Persons and Family Relations Cases

Table of Contents Page

Republic vs. Cagandahan G.R No. 166676 1

Silverio vs. Republic G.R. No. 174689 7
Duncan and Tecson vs. Glaxo G.R. No. 162994 13
Star Paper Corp. vs. Simbol G.R. No. 164774 18
Garcia vs. Recio G.R. No. 138322 23
Cang vs CA GR No 105308 28
Van Dorn vs. Romillo Jr. G.R. No. L-68470 29
Republic vs. Orbecido III G.R. No. 154380 31
Quita vs. CA G.R. No. 124862 35
Republic vs. Manalo G.R. No. 221029 38

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

REPUBLIC OF THE PHILIPPINES, G.R. No. 166676

Petitioner, Present:

- versus - Quisumbing, J., Chairperson,

JENNIFER B. CAGANDAHAN, Carpio Morales,

Respondent. Tinga,

VELASCO, JR., and

BRION, JJ.

Promulgated:

September 12, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and
seeking a reversal of the Decision[1] dated January 12, 2005 of the Regional Trial Court (RTC), Branch
33 of Siniloan, Laguna, which granted the Petition for Correction of Entries in Birth Certificate filed by
Jennifer B. Cagandahan and ordered the following changes of entries in Cagandahan’s birth certificate:
(1) the name "Jennifer Cagandahan" changed to "Jeff Cagandahan" and (2) gender from "female" to

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"male."

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth
Certificate2 before the RTC, Branch 33 of Siniloan, Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was registered as a female in the
Certificate of Live Birth but while growing up, she developed secondary male characteristics and was
diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus
afflicted possess both male and female characteristics. She further alleged that she was diagnosed to
have clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was
discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had
minimized, she has stopped growing and she has no breast or menstrual development. She then alleged
that for all interests and appearances as well as in mind and emotion, she has become a male person.
Thus, she prayed that her birth certificate be corrected such that her gender be changed from female to
male and her first name be changed from Jennifer to Jeff.

The petition was published in a newspaper of general circulation for three (3) consecutive weeks and
was posted in conspicuous places by the sheriff of the court. The Solicitor General entered his
appearance and authorized the Assistant Provincial Prosecutor to appear in his behalf.

To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of the
Department of Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon issued a
medical certificate stating that respondent’s condition is known as CAH. He explained that genetically
respondent is female but because her body secretes male hormones, her female organs did not develop
normally and she has two sex organs – female and male. He testified that this condition is very rare, that
respondent’s uterus is not fully developed because of lack of female hormones, and that she has no
monthly period. He further testified that respondent’s condition is permanent and recommended the
change of gender because respondent has made up her mind, adjusted to her chosen role as male, and
the gender change would be advantageous to her.

The RTC granted respondent’s petition in a Decision dated January 12, 2005 which reads:

The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs prayed
[for]. Petitioner has adequately presented to the Court very clear and convincing proofs for the granting
of his petition. It was medically proven that petitioner’s body produces male hormones, and first his
body as well as his action and feelings are that of a male. He has chosen to be male. He is a normal
person and wants to be acknowledged and identified as a male.

WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to make the
following corrections in the birth [c]ertificate of Jennifer Cagandahan upon payment of the prescribed
fees:

a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and

b) By changing the gender from female to MALE.

It is likewise ordered that petitioner’s school records, voter’s registry, baptismal certificate, and other
pertinent records are hereby amended to conform with the foregoing corrected data.

SO ORDERED.[3]

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned
ruling.

The issues raised by petitioner are:

THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT:

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I.

THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN COMPLIED
WITH; AND,

II.

CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF "SEX" OR "GENDER" IN THE
BIRTH CERTIFICATE, WHILE RESPONDENT’S MEDICAL CONDITION, i.e., CONGENITAL ADRENAL
HYPERPLASIA DOES NOT MAKE HER A "MALE."4

Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the birth
certificate of respondent to change her sex or gender, from female to male, on the ground of her
medical condition known as CAH, and her name from "Jennifer" to "Jeff," under Rules 103 and 108 of
the Rules of Court.

The OSG contends that the petition below is fatally defective for non-compliance with Rules 103 and 108
of the Rules of Court because while the local civil registrar is an indispensable party in a petition for
cancellation or correction of entries under Section 3, Rule 108 of the Rules of Court, respondent’s
petition before the court a quo did not implead the local civil registrar.5 The OSG further contends
respondent’s petition is fatally defective since it failed to state that respondent is a bona fide resident of
the province where the petition was filed for at least three (3) years prior to the date of such filing as
mandated under Section 2(b), Rule 103 of the Rules of Court.6 The OSG argues that Rule 108 does not
allow change of sex or gender in the birth certificate and respondent’s claimed medical condition known
as CAH does not make her a male.7

On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna was not
formally named a party in the Petition for Correction of Birth Certificate, nonetheless the Local Civil
Registrar was furnished a copy of the Petition, the Order to publish on December 16, 2003 and all
pleadings, orders or processes in the course of the proceedings,8 respondent is actually a male person
and hence his birth certificate has to be corrected to reflect his true sex/gender,9 change of sex or
gender is allowed under Rule 108,10 and respondent substantially complied with the requirements of
Rules 103 and 108 of the Rules of Court.11

Rules 103 and 108 of the Rules of Court provide:

Rule 103

CHANGE OF NAME

Section 1. Venue. – A person desiring to change his name shall present the petition to the Regional Trial
Court of the province in which he resides, [or, in the City of Manila, to the Juvenile and Domestic
Relations Court].

Sec. 2. Contents of petition. – A petition for change of name shall be signed and verified by the person
desiring his name changed, or some other person on his behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition is filed for at
least three (3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought;

(c) The name asked for.

Sec. 3. Order for hearing. – If the petition filed is sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct
that a copy of the order be published before the hearing at least once a week for three (3) successive
weeks in some newspaper of general circulation published in the province, as the court shall deem best.
The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4)

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months after the last publication of the notice.

Sec. 4. Hearing. – Any interested person may appear at the hearing and oppose the petition. The
Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the
Republic.

Sec. 5. Judgment. – Upon satisfactory proof in open court on the date fixed in the order that such order
has been published as directed and that the allegations of the petition are true, the court shall, if proper
and reasonable cause appears for changing the name of the petitioner, adjudge that such name be
changed in accordance with the prayer of the petition.

Sec. 6. Service of judgment. – Judgments or orders rendered in connection with this rule shall be
furnished the civil registrar of the municipality or city where the court issuing the same is situated, who
shall forthwith enter the same in the civil register.

Rule 108

CANCELLATION OR CORRECTION OF ENTRIES

IN THE CIVIL REGISTRY

Section 1. Who may file petition. – Any person interested in any act, event, order or decree concerning
the civil status of persons which has been recorded in the civil register, may file a verified petition for the
cancellation or correction of any entry relating thereto, with the Regional Trial Court of the province
where the corresponding civil registry is located.

Sec. 2. Entries subject to cancellation or correction. – Upon good and valid grounds, the following entries
in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal
separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the
beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization;
(k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n)
voluntary emancipation of a minor; and (o) changes of name.

Sec. 3. Parties. – When cancellation or correction of an entry in the civil register is sought, the civil
registrar and all persons who have or claim any interest which would be affected thereby shall be made
parties to the proceeding.

Sec. 4. Notice and publication. – Upon the filing of the petition, the court shall, by an order, fix the time
and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the order to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the province.

Sec. 5. Opposition. – The civil registrar and any person having or claiming any interest under the entry
whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or
from the last date of publication of such notice, file his opposition thereto.

Sec. 6. Expediting proceedings. – The court in which the proceedings is brought may make orders
expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights
of the parties pending such proceedings.

Sec. 7. Order. – After hearing, the court may either dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served
upon the civil registrar concerned who shall annotate the same in his record.

The OSG argues that the petition below is fatally defective for non-compliance with Rules 103 and 108 of
the Rules of Court because respondent’s petition did not implead the local civil registrar. Section 3, Rule
108 provides that the civil registrar and all persons who have or claim any interest which would be
affected thereby shall be made parties to the proceedings. Likewise, the local civil registrar is required to
be made a party in a proceeding for the correction of name in the civil registry. He is an indispensable
party without whom no final determination of the case can be had.[12]Unless all possible indispensable
parties were duly notified of the proceedings, the same shall be considered as falling much too short of
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the requirements of the rules.13 The corresponding petition should also implead as respondents the civil
registrar and all other persons who may have or may claim to have any interest that would be affected
thereby.14 Respondent, however, invokes Section 6,[15] Rule 1 of the Rules of Court which states that
courts shall construe the Rules liberally to promote their objectives of securing to the parties a just,
speedy and inexpensive disposition of the matters brought before it. We agree that there is substantial
compliance with Rule 108 when respondent furnished a copy of the petition to the local civil registrar.

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must
look to the statutes. In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in a civil register shall be changed or corrected without a judicial order.

Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No.
9048[17] in so far as clerical or typographical errors are involved. The correction or change of such
matters can now be made through administrative proceedings and without the need for a judicial order.
In effect, Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of
such errors. Rule 108 now applies only to substantial changes and corrections in entries in the civil
register.18

Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a mere
clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108
of the Rules of Court.19

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the Civil Code:

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the
civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those
that occur after birth.20

Respondent undisputedly has CAH. This condition causes the early or "inappropriate" appearance of
male characteristics. A person, like respondent, with this condition produces too much androgen, a male
hormone. A newborn who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris with
the urethral opening at the base, an ambiguous genitalia often appearing more male than female; (2)
normal internal structures of the female reproductive tract such as the ovaries, uterus and fallopian
tubes; as the child grows older, some features start to appear male, such as deepening of the voice,
facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born with
CAH.

CAH is one of many conditions[21] that involve intersex anatomy. During the twentieth century,
medicine adopted the term "intersexuality" to apply to human beings who cannot be classified as either
male or female.[22] The term is now of widespread use. According to Wikipedia, intersexuality "is the
state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary
sex characteristics are determined to be neither exclusively male nor female. An organism with intersex
may have biological characteristics of both male and female sexes."

Intersex individuals are treated in different ways by different cultures. In most societies, intersex
individuals have been expected to conform to either a male or female gender role.[23] Since the rise of
modern medical science in Western societies, some intersex people with ambiguous external genitalia
have had their genitalia surgically modified to resemble either male or female genitals.[24] More
commonly, an intersex individual is considered as suffering from a "disorder" which is almost always
recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold
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the individual as neatly as possible into the category of either male or female.

In deciding this case, we consider the compassionate calls for recognition of the various degrees of
intersex as variations which should not be subject to outright denial. "It has been suggested that there is
some middle ground between the sexes, a ‘no-man’s land’ for those individuals who are neither truly
‘male’ nor truly ‘female’."[25] The current state of Philippine statutes apparently compels that a person
be classified either as a male or as a female, but this Court is not controlled by mere appearances when
nature itself fundamentally negates such rigid classification.

In the instant case, if we determine respondent to be a female, then there is no basis for a change in
the birth certificate entry for gender. But if we determine, based on medical testimony and scientific
development showing the respondent to be other than female, then a change in the

subject’s birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor
consistently and categorically male) composition. Respondent has female (XX) chromosomes. However,
respondent’s body system naturally produces high levels of male hormones (androgen). As a result,
respondent has ambiguous genitalia and the phenotypic features of a male.

Ultimately, we are of the view that where the person is biologically or naturally intersex the determining
factor in his gender classification would be what the individual, like respondent, having reached the age
of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and
considering that his body produces high levels of male hormones (androgen) there is preponderant
biological support for considering him as being male. Sexual development in cases of intersex persons
makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons,
like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or
interfere with what he was born with. And accordingly, he has already ordered his life to that of a male.
Respondent could have undergone treatment and taken steps, like taking lifelong medication,[26] to
force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has
instead taken its due course in respondent’s development to reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so
innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo
medical treatment to reverse the male tendency due to CAH. The Court will not consider respondent as
having erred in not choosing to undergo treatment in order to become or remain as a female. Neither
will the Court force respondent to undergo treatment and to take medication in order to fit the mold of a
female, as society commonly currently knows this gender of the human species. Respondent is the one
who has to live with his intersex anatomy. To him belongs the human right to the pursuit of happiness
and of health. Thus, to him should belong the primordial choice of what courses of action to take along
the path of his sexual development and maturation. In the absence of evidence that respondent is an
"incompetent"[27] and in the absence of evidence to show that classifying respondent as a male will
harm other members of society who are equally entitled to protection under the law, the Court affirms
as valid and justified the respondent’s position and his personal judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual
deals with what nature has handed out. In other words, we respect respondent’s congenital condition
and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but
respect how respondent deals with his unordinary state and thus help make his life easier, considering
the unique circumstances in this case.

As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a
matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the
consequences that will follow.[28] The trial court’s grant of respondent’s change of name from Jennifer
to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that
respondent’s change of name merely recognizes his preferred gender, we find merit in respondent’s
change of name. Such a change will conform with the change of the entry in his birth certificate from
female to male.

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WHEREFORE, the Republic’s petition is DENIED. The Decision dated January 12, 2005 of the Regional
Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 174689 October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.

DECISION

CORONA, J.:

When God created man, He made him in the likeness of God; He created them male and female.
(Genesis 5:1-2)

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from
inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked
the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two
human beings; one was a male and the other was a female. Amihan named the man "Malakas"
(Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, does the law recognize the
changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex? May a
person successfully petition for a change of name and sex appearing in the birth certificate to reflect the
result of a sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his
first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition,
docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines
Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes
Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as
a female" and that he had always identified himself with girls since childhood.1 Feeling trapped in a
man’s body, he consulted several doctors in the United States. He underwent psychological examination,
hormone treatment and breast augmentation. His attempts to transform himself to a "woman"
culminated on January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand.
He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in
the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the
procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to
have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male"
to "female."

An order setting the case for initial hearing was published in the People’s Journal Tonight, a newspaper
of general circulation in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the
Office of the Solicitor General (OSG) and the civil registrar of Manila.

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On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the
petition was made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American
fiancé, Richard P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or
for any unlawful motive but solely for the purpose of making his birth records compatible with his
present sex.

The sole issue here is whether or not petitioner is entitled to the relief asked for.

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with
the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always
felt, thought and acted like a woman, now possesses the physique of a female. Petitioner’s
misfortune to be trapped in a man’s body is not his own doing and should not be in any way
taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the
community in granting the petition. On the contrary, granting the petition would bring the much-
awaited happiness on the part of the petitioner and her [fiancé] and the realization of their
dreams.

Finally, no evidence was presented to show any cause or ground to deny the present petition
despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to
interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioner’s first name from "Rommel Jacinto" to MELY and petitioner’s gender
from "Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for
certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the
birth certificate by reason of sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that
the trial court’s decision lacked legal basis. There is no law allowing the change of either name or sex in
the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals
granted the Republic’s petition, set aside the decision of the trial court and ordered the dismissal of SP
Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under
Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10

The petition lacks merit.

A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As
found by the trial court:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or
for any unlawful motive but solely for the purpose of making his birth records compatible
with his present sex. (emphasis supplied)

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Petitioner believes that after having acquired the physical features of a female, he became entitled to
the civil registry changes sought. We disagree.

The State has an interest in the names borne by individuals and entities for purposes of
identification.11 A change of name is a privilege, not a right.12 Petitions for change of name are controlled
by statutes.13 In this connection, Article 376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA
9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or
Nickname. – No entry in a civil register shall be changed or corrected without a judicial order,
except for clerical or typographical errors and change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil registrar or consul general in
accordance with the provisions of this Act and its implementing rules and regulations.

RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions
for change of first name to the city or municipal civil registrar or consul general concerned. Under the
law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the
aforementioned administrative officers. The intent and effect of the law is to exclude the change of first
name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries
in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name
is first filed and subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and
procedure. In sum, the remedy and the proceedings regulating change of first name are primarily
administrative in nature, not judicial.

