

G.R. No. L-13553             February 23, 1960

JOSE DE OCAMPO, petitioner, vs. SERAFINA FLORENCIANO, respondent.

Joselito J. Coloma for petitioner.

BENGZON, J.:

Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery. The court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there was confession of judgment, plus condonation or consent to the adultery and prescription.

We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code, which for convenience are quoted herewith:

ART. 100.—The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.

ART. 101.—No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment.

In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated.

The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it described their marriage performed in 1938, and the commission of adultery by Serafina, in March 1951 with Jose Arcalas, and in June 1955 with Nelson Orzame.

Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above, directed the provincial fiscal to investigate whether or not collusion existed between the parties. The fiscal examined the defendant under oath, and then reported to the Court that there was no collusion. The plaintiff presented his evidence consisting of the testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat.

According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived thereafter as husband and wife. They begot several children who are now living with plaintiff. In March, 1951, plaintiff discovered on

several occasions that his wife was betraying his trust by maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where she stayed for one year. Again, plaintiff discovered that while in the said city defendant was going out with several other men, aside from Jose Arcalas. Towards the end of June, 1952, when defendant had finished studying her course, she left plaintiff and since then they had lived separately.

"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man by the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation, to which defendant manifested her conformity provided she is not charged with adultery in a criminal action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal separation."

The Court of Appeals held that the husband's right to legal separation on account of the defendant's adultery with Jose Arcalas had prescribed, because his action was not filed within one year from March 1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must agree with the Court of Appeals on this point.1

As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955, the husband upon discovering the illicit connection, expressed his wish to file a petition for legal separation and defendant readily agreed to such filing. And when she was questioned by the Fiscal upon orders of the court, she reiterated her conformity to the legal separation even as she admitted having had sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a confession of judgment the Appellate Court declared that under Art. 101, legal separation could not be decreed.

As we understand the article, it does not exclude, as evidence, any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff's demand.2 This is not occur.

Yet, even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly on defendant's confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it.

The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated from her husband, is no obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes precautions against collusion, which implies more than consent or lack of opposition to the agreement.

Needless to say, when the court is informed that defendant equally desires the separation and admitted the commission of the offense, it should be doubly careful lest a collusion exists. (The Court of Appeals did not find collusion.)

Collusion in divorce or legal separation means the agreement.

. . . between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the parties. It is a ground for denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.).

In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial offense had been committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of grounds therefor.

Here, the offense of adultery had really taking place, according to the evidence. The defendant could not have falsely told the adulterous acts to the Fiscal, because her story might send her to jail the moment her husband requests the Fiscal to prosecute. She could not have practiced deception at such a personal risk.

In this connection, it has been held that collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.).

And proof that the defendant desires the divorce and makes no defense, is not by itself collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.).

We do not think plaintiff's failure actively to search for defendant and take her home (after the latter had left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. It will be remembered that she "left" him after having sinned with Arcalas and after he had discovered her dates with other men. Consequently, it was not his duty to search for her to bring her home. Hers was the obligation to return.

Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the husband's consent to or condonation of his wife's misconduct. However, upon careful examination, a vital difference will be found: in both instances, the husband had abandoned his wife; here it was the wife who "left" her husband.

Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed decision and decree a legal separation between these spouse, all the consequent effects. Costs of all instances against Serafina Florenciano. So ordered.

Paras, C. J., Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David, JJ., concur.

G.R. No. L-18008            October 30, 1962

ELISEA LAPERAL, petitioner, vs. REPUBLIC OF THE PHILIPPINES, oppositor.

