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Pleading and Proving Foreign Law and Divorce Judgments

ANNOTATION

PLEADING AND PROVING FOREIGN LAW


AND DIVORCE JUDGMENTS
By *
JORGE R. COQUIA

§ 1. Philippine Jurisprudence on Validity of


Divorce Obtained by Philippine Nationals
Abroad, p. 458
§ 2. Effect of Transfer of Citizenship of Philippine
Nationals, p. 459
§ 3. Prohibition of Absolute Divorce in the New
Civil Code, p. 460
§ 4. Partial Divorce Under the Family Code, p. 461
§ 5. Partial Recognition of Divorce, p. 462
§ 6. The Van Dorn vs. Romillo Case, p. 463
§ 7. Effect of Divorce Obtained Abroad by the
Alien Spouse, p. 464
§ 8. Pleading and Proving a Foreign Law or
Foreign Judgment, p. 465
§ 9. Proof of Foreign Law, p. 465
§ 10. The Burden of Proof in the Existence of
Foreign Law or Judgment, p. 468
§ 11. Suggested Procedure for Courts on Proof of
Foreign Law, p. 470

_______________

Philippine nationals go abroad and obtain divorce from


their spouses. Some problems usually arise as divorces
secured in foreign countries are not valid in this country as
long as they remain Philippine citizens. This was the
subject of this writer’s annotation of the case of Fe D. Quita
vs. Court of Appeals, 300 SCRA 406 (1998). See annotation
in 300 SCRA 417 (1998), entitled “Some

_______________

* Member, Editorial Consultant, Supreme Court Reports Annotated


(SCRA).

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Legal Problems on Divorce Obtained by Filipino Nationals


Abroad.” The decision of the Supreme Court in Grace J.
Garcia a.k.a. Grace J. Garcia-Redo vs. Rederick A. Redo,
G.R. No. 138322 rendered on October 2, 2001 involved not
only the validity of a divorce decision obtained abroad but
also on the proper procedure in proving the existence of a
divorce decree and the law of the countries where the
divorce was obtained.
The existence of a law on divorce has to be properly
pleaded and proved as Philippine courts do not have
judicial notice of foreign law.

§ 1. Philippine Jurisprudence on Validity of Divorce


Obtained by Philippine Nationals Abroad

At the time that a divorce law existed in the Philippines


(Act 2710) the Philippine Supreme Court ruled that
divorces obtained by Philippine nationals abroad in
countries where the spouses do not have their domicile is
not valid in the Philippines as foreign courts granting said
divorces had no jurisdiction to determine their matrimonial
status. (Tenchavez vs. Escaño, 15 SCRA 355 [1965])
Thus, where a husband and his wife, residing in the
Philippines, went to Paris for the sole purpose of securing
divorce without intent of establishing permanent residence
there (Ramirez vs. Gmur, 42 Phil. 855 [1918]) and where
the husband procured a divorce in Nevada, as a mere
device to circumvent a Philippine judgment to pay alloted
sums to his wife, when he had no intention of acquiring a
legal domicile in Nevada (Gorayeb vs. Hashim, 50 Phil. 22
[1927]) and, where the husband left the Philippines which
was his matrimonial domicile, to get divorce in another
country and returned to the Philippines and continued to
reside here, the Court held that no bona fide domicile of the
parties was established in the jurisdiction in which these
divorces were secured, said divorces were not recognized in
the Philippines. The voluntary appearance of the defendant
before such tribunals does not invest the courts with
jurisdiction. (Cousins Hix vs. Fleumer, 55 Phil. 851 [1931])
According to the Supreme Court, while its decisions
heretofore in refusing to recognize the validity of foreign
divorce have usually been expressed in the negative and
have been based upon lack of
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matrimonial domicile, fraud or collusion, “we have not


overlooked the provisions of the Civil Code now in force in
these islands, citing Articles 9 and 11 of the Spanish Civil
Code (now Article 15 and 17 of the New Civil Code).
Litigants by mutual agreement cannot compel the courts to
approve their own actions or permit the personal relations
of the citizens of these Islands to be affected by decrees of
foreign courts in a manner which our Government believes

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is contrary to public order and good morals.” (Barreto vs.


