RA 7192 to Dadivas vs Villanueva

8/22/2019 RA 7192 to Dadivas vs Villanueva

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REPUBLIC ACT NO. 7192

REPUBLIC ACT NO. 7192 - AN ACT PROMOTING THE INTEGRATION OF WOMEN

AS FULL AND EQUAL PARTNERS OF MEN IN DEVELOPMENT AND NATION

BUILDING AND FOR OTHER PURPOSES

Section 1. Title. This Act shall be cited as the "Women in Development and NationBuilding Act."

Sec. 2. Declaration of Policy. The State recognizes the role of women in nationbuilding and shall ensure the fundamental equality before the law of women and men.

The State shall provided women rights and opportunities equal to that of men.

To attain the foregoing policy:

(1) A substantial portion of official development assistance funds received from foreigngovernments and multilateral agencies and organizations shall be set aside and utilized

by the agencies concerned to support programs and activities for women;

(2) All government departments shall ensure that women benefit equally andparticipate directly in the development programs and projects of said department,specifically those funded under official foreign development assistance, to ensure the fullparticipation and involvement of women in the development process; and

(3) All government departments and agencies shall review and revise all theirregulations, circulars, issuances and procedures to remove gender bias therein.

Sec. 3. Responsible Agency. The National Economic and Development Authority(NEDA) shall primarily be responsible for ensuring the participation of women as

recipients in foreign aid, grants and loans. It shall determine and recommend the amountto be allocated for the development activity involving women.

Sec. 4. Mandate. The NEDA, with the assistance of the National Commission on theRole of Filipino Women, shall ensure that the different government departments,including its agencies and instrumentalities which, directly or indirectly, affect theparticipation of women in national development and their integration therein:

(1) Formulate and prioritize rural or countryside development programs or projects,provide income and employment opportunities to women in the rural areas and thus,prevent their heavy migration from rural to urban or foreign countries;

(2) Include an assessment of the extent to which their programs and/or projectsintegrate women in the development process and of the impact of said programs orprojects on women, including their implications in enhancing the self-reliance of womenin improving their income;

(3) Ensure the active participation of women and women's organizations in thedevelopment programs and/or projects including their involvement in the planning,design, implementation, management, monitoring and evaluation thereof;


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(4) Collect sex-disaggregated data and include such data in its program/project paper,proposal or strategy;

(5) Ensure that programs and/or projects are designed so that the percentage ofwomen who receive assistance is approximately proportionate to either their traditionalparticipation in the targeted activities or their proportion of the population, whichever ishigher. Otherwise, the following should be stated in the program/project paper, proposal

or strategy;

(a) The obstacle in achieving the goal;

(b) The steps being taken to overcome those obstacles; and

(c) To the extent that steps are not being taken to overcome those obstacles, why theyare not being taken.

(6) Assist women in activities that are of critical significance to their self-reliance anddevelopment.

Sec. 5. Equality in Capacity to Act. Women of legal age, regardless of civil status,shall have the capacity to act and enter into contracts which shall in every respect beequal to that of men under similar circumstances.

In all contractual situations where married men have the capacity to act, married womenshall have equal rights.

To this end:

(1) Women shall have the capacity to borrow and obtain loans and execute securityand credit arrangement under the same conditions as men;

(2) Women shall have equal access to all government and private sector programsgranting agricultural credit, loans and non-material resources and shall enjoy equaltreatment in agrarian reform and land resettlement programs;

(3) Women shall have equal rights to act as incorporators and enter into insurancecontracts; and

(4) Married women shall have rights equal to those of married men in applying forpassport, secure visas and other travel documents, without need to secure the consentof their spouses.

In all other similar contractual relations, women shall enjoy equal rights and shall have

the capacity to act which shall in every respect be equal to those of men under similarcircumstances.

Sec. 6. Equal Membership in Clubs. Women shall enjoy equal access to membershipin all social, civic and recreational clubs, committees, associations and similar otherorganizations devoted to public purpose. They shall be entitled to the same rights andprivileges accorded to their spouses if they belong to the same organization.

Sec. 7. Admission to Military Schools. Any provision of the law to the contrary


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notwithstanding, consistent with the needs of the services, women shall be accordedequal opportunities for appointment, admission, training, graduation and commissioningin all military or similar schools of the Armed Forces of the Philippines and the PhilippineNational Police not later than the fourth academic year following the approval of this Actin accordance with the standards required for men except for those minimum essentialadjustments required by physiological differences between sexes.

Sec. 8. Voluntary Pag-IBIG, GSIS and SSS Coverage. Married persons who devote fulltime to managing the household and family affairs shall, upon the working spouse'sconsent, be entitled to voluntary Pag-IBIG (Pagtutulungan Ikaw, Bangko, Industriya atGobyerno), Government Service Insurance System (GSIS) or Social Security System (SSS)coverage to the extent of one-half (1/2) of the salary and compensation of the workingspouse. The contributions due thereon shall be deducted from the salary of the workingspouse.

The GSIS or the SSS, as the case may be, shall issue rules and regulations necessary toeffectively implement the provisions of this section.

Sec. 9. Implementing Rules. The NEDA, in consultation with the different government

agencies concerned, shall issue rules and regulations as may be necessary for theeffective implementation of Sections 2, 3 and 4, of this Act within six (6) months from itseffectivity.

SECTION 10. Compliance Report. Within six (6) months from the effectivity of this Actand every six (6) months thereafter, all government departments, including its agenciesand instrumentalities, shall submit a report to Congress on their compliance with thisAct.

SECTION 11. Separability Clause. If for any reason any section or provision of this Actis declared unconstitutional or invalid, the other sections or provisions hereof which arenot affected thereby shall continue to be in full force and effect.

SECTION 12. Repealing Clause. The provisions of Republic Act No. 386, otherwiseknown as the Civil Code of the Philippines, as amended, and of Executive Order No. 209,otherwise known as the Family Code of the Philippines, and all laws, decrees, executiveorders, proclamations, rules and regulations, or parts thereof, inconsistent herewith arehereby repealed.

SECTION 13. Effectivity Clause. The rights of women and all the provisions of this Actshall take effect immediately upon its publication in the Official Gazette or in two (2)newspapers of general circulation.

REPUBLIC ACT NO. 9048 March 22, 2001

AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSULGENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/ORCHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF AJUDICIAL ORDER, AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVILCODE OF THE PHILIPPINES

Be it enacted by the Senate and the House of Representatives of the Philippines in Congress assembled:

Section 1.Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname No


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entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical

errors and change of first name or nickname which can be corrected or changed by the concerned city or

municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing

rules and regulations.

Section 2.Definition of Terms As used in this Act, the following terms shall mean:

(1) "City or Municipal civil registrar" refers to the head of the local civil registry office of the city or

municipality, as the case may be, who is appointed as such by the city or municipal mayor in accordancewith the provisions of existing laws.

(2) "Petitioner" refers to a natural person filing the petition and who has direct and personal interest in

the correction of a clerical or typographical error in an entry or change of first name or nickname in the

civil register.

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in

writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such

as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the

understanding, and can be corrected or changed only by reference to other existing record or

records:Provided, however, That no correction must involve the change of nationality, age, status or sex

of the petitioner.

(4) "Civil Register" refers to the various registry books and related certificates and documents kept in thearchives of the local civil registry offices, Philippine Consulates and of the Office of the Civil Registrar

General.

(5) "Civil registrar general" refers to the Administrator of the National Statistics Office which is theagency mandated to carry out and administer the provision of laws on civil registration.

(6) "First name" refers to a name or nickname given to a person which may consist of one or more

names in addition to the middle and last names.