BARRERA, J.:

On May 10, 1960, Elisea Laperal filed in the Court of First Instance of Baguio (Sp Proc. No. 433) a petition which reads:

1. That petitioner has been a bona fide resident of the City of Baguio for the last three years prior to the date of the filing of this petition;

2. That petitioner's maiden name is ELISEA LAPERAL; that on March 24, 1939, she married Mr. Enrique R. Santamaria; that in a partial decision entered on this Honorable Court on January 18, 1958, in Civil Case No. 356 of this Court, entitled 'Enrique R. Santamaria vs. Elisea L. Santamaria' Mr. Enrique Santamaria was given a decree of legal separation from her; that the said partial decision is now final;

3. That during her marriage to Enrique R. Santamaria, she naturally used, instead of her maiden name, that of Elisea L. Santamaria; that aside from her legal separation from Enrique R. Santamaria, she has also ceased to live with him for many years now;

4. That in view of the fact that she has been legally separated from Mr. Enrique R. Santamaria and has likewise ceased to live with him for many years, it is desirable that she be allowed to change her name and/or be permitted to resume using her maiden name, to wit: ELISEA LAPERAL.

WHEREFORE, petitioner respectfully prayed that after the necessary proceedings are had, she be allowed to resume using her maiden name of Elisea Laperal.

The petition was opposed by the City Attorney of Baguio on the ground that the same violates the provisions of Article 370 (should be 372) of the Civil Code, and that it is not sanctioned by the Rules of Court.

In its decision of October 31, 1960, the court denied the petition for the reason that Article 372 of the Civil Code requires the wife, even after she is decreed legally separated from her husband, to continue using the name and surname she employed before the legal separation. Upon petitioner's motion, however, the court, treating the petition as one for change of name, reconsidered its decision and granted the petition on the ground that to allow petitioner, who is a businesswoman decreed legally separated from her husband, to continue using her married name would give rise to confusion in her finances and the eventual liquidation of the conjugal assets. Hence, this appeal by the State.

The contention of the Republic finds support in the provisions of Article 372 of the New Civil Code which reads:

ART. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. (Emphasis supplied)

Note that the language of the statute is mandatory that the wife, even after the legal separation has been decreed, shall continue using her name and surname employed before the legal separation. This is so because her married status is unaffected by the separation, there being no severance of the vinculum. It seems to be the policy of the law that the wife should continue to use the name indicative of her unchanged status for the benefit of all concerned.

The appellee contends, however, that the petition is substantially for change of her name from Elisea L. Santamaria, the one she has been using, since her marriage, to Elisea Laperal, her maiden name, giving as reason or cause therefor her being legally separated from the husband Enrique R. Santamaria, and the fact that they have ceased to live together for many years.

There seems to be no dispute that in the institution of these proceedings, the procedure prescribed in Rule 103 of the Rules of Court for change of name has been observed. But from the petition quoted in full at the beginning of these opinion, the only reason relied upon for the change of name is the fact that petitioner is legally separated from her husband and has, in fact, ceased to live with him for many years. It is doubtful, to say the least, whether Rule 103 which refers to change of name in general, may prevail over the specific provisions of Article 372 of the New Civil Code with regards to married women legally separated from their husbands. Even, however, applying Rule 103 to this case, the fact of legal separation alone — which is the only basis for the petition at bar — is, in our opinion, not a sufficient ground to justify a change of the name of herein petitioner, for to hold otherwise would be to provide an easy circumvention of the mandatory provisions of Article 372.

It is true that in the second decision which reconsidered the first it is stated that as the petitioner owns extensive business interests, the continued used of her husband surname may cause undue confusion in her finances and the eventual liquidation of the conjugal assets. This finding is however without basis. In the first place, these were not the causes upon which the petition was based; hence, obviously no evidence to this effect had been adduced. Secondly, with the issuance of the decree of legal separation in 1958, the conjugal partnership between petitioner and her husband had automatically been dissolved and liquidated. (Art. 106[2], Civil Cod). Consequently, there could be no more occasion for an eventual liquidation of the conjugal assets.

WHEREFORE, the order of the lower court of December 1, 1960, granting the petition, is hereby set aside and the petition dismissed. Without costs. So ordered.