The recent case of Republic vs Olaybar (GR 189538, February 10, 2014) raises some interesting questions on the susceptibility of void marriages to a collateral attack.
A brief background:
Last March 15, 2003 A.M. No. 02-11-10-SC (Rule On Declaration Of Absolute Nullity Of Void Marriages And Annulment Of Voidable Marriages) took effect. Section 2(a) of the Rule states that ‘[a]petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife.’ A.M. No. 02-11-10-SC has been interpreted in the case of Ablaza vs Republic (GR 158298, 11 Aug 2010) and Carlos vs Sandoval(G.R. No. 179922, December 16, 2008) to apply to all actions for declaration of nullity of marriage except ‘[t]hose commenced before March 15, 2003, the effectivity date of A.M. No. 02-11-10-SC’ and ‘[t]hose 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’. Although A.M. No. 02-11-10-SC seemingly requires the filing of a direct action only vis-a-vis the declaration of nullity of Family Code celebrated marriages after March 15, 2003, it has been recognized as a general rule for all marriages, that a direct action is necessary to nullify marriages, as can be gleaned from the public policies underlying a direct action. These underlying policies are highlighted by the Supreme Court in Fujiki vs Marinay (GR 196049, 26 Jun 2013) 2nd div Carpio J, as follows:
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.[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.[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.
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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,[FAMILY CODE , Art. 35-67.] support pendente lite of the spouses and children,[quoting Article 49 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,[quoting Art 50 FAMILY CODE] and the investigation of the public prosecutor to determine collusion.[quoting Art 48 FAMILY CODE; quoting Section 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.”[RULES OF COURT, 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.
While A.M. No. 02-11-10-SC and the case of Fujiki vs Marinay (GR 196049, 26 Jun 2013) require a direct action to nullify marriages, there is on the other hand, the pronouncement in Niñal vs Bayadog (G.R. No. 133778, March 14, 2000) 1st Div Ynares-Santiago J that ‘a void marriage can be attacked collaterally’. The evolution of jurisprudence has been a struggle to strike a balance between the pronouncement in Niñal vs Bayadog that ‘a void marriage can be attacked collaterally’ and the underlying public policy considerations of requiring a direct action – the case of Olaybar is no exception.
It may also be useful to remember that whenever the nullity of a marriage has been invoked to pray for affirmative relief or as a defense in a Rule 108 proceeding for correction of an entry in the Civil Register, that Rule 108 proceeding has previously been consistently and traditionally viewed as a collateral proceeding — and not a direct proceeding to nullify the marriage: see for instance Braza vs City Civil Registrar of Himaymalan City (GR 181174, 4 Dec 2009) 1st div Carpio Morales J.
A fictitious marriage is one where there is no marriage ceremony as required by Article 3(3) of the Family Code which requires ‘[a] marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.’ Although Article 3(3) is found under the formal requisites of marriage, a ‘marriage’ lacking a marriage ceremony also lacks the essential requisite of ‘[c]onsent freely given in the presence of the solemnizing officer’ under Article 2(2) of the Family Code. Athough it is stated in Article 4 of the Family Code that ‘[t]he absence of any of the essential or formal requisites shall render the marriage void ab initio’, fictitious marriages have sometimes been viewed by jurisprudence differently from void marriages. For instance, in Morigo vs People (GR 145226, 2004), the Supreme Court said that ‘[t]he mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity’. Likewise in the recent case of Republic vs Olaybar (G.R. No. 145226, February 06, 2004), the Supreme Court stated that for a fictitious marriage, ‘there [is] no marriage to speak of’.
If a marriage contract is registered, as the marriage involved in the Olaybar case, Section 23 Rule 132 of the Rules on Evidence considers its registration as ‘evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter’, that is, evidence of the fact of marriage and of the date of the latter. The presumption that the law gives to the registration of a marriage contract goes hand in hand with the dissent of Alex Reyes J in People vs Mendoza (G.R. No. L-5877 September 28, 1954) where he stated that ‘it is not for the spouses to judge whether that marriage was void or not. That judgment is reserved to the courts’, and the need of preventing collusion between the alleged parties to the marriage. Indeed, if parties to a marriage recorded in the civil register are allowed to falsely claim in any collateral action (a Rule 108 proceeding being traditionally viewed as a collateral action) that their marriage was fictitious there being no marriage ceremony, this might open the door to fraud and collusion between these parties because of the lack of anti-collusion mechanisms that, on the other hand are found in the rules governing direct actions to nullify marriages (A.M. No. 02-11-10-SCand Article 48 of the Family Code for instance requires the public prosecutor to determine if collusion exists between the parties; this requirement is not found in Rule 108). Certainly, the prevention of collusion is an important consideration even when the marriage is alleged to be fictitious — understandably because ‘[m]arriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation’: Article 1 Family Code.
