PERSONS and FAMILY RELATIONS

Effects of Annulment Support and custody during the pendency of action Application of arts 43.2, 43.3, 43.4, 43.5 and 44 to

marriages declared void ab initio or annulled under arts 40 and 50

Delivery of presumptive legitimes Recording requirement Effects on children Name and surname

LEGAL SEPARATION cases

groundsgandionco vs penaranda 155 scra 725dela cruz v dela cruz 22 scra 333partosa-jo v ca 216 scra 692us v mcmann 4 phil 565lapuz sy v eufemio 43 scra 177

defensespeople v sansano 59 phil 73ocampo v florenciano 107 phil 35brown v yambao 109 phil 168bugayong v ginez 100 phil 620matubis v praxedes 109 phil 620samosa-ramos v. vamenta, supracontreras vs macaraig, supra

effects of filingdela vina v villareal 41 phil 13reyes v ines-luciano 88 scra 803lapuz sy vs eufemio, supra

effects of decreematute v macadalo 99 scra 340laperal c republic 6 scra 357banez v banez gr 132592 and gr 133628 January 23, 2002macadangdang v ca 108 scra 314

GROUNDS:

GANDIONCO VS. PENARANDA[155 SCRA 725]

FACTS:Private respondent, Teresita Gandionco, filed a complaint against herein petitioner, Froilan Gandionco for legal separation on the ground of concubinage as a civil case.  Teresita also filed a criminal complaint of concubinage against her husband.  She likewise filed an application for the provisional remedy of support pendent elite which was approved and ordered by the respondent judge.  Petitioner moved to suspend the action for legal separation and the incidents consequent thereto such as the support for pendent elite, in view of the criminal case for concubinage filed against him.  He contends that the civil action for legal separation is inextricably tied with the criminal action thus, all proceedings related to legal separation will have to be suspended and await the conviction or acquittal of the criminal case.

ISSUE:Whether or not a civil case for legal separation can proceed pending the resolution of the criminal case for concubinage.

HELD:Supreme Court ruled that the contentions of the petitioner were incorrect.  A civil action for legal separation on the ground of concubinage may proceed ahead of, or simultaneously with, a criminal action for concubinage, because said civil action is not one to enforce the civil liability arising from the offense, even if both the civil and criminal actions arise from or are related to the same offense.  Such civil action is one intended to obtain the right to live separately, with the legal consequences thereof including the dissolution of the conjugal partnership of gains, custody of the children, support and disqualifications from inheriting from the innocent spouse.  Decree of legal separation may be issued upon proof by preponderance of evidence, where no criminal proceeding or conviction is necessary.

Furthermore, the support pendente lite, as a remedy, can be availed of in an action for legal separation, and granted at the discretion of the judge.   If in case, the petitioner finds the amount of support pendente lite ordered as too onerous, he can always file a motion to modify or reduce the same.

DELA CRUZ vs. DE LA CRUZ [22 SCRA 333]

PARTOSA – JO vs. CA

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US vs. McMann[4 PHIL 565]

The defendant, McMann, and one McKay were packers at Camp Vicars in Mindanao, employed by the Quartermaster's Department of the Army. On the day in question the defendant had charge of some mules about one and one half miles from the camp. McKay was not on guard at the time, but, for some reason which does not appear, was near the place where the defendant was stationed with the mules. McKay went to the house of a Moro, Amay Pindolonan, for

the purpose of getting matches with which to light his cigar. With his revolver in his hand he attempted to enter the house, but the owner would not allow him to do so. A few moments later the defendant arrived at the same house. He attempted to enter, but was unable to do so on account of the opposition of the owner. He also carried his revolver in his hand with the hammer raised ready to be discharged. A Moro named Master, who was there at the time, was carving the head of a bolo with one hand, holding the blade in the other. The defendant snatched the bolo from him, cutting his fingers. This Moro left for the camp to report the matter to the authorities. Soon after this McKay and the Moro Pindolonan, being seated side by side at a distance of from 3 to 6 feet from the defendant, who was either standing or sitting on the stairway which led into the house, the latter raised his pistol and fired at McKay. The bullet struck him in

the back of the head and killed him instantly. The Moro at once jumped up, looked around to see where the shot came from, and started to run, whereupon the defendant shot him. The exact nature of his injuries does not appear,, but it appears that at the time of the trial, about a month after the event, he was still in the hospital. At some time, probably after the killing of McKay, although the defendant says it was before, the latter killed a dog which was on the premises. The defendant and McKay were both drunk at this time.

