Filipino to have as middle name the surname of the mother; (3) the
IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY
ASTORGA GARCIA
HONORATO B. CATINDIG, petitioner.
DECISION
SANDOVAL-GUTIERREZ, J.:
May an illegitimate child, upon adoption by her natural father, use the
surname of her natural mother as her middle name? This is the
issue raised in the instant case.
The facts are undisputed.
On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a
petition[1] to adopt his minor illegitimate child Stephanie Nathy
Astorga Garcia. He alleged therein, among others, that Stephanie
was born on June 26, 1994;[2] that her mother is Gemma Astorga
Garcia; that Stephanie has been using her mothers middle name
and surname; and that he is now a widower and qualified to be her
adopting parent. He prayed that Stephanies middle name Astorga
be changed to Garcia, her mothers surname, and that her
surname Garcia be changed to Catindig, his surname.
[3]
On March 23, 2001, the trial court rendered the assailed Decision
granting the adoption, thus:
After a careful consideration of the evidence presented by the petitioner, and in
the absence of any opposition to the petition, this Court finds that the
petitioner possesses all the qualifications and none of the
disqualification provided for by law as an adoptive parent, and that as
such he is qualified to maintain, care for and educate the child to be
adopted; that the grant of this petition would redound to the best interest
and welfare of the minor Stephanie Nathy Astorga Garcia. The Court
further holds that the petitioners care and custody of the child since her
birth up to the present constitute more than enough compliance with the
requirement of Article 35 of Presidential Decree No. 603.
WHEREFORE, finding the petition to be meritorious, the same is GRANTED.
Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all
obligations of obedience and maintenance with respect to her natural
mother, and for civil purposes, shall henceforth be the petitioners
legitimate child and legal heir. Pursuant to Article 189 of the Family
Code of the Philippines, the minor shall be known as STEPHANIE
NATHY CATINDIG.
Upon finality of this Decision, let the same be entered in the Local Civil
Registrar concerned pursuant to Rule 99 of the Rules of Court.
Let copy of this Decision be furnished the National Statistics Office for record
purposes.
SO ORDERED.[4]
On April 20, 2001, petitioner filed a motion for clarification and/or
reconsideration[5] praying that Stephanie should be allowed to use
the surname of her natural mother (GARCIA) as her middle name.
On May 28, 2001,[6] the trial court denied petitioners motion for
reconsideration holding that there is no law or jurisprudence
allowing an adopted child to use the surname of his biological
mother as his middle name.
Hence, the present petition raising the issue of whether an illegitimate child
may use the surname of her mother as her middle name when she
is subsequently adopted by her natural father.
Petitioner submits that the trial court erred in depriving Stephanie of a
middle name as a consequence of adoption because: (1) there is
no law prohibiting an adopted child from having a middle name in
case there is only one adopting parent; (2) it is customary for every
1
middle name or initial is a part of the name of a person; (4) adoption
is for the benefit and best interest of the adopted child, hence, her
right to bear a proper name should not be violated; (5) permitting
Stephanie to use the middle name Garcia (her mothers surname)
avoids the stigma of her illegitimacy; and; (6) her continued use of
Garcia as her middle name is not opposed by either the Catindig
or Garcia families.
The Republic, through the Office of the Solicitor General
(OSG), agrees with petitioner that Stephanie should be permitted
to use, as her middle name, the surname of her natural mother for
the following reasons:
First, it is necessary to preserve and maintain Stephanies
filiation with her natural mother because under Article 189 of the
Family Code, she remains to be an intestate heir of the latter. Thus,
to prevent any confusion and needless hardship in the future, her
relationship or proof of that relationship with her natural mother
should be maintained.
Second, there is no law expressly prohibiting Stephanie to
use the surname of her natural mother as her middle name. What
the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle name,
which is ordinarily the surname of the mother. This custom has
been recognized by the Civil Code and Family Code. In fact, the
Family Law Committees agreed that the initial or surname of the
mother should immediately precede the surname of the father so
that the second name, if any, will be before the surname of the
mother.[7]
We find merit in the petition.
Use Of Surname Is Fixed By Law
For all practical and legal purposes, a man's name is the
designation by which he is known and called in the community in
which he lives and is best known. It is defined as the word or
combination of words by which a person is distinguished from other
individuals and, also, as the label or appellation which he bears for
the convenience of the world at large addressing him, or in
speaking of or dealing with him.[8] It is both of personal as well as
public interest that every person must have a name.
The name of an individual has two parts: (1) the given or
proper name and (2) the surname or family name. The given or
proper name is that which is given to the individual at birth or at
baptism, to distinguish him from other individuals. The surname or
family name is that which identifies the family to which he belongs
and is continued from parent to child. The given name may be
freely selected by the parents for the child, but the surname to
which the child is entitled is fixed by law.[9]
Thus, Articles 364 to 380 of the Civil Code provides the
substantive rules which regulate the use of surname[10] of an
individual whatever may be his status in life, i.e., whether he may
be legitimate or illegitimate, an adopted child, a married woman or
a previously married woman, or a widow, thus:
Art. 364. Legitimate and legitimated children shall principally use
the surname of the father.
Art. 365. An adopted child shall bear the surname of the adopter.
xxx
Art. 369. Children conceived before the decree annulling a voidable
marriage shall principally use the surname of the father.
Art. 370. A married woman may use:
 (1) Her maiden first name and surname and add her husband's surname,
or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that she is his
wife, such as Mrs.
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she
shall resume her maiden name and surname. If she is the innocent spouse, she
may resume her maiden name and surname. However, she may choose to
continue employing her former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Art. 372. When legal separation has been granted, the wife shall continue using
her name and surname employed before the legal separation.
Art. 373. A widow may use the deceased husband's surname as though he
were still living, in accordance with Article 370.
Art. 374. In case of identity of names and surnames, the younger person shall
be obliged to use such additional name or surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between ascendants and
descendants, the word Junior can be used only by a son. Grandsons and other
direct male descendants shall either:
(1) Add a middle name or the mother's surname,
(2) Add the Roman numerals II, III, and so on.
xxx
Law Is Silent As To The Use Of
Middle Name
As correctly submitted by both parties, there is no law regulating
the use of a middle name. Even Article 176[11] of the Family Code, as
amended by Republic Act No. 9255, otherwise known as An Act Allowing
Illegitimate Children To Use The Surname Of Their Father, is silent as to
what middle name a child may use.
The middle name or the mothers surname is only considered in
Article 375(1), quoted above, in case there is identity of names and
surnames between ascendants and descendants, in which case, the
middle name or the mothers surname shall be added.