Gonzales, 58 Phil. 67 [1939])
The Philippine Supreme Court had also ruled that any
foreign divorce granted to citizens of the Philippine Islands
abroad, will not be recognized in this jurisdiction except for
a cause, and under conditions for which the courts of the
Philippines can grant divorce only on the ground of
adultery on the part of the wife and concubinage on the
part of the husband as provided for under Section 1 of Act
No. 2710. The divorce decree which was granted on the
ground of desertion is not a cause for divorce under the
Philippine law. That the Philippine Divorce Law, Act No.
2710, is too strict or too liberal is not for the court to decide.
The legislative policy on the matter of divorce in this
jurisdiction is clearly set forth in Act No. 2710 and has
been upheld by the Court. (Sikat vs. Canson, 67 Phil. 207
[1926])

§ 2. Effect of Transfer of Citizenship of Philippine


Nationals

A transfer of citizenship to the country where the divorce


has been obtained did not alter the rule. In Sikat vs.
Canson, the husband went to Reno, Nevada and there
obtained American citizenship and later a divorce. The
Philippine Supreme Court ruled that it was not the
citizenship that conferred jurisdiction but the legal
residence. The Nevada Court did not acquire the
jurisdiction over his marital domicile to be able to issue the
decree of divorce valid in the Philippines. The policy of the
law is to prevent rather than encourage divorces. (Juarez
vs. Turon, 51 Phil. 736 [1926].)
A subsequent marriage contracted in Hongkong by a
husband who secured a divorce in Nevada is bigamous and
void. The new Philippine Civil Code has outlawed divorce
altogether, hence, a

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Nevada divorce did not dissolve a Philippine marriage.


(Manila Surety vs. Teodoro, 20 SCRA 463 [1967])
The plaintiff’s domicile in acquiring divorce is granted
on other grounds than those provided for in the Philippine
Divorce Law, the decree cannot be enforced in this
jurisdiction. This ruling is in keeping with the well-known
principle in Conflict of Laws, which prohibits a foreign
judgment if it is contrary to the law or fundamental policy
of the state of the forum. (Article 17, Civil Code)
It is also in keeping with our moral values on marriage
as an institution. Such concept was crystallized in the new
Civil Code which eliminated altogether absolute divorce.
“Because of such concept, we cannot but react adversely to
any attempt to extend here the effect of a decree which is
not in accordance with our customs, morals and traditions.”
(Arca vs. Javier, 59 Phil. 579 [1954])

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Following the aforesaid rulings, the Secretary of Justice


ruled that a divorce secured by a Filipino couple in Nevada
was not recognized in the Philippines (Opinion No. 317, s of
1959). In Opinion No. 180 Series of 1956, the Secretary of
Justice held that a divorce secured abroad (Chihuahua,
Mexico) is without force and effect in this country and any
subsequent marriage to other persons is null and void. The
opinion added that these rulings apply even to cases where
one of the spouses is not a Filipino citizen. The Secretary of
Justice also declined to recognize the validity of the decree
of divorce granted by a Nevada Court to Adelaida
Crisologo, a Filipino citizen, on the ground of mental
cruelty committed by her husband who was a Spanish
national.
Replying to a query, the Secretary of Justice also ruled
that a Mexican “Mail Order” divorce is not accorded
recognition and validity in the Philippines. (Opinion No. 5,
s. of 1955)

§ 3. Prohibition of Absolute Divorce in the New Civil


Code

With the effectivity of the New Civil Code in 1950 allowing


only relative divorce (legal separation) without the
breaking of the matrimonial bond, absolute divorce was not
allowed in the Philippines.
There may be instances, however, when Philippine
nationals have established their domicile in a foreign
country and have been

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naturalized citizens in those countries, they are deemed to


have abandoned their Philippine citizenship. They may
obtained divorce in said countries which allow absolute
divorce. The Philippine Civil Code (Art. 15) no longer
governs them.

