Attacking void and voidable marriages – Part 8 – Personality to assail a bigamous marriage

The discussion here is linked to previous posts under this topic. It will be recalled that in Part 4 (Attacking void and voidable marriages – Part 4 Void marriages – collateral attack rules from jurisprudence; during the lifetime of the spouses) there were two situations to consider:

• (I) During the lifetime of the spouses (or before either spouse dies)
• (II) After death of either spouse.
  

In Part 4, it was argued under situation (I) that

(I.4) the personality to institute the direct action solely belongs to the husband and the wife: see Section 2(a) A.M. No. 02-11-10-SC which states that a ‘petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife’.

In Part 4, we made note that proposition (I.4) does not apply for actions for declaration of absolute nullity of a marriage excepted from A.M. No. 02-11-10-SC under the rulings of Ablaza vs Republic (G.R. No. 158298, 11 Aug 2010) and Carlos vs Sandoval (G.R. No. 179922, December 16, 2008).

In Part 5 (Attacking void and voidable marriages – Part 5 Void marriages – collateral attack rules from jurisprudence; after the death of either spouse) we considered whether a direct action may be maintained after the death of either spouse to the marriage, who had the personality to institute the direct action. There were two views:

(II.2) The unqualified view, arguably from Niñal vs Bayadog (G.R. No. 133778, March 14, 2000) where there is no prohibition for interested parties (not confined solely to the surviving spouse) to institute a direct action (after the death of the other spouse) to have the marriage declared void.

(II.3) The presently controlling view in Enrico vs Heirs of Spouses Medinaceli (G.R. No. 173614, September 28, 2007) that the right of an interested party (who is not a spouse) to file a direct action to nullify a void marriage is limited to marriages that are not covered by A.M. No. 02-11-10-SC; and that this rule applies regardless of whether a spouse to the marriage has died. Pursuant to this view, if a spouse to the marriage has died, it is still the surviving spouse that has the right to institute the direct action; an interested party (who is not a spouse) may still maintain a collateral action to assail the validity of the marriage.

The discussion here applies to situations (I) and (II) where a subsequent marriage is being assailed on the ground of bigamy. The succeeding discussion will illustrate that whenever it is a ‘spouse’ that has the right to institute the direct action, case law has included within that definition of ‘spouse’, a spouse of the first marriage.

Preliminarily, one notes that in Carlos vs Sandoval (G.R. No. 179922, December 16, 2008), the rationale for giving a spouse to the assailed marriage the sole right to assail it was explained by the Supreme Court as follows:

‘Under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, the petition for declaration of absolute nullity of marriage may not be filed by any party outside of the marriage. The Rule made it exclusively a right of the spouses…’

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‘Section 2(a) of the Rule makes it the sole right of the husband or the wife to file a petition for declaration of absolute nullity of void marriage. The rationale of the Rule is enlightening, viz.:

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The new Rule recognizes that the husband and the wife are the sole architects of a healthy, loving, peaceful marriage. They are the only ones who can decide when and how to build the foundations of marriage. The spouses alone are the engineers of their marital life. They are simultaneously the directors and actors of their matrimonial true-to-life play. Hence, they alone can and should decide when to take a cut, but only in accordance with the grounds allowed by law.

In Fujiki vs Marinay (GR 196049, 26 Jun 2013), the Supreme Court explained that the reference to the husband or the wife in Section 2(a) is not confined to the spouses themselves to the subsequent bigamous marriage, but includes the spouse of the first marriage. In Fujiki, it was the Fujiki (husband of the first marriage) who filed the petition for recognition of the Japanese court judgment voiding the second bigamous marriage entered into by his wife. The Supreme Court’s explanation although arguably obiter (there was an express statement by the Court that A.M. No. 02-11-10-SC ‘does not apply in a petition to recognize a foreign judgment relating to the status of a marriage where one of the parties is a citizen of a foreign country’) on the significance of Section 2(a) is as follows:

The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC) does not apply in a petition to recognize a foreign judgment relating to the status of a marriage where one of the parties is a citizen of a foreign country. Moreover, in Juliano-Llave v. Republic,^{[47][G.R. No. 169766, 30 March 2011, 646 SCRA 637]} this Court held that the rule in A.M. No. 02-11-10-SC that only the husband or wife can file a declaration of nullity or annulment of marriage “does not apply if the reason behind the petition is bigamy.”^{[48][Juliano-Llave v. Republic G.R. No. 169766, 30 March 2011, 646 SCRA 637, at 655.]}

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Section 2(a) of A.M. No. 02-11-10-SC does not preclude a spouse of a subsisting marriage to question the validity of a subsequent marriage on the ground of bigamy. On the contrary, when Section 2(a) states that “[a] petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife ”^{[75][Emphasis supplied.]} ―it refers to the husband or the wife of the subsisting marriage. Under Article 35(4) of the Family Code, bigamous marriages are void from the beginning. Thus, the parties in a bigamous marriage are neither the husband nor the wife under the law. The husband or the wife of the prior subsisting marriage is the one who has the personality to file a petition for declaration of absolute nullity of void marriage under Section 2(a) of A.M. No. 02-11-10-SC.

Article 35(4) of the Family Code, which declares bigamous marriages void from the beginning, is the civil aspect of Article 349 of the Revised Penal Code,^{[76][REVISED PENAL CODE (Act No. 3815, as amended), Article. 349. Bigamy . – The penalty of prisión mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.]} which penalizes bigamy. Bigamy is a public crime. Thus, anyone can initiate prosecution for bigamy because any citizen has an interest in the prosecution and prevention of crimes.^{[77][See III RAMON AQUINO , THE REVISED PENAL CODE (1997), 518.]} If anyone can file a criminal action which leads to the declaration of nullity of a bigamous marriage,^{[78][RULES OF COURT , Rule 111, Sec. 1. Institution of criminal and civil actions. — (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.]} there is more reason to confer personality to sue on the husband or the wife of a subsisting marriage. The prior spouse does not only share in the public interest of prosecuting and preventing crimes, he is also personally interested in the purely civil aspect of protecting his marriage.

When the right of the spouse to protect his marriage is violated, the spouse is clearly an injured party and is therefore interested in the judgment of the suit.^{[79][Cf. R RULES OF COURT, Rule 3, Sec. 2. Parties in interest . ― A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.]} Juliano-Llave ruled that the prior spouse “is clearly the aggrieved party as the bigamous marriage not only threatens the financial and the property ownership aspect of the prior marriage but most of all, it causes an emotional burden to the prior spouse.”^{[80][Juliano-Llave v. Republic , supra]} Being a real party in interest, the prior spouse is entitled to sue in order to declare a bigamous marriage void.

Juliano-Llave vs Republic (G.R. No. 169766, March 30, 2011)

This case involves two marriages by Sen. Mamintal A.J. Tamano — first, with respondent Haja Putri Zorayda A. Tamano (Zorayda) on May 31, 1958 under civil rites; second, with petitioner Estrellita Juliano-Llave whom Sen. Tamano married twice 11 months before he died ‘initially under the Islamic laws and tradition on May 27, 1993 in Cotabato City and, subsequently, under a civil ceremony officiated by an RTC Judge at Malabang, Lanao del Sur on June 2, 1993’.

It was Zorayda together with Zorayda and Sen. Tamano’s son Adib Ahmad A. Tamano (Adib) who filed on November 23, 1994 a complaint for declaration of nullity of the second marriage of Sen. Tamano and Estrellita.

Upon the argument that Zorayda or Adib had no personality to file the complaint for declaration of nullity due to Section 2(a) of A.M. No. 02-11-10-SC which limits the petitioner to either the husband or the wife, the Supreme Court said that A.M. No. 02-11-10-SC because ‘[a]lbeit the Supreme Court Resolution governs marriages celebrated under the Family Code, such is prospective in application and does not apply to cases already commenced before March 15, 2003.^{[58][Carlos v. Sandoval, G.R. No. 179922, December 16, 2008, 574 SCRA 116, 132 citing Enrico v. Heirs of Sps. Eulogio B. Medinaceli and Trinidad Catli-Medinaceli, supra note 57 at 428.]}’.

It was in obiter that the Supreme Court declared that (assuming A.M. No. 02-11-10-SC was applicable), Zorayda (aggrieved spouse of the first marriage) had the capacity to file a petition for declaration of nullity of the second bigamous marriage, being likewise an ‘aggrieved spouse’ since the rationale of A.M. No. 02-11-10-SC states that ‘[o]nly an aggrieved or injured spouse may file petitions for annulment of voidable marriages and declaration of absolute nullity of void marriages’, and according the the Supreme Court:

The subsequent spouse may only be expected to take action if he or she had only discovered during the connubial period that the marriage was bigamous, and especially if the conjugal bliss had already vanished. Should parties in a subsequent marriage benefit from the bigamous marriage, it would not be expected that they would file an action to declare the marriage void and thus, in such circumstance, the “injured spouse” who should be given a legal remedy is the one in a subsisting previous marriage. The latter is clearly the aggrieved party as the bigamous marriage not only threatens the financial and the property ownership aspect of the prior marriage but most of all, it causes an emotional burden to the prior spouse. The subsequent marriage will always be a reminder of the infidelity of the spouse and the disregard of the prior marriage which sanctity is protected by the Constitution.

[This is the 8th and final post under this topic ‘Attacking void and voidable marriages’. The previous post under this topic was: Attacking void and voidable marriages – Part 7 Rule 108 special proceeding application of rules on direct vs collateral attack on void marriages. Kindly refer to the Caveat in reading this topic.]

[Here is a listing of the eight parts under this topic:

• Attacking void and voidable marriages – Part 1 – Introduction:
• Attacking void and voidable marriages – Part 2 – Voidable Marriages
• Attacking void and voidable marriages – Part 3 – Void Marriages
• Attacking void and voidable marriages – Part 4 Void marriages – collateral attack rules from jurisprudence; during the lifetime of the spouses
• Attacking void and voidable marriages – Part 5 Void marriages – collateral attack rules from jurisprudence; after the death of either spouse
• Attacking void and voidable marriages – Part 6 Void marriages – the operative fact requirement
• Attacking void and voidable marriages – Part 7 Rule 108 special proceeding application of rules on direct vs collateral attack on void marriages
• Attacking void and voidable marriages – Part 8 – Personality to assail a bigamous marriage]

By: Atty. Alex Andrew P. Icao

Attacking void and voidable marriages – Part 7 Rule 108 special proceeding application of rules on direct vs collateral attack on void marriages

The three points:

The discussion here is linked to the three points raised in a previous post (Attacking void and voidable marriages – Part 5 Void marriages – collateral attack rules from jurisprudence; after the death of either spouse). It will be recalled there that after the death of either spouse to the marriage:

Whether the marriage may be subject of collateral attack:

(II.1) After the death of either spouse, there is no more limitation to the susceptibility of a void marriage being subject to a collateral attack by interested persons (including heirs). After death, the potential for collusion is lessened. During the spouses’ lifetime, there is a high chance of collusion between spouses to manufacture grounds to nullify their marriage in order to remarry.