RA 9048 likewise provides the grounds for which change of first name may be allowed:

SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change of first
name or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the petitioner
and he has been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.

Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to
make his first name compatible with the sex he thought he transformed himself into through surgery.
However, a change of name does not alter one’s legal capacity or civil status.18 RA 9048 does not
sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion,
changing petitioner’s first name for his declared purpose may only create grave complications in the civil
registry and the public interest.

Before a person can legally change his given name, he must present proper or reasonable cause or any
compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the
use of his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he
might suffer as a result of using his true and official name.

In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name was
not within that court’s primary jurisdiction as the petition should have been filed with the local civil
registrar concerned, assuming it could be legally done. It was an improper remedy because the proper
remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as
the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept.
More importantly, it had no merit since the use of his true and official name does not prejudice him at
all. For all these reasons, the Court of Appeals correctly dismissed petitioner’s petition in so far as the
change of his first name was concerned.
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No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex
Reassignment

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must
look to the statutes.21 In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical
or typographical errors are involved. The correction or change of such matters can now be made
through administrative proceedings and without the need for a judicial order. In effect, RA 9048
removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now
applies only to substantial changes and corrections in entries in the civil register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:

xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of

clerical work in writing, copying, transcribing or typing an entry in the civil register that is
harmless and innocuous, such as misspelled name or misspelled place of birth or the like,
which is visible to the eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or records: Provided, however, That
no correction must involve the change of nationality, age, status or sex of the
petitioner. (emphasis supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules
of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those
that occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion
that it covers the correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to change
means "to replace something with something else of the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as
legitimations, acknowledgments of illegitimate children and naturalization), events (such as births,
marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of
marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship,
civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial
decrees produce legal consequences that touch upon the legal capacity, status and nationality of a
10 | P a g e
person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among
those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law,
expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and
incapacities) of a person in view of his age, nationality and his family membership.27

The status of a person in law includes all his personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at his own will, such as his being
legitimate or illegitimate, or his being married or not. The comprehensive term status… include
such matters as the beginning and end of legal personality, capacity to have rights in general,
family relations, and its various aspects, such as birth, legitimation, adoption, emancipation,
marriage, divorce, and sometimes even succession.28 (emphasis supplied)

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s legal
capacity and civil status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by
special laws.

But there is no such special law in the Philippines governing sex reassignment and its effects. This is
fatal to petitioner’s cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician or midwife in
attendance at the birth or, in default thereof, the declaration of either parent of the newborn
child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall
be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than
thirty days after the birth, by the physician or midwife in attendance at the birth or by either
parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and
hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or,
in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where
the infant was born; and (f) such other data as may be required in the regulations to be issued.

xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the
time of birth.29Thus, the sex of a person is determined at birth, visually done by the birth attendant (the
physician or midwife) by examining the genitals of the infant. Considering that there is no law legally
recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if
not attended by error,30 is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in the
absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil
Register Law and laws concerning the civil registry (and even all other laws) should therefore be
understood in their common and ordinary usage, there being no legislative intent to the contrary. In this
connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a male
from a female"32 or "the distinction between male and female."33Female is "the sex that produces ova or
bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus,
the words "male" and "female" in everyday understanding do not include persons who have undergone
sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-
known meaning are presumed to have been used in that sense unless the context compels to the
contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and
remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through
surgery or something that allows a post-operative male-to-female transsexual to be included in the
category "female."

11 | P a g e
For these reasons, while petitioner may have succeeded in altering his body and appearance through the
intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for
that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his
birth certificate.

Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the
Ground of Equity

The trial court opined that its grant of the petition was in consonance with the principles of justice and
equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is
wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy
consequences. First, even the trial court itself found that the petition was but petitioner’s first step
towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between a man and a woman.37 One of its essential
requisites is the legal capacity of the contracting parties who must be a male and a female.38 To grant
the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage
and family relations. It will allow the union of a man with another man who has undergone sex
reassignment (a male-to-female post-operative transsexual). Second, there are various laws which apply
particularly to women such as the provisions of the Labor Code on employment of women,39 certain
felonies under the Revised Penal Code40 and the presumption of survivorship in case of calamities under
Rule 131 of the Rules of Court,41 among others. These laws underscore the public policy in relation to
women which could be substantially affected if petitioner’s petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for
courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to
make or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine what
guidelines should govern the recognition of the effects of sex reassignment. The need for legislative
guidelines becomes particularly important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or
change of entries in the civil registry, where they may be filed, what grounds may be invoked, what
proof must be presented and what procedures shall be observed. If the legislature intends to confer on a
person who has undergone sex reassignment the privilege to change his name and sex to conform with
his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the
conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized
as having successfully changed his sex. However, this Court has no authority to fashion a law on that
matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or
interpret the written word of its co-equal branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the]
realization of their dreams." No argument about that. The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the commonly recognized parameters of social
convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks
involve questions of public policy to be addressed solely by the legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

12 | P a g e
 G.R. No. 162994 September 17, 2004

DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A. TECSON, petitioners,

vs.
GLAXO WELLCOME PHILIPPINES, INC., Respondent.

RESOLUTION

TINGA, J.:

Confronting the Court in this petition is a novel question, with constitutional overtones, involving the
validity of the policy of a pharmaceutical company prohibiting its employees from marrying employees of
any competitor company.

This is a Petition for Review on Certiorari assailing the Decision1 dated May 19, 2003 and
the Resolution dated March 26, 2004 of the Court of Appeals in CA-G.R. SP No. 62434.2

Petitioner Pedro A. Tecson (Tecson) was hired by respondent Glaxo Wellcome Philippines, Inc. (Glaxo)
as medical representative on October 24, 1995, after Tecson had undergone training and orientation.

Thereafter, Tecson signed a contract of employment which stipulates, among others, that he agrees to
study and abide by existing company rules; to disclose to management any existing or future
relationship by consanguinity or affinity with co-employees or employees of competing drug companies
and should management find that such relationship poses a possible conflict of interest, to resign from
the company.

The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to inform
management of any existing or future relationship by consanguinity or affinity with co-employees or
employees of competing drug companies. If management perceives a conflict of interest or a potential
conflict between such relationship and the employee’s employment with the company, the management
and the employee will explore the possibility of a "transfer to another department in a non-
counterchecking position" or preparation for employment outside the company after six months.

Tecson was initially assigned to market Glaxo’s products in the Camarines Sur-Camarines Norte sales
area.

Subsequently, Tecson entered into a romantic relationship with Bettsy, an employee of Astra
Pharmaceuticals3(Astra), a competitor of Glaxo. Bettsy was Astra’s Branch Coordinator in Albay. She
supervised the district managers and medical representatives of her company and prepared marketing
strategies for Astra in that area.

Even before they got married, Tecson received several reminders from his District Manager regarding
the conflict of interest which his relationship with Bettsy might engender. Still, love prevailed, and
Tecson married Bettsy in September 1998.

In January 1999, Tecson’s superiors informed him that his marriage to Bettsy gave rise to a conflict of
interest. Tecson’s superiors reminded him that he and Bettsy should decide which one of them would
resign from their jobs, although they told him that they wanted to retain him as much as possible
because he was performing his job well.

Tecson requested for time to comply with the company policy against entering into a relationship with an
employee of a competitor company. He explained that Astra, Bettsy’s employer, was planning to merge
with Zeneca, another drug company; and Bettsy was planning to avail of the redundancy package to be
offered by Astra. With Bettsy’s separation from her company, the potential conflict of interest would be
eliminated. At the same time, they would be able to avail of the attractive redundancy package from
Astra.

13 | P a g e
In August 1999, Tecson again requested for more time resolve the problem. In September 1999, Tecson
applied for a transfer in Glaxo’s milk division, thinking that since Astra did not have a milk division, the
potential conflict of interest would be eliminated. His application was denied in view of Glaxo’s "least-
movement-possible" policy.

In November 1999, Glaxo transferred Tecson to the Butuan City-Surigao City-Agusan del Sur sales area.
Tecson asked Glaxo to reconsider its decision, but his request was denied.

Tecson sought Glaxo’s reconsideration regarding his transfer and brought the matter to Glaxo’s
Grievance Committee. Glaxo, however, remained firm in its decision and gave Tescon until February 7,
2000 to comply with the transfer order. Tecson defied the transfer order and continued acting as
medical representative in the Camarines Sur-Camarines Norte sales area.

During the pendency of the grievance proceedings, Tecson was paid his salary, but was not issued
samples of products which were competing with similar products manufactured by Astra. He was also
not included in product conferences regarding such products.

Because the parties failed to resolve the issue at the grievance machinery level, they submitted the
matter for voluntary arbitration. Glaxo offered Tecson a separation pay of one-half (½) month pay for
every year of service, or a total of ₱50,000.00 but he declined the offer. On November 15, 2000, the
National Conciliation and Mediation Board (NCMB) rendered its Decision declaring as valid Glaxo’s policy
on relationships between its employees and persons employed with competitor companies, and affirming
Glaxo’s right to transfer Tecson to another sales territory.

Aggrieved, Tecson filed a Petition for Review with the Court of Appeals assailing the NCMB Decision.

On May 19, 2003, the Court of Appeals promulgated its Decision denying the Petition for Review on the
ground that the NCMB did not err in rendering its Decision. The appellate court held that Glaxo’s policy
prohibiting its employees from having personal relationships with employees of competitor companies is
a valid exercise of its management prerogatives.4

Tecson filed a Motion for Reconsideration of the appellate court’s Decision, but the motion was denied
by the appellate court in its Resolution dated March 26, 2004.5

Petitioners filed the instant petition, arguing therein that (i) the Court of Appeals erred in affirming the
NCMB’s finding that the Glaxo’s policy prohibiting its employees from marrying an employee of a
competitor company is valid; and (ii) the Court of Appeals also erred in not finding that Tecson was
constructively dismissed when he was transferred to a new sales territory, and deprived of the
opportunity to attend products seminars and training sessions.6

Petitioners contend that Glaxo’s policy against employees marrying employees of competitor companies
violates the equal protection clause of the Constitution because it creates invalid distinctions among
employees on account only of marriage. They claim that the policy restricts the employees’ right to
marry.7

They also argue that Tecson was constructively dismissed as shown by the following circumstances: (1)
he was transferred from the Camarines Sur-Camarines Norte sales area to the Butuan-Surigao-Agusan
sales area, (2) he suffered a diminution in pay, (3) he was excluded from attending seminars and
training sessions for medical representatives, and (4) he was prohibited from promoting respondent’s
products which were competing with Astra’s products.8

In its Comment on the petition, Glaxo argues that the company policy prohibiting its employees from
having a relationship with and/or marrying an employee of a competitor company is a valid exercise of
its management prerogatives and does not violate the equal protection clause; and that Tecson’s
reassignment from the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao City and
Agusan del Sur sales area does not amount to constructive dismissal.9

Glaxo insists that as a company engaged in the promotion and sale of pharmaceutical products, it has a
genuine interest in ensuring that its employees avoid any activity, relationship or interest that may
conflict with their responsibilities to the company. Thus, it expects its employees to avoid having
personal or family interests in any competitor company which may influence their actions and decisions
14 | P a g e
and consequently deprive Glaxo of legitimate profits. The policy is also aimed at preventing a competitor
company from gaining access to its secrets, procedures and policies.10

It likewise asserts that the policy does not prohibit marriage per se but only proscribes existing or future
relationships with employees of competitor companies, and is therefore not violative of the equal
protection clause. It maintains that considering the nature of its business, the prohibition is based on
valid grounds.11

According to Glaxo, Tecson’s marriage to Bettsy, an employee of Astra, posed a real and potential
conflict of interest. Astra’s products were in direct competition with 67% of the products sold by Glaxo.
Hence, Glaxo’s enforcement of the foregoing policy in Tecson’s case was a valid exercise of its
management prerogatives.12 In any case, Tecson was given several months to remedy the situation, and
was even encouraged not to resign but to ask his wife to resign form Astra instead.13

Glaxo also points out that Tecson can no longer question the assailed company policy because when he
signed his contract of employment, he was aware that such policy was stipulated therein. In said
contract, he also agreed to resign from respondent if the management finds that his relationship with an
employee of a competitor company would be detrimental to the interests of Glaxo.14

Glaxo likewise insists that Tecson’s reassignment to another sales area and his exclusion from seminars
regarding respondent’s new products did not amount to constructive dismissal.

It claims that in view of Tecson’s refusal to resign, he was relocated from the Camarines Sur-Camarines
Norte sales area to the Butuan City-Surigao City and Agusan del Sur sales area. Glaxo asserts that in
effecting the reassignment, it also considered the welfare of Tecson’s family. Since Tecson’s hometown
was in Agusan del Sur and his wife traces her roots to Butuan City, Glaxo assumed that his transfer from
the Bicol region to the Butuan City sales area would be favorable to him and his family as he would be
relocating to a familiar territory and minimizing his travel expenses.15

In addition, Glaxo avers that Tecson’s exclusion from the seminar concerning the new anti-asthma drug
was due to the fact that said product was in direct competition with a drug which was soon to be sold by
Astra, and hence, would pose a potential conflict of interest for him. Lastly, the delay in Tecson’s receipt
of his sales paraphernalia was due to the mix-up created by his refusal to transfer to the Butuan City
sales area (his paraphernalia was delivered to his new sales area instead of Naga City because the
supplier thought he already transferred to Butuan).16

The Court is tasked to resolve the following issues: (1) Whether the Court of Appeals erred in ruling that
Glaxo’s policy against its employees marrying employees from competitor companies is valid, and in not
holding that said policy violates the equal protection clause of the Constitution; (2) Whether Tecson was
constructively dismissed.

The Court finds no merit in the petition.

The stipulation in Tecson’s contract of employment with Glaxo being questioned by petitioners provides:

10. You agree to disclose to management any existing or future relationship you may have,
either by consanguinity or affinity with co-employees or employees of competing drug
companies. Should it pose a possible conflict of interest in management discretion, you agree to
resign voluntarily from the Company as a matter of Company policy.

…17

The same contract also stipulates that Tescon agrees to abide by the existing company rules of Glaxo,
and to study and become acquainted with such policies.18 In this regard, the Employee Handbook of
Glaxo expressly informs its employees of its rules regarding conflict of interest:

1. Conflict of Interest

15 | P a g e
 Employees should avoid any activity, investment relationship, or interest that may run counter to
the responsibilities which they owe Glaxo Wellcome.

Specifically, this means that employees are expected:

a. To avoid having personal or family interest, financial or otherwise, in any competitor

supplier or other businesses which may consciously or unconsciously influence their
actions or decisions and thus deprive Glaxo Wellcome of legitimate profit.

b. To refrain from using their position in Glaxo Wellcome or knowledge of Company plans
to advance their outside personal interests, that of their relatives, friends and other
businesses.

c. To avoid outside employment or other interests for income which would impair their
effective job performance.

d. To consult with Management on such activities or relationships that may lead to conflict
of interest.

1.1. Employee Relationships

Employees with existing or future relationships either by consanguinity or affinity with co-
employees of competing drug companies are expected to disclose such relationship to the
Management. If management perceives a conflict or potential conflict of interest, every effort
shall be made, together by management and the employee, to arrive at a solution within six (6)
months, either by transfer to another department in a non-counter checking position, or by
career preparation toward outside employment after Glaxo Wellcome. Employees must be
prepared for possible resignation within six (6) months, if no other solution is feasible.19

No reversible error can be ascribed to the Court of Appeals when it ruled that Glaxo’s policy prohibiting
an employee from having a relationship with an employee of a competitor company is a valid exercise of
management prerogative.

Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other
confidential programs and information from competitors, especially so that it and Astra are rival
companies in the highly competitive pharmaceutical industry.

The prohibition against personal or marital relationships with employees of competitor companies upon
Glaxo’s employees is reasonable under the circumstances because relationships of that nature might
compromise the interests of the company. In laying down the assailed company policy, Glaxo only aims
to protect its interests against the possibility that a competitor company will gain access to its secrets
and procedures.

That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the
Constitution recognizes the right of enterprises to adopt and enforce such a policy to protect its right to
reasonable returns on investments and to expansion and growth.20 Indeed, while our laws endeavor to
give life to the constitutional policy on social justice and the protection of labor, it does not mean that
every labor dispute will be decided in favor of the workers. The law also recognizes that management
has rights which are also entitled to respect and enforcement in the interest of fair play.21

As held in a Georgia, U.S.A case,22 it is a legitimate business practice to guard business confidentiality
and protect a competitive position by even-handedly disqualifying from jobs male and female applicants
or employees who are married to a competitor. Consequently, the court ruled than an employer that
discharged an employee who was married to an employee of an active competitor did not violate Title
VII of the Civil Rights Act of 1964.23 The Court pointed out that the policy was applied to men and
women equally, and noted that the employer’s business was highly competitive and that gaining inside
information would constitute a competitive advantage.

The challenged company policy does not violate the equal protection clause of the Constitution as
petitioners erroneously suggest. It is a settled principle that the commands of the equal protection
clause are addressed only to the state or those acting under color of its authority.24 Corollarily, it has
16 | P a g e
been held in a long array of U.S. Supreme Court decisions that the equal protection clause erects no
shield against merely private conduct, however, discriminatory or wrongful.25 The only exception occurs
when the state29 in any of its manifestations or actions has been found to have become entwined or
involved in the wrongful private conduct.27 Obviously, however, the exception is not present in this case.
Significantly, the company actually enforced the policy after repeated requests to the employee to
comply with the policy. Indeed, the application of the policy was made in an impartial and even-handed
manner, with due regard for the lot of the employee.

In any event, from the wordings of the contractual provision and the policy in its employee handbook, it
is clear that Glaxo does not impose an absolute prohibition against relationships between its employees
and those of competitor companies. Its employees are free to cultivate relationships with and marry
persons of their own choosing. What the company merely seeks to avoid is a conflict of interest between
the employee and the company that may arise out of such relationships. As succinctly explained by the
appellate court, thus:

The policy being questioned is not a policy against marriage. An employee of the company
remains free to marry anyone of his or her choosing. The policy is not aimed at restricting a
personal prerogative that belongs only to the individual. However, an employee’s personal
decision does not detract the employer from exercising management prerogatives to ensure
maximum profit and business success. . .28

The Court of Appeals also correctly noted that the assailed company policy which forms part of
respondent’s Employee Code of Conduct and of its contracts with its employees, such as that signed by
Tescon, was made known to him prior to his employment. Tecson, therefore, was aware of that
restriction when he signed his employment contract and when he entered into a relationship with Bettsy.
Since Tecson knowingly and voluntarily entered into a contract of employment with Glaxo, the
stipulations therein have the force of law between them and, thus, should be complied with in good
faith."29 He is therefore estopped from questioning said policy.

The Court finds no merit in petitioners’ contention that Tescon was constructively dismissed when he
was transferred from the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao City-
Agusan del Sur sales area, and when he was excluded from attending the company’s seminar on new
products which were directly competing with similar products manufactured by Astra. Constructive
dismissal is defined as a quitting, an involuntary resignation resorted to when continued employment
becomes impossible, unreasonable, or unlikely; when there is a demotion in rank or diminution in pay; or
when a clear discrimination, insensibility or disdain by an employer becomes unbearable to the
employee.30 None of these conditions are present in the instant case. The record does not show that
Tescon was demoted or unduly discriminated upon by reason of such transfer. As found by the appellate
court, Glaxo properly exercised its management prerogative in reassigning Tecson to the Butuan City
sales area:

. . . In this case, petitioner’s transfer to another place of assignment was merely in keeping with
the policy of the company in avoidance of conflict of interest, and thus valid…Note that
[Tecson’s] wife holds a sensitive supervisory position as Branch Coordinator in her employer-
company which requires her to work in close coordination with District Managers and Medical
Representatives. Her duties include monitoring sales of Astra products, conducting sales drives,
establishing and furthering relationship with customers, collection, monitoring and managing
Astra’s inventory…she therefore takes an active participation in the market war characterized as
it is by stiff competition among pharmaceutical companies. Moreover, and this is significant,
petitioner’s sales territory covers Camarines Sur and Camarines Norte while his wife is supervising
a branch of her employer in Albay. The proximity of their areas of responsibility, all in the same
Bicol Region, renders the conflict of interest not only possible, but actual, as learning by one
spouse of the other’s market strategies in the region would be inevitable. [Management’s]
appreciation of a conflict of interest is therefore not merely illusory and wanting in factual
basis…31

In Abbott Laboratories (Phils.), Inc. v. National Labor Relations Commission,32 which involved a
complaint filed by a medical representative against his employer drug company for illegal dismissal for
allegedly terminating his employment when he refused to accept his reassignment to a new area, the
Court upheld the right of the drug company to transfer or reassign its employee in accordance with its

17 | P a g e
operational demands and requirements. The ruling of the Court therein, quoted hereunder, also finds
application in the instant case:

By the very nature of his employment, a drug salesman or medical representative is expected to
travel. He should anticipate reassignment according to the demands of their business. It would
be a poor drug corporation which cannot even assign its representatives or detail men to new
markets calling for opening or expansion or to areas where the need for pushing its products is
great. More so if such reassignments are part of the employment contract.33

As noted earlier, the challenged policy has been implemented by Glaxo impartially and disinterestedly for
a long period of time. In the case at bar, the record shows that Glaxo gave Tecson several chances to
eliminate the conflict of interest brought about by his relationship with Bettsy. When their relationship
was still in its initial stage, Tecson’s supervisors at Glaxo constantly reminded him about its effects on his
employment with the company and on the company’s interests. After Tecson married Bettsy, Glaxo gave
him time to resolve the conflict by either resigning from the company or asking his wife to resign from
Astra. Glaxo even expressed its desire to retain Tecson in its employ because of his satisfactory
performance and suggested that he ask Bettsy to resign from her company instead. Glaxo likewise
acceded to his repeated requests for more time to resolve the conflict of interest. When the problem
could not be resolved after several years of waiting, Glaxo was constrained to reassign Tecson to a sales
area different from that handled by his wife for Astra. Notably, the Court did not terminate Tecson from
employment but only reassigned him to another area where his home province, Agusan del Sur, was
included. In effecting Tecson’s transfer, Glaxo even considered the welfare of Tecson’s family. Clearly,
the foregoing dispels any suspicion of unfairness and bad faith on the part of Glaxo.34

WHEREFORE, the Petition is DENIED for lack of merit. Costs against petitioners.

SO ORDERED.

G.R. No. 164774 April 12, 2006

STAR PAPER CORPORATION, JOSEPHINE ONGSITCO & SEBASTIAN CHUA, Petitioners,

vs.
RONALDO D. SIMBOL, WILFREDA N. COMIA & LORNA E. ESTRELLA, Respondents.

DECISION

PUNO, J.:

We are called to decide an issue of first impression: whether the policy of the employer banning spouses
from working in the same company violates the rights of the employee under the Constitution and the
Labor Code or is a valid exercise of management prerogative.

At bar is a Petition for Review on Certiorari of the Decision of the Court of Appeals dated August 3, 2004
in CA-G.R. SP No. 73477 reversing the decision of the National Labor Relations Commission (NLRC)
which affirmed the ruling of the Labor Arbiter.

Petitioner Star Paper Corporation (the company) is a corporation engaged in trading – principally of
paper products. Josephine Ongsitco is its Manager of the Personnel and Administration Department while
Sebastian Chua is its Managing Director.

The evidence for the petitioners show that respondents Ronaldo D. Simbol (Simbol), Wilfreda N. Comia
(Comia) and Lorna E. Estrella (Estrella) were all regular employees of the company.1

Simbol was employed by the company on October 27, 1993. He met Alma Dayrit, also an employee of
the company, whom he married on June 27, 1998. Prior to the marriage, Ongsitco advised the couple
that should they decide to get married, one of them should resign pursuant to a company policy
promulgated in 1995,2 viz.:

18 | P a g e
 1. New applicants will not be allowed to be hired if in case he/she has [a] relative, up to [the] 3rd
degree of relationship, already employed by the company.

2. In case of two of our employees (both singles [sic], one male and another female) developed
a friendly relationship during the course of their employment and then decided to get married,
one of them should resign to preserve the policy stated above.3

Simbol resigned on June 20, 1998 pursuant to the company policy.4

Comia was hired by the company on February 5, 1997. She met Howard Comia, a co-employee, whom
she married on June 1, 2000. Ongsitco likewise reminded them that pursuant to company policy, one
must resign should they decide to get married. Comia resigned on June 30, 2000.5

Estrella was hired on July 29, 1994. She met Luisito Zuñiga (Zuñiga), also a co-worker. Petitioners stated
that Zuñiga, a married man, got Estrella pregnant. The company allegedly could have terminated her
services due to immorality but she opted to resign on December 21, 1999.6

The respondents each signed a Release and Confirmation Agreement. They stated therein that they have
no money and property accountabilities in the company and that they release the latter of any claim or
demand of whatever nature.7

Respondents offer a different version of their dismissal. Simbol and Comia allege that they did not resign
voluntarily; they were compelled to resign in view of an illegal company policy. As to respondent Estrella,
she alleges that she had a relationship with co-worker Zuñiga who misrepresented himself as a married
but separated man. After he got her pregnant, she discovered that he was not separated. Thus, she
severed her relationship with him to avoid dismissal due to the company policy. On November 30, 1999,
she met an accident and was advised by the doctor at the Orthopedic Hospital to recuperate for twenty-
one (21) days. She returned to work on December 21, 1999 but she found out that her name was on-
hold at the gate. She was denied entry. She was directed to proceed to the personnel office where one
of the staff handed her a memorandum. The memorandum stated that she was being dismissed for
immoral conduct. She refused to sign the memorandum because she was on leave for twenty-one (21)
days and has not been given a chance to explain. The management asked her to write an explanation.
However, after submission of the explanation, she was nonetheless dismissed by the company. Due to
her urgent need for money, she later submitted a letter of resignation in exchange for her thirteenth
month pay.8

Respondents later filed a complaint for unfair labor practice, constructive dismissal, separation pay and
attorney’s fees. They averred that the aforementioned company policy is illegal and contravenes Article
136 of the Labor Code. They also contended that they were dismissed due to their union membership.

On May 31, 2001, Labor Arbiter Melquiades Sol del Rosario dismissed the complaint for lack of
merit, viz.:

[T]his company policy was decreed pursuant to what the respondent corporation perceived as
management prerogative. This management prerogative is quite broad and encompassing for it covers
hiring, work assignment, working method, time, place and manner of work, tools to be used, processes
to be followed, supervision of workers, working regulations, transfer of employees, work supervision,
lay-off of workers and the discipline, dismissal and recall of workers. Except as provided for or limited by
special law, an employer is free to regulate, according to his own discretion and judgment all the aspects
of employment.9 (Citations omitted.)

On appeal to the NLRC, the Commission affirmed the decision of the Labor Arbiter on January 11,
2002. 10

Respondents filed a Motion for Reconsideration but was denied by the NLRC in a Resolution11 dated
August 8, 2002. They appealed to respondent court via Petition for Certiorari.

In its assailed Decision dated August 3, 2004, the Court of Appeals reversed the NLRC decision, viz.:

WHEREFORE, premises considered, the May 31, 2002 (sic)12 Decision of the National Labor Relations
Commission is hereby REVERSED and SET ASIDE and a new one is entered as follows:
19 | P a g e
 (1) Declaring illegal, the petitioners’ dismissal from employment and ordering private respondents
to reinstate petitioners to their former positions without loss of seniority rights with full
backwages from the time of their dismissal until actual reinstatement; and

(2) Ordering private respondents to pay petitioners attorney’s fees amounting to 10% of the
award and the cost of this suit.13

On appeal to this Court, petitioners contend that the Court of Appeals erred in holding that:

1. x x x the subject 1995 policy/regulation is violative of the constitutional rights towards

marriage and the family of employees and of Article 136 of the Labor Code; and

2. x x x respondents’ resignations were far from voluntary.14

We affirm.

The 1987 Constitution15 states our policy towards the protection of labor under the following
provisions, viz.:

Article II, Section 18. The State affirms labor as a primary social economic force. It shall protect the
rights of workers and promote their welfare.

xxx

Article XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to strike in accordance with law. They shall be
entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate
in policy and decision-making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers,
recognizing the right of labor to its just share in the fruits of production and the right of enterprises to
reasonable returns on investments, and to expansion and growth.

The Civil Code likewise protects labor with the following provisions:

Art. 1700. The relation between capital and labor are not merely contractual. They are so impressed with
public interest that labor contracts must yield to the common good. Therefore, such contracts are
subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop,
wages, working conditions, hours of labor and similar subjects.

Art. 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the
safety and decent living for the laborer.

The Labor Code is the most comprehensive piece of legislation protecting labor. The case at bar involves
Article 136 of the Labor Code which provides:

Art. 136. It shall be unlawful for an employer to require as a condition of employment or continuation of
employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon
getting married a woman employee shall be deemed resigned or separated, or to actually dismiss,
discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.

Respondents submit that their dismissal violates the above provision. Petitioners allege that its policy
"may appear to be contrary to Article 136 of the Labor Code" but it assumes a new meaning if read
together with the first paragraph of the rule. The rule does not require the woman employee to resign.
The employee spouses have the right to choose who between them should resign. Further, they are free
to marry persons other than co-employees. Hence, it is not the marital status of the employee, per se,
that is being discriminated. It is only intended to carry out its no-employment-for-relatives-within-the-
third-degree-policy which is within the ambit of the prerogatives of management.16
20 | P a g e
It is true that the policy of petitioners prohibiting close relatives from working in the same company
takes the nature of an anti-nepotism employment policy. Companies adopt these policies to prevent the
hiring of unqualified persons based on their status as a relative, rather than upon their ability.17 These
policies focus upon the potential employment problems arising from the perception of favoritism
exhibited towards relatives.

With more women entering the workforce, employers are also enacting employment policies specifically
prohibiting spouses from working for the same company. We note that two types of employment policies
involve spouses: policies banning only spouses from working in the same company (no-spouse
employment policies), and those banning all immediate family members, including spouses, from
working in the same company (anti-nepotism employment policies).18

Unlike in our jurisdiction where there is no express prohibition on marital discrimination,19 there are
twenty state statutes20 in the United States prohibiting marital discrimination. Some state courts21 have
been confronted with the issue of whether no-spouse policies violate their laws prohibiting both marital
status and sex discrimination.

In challenging the anti-nepotism employment policies in the United States, complainants utilize two
theories of employment discrimination: the disparate treatment and the disparate impact. Under
the disparate treatment analysis, the plaintiff must prove that an employment policy is
discriminatory on its face. No-spouse employment policies requiring an employee of a particular sex to
either quit, transfer, or be fired are facially discriminatory. For example, an employment policy
prohibiting the employer from hiring wives of male employees, but not husbands of female employees, is
discriminatory on its face.22

On the other hand, to establish disparate impact, the complainants must prove that a facially neutral
policy has a disproportionate effect on a particular class. For example, although most employment
policies do not expressly indicate which spouse will be required to transfer or leave the company, the
policy often disproportionately affects one sex.23

The state courts’ rulings on the issue depend on their interpretation of the scope of marital status
discrimination within the meaning of their respective civil rights acts. Though they agree that the term
"marital status" encompasses discrimination based on a person's status as either married, single,
divorced, or widowed, they are divided on whether the term has a broader meaning. Thus, their
decisions vary.24

The courts narrowly25 interpreting marital status to refer only to a person's status as married, single,
divorced, or widowed reason that if the legislature intended a broader definition it would have either
chosen different language or specified its intent. They hold that the relevant inquiry is if one is married
rather than to whom one is married. They construe marital status discrimination to include only whether
a person is single, married, divorced, or widowed and not the "identity, occupation, and place of
employment of one's spouse." These courts have upheld the questioned policies and ruled that they did
not violate the marital status discrimination provision of their respective state statutes.