§ 4. Partial Divorce Under the Family Code

Reiterating the ruling in Van Dorn vs. Romillo, 139 SCRA


139 (1985) the Supreme Court in Llorente vs. Court of
Appeals, 345 SCRA 529 (2000) held that owing to the
nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy
against absolute divorces, the same being considered
contrary to our concept of public policy and morality. In the
said case, the Court ruled that aliens may obtain divorces
abroad, provided they are valid according to their national
law.
True, foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take
judicial notice of them. Like any other fact, they must be
alleged and proved. While the substance of the foreign law
was pleaded, the Court of Appeals did not admit the foreign
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law. The Court of Appeals and the trial court called to the
fore the renvoi doctrine, where the case was “referred back”
to the law of the decedent’s domicile, in this case,
Philippine law.
It appeared in said case that Lorenzo and Paula were
married in Camarines Sur. Lorenzo enlisted in the US
Navy in 1943 and became naturalized US citizen. After the
World War II, Lorenzo returned to the Philippines and
discovered that Paula was pregnant and living with
another man. Lorenzo returned to the US and filed for
divorce with his wife which was granted. Returning to the
Philippines Lorenzo married Alicia and begot 3 children.
In 1981 Lorenzo executed a will bequeathing all his
properties to Alicia and his 3 children. After the death of
Lorenzo, Paula, his first wife, filed in court letters of
administration claiming that she was Lorenzo’s surviving
wife. Alicia also filed Testate proceedings for the estate of
Lorenzo. The Regional Trial Court held that Lorenzo’s
divorce was null and void so his marriage with Alicia is
null and void and granted the estate to Paula and her
children. The Court of Appeals affirmed the decision with
the modification

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that Alicia is entitled to 1/2 of the properties was acquired


the time of her cohabitation with Lorenzo. The Supreme
court reversed the decision ruling that once proven that her
husband was no longer a Filipino citizen, where he
obtained the divorce, the divorce was valid citing in Van
Dorn vs. Romillo and Pilapil vs. Ibay-Somera, 174 SCRA
653 (1989).
The ruling in the Llorente case assumes that Lorenzo
had established his domicile in the US, otherwise the
precedents set in Juarez vs. Turon, Manila Surety vs.
Teodoro, and Arca vs. Javier (supra) would have applied.
In Laureano vs. Court of Appeals, 324 SCRA 414 (2000)
the court held that the defendant who claims the
applicability of the Singapore Laws to this case has the
burden of proof. The defendant has failed to do so.
Therefore, the Philippine law should be applied.

§ 5. Partial Recognition of Divorce

Part 26 of the Family Code reads:

All marriages solemnized outside the Philippines in accordance


with the laws in force in the country where they were solemnized,
and valid there as such, shall also be valid in this country, except
those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and
38.
Where 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,

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the Filipino spouse shall likewise have capacity to remarry under


Philippine law.

The second paragraph was inserted as an amendment by


Executive Order No. 227, July 17, 1987 to apply to
marriages of Filipino citizens to foreigners. Usually,
foreigners divorce their Filipino spouses. Since the divorce
is valid under the national law of the alien, the Filipino
spouse can remarry. Without the second paragraph of
Article 26 of the Family Code, the Filipino spouse remained
married even if her foreign husband obtained divorce
abroad. This provision applies only when the foreign spouse
seeks the divorce. It will not apply if the Filipino spouse
secures the divorce.

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§ 6. The Van Dorn vs. Romillo Case

This case was decided before the effectivity of the Family


Code. (139 SCRA 139, [1985]) Petitioner Alice Reyes Van
Dorn is a citizen of the Philippines while private
respondent Richard Upton is a citizen of the United States.
They were married in Hongkong in 1972 and established
their residence in the Philippines and had two children. In
1982, they were divorced in the United States and
thereafter, petitioner remarried in Nevada to Theodore
Van Dorn.
On June 8, 1983, private respondent Upton filed a suit
against the petitioner in the RTC of Pasay City, alleging
that petitioner’s business in Ermita, the Galleon Shop, is
conjugal property of the parties for which petitioner should
render an accounting and that private respondent be
declared as having a right to manage the conjugal property.
Petitioner moved for dismissal on ground that the cause
of action is barred by a previous judgment in the divorce
proceedings before the Nevada Court wherein respondent
had acknowledged that he and petitioner had no
“community property.” The court a quo denied the Motion
to Dismiss on the ground that the property involved is
located in the Philippines so that the divorce decree has no
bearing in the case.
The pivotal issue in this case was whether the divorce is
recognized as valid on the Philippines.
The Supreme Court ruled that the divorce decree was
binding on the respondent as an American citizen.
Pursuant to his national law, private respondent is no
longer the husband of the petitioner. He would have no
standing to sue in the case below as petitioner’s husband
entitled to exercise control over conjugal assets. As he is
bound by the Decision of his own country’s Court, which
validly exercised jurisdiction over him, and whose decision
he does not repudiate, he is estopped by his own

