ROBERTO DOMINGO, petitioner, vs. COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her Attorney-in-Fact MOISES R. AVERA, G.R. No. 104818, September 17, 1993

TOPIC: Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

RATIONALE: Marriage is an “inviolable social institution, is the foundation of the family;” as such, it “shall be protected by the State. As a matter of policy, there should be a final judgment declaring the marriage void and a party should not declare for himself or herself whether or not the marriage is void.

FACTS:

1. Herein petitioner Roberto Domingo married Delia Soledad in 1976 despite previously contracting marriage with Emerlina dela Paz in 1969.

2. Roberto has been unemployed and completely dependent upon Delia, who has been working in Saudi Arabia, for support and subsistence.

3. Delia only found out about the prior marriage when Emerlina sued them for bigamy in 1983. On top of that, when she came home from Saudi during her one-month leave from work, she discovered that Roberto cohabited with another woman and had been disposing some of her properties amounting to approximately Php350,000.00 without her knowledge and consent.

4. In May 1991, Delia filed a petition for Judicial Declaration of Nullity of Marriage with Roberto and that she be declared the sole and exclusive owner of all properties acquired at the time of their void marriage and such properties be placed under the proper management and administration of her brother Moises, her attorney-in-fact.

5. Roberto filed a motion to dismiss, claiming that judicial declaration for nullity of marriage is only for the purpose of remarriage and because their marriage was void ab initio, the declaration of nullity is unnecessary and superfluous. On the other hand, Delia insists the declaration of the nullity of marriage was not for the purpose of remarriage, but in order to provide a basis for the separation and distribution of properties acquired during the void marriage.

6. RTC ruled in favor of Delia citing the case of Vda. de Consuegra v. GSIS where the Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is a need for a judicial declaration of its nullity.

7. Roberto filed a petition of certiorari and mandamus before the CA. The appellate court held that private respondent's prayer for declaration of absolute nullity of their marriage may be raised together with other incidents of their marriage such as the separation of their properties. 

CA reasoning: Neither of the cases cited was applicable since they dealt with the successional rights of the second wife while the instant case prays for separation of property corollary with the declaration of nullity of marriage. It observed that separation and subsequent distribution of the properties acquired during the union can be had only upon proper determination of the status of the marital relationship between said parties. 

8. Hence, this petition.

ISSUE:

Whether or not a petition for a judicial declaration of a void marriage is necessary. If in affirmative, whether the same should be filed only for purpose of remarriage.

RULING:

Yes. After a series of contradicting jurisprudence, Article 40 of the Family Code finally settled the matter. A declaration of the absolute nullity of marriage is now explicitly required either as a cause of action or a ground for defense. Where the absolute nullity of a previous marriage is sought to be invoked for purpose of contracting a second marriage, the sole basis acceptable in law for the said projected marriage be free from legal infirmity is a final judgment declaring the previous marriage void.

The requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy.

Article 40 of the Family Code provides:

Art. 40. The absolute nullity of a previous marriage may be invoked for  purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n)

Crucial to the proper interpretation of Article 40 is the position in the provision of the word "solely." As it is placed, the same shows that it is meant to qualify "final judgment declaring such previous marriage void." Realizing the need for careful craftsmanship in conveying the precise intent of the Committee members, the provision in question, as it finally emerged, did not state "The absolute nullity of a previous marriage may be invoked solely for purposes of remarriage . . .," in which case "solely" would clearly qualify the phrase "for purposes of remarriage." Had the phraseology been such, the interpretation of petitioner would have been correct and, that is, that the absolute nullity of a previous marriage may be invoked solely for purposes of remarriage, thus rendering irrelevant the clause "on the basis solely of a final judgment declaring such previous marriage void."

Article 40 as finally formulated included the significant clause denotes that final judgment declaring the previous marriage void need not be obtained only for purposes of remarriage. A person can conceive of other instances other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the spouses, as well as an action for the custody and support of their common children and the delivery of the latters' presumptive legitimes. In such cases, however, one is required by law to show proof that the previous one was an absolute nullity.

Marriage is an “inviolable social institution, is the foundation of the family;” as such, it “shall be protected by the State. As a matter of policy, there should be a final judgment declaring the marriage void and a party should not declare for himself or herself whether or not the marriage is void.

Series of conflicting jurisprudence:

Yap v. CA, People v. Aragon & People v. Mendoza = judicial declaration of absolute nullity of marriage is NOT NECESSARY

Vda. De Cosuegra v GSIS = judicial declaration of absolute nullity of marriage is NECESSARY

Gomez v. Lipana = NECESSARY

Tolentino v. Paras = NOT  NECESSARY

Wiegel v. Sempio-Diy = NECESSARY

FAMILY CODE ART. 40: (1987)

Pinatawag ko kayong lahat upang ianunsyo na:

A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense. Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage be free from legal infirmity is a final judgment declaring the previous marriage void.