That the defendant fired the shot which killed McKay is practically admitted by him in his testimony and the fact is also proved by three or four eyewitnesses. It is accidental and that he had no intention of killing McKay. In the face of the positive testimony of the witnesses there is no ground for saying that the shooting was accidental. Two of the Moros testified that they saw him discharge his revolver at McKay. In view of the fact that McKay and the Moro were sitting side by side, it may perhaps have been difficult for the witnesses to have known at which one of the two the defendant aimed, but their testimony makes it plain that in no event was the discharge of the revolver accidental.

As to the second claim of the defendant that he had no intention of killing McKay, the only evidence in support of it is the proof that the defendant and McKay were good friends prior to the occurrence and that no reason is shown why he should have committed such an act. It may be difficult to state what the exact cause was. It appears from the testimony that while they were in the position above stated the defendant was talking to McKay, but McKay said nothing in reply. The cause for the commission of the crime might be found perhaps in this conversation, if we knew what it was. Or perhaps the defendant killed McKay because he, the defendant, was drunk. But whatever the cause may have been it is not absolutely necessary for us to find a motive therefor. The question of motive is of course very important in cases where there is doubt as to whether the defendant is or is not the person who committed the act, but in this case, where it is proved beyond all doubt that the defendant was the one who caused the death of McKay, it is not so important to know the exact reason for the deed.

The defendant also claims that the court below erred in holding that the crime was committed with alevosia. The judge below based his holding upon the fact that McKay was shot from behind. The authorities cited by the defendant from the supreme court of Spain may be divided into two classes. One class includes cases in which the evidence did not show by eyewitnesses the exact way in which the crime was committed. The court held that under these circumstances alevosia could not be presumed from the condition in which the body was found or from proof that the shot must have come from behind. These cases have no application to the case at bar, for here the proof shows exactly how the offense was committed. The second class of cases includes those in which, after a struggle has commenced between the parties on one side and on the other, and after each side is notified of the intention of the other side to do them injury, a member of one party is killed by a member from the other by a blow from behind. These cases have no application to the case at bar, for here before

any struggle between McKay and McMann had commenced, or before there was any indication, so far as the evidence goes, of any trouble between them, and without any warning, the defendant shot McKay in the back of the head.

We do not understand that the defendant claims that he intended to shoot the Moro when he killed McKay, but even if this claim were made and supported, we do not see how it could change the result in view of the fact that McKay was shot from behind without any warning and with no intimation that an attack was to be made upon him or the Moro. What the rule would be had McKay been facing McMann when the latter fired at the back of the Moro, we do not, therefore, have to decide.

The court below held that the defendant was drunk at the time the act was committed, but held also that drunkenness was habitual with him and therefore his condition could not be taken into consideration for the purpose of lessening the sentence. The defendant in this court claims that the court erred in holding that drunkenness was habitual with the defendant. The testimony upon that point furnished by one of the witnesses for the defendant is as follows:

Q.       Did you say that you saws the accused and McKay drinking together on the night before the day of the occurrence? —

A.       Yes, sir.

Q.       Is it not true that the said night was the first time you saw the accused drinking? —

A.       No, sir. It is not true. I have seen him drink before.

Q.       But you never saw him drunk before? —

A.       Yes, sir.

Q.       How many times had you seen the accused drunk before? —

A.       That is a difficult question to answer; I have seen him drunk many times. The first time I knew the accused I saw him drunk twelve or more times.

Q.       Then you mean to say that drunkenness was habitual with the accused? —

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A.       When I have seen him drinking, usually he retired drunk to the quarters.

Q.       How many times have you seen the accused drinking during the time you have known him? —

A.       I could not say; too may times to recollect.

Q.       Are you sure of this? —

A.       Yes, sir.

We think this testimony justifies the court below in its holding in view of what is said in some of the decisions cited by the defendant in his brief. In the case of Commonwealth vs. Whitney (5 Gray; 85) the court said:

The exact degree of intemperance which constitutes a drunkard it may not be easy to define, but speaking in general terms, and with the accuracy of which the matter is susceptible, he is a drunkard whose habit is to get drunk, "whose ebriety has become habitual." To convict a man of the offense of being a common drunkard it is, at the least, necessary to show that he is an habitual drunkard. Indeed the terms 'drunkard' and 'habitual drunkard' mean the same thing.

