Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 104818 September 17, 1993

ROBERTO DOMINGO, petitioner,

vs.
COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her Attorney-in-Fact
MOISES R. AVERA, respondents.

Jose P.O. Aliling IV for petitioner.

De Guzman, Meneses & Associates for private respondent.

ROMERO, J.:

The instant petition seeks the reversal of respondent court's ruling finding no grave abuse of
discretion in the lower court's order denying petitioner's motion to dismiss the petition for
declaration of nullity of marriage and separation of property.

On May 29, 1991, private respondent Delia Soledad A. Domingo filed a petition before the
Regional Trial Court of Pasig entitled "Declaration of Nullity of Marriage and Separation of
Property" against petitioner Roberto Domingo. The petition which was docketed as Special
Proceedings No. 1989-J alleged among others that: they were married on November 29, 1976 at
the YMCA Youth Center Bldg., as evidenced by a Marriage Contract Registry No. 1277K-76 with
Marriage License No. 4999036 issued at Carmona, Cavite; unknown to her, he had a previous
marriage with one Emerlina dela Paz on April 25, 1969 which marriage is valid and still existing;
she came to know of the prior marriage only sometime in 1983 when Emerlina dela Paz sued
them for bigamy; from January 23 1979 up to the present, she has been working in Saudi Arabia
and she used to come to the Philippines only when she would avail of the one-month annual
vacation leave granted by her foreign employer since 1983 up to the present, he has been
unemployed and completely dependent upon her for support and subsistence; out of her
personal earnings, she purchased real and personal properties with a total amount of
approximately P350,000.00, which are under the possession and administration of Roberto;
sometime in June 1989, while on her one-month vacation, she discovered that he was cohabiting
with another woman; she further discovered that he had been disposing of some of her
properties without her knowledge or consent; she confronted him about this and thereafter
appointed her brother Moises R. Avera as her attorney-in-fact to take care of her properties; he
failed and refused to turn over the possession and administration of said properties to her
brother/attorney-in-fact; and he is not authorized to administer and possess the same on account
of the nullity of their marriage. The petition prayed that a temporary restraining order or a writ of
preliminary injunction be issued enjoining Roberto from exercising any act of administration and
ownership over said properties; their marriage be declared null and void and of no force and
effect; and Delia Soledad be declared the sole and exclusive owner of all properties acquired at
the time of their void marriage and such properties be placed under the proper management and
administration of the attorney-in-fact.
Petitioner filed a Motion to Dismiss on the ground that the petition stated no cause of action. The
marriage being void ab initio, the petition for the declaration of its nullity is, therefore, superfluous
and unnecessary. It added that private respondent has no property which is in his possession.

On August 20, 1991, Judge Maria Alicia M. Austria issued an Order denying the motion to
dismiss for lack of merit. She explained:

Movant argues that a second marriage contracted after a first marriage by a man
with another woman is illegal and void (citing the case of Yap v. Court of Appeals,
145 SCRA 229) and no judicial decree is necessary to establish the invalidity of a
void marriage (citing the cases of People v. Aragon, 100 Phil. 1033; People v.
Mendoza, 95 Phil. 845). Indeed, under the Yap case there is no dispute that the
second marriage contracted by respondent with herein petitioner after a first
marriage with another woman is illegal and void. However, as to whether or not
the second marriage should first be judicially declared a nullity is not an issue in
said case. In the case of Vda. de Consuegra v. GSIS, the Supreme Court ruled in
explicit terms, thus:

And with respect to the right of the second wife, this Court
observed that although the second marriage can be presumed to
be void ab initio as it was celebrated while the first marriage was
still subsisting, still there is need for judicial declaration of its
nullity. (37 SCRA 316, 326)

The above ruling which is of later vintage deviated from the

previous rulings of the Supreme Court in the aforecited cases of
Aragon and Mendoza.

Finally, the contention of respondent movant that petitioner has

no property in his possession is an issue that may be determined
only after trial on the merits.1

A motion for reconsideration was filed stressing the erroneous application of Vda. de Consuegra
v. GSIS2 and the absence of justiciable controversy as to the nullity of the marriage. On
September 11, 1991, Judge Austria denied the motion for reconsideration and gave petitioner
fifteen (15) days from receipt within which to file his answer.

Instead of filing the required answer, petitioner filed a special civil action
of certiorari and mandamus on the ground that the lower court acted with grave abuse of
discretion amounting to lack of jurisdiction in denying the motion to dismiss.