Notably, the law is likewise silent as to what middle name an
adoptee may use. Article 365 of the Civil Code merely provides that an
adopted child shall bear the surname of the adopter. Also, Article 189 of
the Family Code, enumerating the legal effects of adoption, is likewise
silent on the matter, thus:
"(1) For civil purposes, the adopted shall be deemed to be a legitimate child
of the adopters and both shall acquire the reciprocal rights and obligations
arising from the relationship of parent and child, including the right of the
adopted to use the surname of the adopters;
xxx
However, as correctly pointed out by the OSG, the members of the
Civil Code and Family Law Committees that drafted the Family
Code recognized the Filipino custom of adding the surname of the
childs mother as his middle name. In the Minutes of the Joint Meeting
or not to the adopter, possess in general, the rights accorded to a legitimate
2
of the Civil Code and Family Law Committees, the members approved
the suggestion that the initial or surname of the mother should
immediately precede the surname of the father, thus
Justice Caguioa commented that there is a difference between the use by
the wife of the surname and that of the child because the fathers
surname indicates the family to which he belongs, for which reason
he would insist on the use of the fathers surname by the child but
that, if he wants to, the child may also use the surname of the
mother.
Justice Puno posed the question: If the child chooses to use the surname
of the mother, how will his name be written? Justice Caguioa replied
that it is up to him but that his point is that it should be mandatory that
the child uses the surname of the father and permissive in the case
of the surname of the mother.
Prof. Baviera remarked that Justice Caguioas point is covered by the
present Article 364, which reads:
Legitimate and legitimated children shall principally use the surname of
the father.
Justice Puno pointed out that many names change through no choice of
the person himself precisely because of this misunderstanding. He then
cited the following example: Alfonso Ponce Enriles correct surname is
Ponce since the mothers surname is Enrile but everybody calls him Atty.
Enrile. Justice Jose Gutierrez Davids family name is Gutierrez and his
mothers surname is David but they all call him Justice David.
Justice Caguioa suggested that the proposed Article (12) be
modified to the effect that it shall be mandatory on the child to use
the surname of the father but he may use the surname of the mother
by way of an initial or a middle name. Prof. Balane stated that they
take note of this for inclusion in the Chapter on Use of Surnames since
in the proposed Article (10) they are just enumerating the rights of
legitimate children so that the details can be covered in the appropriate
chapter.
xxx
Justice Puno remarked that there is logic in the simplification suggested
by Justice Caguioa that the surname of the father should always be last
because there are so many traditions like the American tradition where
they like to use their second given name and the Latin tradition, which is
also followed by the Chinese wherein they even include the Clan name.
xxx
Justice Puno suggested that they agree in principle that in the
Chapter on the Use of Surnames, they should say that initial or
surname of the mother should immediately precede the surname of
the father so that the second name, if any, will be before the
surname of the mother. Prof. Balane added that this is really the
Filipino way. The Committee approved the suggestion. [12] (Emphasis
supplied)
In the case of an adopted child, the law provides that the
adopted shall bear the surname of the adopters.[13] Again, it is silent
whether he can use a middle name. What it only expressly allows,
as a matter of right and obligation, is for the adoptee to bear the
surname of the adopter, upon issuance of the decree of
adoption.[14]
The Underlying Intent of
Adoption Is In Favor of the
Adopted Child
Adoption is defined as the process of making a child, whether related
child.[15] It is a juridical act, a proceeding in rem which creates between two
persons a relationship similar to that which results from legitimate paternity
and filiation.[16] The modern trend is to consider adoption not merely as an
act to establish a relationship of paternity and filiation, but also as an actJJ., concur.
which endows the child with a legitimate status.[17] This was, indeed,
confirmed in 1989, when the Philippines, as a State Party to the
Convention of the Rights of the Child initiated by the United Nations,Case Digest:
accepted the principle that adoption is impressed with social and
moral responsibility, and that its underlying intent is geared to favor
the adopted child.[18] Republic Act No. 8552, otherwise known as
the Domestic Adoption Act of 1998,[19]secures these rights and privileges
for the adopted.[20]
One of the effects of adoption is that the adopted is deemed to be a
legitimate child of the adopter for all intents and purposes pursuant to
Article 189[21] of the Family Code and Section 17[22] Article V of RA 8552.[23]
Being a legitimate child by virtue of her adoption, it follows that
Stephanie is entitled to all the rights provided by law to a legitimate
child without discrimination of any kind, including the right to bear
the surname of her father and her mother, as discussed above. This is
consistent with the intention of the members of the Civil Code and Family
Law Committees as earlier discussed. In fact, it is a Filipino custom that the
initial or surname of the mother should immediately precede the surname
of the father.
Additionally, as aptly stated by both parties, Stephanies continued
use of her mothers surname (Garcia) as her middle name will maintain her
maternal lineage. It is to be noted that Article 189(3) of the Family Code
and Section 18[24], Article V of RA 8552 (law on adoption) provide that the
adoptee remains an intestate heir of his/her biological parent. Hence,
Stephanie can well assert or claim her hereditary rights from her natural
mother in the future.
Moreover, records show that Stephanie and her mother are living
together in the house built by petitioner for them at 390 Tumana, San Jose,
Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is
closely attached to both her mother and father. She calls them Mama and
Papa. Indeed, they are one normal happy family. Hence, to allow Stephanie
to use her mothers surname as her middle name will not only sustain her
continued loving relationship with her mother but will also eliminate the
stigma of her illegitimacy.
Liberal Construction of
Adoption Statutes In Favor Of
Adoption
It is a settled rule that adoption statutes, being humane and salutary,
should be liberally construed to carry out the beneficent purposes of
adoption.[25] The interests and welfare of the adopted child are of primary
and paramount consideration,[26] hence, every reasonable intendment
should be sustained to promote and fulfill these noble and compassionate
objectives of the law.[27]
Lastly, Art. 10 of the New Civil Code provides that:
In case of doubt in the interpretation or application of laws, it is presumed that
the lawmaking body intended right and justice to prevail.
This provision, according to the Code Commission, is necessary so
that it may tip the scales in favor of right and justice when the law is doubtful
or obscure. It will strengthen the determination of the courts to avoid an
injustice which may apparently be authorized by some way of interpreting
the law.[28]
Hence, since there is no law prohibiting an illegitimate
child adopted by her natural father, like Stephanie, to use, as middle name
her mothers surname, we find no reason why she should not be allowed to
do so.
WHEREFORE, the petition is GRANTED. The assailed Decision is
partly MODIFIED in the sense that Stephanie should be allowed to use her
mothers surname GARCIA as her middle name.
Let the corresponding entry of her correct and complete name be
entered in the decree of adoption.
3
SO ORDERED.
Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia,
IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY
ASTORGA GARCIA
HONORATO B. CATINDIG, petitioner.