The courts that have broadly26 construed the term "marital status" rule that it encompassed the
identity, occupation and employment of one's spouse. They strike down the no-spouse employment
policies based on the broad legislative intent of the state statute. They reason that the no-spouse
employment policy violate the marital status provision because it arbitrarily discriminates against all
spouses of present employees without regard to the actual effect on the individual's qualifications or
work performance.27 These courts also find the no-spouse employment policy invalid for failure of the
employer to present any evidence of business necessity other than the general perception that
spouses in the same workplace might adversely affect the business.28 They hold that the absence of
such a bona fide occupational qualification29 invalidates a rule denying employment to one spouse
due to the current employment of the other spouse in the same office.30 Thus, they rule that unless the
employer can prove that the reasonable demands of the business require a distinction based on marital
status and there is no better available or acceptable policy which would better accomplish the business
purpose, an employer may not discriminate against an employee based on the identity of the employee’s
spouse.31 This is known as the bona fide occupational qualification exception.

We note that since the finding of a bona fide occupational qualification justifies an employer’s no-spouse
rule, the exception is interpreted strictly and narrowly by these state courts. There must be a compelling

21 | P a g e
business necessity for which no alternative exists other than the discriminatory practice.32 To justify a
bona fide occupational qualification, the employer must prove two factors: (1) that the employment
qualification is reasonably related to the essential operation of the job involved; and, (2) that there is a
factual basis for believing that all or substantially all persons meeting the qualification would be unable
to properly perform the duties of the job.33

The concept of a bona fide occupational qualification is not foreign in our jurisdiction. We employ the
standard of reasonableness of the company policy which is parallel to the bona fide occupational
qualification requirement. In the recent case of Duncan Association of Detailman-PTGWO and
Pedro Tecson v. Glaxo Wellcome Philippines, Inc.,34 we passed on the validity of the policy of a
pharmaceutical company prohibiting its employees from marrying employees of any competitor
company. We held that Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing
strategies and other confidential programs and information from competitors. We considered the
prohibition against personal or marital relationships with employees of competitor companies upon
Glaxo’s employees reasonable under the circumstances because relationships of that nature might
compromise the interests of Glaxo. In laying down the assailed company policy, we recognized that
Glaxo only aims to protect its interests against the possibility that a competitor company will gain access
to its secrets and procedures.35

The requirement that a company policy must be reasonable under the circumstances to qualify as a
valid exercise of management prerogative was also at issue in the 1997 case of Philippine Telegraph
and Telephone Company v. NLRC.36 In said case, the employee was dismissed in violation of
petitioner’s policy of disqualifying from work any woman worker who contracts marriage. We held that
the company policy violates the right against discrimination afforded all women workers under Article
136 of the Labor Code, but established a permissible exception, viz.:

[A] requirement that a woman employee must remain unmarried could be justified as a "bona fide
occupational qualification," or BFOQ, where the particular requirements of the job would justify the
same, but not on the ground of a general principle, such as the desirability of spreading work in the
workplace. A requirement of that nature would be valid provided it reflects an inherent
quality reasonably necessary for satisfactory job performance.37(Emphases supplied.)

The cases of Duncan and PT&T instruct us that the requirement of reasonableness must
be clearly established to uphold the questioned employment policy. The employer has the burden to
prove the existence of a reasonable business necessity. The burden was successfully discharged in
Duncan but not in PT&T.

We do not find a reasonable business necessity in the case at bar.

Petitioners’ sole contention that "the company did not just want to have two (2) or more of its
employees related between the third degree by affinity and/or consanguinity"38 is lame. That the second
paragraph was meant to give teeth to the first paragraph of the questioned rule39 is evidently not the
valid reasonable business necessity required by the law.

It is significant to note that in the case at bar, respondents were hired after they were found fit for the
job, but were asked to resign when they married a co-employee. Petitioners failed to show how the
marriage of Simbol, then a Sheeting Machine Operator, to Alma Dayrit, then an employee of the
Repacking Section, could be detrimental to its business operations. Neither did petitioners explain how
this detriment will happen in the case of Wilfreda Comia, then a Production Helper in the Selecting
Department, who married Howard Comia, then a helper in the cutter-machine. The policy is premised on
the mere fear that employees married to each other will be less efficient. If we uphold the questioned
rule without valid justification, the employer can create policies based on an unproven presumption of a
perceived danger at the expense of an employee’s right to security of tenure.

Petitioners contend that their policy will apply only when one employee marries a co-employee, but they
are free to marry persons other than co-employees. The questioned policy may not facially violate Article
136 of the Labor Code but it creates a disproportionate effect and under the disparate impact theory, the
only way it could pass judicial scrutiny is a showing that it is reasonable despite the discriminatory,
albeit disproportionate, effect. The failure of petitioners to prove a legitimate business concern in
imposing the questioned policy cannot prejudice the employee’s right to be free from arbitrary
discrimination based upon stereotypes of married persons working together in one company.40

22 | P a g e
Lastly, the absence of a statute expressly prohibiting marital discrimination in our jurisdiction cannot
benefit the petitioners. The protection given to labor in our jurisdiction is vast and extensive that we
cannot prudently draw inferences from the legislature’s silence41 that married persons are not protected
under our Constitution and declare valid a policy based on a prejudice or stereotype. Thus, for failure of
petitioners to present undisputed proof of a reasonable business necessity, we rule that the questioned
policy is an invalid exercise of management prerogative. Corollarily, the issue as to whether respondents
Simbol and Comia resigned voluntarily has become moot and academic.

As to respondent Estrella, the Labor Arbiter and the NLRC based their ruling on the singular fact that her
resignation letter was written in her own handwriting. Both ruled that her resignation was voluntary and
thus valid. The respondent court failed to categorically rule whether Estrella voluntarily resigned but
ordered that she be reinstated along with Simbol and Comia.

Estrella claims that she was pressured to submit a resignation letter because she was in dire need of
money. We examined the records of the case and find Estrella’s contention to be more in accord with
the evidence. While findings of fact by administrative tribunals like the NLRC are generally given not only
respect but, at times, finality, this rule admits of exceptions,42 as in the case at bar.

Estrella avers that she went back to work on December 21, 1999 but was dismissed due to her alleged
immoral conduct. At first, she did not want to sign the termination papers but she was forced to tender
her resignation letter in exchange for her thirteenth month pay.

The contention of petitioners that Estrella was pressured to resign because she got impregnated by a
married man and she could not stand being looked upon or talked about as immoral43 is incredulous. If
she really wanted to avoid embarrassment and humiliation, she would not have gone back to work at all.
Nor would she have filed a suit for illegal dismissal and pleaded for reinstatement. We have held that in
voluntary resignation, the employee is compelled by personal reason(s) to dissociate himself from
employment. It is done with the intention of relinquishing an office, accompanied by the act of
abandonment. 44 Thus, it is illogical for Estrella to resign and then file a complaint for illegal dismissal.
Given the lack of sufficient evidence on the part of petitioners that the resignation was voluntary,
Estrella’s dismissal is declared illegal.

IN VIEW WHEREOF, the Decision of the Court of Appeals in CA-G.R. SP No. 73477 dated August 3,
2004 is AFFIRMED.1avvphil.net

SO ORDERED.

G.R. No. 138322 October 2, 2001

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner,

vs.
REDERICK A. RECIO, respondents.

PANGANIBAN, J.:

A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is
valid according to the national law of the foreigner. However, the divorce decree and the governing
personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take
judicial notice of foreign laws and judgment; hence, like any other facts, both the divorce decree and the
national law of the alien must be alleged and proven according to our law on evidence.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7,
1999 Decision1 and the March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch
28, in Civil Case No. 3026-AF. The assailed Decision disposed as follows:

"WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio
solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now
remarry under existing and applicable laws to any and/or both parties."3

23 | P a g e
The assailed Order denied reconsideration of the above-quoted Decision.

The Facts

Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on
March 1, 1987.4 They lived together as husband and wife in Australia. On May 18, 1989,5 a decree of
divorce, purportedly dissolving the marriage, was issued by an Australian family court.

On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian
Citizenship" issued by the Australian government.6 Petitioner – a Filipina – and respondent were married
on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.7 In their application for a
marriage license, respondent was declared as "single" and "Filipino."8

Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of
their marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996,
in accordance with their Statutory Declarations secured in Australia.9

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage10 in the court a quo,
on the ground of bigamy – respondent allegedly had a prior subsisting marriage at the time he married
her on January 12, 1994. She claimed that she learned of respondent's marriage to Editha Samson only
in November, 1997.

In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior
marriage and its subsequent dissolution.11 He contended that his first marriage to an Australian citizen
had been validly dissolved by a divorce decree obtained in Australian in 1989;12 thus, he was legally
capacitated to marry petitioner in 1994.1âwphi1.nêt

On July 7, 1998 – or about five years after the couple's wedding and while the suit for the declaration of
nullity was pending – respondent was able to secure a divorce decree from a family court in Sydney,
Australia because the "marriage ha[d] irretrievably broken down."13

Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no
cause of action.14 The Office of the Solicitor General agreed with respondent.15 The court marked and
admitted the documentary evidence of both parties.16 After they submitted their respective memoranda,
the case was submitted for resolution.17

Thereafter, the trial court rendered the assailed Decision and Order.

Ruling of the Trial Court

The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was
valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any
defect in an essential element of the marriage; that is, respondent's alleged lack of legal capacity to
remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian
divorce had ended the marriage; thus, there was no more martial union to nullify or annual.

Hence, this Petition.18

Issues

Petitioner submits the following issues for our consideration:

"I The trial court gravely erred in finding that the divorce decree obtained in Australia by the
respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him to
contract a second marriage with the petitioner.

24 | P a g e
 "2 The failure of the respondent, who is now a naturalized Australian, to present a certificate of
legal capacity to marry constitutes absence of a substantial requisite voiding the petitioner'
marriage to the respondent.

"3 The trial court seriously erred in the application of Art. 26 of the Family Code in this case.

"4 The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53
of the Family Code as the applicable provisions in this case.

"5 The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that
the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to
remarry, without first securing a recognition of the judgment granting the divorce decree before
our courts."19

The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal
ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether
respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these two,
there is no more necessity to take up the rest.

The Court's Ruling

The Petition is partly meritorious.

First Issue:

Proving the Divorce Between Respondent and Editha Samson

Petitioner assails the trial court's recognition of the divorce between respondent and Editha Samson.
Citing Adong v. Cheong Seng Gee,20 petitioner argues that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the
foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that respondent
miserably failed to establish these elements.

Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized
abroad are governed by the law of the place where they were celebrated (the lex loci celebrationist). In
effect, the Code requires the presentation of the foreign law to show the conformity of the marriage in
question to the legal requirements of the place where the marriage was performed.

At the outset, we lay the following basic legal principles as the take-off points for our discussion.
Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.21 A marriage
between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles
1522 and 1723 of the Civil Code.24 In mixed marriages involving a Filipino and a foreigner, Article 2625 of
the Family Code allows the former to contract a subsequent marriage in case the divorce is "validly
obtained abroad by the alien spouse capacitating him or her to remarry."26 A divorce obtained abroad by
a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their
respective national laws.27

A comparison between marriage and divorce, as far as pleading and proof are concerned, can be
made. Van Dorn v. Romillo Jr. decrees that "aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law."28 Therefore, before
a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as
a fact and demonstrate its conformity to the foreign law allowing it.29 Presentation solely of the divorce
decree is insufficient.

Divorce as a Question of Fact

Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the
registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as
follows:

25 | P a g e
 "ART. 11. Where a marriage license is required, each of the contracting parties shall file
separately a sworn application for such license with the proper local civil registrar which shall
specify the following:

xxx xxx xxx

"(5) If previously married, how, when and where the previous marriage was dissolved or
annulled;

xxx xxx xxx

"ART. 13. In case either of the contracting parties has been previously married, the applicant
shall be required to furnish, instead of the birth of baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse or the judicial decree of
annulment or declaration of nullity of his or her previous marriage. x x x.

"ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses, and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise,
the same shall not affect their persons."

Respondent, on the other hand, argues that the Australian divorce decree is a public document – a
written official act of an Australian family court. Therefore, it requires no further proof of its authenticity
and due execution.

Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary
value, the document must first be presented and admitted in evidence.30 A divorce obtained abroad is
proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.31 The
decree purports to be a written act or record of an act of an officially body or tribunal of a foreign
country.32

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a
public or official record of a foreign country by either (1) an official publication or (2) a copy thereof
attested33 by the officer having legal custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the foreign country in which the record is
kept and (b) authenticated by the seal of his office.34

The divorce decree between respondent and Editha Samson appears to be an authentic one issued by
an Australian family court.35 However, appearance is not sufficient; compliance with the aforemetioned
rules on evidence must be demonstrated.

Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in
evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been
registered in the Local Civil Registry of Cabanatuan City.36 The trial court ruled that it was admissible,
subject to petitioner's qualification.37Hence, it was admitted in evidence and accorded weight by the
judge. Indeed, petitioner's failure to object properly rendered the divorce decree admissible as a written
act of the Family Court of Sydney, Australia.38

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent
was no longer bound by Philippine personal laws after he acquired Australian citizenship in
1992.39 Naturalization is the legal act of adopting an alien and clothing him with the political and civil
rights belonging to a citizen.40 Naturalized citizens, freed from the protective cloak of their former states,
don the attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance
to the Philippines and the vinculum juris that had tied him to Philippine personal laws.

Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she
is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with
the original of the divorce decree and was cognizant of the marital laws of Australia, because she had
26 | P a g e
lived and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly
known by Philippine courts: thus, judges may take judicial notice of foreign laws in the exercise of sound
discretion.

We are not persuaded. The burden of proof lies with "the party who alleges the existence of a fact or
thing necessary in the prosecution or defense of an action."41 In civil cases, plaintiffs have the burden of
proving the material allegations of the complaint when those are denied by the answer; and defendants
have the burden of proving the material allegations in their answer when they introduce new
matters.42 Since the divorce was a defense raised by respondent, the burden of proving the pertinent
Australian law validating it falls squarely upon him.

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.43 Like any
other facts, they must be alleged and proved. Australian marital laws are not among those matters that
judges are supposed to know by reason of their judicial function.44 The power of judicial notice must be
exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.

Second Issue:

Respondent's Legal Capacity to Remarry

Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally
incapacitated to marry her in 1994.

Hence, she concludes that their marriage was void ab initio.

Respondent replies that the Australian divorce decree, which was validly admitted in evidence,
adequately established his legal capacity to marry under Australian law.

Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of a
lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones
are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first
kind terminates the marriage, while the second suspends it and leaves the bond in full force.45 There is
no showing in the case at bar which type of divorce was procured by respondent.

Respondent presented a decree nisi or an interlocutory decree – a conditional or provisional judgment of

divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may
follow after the lapse of the prescribed period during which no reconciliation is effected.46

Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still
restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the
guilty party in a divorce which was granted on the ground of adultery may be prohibited from remarrying
again. The court may allow a remarriage only after proof of good behavior.47

On its face, the herein Australian divorce decree contains a restriction that reads:

"1. A party to a marriage who marries again before this decree becomes absolute (unless the
other party has died) commits the offence of bigamy."48

This quotation bolsters our contention that the divorce obtained by respondent may have been
restricted. It did not absolutely establish his legal capacity to remarry according to his national law.
Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian
divorce ipso facto restored respondent's capacity to remarry despite the paucity of evidence on this
matter.