On February 7, 1992, the Court of Appeals3 dismissed the petition. It explained that the case
of Yap v. CA4 cited by petitioner and that of Consuegra v. GSIS relied upon by the lower court do
not have relevance in the case at bar, there being no identity of facts because these cases dealt
with the successional rights of the second wife while the instant case prays for separation of
property corollary with the declaration of nullity of marriage. It observed that the separation and
subsequent distribution of the properties acquired during the union can be had only upon proper
determination of the status of the marital relationship between said parties, whether or not the
validity of the first marriage is denied by petitioner. Furthermore, in order to avoid duplication and
multiplicity of suits, the declaration of nullity of marriage may be invoked in this proceeding
together with the partition and distribution of the properties involved. Citing Articles 48, 50 and 52
of the Family Code, it held that private respondent's prayer for declaration of absolute nullity of
their marriage may be raised together with other incidents of their marriage such as the
separation of their properties. Lastly, it noted that since the Court has jurisdiction, the alleged
error in refusing to grant the motion to dismiss is merely one of law for which the remedy
ordinarily would have been to file an answer, proceed with the trial and in case of an adverse
decision, reiterate the issue on appeal. The motion for reconsideration was subsequently denied
for lack of merit.5

Hence, this petition.

The two basic issues confronting the Court in the instant case are the following.

First, whether or not a petition for judicial declaration of a void marriage is necessary. If in the
affirmative, whether the same should be filed only for purposes of remarriage.

Second, whether or not SP No. 1989-J is the proper remedy of private respondent to recover
certain real and personal properties allegedly belonging to her exclusively.

Petitioner, invoking the ruling in People v. Aragon6 and People v. Mendoza,7 contends that SP.
No. 1989-J for Declaration of Nullity of Marriage and Separation of Property filed by private
respondent must be dismissed for being unnecessary and superfluous. Furthermore, under his
own interpretation of Article 40 of the Family Code, he submits that a petition for declaration of
absolute nullity of marriage is required only for purposes of remarriage. Since the petition in SP
No. 1989-J contains no allegation of private respondent's intention to remarry, said petition
should therefore, be dismissed.

On the other hand, private respondent insists on the necessity of a judicial declaration of the
nullity of their marriage, not for purposes of remarriage, but in order to provide a basis for the
separation and distribution of the properties acquired during coverture.

There is no question that the marriage of petitioner and private respondent celebrated while the
former's previous marriage with one Emerlina de la Paz was still subsisting, is bigamous. As
such, it is from the beginning.8 Petitioner himself does not dispute the absolute nullity of their
marriage.9

The cases of People v. Aragon and People v. Mendoza relied upon by petitioner are cases
where the Court had earlier ruled that no judicial decree is necessary to establish the invalidity of
a void, bigamous marriage. It is noteworthy to observe that Justice Alex Reyes, however,
dissented on these occasions stating that:

Though the logician may say that where the former marriage was void there
would be nothing to dissolve, still it is not for the spouses to judge whether that
marriage was void or not. That judgment is reserved to the courts. . . . 10

This dissenting opinion was adopted as the majority position in subsequent cases involving the
same issue. Thus, in Gomez v. Lipana, 11 the Court abandoned its earlier ruling in
the Aragon and Mendoza cases. In reversing the lower court's order forfeiting the husband's
share of the disputed property acquired during the second marriage, the Court stated that "if the
nullity, or annulment of the marriage is the basis for the application of Article 1417, there is need
for a judicial declaration thereof, which of course contemplates an action for that purpose."

Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra v. Government
Service Insurance System, that "although the second marriage can be presumed to be void ab
initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial
declaration of such nullity."

In Tolentino v. Paras,12 however, the Court turned around and applied

the Aragon and Mendoza ruling once again. In granting the prayer of the first wife asking for a
declaration as the lawful surviving spouse and the correction of the death certificate of her
deceased husband, it explained that "(t)he second marriage that he contracted with private
respondent during the lifetime of his first spouse is null and void from the beginning and of no
force and effect. No judicial decree is necessary to establish the invalidity of a void marriage."

However, in the more recent case of Wiegel v. Sempio-Diy 13 the Court reverted to
the Consuegra case and held that there was "no need of introducing evidence about the existing
prior marriage of her first husband at the time they married each other, for then such a marriage
though void still needs according to this Court a judicial declaration of such fact and for all legal
intents and purposes she would still be regarded as a married woman at the time she contracted
her marriage with respondent Karl Heinz Wiegel."

Came the Family Code which settled once and for all the conflicting jurisprudence on the matter.
A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of
action or a ground for defense. 14 Where the absolute nullity of a previous marriage is sought to
be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for
said projected marriage be free from legal infirmity is a final judgment declaring the previous
marriage void. 15

The Family Law Revision Committee and the Civil Code Revision Committee 16 which drafted
what is now the Family Code of the Philippines took the position that parties to a marriage should
not be allowed to assume that their marriage is void even if such be the fact but must first secure
a judicial declaration of the nullity of their marriage before they can be allowed to marry again.
This is borne out by the following minutes of the 152nd Joint Meeting of the Civil Code and
Family Law Committees where the present Article 40, then Art. 39, was discussed.