G.R. No. 148311. March 31, 2005
FACTS:
Honorato Catindig filed a petition to adopt his minor illegitimate
child Stephanie Nathy Astorga Garcia. He prayed that the child's
middle name Astorga be changed to Garcia, her mother's
surname, and that her surname Garcia be changed to Catindig,
his surname.
Trial court granted the petition and declared Stephanie as his
legitimate child and heir, and pursuant to Art. 189 of the Family
Code, she is now known as Stephanie Nathy Catindig.
Honorato filed a motion for clarification and/or reconsideration
that Stephanie should be allowed to use the surname Garcia as
her middle name.
The Republic, through the OSG, agreed with Honorato for her
relationship with her natural mother should be maintained and
preserved, to prevent any confusion and hardship in the future,
and under Article 189 she remains to be an intestate heir of her
mother.
ISSUE:
Whether or not an illegitimate child, upon adoption by her natural
father, use the surname of her natural mother as her middle
name.
RULING:
Yes. there is no law prohibiting an illegitimate child adopted by
her natural father, like Stephanie, to use, as middle name her
mother’s surname, we find no reason why she should not be
allowed to do so.
Article 176 of the Family Code, as amended by Republic Act No.
9255, (An Act Allowing Illegitimate Children To Use The Surname
Of Their Father) is silent as to what middle name a child may use.
Article 365 of the CC merely provides that “an adopted child shall
bear the surname of the adopter.” Article 189 of the Family Code,
enumerating the legal effects of adoption, is likewise silent on the
matter.
Republic Act No. 8552, (Domestic Adoption Act of 1998) an
legitimate child by virtue of her adoption, Stephanie is entitled to
all the rights provided by law to a legitimate child without
discrimination of any kind, including the right to bear the surname
of her father and her mother.
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.
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
4
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.
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.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la
Fuente and Patajo, JJ., concur.
Case digest
VAN DORN vs. ROMILLO, G.R. No. L-68470 October 8, 1985
ALICE REYES VAN DORN, petitioner, VS. HON. MANUEL
ROMILLO JR., as Presiding Judge of
Branch CX, Regional Trial Court of the National Capital Region
Pasay City and RICHARD
UPTON, respondents
October 8, 1985
FACTS:
Alice Reyes, the petitioner is a citizen of the Philippines while
private respondent Richard Upton is a citizen of the United
States. They were married in Hong Kong in 1972 and they
established residence in the Philippines. They had two children
and they were divorced in Nevada, USA in 1982. The petitioner
remarried in Nevada to Theodore Van Dorn. The private
responded filed against petitioner stating that the petitioner’s
business is a conjugal property of the parties and that respondent
is 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, where respondent acknowledged that they had
no community property as of June 11, 1982.
ISSUE:
Whether or not the private respondent as petitioner’s husband is
entitled to exercise control over conjugal assets?
RULING:
The petition is granted. Complaint is dismissed.
The policy against absolute divorce cover only Philippine
nationals. However, aliens may obtain divorce abroad, which may directing the filing of two complaints for adultery against the
be recognized in the Philippines provided they are valid according petitioner. 6 The complaints were accordingly filed and were eventually
to their national law.
From the standards of American law, under which divorce
dissolves marriage, the divorce in Nevada released private
respondent from the marriage between them with the petitioner.
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 as petitioner’s husband entitled to exercise
control over conjugal assets. He is estopped by his own
representation before said court from asserting his right over the
alleged conjugal property.
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
5
HON. CORONA IBAY-SOMERA, in her capacity as Presiding
Judge of the Regional Trial Court of Manila, Branch XXVI;
HON. LUIS C. VICTOR, in his capacity as the City Fiscal of
Manila; and ERICH EKKEHARD GEILING, respondents.
REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended
in a foreign absolute divorce, only to be followed by a criminal
infidelity suit of the latter against the former, provides Us the
opportunity to lay down a decisional rule on what hitherto appears
to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a
Filipino citizen, and private respondent Erich Ekkehard Geiling, a
German national, were married before the Registrar of Births,
Marriages and Deaths at Friedensweiler in the Federal Republic
of Germany. The marriage started auspiciously enough, and the
couple lived together for some time in Malate, Manila where their
only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1
Thereafter, marital discord set in, with mutual recriminations between the
spouses, followed by a separation de facto between them.
After about three and a half years of marriage, such connubial
disharmony eventuated in private respondent initiating a divorce
proceeding against petitioner in Germany before the Schoneberg Local
Court in January, 1983. He claimed that there was failure of their
marriage and that they had been living apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal separation, support
and separation of property before the Regional Trial Court of Manila,
Branch XXXII, on January 23, 1983 where the same is still pending as
Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal
Republic of Germany, promulgated a decree of divorce on the ground of
failure of marriage of the spouses. The custody of the child was granted
to petitioner. The records show that under German law said court was
locally and internationally competent for the divorce proceeding and that
the dissolution of said marriage was legally founded on and authorized by
the applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance of the
divorce decree, private respondent filed two complaints for adultery
before the City Fiscal of Manila alleging that, while still married to said
respondent, petitioner "had an affair with a certain William Chia as early
as 1982 and with yet another man named Jesus Chua sometime in
1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the
corresponding investigation, recommended the dismissal of the cases on
the ground of insufficiency of evidence. 5 However, upon review, the
respondent city fiscal approved a resolution, dated January 8, 1986,
raffled to two branches of the Regional Trial Court of Manila. The case
entitled "People of the Philippines vs. Imelda Pilapil and William
Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch
XXVI presided by the respondent judge; while the other case, "People of
the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal
Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch
XXV, of the same court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of Justice
asking that the aforesaid resolution of respondent fiscal be set aside and
the cases against her be dismissed. 8 A similar petition was filed by
James Chua, her co-accused in Criminal Case No. 87-52434. The
Secretary of Justice, through the Chief State Prosecutor, gave due course
to both petitions and directed the respondent city fiscal to inform the
Department of Justice "if the accused have already been arraigned and if
not yet arraigned, to move to defer further proceedings" and to elevate
the entire records of both cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer her
arraignment and to suspend further proceedings thereon. 10 As a
consequence, Judge Leonardo Cruz suspended proceedings in Criminal
Case No. 87-52434. On the other hand, respondent judge merely reset
the date of the arraignment in Criminal Case No. 87-52435 to April 6,
1987. Before such scheduled date, petitioner moved for the cancellation
of the arraignment and for the suspension of proceedings in said Criminal
Case No. 87-52435 until after the resolution of the petition for review then
pending before the Secretary of Justice. 11 A motion to quash was also
filed in the same case on the ground of lack of jurisdiction, 12 which
motion was denied by the respondent judge in an order dated September
8, 1987. The same order also directed the arraignment of both accused
therein, that is, petitioner and William Chia. The latter entered a plea of
not guilty while the petitioner refused to be arraigned. Such refusal of the
petitioner being considered by respondent judge as direct contempt, she
