REPUBLIC OF THE PHILIPPINES
NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
BRANCH NO. 37
City of Manila
CHRISTIAN KOETZ,
Plaintiff,
- versus - CIVIL CASE No. 94-71431
JULIETA PAGAYANAN,
Defendant.
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MOTION TO REVIVE
with
REITERATIOVE MOTION TO
LIQUIDATE AND PARTITION
CONJUGAL ASSETS
COMES NOW PLAINTIFF CHRISTIAN KOETZ (“plaintiff” for
brevity), by and through the undersigned Law Offices, unto this
Honorable Court, most respectfully submits the instant Motion to
Revive with Reiterative Motion to Liquidate and Partition Conjugal
Assets, and in furtherance thereof courteously avers: That--
1. In its Order dated 05 April 2006, this Honorable Court
archived the records of the instant case after plaintiff's former counsel
repeatedly failed to attend the hearings of his Motion to Liquidate and
Partition Conjugal Asset dated 02 June 2005.
2. In view of the undersigned Law Offices’ recent engagement
by plaintiff as his new counsel de parte and the subsequent entry of
appearance of the said counsels, plaintiff hereby approaches this
Honorable Court once again to seek the revival of the archived case for
the resolution of his pending Motion to Liquidate and Partition Conjugal
Asset. To this end, plaintiff, through the undersigned Law Offices,
humbly and respectfully reiterates his desire and request that the real
properties enumerated in plaintiff’s previous Motion to Liquidate and
Partition Conjugal Asset be partitioned and distributed in accordance
with the Decision dated 04 June 2003. For emphasis, the same are
the following, thus:
2.1. House and lot located at Rosario, Pasig City and
covered by TCT No. 22634;
2.2. House and lot located at Antipolo City and covered
by TCT No. 298908;
2.3. Condominium unit located at Makati City under
Condominium Certificate of Title No. 13200; and
2.4. Lot located at Grandheights, Antipolo City (no papers
on hand).
3. Per Decision dated 04 June 2003, the property relation
between herein parties shall be governed by the law on co-ownership
and their respective shares and interests shall be proportionately
divided between them (Cf: page 7). The same is in harmonious
consonance with the Honorable Supreme Court’s pronouncement in
the case of Noel Buenaventura vs. Court of Appeals and Isabel
Lucia Singh Buenaventura (G.R. No. 127358 and 127449, 31
March 2005) wherein it was decreed that:
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“Since the present case does not
involve the annulment of a bigamous
marriage, the provisions of Article 50 in
relation to Articles 41, 42 and 43 of the
Family Code, providing for the dissolution
of the absolute community or conjugal
partnership of gains, as the case may be,
do not apply. Rather, the general rule
applies, which is that in case a marriage is
declared void ab initio, the property
regime applicable and to be liquidated,
partitioned and distributed is that of equal
co-ownership.
In Valdes v. Regional Trial Court,
Branch 102, Quezon City, this Court
expounded on the consequences of a void
marriage on the property relations of the
spouses and specified the applicable
provisions of law:
The trial court correctly applied the
law. In a void marriage, regardless of the
cause thereof, the property relations of
the parties during the period of
cohabitation is governed by the provisions
of Article 147 or Article 148, such as the
case may be, of the Family Code. Article
147 is a remake of Article 144 of the Civil
Code as interpreted and so applied in
previous cases; it provides:
ART. 147. When a man and a
woman who are capacitated to marry
each other, live exclusively with each
other as husband and wife without the
benefit of marriage or under a void
marriage, their wages and salaries shall
be owned by them in equal shares and the
property acquired by both of them
through their work or industry shall be
governed by the rules on co-ownership.
In the absence of proof to the
contrary, properties acquired while they
lived together shall be presumed to have
been obtained by their joint efforts, work
or industry, and shall be owned by them
in equal shares. For purposes of this
Article, a party who did not participate in
the acquisition by the other party of any
property shall be deemed to have
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contributed jointly in the acquisition
thereof if the former's efforts consisted in
the care and maintenance of the family
and of the household.
xxx
Article 147 of the Family Code, in
substance and to the above extent, has
clarified Article 144 of the Civil Code; in
addition, the law now expressly provides
that —
(a) Neither party can dispose or
encumber by act[s] inter vivos [of] his or
her share in co-ownership property,
without the consent of the other, during
the period of cohabitation; and
(b) In the case of a void marriage,
any party in bad faith shall forfeit his or
her share in the co-ownership in favor of
their common children; in default thereof
or waiver by any or all of the common
children, each vacant share shall belong
to the respective surviving descendants,
or still in default thereof, to the innocent
party. The forfeiture shall take place upon
the termination of the cohabitation or
declaration of nullity of the marriage.