B. Article 39. —

The absolute nullity of a marriage may be invoked only on the

basis of a final judgment declaring the marriage void, except as
provided in Article 41.

Justice Caguioa remarked that the above provision should include not only void
but also voidable marriages. He then suggested that the above provision be
modified as follows:

The validity of a marriage may be invoked only . . .

Justice Reyes (J.B.L. Reyes), however, proposed that they say:

The validity or invalidity of a marriage may be invoked

only . . .

On the other hand, Justice Puno suggested that they say:

The invalidity of a marriage may be invoked only . . .

Justice Caguioa explained that his idea is that one cannot determine for himself
whether or not his marriage is valid and that a court action is needed. Justice
Puno accordingly proposed that the provision be modified to read:

The invalidity of a marriage may be invoked only on the basis of a

final judgment annulling the marriage or declaring the marriage
void, except as provided in Article 41.
Justice Caguioa remarked that in annulment, there is no question. Justice Puno,
however, pointed out that, even if it is a judgment of annulment, they still have to
produce the judgment.

Justice Caguioa suggested that they say:

The invalidity of a marriage may be invoked only on the basis of a

final judgment declaring the marriage invalid, except as provided
in Article 41.

Justice Puno raised the question: When a marriage is declared invalid, does it
include the annulment of a marriage and the declaration that the marriage is
void? Justice Caguioa replied in the affirmative. Dean Gupit added that in some
judgments, even if the marriage is annulled, it is declared void. Justice Puno
suggested that this matter be made clear in the provision.

Prof. Baviera remarked that the original idea in the provision is to require first a
judicial declaration of a void marriage and not annullable marriages, with which
the other members concurred. Judge Diy added that annullable marriages are
presumed valid until a direct action is filed to annul it, which the other members
affirmed. Justice Puno remarked that if this is so, then the phrase "absolute
nullity" can stand since it might result in confusion if they change the phrase to
"invalidity" if what they are referring to in the provision is the declaration that the
marriage is void.

Prof. Bautista commented that they will be doing away with collateral defense as
well as collateral attack. Justice Caguioa explained that the idea in the provision
is that there should be a final judgment declaring the marriage void and a party
should not declare for himself whether or not the marriage is void, while the other
members affirmed. Justice Caguioa added that they are, therefore, trying to avoid
a collateral attack on that point. Prof. Bautista stated that there are actions which
are brought on the assumption that the marriage is valid. He then asked: Are they
depriving one of the right to raise the defense that he has no liability because the
basis of the liability is void? Prof. Bautista added that they cannot say that there
will be no judgment on the validity or invalidity of the marriage because it will be
taken up in the same proceeding. It will not be a unilateral declaration that, it is a
void marriage. Justice Caguioa saw the point of Prof. Bautista and suggested that
they limit the provision to remarriage. He then proposed that Article 39 be
reworded as follows:

The absolute nullity of a marriage for purposes of remarriage may

be invoked only on the basis of final judgment . . .

Justice Puno suggested that the above be modified as follows:

The absolute nullity of a previous marriage may be invoked for

purposes of establishing the validity of a subsequent marriage
only on the basis of a final judgment declaring such previous
marriage void, except as provided in Article 41.

Justice Puno later modified the above as follows:

For the purpose of establishing the validity of a subsequent

marriage, the absolute nullity of a previous marriage may only be
invoked on the basis of a final judgment declaring such nullity,
except as provided in Article 41.
 Justice Caguioa commented that the above provision is too broad and will not
solve the objection of Prof. Bautista. He proposed that they say:

For the purpose of entering into a subsequent marriage, the

absolute nullity of a previous marriage may only be invoked on
the basis of a final judgment declaring such nullity, except as
provided in Article 41.

Justice Caguioa explained that the idea in the above provision is that if one
enters into a subsequent marriage without obtaining a final judgment declaring
the nullity of a previous marriage, said subsequent marriage is void ab initio.

After further deliberation, Justice Puno suggested that they go back to the original
wording of the provision as follows:

The absolute nullity of a previous marriage may be invoked for

purposes of remarriage only on the basis of a final judgment
declaring such previous marriage void, except as provided in
Article 41. 17

In fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection
of the spouse who, believing that his or her marriage is illegal and void, marries again. With the
judicial declaration of the nullity of his or her first marriage, the person who marries again cannot
be charged with bigamy. 18

Just over a year ago, the Court made the pronouncement that there is a necessity for a
declaration of absolute nullity of a prior subsisting marriage before contracting another in the
recent case of Terre v. Terre. 19 The Court, in turning down the defense of respondent Terre who
was charged with grossly immoral conduct consisting of contracting a second marriage and living
with another woman other than complainant while his prior marriage with the latter remained
subsisting, said that "for purposes of determining whether a person is legally free to contract a
second marriage, a judicial declaration that the first marriage was null and void ab initio is
essential."

