INTESTATE ESTATE OF THE DECEASED BENITO MARCELO. EMILIA FRANCISCO AND LUCILA MARCELO, PETITIONERS AND APPELLANTS, VS. ANTONINA JASON, RENATO MARCELO, BENITO MARCELO AND CECILIA …

This is an appeal taken by the claimants
Emilia Francisco and Lucila Marcelo from the order of the Court of
First Instance of Palawan, the dispositive part of which reads as
follows:

“Wherefore, the petition of Emilia Francisco
and her daughter Lucila is denied and the widow Antonina Jason and her
children Renato, Benito and Cecilia, all surnamed Marcelo, are declared
heirs of the deceased Benito Marcelo. So ordered.”

In support of their appeal the appellants assign fourteen alleged
errors as committed by the trial court in its said order, which will be
discussed in the course of this decision.

The pertinent facts which are necessary for the resolution of the
questions raised in this appeal, some of which have been admitted by
the parties and the others proven by a preponderance of the evidence,
are as follows:

On September 16,1896, Benito Marcelo and Emilia Francisco
contracted a canonical marriage before the Reverend Father Jose Ibanez,
then parish priest of Puerto Princesa, Palawan. In view of said
marriage, said spouses lived together until the month of January, 1897,
when Benito Marcelo was deported to Spain. On March 9, 1900, while said
Benito Marcelo was in exile, his wife Emilia Francisco gave birth to a
girl who, on October 6, 1901, was baptized in Puerto Princesa, Paragua
(now Palawan) and given the name of Lucila. (Exhibits I and I-1.) In
the month of December, 1902, Benito Marcelo returned for the first time
to Puerto Princesa from Spain. Having found his wife living with
another man in Iloilo, Iloilo, he returned to Puerto Princesa where, on
November 1, 1904, he filed a complaint against his wife praying for
“the corresponding divorce and the return to him of all the missing
property with its usufruct.” (Exhibit E.) On November 2, 1904, Emilia
Francisco answered the complaint denying the allegations relative to
the property contained therein, and praying, in turn, for a divorce
with acquittal of said charges. When the case was called for hearing,
the court, in the presence of both parties, proceeded to take the
evidence presented by them. After the taking of the evidence, the
plaintiff Benito Marcelo withdrew all the allegations regarding
property contained in his complaint and prayed that the case for
divorce alone be tried. The defendant Emilia Francisco having consented
to the motion, on November 3, 1904, the judge, in open court, entered
judgment the dispositive part of which reads as follows:

“Wherefore, the court orders and decrees that the
petition of said plaintiff Benito Marcelo for an absolute divorce from
his said wife Emilia Francisco be, and the same is hereby, granted; and
with regard to said plaintiff, the marriage is hereby annulled and set
aside and he is absolved and relieved from all obligations to said
Emilia Francisco as his wife, as if said marriage had never been
celebrated. The petition of said Emilia Francisco, or Emilia Marcelo,
for a divorce, is denied for the reason that she has not presented
sufficient grounds, and her cross-complaint contained in her answer is
hereby dismissed, with costs of this instance in favor of the plaintiff
Benito Marcelo and against said defendant Emilia Francisco.

“Given in public session this third day of November, 1904.”

On December 31, 1906, Benito Marcelo contracted a second marriage
with Antonina Jason, the herein oppositor and appellee, before the
justice of the peace of Arevalo, Iloilo, to whom he showed a copy of
said decree of divorce, after having shown it to said Antonina Jason.
The newlyweds moved to Puerto Princesa where they lived as husband and
wife until June 3, 1929, when Benito Marcelo died, leaving property
which had been acquired by him with the £id of Antonina Jason during
his second marriage with her.

The first question to be decided in this appeal is whether or not
the claimant Lucila Marcelo is a daughter of the deceased Benito
Marcelo.

It may be noted that said claimant Emilia Francisco
was canonically married to Benito Marcelo on September 16, 1896; that
both had lived together as husband and wife from their marriage until
the month of January, 1897, when Benito Marcelo was deported to Spain;
that on March 9, 1900, while her husband was in exile, Emilia Francisco
gave birth to a girl who, on October 6, 1901, was baptized in Puerto
Princesa, Paragua (now Palawan), and given the name of Lucila (Exhibits
I and I-1); that in December, 1902, Benito Marcelo returned for the
first time to Puerto Princesa from Spain.