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representation before said Court from asserting his right


over the alleged conjugal property.
“To maintain, as private respondent does, that, under
our laws, petitioner has to be considered still married to
private respondent and still subject to a wife’s obligations
under Article 109, et seq. of the Civil Code cannot be just.
Petitioner should not be obliged to

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live together with, observe respect and fidelity, and render


support to private respondent. The latter should not
continue to be one of her heirs with possible rights to
conjugal property. She should not be discriminated against
in her own country if the ends of justice are to be served.”

§ 7. Effect of Divorce Obtained Abroad by the Alien


Spouse

Imelda M. Pilapil, a Filipino citizen, and private


respondent Erich Ekkehard Geiling, a German national,
were married in Germany, but lived together for sometime
in Manila. A child was born during the marriage, but
marital discord set in and a separation de facto followed.
Such connubial disharmony resulted in Geiling initiating a
divorce proceeding against petitioner in Germany.
Petitioner, on the other hand, filed an action for legal
separation, support and separation of property before the
RTC of Manila.
On January 15, 1986, the local court in Germany
promulgated a decree of divorce on ground of failure of
marriage of the spouse.
On June 27, 1986, private respondent filed two
complaints for adultery before the RTC of Manila, alleging
that while still married to him, petitioner had affairs with
two other men. The cases were dismissed for lack of
sufficient evidence but upon review, the fiscal directed the
filing of two complaints for adultery against the petitioner.
A motion to quash was filed but was denied. The petitioner
then filed this special civil action seeking the annulment of
the order of the lower court denying the motion to quash.
The petition was anchored on the main ground that the
court is without jurisdiction to try and decide the charge of
adultery which is a private offense that cannot be
prosecuted de oficio since the purported complainant, a
foreigner, does not qualify as an offended spouse having
obtained a final decree of divorce under his national law
prior to the filing of the criminal complaint.
The Supreme Court ruled that the private respondent
obtained a valid divorce in his country the Federal Republic
of Germany. Said divorce and its legal effects may be
recognized in the Philippines insofar as private respondent
is concerned in view of the
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nationality principle in our civil law on the matter of status


of persons. (Art. 15, Civil Code) Private respondent, being
no longer the husband of petitioner, had no legal standing
to commence the adultery case.

§ 8. Pleading and Proving a Foreign Law or Foreign


Judgment

Philippine Courts have no judicial notice of foreign laws


and much less foreign judgments. They must be proven as
facts. When the Court is called upon to decide a case based
on a foreign law the common law practice, which has been
adopted in the Philippines, is that the party whose cause of
action or defense depended upon the foreign law has the
burden of proving the foreign law. Such is that the judge is
not authorized to take judicial notice of a foreign law and is
presumed to know only domestic law. (Coquia and
Pangalangan, Conflict of Laws, p. 121 [2000 ed]).
In the Philippines, the rule is that a judge cannot decide
a case on the basis of his own knowledge and information.
He can only act upon the evidence before his court in the
actual case. This rule was relaxed in Delgado v. Republic
(G.R. L-2546, Jan. 28, 1950 [unreported]) where the court
held that judicial notice may be taken of a foreign law with
which the court is “evidently familiar.” Familiarity with the
foreign law may be recognized because the law is generally
known such as a Spanish or American law from which
Philippine law was derived or the judge had previously
ruled upon it is other cases.
In the United States, courts are allowed to take judicial
knowledge of the law of sister states as required by “the
full faith and credit clause” of the U.S. Constitution. This
clause was “designated to transform the several
sovereignties into a single, unified nation.” (Allstate Ins.
Co. vs. Hague, 49 US 302, 101 S. Ct. 633, L. Ed. 2nd 521
[1981])

§ 9. Proof of Foreign Law

Foreign law may be proved by presenting either of the


following:

1. an official publication of the law; or

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2. a copy of the law attested by the officer having the


legal custody of the record, or by his deputy. If such
record is not kept in the Philippines, it must be
accompanied with a certificate that such officer has
the custody.