As regards the necessity for a judicial declaration of absolute nullity of marriage, petitioner
submits that the same can be maintained only if it is for the purpose of remarriage. Failure to
allege this purpose, according to petitioner's theory, will warrant dismissal of the same.

Article 40 of the Family Code provides:

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes
of remarriage on the basis solely of a final judgment declaring such previous
marriage void. (n)

Crucial to the proper interpretation of Article 40 is the position in the provision of the word
"solely." As it is placed, the same shows that it is meant to qualify "final judgment declaring such
previous marriage void." Realizing the need for careful craftsmanship in conveying the precise
intent of the Committee members, the provision in question, as it finally emerged, did not state
"The absolute nullity of a previous marriage may be invoked solely for purposes of remarriage . .
.," in which case "solely" would clearly qualify the phrase "for purposes of remarriage." Had the
phraseology been such, the interpretation of petitioner would have been correct and, that is, that
the absolute nullity of a previous marriage may be invoked solely for purposes of remarriage,
thus rendering irrelevant the clause "on the basis solely of a final judgment declaring such
previous marriage void."
That Article 40 as finally formulated included the significant clause denotes that such final
judgment declaring the previous marriage void need not be obtained only for purposes of
remarriage. Undoubtedly, one can conceive of other instances where a party might well invoke
the absolute nullity of a previous marriage for purposes other than remarriage, such as in case of
an action for liquidation, partition, distribution and separation of property between the erstwhile
spouses, as well as an action for the custody and support of their common children and the
delivery of the latters' presumptive legitimes. In such cases, evidence needs must be adduced,
testimonial or documentary, to prove the existence of grounds rendering such a previous
marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a
court declaring such previous marriage void. Hence, in the instance where a party who has
previously contracted a marriage which remains subsisting desires to enter into another marriage
which is legally unassailable, he is required by law to prove that the previous one was an
absolute nullity. But this he may do on the basis solely of a final judgment declaring such
previous marriage void.

This leads us to the question: Why the distinction? In other words, for purposes of remarriage,
why should the only legally acceptable basis for declaring a previous marriage an absolute nullity
be a final judgment declaring such previous marriage void? Whereas, for purposes other than
remarriage, other evidence is acceptable?

Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable social institution,

is the foundation of the family;" as such, it "shall be protected by the State."20 In more explicit
terms, the Family Code characterizes it as "a special contract of permanent union between a
man and a woman entered into in accordance with law for the establishment of conjugal, and
family life." 21 So crucial are marriage and the family to the stability and peace of the nation that
their "nature, consequences, and incidents are governed by law and not subject to stipulation . .
." 22 As a matter of policy, therefore, the nullification of a marriage for the purpose of contracting
another cannot be accomplished merely on the basis of the perception of both parties or of one
that their union is so defective with respect to the essential requisites of a contract of marriage as
to render it void ipso jure and with no legal effect — and nothing more. Were this so, this
inviolable social institution would be reduced to a mockery and would rest on very shaky
foundations indeed. And the grounds for nullifying marriage would be as diverse and far-ranging
as human ingenuity and fancy could conceive. For such a social significant institution, an official
state pronouncement through the courts, and nothing less, will satisfy the exacting norms of
society. Not only would such an open and public declaration by the courts definitively confirm the
nullity of the contract of marriage, but the same would be easily verifiable through records
accessible to everyone.

That the law seeks to ensure that a prior marriage is no impediment to a second sought to be
contracted by one of the parties may be gleaned from new information required in the Family
Code to be included in the application for a marriage license, viz, "If previously married, how,
when and where the previous marriage was dissolved and annulled." 23

Reverting to the case before us, petitioner's interpretation of Art. 40 of the Family Code is,
undoubtedly, quite restrictive. Thus, his position that private respondent's failure to state in the
petition that the same is filed to enable her to remarry will result in the dismissal of SP No. 1989-
J is untenable. His misconstruction of Art. 40 resulting from the misplaced emphasis on the term
"solely" was in fact anticipated by the members of the Committee.

Dean Gupit commented the word "only" may be misconstrued to refer to "for
purposes of remarriage." Judge Diy stated that "only" refers to "final
judgment." Justice Puno suggested that they say "on the basis only of a final
judgment." Prof. Baviera suggested that they use the legal term "solely" instead
of "only," which the Committee approved. 24 (Emphasis supplied)
Pursuing his previous argument that the declaration for absolute nullity of marriage is
unnecessary, petitioner suggests that private respondent should have filed an ordinary civil
action for the recovery of the properties alleged to have been acquired during their union. In such
an eventuality, the lower court would not be acting as a mere special court but would be clothed
with jurisdiction to rule on the issues of possession and ownership. In addition, he pointed out
that there is actually nothing to separate or partition as the petition admits that all the properties
were acquired with private respondent's money.