Whether a direct action may be maintained to nullify the marriage — there were two conflicting views here:

(II.2) The unqualified view, arguably from Niñal vs Bayadog (G.R. No. 133778, March 14, 2000) where there is no prohibition for interested parties (not confined solely to the surviving spouse) to institute a direct action (after the death of the other spouse) to have the marriage declared void.

(II.3) The presently controlling view in Enrico vs Heirs of Spouses Medinaceli (G.R. No. 173614, September 28, 2007) that the right of an interested party (who is not a spouse) to file a direct action to nullify a void marriage is limited to marriages that are not covered by A.M. No. 02-11-10-SC; and that this rule applies regardless of whether a spouse to the marriage has died. Pursuant to this view, if a spouse to the marriage has died, it is still the surviving spouse that has the right to institute the direct action; an interested party (who is not a spouse) may still maintain a collateral action to assail the validity of the marriage.

Preliminarily, on notes that in Enrico (2007), the Court acquiesced to the validity of the proposition (II.1) when it said that:

While A.M. No. 02-11-10-SC declares that a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife, it does not mean that the compulsory or intestate heirs are already without any recourse under the law. They can still protect their successional right, for, as stated in the Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders,   compulsory or intestate heirs can still question the validity of the marriage of the spouses, not in a proceeding for declaration of nullity, but upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts.

During the lifetime of the spouses, a Rule 108 adversarial proceeding, being generally a collateral proceeding, cannot be used to seek affirmative relief to cancel an entry of marriage in the civil register, without a final judgment in a direct proceeding declaring such marriage void. Even if factually, no marriage was celebrated, the registration of the marriage contract gives rise to the presumption that the marriage was factually celebrated (see a previous post under this topic on this) — a presumption that may not be overcome except in a direct proceeding.

In Braza vs The City Civil Registrar of Himamaylan City, Negros Occidental (G.R. No. 181174, 4 December 2009) it was held that the “validity of marriages as well as legitimacy and filiation can be questioned only in a direct action seasonably filed by the proper party, and not through a collateral attack such as [a] petition [for correction of entry]”. The foregoing reasoning in Braza would have held true had the collateral proceeding been brought during the lifetime of the spouses to the marriage. However, in Braza (2009), the Rule 108 proceeding (to correct a child’s birth certificate so that, among others, the child would revert to using his mother’s surname because the child was not of the registered father’s, and the marriage between the mother and registered father was void being bigamous) was filed on December 23, 2005 after the registered father died (in 2002). Since one spouse to the assailed marriage had already died, it would have been proposition (II.1) that would have applied — the Court in Enrico (2007) affirmed the validity of this proposition (see quote from Enrico above). Since proposition (II.1) applies, a collateral attack on the bigamous marriage in a Rule 108 proceeding filed after the death of one of the spouses to the void marriage would have been permissible.

In The United Abangan Clan vs Sabellano-Sumagang (GR 186722, 18 June 2012), the discussion centered on whether there was forum shopping between a petition for cancellation of entry in the register of marriages (the marriage was between Anastacia Abangan and Raymundo Cabellon who were allegedly married on 18 February 1873 but there was a delayed registration on September 2007), and another case for judicial declaration of heirs of Anastacia. Petitioners alleged that Anastacia died single and without issue (no marriage took place). The issue on whether Anastacia was married to Cabellon was vital in determining who inherited Anastacia’s estate — petitioners (who claim to be descendants of her nearest collateral relatives) or private respondents (who claim to be descendants of Anastacia’s children with Cabellon). The Court held that the Rule 108 proceeding could continue independently of the proceeding for judicial declaration of heirs because there was no litis pendentia. From another perspective, since the Rule 108 proceeding was presumably brought after the death of Anastacia, proposition (II.1) was applicable, hence the validity of Anastacia’s marriage could be subject to a collateral attack in the Rule 108 proceeding.

What if the entry is not of the marriage contract, but of another (eg, birth certificate) which states the marriage or which presumes the validity of a marriage?

The character of entries concerning the parents’ marriage in a child’s birth certificate will be discussed in full in a separate topic to be posted later in this blog. Preliminarily, it will be noted that entries in the birth certificate dealing with the parents’ marriage cannot give rise to the presumption of marriage because these entries are entered unverified by the Local Civil Registrar into the civil register, and so cannot fall under the first sentence of Section 23 Rule 132 of the Rules of Court (‘Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated’); for instance, in Angeles vs Maglaya (GR 153798, 2 Sep 2005), the Supreme Court held that a birth certificate ‘albeit considered a public record of a private document is, under Section 23, Rule 132 of the Rules of Court, evidence only of the fact which gave rise to its execution: the fact of birth of a child.^{[25][Sec. 23. Public documents as evidence. – Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence . . . of the fact which gave rise to their execution and of the date of the latter.]}’. The conclusion that entries in the birth certificate dealing with the parents’ marriage cannot give rise to the presumption of marriage is however subject to the contrary view in Añonuevo vs Intestate Estate of Rodolfo G. Jalandoni (GR 178221, 1 Dec 2010) (also to be discussed later in a separate topic).

In Braza vs The City Civil Registrar of Himamaylan City, Negros Occidental (G.R. No. 181174, 4 December 2009), we recall that it involved a Rule 108 petition to correct a child’s birth certificate so that, among others, the child would revert to using his mother’s surname because the child was not of the registered father’s, and the marriage between the mother and registered father was void being bigamous. Let us assume that unlike Braza, the petition was filed during the lifetime of the spouses — so that the situation is governed by proposition (I.2) highlighted in a previous post under this topic. Since the statement in the child’s Birth Certificate that the parents were married cannot give rise to the presumption of marriage because these entries are entered unverified by the Local Civil Registrar into the civil register, one would have to determine if the parents’ alleged marriage stated in the child’s Birth Certificate is covered by a registered marriage contract. If there is a registered marriage contract, then the Rule 108 petition cannot constitute a collateral attack (under proposition (I.2)) on the marriage which is presumed valid.

To recall, in a previous post under this topic, it was argued that only a registered marriage contract can give rise to the presumption of the factual celebration of the marriage. Consequently, if there is no registered marriage contract, then the factual celebration of the marriage is not presumed, therefore there is no operative fact (celebration of marriage) that gives rise to the rule that a void ‘marriage’ is not subject to collateral attack during the spouses’ lifetime. Accordingly, in the absence of a registered marriage contract a Rule 108 petition to cancel the entry in the child’s Birth Certificate will prosper. Arguably, the following cases support the immediately preceding proposition:

The case of Labayo-Rowe vs Republic (G.R. No. L-53417, December 8, 1988). In this case, a petition for correction of entry (although nullified by the Supreme Court for failure to implead all indispensable parties) was sustained as the proper proceeding to correct (among others) the entry of her child’s BC which stated that the parents were married on “1953 Bulan” when in truth they were not so married.

Republic v Lim (GR 153883, 13 Jan 2004), where the Supreme Court in a Rule 108 proceeding allowed the correction of an entry in a child’s Birth Certificate stating that she was legitimate when in truth she was illegitimate ‘considering that her parents were never married’.

Republic vs Benemerito (G.R. No. 146963. March 15, 2004), where the Supreme Court (although it nullified the RTC decision in a Rule 108 proceeding due to failure to implead all indispensable parties) held that a Rule 108 proceeding was a proper adversarial proceeding to correct the entry of a child’s (Joven Lee Benemerito) Birth Certificate filed by the child’s father, to correct the entry concerning the father’s first name (from Peter to Petronio) and the date of marriage (from September 1, 1989 to 25 January 1998, since the parents were never factually married in 1989 but only in 1998) appearing in the child’s birth certificate.

Alba vs CA (G.R. No. 164041.  July 29, 2005), where the Supreme Court affirmed an RTC decision in a Rule 108 petition for correction of entry in a child’s (Rosendo Alba Herrera Jr) Birth Certificate on the entry concerning the parent’s marriage ‘on August 4, 1982 in Mandaluyong City’ when in fact there was no marriage (the petitioner and alleged father alleged that he ‘married only once, i.e., on June 28, 1965 with Ezperanza C. Santos and never contracted marriage with Armi nor fathered Rosendo Alba Herrera, Jr. In support thereof, he presented certifications from the Civil Registrar of Mandaluyong City and the National Statistics Office, both stating that they have no record of marriage between private respondent and Armi.’)

Republic vs Kho (G.R. No. 170340, June 29, 2007), where the Supreme Court in a Rule 108 proceeding (and without any direct action for declaration of nullity of marriage being instituted) allowed the correction of the entry of the BC’s of Carlito I. Kho and his siblings Michael, Mercy Nona, and Heddy Moira because the entry under “Date of marriage of parents” shows that their parents (Juan Kho and Epifania Inchoco) were “married” when in truth they were never factually married; the Supreme Court also allowed the correction of entry of the Birth Certificates’s of Carlito’s children Kevin and Kelly Dogmoc Kho because his children’s Birth Certificates show that Carlito and his wife were married on April 27, 1989 but they were not factually married at this time and were only married on January 21, 2000.

Republic vs Coseteng-Magpayo (GR 189476, 2 Feb 2011). This involved a petition for change of name [from Julian Edward Emerson Coseteng Magpayo to Julian Edward Emerson Marquez Lim Coseteng since his parents Fulvio M. Magpayo Jr. and Anna Dominique Marquez-Lim Coseteng were never factually married contrary to the entry stated in his BC that they were married on March 26, 1972. The Supreme Court nullified the petition which was treated in substance a Rule 108 petition. Although the proceedings were nullified for failure to implead all indispensable parties and it was not filed the RTC where the Local Civil Registrar holding the Birth Certificate was located, the Supreme Court upheld the principle that a Rule 108 petition is the proper adversarial proceeding to change the entry of a child’s Birth Certificate where the child’s parents were never factually married (and without any direct action for declaration of nullity of marriage being instituted) to correct a contrary statement of marriage in the child’s Birth Certificate.

Ceruila vs Delantara (GR 140305, 9 Dec 2005) where the Supreme Court (although nullifying the proceedings under Rule 108 for failure to notify all interested parties including the child mentioned in the BC) recognized a Rule 108 proceeding as a proper proceeding to determine the falsity of an entry concerning the date of marriage of the parents when the parents were not factually married – the petitioners prayed in their petition for the cancellation of an entry relating to ‘The date of marriage of the supposed parents, since the parents reflected in said certificate were (sic) actually full blood brother and sister and therefore marriage between the two is virtually impossible’.

Republic vs Lugsanay Uy (GR 198010, 12 Aug 2013) where the Supreme Court (although nullifying the proceedings under Rule 108 for failure to notify all interested parties including the child’s siblings and parents) recognized that a Rule 108 proceeding is a proper adversarial proceeding to correct an entry relating to the marriage of the child’s parents, on the ground that the parents were never married at all.

[Next post under this topic ‘Attacking void and voidable marriages’ will be: Attacking void and voidable marriages – Part 8 personality to assail a bigamous marriage). The previous post under this topic was: Attacking void and voidable marriages – Part 6 Void marriages – the operative fact requirement. Kindly refer to the Caveat in reading this topic.]