Section 3.Who May File the Petition and Where. Any person having direct and personal interest in thecorrection of a clerical or typographical error in an entry and/or change of first name or nickname in the civil

register may file, in person, a verified petition with the local civil registry office of the city or municipality

where the record being sought to be corrected or changed is kept.In case the petitioner has already migrated to another place in the country and it would not be practical for such

party, in terms of transportation expenses, time and effort to appear in person before the local civil registrar

keeping the documents to be corrected or changed, the petition may be filed, in person, with the local civilregistrar of the place where the interested party is presently residing or domiciled. The two (2) local civil

registrars concerned will then communicate to facilitate the processing of the petition.

Citizens of the Philippines who are presently residing or domiciled in foreign countries may file their petition, in

person, with the nearest Philippine Consulates.

The petitions filed with the city or municipal civil registrar or the consul general shall be processed in

accordance with this Act and its implementing rules and regulations.

All petitions for the clerical or typographical errors and/or change of first names or nicknames may be availed of

only once.

Section 4.Grounds for Change of First Name or Nickname. The petition for change of first name or nicknamemay be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely

difficult to write or pronounce.

(2) The new first name or nickname has been habitually and continuously used by the petitioner and he

has been publicly known by that by that first name or nickname in the community: or

(3) The change will avoid confusion.


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Section 5.Form and Contents of the Petition. The petition shall be in the form of an affidavit, subscribed andsworn to before any person authorized by the law to administer oaths. The affidavit shall set forth facts necessary

to establish the merits of the petition and shall show affirmatively that the petitioner is competent to testify to the

matters stated. The petitioner shall state the particular erroneous entry or entries, which are sought to be

corrected and/or the change sought to be made.

The petition shall be supported with the following documents:

(1) A certified true machine copy of the certificate or of the page of the registry book containing theentry or entries sought to be corrected or changed.

(2) At least two (2) public or private documents showing the correct entry or entries upon which the

correction or change shall be based; and

(3) Other documents which the petitioner or the city or municipal civil registrar or the consul general

may consider relevant and necessary for the approval of the petition.

In case of change of first name or nickname, the petition shall likewise be supported with the documents

mentioned in the immediately preceding paragraph. In addition, the petition shall be published at least once a

week for two (2) consecutive weeks in a newspaper of general circulation. Furthermore, the petitioner shall

submit a certification from the appropriate law enforcement agencies that he has no pending case or no criminal

record.

The petition and its supporting papers shall be filed in three (3) copies to be distributed as follows: first copy to

the concerned city or municipal civil registrar, or the consul general; second copy to the Office of the Civil

Registrar General; and third copy to the petitioner.

Section 6.Duties of the City or Municipal Civil Registrar or the Consul General. The city or municipal civilregistrar or the consul general to whom the petition is presented shall examine the petition and its supporting

documents. He shall post the petition in a conspicuous place provided for that purpose for ten (10) consecutive

days after he finds the petition and its supporting documents sufficient in form and substance.

The city or municipal civil registrar or the consul general shall act on the petition and shall render a decision not

later than five (5) working days after the completion of the posting and/or publication requirement. He shall

transmit a copy of his decision together with the records of the proceedings to the Office of the Civil Registrar

General within five (5) working days from the date of the decision.Section 7.Duties and Powers of the Civil Registrar General. The civil registrar general shall, within ten (10)working days from receipt of the decision granting a petition, exercise the power to impugn such decision by

way of an objection based on the following grounds:

(1) The error is not clerical or typographical;

(2) The correction of an entry or entries in the civil register is substantial or controversial as it affects the

civil status of a person; or

(3) The basis used in changing the first name or nickname of a person does not fall under Section 4.

The civil registrar general shall immediately notify the city or municipal civil registrar or the consul general of

the action taken on the decision. Upon receipt of the notice thereof, the city or municipal civil registrar or the

consul general shall notify the petitioner of such action.

The petitioner may seek reconsideration with the civil registrar general or file the appropriate petition with the

proper court.

If the civil registrar general fails to exercise his power to impugn the decision of the city or municipal civil

registrar or of the consul general within the period prescribed herein, such decision shall become final and

executory.

Where the petition is denied by the city or municipal civil registrar or the consul general, the petitioner may

either appeal the decision to the civil registrar general or file the appropriate petition with the proper court.


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Section 8.Payment of Fees. The city or municipal civil registrar or the consul general shall be authorized tocollect reasonable fees as a condition for accepting the petition. An indigent petitioner shall be exempt from the

payment of the said fee.

Section 9.Penalty Clause. - A person who violates any of the provisions of this Act shall, upon conviction, bepenalized by imprisonment of not less than six (6) years but not more than twelve (12) years, or a fine of not less

than Ten thousand pesos (P10,000.00) but not more than One Hundred Thousand pesos (P100,000.00), or both,

at the discretion of the court.

In addition, if the offender is a government official or employee he shall suffer the penalties provided under civil

service laws, rules and regulations.

Section 10.Implementing Rules and Regulations. - The civil registrar general shall, in consultation with theDepartment of Justice, the Department of Foreign Affairs, the Office of the Supreme Court Administrator, the

University of the Philippines Law Center and the Philippine Association of Civil Registrars, issue the necessary

rules and regulations for the effective implementation of this Act not later than three (3) months from the

effectivity of this law.

Section 11.Retroactivity Clause. - This Act shall have retroactive effect insofar as it does not prejudice or impairvested or acquired rights in accordance with the Civil Code and other laws.

Section 12.Separability Clause. - If any portion or provision of this Act is declared void or unconstitutional, theremaining portions or provisions thereof shall not be affected by such declaration.

Section 13.Repealing Clause - All laws, decrees, orders, rules and regulations, other issuances, or parts thereofinconsistent with the provisions of this Act are hereby repealed or modified accordingly.

Section 14.Effectivity Clause. - This Act shall take effect fifteen (15) days after its complete publication in atleast two (2) national newspapers of general circulation.

Approved: March 22, 2001

G.R. No. 11263 November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,vs.

JOSE CAMPOS RUEDA, defendant-appellee.

Eduardo Gutierrez Repide and Felix Socias for appellant.

Sanz, Opisso and Luzuriaga for appellee.

TRENT, J.:

This is an action by the wife against her husband for support outside of the conjugal domicile. From a

judgment sustaining the defendant's demurrer upon the ground that the facts alleged in the complaint do not statea cause of action, followed by an order dismissing the case after the plaintiff declined to amend, the latter

appealed.


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It was urged in the first instance, and the court so held, that the defendant cannot be compelled to support

the plaintiff, except in his own house, unless it be by virtue of a judicial decree granting her a divorce or

separation from the defendant.

The parties were legally married in the city of Manila on January 7, 1915, and immediately thereafter

established their residence at 115 Calle San Marcelino, where they lived together for about a month, when the

plaintiff returned to the home of her parents. The pertinent allegations of the complaint are as follows:

That the defendant, one month after he had contracted marriage with the plaintiff, demanded of herthat she perform unchaste and lascivious acts on his genital organs; that the plaintiff spurned the obscene

demands of the defendant and refused to perform any act other than legal and valid cohabitation; that the

defendant, since that date had continually on other successive dates, made similar lewd and indecorous

demands on his wife, the plaintiff, who always spurned them, which just refusals of the plaintiffexasperated the defendant and induce him to maltreat her by word and deed and inflict injuries upon her

lips, her face and different parts of her body; and that, as the plaintiff was unable by any means to induce

the defendant to desist from his repugnant desires and cease from maltreating her, she was obliged to

leave the conjugal abode and take refuge in the home of her parents.

Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities established

by General Orders No. 68, in so far as its civil effects are concerned requiring the consent of the parties. (Garcia

vs. Montague, 12 Phil. Rep., 480, citing article 1261 of Civil Code.) Upon the termination of the marriage

ceremony, a conjugal partnership is formed between the parties. (Sy Joc Lieng vs. Encarnacion, 16 Phil. Rep.,137.) To this extent a marriage partakes of the nature of an ordinary contract. But it is something more than a

mere contract. It is a new relation, the rights, duties, and obligations of which rest not upon the agreement of the

parties but upon the general law which defines and prescribes those rights, duties, and obligations .Marriage is

an institution, in the maintenance of which in its purity the public is deeply interested. It is a relation for life and

the parties cannot terminate it at any shorter period by virtue of any contract they may make .The reciprocal

rights arising from this relation, so long as it continues, are such as the law determines from time to time, and

none other. When the legal existence of the parties is merged into one by marriage, the new relation is regulated

and controlled by the state or government upon principles of public policy for the benefit of society as well as

the parties. And when the object of a marriage is defeated by rendering its continuance intolerable to one of the

parties and productive of no possible good to the community, relief in some way should be obtainable. With

these principles to guide us, we will inquire into the status of the law touching and governing the question under

consideration.

Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De la Rama, 3

Phil .Rep., 34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in the Peninsula, were extended

to the Philippine Islands by royal decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705). Articles 44, 45,

and 48 of this law read:

ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each other.

ART. 45. The husband must live with and protect his wife. (The second paragraph deals with the

management of the wife's property.)

ART. 48. The wife must obey her husband, live with him, and follow him when he charges his

domicile or residence.

Notwithstanding the provisions of the foregoing paragraph, the court may for just cause relieve her

from this duty when the husband removes his residence to a foreign country.

And articles 143 and 149 of the Civil Code are as follows:

ART. 143. The following are obliged to support each other reciprocally to the whole extent

specified in the preceding article.

1. The consorts.

x x x x x x x x x


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ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by paying

the pension that may be fixed or by receiving and maintaining in his own home the person having the

right to the same.

Article 152 of the Civil Code gives the instances when the obligation to give support shall cease. The

failure of the wife to live with her husband is not one of them.

The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and

obligations of the spouses. The spouses must be faithful to, assist, and support each other. The husband must livewith and protect his wife. The wife must obey and live with her husband and follow him when he changes his

domicile or residence, except when he removes to a foreign country. But the husband who is obliged to support

his wife may, at his option, do so by paying her a fixed pension or by receiving and maintaining her in his own

home. May the husband, on account of his conduct toward his wife, lose this option and be compelled to pay thepension? Is the rule established by article 149 of the Civil Code absolute? The supreme court of Spain in its

decision of December 5, 1903, held:.

That in accordance with the ruling of the supreme court of Spain in its decisions dated May 11,

1897, November 25, 1899, and July 5, 1901, the option which article 149 grants the person, obliged to

furnish subsistence, between paying the pension fixed or receiving and keeping in his own house the

party who is entitled to the same, is not so absolute as to prevent cases being considered wherein, either

because this right would be opposed to the exercise of a preferential right or because of the existence of

some justifiable cause morally opposed to the removal of the party enjoying the maintenance, the rightof selection must be understood as being thereby restricted.

Whereas the only question discussed in the case which gave rise to this appeal was whether there

was any reason to prevent the exercise of the option granted by article 149 of the Civil Code to the

person obliged to furnish subsistence, to receive and maintain in his own house the one who is entitled to

receive it; and inasmuch as nothing has been alleged or discussed with regard to the parental authority of

Pedro Alcantara Calvo, which he ha not exercised, and it having been set forth that the natural father

simply claims his child for the purpose of thus better attending to her maintenance, no action having

been taken by him toward providing the support until, owing to such negligence, the mother was obligedto demand it; it is seen that these circumstances, together with the fact of the marriage of Pedro

Alcantara, and that it would be difficult for the mother to maintain relations with her daughter, all

constitute an impediment of such a nature as to prevent the exercise of the option in the present case,without prejudice to such decision as may be deemed proper with regard to the other questions

previously cited in respect to which no opinion should be expressed at this time.

The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576), wherein

the court held that the rule laid down in article 149 of the Civil Code "is not absolute." but it is insisted that there

existed a preexisting or preferential right in each of these cases which was opposed to the removal of the oneentitled to support. It is true that in the first the person claiming the option was the natural father of the child and

had married a woman other than the child's mother, and in the second the right to support had already been

established by a final judgment in a criminal case. Notwithstanding these facts the two cases clearly established

the proposition that the option given by article 149 of the Civil Code may not be exercised in any and all cases.

Counsel for the defendant cite, in support of their contention, the decision of the supreme court of Spain,

dated November 3, 1905. In this case Don Berno Comas, as a result of certain business reverses and in order noto prejudice his wife, conferred upon her powers to administer and dispose of her property. When she left him he

gave her all the muniments of title, mortgage credits, notes, P10,000 in accounts receivable, and the key to thesafe in which he kept a large amount of jewels, thus depriving himself of all his possessions and being reduced

in consequence to want. Subsequently he instituted this civil action against his wife, who was then living in

opulence, for support and the revocation of the powers heretofore granted in reference to the administration and

disposal of her property. In her answer the wife claimed that the plaintiff (her husband) was not legally in a

situation to claim support and that the powers voluntarily conferred and accepted by her were bilateral and could

not be canceled by the plaintiff. From a judgment in favor of the plaintiff the defendant wife appealed to

theAudencia Territorialwherein, after due trial, judgment was rendered in her favor dismissing the action upon


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the merits. The plaintiff appealed to the supreme court and that high tribunal, in affirming the judgment of

theAudencia Territorial, said:

Considering that article 143, No. 1, of the Civil Code, providing that the spouses are mutuallyobliged to provide each other with support, cannot but be subordinate to the other provisions of said

Code which regulates the family organization and the duties of spouses not legally separated, among

which duties are those of their living together and mutually helping each other, as provided in article 56

of the aforementioned code; and taking this for granted, the obligation of the spouse who has property to

furnish support to the one who has no property and is in need of it for subsistence, is to be understood as

limited to the case where, in accordance with law, their separation has been decreed, either temporarily

or finally and this case, with respect to the husband, cannot occur until a judgment of divorce is

rendered, since, until then, if he is culpable, he is not deprived of the management of his wife's property

and of the product of the other property belonging to the conjugal partnership; and

Considering that, should the doctrine maintained in the appeal prevail, it would allow married

persons to disregard the marriage bond and separate from each other of their own free will, thus

establishing, contrary to the legal provision contained in said article 56 of the Civil Code, a legal status

entirely incompatible with the nature and effects of marriage in disregard of the duties inherent therein

and disturbing the unity of the family, in opposition to what the law, in conformity with good morals, has

established; and.

Considering that, as the spouses D. Ramon Benso and Doa Adela Galindo are not legallyseparated, it is their duty to live together and afford each other help and support; and for this reason, it

cannot be held that the former has need of support from his wife so that he may live apart from her

without the conjugal abode where it is his place to be, nor of her conferring power upon him to dispose

even of the fruits of her property in order therewith to pay the matrimonial expenses and, consequently,

those of his own support without need of going to his wife; wherefore the judgment appealed from,

denying the petition of D. Ramon Benso for support, has not violated the articles of the Civil Code and

the doctrine invoked in the assignments of error 1 and 5 of the appeal.