In deciding to take further
cognizance of the issue on the settlement
of the parties' common property, the trial
court acted neither imprudently nor
precipitately; a court which had
jurisdiction to declare the marriage a
nullity must be deemed likewise clothed
with authority to resolve incidental and
consequential matters. Nor did it commit
a reversible error in ruling that petitioner
and private respondent own the ‘family
home’ and all their common property in
equal shares, as well as in concluding
that, in the liquidation and partition of the
property owned in common by them, the
provisions on co-ownership under the
Civil Code, not Articles 50, 51 and 52, in
relation to Articles 102 and 129, of the
Family Code, should aptly prevail. The
rules set up to govern the liquidation of
either the absolute community or the
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conjugal partnership of gains, the
property regimes recognized for valid and
voidable marriages (in the latter case
until the contract is annulled), are
irrelevant to the liquidation of the co-
ownership that exists between common-
law spouses. The first paragraph of Article
50 of the Family Code, applying
paragraphs (2), (3), (4) and (5) of Article
43, relates only, by its explicit terms, to
voidable marriages and, exceptionally, to
void marriages under Article 40 of the
Code, i.e., the declaration of nullity of a
subsequent marriage contracted by a
spouse of a prior void marriage before the
latter is judicially declared void. The latter
is a special rule that somehow recognizes
the philosophy and an old doctrine that
void marriages are inexistent from the
very beginning and no judicial decree is
necessary to establish their nullity. In
now requiring for purposes of remarriage,
the declaration of nullity by final
judgment of the previously contracted
void marriage, the present law aims to do
away with any continuing uncertainty on
the status of the second marriage. It is
not then illogical for the provisions of
Article 43, in relation to Articles 41 and
42, of the Family Code, on the effects of
the termination of a subsequent marriage
contracted during the subsistence of a
previous marriage to be made applicable
pro hac vice. In all other cases, it is not to
be assumed that the law has also meant
to have coincident property relations, on
the one hand, between spouses in valid
and voidable marriages (before
annulment) and, on the other, between
common-law spouses or spouses of void
marriages, leaving to ordain, in the latter
case, the ordinary rules on co-ownership
subject to the provision of Article 147 and
Article 148 of the Family Code. It must be
stressed, nevertheless, even as it may
merely state the obvious, that the
provisions of the Family Code on the
‘family home,’ i.e., the provisions found in
Title V, Chapter 2, of the Family Code,
remain in force and effect regardless of
the property regime of the spouses.
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Since the properties ordered to be
distributed by the court a quo were found,
both by the trial court and the Court of
Appeals, to have been acquired during the
union of the parties, the same would be
covered by the co-ownership. No fruits of
a separate property of one of the parties
appear to have been included or involved
in said distribution. The liquidation,
partition and distribution of the properties
owned in common by the parties herein as
ordered by the court a quo should,
therefore, be sustained, but on the basis
of co-ownership and not of the regime of
conjugal partnership of gains.
(underscoring ours)
4. All the material averments in the previous Motion to
Liquidate and Partition Conjugal Asset are hereby repleaded and
incorporated by way of reference for consistency and expediency.
5. The filing of the instant motion is not, in any way, intended
to delay the disposition of the instant case, but solely for the reasons
aforesaid.
PRAYER
WHEREFORE, it is respectfully most prayed of this Honorable
Court that after due hearing, the instant motion be GRANTED and
that an order be issued:
5.1. Declaring the sale of the Pasig City and Antipolo City
properties entered into by defendant without the
conformity and/or consent of herein plaintiff as null
and void; and
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5.2. Directing the Register of Deeds of Pasig City and
Register of Deeds of Antipolo City, respectively, to
issue a title in plaintiff’s name for his share; or
5.3. In the alternative, ordering defendant to render a
complete and detailed accounting of the proceeds of
the aforementioned sales of the Pasig City and
Antipolo City properties that clearly belonged to the
conjugal assets prior to the dissolution of the
conjugal partnership.
OTHER RELIEFS, just and equitable under the premises, are
likewise most respectfully prayed for.
RESPECTFULLY SUBMITTED. Quezon City for the City of
Manila, 19 November 2007.
SCE Law
Attorneys-at-Law
SOLIVEN CASTILLO & ESCOBEDO
Law Offices
Unit 404 Tower A, The Regalia Park Towers
150 P. Tuazon Boulevard, Araneta Center
Cubao, Quezon City 1109
PETER S. CASTILLO II
Roll of Attorney No. 44374
PTR No: 7743326; 01.08.2007; Quezon City
IBP No: 676861; 01.10.2007; Quezon City
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NOTICE
HON. CLERK OF COURT
RTC Manila, Branch 37
City Hall Building, Manila
JULIETA PAGAYANAN
Defendant
10 Sacred Heart Street
Horeshoe Village, Quezon City
GREETINGS:
Please be informed that the undersigned counsel shall submit
the instant Motion to Revive with Reiterative Motion to Liquidate and
Partition Conjugal Assets for the kind consideration of this Honorable
Office on the next scheduled hearing on 07 December 2007 at 8:30
a.m., or soon thereafter as counsel may be heard.
PETER S. CASTILLO II
EXPLANATION
A copy of the instant Motion to Revive with Reiterative Motion to
Liquidate and Partition Conjugal Assets is being served through
registered mail due to distance and lack of manpower to effectuate the
preferred mode of service.
Copy Furnished:
JULIETA PAGAYANAN
Defendant
10 Sacred Heart Street
Horeshoe Village, Quezon City