From January, 1897, to December, 1902, about four years and eleven
months had elapsed. If Benito Marcelo was absent from the Philippines
during that period and the claimant Lucila Marcelo was born on March 9,
1900, that is, two years and two months after said Benito Marcelo had
left his wife Emilia Francisco for exile, said Lucila Marcelo could not
have been conceived during the four months when said spouses lived
together as husband and wife, and therefore, cannot be a daughter of
said Benito Marcelo.

The second question to be decided in this appeal is whether or not
the order of the Court of First Instance of Palawan, dated November 3,
1904, granting Benito Marcelo an absolute divorce from his wife, the
herein claimant Emilia Francisco, has dissolved the marriage contracted
by them.

In order that a judgment may be valid, not only must the court
rendering it have jurisdiction over the parties, but it must also have
jurisdiction to take cognizance of the subject matter of the litigation
and to grant the relief sought. The lack of jurisdiction over them
renders the judgment void and subject to collateral attack. (33 C. J.,
p. 1076.) Failure to appeal therefrom does not give it validity
inasmuch as neither tacit nor express consent of the parties confers
jurisdiction. (33 C. J., p. 1077.) In this case, although the Court of
First Instance of Palawan had jurisdiction to take cognizance of
complaints for divorce, such jurisdiction was limited to divorce “quoad thorum et mutuam habitationem”
for relative divorce, on the ground of adultery, because Law II, Title
X, Partida IV, which was the only divorce law then in force, did not
authorize divorce “quoad vinculum”, or absolute divorce. (Benedicto vs. De la Rama, 3 Phil., 34; 50 Law. ed., 765; Ibanez vs. Ortiz, 5 Phil, 325; Goitia vs. Campos Rueda, 35 Phil., 252; V. S. vs. Joanino, 27 Phil., 477; Del Prado vs. De la Fuente, 28 Phil., 23; De Jesus vs. Palma, 34 Phil, 483; Garcia Valdez vs.
Soterana Tuason, 40 Phil., 943.) The Court of First Instance of
Palawan, therefore, had no jurisdiction to grant an absolute divorce,
not only because it lacked jurisdiction to take cognizance thereof but
also because it was not specifically prayed for in the complaint.
Failure on the part of Emilia Francisco to appeal from said decree with
respect to said excess of jurisdiction and relief, did not give it
validity with regard to said excess because, as stated, jurisdiction is
conferred by law alone and cannot be conferred by the consent of the
parties.

Inasmuch as the Court of First Instance of Palawan had jurisdiction
to take cognizance of a case for relative divorce, and this form of
divorce is included within the decree of absolute divorce, said decree
is valid with respect to said form which may be separated from that of
absolute divorce. (I Black on Judgments, 2d. ed., sec. 261; I Freeman
on Judgments, 5th ed., par. 324.)

It is clear therefore that although the decree of divorce under
consideration is void in so far as it dissolves the marriage bond, it
is not so in so far as it only affects the separation from bed and
board and of property.

Having arrived at the conclusion that the decree of absolute
divorce granted by the Court of First Instance of Palawan is valid only
with regard to the separation of the spouses Benito Marcelo and Emilia
Francisco from bed and board and of their property, the question arises
whether or not the civil marriage contracted on December 31, 1906,
during the lifetime of Emilia Francisco, by said Benito Marcelo and the
herein oppositor-appellee Antonina Jason before the justice of the
peace of Arevalo, Iloilo, was valid.

Section III of General Orders, No. 68, which was in force in the
year 1906, provides that “a subsequent marriage contracted by any
person during the life of a former husband or wife of such person, with
any person other than such former husband or wife, is illegal and void
from the beginning, unless:

“1. The former marriage has been annulled or dissolved.”

Inasmuch as the bond of Benito Marcelo’s first marriage with the
herein claimant-appellant Emilia Francisco had not been dissolved, his
marriage with the oppositor-appellee Antonina Jason is illegal and void.

Now then, the civil marriage contracted by Benito Marcelo and
Antonina Jason being void from the beginning, what civil effects does
the declaration of nullity thereof produce?