We also reject the claim of respondent that the divorce decree raises a disputable presumption or
presumptive evidence as to his civil status based on Section 48, Rule 3949 of the Rules of Court, for the
simple reason that no proof has been presented on the legal effects of the divorce decree obtained
under Australian laws.

Significance of the Certificate of Legal Capacity

27 | P a g e
Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not
submitted together with the application for a marriage license. According to her, its absence is proof that
respondent did not have legal capacity to remarry.

We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the
party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to
establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and
admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant
for a marriage license.50

As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry
petitioner. A review of the records before this Court shows that only the following exhibits were
presented before the lower court: (1) for petitioner: (a) Exhibit "A" – Complaint;51 (b) Exhibit "B" –
Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and Grace J. Garcia (Filipino) on
January 12, 1994 in Cabanatuan City, Nueva Ecija;52 (c) Exhibit "C" – Certificate of Marriage Between
Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro
Manila;53 (d) Exhibit "D" – Office of the City Registrar of Cabanatuan City Certification that no
information of annulment between Rederick A. Recto and Editha D. Samson was in its records;54 and (e)
Exhibit "E" – Certificate of Australian Citizenship of Rederick A. Recto;55 (2) for respondent: (Exhibit "1" –
Amended Answer;56 (b) Exhibit "S" – Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the
Family Court of Australia;57 (c) Exhibit "3" – Certificate of Australian Citizenship of Rederick A.
Recto;58 (d) Exhibit "4" – Decree Nisi of Dissolution of Marriage in the Family Court of Australia
Certificate;59 and Exhibit "5" – Statutory Declaration of the Legal Separation Between Rederick A. Recto
and Grace J. Garcia Recio since October 22, 1995.60

Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian
citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioner's
contention that the court a quo erred in finding that the divorce decree ipso facto clothed respondent
with the legal capacity to remarry without requiring him to adduce sufficient evidence to show the
Australian personal law governing his status; or at the very least, to prove his legal capacity to contract
the second marriage.

Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the
ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry
petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to
remand this case to the trial court to receive evidence, if any, which show petitioner's legal capacity to
marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties' marriage on
the ground of bigamy, there being already in evidence two existing marriage certificates, which were
both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in
Cabanatuan City dated January 12, 1994.

WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the
court a quofor the purpose of receiving evidence which conclusively show respondent's legal capacity to
marry petitioner; and failing in that, of declaring the parties' marriage void on the ground of bigamy, as
above discussed. No costs.

SO ORDERED.

Cang vs CA GR No 105308 25 September 1998

Facts: This case is a petition for review on certiorari over the Decision of CA affirming the decree of
adoption issued by the RTC of Cebu for the adoption of minors Keith, Charmaine and Joseph Anthony all
surnamed Cang, Spouses Clavano.

Minors’ parents are Hebert Cang (Petitioner) and Anna Marie Clavano. Anna Marie subsequently filed for
legal separation which was granted. Petitioner then left for US. Petitioner sought a divorce decree there
and was granted. Petitioner thereafter took an American wife and thus became a naturalized American
citizen. Later on, he divorced his American wife and never remarried. While in U.S. Petitioner remitted
money to the Philippines for his minor children.

28 | P a g e
Meanwhile, Spouses Clavano, here in the Philippines, filed a Special Proceedings for the Adoption of the
three (3) minor Cang children before the RTC of Cebu. 14 year old Keith, as well as the mother Anna
Marie, consented to said adoption and alleged that Petitioner abandoned them and forfeited already his
parental rights over their children. (Note: Anna Marie wants to adopt her children to her relatives
because she will go to U.S. as well to live there and find a job)

Upon learning of the petition for adoption, Petitioner immediately returned to the Philippines and filed an
opposition thereto. He alleged that although he has only meager finance compared to Spouses. Clavano,
he cannot allow anybody to strip him of his parental authority.

Pending resolution of the petition for adoption, Petitioner moved to reacquire custody over his children
alleging that Anna had gone to the US thereby leaving custody to their children to Spouses. Clavano
(Private Respondents). Such petition was granted and the Trial Court ordered that the custody of the
minor children should be transferred to their father.

Later on, the the Petition for Adoption was granted.

Issue: Whether adoption should be granted?

Decision: No. Physical estrangement alone, without financial and moral desertion, is not tantamount to
abandonment.

General Rule: (Rule 99 of the ROC)

The written consent of the natural parent is indispensable for the validity of the decree of adoption.

Exception: The requirement of written consent can be dispensed with if the parent has abandoned the
child or that such parent is insane or hopelessly intemperate.

In the instant case, records disclose that Petitioner’s conduct did not manifest a settled purpose to
forego all parental duties and relinquish all parental claims over his children as to constitute
abandonment.

While admittedly, Petitioner was physically absent as he was then in the US, he was not remiss in his
natural and legal obligations of love, care and support for his children. He maintained regular
communication with his wife and children through telephone calls and letters. He used to send packages
by mail and catered to their whims.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, petitioner,

vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the
National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the
Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent
Judge, which denied her Motion to Dismiss said case, and her Motion for Reconsideration of the
Dismissal Order, respectively.

29 | P a g e
The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a
citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage, they
established their residence in the Philippines; that they begot two children born on April 4, 1973 and
December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and
that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.

Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the
Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the
Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered to
render an accounting of that business, and that private respondent be declared with right to manage the
conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is barred
by previous judgment in the divorce proceedings before the Nevada Court wherein respondent had
acknowledged that he and petitioner had "no community property" as of June 11, 1982. The Court
below denied the Motion to Dismiss in the mentioned case on the ground that the property involved is
located in the Philippines so that the Divorce Decree has no bearing in the case. The denial is now the
subject of this certiorari proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal.
certiorari and Prohibition are neither the remedies to question the propriety of an interlocutory order of
the trial Court. However, when a grave abuse of discretion was patently committed, or the lower Court
acted capriciously and whimsically, then it devolves upon this Court in a certiorari proceeding to exercise
its supervisory authority and to correct the error committed which, in such a case, is equivalent to lack
of jurisdiction. 1 Prohibition would then lie since it would be useless and a waste of time to go ahead
with the proceedings. 2 Weconsider the petition filed in this case within the exception, and we have
given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the
Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property
because of the representation he made in the divorce proceedings before the American Court that they
had no community of property; that the Galleon Shop was not established through conjugal funds, and
that respondent's claim is barred by prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over
the prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a
foreign Court cannot, especially if the same is contrary to public policy, divest Philippine Courts of
jurisdiction to entertain matters within its jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property relations between
petitioner and private respondent, after their marriage, were upon absolute or relative community
property, upon complete separation of property, or upon any other regime. The pivotal fact in this case
is the Nevada divorce of the parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who
appeared in person before the Court during the trial of the case. It also obtained jurisdiction over private
respondent who, giving his address as No. 381 Bush Street, San Francisco, California, authorized his
attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground of incompatibility
in the understanding that there were neither community property nor community obligations. 3 As
explicitly stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336
W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:

xxx xxx xxx

You are hereby authorized to accept service of Summons, to file an Answer, appear on
my behalf and do an things necessary and proper to represent me, without further
contesting, subject to the following:

1. That my spouse seeks a divorce on the ground of incompatibility.

2. That there is no community of property to be adjudicated by the Court.

30 | P a g e
 3. 'I'hat there are no community obligations to be adjudicated by the court.

xxx xxx xxx 4

There can be no question as to the validity of that Nevada divorce in any of the States of the United
States. The decree is binding on private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in
this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local
law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine
nationals are covered by the policy against absolute divorces the same being considered contrary to our
concept of public police and morality. However, aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law. 6 In this case, the
divorce in Nevada released private respondent from the marriage from the standards of American law,
under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United
States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a court of
competent jurisdiction are to change the existing status or domestic relation of husband
and wife, and to free them both from the bond. The marriage tie when thus severed as to
one party, ceases to bind either. A husband without a wife, or a wife without a husband,
is unknown to the law. When the law provides, in the nature of a penalty. that the guilty
party shall not marry again, that party, as well as the other, is still absolutely freed from
the bond of the former marriage.

Thus, pursuant to his national law, private respondent is no longer the husband of 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
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 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.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint
filed in Civil Case No. 1075-P of his Court.

Without costs.

SO ORDERED.

G.R. No. 154380 October 5, 2005

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
CIPRIANO ORBECIDO III, Respondent.

DECISION

QUISUMBING, J.:

Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign
citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse
likewise remarry under Philippine law?

31 | P a g e
Before us is a case of first impression that behooves the Court to make a definite ruling on this
apparently novel question, presented as a pure question of law.

In this petition for review, the Solicitor General assails the Decision1 dated May 15, 2002, of the
Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2 dated July 4, 2002
denying the motion for reconsideration. The court a quo had declared that herein respondent Cipriano
Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads:

WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by
reason of the divorce decree obtained against him by his American wife, the petitioner is given the
capacity to remarry under the Philippine Law.

IT IS SO ORDERED.3

The factual antecedents, as narrated by the trial court, are as follows.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ
in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter,
Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.

In 1986, Cipriano’s wife left for the United States bringing along their son Kristoffer. A few years later,
Cipriano discovered that his wife had been naturalized as an American citizen.

Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then
married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut
Grove Avenue, San Gabriel, California.

Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of
Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted
the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought
reconsideration but it was denied.

In this petition, the OSG raises a pure question of law:

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE4

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case
because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino
citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for
legal separation.5 Furthermore, the OSG argues there is no law that governs respondent’s situation. The
OSG posits that this is a matter of legislation and not of judicial determination.6

For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when
his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise
capacitated by operation of law pursuant to Section 12, Article II of the Constitution.7

At the outset, we note that the petition for authority to remarry filed before the trial court actually
constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court
provides:

RULE 63

DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petition—Any person interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other
governmental regulation may, before breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction or validity arising, and for a declaration of
his rights or duties, thereunder.

...
32 | P a g e
The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the
controversy must be between persons whose interests are adverse; (3) that the party seeking the relief
has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination.8

This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino
citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the
U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty
to protect the institution of marriage while respondent, a private citizen, insists on a declaration of his
capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue
raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues
and puts into question the validity of his second marriage.

Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the
case of respondent? Necessarily, we must dwell on how this provision had come about in the first place,
and what was the intent of the legislators in its enactment?

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise
known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states:

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, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was
likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was
added to Article 26. As so amended, it now provides:

ART. 26. 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, the Filipino
spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)

On its face, the foregoing provision does not appear to govern the situation presented by the case at
hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties
are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was
solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American
citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried
an American citizen while residing in the U.S.A.

Noteworthy, in the Report of the Public Hearings9 on the Family Code, the Catholic Bishops’ Conference
of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26:

1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce
them abroad. These spouses who are divorced will not be able to re-marry, while the spouses of
foreigners who validly divorce them abroad can.

2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those
whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here
and can re-marry. We propose that this be deleted and made into law only after more widespread
consultation. (Emphasis supplied.)

Legislative Intent

Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of
Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to

33 | P a g e
avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse.

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v.
Romillo, Jr.10 The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The
Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines,
and consequently, the Filipino spouse is capacitated to remarry under Philippine law.

Does the same principle apply to a case where at the time of the celebration of the marriage, the parties
were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization?

The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.11 In Quita, the
parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized
American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way
of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under
Philippine law and can thus remarry.

Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that
Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the
celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a
foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry
as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise
would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact
and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it
should be construed according to its spirit and reason, disregarding as far as necessary the letter of the
law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as
they come within its spirit or intent.12

If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino
spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of
Article 26.

In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as
follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage,
but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the
latter to remarry.

In this case, when Cipriano’s wife was naturalized as an American citizen, there was still a valid marriage
that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife
subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the
application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the "divorced"
Filipino spouse, should be allowed to remarry.

We are also unable to sustain the OSG’s theory that the proper remedy of the Filipino spouse is to file
either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious
process, and in this particular case, not even feasible, considering that the marriage of the parties
appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient
remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still
remain married to the naturalized alien spouse.

However, we note that the records are bereft of competent evidence duly submitted by respondent
concerning the divorce decree and the naturalization of respondent’s wife. It is settled rule that one who
alleges a fact has the burden of proving it and mere allegation is not evidence.13

34 | P a g e
Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was
naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our
own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the
foreign law allowing it.14 Such foreign law must also be proved as our courts cannot take judicial notice
of foreign laws. Like any other fact, such laws must be alleged and proved.15 Furthermore, respondent
must also show that the divorce decree allows his former wife to remarry as specifically required in
Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter
into another marriage.

Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O.
No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been
divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However,
considering that in the present petition there is no sufficient evidence submitted and on record, we are
unable to declare, based on respondent’s bare allegations that his wife, who was naturalized as an
American citizen, had obtained a divorce decree and had remarried an American, that respondent is now
capacitated to remarry. Such declaration could only be made properly upon respondent’s submission of
the aforecited evidence in his favor.

ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed
Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave,
Zamboanga del Sur, Branch 23, are hereby SET ASIDE.

No pronouncement as to costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 124862 December 22, 1998

FE D. QUITA, petitioner,
vs.
COURT OF APPEALS and BLANDINA DANDAN, * respondents.

BELLOSILLO, J.:

FE D. QUITA and Arturo T. Padlan, both Filipinos, were married in the Philippines on 18 May 1941. They
were not however blessed with children. Somewhere along the way their relationship soured. Eventually
Fe sued Arturo for divorce in San Francisco, California, U.S.A. She submitted in the divorce proceedings a
private writing dated 19 July 1950 evidencing their agreement to live separately from each other and a
settlement of their conjugal properties. On 23 July 1954 she obtained a final judgment of divorce. Three
(3) weeks thereafter she married a certain Felix Tupaz in the same locality but their relationship also
ended in a divorce. Still in the U.S.A., she married for the third time, to a certain Wernimont.

On 16 April 1972 Arturo died. He left no will. On 31 August 1972 Lino Javier Inciong filed a petition with
the Regional Trial Court of Quezon City for issuance of letters of administration concerning the estate of
Arturo in favor of the Philippine Trust Company. Respondent Blandina Dandan (also referred to as
Blandina Padlan), claiming to be the surviving spouse of Arturo Padlan, and Claro, Alexis, Ricardo,
Emmanuel, Zenaida and Yolanda, all surnamed Padlan, named in the children of Arturo Padlan opposed
the petition and prayed for the appointment instead of Atty. Leonardo Casaba, which was resolved in
favor of the latter. Upon motion of the oppositors themselves, Atty. Cabasal was later replaced by Higino

35 | P a g e
Castillon. On 30 April 1973 the oppositors (Blandina and Padlan children) submitted certified photocopies
of the 19 July 1950 private writing and the final judgment of divorce between petitioner and Arturo.
Later Ruperto T. Padlan, claiming to be the sole surviving brother of the deceased Arturo, intervened.

On 7 October 1987 petitioner moved for the immediate declaration of heirs of the decedent and the
distribution of his estate. At the scheduled hearing on 23 October 1987, private respondent as well as
the six (6) Padlan children and Ruperto failed to appear despite due notice. On the same day, the trial
court required the submission of the records of birth of the Padlan children within ten (10) days from
receipt thereof, after which, with or without the documents, the issue on the declaration of heirs would
be considered submitted for resolution. The prescribed period lapsed without the required documents
being submitted.