Given this background, we now turn to the case of Republic vs Olaybar (GR 189538, February 10, 2014) 3rd div Peralta J. The Olaybar case concerned a fictitious but registered marriage — what was sought to be corrected were the entries in the marriage certificate stating that respondent Merlinda Olaybar as wife was married to Ye Son Sune on June 24, 2002 before Judge Mamerto Califlores at the Office of the Municipal Trial Court in Cities (MTCC), Palace of Justice in Cebu City when in truth she did not appear before the judge. When Merlinda discovered the existence of this marriage certificate when she tried to obtain a CENOMAR (Certificate of No Marriage) with the NSO, she promptly filed a petition under Rule 108 to cancel entries referring to her as wife before the RTC of Cebu City. She impleaded ‘the Local Civil Registrar of Cebu City, as well as her alleged husband, as parties to the case’. The Supreme Court summarized the evidence she submitted in its Decision:
During trial, respondent testified on her behalf and explained that she could not have appeared before Judge Mamerto Califlores, the supposed solemnizing officer, at the time the marriage was allegedly celebrated, because she was then in Makati working as a medical distributor in Hansao Pharma. She completely denied having known the supposed husband, but she revealed that she recognized the named witnesses to the marriage as she had met them while she was working as a receptionist in Tadels Pension House. She believed that her name was used by a certain Johnny Singh, who owned a travel agency, whom she gave her personal circumstances in order for her to obtain a passport. Respondent also presented as witness a certain Eufrocina Natinga, an employee of MTCC, Branch 1, who confirmed that the marriage of Ye Son Sune was indeed celebrated in their office, but claimed that the alleged wife who appeared was definitely not respondent. Lastly, a document examiner testified that the signature appearing in the marriage contract was forged.
The RTC granted respondent Merlinda Olaybar’s petition. The Republic through the Solicitor General directly appealed to the Supreme Court through Rule 45 appeal by certiorari. The Supreme Court sustained the RTC and denied the Republic’s appeal.
To digress a bit, the Olaybar case is unique in that it allowed a Rule 108 petition to correct or cancel the entry in a registered marriage contract on the ground that the marriage was fictitious. Previous Rule 108 proceedings correcting entries in the civil register involving fictitious marriages have been upheld by the Supreme Court only in relation to references of the fictitious marriages found in other registered documents such as birth certificates. The cases of Labayo-Rowe vs Republic (G.R. No. L-53417, December 8, 1988), Republic vs Lim (GR 153883, 13 Jan 2004), Republic vs Benemerito (G.R. No. 146963. March 15, 2004), Albavs CA (G.R. No. 164041. July 29, 2005), Republic vsKho (G.R. No. 170340, June 29, 2007), and Republic vs Coseteng-Magpayo (GR 189476, 2 Feb 2011) illustrate this. For instance in Republic vsKho (G.R. No. 170340, June 29, 2007), the Supreme Court allowed the correction of the entry of the birth certificates 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 of Carlito’s children Kevin and Kelly Dogmoc Kho because his children’s birth certificates shows 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.
Back to the Olaybar case. The Supreme Court in sustaining the RTC and dismissing the Republic’s appeal held that:
Rule 108 of the Rules of Court provides the procedure for cancellation or correction of entries in the civil registry. The proceedings may either be summary or adversary. If the correction is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial, and the procedure to be adopted is adversary. Since the promulgation of Republic v. Valencia[225 Phil. 408 (1986).] in 1986, the Court has repeatedly ruled that “even substantial errors in a civil registry may be corrected through a petition filed under Rule 108, with the true facts established and the parties aggrieved by the error availing themselves of the appropriate adversarial proceeding.”[Barco v. Court of Appeals, 465 Phil. 39, 58 (2004).] An appropriate adversary suit or proceeding is one where the trial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party’s case, and where the evidence has been thoroughly weighed and considered.[Republic of the Philippines v. Lim, 464 Phil. 151, 157 (2004); Eleosida v. Local Civil Registrar of Quezon City, 431 Phil. 612, 619 (2002).]
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In filing the petition for correction of entry under Rule 108, respondent made the Local Civil Registrar of Cebu City, as well as her alleged husband Ye Son Sune, as parties-respondents. It is likewise undisputed that the procedural requirements set forth in Rule 108 were complied with. The Office of the Solicitor General was likewise notified of the petition which in turn authorized the Office of the City Prosecutor to participate in the proceedings. More importantly, trial was conducted where respondent herself, the stenographer of the court where the alleged marriage was conducted, as well as a document examiner, testified. Several documents were also considered as evidence. With the testimonies and other evidence presented, the trial court found that the signature appearing in the subject marriage certificate was different from respondent’s signature appearing in some of her government issued identification cards. The court thus made a categorical conclusion that respondent’s signature in the marriage certificate was not hers and, therefore, was forged. Clearly, it was established that, as she claimed in her petition, no such marriage was celebrated.
Indeed the Court made a pronouncement in the recent case of Minoru Fujiki v. Maria Paz Galela Marinay, Shinichi Maekara, Local Civil Registrar of Quezon City, and the Administrator and Civil Registrar General of the National Statistics Office[G.R. No. 196049, June 26, 2013]that:
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, support pendente lite of the spouses and children, the liquidation, partition and distribution of the properties of the spouses and the investigation of the public prosecutor to determine collusion. 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. In other words, a Filipino citizen cannot dissolve his marriage by the mere expedient of changing his entry of marriage in the civil registry.
Aside from the certificate of marriage, no such evidence was presented to show the existence of marriage. Rather, respondent showed by overwhelming evidence that no marriage was entered into and that she was not even aware of such existence. The testimonial and documentary evidence clearly established that the only “evidence” of marriage which is the marriage certificate was a forgery. While 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. Respondent 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.
From the Decision in the Olaybar case, we may be tempted to see the case 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 dismissing the Republic’s appeal, the Supreme Court seemed to have classified the petition which respondent Olaybar filed 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, then we may be tempted to conclude that a collateral attack is permissible even if there is a registered marriage contract, so long as the marriage is fictitious.
However, the Olaybar 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 Olaybar 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 — 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.
– Atty. Alex Andrew P. Icao
Philippine Family Law perspectives 