The Court of Appeals disregarded this argument and concluded that "the prayer for declaration of
absolute nullity of marriage may be raised together with the other incident of their marriage such
as the separation of their properties."

When a marriage is declared void ab initio, the law states that the final judgment therein shall
provide for "the liquidation, partition and distribution of the properties of the spouses, the custody
and support of the common children, and the delivery of their presumptive legitimes, unless such
matters had been adjudicated in previous judicial proceedings." 25 Other specific effects flowing
therefrom, in proper cases, are the following:

Art. 43. xxx xxx xxx

(2) The absolute community of property or the conjugal partnership, as the case
may be, shall be dissolved and liquidated, but if either spouse contracted said
marriage in bad faith, his or her share of the net profits of the community property
or conjugal partnership property shall be forfeited in favor of the common children
or, if there are none, the children of the guilty spouse by a previous marriage or,
in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee
contracted the marriage in bad faith, such donations made to said donee are
revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who
acted in bad faith as a beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate
succession. (n)

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said
marriage shall be void ab initio and all donations by reason of marriage and
testamentary disposition made by one in favor of the other are revoked by
operation of law. (n) 26

Based on the foregoing provisions, private respondent's ultimate prayer for separation of
property will simply be one of the necessary consequences of the judicial declaration of absolute
nullity of their marriage. Thus, petitioner's suggestion that in order for their properties to be
separated, an ordinary civil action has to be instituted for that purpose is baseless. The Family
Code has clearly provided the effects of the declaration of nullity of marriage, one of which is the
separation of property according to the regime of property relations governing them. It stands to
reason that the lower court before whom the issue of nullity of a first marriage is brought is
likewise clothed with jurisdiction to decide the incidental questions regarding the couple's
properties. Accordingly, the respondent court committed no reversible error in finding that the
lower court committed no grave abuse of discretion in denying petitioner's motion to dismiss SP
No. 1989-J.
WHEREFORE, the instant petition is hereby DENIED. The decision of respondent Court dated
February 7, 1992 and the Resolution dated March 20, 1992 are AFFIRMED.

SO ORDERED.

Separate Opinions

VITUG, J., concurring:

I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P. Romero. I should
like, however, to put in a modest observation.

Void marriages are inexistent from the very beginning and, I believe, no judicial decree
is required to establish their nullity, except in the following instances:

(a) For purposes of remarriage pursuant to the provision of Article 40 of the Family Code; viz.:

The absolute nullity of a previous marriage may be invoked for purposes of

remarriage on the basis solely of a final judgment declaring such previous
marriage void. (n)

(b) A marriage celebrated prior to the effectivity of the Family Code in case a party thereto was
psychologically incapacitated to comply with the essential marital obligations of marriage (Article
36, Family Code), where an action or defense for the declaration of nullity prescribes ten (10)
years after the Family Code took effect (Article 39, Family Code); otherwise, the marriage is
deemed unaffected by the Family Code.

A void marriage, even without its being judicially declared a nullity, albeit the preferability for, and
justiciability (fully discussed in the majority opinion) of, such a declaration, will not give it the
status or the consequences of a valid marriage, saving only specific instances where certain
effects of a valid marriage can still flow from the void marriage. Examples of these cases are
children of void marriages under Article 36 (due to psychological incapacity) and Article 53, in
relation to Article 52 (due to failure of partition, delivery of presumptive legitimes of children and
recording thereof following the annulment or declaration of nullity a prior marriage), conceived or
born before the judicial declaration of nullity of such void marriages, who the law deems as
legitimate (Article 54, Family Code).

In most, if not in all, other cases, a void marriage is to be considered extant per se. Neither the
conjugal, partnership of gain under the old regime nor the absolute community of property under
the new Code (absent a marriage settlement), will apply; instead, their property relations shall be
governed by the co-ownership rules under either Article 147 or Article 148 of the Family Code. I
must hasten to add as a personal view, however, that the exceptional effects on children of a
void marriage because of the psychological incapacity of a party thereto should have been
extended to cover even the personal and property relations of the spouses. Unlike the other
cases of void marriages where the grounds therefor may be established by hard facts and with
little uncertainty, the term "psychological incapacity" is so relative and unsettling that until a
judicial declaration of nullity is made its interim effects can long and literally hang on the balance
not only insofar as the spouses themselves are concerned but also as regards third persons with
whom the spouses deal.

FIRST DIVISION
G.R. No. 132529. February 2, 2001

SUSAN NICDAO CARIÑO, petitioner,

vs.
SUSAN YEE CARIÑO, respondent.