From a careful reading of the case just cited and quoted from it appears quite clearly that the spousesseparated voluntarily in accordance with an agreement previously made. At least there are strong indications to

this effect, for the court says, "should the doctrine maintained in the appeal prevail, it would allow married

persons to disregard the marriage bond and separate from each other of their own free will." If this be the truebasis upon which the supreme court of Spain rested its decision, then the doctrine therein enunciated would not

be controlling in cases where one of the spouses was compelled to leave the conjugal abode by the other or

where the husband voluntarily abandons such abode and the wife seeks to force him to furnish support. That this

is true appears from the decision of the same high tribunal, dated October 16, 1903. In this case the wife brought

an action for support against her husband who had willfully and voluntarily abandoned the conjugal abode

without any cause whatever. The supreme court, reversing the judgment absolving the defendant upon the

ground that no action for divorce, etc., had been instituted, said:

In the case at bar, it has been proven that it was Don Teodoro Exposito who left the conjugal

abode, although he claims, without however proving his contention, that the person responsible for this

situation was his wife, as she turned him out of the house. From this state of affairs it results that it is the

wife who is party abandoned, the husband not having prosecuted any action to keep her in his company

and he therefore finds himself, as long as he consents to the situation, under the ineluctable obligation tosupport his wife in fulfillment of the natural duty sanctioned in article 56 of the Code in relation with

paragraph 1 of article 143. In not so holding, the trial court, on the mistaken ground that for the

fulfillment of this duty the situation or relation of the spouses should be regulated in the manner it

indicates, has made the errors of law assigned in the first three grounds alleged, because the nature of the

duty of affording mutual support is compatible and enforcible in all situations, so long as the needy

spouse does not create any illicit situation of the court above described.lawphil.net

If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of November

3, 1905, and if the court did hold, as contended by counsel for the defendant in the case under consideration, that


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neither spouse can be compelled to support the other outside of the conjugal abode, unless it be by virtue of a

final judgment granting the injured one a divorce or separation from the other, still such doctrine or holding

would not necessarily control in this jurisdiction for the reason that the substantive law is not in every particular

the same here as it is in Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the

Peninsula are not in force in the Philippine Islands. The law governing the duties and obligations of husband and

wife in this country are articles 44 to 78 of the Law of Civil Marriage of 1870 .In Spain the complaining spouse

has, under article 105 of the Civil Code, various causes for divorce, such as adultery on the part of the wife in

every case and on the part of the husband when public scandal or disgrace of the wife results therefrom; personalviolence actually inflicted or grave insults: violence exercised by the husband toward the wife in order to force

her to change her religion; the proposal of the husband to prostitute his wife; the attempts of the husband or wife

to corrupt their sons or to prostitute their daughters; the connivance in their corruption or prostitution; and the

condemnation of a spouse to perpetual chains or hard labor, while in this jurisdiction the only ground for a

divorce is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and absolute doctrine wasannounced by this court in the case just cited after an exhaustive examination of the entire subject. Although the

case was appealed to the Supreme Court of the United States and the judgment rendered by this court was there

reversed, the reversal did not affect in any way or weaken the doctrine in reference to adultery being the only

ground for a divorce. And since the decision was promulgated by this court in that case in December, 1903, no

change or modification of the rule has been announced. It is, therefore, the well settled and accepted doctrine in

this jurisdiction.

But it is argued that to grant support in an independent suit is equivalent to granting divorce or separation,

as it necessitates a determination of the question whether the wife has a good and sufficient cause for livingseparate from her husband; and, consequently, if a court lacks power to decree a divorce, as in the instant case,

power to grant a separate maintenance must also be lacking. The weakness of this argument lies in the

assumption that the power to grant support in a separate action is dependent upon a power to grant a divorce.

That the one is not dependent upon the other is apparent from the very nature of the marital obligations of the

spouses. The mere act of marriage creates an obligation on the part of the husband to support his wife. This

obligation is founded not so much on the express or implied terms of the contract of marriage as on the natural

and legal duty of the husband; an obligation, the enforcement of which is of such vital concern to the state itself

that the laws will not permit him to terminate it by his own wrongful acts in driving his wife to seek protection in

the parental home. A judgment for separate maintenance is not due and payable either as damages or as a

penalty; nor is it a debt in the strict legal sense of the term, but rather a judgment calling for the performance of a

duty made specific by the mandate of the sovereign. This is done from necessity and with a view to preserve thepublic peace and the purity of the wife; as where the husband makes so base demands upon his wife and

indulges in the habit of assaulting her. The pro tanto separation resulting from a decree for separate support is not

an impeachment of that public policy by which marriage is regarded as so sacred and inviolable in its nature; it is

merely a stronger policy overruling a weaker one; and except in so far only as such separation is tolerated as a

means of preserving the public peace and morals may be considered, it does not in any respect whatever impair

the marriage contract or for any purpose place the wife in the situation of afeme sole.

The foregoing are the grounds upon which our short opinion and order for judgment, heretofore filed in

this case, rest.

G.R. No. L-23482 August 30, 1968

ALFONSO LACSON, petitioner,vs.CARMEN SAN JOSE-LACSON and THE COURT OF APPEALS, respondents.

-----------------------------

G.R. No. L-23767 August 30, 1968

CARMEN SAN JOSE-LACSON, plaintiff-appellant,vs.

ALFONSO LACSON, defendant-appellee.


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-----------------------------

G.R. No. L-24259 August 30, 1968

ALFONSO LACSON, petitioner-appellee,vs.

CARMEN SAN JOSE-LACSON, petitioner-appellant.

Paredes, Poblador, Cruz and Nazareno for respondent-appellant Carmen San Jose-Lacson.

Norberto Quisumbing for petitioner-appellee Alfonso Lacson.

CASTRO, J.:

These three cases (G.R. L-23482, L-23767 and L-24259) involving the same parties pose a common

fundamental issue the resolution of which will necessarily and inescapably resolve all the other issues. Thus their

joinder in this decision.

The antecedent facts are not disputed.

Alfonso Lacson (hereinafter referred to as the petitioner spouse) and Carmen San Jose-Lacson (hereinafter

referred to as the respondent spouse) were married on February 14, 1953. To them were born four children, all

alive.

On January 9, 1963 the respondent spouse left the conjugal home in Santa Clara Subdivision, Bacolod City, andcommenced to reside in Manila. She filed on March 12, 1963 a complaint docketed as civil case E-00030 in the

Juvenile and Domestic Relations Court of Manila (hereinafter referred to as the JDRC) for custody of all their

children as well as support for them and herself.

However, the spouses, thru the assistance of their respective attorneys, succeeded in reaching an amicable

settlement respecting custody of the children, support, and separation of property. On April 27, 1963 they filed a

joint petition dated April 21, 1963, docketed as special proceeding 6978 of the Court of First Instance of Negros

Occidental (hereinafter referred to as the CFI).

The important and pertinent portions of the petition, embodying their amicable settlement, read as follows:

3. Petitioners have separated last January 9, 1963 when petitioner Carmen San Jose-Lacson left theirconjugal home at the Santa Clara Subdivision, Bacolod City, did not return, and decided to reside in

Manila.

4. Petitioners have mutually agreed upon the dissolution of their conjugal partnership subject to judicial

approval as required by Article 191 of the Civil Code of the Philippines the particular terms and

conditions of their mutual agreement being as follows:

(a) There will be separation of property petitioner Carmen San Jose-Lacson hereby waiving

any and all claims for a share in property that may be held by petitioner Alfonso Lacson since

they have acquired no property of any consequence.

(b) Hereafter, each of them shall own, dispose of, possess, administer and enjoy such separate

estate as they may acquire without the consent of the other and all earnings from any profession,

business or industry as may be derived by each petitioner shall belong to that petitioner

exclusively.

(c) The custody of the two elder children named Enrique and Maria Teresa shall be awarded to

petitioner Alfonso Lacson and the custody of the younger children named Gerrard and Ramonshall be awarded to petitioner Carmen San Jose-Lacson.

(d) Petitioner Alfonso Lacson shall pay petitioner Carmen San Jose-Lacson a monthly allowance

of P300.00 for the support of the children in her custody.

(e) Each petitioner shall have reciprocal rights of visitation of the children in the custody of the

other at their respective residences and, during the summer months, the two children in the

custody of each petitioner shall be given to the other except that, for this year's summer months,


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all four children shall be delivered to and remain with petitioner Carmen San Jose-Lacson until

June 15, 1963 on which date, she shall return the two elder children Enrique and Maria Teresa

to petitioner Alfonso Lacson this judgment of course being subject to enforcement by

execution writ and contempt.