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Aside from the official publication or a copy of the foreign


law, there are also documents which may be required to be
presented in court in order to prove a cause of action. In the
case of proof of documents executed abroad to be used in
the Philippines must be duly authenticated by the
Philippine consul attaching his consular seal. This
mandatory requirement must be first complied with before
such document will be received by the court.
In some cases, it may be necessary to take depositions of
non-residents. Sec. 11, Rule 23 of the Rules of Court
provides for the list of persons before whom depositions
may be taken in foreign countries. In a foreign state or
country, depositions may be taken:

a. on notice before a secretary of embassy or legation,


consul general, consul, vice-consul, or consular
agent of the Republic of the Philippines;
b. before such person or officer as may be appointed by
commission or under letters rogatory; or
c. before such person which the parties have
stipulated in writing.

In an early decision (Mike Estate vs. Johnson, 39 Phil. 156


[1918] the Supreme Court held that the lower court
committed an error in taking judicial notice of an Illinois
law. The Illinois law must be proved in accordance with the
local procedural rules. What was involved in the case was
the formal validity of a will of an American national, which
did not comply with the requirements of the Philippine
internal rule but apparently conformed to the requirements
of Illinois law. The proper rule is to require proof of the
States of American Union wherever their provisions are
pertinent of the issues in any action litigated in the
Philippine courts.
In the Estate of Suntay, 95 Phil. 50 (1952), Jose B.
Suntay, a Filipino citizen and resident of the Philippines,
died in 1934 in the City of Amoy, Fookien province,
Republic of China, leaving real and personal properties in
the Philippines and a house in Amoy.

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He was survived by his children of a first marriage and his


wife and a child.
The Supreme Court ruled that the facts that the
municipal district court of Amoy, China, is a probate court
must be proved. The law of China on procedure in the
probate or allowance of wills must also be proved. The legal
requirements for the execution of a valid will in China in
1931 should also be established by competent evidence. The
unverified answers to the questions propounded by counsel
for the appellant to the Consul General of the Republic of
China set forth in Exhibits “R-1” and “R-2,” objected to by
counsel for the appellee, are inadmissible, because apart
from the fact that the office of Consul General does not

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qualify and make the person who holds it an expert on the


Chinese law on procedure in probate matters, if the same
be admitted, the adverse party would be deprived of his
rights to confront and cross-examine the witness. Consuls
are appointed to attend to trade matters. Moreover, it
appears that all the proceedings had in the municipal
district court of Amoy were for the purpose of taking the
testimony of two attesting witnesses to the will and that
the order of the municipal district court of Amoy does not
purport to probate the will. In the absence of proof that the
municipal district court of Amoy is a probate court and on
the Chinese law of procedure in probate matters, it may be
presumed that the proceedings in the matter of probating
or allowing a will in the Chinese courts are the same as
those provided for in our laws on the subject. It is a
proceeding in rem and for the validity of such proceedings
personal notice or by publication or both to all interested
parties must be made. The interested parties in the case
were known to reside in the Philippines. The evidence
shows that no such notice was received by the interested
parties residing in the Philippines. The proceedings had in
the municipal district court of Amoy, China, may be
likened to a deposition or to a perpetuation of testimony,
and even if it were so it does not measure or come up to the
standard of such proceedings in the Philippines for lack of
notice to all interested parties and the proceedings were
held at the back of such interested parties.
In Fluemer vs. Hix, 54 Phil. 612 (1930), Hix died with a
will allegedly executed in accordance with the formalities of
the West Virginia Law. To prove the existence of said law,
the proponent of
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the will presented in evidence a copy of said law of West