DECISION

YNARES-SANTIAGO, J.:

The issue for resolution in the case at bar hinges on the validity of the two marriages contracted
by the deceased SPO4 Santiago S. Cariño, whose “death benefits” is now the subject of the
controversy between the two Susans whom he married. 1âwphi1.nêt

Before this Court is a petition for review on certiorari seeking to set aside the decision 1 of the
Court of Appeals in CA-G.R. CV No. 51263, which affirmed in toto the decision 2 of the Regional
Trial Court of Quezon City, Branch 87, in Civil Case No. Q-93-18632.

During the lifetime of the late SPO4 Santiago S. Cariño, he contracted two marriages, the first
was on June 20, 1969, with petitioner Susan Nicdao Cariño (hereafter referred to as Susan
Nicdao), with whom he had two offsprings, namely, Sahlee and Sandee Cariño; and the second
was on November 10, 1992, with respondent Susan Yee Cariño (hereafter referred to as Susan
Yee), with whom he had no children in their almost ten year cohabitation starting way back in
1982.

In 1988, SPO4 Santiago S. Cariño became ill and bedridden due to diabetes complicated by
pulmonary tuberculosis. He passed away on November 23, 1992, under the care of Susan Yee,
who spent for his medical and burial expenses. Both petitioner and respondent filed claims for
monetary benefits and financial assistance pertaining to the deceased from various government
agencies. Petitioner Susan Nicdao was able to collect a total of P146,000.00 from “MBAI,
PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig,” 3 while respondent Susan Yee received a
total of P21,000.00 from “GSIS Life, Burial (GSIS) and burial (SSS).” 4

On December 14, 1993, respondent Susan Yee filed the instant case for collection of sum of
money against petitioner Susan Nicdao praying, inter alia, that petitioner be ordered to return to
her at least one-half of the one hundred forty-six thousand pesos (P146,000.00) collectively
denominated as “death benefits” which she (petitioner) received from “MBAI, PCCUI,
Commutation, NAPOLCOM, [and] Pag-ibig.” Despite service of summons, petitioner failed to file
her answer, prompting the trial court to declare her in default.

Respondent Susan Yee admitted that her marriage to the deceased took place during the
subsistence of, and without first obtaining a judicial declaration of nullity of, the marriage between
petitioner and the deceased. She, however, claimed that she had no knowledge of the previous
marriage and that she became aware of it only at the funeral of the deceased, where she met
petitioner who introduced herself as the wife of the deceased. To bolster her action for collection
of sum of money, respondent contended that the marriage of petitioner and the deceased is
void ab initio because the same was solemnized without the required marriage license. In
support thereof, respondent presented: 1) the marriage certificate of the deceased and the
petitioner which bears no marriage license number; 5 and 2) a certification dated March 9, 1994,
from the Local Civil Registrar of San Juan, Metro Manila, which reads –

This is to certify that this Office has no record of marriage license of the spouses SANTIAGO
CARINO (sic) and SUSAN NICDAO, who are married in this municipality on June 20, 1969.
Hence, we cannot issue as requested a true copy or transcription of Marriage License number
from the records of this archives.
This certification is issued upon the request of Mrs. Susan Yee Cariño for whatever legal purpose
it may serve. 6

On August 28, 1995, the trial court ruled in favor of respondent, Susan Yee, holding as follows:

WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of P73,000.00, half of
the amount which was paid to her in the form of death benefits arising from the death of SPO4
Santiago S. Cariño, plus attorney’s fees in the amount of P5,000.00, and costs of suit.

IT IS SO ORDERED. 7

On appeal by petitioner to the Court of Appeals, the latter affirmed in toto the decision of the trial
court. Hence, the instant petition, contending that:

I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE

FINDINGS OF THE LOWER COURT THAT VDA. DE CONSUEGRA VS. GSIS IS
APPLICABLE TO THE CASE AT BAR.

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYING EQUITY IN

THE INSTANT CASE INSTEAD OF THE CLEAR AND UNEQUIVOCAL MANDATE OF
THE FAMILY CODE.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THE

CASE OF VDA. DE CONSUEGRA VS GSIS TO HAVE BEEN MODIFIED, AMENDED
AND EVEN ABANDONED BY THE ENACTMENT OF THE FAMILY CODE. 8

Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked
for purposes of remarriage on the basis solely of a final judgment declaring such previous
marriage void. Meaning, where the absolute nullity of a previous marriage is sought to be
invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said
projected marriage to be free from legal infirmity, is a final judgment declaring the previous
marriage void. 9 However, for purposes other than remarriage, no judicial action is necessary to
declare a marriage an absolute nullity. For other purposes, such as but not limited to the
determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of
property regime, or a criminal case for that matter, the court may pass upon the validity of
marriage even after the death of the parties thereto, and even in a suit not directly instituted to
question the validity of said marriage, so long as it is essential to the determination of the
case. 10 In such instances, evidence must be adduced, testimonial or documentary, to prove the
existence of grounds rendering such a previous marriage an absolute nullity. These need not be
limited solely to an earlier final judgment of a court declaring such previous marriage void. 11

It is clear therefore that the Court is clothed with sufficient authority to pass upon the validity of
the two marriages in this case, as the same is essential to the determination of who is rightfully
entitled to the subject “death benefits” of the deceased.