The trial court invoking Tenchavez v. Escaño 1 which held that "a foreign divorce between Filipino
citizens sought and decreed after the effectivity of the present Civil Code (Rep. Act 386) was not entitled
to recognition as valid in this jurisdiction," 2 disregarded the divorce between petitioner and Arturo.
Consecuently, it expressed the view that their marriage subsisted until the death of Arturo in 1972.
Neither did it consider valid their extrajudicial settlement of conjugal properties due to lack of judicial
approval. 3 On the other hand, it opined that there was no showing that marriage existed between
private respondent and Arturo, much less was it shown that the alleged Padlan children had been
acknowledged by the deceased as his children with her. As regards Ruperto, it found that he was a
brother of Arturo. On 27 November 1987 4 only petitioner and Ruperto were declared the intestate heirs
of Arturo. Accordingly, equal adjudication of the net hereditary estate was ordered in favor of the two
intestate heirs. 5

On motion for reconsideration, Blandina and the Padlan children were allowed to present proofs that the
recognition of the children by the deceased as his legitimate children, except Alexis who was recognized
as his illegitimate child, had been made in their respective records of birth. Thus on 15 February 1988 6
partial reconsideration was granted declaring the Padlan children, with the exception of Alexis, entitled
to one-half of the estate to the exclusion of Ruperto Padlan, and petitioner to the other half. 7 Private
respondent was not declared an heir. Although it was stated in the aforementioned records of birth that
she and Arturo were married on 22 April 1947, their marriage was clearly void since it was celebrated
during the existence of his previous marriage to petitioner.

In their appeal to the Court of Appeals, Blandina and her children assigned as one of the errors allegedly
committed by the trial court the circumstance that the case was decided without a hearing, in violation
of Sec. 1, Rule 90, of the Rules of Court, which provides that if there is a controversy before the court as
to who are the lawful heirs of the deceased person or as to the distributive shares to which each person
is entitled under the law, the controversy shall be heard and decided as in ordinary cases.

Respondent appellate court found this ground alone sufficient to sustain the appeal; hence, on 11
September 1995 it declared null and void the 27 November 1987 decision and 15 February 1988 order of
the trial court, and directed the remand of the case to the trial court for further proceedings. 8 On 18
April 1996 it denied reconsideration. 9

Should this case be remanded to the lower court for further proceedings? Petitioner insists that there is
no need because, first, no legal or factual issue obtains for resolution either as to the heirship of the
Padlan children or as to the decedent; and, second, the issue as to who between petitioner and private
respondent is the proper hier of the decedent is one of law which can be resolved in the present petition
based on establish facts and admissions of the parties.

We cannot sustain petitioner. The provision relied upon by respondent court is clear: If there is a
controversy before the court as to who are the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled under the law, the controversy shall be heard and
decided as in ordinary cases.

36 | P a g e
We agree with petitioner that no dispute exists either as to the right of the six (6) Padlan children to
inherit from the decedent because there are proofs that they have been duly acknowledged by him and
petitioner herself even recognizes them as heirs of Arturo Padlan; 10 nor as to their respective
hereditary shares. But controversy remains as to who is the legitimate surviving spouse of Arturo. The
trial court, after the parties other than petitioner failed to appear during the scheduled hearing on 23
October 1987 of the motion for immediate declaration of heirs and distribution of estate, simply issued
an order requiring the submission of the records of birth of the Padlan children within ten (10) days from
receipt thereof, after which, with or without the documents, the issue on declaration of heirs would be
deemed submitted for resolution.

We note that in her comment to petitioner's motion private respondent raised, among others, the issue
as to whether petitioner was still entitled to inherit from the decedent considering that she had secured
a divorce in the U.S.A. and in fact had twice remarried. She also invoked the above quoted procedural
rule. 11 To this, petitioner replied that Arturo was a Filipino and as such remained legally married to her
in spite of the divorce they obtained. 12 Reading between the lines, the implication is that petitioner was
no longer a Filipino citizen at the time of her divorce from Arturo. This should have prompted the trial
court to conduct a hearing to establish her citizenship. The purpose of a hearing is to ascertain the truth
of the matters in issue with the aid of documentary and testimonial evidence as well as the arguments of
the parties either supporting or opposing the evidence. Instead, the lower court perfunctorily settled her
claim in her favor by merely applying the ruling in Tenchavez v. Escaño.

Then in private respondent's motion to set aside and/or reconsider the lower court's decision she
stressed that the citizenship of petitioner was relevant in the light of the ruling in Van Dorn v. Romillo Jr.
13 that aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they
are valid according to their national law. She prayed therefore that the case be set for hearing. 14
Petitioner opposed the motion but failed to squarely address the issue on her citizenship. 15 The trial
court did not grant private respondent's prayer for a hearing but proceeded to resolve her motion with
the finding that both petitioner and Arturo were "Filipino citizens and were married in the Philippines." 16
It maintained that their divorce obtained in 1954 in San Francisco, California, U.S.A., was not valid in
Philippine jurisdiction. We deduce that the finding on their citizenship pertained solely to the time of their
marriage as the trial court was not supplied with a basis to determine petitioner's citizenship at the time
of their divorce. The doubt persisted as to whether she was still a Filipino citizen when their divorce was
decreed. The trial court must have overlooked the materiality of this aspect. Once proved that she was
no longer a Filipino citizen at the time of their divorce, Van Dorn would become applicable and petitioner
could very well lose her right to inherit from Arturo.

Respondent again raised in her appeal the issue on petitioner's citizenship; 17 it did not merit
enlightenment however from petitioner. 18 In the present proceeding, petitioner's citizenship is brought
anew to the fore by private respondent. She even furnishes the Court with the transcript of stenographic
notes taken on 5 May 1995 during the hearing for the reconstitution of the original of a certain transfer
certificate title as well as the issuance of new owner's duplicate copy thereof before another trial court.
When asked whether she was an American citizen petitioner answered that she was since 1954. 19
Significantly, the decree of divorce of petitioner and Arturo was obtained in the same year. Petitioner
however did not bother to file a reply memorandum to erase the uncertainty about her citizenship at the
time of their divorce, a factual issue requiring hearings to be conducted by the trial court. Consequently,
respondent appellate court did not err in ordering the case returned to the trial court for further
proceedings.

We emphasize however that the question to be determined by the trial court should be limited only to
the right of petitioner to inherit from Arturo as his surviving spouse. Private respondent's claim to
heirship was already resolved by the trial court. She and Arturo were married on 22 April 1947 while the
prior marriage of petitioner and Arturo was subsisting thereby resulting in a bigamous marriage
considered void from the beginning under Arts. 80 and 83 of the Civil Code. Consequently, she is not a
surviving spouse that can inherit from him as this status presupposes a legitimate relationship. 20

37 | P a g e
As regards the motion of private respondent for petitioner and a her counsel to be declared in contempt
of court and that the present petition be dismissed for forum shopping, 21 the same lacks merit. For
forum shopping to exist the actions must involve the same transactions and same essential facts and
circumstances. There must also be identical causes of action, subject matter and issue. 22 The present
petition deals with declaration of heirship while the subsequent petitions filed before the three (3) trial
courts concern the issuance of new owner's duplicate copies of titles of certain properties belonging to
the estate of Arturo. Obviously, there is no reason to declare the existence of forum shopping.

WHEREFORE, the petition is DENIED. The decision of respondent Court of Appeals ordering the remand
of the case to the court of origin for further proceedings and declaring null and void its decision holding
petitioner Fe D. Quita and Ruperto T. Padlan as intestate heirs is AFFIRMED. The order of the appellate
court modifying its previous decision by granting one-half (1/2) of the net hereditary estate to the
Padlan children, namely, Claro, Ricardo, Emmanuel, Zenaida and Yolanda, with the exception of Alexis,
all surnamed Padlan, instead of Arturo's brother Ruperto Padlan, is likewise AFFIRMED. The Court
however emphasizes that the reception of evidence by the trial court should he limited to the hereditary
rights of petitioner as the surviving spouse of Arturo Padlan.

The motion to declare petitioner and her counsel in contempt of court and to dismiss the present petition
for forum shopping is DENIED.

SO ORDERED.

G.R. No. 221029

REPUBLIC OF THE PHILIPPINES, Petitioner

vs
MARELYN TANEDO MANALO, Respondent

RESOLUTION

peralta, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court (Rules) seeks to reverse and set
aside the September 18, 2014 Decision1 and October 12, 2015 Resolution2 of the Court of Appeals (CA)
in CA-G.R. CV No. 100076. The dispositive portion of the Decision states:

WHEREFORE, the instant appeal is GRANTED. The Decision dated 15 October 2012 of the Regional
Trial Court of Dagupan City, First Judicial Region, Branch 43, in SPEC. PROC. NO. 2012-0005
is REVERSED and SET ASIDE.

Let a copy of this Decision be served on the Local Civil Registrar of San Juan, Metro Manila.

SO ORDERED.3

The facts are undisputed.

On January 10, 2012, respondent Marelyn Tanedo Manalo (Manalo) filed a petition for cancellation of

Entry of marriage in the Civil Registry of San Juan , Metro Manila, by virtueof a judgment of divorce
Japanese court.

Finding the petition to be sufficient in form and in substance, Branch 43 of the Regional Trial Court
(RTC) of Dagupan City set the case for initial hearing on April 25, 2012. The petition and the notice of
initial hearing were published once a week for three consecutive weeks in newspaper of general
circulation. During the initial hearing, counsel for Manalo marked the documentary evidence (consisting

38 | P a g e
of the trial courts Order dated January 25, 2012, affidavit of publication, and issues of the Northern
Journal dated February 21-27, 2012, February 28 - March 5, 2012, and March 6-12, 2012) for purposes
of compliance with the jurisdictional requirements.

The Office of the Solicitor General (OSG) entered its appearance for petitioner Republic of the Philippines
authorizing the Office of the City Prosecutor of Dagupan to appear on its behalf. Likewise, a
Manifestation and Motion was filed questioning the title and/or caption of the petition considering that
based on the allegations therein, the proper action should be a petition for recognition and enforcement
of a foreign judgment.

As a result, Manalo moved to admit an Amended Petition, which the court granted. The Amended
Petition, which captioned that if it is also a petition for recognition and enforcement of foreign judgment
alleged:
2. That petitioner is previously married in the Philippines to a Japanese national named YOSHINO
MINORO as shown by their Marriage Contract xxx;
3. That recently, a case for divorce was filed by herein [petitioner] in Japan and after die proceedings, a
divorce decree dated December 6, 2011 was rendered by the Japanese Court x x x;
4. That at present, by virtue of the said divorce decree, petitioner and her divorce Japanese husband are
no longer living together and in fact, petitioner and her daughter are living separately from said
Japanese former husband;
5. That there is an imperative need to have the entry of marriage in Civil Registry of San Juan, Metro
Manila cancelled, where the petitioner and the former Japanese husband's marriage was previously
registered, in order that it would not appear anymore that petitioner is still married to the said Japanese
national who is no longer her husband or is no longer married to her, she shall not be bothered and
disturbed by aid entry of marriage;
6. That this petition is filed principally for the purpose of causing the cancellation of entry of the
marriage between the petitioner and the said Japanese national, pursuant to Rule 108 of the Revised
Rules of Court, which marriage was already dissolved by virtue of the aforesaid divorce decree; [and]
7. That petitioner prays, among others, that together with the cancellation of the said entry of her
marriage, that she be allowed to return and use her maiden surname, MANALO.4
Manalo was allowed to testify in advance as she was scheduled to leave for Japan for her employment.
Among the documents that were offered and admitted were:
1. Court Order dated January 25, 2012, finding the petition and its attachments to be sufficient in form
and in substance;
2. Affidavit of Publication;
3. Issues of the Northern Journal dated February 21-27, 2012, February 28 - March 5, 2012, and March
6-12, 2012;
4. Certificate of Marriage between Manalo and her former Japanese husband;
5. Divorce Decree of Japanese court;
6. Authentication/Certificate issued by the Philippine Consulate General in Osaka, Japan of the
Notification of Divorce; and
7. Acceptance of Certificate of Divorce.5

The OSG did not present any controverting evidence to rebut the allegations of Manalo.

On October 15, 2012, the trial court denied the petition for lack of merit. In ruling that the divorce
obtained by Manalo in Japan should not be recognized, it opined that, based on Article 15 of the New
Civil Code, the Philippine law "does not afford Filipinos the right to file for a divorce whether they are in
the country or living abroad, if they are married to Filipinos or to foreigners, or if they celebrated their
marriage in the Philippines or in another country" and that unless Filipinos "are naturalized as citizens of
another country, Philippine laws shall have control over issues related to Filipinos' family rights and
duties, together with the determination of their condition and legal capacity to enter into contracts and
civil relations, inclusing marriages."6

On appeal, the CA overturned the RTC decision. It held that Article 26 of the Family Code of the
Philippines (Family Code) is applicable even if it was Manalo who filed for divorce against her Japanese
husband because the decree may obtained makes the latter no longer married to the former,
39 | P a g e
capacitating him to remarry. Conformably with Navarro, et al. V. Exec. Secretary Ermita, et al.7 ruling
that the meaning of the law should be based on the intent of the lawmakers and in view of the
legislative intent behind Article 26, it would be height of injustice to consider Manalo as still married to
the Japanese national, who, in turn, is no longer married to her. For the appellate court, the fact that it
was Manalo who filed the divorce case is inconsequential. Cited as similar to this case was Van Dorn v.
Judge Romilo, Jr.8 where the mariage between a foreigner an a Filipino was dissolved filed abroad by the
latter.

The OSG filed a motion for reconsideration, but it was denied; hence, this petition.

We deny the petition and partially affirm the CA decision.

Divorce, the legal dissolution of a lawful union for a cause arising after the marriage, are of two types:
(1) absolute divorce or a vinculo matrimonii, which terminates the marriage, and (2) limited divorce or a
mensa et thoro, which suspends it and leaves the bond in full force.9 In this jurisdiction, the following
rules exist:

1. Philippine law does not provide for absolute divorce; hence, our courts cannot grant
it.10

2. Consistent with Articles 1511 and 1712 of the New Civil Code, the marital bond between
two Filipinos cannot be dissolved even by an absolute divorce obtained abroad.13

3. An absolute divorce obtained abroad by a couple, who both aliens, may be recognized
in the Philippines, provided it is consistent with their respective national laws.14

4. In mixed marriages involving a Filipino and a foreigner, the former is allowed to

contract a subsequent marriage in case the absolute divorce is validly obtained abroad by
the alien spouse capacitating him or her to remarry.15

On July 6, 1987, then President Corazon C. Aquino signed into law Executive Order (E.O.) No. 209,
otherwise known as the Family Code of the Philippines, which took effect on August 3, 1988.16 Shortly
thereafter , E.O. No. 227 was issued on July 17, 1987.17 Aside from amending Articles 36 and 39 of the
Family Code, a second paragraph was added to Article 26.18 This provision was originally deleted by
the Civil Code Revision Committee (Committee),but it was presented and approved at a Cabinet meeting
after Pres. Aquino signed E.O. No. 209.19 As modified, Article 26 now states:

Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the
where 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 Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him her to remarry under Philippine
law.

Paragraph 2 of Article 26 confers jurisdiction on Philippine courts to extend the effect of a foreign
divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of
the marriage.20 It authorizes our courts to adopt the effects of a foreign divorce decree precisely
because the Philippines does not allow divorce.21 Philippine courts cannot try the case on the merits
because it is tantamount to trying a divorce case.22Under the principles of comity, our jurisdiction
recognizes a valid divorce obtained by the spouse of foreign nationality, but the legal effects
thereof, e.g., on custody, care and support of the children or property relations of the spouses, must still
be determined by our courts.23

According to Judge Alicia Sempio-Diy, a member of the Committee, the idea of the amendment is to
avoid the absurd situation of a Filipino as still being married to his or her alien spouse, although the
latter is no longer married to the former because he or she had obtained a divorce abroad that is
recognized by his or national law.24 The aim was that it would solved the problem of many Filipino
women who, under the New Civil Code, are still considered married to their alien husbands even after
the latter have already validly divorced them under their (the husbands') national laws and perhaps have
already married again.25
40 | P a g e
In 2005, this Court concluded that Paragraph 2 of Article 26 applies to a case where, at the time of the
celebration of the marriage, the parties were Filipino citizens, but later on, one of them acquired foreign
citizenship by naturalization, initiated a divorce proceeding, and obtained a favorable decree. We held
in Republic of the Phils. v. Orbecido III:26

The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals. In Quita, the parties
were, as in this case, Filipino citizens when they got married. The wife became naturalized American
citizen n 1954 and obtained a divorce in the same year. The court therein hinted, by the way of obiter
dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine
law and can thus remarry.

Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that
Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the
celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as
foreign citizen and obtains divorce decree. The Filipino spouse should likewise be allowed to remarry as
if the other party were foreigner at the time of the solemnization of the marriage. To rule otherwise
would be to sanction absurdity and injustice. x x x

If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who after obtaining a divorce is no longer married to the Filipino
spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of
Article 26.

In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as
follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of marriage, but
their citizenship at the time valid divorced obtained abroad by the alien spouse capacitating the latter to
remarry.

Now, the Court is tasked to resolve whether, under the same provision, a Filipino citizen has the capacity
to remarry under Philippine law after initiating a divorce proceeding abroad and obtaining a favorable
judgment against his or her alien spouse who is capacitated to remarry. Specifically, Manalo pleads for
the recognition of enforcement of the divorced decree rendered by the Japanese court and for the
cancellation of the entry of marriage in the local civil registry " in order that it would not appear anymore
that she is still married to the said Japanese national who is no longer her husband or is no longer
married to her; [and], in the event that [she] decides to be remarried, she shall not be bothered and
disturbed by said entry of marriage," and to use her maiden surname.

We rule in the affirmative.

Both Dacasin v. Dacasin28 and Van Dorn29 already recognized a foreign divorce decree that was initiated
and obtained by the Filipino spouse and extended its legal effects on the issues of child custody and
property relation,respectively.

In Dacasin, post-divorce, the former spouses executed an Agreement for the joint custody of their minor
daughter. Later on, the husband who is a US citizen, sued his Filipino wife enforce the Agreement,
alleging that it was only the latter who exercised sole custody of their child. The trial court dismissed the
action for lack of jurisdiction, on the ground, among others, that the divorce decree is binding following
the "nationality rule" prevailing in this jurisdiction. The husband moved to reconsider, arguing that the
divorce decree obtained by his former wife is void, but it was denied. In ruling that the trial court has
jurisdiction to entertain the suit bu not to enforce the Agreement, which is void, this Court said:

Nor can petitioner rely on the divorce decree's alleged invalidity - not because the Illinois court lacked
jurisdiction or that the divorced decree violated Illinois law, but because the divorce was obtained by his
Filipino spouse - to support the Agreement's enforceability . The argument that foreigners in this
jurisdiction are not bound by foreign divorce decrees is hardly novel. Van Dron v. Romillo settled the
41 | P a g e
matter by holding that an alien spouse of a Filipino is bound by a divorce decree obtained abroad. There,
we dismissed the alien divorcee's Philippine suit for accounting of alleged post-divorce conjugal property
and rejected his submission that the foreign divorce (obtained by the Filipino spouse) is not valid in this
jurisdiction x x x.30

Van Dorn was decided before the Family Code took into effect. There, a complaint was filed by the ex-
husband , who is a US citizen, against his Filipino wife to render an accounting of a business that was
alleged to be a conjugal property and to be declared with right to manage the same. Van Dorn moved to
dismiss the case on the ground that the cause of action was barred by previous judgment in the divorce
proceedings that she initiated, but the trial court denied the motion. On his part, her ex-husband averred
that the divorce decree issued by the Nevada court could not prevail over the prohibitive laws of the
Philippines and its declared national policy; that the acts and declaration of a foreign court cannot,
especially if the same is contrary to public policy, divest Philippine courts of jurisdiction to entertain
matters within its jurisdiction . In dismissing the case filed by the alien spouse, the Court discussed the
effect of the foreign divorce on the parties and their conjugal property in the Philippines. Thus:

There can be no question as to the validity of that Nevada divorce in any of the States of the United
States. The decree is binding on private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in
this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local
law and public policy.

Is it true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine
nationals are covered by the policy and morality. However, aliens may obtain divorce abroad, which may
be recognized in the Philippines, provided they are valid according to their national law. In this case, the
divorce in Nevada released private respondent from the marriage from standards of American law, under
which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States
in Atherton vs. Atherton, 45 L. Ed. 794,799:

"The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent
jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them
both from the bond. The marriage tie, when thus severed as stone party, ceases to bind either. A
husband without a wife, or a wife without a husband, is unknown to the law. When the law provides in
the nature of penalty, that the guilty party shall not marry again, that party, as well as the other, is still
absolutely feed from the bond of the former marriage."

Thus, pursuant to his national law, private respondent is no longer the husband of 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 estopped by his own 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 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.31

In addition, the fact that a validity obtained foreign divorce initiated by the Filipino spouse can be
recognized and given legal effects in the Philippines is implied from Our rulings in Fujiki v. Marinay, et
al.32 and Medina v. Koike.33

In Fujiki, the Filipino wife, with the help of her husband, who is a Japanese national, was able to obtain
a judgment from Japan's family court. Which declared the marriage between her and her second
husband, who is a Japanese national, void on the ground of bigamy. In resolving the issue of whether a
husband or wife of a prior marriage can file a petition to recognize a foreign judgment nullifying the
subsequent marriage between his her spouse and a foreign citizen on the ground of bigamy, We ruled:

Fujiki has the personality to file a petition to recognize the Japanese Family Court judgment nullifying the
marriage between Marinay and Maekara on the ground of bigamy because the judgment concerns his
civil status as married to Marinay. For the same reason he has the personality to file a petition under

42 | P a g e
Rule 108 to cancel the entry of marriage between Marinay and Maekara in the civil registry on the basis
of the decree of the Japanese Family Court.

There is no doubt that the prior spouse has a personal and material interest in maintaining the integrity
of the marriage he contracted and the property relations arising from it. There is also no doubt that he is
interested in the cancellation of an entry of a bigamous marriage in the civil registry, which compromises
the public record of his marriage. The interest derives from the substantive right of the spouse not only
to preserve (or dissolve, in limited instances) his most intimate human relation, but also to protect his
property interests that arise by operation of law the moment he contracts marriage. These property
interests in marriage included the right to be supported "in keeping with the financial capacity of the
family" and preserving the property regime of the marriage.

Property rights are already substantive rights protected by the Constitution, but a spouse's right in a
marriage extends further to relational rights recognized under Title III ("Rights and Obligations between
Husband and Wife") of the Family Code. x x x34

On the other hand, in Medina, the Filipino wife and her Japanese husband jointly filed for divorce, which
was granted.1âwphi1 Subsequently, she filed a petition before the RTC for judicial recognition of foreign
divorce and declaration of capacity to remarry pursuant to Paragraph 2 of Article 26. The RTC denied the
petition on the ground that the foreign divorce decree and the national law of the alien spouse
recognizing his capacity to obtain a divorce must be proven in accordance with Sections 24 and 25 of
Rule 132 of the Revised Rules on Evidence. This Court agreed and ruled that, consistent with Corpuz v.
Sto. Tomas, et al.35 and Garcia v. Recio,36 the divorce decree and the national law of the alien spouse
must be proven. Instead of dismissing the case, We referred it to the CA for appropriate action including
the reception of evidence to determine and resolve the pertinent factual issues.

There is no compelling reason to deviate from the above-mentioned rulings. When this Court recognized
a foreign divorce decree that was initiated and obtained by the Filipino spouse and extended its legal
effects on the issues of child custody and property relation, it should not stop short in a likewise
acknowledging that one of the usual and necessary consequences of absolute divorce is the right to
remarry. Indeed, there is no longer a mutual obligation to live together and observe fidelity. When the
marriage tie is severed and ceased to exist, the civil status and the domestic relation of the former
spouses change as both of them are freed from the marital bond.

The dissent is of the view that, under the nationality principle, Manalo's personal status is subject to
Philippine law, which prohibits absolute divorce. Hence, the divorce decree which she obtained under
Japanese law cannot be given effect, as she is, without dispute, a national not of Japan, bit of the
Philippines. It is said that that a contrary ruling will subvert not only the intention of the framers of the
law, but also that of the Filipino peopl, as expressed in the Constitution. The Court is, therefore, bound
to respect the prohibition until the legislature deems it fit to lift the same.

We beg to differ.

Paragraph 2 of Artilce 26 speaksof "a divorce x x x validly obtained abroad by the alien spouse
capacitating him or her to remarry." Based on a clear and plain reading of the provision, it only requires
that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien
spouse should be the one who initiated the proceeding wherein the divorce decree was granted. It does
not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce
proceeding. The Court is bound by the words of the statute; neither can We put words in the mouth of
lawmakers.37 The legislature is presumed to know the meaning of the words to have used words advisely
and to have expressed its intent by the use of such words as are found in the statute. Verba legis non
est recedendum, or from the words if a statute there should be departure."38

Assuming, for the sake of argument, that the word "obtained" should be interpreted to mean that the
divorce proceeding must be actually initiated by the alien spouse, still, the Court will not follow the letter
of the statute when to do so would depart from the true intent of the legislature or would otherwise
yield conclusions inconsistent with the general purpose of the act.39 Law have ends to achieve, and
statutes should be so construed as not to defeat but to carry out such ends and purposes.40 As held
in League of Cities of the Phils. et al. v. COMELEC et. al.:41

43 | P a g e
The legislative intent is not at all times accurately reflected in the manner in which the resulting law is
couched. Thus, applying a verba legis or strictly literal interpretation of a statute may render it
meaningless and lead to inconvience, an absurd situation or injustice. To obviate this aberration, and
bearing in mind the principle that the intent or the spirit of the law is the law itself, resort should be to
the rule that the spirit of the law control its letter.

To reiterate, the purpose of Paragraph 2 of Article 26 is to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after a foreign divorce decree that is effective in the
country where it was rendered, is no longer married to the Filipino spouse. The provision is a corrective
measure is free to marry under the laws of his or her countr.42 Whether the Filipino spouse initiated the
foreign divorce proceeding or not, a favorable decree dissolving the marriage bond and capacitating his
or her alien spouse to remarry will have the same result: the Filipino spouse will effectively be without a
husband or wife. A Filipino who initiated a foreign divorce proceeding is in the same place and in like
circumstances as a Filipino who is at the receiving end of an alien initiated proceeding. Therefore, the
subject provision should not make a distinction. In both instance, it is extended as a means to recognize
the residual effect of the foreign divorce decree on a Filipinos whose marital ties to their alien spouses
are severed by operations of their alien spouses are severed by operation on the latter's national law.

Conveniently invoking the nationality principle is erroneous. Such principle, found under Article 15 of the
City Code, is not an absolute and unbending rule. In fact, the mer e existence of Paragraph 2 of Article
26 is a testament that the State may provide for an exception thereto. Moreover, blind adherence to the
nationality principle must be disallowed if it would cause unjust discrimination and oppression to certain
classes of individuals whose rights are equally protected by law. The courts have the duty to enforce the
laws of divorce as written by the Legislature only if they are constitutional.43

While the Congress is allowed a wide leeway in providing for a valid classification and that its decision is
accorded recognition and respect by the court of justice, such classification may be subjected to judicial
review.44 The deference stops where the classification violates a fundamental right, or prejudices
persons accorded special protection by the Constitution.45 When these violations arise, this Court must
discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and more
exacting adherence to constitutional limitations.46 If a legislative classification impermissibly interferes
with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect
class strict judicial scrutiny is required since it is presumed unconstitutional, and the burden is upon the
government to prove that the classification is necessary to achieve a compelling state interest and that it
is the least restrictive means to protect such interest.47

"Fundamental rights" whose infringement leads to strict scrutiny under the equal protection clause are
those basic liberties explicitly or implicitly guaranteed in the Constitution.48 It includes the right to free
speech, political expression, press, assembly, and forth, the right to travel, and the right to vote.49 On
the other hand, what constitutes compelling state interest is measured by the scale rights and powers
arrayed in the Constitution and calibrated by history.50 It is akin to the paramount interest of the state
for which some individual liberties must give way, such as the promotion of public interest, public safety
or the general welfare.51 It essentially involves a public right or interest that, because of its primacy,
overrides individual rights, and allows the former to take precedence over the latter.52

Although the Family Code was not enacted by the Congress, the same principle applies with respect to
the acts of the President which have the force and effect of law unless declared otherwise by the court.
In this case, We find that Paragraph 2 of Article 26 violates one of the essential requisites53 of the equal
protection clause.54 Particularly, the limitation of the provision only to a foreign divorce decree initiated
by the alien spouse is unreasonable as it is based on superficial, arbitrary, and whimsical classification.

A Filipino who is married to another Filipino is not similarly situated with a Filipino who is married to a
foreign citizen. There are real, material and substantial differences between them. Ergo, they should not
be treated alike, both as to rights conferred and liabilities imposed. Without a doubt, there are political,
economic cultural, and religious dissimilarities as well as varying legal systems and procedures, all too
unfamiliar, that a Filipino national who is married to an alien spouse has to contend with. More
importantly, while a divorce decree obtained abroad by a Filipino against another Filipino is null and void,
a divorce decree obtained by an alien against his her Filipino spouse is recognized if made in accordance
with the national law of the foreigner.55

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On the contrary, there is no real and substantial difference between a Filipino who initiated a foreign
divorce proceedings a Filipino who obtained a divorce decree upon the instance of his or her alien
spouse . In the eyes of the Philippine and foreign laws, both are considered as Filipinos who have the
same rights and obligations in a alien land. The circumstances surrounding them are alike. Were it not
for Paragraph 2 of Article 26, both are still married to their foreigner spouses who are no longer their
wives/husbands. Hence, to make a distinction between them based merely on the superficial difference
of whether they initiated the divorce proceedings or not is utterly unfair. Indeed, the treatment gives
undue favor to one and unjustly discriminate against the other.

Further, the differentiation in Paragraph 2 Article 26 is arbitrary. There is inequality in treatment because
a foreign divorce decree that was initiated and obtained by a Filipino citizen against his or her alien
spouse would not be recognized even if based on grounds similar to Articles 35, 36, 37 and 38 of the
Family Code.56 In filing for divorce based on these grounds, the Filipino spouse cannot be accused of
invoking foreign law at whim, tantamount to insisting that he or she should be governed with whatever
law he or she chooses. The dissent's comment that Manalo should be "reminded that all is not lost, for
she may still pray for the severance of her martial ties before the RTC in accordance with the mechanism
now existing under the Family Code" is anything but comforting. For the guidance of the bench and the
bar, it would have been better if the dissent discussed in detail what these "mechanism" are and how
they specifically apply in Manalo's case as well as those who are similarly situated. If the dissent refers
to a petition for declaration of nullity or annulment of marriage, the reality is that there is no assurance
that our courts will automatically grant the same. Besides, such proceeding is duplicitous, costly, and
protracted. All to the prejudice of our kababayan.

It is argued that the Court's liberal interpretation of Paragraph 2 of Artilce 26 encourages Filipinos to
marry foreigners, opening the floodgate to the indiscriminate practice of Filipinos marrying foreign
nationals or initiating divorce proceedings against their alien spouses.

The supposition is speculative and unfounded.