In the case of Ludwick vs. Commonwealth (18 Penn. St., 172) the court said:

A man may be an habitual drunkard, and yet be sober for days and weeks together. The only rule is, Has he a fixed habit of drunkenness? Was he habituated to intemperance whenever the opportunity offered?

The judgment of the court below is affirmed with the costs of

this instance against the defendant.

LAPUZ - SY vs. EUFEMIO[43 SCRA 177]

FACTS:Carmen Lapuz-Sy filed a petition for legal separation against Eufemio Eufemio on August 1953.  They were married civilly on September 21, 1934 and canonically after nine days.  They had lived together as husband and wife continuously without any children until 1943 when her husband

abandoned her.  They acquired properties during their marriage.  Petitioner then discovered that her husband cohabited with a Chinese woman named Go Hiok on or about 1949.  She prayed for the issuance of a decree of legal separation, which among others, would order that the defendant Eufemio should be deprived of his share of the conjugal partnership profits. 

Eufemio counterclaimed for the declaration of nullity of his marriage with Lapuz-Sy on the ground of his prior and subsisting marriage with Go Hiok.  Trial proceeded and the parties adduced their respective evidence.  However, before the trial could be completed, respondent already scheduled to present surrebuttal evidence, petitioner died in a vehicular accident on May 1969.  Her counsel duly notified the court of her death.  Eufemio moved to dismiss the petition for legal separation on June 1969 on the grounds that the said petition was filed beyond the one-year period provided in Article 102 of the Civil Code and that the death of Carmen abated the action for legal separation.  Petitioner’s counsel moved to substitute the deceased Carmen by her father, Macario Lapuz. 

ISSUE:Whether or not the death of the plaintiff, before final decree in an action for legal separation, abate the action and will it also apply if the action involved property rights.

HELD:An action for legal separation is abated by the death of the plaintiff, even if property rights are involved. These rights are mere effects of decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn.

The petition of  Eufemio for declaration of nullity is moot and academic and there could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union.  Any property rights acquired by either party as a result of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant.

DEFENSES:

PEOPLE vs. SANSANO[58 PHIL 73]

Filipina Wife No Longer Guilty of Adultery

Case: People vs Sansano and Ramos 59 Phil. 73

Facts of the Case: A and B, husband and wife, respectively, were legally married. Later, B abandoned A. B Lived with C. A did nothing to interfere with the relations of his wife and her paramour. He event went to Hawaii, completely abandoning his wife B for more than seven years. Later, A returned and charged B and C with adultery.

Issue: Is B guilty of adultery?

Decision of the Supreme Court: B should be acquitted because A's conduct warranted the inference that in truth, as well as in fact, he had consented to the philandering of his wife.

OCAMPO vs. FLORENCIANO[107 PHIL 35]

FACTS:Jose de Ocampo and Serafina Florenciano were married in 1938.  They begot several children who are not living with plaintiff.  In March 1951, latter discovered on several occasions that his wife was betraying his trust by maintaining illicit relations with Jose Arcalas.  Having found out, he sent the wife to Manila in June 1951 to study beauty culture where she stayed for one year.  Again plaintiff discovered that the wife was going out with several other man other than Arcalas.  In 1952, when the wife finished her studies, she left plaintiff and since then they had lived separately.  In June 1955, plaintiff surprised his wife in the act of having illicit relations with Nelson Orzame.  He signified his intention of filing a petition for legal separation to which defendant manifested conformity provided she is not charged with adultery in a criminal action.  Accordingly, Ocampo filed a petition for legal separation in 1955.

ISSUE:Whether the confession made by Florenciano constitutes the confession of judgment disallowed by the Family Code.

HELD:Florenciano’s admission to the investigating fiscal that she committed adultery, in the existence of evidence of adultery other than such confession, is not the confession of judgment disallowed by Article 48 of the Family Code.  What is prohibited is a confession of judgment, a confession done in court or through a pleading.  Where there is evidence of the adultery independent of the defendant’s statement agreeing to the legal separation, the decree of separation should be granted since it would not be based on the confession but upon the evidence presented by the plaintiff.  What the law prohibits is a judgment based exclusively on defendant’s confession.  The petition should be granted based on the second adultery, which has not yet prescribed.