and her counsel were fined and the former was ordered detained until she
submitted herself for arraignment. 13 Later, private respondent entered a
plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action
for certiorari and prohibition, with a prayer for a temporary restraining
order, seeking the annulment of the order of the lower court denying
her motion to quash. The petition is anchored on the main ground that
the court is without jurisdiction "to try and decide the charge of
adultery, which is a private offense that cannot be prosecuted de
officio (sic), since the purported complainant, a foreigner, does not
qualify as an offended spouse having obtained a final divorce decree
under his national law prior to his filing the criminal complaint." 15
On October 21, 1987, this Court issued a temporary restraining
order enjoining the respondents from implementing the aforesaid
order of September 8, 1987 and from further proceeding with
Criminal Case No. 87-52435. Subsequently, on March 23, 1988
Secretary of Justice Sedfrey A. Ordoñez acted on the aforesaid
petitions for review and, upholding petitioner's ratiocinations,
issued a resolution directing the respondent city fiscal to move for
the dismissal of the complaints against the petitioner. 16
We find this petition meritorious. The writs prayed for shall
accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the crime of
adultery, as well as four other crimes against chastity, cannot be
prosecuted except upon a sworn written complaint filed by
the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a
jurisdictional, and not merely a formal, requirement. 18 While in
point of strict law the jurisdiction of the court over the offense is
vested in it by the Judiciary Law, the requirement for a sworn
written complaint is just as jurisdictional a mandate since it is that
complaint which starts the prosecutory proceeding 19 and without
which the court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery
and concubinage the person who can legally file the complaint
should be the offended spouse, and nobody else. Unlike the
offenses of seduction, abduction, rape and acts of lasciviousness,
no provision is made for the prosecution of the crimes of adultery
and concubinage by the parents, grandparents or guardian of the
offended party. The so-called exclusive and successive rule in the
prosecution of the first four offenses above mentioned do not
apply to adultery and concubinage. It is significant that while the
State, as parens patriae, was added and vested by the 1985
Rules of Criminal Procedure with the power to initiate the criminal
action for a deceased or incapacitated victim in the aforesaid
offenses of seduction, abduction, rape and acts of lasciviousness,
in default of her parents, grandparents or guardian, such
amendment did not include the crimes of adultery and
6
concubinage. In other words, only the offended spouse, and no
other, is authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse
to institute the action, it necessarily follows that such initiator must
have the status, capacity or legal representation to do so at the
time of the filing of the criminal action. This is a familiar and
express rule in civil actions; in fact, lack of legal capacity to sue,
as a ground for a motion to dismiss in civil cases, is determined
as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of
criminal cases does not mean that the same requirement and
rationale would not apply. Understandably, it may not have been
found necessary since criminal actions are generally and
fundamentally commenced by the State, through the People of
the Philippines, the offended party being merely the complaining
witness therein. However, in the so-called "private crimes" or
those which cannot be prosecuted de oficio, and the present
prosecution for adultery is of such genre, the offended spouse
assumes a more predominant role since the right to commence
the action, or to refrain therefrom, is a matter exclusively within
his power and option.
This policy was adopted out of consideration for the aggrieved party who
might prefer to suffer the outrage in silence rather than go through the
scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article
344 of the Revised Penal Code thus presupposes that the marital
relationship is still subsisting at the time of the institution of the criminal
action for, adultery. This is a logical consequence since the raison
d'etre of said provision of law would be absent where the supposed
offended party had ceased to be the spouse of the alleged offender at the
time of the filing of the criminal case. 21
In these cases, therefore, it is indispensable that the status and capacity
of the complainant to commence the action be definitely established and,
as already demonstrated, such status or capacity must indubitably exist
as of the time he initiates the action. It would be absurd if his capacity to
bring the action would be determined by his
status beforeor subsequent to the commencement thereof, where such
capacity or status existed prior to but ceased before, or was acquired
subsequent to but did not exist at the time of, the institution of the case.
We would thereby have the anomalous spectacle of a party bringing suit
at the very time when he is without the legal capacity to do so.
To repeat, there does not appear to be any local precedential
jurisprudence on the specific issue as to when precisely the status of a
complainant as an offended spouse must exist where a criminal
prosecution can be commenced only by one who in law can be
categorized as possessed of such status. Stated differently and with
reference to the present case, the inquiry ;would be whether it is
necessary in the commencement of a criminal action for adultery that the
marital bonds between the complainant and the accused be unsevered
and existing at the time of the institution of the action by the former
against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction
which are in pari materia with ours, yields the rule that after a divorce has
been decreed, the innocent spouse no longer has the right to institute
proceedings against the offenders where the statute provides that the
innocent spouse shall have the exclusive right to institute a prosecution
for adultery. Where, however, proceedings have been properly
commenced, a divorce subsequently granted can have no legal effect on
the prosecution of the criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that —
'No prosecution for adultery can be commenced except on the complaint
of the husband or wife.' Section 4932, Code. Though Loftus was husband
of defendant when the offense is said to have been committed, he had
ceased to be such when the prosecution was begun; and appellant insists
that his status was not such as to entitle him to make the complaint. We
have repeatedly said that the offense is against the unoffending spouse,
as well as the state, in explaining the reason for this provision in the
statute; and we are of the opinion that the unoffending spouse must be
such when the prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this
case and in our jurisdiction, considering our statutory law and jural policy
on the matter. We are convinced that in cases of such nature, the status
of the complainant vis-a-vis the accused must be determined as of the
time the complaint was filed. Thus, the person who initiates the adultery
case must be an offended spouse, and by this is meant that he is still
married to the accused spouse, at the time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid
divorce in his country, the Federal Republic of Germany, is admitted. Said
divorce and its legal effects may be recognized in the Philippines insofar
as private respondent is concerned 23 in view of the nationality principle in
our civil law on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et
al., 24 after a divorce was granted by a United States court
between Alice Van Dornja Filipina, and her American husband,
the latter filed a civil case in a trial court here alleging that her
business concern was conjugal property and praying that she be
ordered to render an accounting and that the plaintiff be granted
the right to manage the business. Rejecting his pretensions, this
Court perspicuously demonstrated the error of such stance, 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. ...
It is true that owing to the nationality principle
embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy
against absolute divorces the same being
considered contrary to our concept of public
policy and morality. However, aliens may
obtain divorces abroad, which may be
recognized in the Philippines, provided they
are valid according to their national law. ...