Under the Civil Code, which was the law in force when the marriage of petitioner Susan Nicdao
and the deceased was solemnized in 1969, a valid marriage license is a requisite of
marriage, 12 and the absence thereof, subject to certain exceptions, 13 renders the marriage void
ab initio. 14
In the case at bar, there is no question that the marriage of petitioner and the deceased does not
fall within the marriages exempt from the license requirement. A marriage license, therefore, was
indispensable to the validity of their marriage. This notwithstanding, the records reveal that the
marriage contract of petitioner and the deceased bears no marriage license number and, as
certified by the Local Civil Registrar of San Juan, Metro Manila, their office has no record of such
marriage license. In Republic v. Court of Appeals, 15 the Court held that such a certification is
adequate to prove the non-issuance of a marriage license. Absent any circumstance of
suspicion, as in the present case, the certification issued by the local civil registrar enjoys
probative value, he being the officer charged under the law to keep a record of all data relative to
the issuance of a marriage license.

Such being the case, the presumed validity of the marriage of petitioner and the deceased has
been sufficiently overcome. It then became the burden of petitioner to prove that their marriage is
valid and that they secured the required marriage license. Although she was declared in default
before the trial court, petitioner could have squarely met the issue and explained the absence of
a marriage license in her pleadings before the Court of Appeals and this Court. But petitioner
conveniently avoided the issue and chose to refrain from pursuing an argument that will put her
case in jeopardy. Hence, the presumed validity of their marriage cannot stand.

It is beyond cavil, therefore, that the marriage between petitioner Susan Nicdao and the
deceased, having been solemnized without the necessary marriage license, and not being one of
the marriages exempt from the marriage license requirement, is undoubtedly void ab initio.

It does not follow from the foregoing disquisition, however, that since the marriage of petitioner
and the deceased is declared void ab initio, the “death benefits” under scrutiny would now be
awarded to respondent Susan Yee. To reiterate, under Article 40 of the Family Code, for
purposes of remarriage, there must first be a prior judicial declaration of the nullity of a previous
marriage, though void, before a party can enter into a second marriage, otherwise, the second
marriage would also be void.

Accordingly, the declaration in the instant case of nullity of the previous marriage of the
deceased and petitioner Susan Nicdao does not validate the second marriage of the deceased
with respondent Susan Yee. The fact remains that their marriage was solemnized without first
obtaining a judicial decree declaring the marriage of petitioner Susan Nicdao and the deceased
void. Hence, the marriage of respondent Susan Yee and the deceased is, likewise, void ab initio.

One of the effects of the declaration of nullity of marriage is the separation of the property of the
spouses according to the applicable property regime. 16 Considering that the two marriages are
void ab initio, the applicable property regime would not be absolute community or conjugal
partnership of property, but rather, be governed by the provisions of Articles 147 and 148 of the
Family Code on “Property Regime of Unions Without Marriage.”

Under Article 148 of the Family Code, which refers to the property regime of bigamous
marriages, adulterous relationships, relationships in a state of concubine, relationships where
both man and woman are married to other persons, multiple alliances of the same married
man, 17 -

“... [O]nly the properties acquired by both of the parties through their actual joint contribution of
money, property, or industry shall be owned by them in common in proportion to their respective
contributions ...”

In this property regime, the properties acquired by the parties through their actual joint
contribution shall belong to the co-ownership. Wages and salaries earned by each party belong
to him or her exclusively. Then too, contributions in the form of care of the home, children and
household, or spiritual or moral inspiration, are excluded in this regime. 18
Considering that the marriage of respondent Susan Yee and the deceased is a bigamous
marriage, having been solemnized during the subsistence of a previous marriage then presumed
to be valid (between petitioner and the deceased), the application of Article 148 is therefore in
order.

The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.], NAPOLCOM,
Commutation, Pag-ibig, and PCCUI, are clearly renumerations, incentives and benefits from
governmental agencies earned by the deceased as a police officer. Unless respondent Susan
Yee presents proof to the contrary, it could not be said that she contributed money, property or
industry in the acquisition of these monetary benefits. Hence, they are not owned in common by
respondent and the deceased, but belong to the deceased alone and respondent has no right
whatsoever to claim the same. By intestate succession, the said “death benefits” of the deceased
shall pass to his legal heirs. And, respondent, not being the legal wife of the deceased is not one
of them.

