plaintiff thereupon filed a motion to declare the defendants in default, which the court
forthwith granted. The plaintiff was then directed to present her evidence.
The court
ruled in favor of the plaintiff, ordering the issuance of a Decree of Legal Separation,
and declared the properties as conjugal properties of the plaintiff and defendant half-
and-half. The subsequent marriage between Pacete and Conception was also
declared void ab initio. Defendants filed a special civil action of certiorari.
Issue:
WON defendants were improperly placed in default –YES!
Ruling:
Art. 101 of the
Civil Code
provides: No decree of legal separation shall be
promulgated upon a stipulation of facts or by confession of judgment. In case of non-
Page
34
of
51
CIVREV DIGESTS – MIDTERMS (DEAN DEL CASTILLO)
appearance of the defendant, the court shall order the prosecuting attorney to inquire
whether or not a collusion between the parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the State in order to take care that the
evidence for the plaintiff is not fabricated.
The policy of Article 101 of the new Civil Code, calling for the intervention of the state
attorneys in case of uncontested proceedings for legal separation, is to emphasize
that marriage is more than a mere contract; that it is a social institution in which the
state is vitally interested, so that its continuation or interruption cannot be made to
depend upon the parties themselves. (Brown v. Yambao)
Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates
that an action for legal separation must in no case be tried before six months shall
have elapsed since the filing of the petition, obviously in order to provide the parties a
"cooling-off" period. In this interim, the court should take steps toward getting the
parties to reconcile.
Also, Sec.6 of Rule 18 of the
Rules of Court
provides that if the defendant in an
action for annulment of marriage or for legal separation fails to answer, the court shall
order the prosecuting attorney to investigate whether or not a collusion between the
parties exists, and if there is no collusion, to intervene for the State in order to see to
it that the evidence submitted is not fabricated.
It is clear that the petitioner did, in fact, specifically pray for legal separation. That
other remedies, whether principal or incidental, have likewise been sought in the
same action cannot dispense, nor excuse compliance, with any of the statutory
requirements.
Liquidation: Effect of Death of One of the Parties
Carmen Lapuz Sy (represented by Macario Lapuz) vs Eufemio S. Eufemio (alias
Eufemio Sy Uy)
Facts: Carmen Lapuz filed a petition for legal separation against Eufemio S. Eufemio.
It was alleged that they were married, they had no child and that they acquired
properties during their marriage. She discovered that Eufemio was cohabiting with a
Chinese woman named Go Hiok.