[This topic has eight parts. Here is a listing of the eight parts under this topic:

• Attacking void and voidable marriages – Part 1 – Introduction:
• Attacking void and voidable marriages – Part 2 – Voidable Marriages
• Attacking void and voidable marriages – Part 3 – Void Marriages
• Attacking void and voidable marriages – Part 4 Void marriages – collateral attack rules from jurisprudence; during the lifetime of the spouses
• Attacking void and voidable marriages – Part 5 Void marriages – collateral attack rules from jurisprudence; after the death of either spouse
• Attacking void and voidable marriages – Part 6 Void marriages – the operative fact requirement
• Attacking void and voidable marriages – Part 7 Rule 108 special proceeding application of rules on direct vs collateral attack on void marriages
• Attacking void and voidable marriages – Part 8 – Personality to assail a bigamous marriage]

By: Atty. Alex Andrew P. Icao

Res judicata in assailing a marriage

If one files a case for declaration of nullity of marriage, alleges only that the other spouse is psychologically incapacitated to comply with the essential marital obligations, but eventually the court in a judgment that becomes final dismisses the case with prejudice, can one still file another case for declaration of nullity of marriage on the ground that the marriage is bigamous? This question was answered by the case of Mallion vs Alcantara (GR 141528, Oct 31, 2006) in the negative.

On the other hand, is a court in a declaration of nullity case justified in allowing an amendment to the complaint to include the allegation that the marriage is void being bigamous in order to conform to the evidence presented, when the original complaint only alleged psychological incapacity as a ground? If the complaint is not amended to conform to evidence presented (concerning bigamy), the court nevertheless declared the marriage void due to its bigamous nature, will such judgment hold if the appealing party did not allege this defect in his/her appeal? Both questions were answered by the Supreme Court in Lam vs Chua (G.R. No. 131286. March 18, 2004).

Mallion vs Alcantara (GR 141528, Oct 31, 2006)

In 1995, petitioner Oscar Mallion filed a petition for declaration of nullity of marriage before the San Pablo City RTC (Civil Case 4341-95) alleging that his wife was psychologically incapacitated to comply with the essential marital obligations. That case was dismissed “upon the finding that petitioner “failed to adduce preponderant evidence to warrant the grant of the relief he is seeking.” In 1999, Oscar filed another petition for declaration of nullity of marriage on the basis that the marriage was celebrated without a valid marriage license.

The issue was framed by the Supreme Court as follows:

Does a previous final judgment denying a petition for declaration of nullity on the ground of psychological incapacity bar a subsequent petition for declaration of nullity on the ground of lack of marriage license?

The Supreme Court answered the issue in the negative, reasoning that:

Petitioner insists that because the action for declaration of nullity of marriage on the ground of psychological incapacity and the action for declaration of nullity of marriage on the ground of absence of marriage license constitute separate causes of action, the present case would not fall under the prohibition against splitting a single cause of action nor would it be barred by the principle of res judicata.

The contention is untenable.

Res judicata is defined as “a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. It also refers to the rule that a final judgment or decree on the merits by a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all later suits on points and matters determined in the former suit.”

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… Res judicata in its concept as a bar by prior judgment obtains in the present case.

Res judicata in this sense requires the concurrence of the following requisites:  (1) the former judgment is final; (2) it is rendered by a court having jurisdiction over the subject matter and the parties; (3) it is a judgment or an order onthemerits; and (4) there is — between the first and the second actions — identity of parties, of subject matter, and of causes of action.^{[Luzon Development Bank v. Conquilla, G.R. No. 163338, September 21, 2005, 470 SCRA 533]}

Petitioner does not dispute the existence of the first three requisites. What is in issue is the presence of the fourth requisite. In this regard, the test to determine whether the causes of action are identical is to ascertain whether the same evidence will sustain both actions, or whether there is an identity in the facts essential to the maintenance of the two actions.  If the same facts or evidence would sustain both, the two actions are considered the same, and a judgment in the first case is a bar to the subsequent action. ^{[Sangalang v. Caparas, G.R. No. L-49749, June 18, 1987, 151 SCRA 53.]}

Based on this test, petitioner would contend that the two petitions brought by him seeking the declaration of nullity of his marriage are anchored on separate causes of action for the evidence necessary to sustain the first petition which was anchored on the alleged psychological incapacity of respondent is different from the evidence necessary to sustain the present petition which is anchored on the purported absence of a marriage license.

Petitioner, however, forgets that he is simply invoking different grounds for the same cause of action. By definition, a cause of action is the act or omission by which a party violates the right of another.^{[RULES OF COURT, Rule 2, Section 2.]}In both petitions, petitioner has the same cause – the declaration of nullity of his marriage to respondent. What differs is the ground upon which the cause of action is predicated. These grounds cited by petitioner essentially split the various aspects of the pivotal issue that holds the key to the resolution of this controversy, that is, the actual status of petitioner and respondent’s marriage.

Furthermore, the instant case is premised on the claim that the marriage is null and void because no valid celebration of the same took place due to the alleged lack of a marriage license. In Civil Case No. SP 4341-95, however, petitioner impliedly conceded that the marriage had been solemnized and celebrated in accordance with law. Petitioner is now bound by this admission. The alleged absence of a marriage license which petitioner raises now could have been presented and heard in the earlier case. Suffice it to state that parties are bound not only as regards every matter offered and received to sustain or defeat their claims or demand but as to any other admissible matter which might have been offered for that purpose and of all other matters that could have been adjudged in that case.^{[Carlet v. CA, G.R. No. 114275, July 7, 1997, 275 SCRA 97.]}

[underscoring supplied]

Lam vs Chua (G.R. No. 131286. March 18, 2004)

In this case, a petition for declaration of nullity of marriage was filed by the wife (Adriana Chua, respondent) against the husband (Jose Lam, petitioner) alleging that their marriage was void due to psychological incapacity of the husband (under Article 36 of the Family Code). After the wife’s presentation of evidence on psychological incapacity (without presentation of evidence on support), her motion to reopen the case was granted, whereupon she presented evidence on support and that her marriage to Jose was bigamous and void since Jose was previously married twice. During this hearing, the wife was allowed to testify in Court to prove support and the wife’s counsel was allowed by the Court to insert in the petition ‘the handwritten phrase “And for respondent to support the child of petitioner in an amount this Honorable Court may deem just and reasonable”’; there was no insertion of any phrase regarding the bigamous marriages of the husband in the petition, and the husband was not notified of any amendments to the petition.

The Supreme Court would also have nullified the trial court’s decision declaring the marriage void due to bigamy because the petition was not amended nor was the respondent notified of any amendments since there ‘nothing on record to show that petitioner Jose was notified of the substantial changes in the petition’. However, the Supreme Court held that since Jose did not raise this ground in assailing the trial court’s decision, Jose ‘estopped from questioning the declaration of nullity of his marriage with Adriana and therefore, the Court will not undo the judgment of the Pasay RTC declaring the marriage of Adriana and Jose null and void for being bigamous.  It is an axiomatic rule that while a jurisdictional question may be raised at any time, this, however, admits of an exception where estoppel has supervened.^{[20][TGL Sales Corporation vs. Court of Appeals, 349 SCRA 35 (2001)]}’

Arguably, the premise of the Lam vs Chua (2004) case is that substantial changes in the petition through the introduction of evidence without objection of the other party is allowed even in declaration of nullity cases, provided the other party is notified of these substantial changes. Even if the other party has not filed an answer, the other party is entitled to notification since there is no default in declaration of nullity and legal separation cases: see for instance, the following portion of the Supreme Court’s Decision:

A party who has been declared in default is entitled to service of substantially amended or supplemental pleadings.^{[16][quoting s 9 Rule 13 Rules of Court]} Considering that in cases of declaration of nullity of marriage or annulment of marriage, there can be no default pursuant to Section 6, Rule 18 of the Revised Rules of Court^{[17][quoting s 6 Rule 18 Rules of Court]} in relation to Article 48 of the Family Code,^{[18][quoting Article 48 Family Code]} it is with more reason that petitioner should likewise be entitled to notice of all proceedings.

By: Atty. Alex Andrew P. Icao

Attacking void and voidable marriages – Part 6 Void marriages – the operative fact requirement

The foregoing notwithstanding, there is a need to address a ‘floodgates’ issue. Given that a void marriage may not be collaterally attacked, logic dictates that there should be a threshold before the rule may be invoked, otherwise any scorned lover whose erstwhile lover had already married can bring a case for bigamy against the latter, on the mere allegation that they were previously married, when in truth there was no marriage celebrated and only an unregistered marriage certificate is presented. By ‘threshold’ means that a certain operative fact should exist before the rule (that a void ‘marriage’ may not be collaterally attacked) may be invoked. What should this operative fact be?

Should the mere presence of an unregistered marriage contract suffice to bar a collateral attack (ie, only a direct action will suffice)? Or must there be in existence a registered marriage contract before a collateral attack is barred? Surely, a registered marriage contract is not in itself a requisite to the validity of the marriage, nor is the signing of a marriage contract a requisite for validity. However, a marriage contract is evidence that a marriage ceremony was held where both the husband and wife swore before a person qualified to solemnize marriages that they are taking each other as husband and wife — it is the fact of celebration of a marriage that is one of the requisites for a marriage’s validity. Since the existence of a registered marriage contract arguably gives rise to a presumption that a marriage was celebrated (a marriage contract is ‘evidence, even against a third person, of the fact [of marriage] which gave rise to their execution’: s 23 Rule 132), may this presumption be overcome in a collateral proceeding? It is submitted that a marriage evidenced by a registered marriage contract may not be attacked in a collateral proceeding. Whether there is evidence to prove that a marriage was not celebrated (contrary to the presumption of the registered marriage contract) calls for the presentation of testimonial or documentary evidence that renders it susceptible to collusion, and this in turn requires state intervention that is only afforded in a direct proceeding (where the Fiscal or SolGen participates).

In Morigo vs People (G.R. No. 145226,  February 06, 2004),the first marriage was declared null and void in a separate judicial proceeding, because no marriage ceremony was performed — the marriage was fictitious. The nullity of the first marriage was successfully used as a defense to a prosecution for bigamy. Thus, there was no issue on whether the presumption of the factual existence of a marriage may be overcome by evidence in the same collateral proceeding, since there was already a final declaration of nullity made in a separate direct proceeding.

What if the marriage contract in the Morigo case was an unregistered one, no direct proceeding had finally declared the marriage null and void, and no marriage ceremony was performed, would a collateral attack have been allowed in the bigamy case? I think so. The unregistered marriage contract is not a public document, and cannot be prima evidence of the facts stated therein. Should there be no marriage contract, or an unregistered marriage contract, then the operative fact to invoke the rule (that a void marriage cannot be collaterally attacked during the lifetime of the spouses) has not arisen, so the rule barring a collateral attack (and requiring a direct action) does not apply. See also, Go-Bangayan vs Bangayan (G.R. No. 201061, July 3, 2013) (involving a direct action to nullify a fictitious marriage evidenced by an unregistered marriage contract), where there was arguably no presumption of a factually celebrated marriage that arose from the unregistered marriage contract.