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. ... 25
Under the same considerations and rationale, private respondent,
being no longer the husband of petitioner, had no legal standing
to commence the adultery case under the imposture that he was
the offended spouse at the time he filed suit.
The allegation of private respondent that he could not have
brought this case before the decree of divorce for lack of
knowledge, even if true, is of no legal significance or
consequence in this case. When said respondent initiated the
divorce proceeding, he obviously knew that there would no longer
be a family nor marriage vows to protect once a dissolution of the
marriage is decreed. Neither would there be a danger of
introducing spurious heirs into the family, which is said to be one
of the reasons for the particular formulation of our law on
adultery, 26 since there would thenceforth be no spousal
relationship to speak of. The severance of the marital bond had
the effect of dissociating the former spouses from each other,
7
hence the actuations of one would not affect or cast obloquy on
the other.
The aforecited case of United States vs. Mata cannot be
successfully relied upon by private respondent. In applying Article
433 of the old Penal Code, substantially the same as Article 333
of the Revised Penal Code, which punished adultery "although
the marriage be afterwards declared void", the Court merely
stated that "the lawmakers intended to declare adulterous the
infidelity of a married woman to her marital vows, even though it
should be made to appear that she is entitled to have her
marriage contract declared null and void, until and unless she
actually secures a formal judicial declaration to that effect".
Definitely, it cannot be logically inferred therefrom that the
complaint can still be filed after the declaration of nullity because
such declaration that the marriage is void ab initio is equivalent to
stating that it never existed. There being no marriage from the
beginning, any complaint for adultery filed after said declaration of
nullity would no longer have a leg to stand on. Moreover, what
was consequently contemplated and within the purview of the
decision in said case is the situation where the criminal action for
adultery was filed beforethe termination of the marriage by a
judicial declaration of its nullity ab initio. The same rule and
requisite would necessarily apply where the termination of the
marriage was effected, as in this case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs.
Vamenta, hereinbefore cited, 27 must suffer the same fate of
inapplicability. A cursory reading of said case reveals that the
offended spouse therein had duly and seasonably filed a
complaint for adultery, although an issue was raised as to its
sufficiency but which was resolved in favor of the complainant.
Said case did not involve a factual situation akin to the one at bar
or any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion
to quash is SET ASIDE and another one
entered DISMISSING the complaint in Criminal Case No. 87-
52435 for lack of jurisdiction. The temporary restraining order
issued in this case on October 21, 1987 is hereby made
permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.
CASE DIGEST:
PILAPIL vs. HON IBAY-SOMERA, VICTOR AND GEILING et al
G.R. No. 80116
June 30, 1989
FACTS: Petitioner Imelda Pilapil, a Filipino citizen, and private
respondent Erich Geiling, a German national, were married in
Germany. After about three and a half years of marriage, such
connubial disharmony eventuated in Geiling initiating a divorce
proceeding against Pilapil in Germany. The Local Court, Federal
Republic of Germany, promulgated a decree of divorce on the
ground of failure of marriage of the spouses.
More than five months after the issuance of the divorce decree,
Geiling filed two complaints for adultery before the City Fiscal of
Manila alleging in one that, while still married to said Geiling,
Pilapil “had an affair with a certain William Chia.” The Assistant
Fiscal, after the corresponding investigation, recommended the
dismissal of the cases on the ground of insufficiency of evidence.
However, upon review, the respondent city fiscal Victor approved
a resolution directing the filing of 2 complaint for adultery against
the petitioner. The case entitled “PP Philippines vs. Pilapil and
Chia” was assigned to the court presided by the respondent judge
Ibay-Somera.
A motion to quash was filed in the same case which was denied by
the respondent. Pilapil filed this special civil action for certiorari
and prohibition, with a prayer for a TRO, seeking the annulment
of the order of the lower court denying her motion to quash.
As cogently argued by Pilapil, Article 344 of the RPC thus
presupposes that the marital relationship is still subsisting at the
time of the institution of the criminal action for adultery.
ISSUE: Did Geiling have legal capacity at the time of the filing of
the complaint for adultery, considering that it was done after
obtaining a divorce decree?
HELD: WHEREFORE, the questioned order denying petitioner’s
MTQ is SET ASIDE and another one entered DISMISSING the
complaint … for lack of jurisdiction. The TRO issued in this case
… is hereby made permanent.
NO
Under Article 344 of the RPC, the crime of adultery cannot be
prosecuted except upon a sworn written complaint filed by the
offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a
jurisdictional, and not merely a formal, requirement.
Corollary to such exclusive grant of power to the offended spouse
to institute the action, it necessarily follows that such initiator
must have the status, capacity or legal representation to do so at
the time of the filing of the criminal action. This is a logical
consequence since the raison d’etre of said provision of law would
be absent where the supposed offended party had ceased to be the
spouse of the alleged offender at the time of the filing of the
criminal case.
Stated differently, the inquiry would be whether it is necessary in
the commencement of a criminal action for adultery that the
marital bonds between the complainant and the accused be
unsevered and existing at the time of the institution of the action
by the former against the latter.
In the present case, the fact that private respondent obtained a
valid divorce in his country, the Federal Republic of Germany, is
admitted. Said divorce and its legal effects may be recognized in
the Philippines insofar as private respondent is concerned in view
of the nationality principle in our civil law on the matter of status
of persons Under the same considerations and rationale, private
respondent, being no longer the husband of petitioner, had no
legal standing to commence the adultery case under the
imposture that he was the offended spouse at the time he filed
suit.
PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS
and ALICIA F. LLORENTE, respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the Court
of Appeals[1] modifying that of the Regional Trial Court, Camarines
Sur, Branch 35, Iriga City[2] declaring respondent Alicia F. Llorente
(herinafter referred to as Alicia), as co-owners of whatever property
she and the deceased Lorenzo N. Llorente (hereinafter referred to
8
as Lorenzo) may have acquired during the twenty-five (25) years
that they lived together as husband and wife.
The Facts
The deceased Lorenzo N. Llorente was an enlisted
serviceman of the United States Navy from March 10, 1927 to
September 30, 1957.[3]
On February 22, 1937, Lorenzo and petitioner Paula Llorente
(hereinafter referred to as Paula) were married before a parish
priest, Roman Catholic Church, in Nabua, Camarines Sur.[4]
Before the outbreak of the Pacific War, Lorenzo departed for
the United States and Paula stayed in the conjugal home in barrio
Antipolo, Nabua, Camarines Sur.[5]
On November 30, 1943, Lorenzo was admitted to United
States citizenship and Certificate of Naturalization No. 5579816
was issued in his favor by the United States District Court,
Southern District of New York.[6]
Upon the liberation of the Philippines by the American
Forces in 1945, Lorenzo was granted an accrued leave by the U.
