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G.R. No. 104818 September 17, 1993

ROBERTO DOMINGO, petitioner,vs.COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her Attorney-in-FactMOISES R. AVERA, respondents.

TOPIC:Effects of final judgment of decalarung Nullity

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.

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall benull and void, unless before the celebration of the subsequent marriage, the prior spouse hadbeen absent for four consecutive years and the spouse present has a well-founded belief thatthe absent spouse was already dead. In case of disappearance where there is danger of deathunder the circumstances set forth in the provisions of Article 391 of theCivil Code,an absence

of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph thespouse present must institute a summary proceeding as provided in this Code for thedeclaration of presumptive death of the absentee, without prejudice to the effect ofreappearance of the absent spouse.

Art. 42. The subsequent marriage referred to in the preceding Article shall be automaticallyterminated by the recording of the affidavit of reappearance of the absent spouse, unless thereis a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil

registry of the residence of the parties to the subsequent marriage at the instance of anyinterested person, with due notice to the spouses of the subsequent marriage and withoutprejudice to the fact of reappearance being judicially determined in case such fact is disputed.(n)

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shallproduce the following effects:

(1) The children of the subsequent marriage conceived prior to its termination shall beconsidered legitimate;

(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 badfaith, his or her share of the net profits of the community property or conjugal partnershipproperty shall be forfeited in favor of the common children or, if there are none, thechildren of the guilty spouse by a previous marriage or in default of children, the innocentspouse;

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(3) Donations by reason of marriage shall remain valid, except that if the doneecontracted the marriage in bad faith, such donations made to said donee are revoked byoperation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted inbad faith as 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 bedisqualified to inherit from the innocent spouse by testate and intestate succession.

ISSUE:WON judicial declaration of the nullity of marriage can be invoked not only for the solepurpose of remarriage, but also in order to provide a basis for the separation and distribution ofthe properties acquired during coventure.

FACTS: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.

Petitioner Roberto Domingo and respondent Delia Avera were married on November

29, 1976.

Unknown to the respondent, petitioner 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

Respondent is working in Saudi and one time when she had a vacation leave, she

discovered that the petitioner is cohabiting with another woman and is disposing some of

her properties w/o her knowledge and consent. Roberto is unemployed and completely

dependent upon the respondent for support and subsistence. Out of respondentspersonal 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

Thereafter respondent appointed her brother Moises R. Avera as her attorney-in-fact to

take care of her properties but Roberto failed and refused to turn over the possession

and administration of said properties to her brother/attorney-in-fact

The respondent in her 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 exclusiveowner 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. Petitioner invoked that Article 40 applies only for the

sole purpose of remarriage.

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RTC and CA denied motion to dismiss, hence, this appeal

RULING: Yes. Petition dismissed. The court ruled thatArticle 40 denotes that such final

judgment declaring the previous marriage void need not be obtained only for purposes of

remarriage. 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. TheFamily 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.