The proposition that a marriage evidenced by an unregistered marriage contract may be collaterally attacked, does not contradict Morigo (2004) where it was held that one may contract marriage, without becoming liable for bigamy, even if there exists a registered marriage contract of a previous fictitious (non-celebrated) marriage. The contracting of a marriage is an extrajudicial act, and whether the marriage is fictitious or not may be settled in a direct proceeding; it is just that, without a final pronouncement nullifying the fictitious marriage in a direct proceeding, no evidence may be presented in the collateral proceeding (prosecution for bigamy) to overcome the presumption from a registered marriage contract that the marriage was celebrated.

Republic vs Olaybar (GR 189538, February 10, 2014) [a previous post on the Republic vs Olaybar case appears in Collateral attack on registered but fictitious marriages: Republic vs Olaybar (February 10, 2014)]

In the case of Republic vs Olaybar (GR 189538, February 10, 2014), a Rule 108 proceeding was permitted to attack the entries (in particular, those pertaining to the name of the wife, petitioner Merlinda Olaybar, who proved that she did not appear before the solemnizing Judge and her signature in the marriage contract was forged) of a registered, albeit, fictitious marriage contract.

One may be tempted to see Republic vs Olaybar (2014) as having lowered the bar when a collateral attack (a Rule 108 proceeding not being a direct proceeding) against a registered marriage can be done. In allowing the collateral attack, the Supreme Court seemed to have classified the action not as a direct action when it stated that ‘[r]espondent indeed sought, not the nullification of marriage as there was no marriage to speak of, but the correction of the record of such marriage to reflect the truth as set forth by the evidence. Otherwise stated, in allowing the correction of the subject certificate of marriage by cancelling the wife portion thereof, the trial court did not, in any way, declare the marriage void as there was no marriage to speak of.’. If the bar were indeed lowered, a collateral attack is permissible even if there is a registered marriage contract, so long as the marriage is fictitious.

However, the Republic vs Olaybar (2014) case cannot be interpreted as having conclusively lowered the bar of collateral attack for the following reasons: a) the Supreme Court adverted to the ruling in Fujiki (2013) stating the general rule that ‘[t]o be sure, a petition for correction or cancellation of an entry in the civil registry cannot substitute for an action to invalidate a marriage. A direct action is necessary to prevent circumvention of the substantive and procedural safeguards of marriage under the Family Code, A.M. No. 02-11-10-SC and other related laws.’ b) the Supreme Court considered full opportunity to present evidence by all parties when it said that ‘[w]hile we maintain that Rule 108 cannot be availed of to determine the validity of marriage, we cannot nullify the proceedings before the trial court where all the parties had been given the opportunity to contest the allegations of respondent; the procedures were followed, and all the evidence of the parties had already been admitted and examined.’ These statements by the Supreme Court might be indicative of a jurisprudential attitude to view the peculiar facts of the case as a substantial compliance of the requirements of a direct action under A.M. No. 02-11-10-SC, which is understandable considering that the alleged husband was impleaded, considering that the Solicitor General (through the Prosecutor) who participated in the proceedings are the same personalities whose participation is required to prevent collusion between the parties in direct actions to nullify marriages, and also considering that the action was filed before the RTC Branch 6 of Cebu City which is a Family Court per AM # 08-11-667-RTC dated 12-16-2008).

It is also hard to sustain a conclusion that Republic vs Olaybar (2014) has lowered the standard to permit a collateral attack against fictitious but registered marriages. Such a conclusion would also dictate the assumption that there is no presumption of validity for registered marriages that are alleged to be fictitious. But this assumption cannot be sustained because the act of registration of the marriage contract itself operates to create a presumption that the marriage is not fictitious under Section 23 Rule 132 (‘Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated’) — that it was celebrated between the individuals stated therein. If one argues that the presumption only applies if it is truly the contracting parties themselves who appeared before the solemnizing officer, then this defeats the purpose of the anti-collusion provisions found in the Family Code and A.M. No. 02-11-10-SC, and it also defeats the presumption of validity of the registered marriage, since it is precisely the purpose of a direct proceeding to overcome the presumption of validity in carefully evaluating the allegation that the registered marriage is fictitious.

Arguably, the case of Republic vs Olaybar (2014) is better viewed as a substantial compliance of the direct action under A.M. No. 02-11-10-SC.

[Next post under this topic ‘Attacking void and voidable marriages’ will be: Attacking void and voidable marriages – Part 7 Rule 108 special proceeding application of rules on direct vs collateral attack on void marriages). The previous post under this topic was: Attacking void and voidable marriages – Part 5 Void marriages – collateral attack rules from jurisprudence; after the death of either spouse. Kindly refer to the Caveat in reading this topic.]

[This topic has eight parts. Here is a listing of the eight parts under this topic:

• Attacking void and voidable marriages – Part 1 – Introduction:
• Attacking void and voidable marriages – Part 2 – Voidable Marriages
• Attacking void and voidable marriages – Part 3 – Void Marriages
• Attacking void and voidable marriages – Part 4 Void marriages – collateral attack rules from jurisprudence; during the lifetime of the spouses
• Attacking void and voidable marriages – Part 5 Void marriages – collateral attack rules from jurisprudence; after the death of either spouse
• Attacking void and voidable marriages – Part 6 Void marriages – the operative fact requirement
• Attacking void and voidable marriages – Part 7 Rule 108 special proceeding application of rules on direct vs collateral attack on void marriages
• Attacking void and voidable marriages – Part 8 – Personality to assail a bigamous marriage]

By: Atty. Alex Andrew P. Icao

Attacking void and voidable marriages – Part 5 Void marriages – collateral attack rules from jurisprudence; after the death of either spouse

(II) After the death of either spouse

(II.1) After the death of either spouse, there is no more limitation to the susceptibility of a void marriage being subject to a collateral attack by interested persons (including heirs). After death, the potential for collusion is lessened. During the spouses’ lifetime, there is a high chance of collusion between spouses to manufacture grounds to nullify their marriage in order to remarry.

See eg, Cariño vs Cariño (G.R. No. 132529. February 2, 2001) where a collateral attack was allowed against two marriages, after the death of the common spouse (deceased SPO4 Santiago S. Cariño) in an action for collection of a sum of money by the alleged legal wife Susan Yee against Susan Nicdao. In Cariño there were two marriages: a marriage on June 20, 1969 (between deceased and Susan Nicdao void due to lack of a marriage license); a marriage on November 10, 1992 (between deceased and Susan Yee void because it is in violation of Article 40 Family Code, hence bigamous). The Supreme Court further held that ‘[c]onsidering that the two marriages are void ab initio, the applicable property regime would not be absolute community or conjugal partnership of property, but rather, be governed by the provisions of Articles 147 and 148 of the Family Code on “Property Regime of Unions Without Marriage.’

See also, the case of Armas vs Calisterio (G.R. No. 136467, April 6, 2000) where, in a settlement of estate case, the Supreme Court ruled on whether the subsequent marriage (on May 8, 1958) between Marietta and Teodorico Calisterio (1958) was valid or void ab initio for failure to comply with the requirements of Article 41 Family Code (there was no judicial declaration of presumptive death of Marietta’s first marriage to James Bounds in 1946). The validity of Teodorico’s marriage to Marietta was relevant in determining whether Marietta was an heir (as legal wife) of Teodorico.

See further the case of Garcia-Quiazon vs Belen (GR 189121, 31 July 2013) where, in a settlement of estate case, the Supreme Court ruled that the subsequent marriage (of Eliseo Quiazon and petitioner Amelia Garcia-Quiazon; ‘at the time of the celebration of the marriage of Eliseo and Amelia, the law in effect was the Civil Code, and not the Family Code’) was void ab initio because it was bigamous, having been contracted during the subsistence a previous marriage between Amelia and Filipito Sandico. The issue was important because it affected petitioner Amelia’s standing in opposing the petition for issuance of letters administration filed by Eliseo’s common law wife respondent Ma. Lourdes Belen on behalf of their daughter Elise Quiason.

(II.2) Of course, there is no prohibition for interested parties (not confined solely to the surviving spouse) to institute a direct action (after the death of the other spouse) to have the marriage declared void. (Contra (II.3) discussed below)

See Niñal vs Bayadog (G.R. No. 133778, March 14, 2000), where a direct action to declare the marriage (celebrated December 11, 1986) between Pepito Niñal and Norma Bayadog as null and void due to lack of a marriage license, was filed after Pepito’s death (1997) by Pepito’s legitimate children from his former marriage with Teodulfa Bellones (terminated when Pepito shot Teodulfa to death). The Supreme Court held that Pepito’s legitimate children from his former marriage had sufficient personality to initiate the direct action after his death.

(II.3) There is however, the presently controlling view that the right of an interested party (who is not a spouse) to file a direct action to nullify a void marriage is limited to marriages that are not covered by A.M. No. 02-11-10-SC; and that this rule applies regardless of whether a spouse to the marriage has died. Pursuant to this view, if a spouse to the marriage has died, it is still the surviving spouse that has the right to institute the direct action; an interested party (who is not a spouse) may still maintain a collateral action to assail the validity of the marriage.

See Ablaza vs Republic (GR 158298, 11 Aug 2010) and Carlos vs Sandoval (GR 179922, 16 Dec 2008) which involve direct actions for declaration of nullity. These cases were expressly justified by the Supreme Court reasoning that A.M. No. 02-11-10-SC was not applicable to the direct action (either because the marriage was celebrated not under Family Code effectivity, or the direct action was commenced before A.M. No. 02-11-10-SC effectivity).

See Enrico vs Heirs of Spouses Medinaceli (G.R. No. 173614, September 28, 2007). In this case, it was the heirs (children) of the Spouses Eulogio and Trinidad Medinaceli (first marriage on 14 June 1962) that filed a direct action (on March 17, 2005) for declaration of nullity of the subsequent marriage (second marriage on 26 August 2004) between Eulogio and petitioner Lolita Enrico, which direct action was filed after Eulogio’s death on 10 February 2005. Trinidad had already died on May 1, 2004. The ground for nullity was that the 2^nd marriage was entered into w/o a marriage license. The Supreme Court dismissed the complaint, reasoning that:

While it is true that Niñal in no uncertain terms allowed therein petitioners to file a petition for the declaration of nullity of their father’s marriage to therein respondent after the death of their father, we cannot, however, apply its ruling for the reason that the impugned marriage therein was solemnized prior to the effectivity of the Family Code. The Court in Niñal recognized that the applicable law to determine the validity of the two marriages involved therein is the Civil Code, which was the law in effect at the time of their celebration.^[23] What we have before us belongs to a different milieu, e., the marriage sought to be declared void was entered into during the effectivity of the Family Code. As can be gleaned from the facts, petitioner’s marriage to Eulogio was celebrated in 2004.

xxx

The categorical language of A.M. No. 02-11-10-SC leaves no room for doubt. The coverage extends only to those marriages entered into during the effectivity of the Family Code which took effect on 3 August 1988.