5. Petitioners have no creditors.

WHEREFORE, they respectfully pray that notice of this petition be given to creditors and third parties

pursuant to Article 191 of the Civil Code of the Philippines and thereafter that the Court enter its judicialapproval of the foregoing agreement for the dissolution of their conjugal partnership and for separation

of property, except that the Court shall immediately approve the terms set out in paragraph 4 above and

embody the same in a judgment immediately binding on the parties hereto to the end that any non-

compliance or violation of its terms by one party shall entitle the other to enforcement by execution writand contempt even though the proceedings as to creditors have not been terminated.".

Finding the foregoing joint petition to be "conformable to law," the CFI (Judge Jose F. Fernandez, presiding)

issued an order on April 27, 1963, rendering judgment (hereinafter referred to as the compromise judgment)

approving and incorporating in toto their compromise agreement. In compliance with paragraph 4 (e) of their

mutual agreement (par. 3[e] of the compromise judgment), the petitioner spouse delivered all the four children to

the respondent spouse and remitted money for their support.

On May 7, 1963 the respondent spouse filed in the JDRC a motion wherein she alleged that she "entered into andsigned the ... Joint Petition as the only means by which she could have immediate custody of the ... minor

children who are all below the age of 7," and thereafter prayed that she "be considered relieved of the ...

agreement pertaining to the custody and visitation of her minor children ... and that since all the children are now

in her custody, the said custody in her favor be confirmedpendente lite." On May 24, 1963 the petitioner spouse

opposed the said motion and moved to dismiss the complaint based, among other things, on the grounds ofres

judicata and lis pendens. The JDRC on May 28, 1963, issued an order which sustained the petitioner spouse's

plea of bar by prior judgment and lis pendens, and dismissed the case. After the denial of her motion for

reconsideration, the respondent spouse interposed an appeal to the Court of Appeals (CA-G.R. No. 32608-R)

wherein she raised, among others, the issue of validity or legality of the compromise agreement in connectiononly with the custody of their minor children. On October 14, 1964 the Court of Appeals certified the said appeal

to the Supreme Court (G.R. No. L-23767), since "no hearing on the facts was ever held in the court below no

evidence, testimonial or documentary, presented only a question of law pends resolution in the appeal." .The respondent spouse likewise filed a motion dated May 15, 1963 for reconsideration of the compromisejudgment dated April 27, 1963 rendered in special proceeding 6978 of the CFI, wherein she also alleged, among

others, that she entered into the joint petition as the only means by which she could have immediate custody of

her minor children, and thereafter prayed the CFI to reconsider its judgment pertaining to the custody and

visitation of her minor children and to relieve her from the said agreement. The petitioner spouse opposed thesaid motion and, on June 1, 1963, filed a motion for execution of the compromise judgment and a charge for

contempt. The CFI (Judge Jose R. Querubin, presiding), in its order dated June 22, 1963, denied the respondent

spouse's motion for reconsideration, granted the petitioner spouse's motion for execution, and ordered that upon

"failure on the part of Carmen San Jose-Lacson to deliver the said children [i.e., to return the two older children

Enrique and Maria Teresa in accordance with her agreement with Alfonso Lacson] to the special sheriff on or

before June 29, 1963, she may be held for contempt pursuant to the provisions of Rule 39 sections 9 and 10, and

Rule 64 section 7 of the (old) Rules of Court." From the aforesaid compromise judgment dated April 27, 1963and execution order dated June 22, 1963, the respondent spouse interposed an appeal to the Court of Appeals

(CA-G.R. No. 32798-R) wherein she likewise questioned the validity or legality of her agreement with the

petitioner spouse respecting custody of their children. On February 11, 1965 the Court of Appeals also certified

the said appeal to the Supreme Court (G.R. No. L-24259), since "no evidence of any kind was introduced before

the trial court and ... appellant did not specifically ask to be allowed to present evidence on her behalf." .

The respondent spouse also instituted certiorari proceedings before the Court of Appeals (CA-G.R. No. 32384R),

now the subject of an appeal by certiorari to this Court (G.R. No. L-23482). In her petition for certiorari dated

June 27, 1963, she averred that the CFI (thru Judge Querubin) committed grave abuse of discretion and acted in


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excess of jurisdiction in ordering the immediate execution of the compromise judgment in its order of June 22,

1963, thus in effect depriving her of the right to appeal. She prayed for (1) the issuance of a writ of preliminary

injunction enjoining the respondents therein and any person acting under them from enforcing, by contempt

proceedings and other means, the writ of execution issued pursuant to the order of the respondent Judge

Querubin dated June 22, 1963 in special proceeding 6978 of the CFI, (2) the setting aside, after hearing, of the

compromise judgment dated April 27, 1963 and the order dated June 22, 1963, and (3) the awarding of the

custody of Enrique and Maria Teresa to her, their mother. As prayed for, the Court of Appeals issued ex parte a

writ of preliminary injunction enjoining the enforcement of the order dated June 22, 1963 for execution of thecompromise judgment rendered in special proceeding 6978. The petitioner spouse filed an urgent motion dated

July 5, 1963 for the dissolution of the writ of preliminary injunction ex parte which urgent motion was denied by

the Court of Appeals in its resolution dated July 9, 1963. The petitioner spouse likewise filed his answer. After

hearing, the Court of Appeals on May 11, 1964 promulgated in said certiorari case (CA-G.R. No. 32384-R) its

decision granting the petition forcertiorari and declaring null and void both (a) the compromise judgment datedApril 27, 1963 in so far as it relates to the custody and right of visitation over the two children, Enrique and

Teresa, and (b) the order dated June 22, 1963 for execution of said judgment. The petitioner spouse moved to

reconsider, but his motion for reconsideration was denied by the Court of Appeals in its resolution dated July 31,

1964. From the decision dated May 11, 1964 and the resolution dated July 31, 1964, the petitioner spouse

interposed an appeal to this Court, as abovestated, and assigned the following errors:

(1) The Court of Appeals erred in annulling thru certiorari the lower court's order of execution of the

compromise judgment.

(2) The Court of Appeals erred in resolving in the certiorari case the issue of the legality of the

compromise judgment which is involved in two appeals, instead of the issue of grave abuse of discretion

in ordering its execution.

(3) The Court of Appeals erred in ruling that the compromise agreement upon which the judgment is

based violates article 363 of the Civil Code. 1wph1.t

As heretofore adverted, the aforecited three appeals converge on one focal issue: whether the compromise

agreement entered into by the parties and the judgment of the CFI grounded on the said agreement, areconformable to law.

We hold that the compromise agreement and the judgment of the CFI grounded on the said agreement are valid

with respect to the separation of property of the spouses and the dissolution of the conjugal partnership.

The law allows separation of property of the spouses and the dissolution of their conjugal partnership provided

judicial sanction is secured beforehand. Thus the new Civil Code provides:

In the absence of an express declaration in the marriage settlements, the separation of property betweenspouses during the marriage shall not take place save in virtue of a judicial order. (Art. 190, emphasis

supplied)

The husband and the wife may agree upon the dissolution of the conjugal partnership during the

marriage, subject to judicial approval. All the creditors of the husband and of the wife, as well as of theconjugal partnership, shall be notified of any petition for judicial approval of the voluntary dissolution of

the conjugal partnership, so that any such creditors may appear at the hearing to safeguard his interests.

Upon approval of the petition for dissolution of the conjugal partnership, the court shall take such

measures as may protect the creditors and other third persons. (Art. 191, par. 4, emphasis supplied).

In the case at bar, the spouses obtained judicial imprimatur of their separation of property and the dissolution of

their conjugal partnership. It does not appeal that they have creditors who will be prejudiced by the said

arrangements.

It is likewise undisputed that the couple have been separated in fact for at least five years - the wife's residence

being in Manila, and the husband's in the conjugal home in Bacolod City. Therefore, inasmuch as a lengthy

separation has supervened between them, the propriety of severing their financial and proprietary interests is

manifest.


