G.R. No. L-23214. June 30, 1970
OFELIA GOMEZ, AS ADMINISTRATRIX OF THE ESTATE OF THE LATE ISIDRA GOMEZ Y AQUINO, PLAINTIFF-APPELLEE, VS. JOAQUIN P. LIPANA, DEFENDANT-APPELLANT.
MAKALINTAL, J.:
The defendant-appellant, Joaquin P. Lipana,
contracted two marriages: the first with
Maria Loreto Ancino in 1930 and the second with Isidra Gomez y Aquino in
1935. At the time of the second marriage
the first was still subsisting, which fact, however, Lipana
concealed from the second wife.
On December 17, 1943
the spouses of the second marriage acquired by purchase a piece of land in Cubao, Quezon
City, for the price of P3,000.00. The Torrens title for
the property (Transfer Certificate No. 25289 of the Register of Deeds for Quezon City) was issued on February 1, 1944, in the name of
“Joaquin Lipana married to Isidra
Gomez.”
On July 20, 1958
Isidra Gomez died intestate and childless, and
survived only by her sisters as the nearest relatives. On August
7, 1961 Ofelia Gomez, judicial administratrix
of her estate, commenced the present suit, prayÂing for the forfeiture of the husband’s
share in the Cubao property in favor of the said
estate. Reliance is placed on Article
1417 of the old Civil Code, the Spanish text of which provides:
“La sociedad de gananciales
concluye al disolverse el matrimonio o al ser declarado nulo.
“El conjuge que por su
mala fe hubiere
sido causa de la nulidad, no tendra parte en los bienes
gananciales.”
The trial court, ruling that the second marriage was void ab initio and that
the husband was the one who gave cause for its nullity, applied the aforequoted provision and declared his interest in the
disputed property forfeited in favor of the estate of the deceased second wife.
In the present appeal by the defendant he attributes two errors
to the trial court: (1) in allowing a
collateral attack on the validity of the second
marriage and in holding it to be bigamous and void ab
initio; and (2) in holding that Article 1417
of the Spanish Civil Code is applicable in this case.
The first error has not been committed. The conÂtrolling statute is Act 3613 of the
Philippine Legislature, the Marriage Law which became effective on December 4, 1929 and was in force
when the two marriages were celebrated.
The pertinent provisions are as follows:
“SEC. 29. Illegal Marriages.-
Any marriage subsequently contracted by any person during the lifetime of the
first spouse of such person with any person other than such first spouse shall
be illegal and void from its performance, unless:
(a) The first marriage was annulled or dissolved;
(b) The first spouse had been absent for seven consecutive years at
the time of the second marriage without the spouse present having news of the
absentee being alive, or the absentee being generally considered as dead and
believed to be so by the spouse present at the time of contracting such
subsequent marriage, the marriage so contracted being valid in either case
until declared null and void by a competent court.
“SEC. 30. Annullable marriages.-
A marriage may be annulled for any of the following causes, existing at the
time of the marriage:
x x x x x x x x x
(b) That the former husband or wife of either was living and the
marriage with such former husband or wife was then in force;
x x x x x x x x x
SEC. 31.
Time for filing action for decree of nullity. – The action to obtain a decree of nullity of
marriage, for causes mentioned in the preceding section, must be commenced
within the periods and by the parties as follows:
x x x x
x x x x x
(b) For causes mentioned in subÂdivision (b): by either party during the life of the other,
or by the former husband or wife.
x x x x x x x x x
The appellant, relying on Section 30(b) quoted above, maintains
that his marriage to Isidra Gomez was valid and could
be annulled only in an action for that purpose, which in the light of Section
31 could be filed only by either party thereto, during the lifetime of the
other, or by the former spouse.
However, it is not Section 30 but Section 29 which governs in
this case, particularly the first paragraph thereof, which says that “any
marriage contracted by any person during the lifetime of the first spouse of
such person with any person other than such first spouse shall be illegal and
void from its performance.” This is the general rule, to which the only
two exceptions are those mentioned in sub-sections (a) and (b) of the same
provision.