Hence, in resolving the issue before us, we resort to Section 2(a) of A.M. No. 02-11-10-SC, which provides:

Section 2. Petition for declaration of absolute nullity of void marriages. –

(a) Who may file. – A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (n) (Emphasis supplied.)

There is no ambiguity in the Rule. Absolute sententil expositore non indiget. When the language of the law is clear, no explanation of it is required. Section 2(a) of A.M. No. 02-11-10-SC, makes it the sole right of the husband or the wife to file a petition for declaration of absolute nullity of void marriage.

xxx

Respondents clearly have no cause of action before the court a quo. Nonetheless, all is not lost for respondents. While A.M. No. 02-11-10-SC declares that a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife, it does not mean that the compulsory or intestate heirs are already without any recourse under the law. They can still protect their successional right, for, as stated in the Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders,   compulsory or intestate heirs can still question the validity of the marriage of the spouses, not in a proceeding for declaration of nullity, but upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts.

See also the case of Garcia-Quiazon vs Belen (GR 189121, 31 July 2013), where Supreme Court in obiter (obiter since the action did not involve a direct proceeding; it involved a settlement of estate proceeding, hence a collateral proceeding), seemingly supported the ruling in Enrico (that only marriages not covered by A.M. No. 02-11-10-SC may be commenced by interested parties other than the spouses right even after the death of one of the spouses), when it said that:

‘at the time of the celebration of the marriage of Eliseo and Amelia, the law in effect was the Civil Code, and not the Family Code, making the ruling in Niñal v. Bayadog^{[23][384 Phil. 661, 673 (2000).]} applicable four-square to the case at hand. In Niñal, the Court, in no uncertain terms, allowed therein petitioners to file a petition for the declaration of nullity of their father’s marriage to therein respondent after the death of their father’.

(II.2) vs (II.3)? I respectfully subscribe to the unqualified view in (II.2).

Although the cases of Ablaza vs Republic (GR 158298, 11 Aug 2010) and Carlos vs Sandoval (GR 179922, 16 Dec 2008) were expressly justified by the Supreme Court reasoning that A.M. No. 02-11-10-SC was not applicable to the direct action (either because the marriage was celebrated not under Family Code effectivity, or the direct action was commenced before A.M. No. 02-11-10-SC effectivity), I submit that the real determinant for Ablaza and Carlos vs Sandoval was that the action was commenced after the death of one of the spouses, hence there was no more limitation.

The competing considerations in questions involving collateral attack on void marriages were highlighted earlier in the portion ‘Collateral attack on void marriages – Competing considerations:’ in the post under this topic entitled Attacking void and voidable marriages – Part 3 – Void Marriages. These competing considerations arguably run counter to the reasoning in Enrico vs Heirs of Spouses Medinaceli (G.R. No. 173614, September 28, 2007).

Furthermore, Section 2(a) even if literally read should not apply when either spouse has died, because one has ceased to be a ‘husband’ or a ‘wife’ already after the death of a spouse. Additionally, if the void marriage is subject to collateral attack by interested persons (not the surviving spouse) after death of a spouse, it is illogical why a direct (and more appropriate) action is not allowed.

[Next post under this topic ‘Attacking void and voidable marriages’ will be: Attacking void and voidable marriages – Part 6 Void marriages – the operative fact requirement). The previous post under this topic was: Attacking void and voidable marriages – Part 4 Void marriages – collateral attack rules from jurisprudence; during the lifetime of the spouses. Kindly refer to the Caveat in reading this topic.]

[This topic has eight parts. Here is a listing of the eight parts under this topic:

• Attacking void and voidable marriages – Part 1 – Introduction:
• Attacking void and voidable marriages – Part 2 – Voidable Marriages
• Attacking void and voidable marriages – Part 3 – Void Marriages
• Attacking void and voidable marriages – Part 4 Void marriages – collateral attack rules from jurisprudence; during the lifetime of the spouses
• Attacking void and voidable marriages – Part 5 Void marriages – collateral attack rules from jurisprudence; after the death of either spouse
• Attacking void and voidable marriages – Part 6 Void marriages – the operative fact requirement
• Attacking void and voidable marriages – Part 7 Rule 108 special proceeding application of rules on direct vs collateral attack on void marriages
• Attacking void and voidable marriages – Part 8 – Personality to assail a bigamous marriage]

By: Atty. Alex Andrew P. Icao

Attacking void and voidable marriages – Part 4 Void marriages – collateral attack rules from jurisprudence; during the lifetime of the spouses

Collateral attack on void marriages – Rules from jurisprudence

We look at the rationale and Supreme Court interpretations of A.M. No. 02-11-10-SC.

In Juliano-Llave vs Republic (G.R. No. 169766, March 30, 2011) the Supreme Court stated that — ‘The Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders explicates on Section 2(a) in the following manner’:

‘Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of absolute nullity of void marriages. Such petition cannot be filed by compulsory or intestate heirs of the spouses or by the State. The Committee is of the belief that they do not have a legal right to file the petition. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and hence can only question the validity of the marriage of the spouses upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. On the other hand, the concern of the State is to preserve marriage and not to seek its dissolution. ^{[57][Enrico v. Heirs of Sps. Eulogio B. Medinaceli and Trinidad Catli-Medinaceli, G.R. No. 173614, September 28, 2007, 534 SCRA 418, 429, citing Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders]}’

As summarized in Ablaza vs Republic (GR 158298, 11 Aug 2010), the case of Carlos vs Sandoval (G.R. No. 179922, December 16, 2008, 574 SCRA 116), is authority that A.M. No. 02-11-10-SC being prospective in nature, the following actions for declaration of absolute nullity of a marriage are excepted from the limitation, to wit:

• Those commenced before March 15, 2003, the effectivity date of A.M. No. 02-11-10-SC; and
• Those filed vis-à-vis marriages celebrated during the effectivity of the Civil Code and, those celebrated under the regime of the Family Code prior to March 15, 2003.

From the foregoing, it is proposed that rules may be discerned in two situations:

• (I) During the lifetime of the spouses (or before either spouse dies)
• (II) After death of either spouse (discussion will be in Part 5 of this Topic).
  

(I) During the lifetime of the spouses (or before either spouse dies). Under this situation are the following points, which will be expanded later on:

• (I.1) The absolute nullity of the marriage may only be declared in a direct proceeding brought precisely for the purpose of declaring such marriage void.
• (I.2) The spouses itself to the marriage, and other interested third persons may not invoke the nullity of the void marriage (whose nullity has not been finally declared in a direct action), in order to seek affirmative relief or by way of defense in any collateral proceeding.
• (I.3) If the nullity of the void marriage has been finally declared in a direct action, then any interested party (spouse, children) may rely on the final judgment in the direct action, for any relevant purpose in any collateral proceeding, as a consequence of the doctrine of res judicata (bar by prior judgment).
• (I.4) the personality to institute the direct action solely belongs to the husband and the wife: see Section 2(a) A.M. No. 02-11-10-SC which states that a ‘petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife’.
• (I.5) Rules (I.1), (I.2), and (I.3) apply to all marriages regardless of time celebrated (Old Civil Code, New Civil Code or Family Code) or time when the direct action for declaration of nullity of marriage was instituted (either before or after A.M. No. 02-11-10-SC effectivity).

(I.1) The absolute nullity of the marriage may only be declared in a direct proceeding brought precisely for the purpose of declaring such marriage void.

(I.2) The spouses itself to the marriage, and other interested third persons may not invoke the nullity of the void marriage (whose nullity has not been finally declared in a direct action), in order to seek affirmative relief or by way of defense in any collateral proceeding.

(I.2a) By way of defense in a collateral proceeding: See eg, the cases on bigamy, where the issue is whether a previous or subsequent void marriage constitutes a defense to a bigamy charge. Despite the multifarious views on whether a void marriage can constitute a defense to bigamy, I submit that there is an agreement that in the instances when a void marriage can be a defense to bigamy, there will only be a successful defense if there is itself a decision in a direct proceeding declaring such marriage void.

(I.3) If the nullity of the void marriage has been finally declared in a direct action, then any interested party (spouse, children) may rely on the final judgment in the direct action, for any relevant purpose in any collateral proceeding, as a consequence of the doctrine of res judicata (bar by prior judgment).

(I.3a.i) Analysis of the case of Fujiki vs Marinay (G.R. No. 196049, 26 June 2013):

The RTC of Quezon City dismissed petitioner Fujiki’s (a Japanese national) petition for judicial recognition of a foreign judgment obtained in Japan by Fujiki’s wife Marinay (Fujiki and Marinay married in 2004) declaring Marinay’s subsequent marriage to Maekara (Maekara and Marinay married in 2008 in Quezon City) void due to its bigamous nature. Direct recourse was made to the Supreme Court on a pure question of law under Rule 45. The Supreme Court granted the petition and ordered the RTC to reinstate the petition.

Fujiki did not actually deal with the collateral attack of a void marriage, because there was already a direct judicial proceeding (although foreign) declaring such marriage void. Arguably, the true determinant for the case was whether the foreign judgment (declaring a subsequent marriage void due to its bigamous nature) is consistent with our public policy (including under A.M. No. 02-11-10-SC) or is substantially a ‘direct’ action protecting the public policy underlying A.M. No. 02-11-10-SC, such that the foreign spouse of the first marriage may file a petition for judicial recognition of the foreign judgment in a Rule 108 proceeding before our courts.

In Fujiki, the Supreme Court held that:

A foreign judgment relating to the status of a marriage affects the civil status, condition and legal capacity of its parties. However, the effect of a foreign judgment is not automatic. To extend the effect of a foreign judgment in the Philippines, Philippine courts must determine if the foreign judgment is consistent with domestic public policy and other mandatory laws.^{[60][C IVIL CODE , Art. 17.]} Article 15 of the Civil Code provides that “[l]aws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.” This is the rule of lex nationalii in private international law. Thus, the Philippine State may require, for effectivity in the Philippines, recognition by Philippine courts of a foreign judgment affecting its citizen, over whom it exercises personal jurisdiction relating to the status, condition and legal capacity of such citizen.

xxx

Section 48(b), Rule 39 of the Rules of Court provides that a foreign judgment or final order against a person creates a “presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.”…

xxx

Since 1922 in Adong v. Cheong Seng Gee,^{[63][43 Phil. 43 (1922)]} Philippine courts have recognized foreign divorce decrees between a Filipino and a foreign citizen if they are successfully proven under the rules of evidence.^{[64][Corpuz v. Sto. Tomas, G.R. No. 186571, 11 August 2010, 628 SCRA 266, 280; Garcia v. Recio , 418 Phil. 723 (2001); Adong v. Cheong Seng Gee , supra ]} … While the Philippines does not have a divorce law, Philippine courts may, however, recognize a foreign divorce decree under the second paragraph of Article 26 of the Family Code, to capacitate a Filipino citizen to remarry when his or her foreign spouse obtained a divorce decree abroad.^{[65][quoting Art 65 FC 2nd par]}.