BROWN vs. YAMBAO[109 PHIL 168]

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On July 14, 1955, William H. Brown filed suit in the Court of First Instance of Manila to obtain legal separation from his lawful wife Juanita Yambao. He alleged under oath that while interned by the Japanese invaders, from 1942 to 1945, at the University of Sto. Tomas internment camp, his wife engaged in adulterous relations with one Carlos Field of whom she begot a baby girl that Brown learned of his wifes misconduct only in 1945, upon his release from internment; that thereafter the spouse lived separately and later executed a document (Annex A ) liquidating their conjugal partnership and assigning certain properties to the erring wife as her share. The complaint prayed for confirmation of the liquidation agreement; for custody of the children issued of the marriage; that the defendant be declared disqualified to succeed the plaintiff; and for their remedy as might be just and equitable.

Upon petition of the plaintiff, the court subsequently declared the wife in default, for failure to answer in due time, despite service of summons; and directed the City Fiscal or his representatives to—

investigate, in accordance with Article 101 of the Civil Code, whether or not a collusion exists between the parties and to report to this Court the result of his investigation within fifteen (15) days from receipt of copy of this order. The City Fiscal or his representative is also directed to intervene in the case in behalf of the State. (Rec. App. p. 9).

As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and cross-examined plaintiff Brown. His questions (strenuously objected to by Brown's counsel) elicited the fact that after liberation, Brown had lived maritally with another woman and had begotten children by her. Thereafter, the court rendered judgment denying the legal separation asked, on the ground that, while the wife's adultery was established, Brown had incurred in a misconduct of similar nature that barred his right of action under Article 100 of the new Civil Code, providing:

ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no condonation or of consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.

that there had been consent and connivance, and because Brown's action had prescribed under Article 102 of the same Code:

ART. 102 An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of

the cause and within five years from and after date when such cause occurred.

since the evidence showed that the learned of his wife's infidelity in 1945 but only filed action in 1945.

Brown appeared to this Court, assigning the following errors:

The court erred in permitting the Assistant Fiscal Rafel Jose of Manila to act as counsel for the defendant, who defaulted.

The court erred in declaring that there was condonation of or consent to the adultery.

The court erred in dismissing the plaintiff's complaint.

Appellant Brown argues that in cross-examining him with regard to his marital relation with Lilia Deito, who was not his wife, the Assistant Fiscal acted as consel for the defaulting wife, "when the power of the prosecuting officer is limited to finding out whether or not there is collusion, and if there is no collusion, which is the fact in the case at bar, to intervene for the state which is not the fact in the instant case, the truth of the matter being that he intervened for Juanita Yambao, the defendant-appellee, who is private citizen and who is far from being the state.".

The argument is untenable. Collusion in matrimonial cases being "the act of married persons in procuring a divorce by mutual consent, whether by preconcerted commission by one of a matrimonial offense, or by failure, in pursuance of agreement to defend divorce proceedings" (Cyclopedia Law Dictionary; Nelson, Divorce and Separation, Section 500), it was legitimate for the Fiscal to bring to light any circumstances that could give rise to the inference that the wife's default was calculated, or agreed upon, to enable appellant to obtain the decree of legal separation that he sought without regard to the legal merits of his case. One such circumstance is obviously the fact of Brown's cohabitation with a woman other than his wife, since it bars him from claiming legal separation by express provision of Article 100 of the new Civil Code. Wherefore, such evidence of such misconduct, were proper subject of inquiry as they may justifiably be considered circumstantial evidence of collusion between the spouses.

The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in case of uncontested proceedings for legal separation (and of annulment of marriages, under Article 88), is to emphasize that marriage is more than a mere contract; that it is a social institution in which the state is vitally interested, so that its continuation or interruption cannot be made depend upon the parties themselves (Civil Code, Article 52; Adong vs, Cheong Gee, 43 Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos, 35 Phil. 252). It is consonant with this policy that

the injury by the Fiscal should be allowed to focus upon any relevant matter that may indicate whether the proceedings for separation or annulment are fully justified or not.

The court below also found, and correctly held that the appellant's action was already barred, because Brown did not petition for legal separation proceedings until ten years after he learned of his wife's adultery, which was upon his release from internment in 1945. Under Article 102 of the new Civil Code, action for legal separation can not be filed except within one (1) year from and after the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. Appellant's brief does not even contest the correctness of such findings and conclusion.

It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can take cognizance thereof, because actions seeking a decree of legal separation, or annulment of marriage, involve public interest and it is the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record.

Hence, there being at least two well established statutory grounds for denying the remedy sought (commission of similar offense by petitioner and prescription of the action), it becomes unnecesary to delve further into the case and ascertain if Brown's inaction for ten years also evidences condonation or connivance on his part. Even if it did not, his situation would not be improved. It is thus needless to discuss the second assignment of error.