S. Navy, to visit his wife and he visited the Philippines. [7] He
discovered that his wife Paula was pregnant and was living in and
having an adulterous relationship with his brother, Ceferino
Llorente.[8]
On December 4, 1945, Paula gave birth to a boy registered
in the Office of the Registrar of Nabua as Crisologo Llorente, with
the certificate stating that the child was not legitimate and the line
for the fathers name was left blank.[9]
Lorenzo refused to forgive Paula and live with her. In fact, on
February 2, 1946, the couple drew a written agreement to the effect
that (1) all the family allowances allotted by the United States Navy
as part of Lorenzos salary and all other obligations for Paulas daily
maintenance and support would be suspended; (2) they would
dissolve their marital union in accordance with judicial
proceedings; (3) they would make a separate agreement regarding
their conjugal property acquired during their marital life; and (4)
Lorenzo would not prosecute Paula for her adulterous act since
she voluntarily admitted her fault and agreed to separate from
Lorenzo peacefully. The agreement was signed by both Lorenzo
and Paula and was witnessed by Paulas father and
stepmother. The agreement was notarized by Notary Public Pedro
Osabel.[10]
Lorenzo returned to the United States and on November 16,
1951 filed for divorce with the Superior Court of the State of
California in and for the County of San Diego. Paula was
represented by counsel, John Riley, and actively participated in the
proceedings. On November 27, 1951, the Superior Court of the
State of California, for the County of San Diego found all factual
allegations to be true and issued an interlocutory judgment of
divorce.[11]
On December 4, 1952, the divorce decree became final.[12]
In the meantime, Lorenzo returned to the Philippines.
On January 16, 1958, Lorenzo married Alicia F. Llorente in
Manila.[13] Apparently, Alicia had no knowledge of the first marriage
even if they resided in the same town as Paula, who did not oppose
the marriage or cohabitation.[14]
From 1958 to 1985, Lorenzo and Alicia lived together as
husband and wife.[15] Their twenty-five (25) year union produced
three children, Raul, Luz and Beverly, all surnamed Llorente.[16]
On March 13, 1981, Lorenzo executed a Last Will and
Testament. The will was notarized by Notary Public Salvador M.
Occiano, duly signed by Lorenzo with attesting witnesses
Francisco Hugo, Francisco Neibres and Tito Trajano. In the will,
Lorenzo bequeathed all his property to Alicia and their three
children, to wit:
(1) I give and bequeath to my wife ALICIA R. FORTUNO
exclusively my residential house and lot, located at San
Francisco, Nabua, Camarines Sur, Philippines, including ALL the
personal properties and other movables or belongings that may
be found or existing therein;
(2) I give and bequeath exclusively to my wife Alicia R. Fortuno
and to my children, Raul F. Llorente, Luz F. Llorente and Beverly
F. Llorente, in equal shares, all my real properties whatsoever
and wheresoever located, specifically my real properties located
at Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay
Paloyon, Nabua, Camarines Sur; Barangay Baras, Sitio Puga,
Nabua, Camarines Sur; and Barangay Paloyon, Sitio Nalilidong,
Nabua, Camarines Sur;
(3) I likewise give and bequeath exclusively unto my wife Alicia R.
Fortuno and unto my children, Raul F. Llorente, Luz F. Llorente
and Beverly F. Llorente, in equal shares, my real properties
located in Quezon City Philippines, and covered by Transfer
Certificate of Title No. 188652; and my lands in Antipolo, Rizal,
Philippines, covered by Transfer Certificate of Title Nos. 124196
and 165188, both of the Registry of Deeds of the province of
Rizal, Philippines;
(4) That their respective shares in the above-mentioned
properties, whether real or personal properties, shall not be
disposed of, ceded, sold and conveyed to any other persons, but
could only be sold, ceded, conveyed and disposed of by and
among themselves;
(5) I designate my wife ALICIA R. FORTUNO to be the sole
executor of this my Last Will and Testament, and in her default or
incapacity of the latter to act, any of my children in the order of
age, if of age;
(6) I hereby direct that the executor named herein or her lawful
substitute should served (sic) without bond;
(7) I hereby revoke any and all my other wills, codicils, or
testamentary dispositions heretofore executed, signed, or
published, by me;
(8) It is my final wish and desire that if I die, no relatives of mine
in any degree in the Llorentes Side should ever bother and
disturb in any manner whatsoever my wife Alicia R. Fortunato and
my children with respect to any real or personal properties I gave
and bequeathed respectively to each one of them by virtue of this
Last Will and Testament.[17]
On December 14, 1983, Lorenzo filed with the Regional Trial
Court, Iriga, Camarines Sur, a petition for the probate and
allowance of his last will and testament wherein Lorenzo moved
that Alicia be appointed Special Administratrix of his estate.[18]
On January 18, 1984, the trial court denied the motion for the
reason that the testator Lorenzo was still alive.[19]
On January 24, 1984, finding that the will was duly executed,
the trial court admitted the will to probate.[20]
On June 11, 1985, before the proceedings could be
terminated, Lorenzo died.[21]
On September 4, 1985, Paula filed with the same court a
petition[22] for letters of administration over Lorenzos estate in her
favor. Paula contended (1) that she was Lorenzos surviving
spouse, (2) that the various property were acquired during their
marriage, (3) that Lorenzos will disposed of all his property in favor
of Alicia and her children, encroaching on her legitime and 1/2
share in the conjugal property.[23]
9
On December 13, 1985, Alicia filed in the testate proceeding
(Sp. Proc. No. IR-755), a petition for the issuance of letters
testamentary.[24]
On October 14, 1985, without terminating the testate
proceedings, the trial court gave due course to Paulas petition in
Sp. Proc. No. IR-888.[25]
On November 6, 13 and 20, 1985, the order was published
in the newspaper Bicol Star.[26]
On May 18, 1987, the Regional Trial Court issued a joint
decision, thus:
Wherefore, considering that this court has so found that the
divorce decree granted to the late Lorenzo Llorente is void and
inapplicable in the Philippines, therefore the marriage he
contracted with Alicia Fortunato on January 16, 1958 at Manila is
likewise void. This being so the petition of Alicia F. Llorente for
the issuance of letters testamentary is denied. Likewise, she is
not entitled to receive any share from the estate even if the will
especially said so her relationship with Lorenzo having gained the
status of paramour which is under Art. 739 (1).
On the other hand, the court finds the petition of Paula Titular
Llorente, meritorious, and so declares the intrinsic disposition of
the will of Lorenzo Llorente dated March 13, 1981 as void and
declares her entitled as conjugal partner and entitled to one-half
of their conjugal properties, and as primary compulsory heir,
Paula T. Llorente is also entitled to one-third of the estate and
then one-third should go to the illegitimate children, Raul, Luz and
Beverly, all surname (sic) Llorente, for them to partition in equal
shares and also entitled to the remaining free portion in equal
shares.