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Besides, this Court cannot constrain the spouses to live together, as

[I]t is not within the province of the courts of this country to attempt to compel one of the spouses to

cohabit with, and render conjugal rights to, the other. .. At best such an order can be effective for noother purpose than to compel the spouse to live under the same roof; and the experience of those

countries where the courts of justice have assumed to compel the cohabitation of married couple shows

that the policy of the practice is extremely questionable. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60).

However, in so approving the regime of separation of property of the spouses and the dissolution of theirconjugal partnership, this Court does not thereby accord recognition to nor legalize the de facto separation of the

spouses, which again in the language ofArroyo v. Vasquez de Arroyo, supra is a "state which is abnormal and

fraught with grave danger to all concerned." We would like to douse the momentary seething emotions of

couples who, at the slightest ruffling of domestic tranquility brought about by "mere austerity of temper,petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional

sallies of passion" without more would be minded to separate from each other. In this jurisdiction, the

husband and the wife are obliged to live together, observe mutual respect and fidelity, and render mutual help

and support (art. 109, new Civil Code). There is, therefore, virtue in making it as difficult as possible for married

couples impelled by no better cause than their whims and caprices to abandon each other's company.

'... For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial

cohabitation may operate with great severity upon individuals, yet it must be carefully remembered that

the general happiness of the married life is secured by its indissolubility. When people understand thatthey must live together, except for a very few reasons known to the law, they learn to soften by mutual

accommodation that yoke which they know they cannot shake off; they become good husbands and good

wives from the necessity of remaining husbands and wives; for necessity is a powerful master in

teaching the duties which it imposes ..." (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.)

(Arroyo vs. Vasquez de Arroyo,Id., pp. 58-59).

We now come to the question of the custody and support of the children.

It is not disputed that it was the JDRC which first acquired jurisdiction over the matter of custody and support of

the children. The complaint docketed as civil case E-00030 in the JDRC was filed by the respondent spouse on

March 12, 1963, whereas the joint petition of the parties docketed as special proceeding 6978 in the CFI was

filed on April 27, 1963. However, when the respondent spouse signed the joint petition on the same matter of

custody and support of the children and filed the same with the CFI of Negros Occidental, she in effectabandoned her action in the JDRC. The petitioner spouse who could have raised the issue oflis pendens inabatement of the case filed in the CFI, but did not do so - had the right, therefore, to cite the decision of the CFI

and to ask for the dismissal of the action filed by the respondent spouse in the JDRC, on the grounds ofres

judicata and lis pendens. And the JDRC acted correctly and justifiably in dismissing the case for custody and

support of the children based on those grounds. For it is no defense against the dismissal of the action that thecase before the CFI was filed later than the action before the JDRC, considering:.

... [T]hat the Rules do not require as a ground for dismissal of a complaint that there is a prior pending

action. They provide only that there is a pending action, not a pending prior action. 1

We agree with the Court of Appeals, however, that the CFI erred in depriving the mother, the respondent spouse,

of the custody of the two older children (both then below the age of 7).

The Civil Code specifically commands in the second sentence of its article 363 that "No mother shall be

separated from her child under seven years of age, unless the court finds compelling reasons for such measure."

The rationale of this new provision was explained by the Code Commission thus:

The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby

torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child oftender age. The exception allowed by the rule has to be for "compelling reasons" for the good of the

child: those cases must indeed be rare, if the mother's heart is not to be unduly hurt. If she has erred, as

in cases of adultery, the penalty of imprisonment and the (relative) divorce decree will ordinarily be

sufficient punishment for her. Moreover, her moral dereliction will not have any effect upon the baby


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who is as yet unable to understand the situation." (Report of the Code Commission, p. 12).

The use of the wordshall2 in article 363 of the Civil Code, coupled with the observations made by the Code

Commission in respect to the said legal provision, underscores its mandatory character. It prohibits in nouncertain: terms the separation of a mother and her child below seven years, unless such separation is grounded

upon compelling reasons as determined by a court.

The order dated April 27, 1963 of the CFI, in so far as it awarded custody of the two older children who were 6

and 5 years old, respectively, to the father, in effect sought to separate them from their mother. To that extenttherefore, it was null and void because clearly violative of article 363 of the Civil Code.

Neither does the said award of custody fall within the exception because the record is bereft of any compelling

reason to support the lower court's order depriving the wife of her minor children's company. True, the CFI

stated in its order dated June 22, 1963, denying the respondent spouse's motion for reconsideration of its order

dated April 27, 1963, that .

... If the parties have agreed to file a joint petition, it was because they wanted to avoid the exposure of

the bitter truths which serve as succulent morsel for scandal mongers and idle gossipers and to save their

children from embarrassment and inferiority complex which may inevitably stain their lives. ..

If the parties agreed to submit the matter of custody of the minor children to the Court for incorporation in the

final judgment, they purposely suppressed the "compelling reasons for such measure" from appearing in the

public records. This is for the sake and for the welfare of the minor children.".

But the foregoing statement is at best a mere hint that there were compelling reasons. The lower court's order is

eloquently silent on what these compelling reasons are. Needless to state, courts cannot proceed on mere

insinuations; they must be confronted with facts before they can properly adjudicate.

It might be argued and correctly that since five years have elapsed since the filing of these cases in 1963,

the ages of the four children should now be as follows: Enrique 11, Maria Teresa 10, Gerrard 9, and

Ramon 5. Therefore, the issue regarding the award of the custody of Enrique and Maria Teresa to the

petitioner spouse has become moot and academic. The passage of time has removed the prop which supports the

respondent spouse's position.

Nonetheless, this Court is loath to uphold the couple's agreement regarding the custody of the

children. 1wph1.tArticle 356 of the new Civil Code provides:

Every child:

(1) Is entitled to parental care;

(2) Shall receive at least elementary education;

(3) Shall be given moral and civic training by the parents or guardian;

(4) Has a right to live in an atmosphere conducive to his physical, moral and intellectual

development.

It is clear that the abovequoted legal provision grants to every child rights which are not and should not be

dependent solely on the wishes, much less the whims and caprices, of his parents. His welfare should not besubject to the parents' say-so or mutual agreement alone. Where, as in this case, the parents are already separated

in fact, the courts must step in to determine in whose custody the child can better be assured the right granted tohim by law. The need, therefore, to present evidence regarding this matter, becomes imperative. A careful

scrutiny of the records reveals that no such evidence was introduced in the CFI. This latter court relied merely on

the mutual agreement of the spouses-parents. To be sure, this was not a sufficient basis to determine the fitness

of each parent to be the custodian of the children.

Besides, at least one of the children Enrique, the eldest is now eleven years of age and should be given the

choice of the parent he wishes to live with. This is the clear mandate of sec. 6, Rule 99 of the Rules of Court

which, states, inter alia:


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... When husband and wife are divorced or living separately and apart from each other, and the question

as to the care, custody, and control of a child or children of their marriage is brought before a Court of

First Instance by petition or as an incident to any other proceeding, the court, upon hearing testimony as

may be pertinent, shall award the care, custody and control of each such child as will be for its best

interestpermitting the child to choose which parent it prefers to live with if it be over ten years of age,

unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual

drunkenness, incapacity, or poverty... (Emphasis supplied).

One last point regarding the matter of support for the children assuming that the custody of any or more of the

children will be finally awarded to the mother. Although the spouses have agreed upon the monthly support of

P150 to be given by the petitioner spouse for each child, still this Court must speak out its mind on the

insufficiency of this amount. We, take judicial notice of the devaluation of the peso in 1962 and the steady

skyrocketing of prices of all commodities, goods, and services, not to mention the fact that all the children are

already of school age. We believe, therefore, that the CFI may increase this amount of P150 according to the

needs of each child.

With the view that we take of this case, we find it unnecessary to pass upon the other errors assigned in the three

appeals.