The third assignment of error being a mere consequence of the others must necessarily fail with them.

The decision appealed from is affirmed, with costs against appellant. So ordered.

BUGAYONG vs. GINEZ[100 PHIL 620]

FACTS:

Benjamin Bugayong, a serviceman in the US Navy was married with Leonila Ginez on August 1949 at Pangasinan while on furlough leave.  Immediately after the marriage, they lived with the sisters of Bugayong in said municipality before he went back to duty.  The couple came to an agreement that Ginez would stay with his sisters who later moved in Manila.  On or about July 1951, she left the

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dwelling of the sisters-in-law and informed her husband by letter that she had gone to Pangasinan to reside with her mother and later on moved to Dagupan to study in a local college.

Petitioner then began receiving letters from Valeriana Polangco, (plaintiff’s sister-in-law) and some from anonymous writers, which were not produced at the hearing, informing him of alleged acts of infidelity of his wife.  He admitted that his wife informed him by letter that a certain Eliong kissed her.  All these communications, prompted him in October 1951 to seek the advice of the Navy Chaplain who asked him to consult with the navy legal department.

In August 1952, Bugayong went to Pangasinan and looked for his wife.  They met in the house of the defendant’s godmother.  They proceeded to the house of Pedro, cousin of the plaintiff where they stayed for 1 day and 1 night as husband and wife.  The next day, they slept together in their own house.  He tried to verify with Leonila the truth on the information he received but instead of answering, she merely packed up and left which he took as a confirmation of the acts of infidelity.  He then filed a complaint for legal separation.

ISSUE: Whether or not there was condonation between Bugayong and Ginez that may serve as a ground for dismissal of the action.

HELD:

Condonation is the forgiveness of a marital offense constituting a ground for legal separation.   A single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation and where the parties live in the same house, it is presumed that they live on terms of matrimonial cohabitation. 

Furthermore, Art. 100 of the Civil Code states that the legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the

adultery or concubinage.

MATUBIS vs. PRAXEDES[109 PHIL 620]

Plaintiff Socorro Matubis, filed with the Court of First Instance of Camarines Sur, on April 24, 1956, a complaint for legal Separation and changed of surname against her husband defendant Zoilo Praxedes. The Court dismissed the suit based on Art. 102 of the new Civil Code and Article 100 of the new Civil Code. An appeal is hereby made to review the decision.

FACTS:

Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines Sur. The couple, on May 30, 1944, agreed to live separately from each other, which status remained unchanged until the present. On April 3, 1948, plaintiff and defendant entered into an agreement (Exhibit B) stating that both of them will relinquish their right over the other as legal husband and wife, that both cannot prosecute the other for adultery or concubinage or any other crime or suit arising from the separation, that both are no longer entitled for any support from the other, and that neither of them can claim anything from the other from the time they verbally separated.

In January, 1955, defendant began cohabiting with one Asuncion Rebulado and on September 1, 1955, said Asuncion gave birth to a child who was recorded as the child of said defendant (Exh. C.).It was shown also that defendant and Asuncion deported themselves as husband and wife and were generally reputed as such in the community.

ISSUES:

1. Whether or not the action had not yet prescribed.2. Whether or not there was consent on the part of

the plaintiff to the concubinage.

 ANSWER: 

1. No. An action for legal separation had already prescribed as provided for under Article 201 of the new Civil Code.

2. Yes. The written agreement between them is an unbridled license she gave her husband to commit concubinage. Having consented to the concubinage, the plaintiff cannot claim legal separation.

 Reasoning:

1. Under Art. 102 of the new Civil Code, an action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when the cause occurred. The plaintiff became aware of the illegal cohabitation of her husband with Asuncion Rebulado in January, 1955. The complaint was filed on April 24, 1956. The present action was, therefore, filed out of time and for that reason action is barred.

2. Article 100 of the new Civil Code provides that the legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. As shown in Exhibit B, the plaintiff has consented to the commission of concubinage by her husband. The condonation and consent here are not only implied but expressed. Having condoned and/or consented in writing, the plaintiff

is now undeserving of the court’s sympathy (People vs. Scheneckenburger, 73 Phil., 413).

HELD:

 We find that the decision appealed from is in accordance with the evidence and the law on the matter. The same is hereby affirmed, with costs.

SAMOSA RAMOS vs. VAMENTA

CONTRERAS vs. MACARAIG

EFFECTS OF FILING:

DELA VINA vs. VILLAREAL[41 PHIL 13]

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