There is therefore no reason to disallow Fujiki to simply prove as a fact the Japanese Family Court judgment nullifying the marriage between Marinay and Maekara on the ground of bigamy. While the Philippines has no divorce law, the Japanese Family Court judgment is fully consistent with Philippine public policy, as bigamous marriages are declared void from the beginning under Article 35(4) of the Family Code. Bigamy is a crime under Article 349 of the Revised Penal Code. Thus, Fujiki can prove the existence of the Japanese Family Court judgment in accordance with Rule 132, Sections 24 and 25, in relation to Rule 39, Section 48(b) of the Rules of Court.

xxx

‘[The rule that ‘a Filipino citizen cannot dissolve his marriage by the mere expedient of changing his entry of marriage in the civil registry’] does not apply in a petition for correction or cancellation of a civil registry entry based on the recognition of a foreign judgment annulling a marriage where one of the parties is a citizen of the foreign country. There is neither circumvention of the substantive and procedural safeguards of marriage under Philippine law, nor of the jurisdiction of Family Courts under R.A. No. 8369. A recognition of a foreign judgment is not an action to nullify a marriage. It is an action for Philippine courts to recognize the effectivity of a foreign judgment, which presupposes a case which was already tried and decided under foreign law. The procedure in A.M. No. 02-11-10-SC does not apply in a petition to recognize a foreign judgment annulling a bigamous marriage where one of the parties is a citizen of the foreign country. Neither can R.A. No. 8369 define the jurisdiction of the foreign court.

Article 26 of the Family Code confers jurisdiction on Philippine courts to extend the effect of a foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage. The second paragraph of Article 26 of the Family Code provides that “[w]here a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.” In Republic v. Orbecido,^{[88][509 Phil. 108 (2005)]} this Court recognized the legislative intent of the second paragraph of Article 26 which is “to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse”^{[89][Id. at 114]} under the laws of his or her country. The second paragraph of Article 26 of the Family Code only authorizes Philippine courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow divorce. Philippine courts cannot try the case on the merits because it is tantamount to trying a case for divorce.

The second paragraph of Article 26 is only a corrective measure to address the anomaly that results from a marriage between a Filipino, whose laws do not allow divorce, and a foreign citizen, whose laws allow divorce. The anomaly consists in the Filipino spouse being tied to the marriage while the foreign spouse is free to marry under the laws of his or her country. The correction is made by extending in the Philippines the effect of the foreign divorce decree, which is already effective in the country where it was rendered. The second paragraph of Article 26 of the Family Code is based on this Court’s decision in Van Dorn v. Romillo^{[90][223 Phil. 357 (1985)]} which declared that the Filipino spouse “should not be discriminated against in her own country if the ends of justice are to be served.”^{[91][Id. at 363]}.

The principle in Article 26 of the Family Code applies in a marriage between a Filipino and a foreign citizen who obtains a foreign judgment nullifying the marriage on the ground of bigamy. The Filipino spouse may file a petition abroad to declare the marriage void on the ground of bigamy. The principle in the second paragraph of Article 26 of the Family Code applies because the foreign spouse, after the foreign judgment nullifying the marriage, is capacitated to remarry under the laws of his or her country. If the foreign judgment is not recognized in the Philippines, the Filipino spouse will be discriminated—the foreign spouse can remarry while the Filipino spouse cannot remarry.

Under the second paragraph of Article 26 of the Family Code, Philippine courts are empowered to correct a situation where the Filipino spouse is still tied to the marriage while the foreign spouse is free to marry. Moreover, notwithstanding Article 26 of the Family Code, Philippine courts already have jurisdiction to extend the effect of a foreign judgment in the Philippines to the extent that the foreign judgment does not contravene domestic public policy. A critical difference between the case of a foreign divorce decree and a foreign judgment nullifying a bigamous marriage is that bigamy, as a ground for the nullity of marriage, is fully consistent with Philippine public policy as expressed in Article 35(4) of the Family Code and Article 349 of the Revised Penal Code. The Filipino spouse has the option to undergo full trial by filing a petition for declaration of nullity of marriage under A.M. No. 02-11-10-SC, but this is not the only remedy available to him or her. Philippine courts have jurisdiction to recognize a foreign judgment nullifying a bigamous marriage, without prejudice to a criminal prosecution for bigamy.

In the recognition of foreign judgments, Philippine courts are incompetent to substitute their judgment on how a case was decided under foreign law. They cannot decide on the “family rights and duties, or on the status, condition and legal capacity” of the foreign citizen who is a party to the foreign judgment. Thus, Philippine courts are limited to the question of whether to extend the effect of a foreign judgment in the Philippines. In a foreign judgment relating to the status of a marriage involving a citizen of a foreign country, Philippine courts only decide whether to extend its effect to the Filipino party, under the rule of lex nationalii expressed in Article 15 of the Civil Code.

In my view, the above-quoted portion of the decision in Fujiki may be synthesized as follows:

It is certainly in accord with Philippine public policy for a foreigner to obtain judicial recognition of a foreign judgment declaring the subsequent marriage of his/her Filipino spouse void due to its bigamous nature. However, recognition of the foreign judgment is uncertain in other situations — such as when it is the erring Filipino spouse who obtains the foreign judgment, or files the petition for recognition, or when the subsequent marriage is declared void on grounds other than those expressly recognized by Philippine law. This uncertainty is apparent from the Supreme Court’s reasoning. Although the Supreme Court in its decision reasoned that 1) a foreign judgment nullifying a subsequent marriage due to its bigamous nature ‘is fully consistent with Philippine public policy, as bigamous marriages are declared void from the beginning under Article 35(4) of the Family Code’, 2) and that the rationale of the 2^nd paragraph of Article 26 2^nd of the Family Code is applicable to the situation because ‘[i]f the foreign judgment is not recognized in the Philippines, the Filipino spouse will be discriminated—the foreign spouse can remarry while the Filipino spouse cannot remarry’, the Supreme Court further explained the standards by which a foreign judgment should be deemed to be consistent with the public policy underlying the need to maintain a direct action under A.M. No. 02-11-10-SC — this also includes the need for State to maintain the integrity of marriage by ensuring that no collusion exists through the Fiscal’s intervention, the need to liquidate the property regime, or provision of support pendente lite.

(I.4) The personality to institute the direct action solely belongs to the husband and the wife: see Section 2(a) A.M. No. 02-11-10-SC which states that a ‘petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife’.

(I.4.a) This does not apply for actions for declaration of absolute nullity of a marriage excepted from A.M. No. 02-11-10-SC under the rulings of Ablaza vs Republic (G.R. No. 158298, 11 Aug 2010) and Carlos vs Sandoval (G.R. No. 179922, December 16, 2008)

(I.4.b) The ‘aggrieved spouse’ is not confined to the spouses themselves to the subsequent bigamous marriage, but includes the spouse of the first marriage: see Fujiki vs Marinay (GR 196049, 26 Jun 2013); Juliano-Llave vs Republic (G.R. No. 169766, March 30, 2011). This will be further explained in succeeding discussions under this topic.

(I.4.c) History of who has the personality to institute the direct action — While it was stated in Ablaza vs Republic (GR 158298, 11 Aug 2010) that ‘[t]he old and new Civil Codes contain no provision on who can file a petition to declare the nullity of a marriage, and when’, it is also true that under the Family Code there is also no express provision stating who has the personality to institute the direct action. What was introduced under the Family Code was the new provision under Article 40 Family Code that ‘The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n).’

(I.5) Rules (I.1), (I.2), and (I.3) apply to all marriages regardless of time celebrated (Old Civil Code, New Civil Code or Family Code) or time when the direct action for declaration of nullity of marriage was instituted (either before or after A.M. No. 02-11-10-SC effectivity).

(I.5.a) Case law has concentrated the effects of the inapplicability of A.M. No. 02-11-10-SC to direct actions to nullify marriages not covered by A.M. No. 02-11-10-SC, only with respect to the applicability of certain provisions of A.M. No. 02-11-10-SC to the direct action instituted

(I.5.a.i) Who may bring the action for declaration of nullity (under A.M. No. 02-11-10-SC)? When A.M. No. 02-11-10-SC is inapplicable, the personality to institute the direct action is not confined to the spouses of the marriage as mandated by Section 2(a) of A.M. No. 02-11-10-SC, but may include any interested party.

(I.5.a.i.a) Cf: Ablaza vs Republic (G.R. No. 158298, 11 Aug 2010) where the direct action was instituted by the brother (Isidro Ablaza) of one of the spouses (Cresenciano Ablaza and Leonila Honato), for purposes of claiming an inheritance in Cresenciano’s estate. It is submitted however, that the discussion on the application of Section 2(a) was merely obiter (it was said that Section 2(a) was inapplicable because the marriage was celebrated on December 26, 1949, hence the Old Civil Code was applicable) because the action was commenced after the death of Cresenciano. After death, there is no more limitation on collateral attack or who may initiate the direct action (so long as there is an interested party; in this case, an heir was the interested party).

(I.5.a.i.b) Cf: Carlos vs Sandoval (G.R. No. 179922, 16 Dec 2008). Just like in the Ablaza case, the direct action was instituted by the brother (Juan de Dios Carlos) of one of the spouses (Teofilo Carlos and Felicidad Carlos), for purposes of claiming an inheritance in Cresenciano’s estate. Teofilo had an alleged child (Teofilo II), and Juan sought to exclude Teofilo II (or else Juan as a collateral relative would have been excluded) on the basis that Teofilo II was neither a natural or adopted child. Arguably, like Ablaza, the discussion on the application of Section 2(a) was merely obiter (it was said that Section 2(a) was inapplicable because the marriage was celebrated during New Civil Code effectivity, and the action commenced in 1995 before A.M. No. 02-11-10-SC effectivity) because the action was commenced after the death of Teofilo Carlos. After death, there is no more limitation on a collateral attack or who may initiate the direct action (so long as there is an interested party; in this case, an heir is an interested party).

(I.5.a.i.c) During the lifetime of the spouses, collateral relatives who merely rely on their ‘inchoate’ right as heirs of a spouse cannot be interested persons, since the right to inheritance is merely inchoate, and ripens upon the death of the spouse in question; when the direct action is commenced after the death of one of the spouses, there is no more limitation on a collateral attack and Section 2(a) of A.M. No. 02-11-10-SC is inapplicable. Children, on the other hand, are always interested parties even during the lifetime of their parents, when the existence of the marriage affects their status as legitimate children.

(I.5.a.ii) Under s 20(1) of A.M. No. 02-11-10-SC, a motion for reconsideration as a pre-condition for appeal — arguably, in situations when A.M. No. 02-11-10-SC is inapplicable, a motion for reconsideration is not essential to perfect an appeal.

