ROBERTO DOMINGO, PETITIONER, VS. COURT OF APPEALS AND DELIA SOLEDAD AVERA REPRESENTED BY HER ATTORNEY-IN-FACT MOISES R. AVERA, RESPONDENTS.

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. GSIS^[2] 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 Appeals^[3]
dismissed the petition. It explained
that the case of Yap v. CA^[4] 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. Aragon^[6]
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 void 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. x x x”^[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
to 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, which 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 judicial 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 socially 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 that 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] (Underscoring 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. x x x                                                            x
x x                                                     x
x x

(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.

Bidin and Melo, JJ., concur.

Vitug, J., see concurring
opinion.

Feliciano, J., (Chairman), on
official leave.

^[1]
Annex “C,” Rollo, pp. 28-29.

^[2]
L-28093, January 30, 1971, 37 SCRA 315.

^[3]
Annex “J,” Rollo, pp. 62-67, Justice Jorge S. Imperial, ponente
and Justices Luis A. Javellana and Serafin V.C. Guingona, concurring.

^[4]
L-40003, October 28, 1986, 145 SCRA 229.

^[5]
Annex “M,” Rollo, p.
80.

^[6]
100 Phil. 1033 (1957).

^[7]
95 Phil. 845 (1954).

^[8]
CIVIL CODE, art. 80, par. 4; FAMILY CODE, arts. 35, par. 4 and 41.

^[9]
Rollo, pp. 102 and 106.

^[10]
See: Note 6 at p. 1036; Note 7 at p.
848.

^[11]
L-23214, June 30, 1970, 33 SCRA 615, 620-621.

^[12]
L-43905, May 30, 1983, 122 SCRA 525.

^[13]
G.R. No. 53703, August 19, 1986, 143 SCRA 499.

^[14]
FAMILY CODE, art. 39.

^[15]
Id., art. 40. See also: arts. 11, 13, 42, 44, 48, 50, 52, 54, 86,
99, 147, 148.

^[16]
The Family Law Revision Committee of the Integrated Bar of the Philippines
(IBP) prepared the draft of the revision of Book I of the Civil Code of the
Philippines. After more than four
years, the draft was turned over to the Civil Code Revision Committee of the UP
Law Center which reviewed and revised the same for more than three years.

^[17]
August 23, 1986, pp. 4-7.

^[18]
J. A.V. SEMPIO-DIY, HANDBOOK OF THE FAMILY CODE OF THE PHILIPPINES, 46
(1988).

^[19]
Adm. Case No. 2349, July 3, 1992, 211 SCRA 6, 11.

^[20]
CONST., art. XV, sec. 2.

^[21]
FAMILY CODE, art. 1.

^[22]
id.

^[23]
id., art. 11.

^[24]
See: Note 17, at p. 7.

^[25]
Art. 50 (2).

^[26]
In relation to Art. 50 (1) – The effects provided for in paragraphs (2), (3),
(4) and (5) of Article 43 and in Article 44 shall also apply in proper cases to
marriages which are declared void ab initio or annulled by final
judgment under Articles 40 and 45.

6 pt
6 pt
0
3