Article 69 of the Civil Code provides as follows:

“ART. 69. A marriage contracted in good faith produces civil effects, although it may be declared void.

“If good faith existed on the part of only one of the spouses it shall
produce civil effects only with regard to such spouse and to the
children.

“Good faith is presumed if the contrary is not shown.

“When bad faith has existed on the part of both spouses, the marriage
shall produce civil effects only with relation to the children.”

It will be noted that the above legal provision establishes the
presumption of good faith on the part of all the contracting parties,
if the contrary is not shown. It is he who desires to prevent its
effects who must prove that good faith did not exist. For the good
faith to be perfect, it is necessary: (1) That the spouses celebrated
their marriage with the prescribed formalities; (2) that they were
ignorant of the defects that rendered it void; and (3) that their
ignorance is excusable. ([Law II, Title XV, Partida IV] IV Escriche,
page 49.)

In the case under consideration, the first requisite has been
complied with, that is, Benito Marcelo’s marriage with Antonina Jason
was celebrated with the formalities prescribed by law.

With regard to the second and third requisites, that is, that said
contracting parties were ignorant of the defect that rendered their
marriage void, or the existence of the first marriage, and that their
ignorance was excusable, the evidence shows that said contracting
parties as well as the justice of the peace, who married them, believed
that said first marriage had been dissolved by virtue of the decree of
absolute divorce. Although they should have known that absolute divorce
was then not permissible, however, inasmuch as the divorce law is not
eternal and immutable and the courts of justice are the government
agencies wherein the faculty of interpreting the private civil laws
reside; and their decisions, although binding only on the parties,
deserve to be respected, said contracting parties, in believing the
decree of divorce absolute, acted in good faith.

According to the above quoted article 69 of the Civil Code, a
marriage contracted in good faith, although it may be declared void,
produces civil effects, among them being the formation of the conjugal
partnership and the legitimacy of the children born during the same and
before it is declared void. Hence, from the time Benito Marcelo and
Antonina Jason were married on December 31, 1906, until June 3, 1929,
when the former died, all the property which both acquired by their
industry and at the expense of the common fund, the fruits of the
paraphernal property of either of them and those of the partnership
property, belong to said conjugal partnership. (Article 1401, Civil
Code.)

Let us now determine the effects of the decree of absolute divorce
in favor of Benito Marcelo and against his first wife Emilia Francisco
on the conjugal partnership formed by their marriage.

The undersigned is of the opinion that the decree of absolute
divorce, by itself alone, does not produce the separation of property
or the dissolution of the conjugal partnership, but it is necessary
that there be a judicial decree to that effect (article 1432, Civil
Code; 9 Manresa, page 782); and that the conjugal partnership formed by
the marriage of Benito Marcelo and Emilia Francisco continued until the
former’s death on June 3, 1929, when it was ipso facto
dissolved (article 1417, Civil Code), said Emilia Francisco being
entitled to the property of the conjugal partnership formed by her
marriage with Benito Marcelo, in the proportion prescribed by article
1431 of the Civil Code. The majority, however, do not agree with this
opinion and believe that Emilia Francisco is now estopped from claiming
the conjugal property on the ground that she let more than twenty-five
years elapse from the granting of the decree of divorce until the death
of her husband, and twenty-three years from the date on which he
contracted a second marriage.

In view of the foregoing considerations, we are of the opinion and
so hold: (1) That a decree of absolute divorce granted in 1904 does not
produce the effect of dissolving the marriage bond of the divorced
spouses but only that of separating them from bed and board, on the
ground that the court granted it without jurisdiction, it not being
sanctioned by the law then in force; (2) that the separation of
property, not having been decreed together with or independently of the
separation from bed and board, that separation did not take place, nor
was the conjugal partnership dissolved; and (3) that a second marriage
celebrated in view of a decree of absolute divorce, which had been
granted without jurisdiction and innocently presented during the
celebration of the marriage, is in good faith and produces civil
effects with regard to the wife and the children born prior to its
dissolution by the death of the husband, although it may be declared
void.

Wherefore, and finding no error in the order appealed from, the
same is affirmed in all its parts, with costs against the appellants.
So ordered.

Malcolm, Imperial, and Butte, JJ., concur.

Goddard, J., concurs in the result.