As to the property regime of petitioner Susan Nicdao and the deceased, Article 147 of the Family
Code governs. This article applies to unions of parties who are legally capacitated and not barred
by any impediment to contract marriage, but whose marriage is nonetheless void for other
reasons, like the absence of a marriage license. Article 147 of the Family Code reads -

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively
with each other as husband and wife without the benefit of marriage or under a void marriage,
their wages and salaries shall be owned by them in equal shares and the property acquired by
both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be
presumed to have been obtained by their joint efforts, work or industry, and shall be owned by
them in equal shares. For purposes of this Article, a party who did not participate in the
acquisition by the other party of any property shall be deemed to have contributed jointly in the
acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and
of the household.

xxx

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith
in the co-ownership shall be forfeited in favor of their common children. In case of default of or
waiver by any or all of the common children or their descendants, each vacant share shall belong
to the respective surviving descendants. In the absence of descendants, such share shall belong
to the innocent party. In all cases, the forfeiture shall take place upon termination of the
cohabitation.

In contrast to Article 148, under the foregoing article, wages and salaries earned by either party
during the cohabitation shall be owned by the parties in equal shares and will be divided equally
between them, even if only one party earned the wages and the other did not contribute
thereto. 19 Conformably, even if the disputed “death benefits” were earned by the deceased alone
as a government employee, Article 147 creates a co-ownership in respect thereto, entitling the
petitioner to share one-half thereof. As there is no allegation of bad faith in the present case, both
parties of the first marriage are presumed to be in good faith. Thus, one-half of the subject “death
benefits” under scrutiny shall go to the petitioner as her share in the property regime, and the
other half pertaining to the deceased shall pass by, intestate succession, to his legal heirs,
namely, his children with Susan Nicdao.

In affirming the decision of the trial court, the Court of Appeals relied on the case of Vda. de
Consuegra v. Government Service Insurance System, 20 where the Court awarded one-half of the
retirement benefits of the deceased to the first wife and the other half, to the second wife, holding
that:
“... [S]ince the defendant’s first marriage has not been dissolved or declared void the conjugal
partnership established by that marriage has not ceased. Nor has the first wife lost or
relinquished her status as putative heir of her husband under the new Civil Code, entitled to
share in his estate upon his death should she survive him. Consequently, whether as conjugal
partner in a still subsisting marriage or as such putative heir she has an interest in the husband’s
share in the property here in dispute....” And with respect to the right of the second wife, this
Court observed that although the second marriage can be presumed to be void ab initio as it was
celebrated while the first marriage was still subsisting, still there is need for judicial declaration of
such nullity. And inasmuch as the conjugal partnership formed by the second marriage was
dissolved before judicial declaration of its nullity, “[t]he only just and equitable solution in this
case would be to recognize the right of the second wife to her share of one-half in the property
acquired by her and her husband, and consider the other half as pertaining to the conjugal
partnership of the first marriage.” 21

It should be stressed, however, that the aforecited decision is premised on the rule which
requires a prior and separate judicial declaration of nullity of marriage. This is the reason why in
the said case, the Court determined the rights of the parties in accordance with their existing
property regime.

In Domingo v. Court of Appeals, 22 however, the Court, construing Article 40 of the Family Code,
clarified that a prior and separate declaration of nullity of a marriage is an all important condition
precedent only for purposes of remarriage. That is, if a party who is previously married wishes to
contract a second marriage, he or she has to obtain first a judicial decree declaring the first
marriage void, before he or she could contract said second marriage, otherwise the second
marriage would be void. The same rule applies even if the first marriage is patently void because
the parties are not free to determine for themselves the validity or invalidity or their marriage.
However, for purposes other than to remarry, like for filing a case for collection of sum of money
anchored on a marriage claimed to be valid, no prior and separate judicial declaration of nullity is
necessary. All that a party has to do is to present evidence, testimonial or documentary, that
would prove that the marriage from which his or her rights flow is in fact valid. Thereupon, the
court, if material to the determination of the issues before it, will rule on the status of the marriage
involved and proceed to determine the rights of the parties in accordance with the applicable
laws and jurisprudence. Thus, in Niñal v. Bayadog, 23 the Court explained:

[T]he court may pass upon the validity of marriage even in a suit not directly instituted to question
the same so long as it is essential to the determination of the case. This is without prejudice to
any issue that may arise in the case. When such need arises, a final judgment of declaration of
nullity is necessary even if the purpose is other than to remarry. The clause “on the basis of a
final judgment declaring such previous marriage void” in Article 40 of the Family Code connoted
that such final judgment need not be obtained only for purpose of remarriage.

WHEREFORE, the petition is GRANTED, and the decision of the Court of Appeals in CA-G.R.
CV No. 51263 which affirmed the decision of the Regional Trial Court of Quezon City ordering
petitioner to pay respondent the sum of P73,000.00 plus attorney’s fees in the amount of
P5,000.00, is REVERSED and SET ASIDE. The complaint in Civil Case No. Q-93-18632, is
hereby DISMISSED. No pronouncement as to costs. 1âwphi1.nêt

SO ORDERED.