Virginia Code found in the Philippine National Library
with a corresponding certificate signed by the Director of
the National Library.
The Court held that the legal requisites for proof of a
foreign law was not complied with. The publication of the
West Virginia Code shall be certified by the Official
custodian thereof. Furthermore, there was no proof that
the said law was still in force at the time of the execution of
the will.
In Philippine Commercial and International Bank vs.
Escolin, 56 SCRA 266 (1974) the issue was on what law
was to be applied in settling the estate of Mrs. Hodge a
citizen of Texas but a resident of Philippines. The
administratrix contended that the Texas law under which
there was no system of legitime should be applied. The
Court held that the question of what are the laws of Texas
governing the matters here in issue is, in the first instance,
one of fact, not of law. Elementary is the rule that foreign
laws may not be taken judicial notice of and have to be
proven like any other fact in dispute between the parties in

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any proceeding, with rare exception in instances when the


said laws are already within the actual knowledge of the
court, such as when they are well and generally known or
they have been actually ruled upon in other cases before it
and none of the parties concerned claim otherwise. (Moran,
Comments of the Rules of Court, p. 41, 1970 ed)

§ 10. The Burden of Proof in the Existence of Foreign


Law or Judgment

Since 1910, the Philippine Supreme Court set a ruling that


the law of a foreign country is one fact subject to proof like
any other factual issue (Sy Joe Lieng vs. Sy Quia, 16 Phil.
137 (1914). This ruling was reiterated in In Re Estate of
Johnson, 39 Phil. 156 (1918) and in Fluemer vs. Hix, 54
Phil. 610 (1931). This rule has been quite relaxed in
Delgado vs. Republic, G.R. No. L-2546, January 28, 1950
and Pardo vs. Republic, 85 Phil. 327 (1950) wherein the
Court stated exceptional circumstances where our courts
“are familiar with foreign laws” such as the Spanish Civil
Code and allied legislation, common law doctrines and the
rules from which many of our laws are derived, judicial
notice may be taken of them.
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The Courts in Philippine Commercial and Industrial Bank


vs. Escolin (56 SCRA 266 [1974]) needs an exemption “the
said laws are within the actual knowledge of the Court.”
In Miciano vs. Brimo, 50 Phil. 867 (1924) the case
involved the partitions of the estate left by the deceased
Joseph G. Brimo. The judicial administrator of the said
estate, Juan Miciano, filed a scheme of partition which was
opposed by one of the brothers of the deceased, Andre
Brimo. The opposition was based on the ground that the
partition in question puts into effect the provisions of the
deceased’s will which are not in accordance with the laws of
his Turkish nationality, and hence they are void for
violating the Philippine Civil Code which provides that
“legal and testamentary successions, in respect to the order
of succession as well as to the amount of the successional
rights and the intrinsic validity of their provisions, shall be
regulated by the national law of the person whose
succession is in question, whatever may be the nature of
the property or the country in which it may be situated.”
However, the oppositor failed to prove that the said
testamentary dispositions are not in accordance with the
Turkish laws, and failed to present any evidence showing
what the Turkish laws are on the matter.
The Court held that it has not proved in the proceedings
what the Turkish laws are. He himself acknowledged it
when he desired to be given an opportunity to present
evidence on the desires to be given an opportunity to
present evidence on this point, so much so that he assigns
as an error of the court in not having deferred the approval

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of the scheme of partition until the receipt of certain


testimony requested regarding the Turkish laws on the
matter.
In Laureano vs. Court of Appeals, 324 SCRA 414 (2000),
the Court held that the Philippine courts do not take
judicial notice of the laws of Singapore. The defendant that
claims the applicability of the Singapore Laws to this case
has the burden of proof. The defendant has failed to do so.
Therefore, the Philippine law should be applied.
470

470 SUPREME COURT REPORTS ANNOTATED


Pleading and Proving Foreign Law and Divorce Judgments

§ 11. Suggested Procedure for Courts on Proof of


Foreign Law

Courts have been urged to take into account the following


factors in deciding whether to apply the domestic law or
decide the case against the party who has the burden of
proving the contents of the foreign law: (1) the degree of
public interest involved in the dispute; (2) the accessibility
of the foreign law materials to the parties; (3) the
possibility that the plaintiff is merely forum shopping; and
(4) the similarities between the forum law and foreign law
on the issue in point. (“A Recurrent Problem in
Transactional Litigation: The Effect of Failure to Invoke or
Prove the Applicable Foreign Law: 59 Cornell L. Rev. 1
(1973) cited in Coquia and Pangalangan, op. cit, p. 121)

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