Petitioner, Paula Llorente is appointed legal administrator of the
estate of the deceased, Lorenzo Llorente. As such let the
corresponding letters of administration issue in her favor upon her
filing a bond in the amount (sic) of P100,000.00 conditioned for
her to make a return to the court within three (3) months a true
and complete inventory of all goods, chattels, rights, and credits,
and estate which shall at any time come to her possession or to
the possession of any other person for her, and from the
proceeds to pay and discharge all debts, legacies and charges on
the same, or such dividends thereon as shall be decreed or
required by this court; to render a true and just account of her
administration to the court within one (1) year, and at any other
time when required by the court and to perform all orders of this
court by her to be performed.
On the other matters prayed for in respective petitions for want of
evidence could not be granted.
SO ORDERED.[27]
In time, Alicia filed with the trial court a motion for
reconsideration of the aforequoted decision.[28]
On September 14, 1987, the trial court denied Alicias motion
for reconsideration but modified its earlier decision, stating that
Raul and Luz Llorente are not children legitimate or otherwise of
Lorenzo since they were not legally adopted by him.[29] Amending
its decision of May 18, 1987, the trial court declared Beverly
Llorente as the only illegitimate child of Lorenzo, entitling her to
one-third (1/3) of the estate and one-third (1/3) of the free portion
of the estate.[30]
On September 28, 1987, respondent appealed to the Court
of Appeals.[31]
On July 31, 1995, the Court of Appeals promulgated its
decision, affirming with modification the decision of the trial court
in this wise:
WHEREFORE, the decision appealed from is hereby AFFIRMED
with the MODIFICATION that Alicia is declared as co-owner of
whatever properties she and the deceased may have acquired
during the twenty-five (25) years of cohabitation.
[32]
SO ORDERED.
On August 25, 1995, petitioner filed with the Court of Appeals
a motion for reconsideration of the decision.[33]
On March 21, 1996, the Court of Appeals, [34] denied the
motion for lack of merit.
Hence, this petition.[35]
The Issue
Stripping the petition of its legalese and sorting through the
various arguments raised,[36] the issue is simple. Who are entitled
to inherit from the late Lorenzo N. Llorente?
We do not agree with the decision of the Court of
Appeals. We remand the case to the trial court for ruling on the
intrinsic validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became an
American citizen long before and at the time of: (1) his divorce from
Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death,
is duly established, admitted and undisputed.
Thus, as a rule, issues arising from these incidents are
necessarily governed by foreign law.
The Civil Code clearly provides:
Art. 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad.
Art. 16. Real property as well as personal property is subject to
the law of the country where it is situated.
However, intestate and testamentary succession, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the
person whose succession is under consideration, whatever
may be the nature of the property and regardless of the country
wherein said property may be found. (emphasis ours)
True, foreign laws do not prove themselves in our jurisdiction
and our courts are not authorized to take judicial notice of
them. Like any other fact, they must be alleged and proved.[37]
While the substance of the foreign law was pleaded, the
Court of Appeals did not admit the foreign law. The Court of
Appeals and the trial court called to the fore the renvoi doctrine,
where the case was referred back to the law of the decedents
domicile, in this case, Philippine law.
We note that while the trial court stated that the law of New
York was not sufficiently proven, in the same breath it made the
categorical, albeit equally unproven statement that American law
follows the domiciliary theory hence, Philippine law applies when
determining the validity of Lorenzos will.[38]
First, there is no such thing as one American law. The
"national law" indicated in Article 16 of the Civil Code cannot
possibly apply to general American law. There is no such law
governing the validity of testamentary provisions in the United
States. Each State of the union has its own law applicable to its
citizens and in force only within the State. It can therefore refer to
10
no other than the law of the State of which the decedent was a
resident.[39] Second, there is no showing that the application of
the renvoi doctrine is called for or required by New York State law.
The trial court held that the will was intrinsically invalid since
it contained dispositions in favor of Alice, who in the trial courts
opinion was a mere paramour. The trial court threw the will out,
leaving Alice, and her two children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It declared
Alice entitled to one half (1/2) of whatever property she and
Lorenzo acquired during their cohabitation, applying Article 144 of
the Civil Code of the Philippines.
The hasty application of Philippine law and the complete
disregard of the will, already probated as duly executed in
accordance with the formalities of Philippine law, is
fatal, especially in light of the factual and legal circumstances
here obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr.[40] we held that owing to the
nationality principle embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy against absolute
divorces, the same being considered contrary to our concept of
public policy and morality. In the same case, the Court ruled
that aliens may obtain divorces abroad, provided they are valid
according to their national law.
Citing this landmark case, the Court held in Quita v. Court of
Appeals,[41] that once proven that respondent was no longer a
Filipino citizen when he obtained the divorce from petitioner, the
ruling in Van Dorn would become applicable and petitioner could
very well lose her right to inherit from him.
In Pilapil v. Ibay-Somera,[42] we recognized the divorce
obtained by the respondent in his country, the Federal Republic of
Germany. There, we stated that divorce and its legal effects may
be recognized in the Philippines insofar as respondent is
concerned in view of the nationality principle in our civil law on the
status of persons.
For failing to apply these doctrines, the decision of the Court
of Appeals must be reversed.[43] We hold that the divorce obtained
by Lorenzo H. Llorente from his first wife Paula was valid and
recognized in this jurisdiction as a matter of comity. Now, the
effects of this divorce (as to the succession to the estate of the
decedent) are matters best left to the determination of the trial
court.
Validity of the Will
The Civil Code provides:
Art. 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country
in which they are executed.
When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution. (underscoring ours)
The clear intent of Lorenzo to bequeath his property to his
second wife and children by her is glaringly shown in the will he
executed. We do not wish to frustrate his wishes, since he was a
foreigner, not covered by our laws on family rights and duties,
status, condition and legal capacity.[44]
Whether the will is intrinsically valid and who shall inherit
from Lorenzo are issues best proved by foreign law which must be
pleaded and proved. Whether the will was executed in accordance
with the formalities required is answered by referring to Philippine
law. In fact, the will was duly probated.
 As a guide however, the trial court should note that whatever
public policy or good customs may be involved in our system of
legitimes, Congress did not intend to extend the same to the
succession of foreign nationals. Congress specifically left the
amount of successional rights to the decedent's national law.[45]
Having thus ruled, we find it unnecessary to pass upon the
other issues raised.