First, the dissent falls into a hasty generalization as no data whatsoever was sworn to support what he
intends to prove. Second, We adhere to the presumption of good faith in this jurisdiction. Under the
rules on evidence, it is disputable presumed (i.e., satisfactory if uncontradicted and overcome by other
evidence) that a person is innocent of crime or wrong,57 that a person takes ordinary care of his
concerns,59 that acquiescence resulted from a belief that the thing acquiesced in was conformable to the
law and fact, 60 that a man and woman deporting themselves as husband and wife have entered into a
lawful contract of marriage,61 and that the law has been obeyed.62 It is whimsical to easily attribute any
illegal, irregular or immoral conduct on the part of a Filipino just because he or she opted to marry a
foreigner instead of a fellow Filipino. It is presumed that interracial unions are entered into out of
genuine love and affection, rather than prompted by pure lust or profit. Third, We take judicial notice of
the fact that Filipinos are relatively more forbearing and conservative in nature and that they are more
often the victims or losing end of mixed marriages. And Fourth, it is not for Us to prejudge the motive
behind Filipino's decision to marry an alien national. In one case, it was said:

Motive for entering into a marriage are varied and complex. The State does not and cannot dictated on
the kind of life that a couple chooses to lead. Any attempt to regulate their lifestyle would go into the
realm of their right to privacy and would raise serious constitutional questions. The right marital privacy
allows married couples to structure their marriages in almost any way they see it fit, to live together or
live apart, to have children or no children, to love one another or not, and so on. Thus, marriages
entered into for other purposes, limited or otherwise, such as convenience, companionship, money,
status, and title, provided that they comply with all the legal requisites, are equally valid. Love, though
the ideal consideration in a marriage contract, is not the only valid cause for marriage. Other
considerations, not precluded by law, may validly support a marriage.63

The 1987 Constitution expresses that marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State.64 Nevertheless, it was not meant to be a general prohibition
on divorce because Commissioner Jose Luis Martin C. Gascon, in response to a question by Father
Joaquin G. Bernas during the deliberations of the 1986 Constitutional Commission, was categorical about
this point.65 Their exchange reveal as follows:

MR. RAMA. Mr. Presiding Officer, may I ask that Commissioner Bernas be recognized.

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THE PRESIDING OFFICER (Mr. Colayco). Commissioner Bernas is recognized.

FR. BERNAS. Just one question, and I am not sure if it has been categorically answered. I refer
specifically to the proposal of Commissioner Gascon. Is this be understood as a prohibition of a general
law on divorce? His intention is to make this a prohibition so that the legislature cannot pass a divorce
law.

MR. GASCON. Mr. Presding Officer, that was not primarily my intention. My intention was primarily to
encourage the social institution of marriage, but not necessarily discourage divorce. But now that the
mentioned the issue of divorce, my personal opinion is to discourage it. Mr. Presiding Officer.

FR. BERNAS. No my question is more categorical. Does this carry the meaning of prohibiting a divorce
law?

MR. GASCON. No Mr. Presiding Officer.

FR. BERNAS. Thank you.66

Notably, a law on absolute divorce is not new in our country. Effectivity March 11, 1917, Philippine
courts could grant an absolute divorce in the grounds of adultery on the part of the wife or concubinage
on the part of the husband by virtue of Act No. 2710 of the Philippine Legislature.67 On March 25, 1943,
pursuant to the authority conferred upon him by the Commander-in-Chief fo the Imperial Japanese
Forces in the Philippines and with the approval of the latter, the Chairman of the Philippine Executive
Commission promulgated an E.O. No. 141 ("New Divorce Law"), which repealed Act No. 2710 and
provided eleven ground for absolute divorce, such as intentional or unjustified desertion continuously for
at least one year prior to the filing of the action, slander by deed or gross insult by one spouse against
the other to such an extent as to make further living together impracticable, and a spouse's incurable
insanity.68 When the Philippines was liberated and the Commonwealth Government was restored, it
ceased to have force and effect and Act No. 2710 again prevailed.69 From August 30, 1950, upon the
effectivity of Republic Act No. 836 or the New Civil Code, an absolute divorce obatined by Filipino
citizens, whether here or abroad, is no longer recognized.70

Through the years, there has been constant clamor from various sectors of the Philippine society to re-
institute absolute divorce. As a matte of fcat, in the currnet 17th Congress, House Bill (H.B.) Nos.
11671 106272 238073 and 602774 were filed in the House of representatives. In substitution of these bills,
H.B. No. 7303 entitled "An Act Instituting Absolute Divorce and Dissolution of Marriage in the
Philippines" or the Absolute Divorce Act of 2018 was submitted by the House Committee on Population

And Family Relations of February 8, 2018. It was approved on March 19, 2018 on Third Reading - with
134 in favor, 57 against, and 2 absentations. Under the bill, the grounds for a judicial decree of absolute
divorce are as follows:

1. The grounds for legal separation under Article 55 of the Family Code, modified or amended, as
follows:

a. Physical violence or grossly abusive conduct directed against the petitioner, a common
child, or a child of the petitioner;

b. Physical violence or moral pressure to compel the petitioner to change religious or

political affiliation;

c. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of

a petitioner, to engage in prostitution, or connivance in such corruption or inducement;

d. Final judgment sentencing the respondent to imprisonment of more than six (6) years,
even if pardoned;

e. Drug addiction or habitual alchoholism ro chronic gambling of respondent;

f. Homosexuality of the respondent;

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 g. Contracting by the respondent of a subsequent bigamous marriage, whether in the
Philippines or abroad;

h. Marital infidelity or perversion or having a child with another person other than one's
spouse during the marriage, except when upon the mutual agreement of the spouses, a
child is born to them by in vitro or a similar procedure or when the wife bears a child after
being a victim of rape;

i. attempt by the respondent against the life of the petitioner, a common child or a child
of a petitioner; and

j. Abandonment of petitioner by respondent without justifiable cause for more than one
(1) year.

When the spouses are legally separated by judicial decree for more thath two (2) years, either or both
spouses can petition the proper court for an absolute divorce based on said judicial decree of legal
separation.

1. Grounds for annulment of marriage under Article 45 of the Family Code restated as follows:

a. The party in whose behalf it is sought to have the marriage annulled was eighteen (18)
years of age or over but below twety-one (21), and the marriage was solemnized without
the consent of the parents guradian or personl having substitute parental authority over
the party, in that order, unless after attaining the age of twenty-one (21) such party
freely cohabited with the other and both lived together as husband and wife;

b. either party was of unsound mind, unless such party after coming to reason, freely
cohabited with the other as husband and wife;

c. The consent of either party was obtained by fraud, unless such party afterwards with
full knowledge of the facts constituting the fraud, freely cohabited with the other husband
and wife;

d. consent of either party was obtained by force, intimidation or undue influence, unless
the same having disappeared or ceased, such party thereafter freely cohabited with the
other as husband and wife;

e. Either party was physically incapable of consummating the marriage with the other and
such incapacity continues or appears to be incurable; and

f. Either part was afflicted with the sexually transmissible infection found to be serious or
appears to be incurable.

Provided, That the ground mentioned in b, e and f existed either at the time of the marriage or
supervening after the marriage.

1. When the spouses have been separated in fact for at least five (5) years at the time the petition for
absolute divorce is filed, and the reconciliation is highly improbable;

2. Psychological incapacity of either spouse as provided for in Article 36 of the Family Code, whether or
not the incapacity was present at the time of the celebration of the marriage or later;

3. When one of the spouses undergoes a gender reassignment surgery or transition from one sex to
another, the other spouse is entitled to petition for absolute divorce with the transgender or transsexual
as respondent, or vice-versa;

4. Irreconcilable marital differences and conflicts which have resulted in the total breakdown of the
marriage beyond repair, despite earnest and repeated efforts at reconciliation.

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To be sure, a good number of Filipinos led by the Roman Catholic Church react adversely to any attempt
to enact a law on absolute divorce, viewing it as contrary to our customs, morals, and traditions that has
looked upon marriage and family as an institution and their nature of permanence,

In the same breath that the establishment clause restricts what the government can do with religion, it
also limits what religious sects can or cannot do. They can neither cause the government to adopt their
particular doctrines as policy for everyone, nor can they cause the government to restrict other groups.
To do so, in simple terms, would cause the State to adhere to a particular religion and, thus establish a
state religion.76

The Roman Catholic Church can neither impose its beliefs and convictions on the State and the rest of
the citizenry nor can it demand that the nation follow its beliefs, even if it is sincerely believes that they
are good for country.77While marriage is considered a sacrament, it has civil and legal consequences
which are governed by the Family Code.78 It is in this aspect, bereft of any ecclesiastical overtone, that
the State has a legitimate right and interest to regulate.

The declared State policy that marriage, as an inviolable social institution, is a foundation of the family
and shall be protected by the State, should not be read in total isolation but must be harmonized with
other constitutional provision. Aside from strengthening the solidarity of the Filipino family, the State is
equally mandated to actively promote its total development.79 It is also obligated to defend, among
others, the right of children to special protection from all forms of neglect, abuse, cruelty, exploitation,
and other conditions prejudicial to their development.80 To Our mind, the State cannot effectively
enforce these obligation s if We limit the application of Paragraph 2 or Article 26 only those foreign
divorce initiated by the alien spouse. It is not amiss to point that the women and children are almost
always the helpless victims of all forms of domestic abuse and violence. In fact, among the notable
legislation passed in order to minimize, if not eradicate, the menace are R.A. No. 9262 ("Anti-Violence
Against Women and Their Children Act of 2004") R.A. No. 9710 ("The Magna Carta of Women"), R.A. No
10354 ("The Responsible Parenthood and Reproductive Health Act of 2012") and R.A. No 9208 ("Anti-
Trafficking in Person Act of 2003"), as amended by R.A. No. 10364 ("ExpandedAnti-Trafficking in
Persons Act of 2012").Moreover, in protecting and strengthening the Filipino family as a basic
autonomous social institution, the Court must not lose sight of the constitutional mandate to value the
dignity of every human person, guarantee full respect for human rights, and ensure the fundamental
equality before the law of women and men.81

A prohibitive view of Paragraph 2 of Article 26 would do more harm than good. If We disallow a Filipino
citizen who initiated and obtained a foreign divorce from the coverage of Paragraph 2 Article 26 and still
require him or her to first avail of the existing "mechanisms" under the Family Code, any subsequent
relationship that he or she would enter in the meantime shall be considered as illicit in the eyes of the
Philippine law. Worse, any child born out such "extra-marital" affair has to suffer the stigma of being
branded as illegitimate. Surely, these are just but a few of the adverse consequences, not only to the
parent but also to the child, if We are to hold a restrictive interpretation of the subject provision. The
irony is that the principle of inviolability of marriage under Section 2, Article XV of the Constitution is
meant to be tilted in favor of marriage and against unions not formalized by marriage, but without
denying State protection and assistance to live-in arrangements or to families formed according to
indigenous customs.82

This Court should not turn a blind eye to the realities of the present time. With the advancement of
communication and information technology, as well as the improvement of the transportation system
that almost instantly connect people from all over the world, mixed marriages have become not too
uncommon. Likewise, it is recognized that not all marriages are made in heaven and that imperfect
humans more often than not create imperfect unions.83 Living in a flawed world, the unfortunate reality
for some is that the attainment of the individual's full human potential and self fulfillment is not found
and achieved in the context of a marriage. Thus it is hypocritical to safeguard the quantity of existing
marriages and, at the same time, brush aside the truth that some of them are rotten quality.

Going back, we hold that marriage, being a mutual and shared commitment between two parties, cannot
possibly be productive of any good to the society where one is considered released from the marital
bond while the other remains bound to it.84 In reiterating that the Filipino spouse should not be
discriminated against in his or her own country if the ends of justice are to be served, San Luis v. San
Luis85 quoted:

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x x x In Alonzo v. Intermediate Applellate Court, the Court stated:

But as has also been aptly observed, we test a law by its results: and likewise, we may add, by its
purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge
should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never
be interpreted in such a way as to cause injustice as this is never within the legislative intent. An
indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render
justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and
justice are inseparable, and we must keep them so. To be sure, there are some laws that, while
generally valid, may seem arbitrary when applied in a particular case because only of our nature and
functions, to apply them just the same, in slavish obedience to their language. What we do instead is
find a balance between the sord and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it worded,
yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt
to err by sticking too closely to the words of law," so we are warned, by Justice Holmes agaian, "where
these words import a policy that goes beyond them."

xxxx

More that twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render
every one of his due." That wish continues to motivate this Court when it assesses the facts and the law
in ever case brought to it for decisions. Justice is always an essential ingredient of its decisions. Thus
when the facts warrant, we interpret the law in a way that will render justice, presuming that it was the
intention if the lawmaker, to begin with, that the law be dispensed with justice.86

Indeed, where the interpretation of a statute according to its exact and literal import would lead to
mischievous results or contravene the clear purpose of the legislature, it should be construed according
to its spirit and reason, disregarding as far as necessary the letter of the law.87 A statute may therefore,
be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or
intent.88

The foregoing notwithstanding, We cannot yet write finis to this controversy by granting Manalo's
petition to recognize and enforce the divorce decree rendered by the Japanese court and to cancel the
entry of marriage in the Civil Registry of San Juan, Metro Manila.

Jurisprudence has set guidelines before the Philippine courts recognize a foreign judgment relating to
the status of a marriage where one of the parties is a citizen of foreign country. Presentation solely of
the divorce decree will not suffice.89 The fact of divorce must still first be proven.90 Before a a foreign
divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact
and demonstrate its conformity to the foreign law allowing it.91

x x x Before a foreign judgment is given presumptive evidentiary value, the document must first be
presented and admitted in evidence. A divorce obtained abroad is proven by the divorce decree itself.
The decree purports to be written act or record of an act of an official body or tribunal of foreign
country.

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a
public or official record of a foreign country by either (1) an official publication or (2) a copy thereof
attested by the officer having legal custody of the document. If the record is not kept in the Philippines,
such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in
the Philippine foreign service stationed in the foreign country in which the record is kept and
(b)authenticated by the seal of his office.92

In granting Manalo's petition, the CA noted:

In this case, Petitioner was able to submit before the court a quo the 1) Decision of the Japanese Court
allowing the divorce; 2) the Authentication/Certificate issued by the Philippines Consulate General in
Osaka, Japan of the Decree of Divorce; and 3) Acceptance of Certificate of Divorce byu the Petitioner
49 | P a g e
and the Japanese national. Under Rule 132, Sections 24 and 25, in relation to Rule 39, Section 48 (b) of
the Rules of Court, these documents sufficiently prove the subject Divorce Decree as a fact. Thus, We
are constrained to recognize the Japanese Court's judgment decreeing the divorce.93

If the opposing party fails to properly object, as in this case, the divorce decree is rendered admissible a
a written act of the foreign court.94 As it appears, the existence of the divorce decree was not denied by
the OSG; neither was the jurisdiction of the divorce court impeached nor the validity of its proceedings
challenged on the ground of collusion, fraud, or clear mistake of fact or law, albeit an opportunity to do
so.95

Nonetheless, the Japanese law on divorce must still be proved.

x x x The burden of proof lies with the "party who alleges the existence of a fact or thing necessary in
the prosecution or defense of an action." In civil cases, plaintiffs have the burden of proving the material
defendants have the burden of proving the material allegations in their answer when they introduce new
matters. x x x

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. Like any
other facts, they must alleged and proved. x x x The power of judicial notice must be exercise d with
caution, and every reasonable doubt upon the subject should be resolved in the negative.96

Since the divorce was raised by Manalo, the burden of proving the pertinent Japanese law validating it,
as well as her former husband's capacity to remarry, fall squarely upon her. Japanese laws on persons
and family relations are not among those matters that Filipino judges are supposed to know by reason of
their judicial function.

WHEREFORE, the petition for review on certiorari is DENIED. The September 18, 2014 Decision and
October 12, 2015 Resolution if the Court of Appeals in CA G.R. CV. No. 100076, are AFFIRMED IN
PART. The case is REMANDED to the court of origin for further proceedings and reception of evidence
as to the relevant Japanese law on divorce.

SO ORDERED

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