There is no suggestion here that the defendant’s 1930 marriage to
Maria Loreto Ancino had been annulled or dissolved
when he married Isidra Gomez in 1935, and there is no
proof that he did so under the conditions envisioned in sub-section (b). The burden is on the party invoking the
exception to prove that he comes under it; and the defendant has not discharged
that burden at all, no eviÂdence whatsoever having been adduced by him at the
trial. Indeed, he contracted the second
marriage less than seven years after the first, and he has not shown that his
first wife was then generally considered dead or was believed by him to be so.
The second error bears closer analysis. Is Article 1417 of the Spanish Civil Code
applicable under the facts of this case?
There is one primordial fact which must be conÂsidered, namely,
that since 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, even if it was acquired during
the second marriage, of which interest she would be deprived if his share
should be declared forfeited in favor of the second wife.
There is a difference of opinion among the members of this Court
as to whether such resulting prejudice to the first wife is within the
contemplation of the Spanish Civil Code when it decrees in general terms in
Article 1417 that the spouse who in bad faith has given cause for nullity (of
the marriage) shall have no share in the conjugal properties, considering that
in the present case the first marriage has not been terminated and therefore
likewise impresses the conjugal stamp of that marriage upon whatever properties
are acquired during its existence. We
believe, however, that it is not necessary to resolve that question here
inasmuch as the facts do not call for the application of Article 1417. The first paragraph of this Article states
two causes for the termination of the conjugal partnership: (1) dissolution of the marriage and (2)
declaration of nullity. Under the second
paragraph of the same Article it is upon the terminaÂtion of the partnership by
either of said causes that the forfeiture of the share of the guilty spouse
takes place. Now then, when did the
conjugal partnership formed by virtue of the marriage of the defendant to the
deceased Isidra Gomez terminate? Obviously when the marriage was dissolved by
the latter’s death in 1958. By that time
Article 1417 was no longer in force, having been eliminated in the new Civil
Code, which took effect in 1950. The
legal situation arising from these facts is that while insofar as the second
wife was concerned, she having acted in good faith, her marriage proÂduced
civil effects and gave rise, just the same, to the formation of a conjugal
partnership wherein she was entitled to an equal share upon dissolution,[1]
no action lies under Article 1417 for the forfeiture of the husband’s share in
her favor, much less in favor of her estate, with respect to which there are
after all no children, but only collateral relatives, who are entitled to
succeed.
It would not do to say that since the second marriage in this
case was void ab initio
the application of Article 1417 should be reckoned as of the date it was
celebrated in 1935. This article speaks
from the moment of the terminaÂtion of the conjugal partnership (either by the
dissolution of the marriage or by the declaration of its nullity); and it would
be self-contradictory to consider that the conjugal partnership was formed and
terminated at the same time and by the same act, that is, by the celebration
itself of the marriage. Colin y Capitant[2]
comments on this provision as follows:
“Disuelven matrimonio y, por tanto, la sociedad de gananciales, la muerte de uno de los conjuges
y la declaracion de nulidad.”
x x x
“En caso de declaracion de nulidad, la sociedad de gananciales se extingue al ser declarado nulo el matrimonio, es decir, en el momento en que sea firme la sentencia declarativa de la nulidad.”
It may thus be seen 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. In the instant case, however,
the conjugal partnership formed by the second marriage was dissolved by the
death of the second wife; and there has been no judicial declaration of nullity
except possibly in this very action, filed after dissolution by death had taken
place and when Article 1417 of the Spanish Civil Code was no longer in force.
There is, to be sure, a statement of Manresa[3]
that in case of nullity it is presumed, with respect to the spouse who acted in
bad faith, that neither the marriage nor the conjugal partnership ever existed,
and hence such spouse has no right to a share in the conjugal properties; but
this legal effect of such presumption derives from the premise that Article
1417 is still in force, and in any event is of doubtful application if it would
be in derogation of and to the prejudice of the right of the other spouse of
the first marriage in the conjugal partnership formed thereby, which includes
properties acquired by the husband during its existence.
The 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.
Wherefore,
the decision appealed from is reversed, and the complaint is dismissed, without
pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Castro,
Fernando, Teehankee, Barredo,
and Villamor, JJ., concur.
[1] Colin Capitant, Curso
Elemental de Derecho Civil, Tomo
60, Tercera Edicion, pag. 364; FranÂcisco vs.
Jason, 60 Phil. 442; Lao vs. Dee Tim, 45 Phil. 739, 745.
[2] Id., pag. 362, 363.
[3] Tomo 9, Cuarta Edicion, pag. 580.