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

VILLA-REAL J.:


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
1-1.) 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 1-1); 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”, or 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; Ibaiiez 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 thai 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 twentythree 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 grantted 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.