A.M. No.

MTJ-92-706 March 29, 1995

LUPO ALMODIEL ATIENZA, complainant,
vs.
JUDGE FRANCISCO F. BRILLANTES, JR., Metropolitan Trial Court, Branch 28,
Manila, respondent.

FACTS:
An administrative case was filed by herein complainant against Judge Brilliantes of MTC,
Manila. Complainant alleges that he has two children with De Castro who stays in Makati,
Manila in the house he bought and stayed while he is in Manila. Sometime in 1991 he saw
Respondent Judge sleeping on his bed, upon inquiry, he was told by the houseboy that
respondent was cohabiting with De Castro. Complainant further alleged that respondent was
married to a certain Zenaida Ongkiko and begot five children.
In reply respondent alleged that the complainant was not married to De Castro, he also denied
having been married to Zenaida ongkiko, however admitted having five children with her. He
stated that the marriage between him and Ongkiko was not valid since there was no marriage
license and further claimed that when he married De Castro he believed in all good faith in
his intent and purpose.
ISSUE: Whether or not Article 40 of the Family Code that required nullity of previous marriage
for purpose of remarriage shall apply since as a general rule provided in Article 4 of the NCC:
Laws shall have no retroactive effect, unless the contrary is provided.
RULING:
Under the family code, there must a judicial declaration of the nullity of the previous
marriage before any party can enter a second marriage thereafter. Article 40 brings to light this
characteristic, however the said Code took effect only on August 3, 1988 and the marriages that
respondent contracted was 1965 and 1991 however the provisions of this code shall apply
regardless of the date of the marriage, besides under Article 256 of the Family Code, said Article
is given retroactive effects in so far as it does not prejudice or impair vested or acquired rights
in accordance with the Civil Code or other laws this is particularly true with Article 40 which is
a rule of Procedure, herein respondent has not shown any vested rights that was impaired by the
application of Article 40 in this case.