ACCORDINGLY, the decision dated May 11, 1964 and the resolution dated July 31, 1964 of the Court of

Appeals in CA-G.R. 32384-R (subject matter of G.R. L-23482), and the orders dated May 28, 1963 and June 24,

1963 of the Juvenile and Domestic Relations Court (subject matter of G.R. L-23767) are affirmed. G.R. L-24259is hereby remanded to the Court of First Instance of Negros Occidental for further proceedings, in accordance

with this decision. No pronouncement as to costs.

G.R. No. L-19671 November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant,vs.

VICENTA F. ESCAO, ET AL., defendants-appellees.

I. V. Binamira & F. B. Barria for plaintiff-appellant.

Jalandoni & Jarnir for defendants-appellees.

REYES, J.B.L., J.:

Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu, in its

Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal separation

and one million pesos in damages against his wife and parents-in-law, the defendants-appellees, Vicente,

Mamerto and Mena,1 all surnamed "Escao," respectively.2

The facts, supported by the evidence of record, are the following:

Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where she

was then enrolled as a second year student of commerce, Vicenta Escao, 27 years of age (scion of a well-to-doand socially prominent Filipino family of Spanish ancestry and a "sheltered colegiala"), exchanged marriage

vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army officer and of undistinguished stock, without

the knowledge of her parents, before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in

the said city. The marriage was the culmination of a previous love affair and was duly registered with the local

civil register.

Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in love.

Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out their marital future

whereby Pacita would be the governess of their first-born; they started saving money in a piggy bank. A fewweeks before their secret marriage, their engagement was broken; Vicenta returned the engagement ring and

accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she pleaded for his return, and they

reconciled. This time they planned to get married and then elope. To facilitate the elopement, Vicenta had

brought some of her clothes to the room of Pacita Noel in St. Mary's Hall, which was their usual trysting place.


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Although planned for the midnight following their marriage, the elopement did not, however, materialize

because when Vicente went back to her classes after the marriage, her mother, who got wind of the intended

nuptials, was already waiting for her at the college. Vicenta was taken home where she admitted that she had

already married Pastor. Mamerto and Mena Escao were surprised, because Pastor never asked for the hand of

Vicente, and were disgusted because of the great scandal that the clandestine marriage would provoke (t.s.n., vol.

III, pp. 1105-06). The following morning, the Escao spouses sought priestly advice. Father Reynes suggested a

recelebration to validate what he believed to be an invalid marriage, from the standpoint of the Church, due to

the lack of authority from the Archbishop or the parish priest for the officiating chaplain to celebrate themarriage. The recelebration did not take place, because on 26 February 1948 Mamerto Escao was handed by a

maid, whose name he claims he does not remember, a letter purportedly coming from San Carlos college

students and disclosing an amorous relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated

the letter to her father, and thereafter would not agree to a new marriage. Vicenta and Pastor met that day in the

house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents while Pastor returned tohis job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her husband's welfare, was

not as endearing as her previous letters when their love was aflame.

Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly accepted

her being called a "jellyfish." She was not prevented by her parents from communicating with Pastor (Exh. "1-

Escao"), but her letters became less frequent as the days passed. As of June, 1948 the newlyweds were already

estranged (Exh. "2-Escao"). Vicenta had gone to Jimenez, Misamis Occidental, to escape from the scandal that

her marriage stirred in Cebu society. There, a lawyer filed for her a petition, drafted by then Senator Emmanuel

Pelaez, to annul her marriage. She did not sign the petition (Exh. "B-5"). The case was dismissed withoutprejudice because of her non-appearance at the hearing (Exh. "B-4").

On 24 June 1950, without informing her husband, she applied for a passport, indicating in her application that

she was single, that her purpose was to study, and she was domiciled in Cebu City, and that she intended to

return after two years. The application was approved, and she left for the United States. On 22 August 1950, she

filed a verified complaint for divorce against the herein plaintiff in the Second Judicial District Court of the State

of Nevada in and for the County of Washoe, on the ground of "extreme cruelty, entirely mental in character." On

21 October 1950, a decree of divorce, "final and absolute", was issued in open court by the said tribunal.

In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their daughter's

marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation of her marriage (Exh.

"D"-2).

On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with him in

California, and, by him, has begotten children. She acquired American citizenship on 8 August 1958.

But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First Instance

of Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her parents, Mamerto and Mena Escao,whom he charged with having dissuaded and discouraged Vicenta from joining her husband, and alienating her

affections, and against the Roman Catholic Church, for having, through its Diocesan Tribunal, decreed the

annulment of the marriage, and asked for legal separation and one million pesos in damages. Vicenta claimed a

valid divorce from plaintiff and an equally valid marriage to her present husband, Russell Leo Moran; while her

parents denied that they had in any way influenced their daughter's acts, and counterclaimed for moral damages.

The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife and toacquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto Escao and Mena Escao

for moral and exemplary damages and attorney's fees against the plaintiff-appellant, to the extent of P45,000.00,and plaintiff resorted directly to this Court.

The appellant ascribes, as errors of the trial court, the following:

1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for damages and in

dismissing the complaint;.

2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena Escao liable for

damages;.


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3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on

their counterclaims; and.

4. In dismissing the complaint and in denying the relief sought by the plaintiff.

That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta Escao,

were validly married to each other, from the standpoint of our civil law, is clearly established by the record

before us. Both parties were then above the age of majority, and otherwise qualified; and both consented to the

marriage, which was performed by a Catholic priest (army chaplain Lavares) in the presence of competentwitnesses. It is nowhere shown that said priest was not duly authorized under civil law to solemnize marriages.

The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as required by

Canon law, is irrelevant in our civil law, not only because of the separation of Church and State but also because

Act 3613 of the Philippine Legislature (which was the marriage law in force at the time) expressly provided that

SEC. 1.Essential requisites. Essential requisites for marriage are the legal capacity of the contracting

parties and consent. (Emphasis supplied)

The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not essential

to give the marriage civil effects,3 and this is emphasized by section 27 of said marriage act, which provided the

following:

SEC. 27.Failure to comply with formal requirements. No marriage shall be declared invalid because of

the absence of one or several of the formal requirements of this Act if, when it was performed, the

spouses or one of them believed in good faith that the person who solemnized the marriage was actually

empowered to do so, and that the marriage was perfectly legal.

The good faith of all the parties to the marriage (and hence the validity of their marriage) will be presumed until

the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It

is well to note here that in the case at bar, doubts as to the authority of the solemnizing priest arose only after the

marriage, when Vicenta's parents consulted Father Reynes and the archbishop of Cebu. Moreover, the very act of

Vicenta in abandoning her original action for annulment and subsequently suing for divorce implies an

admission that her marriage to plaintiff was valid and binding.

Defendant Vicenta Escao argues that when she contracted the marriage she was under the undue influence ofPacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez. Even granting, for

argument's sake, the truth of that contention, and assuming that Vicenta's consent was vitiated by fraud and

undue influence, such vices did not render her marriage ab initio void, but merely voidable, and the marriage

remained valid until annulled by a competent civil court. This was never done, and admittedly, Vicenta's suit for

annulment in the Court of First Instance of Misamis was dismissed for non-prosecution.

It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escao

remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that

the wife sought and obtained on 21 October 1950 from the Second Judicial District Court of Washoe County,

State of Nevada, on grounds of "extreme cruelty, entirely mental in character." At the time the divorce decree

was issued, Vicenta Escao, like her husband, was still a Filipino citizen.4 She was then subject to Philippine

law, and Article 15 of the Civil Code of the Philippines (Rep. Act No. 386), already in force at the time,

expressly provided:

Laws relating to family rights and duties or to the status, condition and legal capacity of persons are

binding upon the citizens of the Philippines, even though living abroad.