(I.5.b) The cases mentioned above, do not question the propriety of instituting the direct action to marriages or proceedings where A.M. No. 02-11-10-SC is inapplicable. In other words, even when A.M. No. 02-11-10-SC is inapplicable, all void marriages cannot be collaterally attacked while the spouses are still living. Personally, I think that any marriage (whether celebrated under the Family Code, New Civil Code or Old Civil Code) may not be collaterally attacked during the lifetime of the spouses, whether by way of invoking affirmative relief or by way of defense, because the same considerations found in the Family Code (eg, participation of the state to ensure lack of collusion between spouses as to grounds for nullity) apply to all marriages, regardless of when celebrated. Even if the affirmative relief or defense raised in the collateral proceeding is ostensibly not for purposes of remarriage, the high risk of collusion is present because if the marriage is allowed to be declared void in the collateral proceeding during the lifetime of the spouses, the parties to the marriage will be capacitated to marry again.

(I.5.c) Contra: De Castro vs De Castro (G.R. No. 160172, 13 February 2008), where a collateral attack was allowed by a spouse to a void marriage (lack of a marriage license), even when both spouses were still alive, in a collateral proceeding where A.M. No. 02-11-10-SC was inapplicable. In De Castro, the marriage was celebrated in 1991 (under Family Code effectivity). The collateral action (petition for support filed by the wife against the husband for support of their child) was filed in 1995, so A.M. No. 02-11-10-SC (took effect March 15, 2003) was inapplicable. The husband made a collateral attack on the marriage as void (no marriage license), by alleging as a defense that he is not liable for support because the marriage was void. The Supreme Court allowed a collateral attack, and declared the marriage as void. The Supreme Court said that the only time when the void marriage may not be collaterally attacked is ‘for purposes of remarriage’. The De Castro ruling presumes that the interest of the state in preventing collusion only applies for purposes of remarriage.

[Next post under this topic ‘Attacking void and voidable marriages’ will be: Attacking void and voidable marriages – Part 5 Void marriages – collateral attack rules from jurisprudence; after the death of either spouse). The previous post under this topic was: Attacking void and voidable marriages – Part 3 – Void Marriages. Kindly refer to the Caveat in reading this topic.]

[This topic has eight parts. Here is a listing of the eight parts under this topic:

• Attacking void and voidable marriages – Part 1 – Introduction:
• Attacking void and voidable marriages – Part 2 – Voidable Marriages
• Attacking void and voidable marriages – Part 3 – Void Marriages
• Attacking void and voidable marriages – Part 4 Void marriages – collateral attack rules from jurisprudence; during the lifetime of the spouses
• Attacking void and voidable marriages – Part 5 Void marriages – collateral attack rules from jurisprudence; after the death of either spouse
• Attacking void and voidable marriages – Part 6 Void marriages – the operative fact requirement
• Attacking void and voidable marriages – Part 7 Rule 108 special proceeding application of rules on direct vs collateral attack on void marriages
• Attacking void and voidable marriages – Part 8 – Personality to assail a bigamous marriage]

By: Atty. Alex Andrew P. Icao

Attacking void and voidable marriages – Part 3 – Void Marriages

Because ‘a marriage that is void ab initio is considered as having never to have taken place and cannot be the source of rights’ (Niñal vs Bayadog (G.R. No. 133778, March 14, 2000)), this quotation from Niñal (2000) shows the following traditional understanding of rules in attacking void marriages

(1) A void marriage ‘can never be ratified’: Niñal (2000).

(2) ‘[V]oid marriages can be questioned even after the death of either party’: Niñal (2000). Since the cause of action to nullify a void marriage is not extinguished upon the death of either spouse, it is deemed an action that survives.

(3) ‘[T]he action or defense for nullity is imprescriptible’: Niñal (2000). See also Article 39 of the Family Code which states that ‘The action or defense for the declaration of absolute nullity of a marriage shall not prescribe.’

(4) ‘[A] void marriage can be attacked collaterally’: Niñal (2000).

It is the particular statement in Niñal (2000) that ‘a void marriage can be attacked collaterally’ that should be evaluated as it is affected by other principles related to family law.

Collateral attack on void marriages – Competing considerations:

Collateral attack on void marriages have competing considerations in pari materia. On one hand, there is the principle that a void marriage is subject to collateral attack: Niñal (2000). On the other hand, there is the importance of maintaining a direct action (these are the public policies underlying a direct action) as highlighted in Fujiki vs Marinay (GR 196049, 26 June 2013), where the Supreme Court said:

In Braza v. The City Civil Registrar of Himamaylan City, Negros Occidental, this Court held that a “trial court has no jurisdiction to nullify marriages” in a special proceeding for cancellation or correction of entry under Rule 108 of the Rules of Court.^{[81][G.R. No. 181174, 4 December 2009, 607 SCRA 638]} Thus, the “validity of marriage x x x can be questioned only in a direct action” to nullify the marriage.^{[82][G.R. No. 181174, 4 December 2009, 607 SCRA 638]} The RTC relied on Braza in dismissing the petition for recognition of foreign judgment as a collateral attack on the marriage between Marinay and Maekara.

xxx

To be sure, a petition for correction or cancellation of an entry in the civil registry cannot substitute for an action to invalidate a marriage. A direct action is necessary to prevent circumvention of the substantive and procedural safeguards of marriage under the Family Code, A.M. No. 02-11-10-SC and other related laws. Among these safeguards are the requirement of proving the limited grounds for the dissolution of marriage,^{[83][FAMILY CODE , Article. 35-67.]} support pendente lite of the spouses and children,^{[84][quoting Article 84 Family Code — During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent. Cf. R ULES OF COURT , Rule 61]} the liquidation, partition and distribution of the properties of the spouses,^{[85][quoting Article 50 Family Code]} and the investigation of the public prosecutor to determine collusion.^{[86][quoting Article 48 Family Code; quoting s 9 A.M. No. 02-11-10-SC]} A direct action for declaration of nullity or annulment of marriage is also necessary to prevent circumvention of the jurisdiction of the Family Courts under the Family Courts Act of 1997 (Republic Act No. 8369), as a petition for cancellation or correction of entries in the civil registry may be filed in the Regional Trial Court “where the corresponding civil registry is located.”^{[87][ RULES OF C OURT , Rule 108, Sec. 1.]} In other words, a Filipino citizen cannot dissolve his marriage by the mere expedient of changing his entry of marriage in the civil registry.

The foregoing statement in Fujiki (2013) (most specially the need to prevent collusion between the parties to the marriage) is arguably anchored on the following principles:

(1) Marriage is a ‘sacrosanct institution, declared by the Constitution as an “inviolable social institution, is the foundation fo the family;” as such, it “shall be protected by the State”: Domingo vs CA (GR No. 104818, 17 September 1993).

(2) ‘[I]t is not for the spouses to judge whether that marriage was void or not. That judgment is reserved to the courts’: dissent of Alex Reyes J in People vs Mendoza (1954) 95 P 845 and People vs Aragon (1957) 100 P 1033.

(3) The principle that the state as parens patriae has an interest in the validity of marriages, it is not up to the parties to a marriage to decide on the validity of their marriage, and therefore the state must ensure and participate (through Fiscal) that there is no collusion as to the grounds that give rise to the nullity or annulment of a marriage. See Article 48 Family Code — ‘Article. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed.’. See also Article 40 Family Code — ‘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.’

(4) History of the collusion provisions:

(4a) In the New Civil Code, collusion prevention was only expressly provided in legal separation and annulment of (voidable) marriages. It did not expressly extend to declaration of nullity of (void ab initio) marriages. See Article 221 New Civil Code which states that:

Article 221 [New Civil Code]. The following shall be void and of no effect:

xxx

(3) Every collusion to obtain a decree of legal separation, or of annulment of marriage;

(4b) Under the Family Code, collusion prevention was expressly expanded to cases of declaration of nullity of (void ab initio) marriages. The erstwhile prevention of collusion to annulment of voidable marriages and legal separation was retained. For ‘cases of annulment or declaration of absolute nullity of marriage’, see Article 48 Family Code. For cases of ‘legal separation’ see the following pertinent provisions of the Family Code:

[Family Code] Article. 56. The petition for legal separation shall be denied on any of the following grounds:

xxx

(5) Where there is collusion between the parties to obtain decree of legal separation; or

[Family Code] Article. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.

In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (101a)

The Supreme Court issued A.M. No. 02-11-10-SC (Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages) which took effect on March 15, 2003, in order to govern direct actions for declaration of nullity or annulment of marriages.

The enactment of A.M. No. 02-11-10-SC arguably gave rise to several questions centered on the limitations to our traditional understanding that a void marriage is subject to collateral attack.

The need for an intervention of the State to protect the integrity of the marriage had become more imperative under the Family Code, due to the introduction of psychological incapacity as an additional ground to nullify a marriage. While other grounds to void a marriage are easier to prove and disprove, proving and disproving psychological incapacity is harder, hence making it more susceptible to collusion.

Collateral attack on void marriages – examples of collateral proceedings where the voidness of a marriage may arguably be invoked:

The following are examples of of collateral proceedings where the voidness of a marriage may arguably be invoked:

(1) For affirmative relief:

• (1a) A Rule 108 proceeding to cancel an entry on marriage, on the basis that the marriage is void.
• (1b) A Rule 108 proceeding to cancel a portion of a child’s birth certificate showing that the child’s parents were married, on the basis that such marriage is bigamous: Braza vs City Civil Registrar of Himaymalan City (GR 181174, 4 Dec 2009)
• (1c) Cf: Republic vs Olaybar (GR 189538, February 10, 2014). It will be argued later that the Rule 108 proceeding in this case to correct entries relating to the fictitious but registered marriage may be construed as a substantial compliance of a direct action.

(2) As a defense:

• (2a) Opposition to a claim for support by the spouse, on the basis that the marriage is void: De Castro vs De Castro (G.R. No. 160172, 13 Feb 2008)
• (2b) Defense to a prosecution for bigamy, on the basis that one of the marriages is void: Morigo vs People (R. No. 145226.  February 06, 2004)

(3) A settlement of estate proceeding where the voidness of a marriage is being placed in issue to affect the standing of alleged heirs of the deceased spouse. In the following cases, the Supreme Court resolved the issue on whether a marriage was void ab initio in a settlement of estate case:

• (3a) Armas vs Calisterio (G.R. No. 136467, April 6, 2000) — whether a marriage was void for failure to comply with the requirements of Article 41 Family Code.
• (3b) Garcia-Quiazon vs Belen (GR 189121, 31 July 2013) — the Supreme Court in holding that a marriage was void because it was bigamous held that ‘[t]he said marriage may be questioned directly by filing an action attacking the validity thereof, or collaterally by raising it as an issue in a proceeding for the settlement of the estate of the deceased spouse, such as in the case at bar.’

Next section under this topic will discuss rules from jurisprudence on when a collateral attack on a void marriage is allowed.

[Next post under this topic ‘Attacking void and voidable marriages’ will be: Attacking void and voidable marriages – Part 4 Void marriages – collateral attack rules from jurisprudence; during the lifetime of the spouses). The previous post under this topic was: Attacking void and voidable marriages – Part 2 – Voidable marriages. Kindly refer to the Caveat in reading this topic.]