The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo matrimonii;and in fact does not even use that term, to further emphasize its restrictive policy on the matter, in contrast to the

preceding legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the

husband (Act 2710). Instead of divorce, the present Civil Code only provides forlegal separation (Title IV,

Book 1, Arts. 97 to 108), and, even in that case, it expressly prescribes that "the marriage bonds shall not be

severed" (Art. 106, subpar. 1).


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For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce

betiveen Filipino citizens could be a patent violation of the declared public policy of the state, specially in view

of the third paragraph of Article 17 of the Civil Code that prescribes the following:

Prohibitive laws concerning persons, their acts or property, and those which have for their object public

order, policy and good customs, shall not be rendered ineffective by laws or judgments promulgated, or

by determinations or conventions agreed upon in a foreign country.

Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give riseto an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those members of

our polity whose means do not permit them to sojourn abroad and obtain absolute divorces outside the

Philippines.

From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the Nevada

divorce court. Primarily because the policy of our law cannot be nullified by acts of private parties (Civil

Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-resident consort cannot confer

jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579).

From the preceding facts and considerations, there flows as a necessary consequence that in this jurisdiction

Vicenta Escao's divorce and second marriage are not entitled to recognition as valid; for her previous union to

plaintiff Tenchavez must be declared to be existent and undissolved. It follows, likewise, that her refusal to

perform her wifely duties, and her denial ofconsortium and her desertion of her husband constitute in law awrong caused through her fault, for which the husband is entitled to the corresponding indemnity (Civil Code,

Art. 2176). Neither an unsubstantiated charge of deceit nor an anonymous letter charging immorality against the

husband constitute, contrary to her claim, adequate excuse. Wherefore, her marriage and cohabitation with

Russell Leo Moran is technically "intercourse with a person not her husband" from the standpoint of Philippine

Law, and entitles plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the basis of

adultery" (Revised Penal Code, Art. 333).

The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord with the

previous doctrines and rulings of this court on the subject, particularly those that were rendered under our laws

prior to the approval of the absolute divorce act (Act 2710 of the Philippine Legislature). As a matter of legal

history, our statutes did not recognize divorces a vinculo before 1917, when Act 2710 became effective; and the

present Civil Code of the Philippines, in disregarding absolute divorces, in effect merely reverted to the policies

on the subject prevailing before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Actabove-mentioned, are now, fully applicable. Of these, the decision inRamirez vs. Gmur, 42 Phil. 855, is ofparticular interest. Said this Court in that case:

As the divorce granted by the French Court must be ignored, it results that the marriage of Dr. Mory and

Leona Castro, celebrated in London in 1905, could not legalize their relations; and the circumstance that

they afterwards passed for husband and wife in Switzerland until her death is wholly without legal

significance. The claims of the very children to participate in the estate of Samuel Bishop must therefore

be rejected. The right to inherit is limited to legitimate, legitimated and acknowledged natural children.

The children of adulterous relations are wholly excluded. The word "descendants" as used in Article 941

of the Civil Code cannot be interpreted to include illegitimates born ofadulterous relations. (Emphasissupplied)

Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo Moranafter the invalid divorce, are not involved in the case at bar, the Gmurcase is authority for the proposition that

such union is adulterous in this jurisdiction, and, therefore, justifies an action for legal separation on the part of

the innocent consort of the first marriage, that stands undissolved in Philippine law. In not so declaring, the trial

court committed error.

True it is that our ruling gives rise to anomalous situations where the status of a person (whether divorced or not)

would depend on the territory where the question arises. Anomalies of this kind are not new in the Philippines,

and the answer to them was given inBarretto vs. Gonzales, 58 Phil. 667:

The hardship of the existing divorce laws in the Philippine Islands are well known to the members of the


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Legislature. It is the duty of the Courts to enforce the laws of divorce as written by Legislature if they

are constitutional. Courts have no right to say that such laws are too strict or too liberal. (p. 72)

The appellant's first assignment of error is, therefore, sustained.

However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife, the late Doa

Mena Escao, alienated the affections of their daughter and influenced her conduct toward her husband are not

supported by credible evidence. The testimony of Pastor Tenchavez about the Escao's animosity toward him

strikes us to be merely conjecture and exaggeration, and are belied by Pastor's own letters written before this suitwas begun (Exh. "2-Escao" and "Vicenta," Rec. on App., pp. 270-274). In these letters he expressly apologized

to the defendants for "misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and

"sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escao house to visit and court

Vicenta, and the record shows nothing to prove that he would not have been accepted to marry Vicente had heopenly asked for her hand, as good manners and breeding demanded. Even after learning of the clandestine

marriage, and despite their shock at such unexpected event, the parents of Vicenta proposed and arranged that

the marriage be recelebrated in strict conformity with the canons of their religion upon advice that the previous

one was canonically defective. If no recelebration of the marriage ceremony was had it was not due to

defendants Mamerto Escao and his wife, but to the refusal of Vicenta to proceed with it. That the spouses

Escao did not seek to compel or induce their daughter to assent to the recelebration but respected her decision,

or that they abided by her resolve, does not constitute in law an alienation of affections. Neither does the fact that

Vicenta's parents sent her money while she was in the United States; for it was natural that they should not wishtheir daughter to live in penury even if they did not concur in her decision to divorce Tenchavez (27 Am. Jur.

130-132).

There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original suit for

annulment, or her subsequent divorce; she appears to have acted independently, and being of age, she was

entitled to judge what was best for her and ask that her decisions be respected. Her parents, in so doing, certainly

cannot be charged with alienation of affections in the absence of malice or unworthy motives, which have not

been shown, good faith being always presumed until the contrary is proved.

SEC. 529.Liability of Parents, Guardians or Kin. The law distinguishes between the right of a parentto interest himself in the marital affairs of his child and the absence of rights in a stranger to intermeddle

in such affairs. However, such distinction between the liability of parents and that of strangers is only in

regard to what will justify interference. A parent isliable for alienation of affections resulting from hisown malicious conduct, as where he wrongfully entices his son or daughter to leave his or her spouse,

but he is not liable unless he acts maliciously, without justification and from unworthy motives. He is not

liable where he acts and advises his child in good faith with respect to his child's marital relations in the

interest of his child as he sees it, the marriage of his child not terminating his right and liberty to interest

himself in, and be extremely solicitous for, his child's welfare and happiness, even where his conduct and

advice suggest or result in the separation of the spouses or the obtaining of a divorce or annulment, or

where he acts under mistake or misinformation, or where his advice or interference are indiscreet or

unfortunate, although it has been held that the parent is liable for consequences resulting from

recklessness. He may in good faith take his child into his home and afford him or her protection and

support, so long as he has not maliciously enticed his child away, or does not maliciously entice or cause

him or her to stay away, from his or her spouse. This rule has more frequently been applied in the case of

advice given to a married daughter, but it is equally applicable in the case of advice given to a son.Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and with

having exerted efforts and pressured her to seek annulment and divorce, unquestionably caused them unrest and

anxiety, entitling them to recover damages. While this suit may not have been impelled by actual malice, the

charges were certainly reckless in the face of the proven facts and circumstances. Court actions are not

established for parties to give vent to their prejudices or spleen.

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant Vicente

Escao, it is proper to take into account, against his patently unreasonable claim for a million pesos in damages,

that (a) the marriage was celebrated in secret, and its failure was not characterized by publicity or undue


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humiliation on appellant's part; (b) that the parties never lived together; and (c) that there is evidence that

appellant had originally agreed to the annulment of the marriage, although such a promise was legally invalid,

being against public policy (cf. Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact

is a consequence of the indissoluble character of the union that appellant entered into voluntarily and with open

eyes rather than of her divorce and her second marriage. All told, we are of the opinion that appellant should

recover P25,000 only by way of moral damages and attorney's fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena Escao, by the

court below, we opine that the same are excessive. While the filing of this unfounded suit must have wounded

sai

Documents

RA 7192 to Dadivas vs Villanueva