[This topic has eight parts. Here is a listing of the eight parts under this topic:

• Attacking void and voidable marriages – Part 1 – Introduction:
• Attacking void and voidable marriages – Part 2 – Voidable Marriages
• Attacking void and voidable marriages – Part 3 – Void Marriages
• Attacking void and voidable marriages – Part 4 Void marriages – collateral attack rules from jurisprudence; during the lifetime of the spouses
• Attacking void and voidable marriages – Part 5 Void marriages – collateral attack rules from jurisprudence; after the death of either spouse
• Attacking void and voidable marriages – Part 6 Void marriages – the operative fact requirement
• Attacking void and voidable marriages – Part 7 Rule 108 special proceeding application of rules on direct vs collateral attack on void marriages
• Attacking void and voidable marriages – Part 8 – Personality to assail a bigamous marriage]

By: Atty. Alex Andrew P. Icao

Attacking void and voidable marriages – Part 2 – Voidable Marriages

By the susceptibility to a collateral attack, we mean whether or not the absolute nullity or voidability of a marriage may be invoked to claim affirmative relief or by way of defense (opposing an affirmative relief) in a proceeding that is not a direct proceeding [precisely brought to annul or nullify the marriage], and where there is no final judgment yet in a direct proceeding declaring that marriage annulled or nullified.

It is the RTC (Family Court) that has jurisdiction over a direct proceeding for annulment (of voidable) or declaration of nullity (of void ab initio) marriages. Indispensable parties to this direct action are generally the husband and the wife, and (in cases of void marriages) upon the death of one, the latter’s heirs.

The principles on attacking voidable marriages are influenced by its nature. The nature of voidable marriages are as follows:

(1) Voidable marriages are treated by the law as valid until annulled by the courts.

(2) There a limitation of persons who can assail the validity of the marriage — The law (Article 47 Family Code) expressly states that ‘[t]he action for annulment of marriages must be filed by the following persons and within the periods indicated herein’. Although, generally ‘[o]nly the parties to a voidable marriage can assail it but any proper interested party may attack a void marriage’ (Niñal vs Bayadog (G.R. No. 133778, March 14, 2000)), the exception is that the parents of the minor can assail a voidable marriage on the ground of age. See also section 3(a) of AM 02-11-10-SC (Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages), which is more in accord with Article 47 of the Family Code.

(3) Voidable marriages are generally ratifiable by free cohabitation — Thus, the law treats the marriage as valid, and gives the persons specified under Article 47 Family Code the prerogative to assail the marriage. Once there is ratification by free cohabitation, an action to annul a voidable marriage will not prosper.

Due to the nature of voidable marriages enumerated above:

(1) A voidable marriage ‘cannot be collaterally attacked except in [a] direct proceeding instituted during the lifetime of the parties so that on the death of either, the marriage cannot be impeached, and is made good ab initio.’: Niñal (2000) citing 18 RCL 446-7; 35 Am Jur. 221.

(2) An action to annul the voidable marriage must be brought before death of either contracting party. It was stated in Niñal (2000) that ‘voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid’. Although there is no express provision (unlike the case of insanity, where it is expressly provided that the action must be brought before death of either party) that the case for annulment must be brought before the marriage is dissolved through death, it is arguable that the action for annulment is moot and academic since there is no longer any marriage to dissolve upon death of either party. Since there is no marriage to dissolve, the argument is that the marriage must be treated as valid when it existed. Arguably, this seems to limit the capacity to assail a voidable marriage because of the principle that a complaint must state a ‘cause of action’. Since the cause of action to annul a voidable marriage is extinguished upon the death of either spouse, it is arguably deemed an action that does not survive.

(3) The voidability of the marriage may only be raised in a direct proceeding. Article 47 of the Family Code only speaks of an ‘action for annulment’ which is a direct proceeding. A direct proceeding is arguably also the only way for the Fiscal or Solicitor General to intervene to prevent collusion. In the case of Niñal (2000) it was held that a voidable marriage ‘cannot be collaterally attacked except in [a] direct proceeding’.

(4) The action to annul a voidable marriage may prescribe. The prescriptive periods are found under Article 47 Family Code. It is not directly stated there that it must be filed before the death of a spouse, but Niñal (2000) (citing In re Conza’s Estate, 176 Ill. 192; Miller v. Miller, 175 Cal. 797, 167 Pac. 394 cited in I Tolentino, Civil Code, 1990 ed., p. 271.) says that ‘voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid’.

From the above, one notices that the rules on attacking voidable marriages are more or less established, unlike the case of void marriages, discussed next.

[Next post under this topic ‘Attacking void and voidable marriages’ will be: Attacking void and voidable marriages – Part 3 Void Marriages. The previous post under this topic was: Attacking void and voidable marriages – Part 1 – Introduction. Kindly refer to the Caveat in reading this topic.]

[This topic has eight parts. Here is a listing of the eight parts under this topic:

• Attacking void and voidable marriages – Part 1 – Introduction:
• Attacking void and voidable marriages – Part 2 – Voidable Marriages
• Attacking void and voidable marriages – Part 3 – Void Marriages
• Attacking void and voidable marriages – Part 4 Void marriages – collateral attack rules from jurisprudence; during the lifetime of the spouses
• Attacking void and voidable marriages – Part 5 Void marriages – collateral attack rules from jurisprudence; after the death of either spouse
• Attacking void and voidable marriages – Part 6 Void marriages – the operative fact requirement
• Attacking void and voidable marriages – Part 7 Rule 108 special proceeding application of rules on direct vs collateral attack on void marriages
• Attacking void and voidable marriages – Part 8 – Personality to assail a bigamous marriage]

by Atty. Alex Andrew P. Icao

Attacking void and voidable marriages – Part 1 – Introduction:

Legally, when a marriage is void ab initio, the action is denominated as an action for declaration of nullity (when a marriage is ‘nullified’, legally that refers to a void ab initio marriage); when the marriage is voidable, the action is denominated as an action for annulment (when a marriage is ‘annulled’, legally that refers to a voidable marriage). Cf: In Canon Law, ‘annulment’ of marriage has the effect of declaring the marriage void ab initio; in Canon Law, there are only two kinds of marriages: void ab initio and valid (no voidable marriages).

For the difference in nomenclature, see Suntay vs Cojuangco-Suntay (G.R. No. 132524. December 29, 1998), where the Supreme Court elaborated that:

‘Indeed, the terms “annul” and “null and void” have different legal connotations and implications. Annul means to reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with whereas null and void is something that does not exist from the beginning. A marriage that is annulled presupposes that it subsists but later ceases to have legal effect when it is terminated through a court action. But in nullifying a marriage, the court simply declares a status condition which already exists from the very beginning.’

The issue on who can directly or collaterally attack marriages is related to the effects of void ab initio and voidable marriages. There is no better way of starting off, except with the following disquisition in Niñal vs Bayadog (G.R. No. 133778, March 14, 2000), where it was held that:

Voidable and void marriages are not identical. A marriage that is annulable is valid until otherwise declared by the court; whereas a marriage that is void ab initio is considered as having never to have taken place^{[21][Suntay v. Cojuanco-Suntay, 300 SCRA 760 (1998); People v. Retirement Board, 272 Ill. App. 59 cited in I Tolentino, Civil Code, 1990 ed. p. 271.]} and cannot be the source of rights. The first can be generally ratified or confirmed by free cohabitation or prescription while the other can never be ratified. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can be attacked collaterally. Consequently, void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid.^{[22][In re Conza’s Estate, 176 Ill. 192; Miller v. Miller, 175 Cal. 797, 167 Pac. 394 cited in I Tolentino, Civil Code, 1990 ed., p. 271.]} That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may attack a void marriage. Void marriages have no legal effects except those declared by law concerning the properties of the alleged spouses, regarding co-ownership or ownership through actual joint contribution,^{[23][Article 148-149, Family Code; Article 144, Civil Code.]} and its effect on the children born to such void marriages as provided in Article 50 in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the Family Code. On the contrary, the property regime governing voidable marriages is generally conjugal partnership and the children conceived before its annulment are legitimate.

Succeeding discussions under this topic will be primarily concerned with the statements in Niñal insofar as it affects the principles on attacking void and voidable marriages. This will be related to the concepts of a direct action as opposed to a collateral action, jurisdiction, and indispensable parties.

[Next post under this topic ‘Attacking void and voidable marriages’ will be: Attacking void and voidable marriages – Part 2 – Voidable Marriages. This topic consists of eight (8) parts. Kindly refer to the Caveat in reading this topic.]

[Here is a listing of the eight parts under this topic:

• Attacking void and voidable marriages – Part 1 – Introduction:
• Attacking void and voidable marriages – Part 2 – Voidable Marriages
• Attacking void and voidable marriages – Part 3 – Void Marriages
• Attacking void and voidable marriages – Part 4 Void marriages – collateral attack rules from jurisprudence; during the lifetime of the spouses
• Attacking void and voidable marriages – Part 5 Void marriages – collateral attack rules from jurisprudence; after the death of either spouse
• Attacking void and voidable marriages – Part 6 Void marriages – the operative fact requirement
• Attacking void and voidable marriages – Part 7 Rule 108 special proceeding application of rules on direct vs collateral attack on void marriages
• Attacking void and voidable marriages – Part 8 – Personality to assail a bigamous marriage]

by: Atty. Alex Andrew P. Icao

Possibility of withholding the names of spouses in published decisions involving psychological incapacity cases

In the recent case of People and AAA vs Court of Appeals (G.R. No. 183652, February 25, 2015), the Supreme Court noted that:

In line with the Court’s ruling in People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, 426; citing Rule on Violence Against Women and their Children, Sec. 40; Rules and Regulations Implementing Republic Act No. 9262, Rule XI, Sec. 63, otherwise known as the “Anti-Violence Against Women and their Children Act,” the real names of the rape victims will not be disclosed. The Court will instead use fictitious initials to represent them throughout the decision. The personal circumstances of the victims or any other information tending to establish or compromise their identities will likewise be withheld.

An earlier blog highlighted the low statistical percentage of psychological incapacity cases resulting in a nullification of the marriage in the Supreme Court. Furthermore, it is inevitable that evidence adduced in psychological incapacity cases will often deal with the unpleasant side of a married couple’s private life.

Given these considerations, the possibility of witholding the names of spouses in published decisions involving psychological incapacity cases seems plausible on the basis of the State’s constitutional mandate to sponsor or support the social institutions of marriage and the family (this constitutional mandate is discussed in the immediately preceding blog). The fact that a large percentage of psychological incapacity cases on appeal before the Supreme Court ultimately result in upholding the marriage, it is arguable that withholding the spouses’ names in published decisions would provide a conducive environment for the spouses to resume their married life, even if one (or both of them) had actively sought to sever the marriage bond in the first place. The concepts of prrivacy and dignity of the victim in  People vs Cabalquinto, apply not only to each of the spouses (individually) but more importantly to their marriage, as the institution the State is mandated to protect and uphold. As Professor Carl Schneider in his article The Channelling Function In Family Law 20 Hofstra L. Rev. 495 1991-1992 said:

Quite apart from the injury to privacy, all litigation brings misery, and litigation over personal, especially intimate, subjects brings it in abundance. Such misery is unlikely to enhance the couple’s marriage.