The Fallo
WHEREFORE, the petition is GRANTED. The decision of
the Court of Appeals in CA-G. R. SP No. 17446 promulgated on
July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the
Regional Trial Court and RECOGNIZES as VALID the decree of
divorce granted in favor of the deceased Lorenzo N. Llorente by
the Superior Court of the State of California in and for the County
of San Diego, made final on December 4, 1952.
Further, the Court REMANDS the cases to the court of origin
for determination of the intrinsic validity of Lorenzo N. Llorentes will
and determination of the parties successional rights allowing proof
of foreign law with instructions that the trial court shall proceed with
all deliberate dispatch to settle the estate of the deceased within
the framework of the Rules of Court.
No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-
Santiago, JJ., concur.
Case Digest
345 SCRA 592 – Civil Law – Application of Laws – Foreign Laws
– Nationality Principle – Effects of Foreign Divorce
Succession – Last Will and Testament of an Alien
In 1927, Lorenzo Llorente, then a Filipino, was enlisted in the U.S.
Navy. In 1937, he and Paula Llorente got married in Camarines
Sur. In 1943, Lorenzo became an American citizen.
In 1945, Lorenzo returned to the Philippines for a vacation. He
discovered that Paula was already living illicitly with Ceferino
Llorente (brother of Lorenzo). Ceferino and Paula even had a son.
Lorenzo then refused to live with Paula. He also refused to give her
monetary support. Eventually, Lorenzo and Paula agreed in
writing Lorenzo shall not criminally charge Paula if the latter agrees
to waive all monetary support from Lorenzo. Later, Lorenzo
returned to the United States.
In 1951, Lorenzo filed a divorce proceeding against Paula in
California. Paula was represented by an American counsel. The
divorce was granted and in 1952, the divorce became final.
Lorenzo returned to the Philippines. In 1958, Lorenzo married
Alicia Fortuno. They had three children.
In 1981, Lorenzo executed his last will and testament where he left
all his estate to Alicia and their children (nothing for Paula). In 1983,
he went to court for the will’s probate and to have Alicia as the
administratrix of his property. In 1985, before the probate
proceeding can be terminated, Lorenzo died. Later, Paula filed a
petition for letters of administration over Lorenzo’s estate.
The trial court ruled that Lorenzo’s marriage with Alicia is void
because the divorce he obtained abroad is void. The trial court
11
ratiocinated that Lorenzo is a Filipino hence divorce is not
applicable to him. The Court of Appeals affirmed the trial court.
ISSUES: Whether or not Lorenzo’s divorce abroad should be
recognized.
HELD: Yes. It is undisputed by Paula Llorente that Lorenzo
became an American citizen in 1943. Hence, when he obtained the
divorce decree in 1952, he is already an American citizen. Article
15 of the Civil Code provides:
Laws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines,
even though living abroad.
Since Lorenzo was no longer a Filipino, Philipine laws relating to
family rights, duties, or status are no longer applicable to him.
Therefore, the divorce decree he obtained abroad must be
respected. The rule is: aliens may obtain divorces abroad,
provided they are valid according to their national law.
However, this case was still remanded to the lower court so as for
the latter to determine the effects of the divorce as to the
successional rights of Lorenzo and his heirs.
Anent the issue on Lorenzo’s last will and testament, it must be
respected. He is an alien and is not covered by our laws on
succession. However, since the will was submitted to our courts for
probate, then the case was remanded to the lower court where the
foreign law must be alleged in order to prove the validity of the will.
[G.R. No. 138322. October 2, 2001]
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner,
vs. REDERICK A. RECIO, respondent.
DECISION
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 judgments; 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 Decision [1] and the March
24, 1999 Order[2] of the Regional Trial Court of Cabanatuan City, Branch
28, in Civil Case No. 3026AF. 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]
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 Marriage[10] 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
respondents 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
Australia in 1989;[12] thus, he was legally capacitated to marry petitioner
in 1994.
On July 7, 1998 -- or about five years after the couples 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 Complaint 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, respondents 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 marital union to nullify or annul.
[18]
Hence, this Petition.
Issues
Petitioner submits the following issues for our consideration:
1 divorce is validly obtained abroad by the alien spouse capacitating him or
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.
2 recognized in the Philippines, provided they are valid according to their
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 petitioners marriage to the respondent
3 Petitioner insists that before a divorce decree can be admitted in
12
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 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 Courts Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial courts 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 celebrationis). 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 15[22] and 17[23] of the Civil Code.[24] In mixed
marriages involving a Filipino and a foreigner, Article 26[25] of the Family
Code allows the former to contract a subsequent marriage in case the
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
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
evidence, it must first comply with the registration requirements under
Articles 11, 13 and 52 of the Family Code. These articles read as follows:
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:
xxxxxxxxx
(5) If previously married, how, when and where the previous marriage
was dissolved or annulled;
xxxxxxxxx
ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to
ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to furnish, instead of the birth or
baptismal certificate required in the last preceding article, the death
certificate of the deceased spouse or the judicial decree of the absolute
divorce, 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 childrens 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 official 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
attested[33] 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
aforementioned rules on evidence must be demonstrated.
Fortunately for respondents 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 petitioners qualification.[37] Hence, it was
admitted in evidence and accorded weight by the judge. Indeed,
petitioners 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
13
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 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: Respondents 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.
Respondents 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 marrying 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 respondents 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 39[49] of the Rules of Court, for the CITATION: GR NO. 138322, Oct. 2, 2002 | 366 SCRA 437
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 FACTS:

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
Rederick A. Recio, a Filipino, was married to Editha Samson, an
that respondent did not have legal capacity to remarry.
Australian Citizen, in Malabon, Rizal on March 1, 1987. They lived as
We clarify. To repeat, the legal capacity to contract marriage is husband and wife in Australia. However, an Australian family court
determined by the national law of the party concerned. The certificate issued purportedly a decree of divorce, dissolving the marriage of
mentioned in Article 21 of the Family Code would have been sufficient Rederick and Editha on May 18, 1989.
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] On January 12, 1994, Rederick married Grace J. Garcia where it was
As it is, however, there is absolutely no evidence that proves solemnized at Our lady of Perpetual Help Church, Cabanatuan
respondents legal capacity to marry petitioner. A review of the records City. Since October 22, 1995, the couple lived separately without prior
before this Court shows that only the following exhibits were presented judicial dissolution of their marriage. As a matter of fact, while they
before the lower court: (1) for petitioner: (a) Exhibit A Complaint; [51] (b) were still in Australia, their conjugal assets were divided on May 16,
Exhibit B Certificate of Marriage Between Rederick A. Recio (Filipino- 1996, in accordance with their Statutory Declarations secured in
Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in
Australia.
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
Grace filed a Complaint for Declaration of Nullity of Marriage on the
annulment between Rederick A. Recio and Editha D. Samson was in its
records;[54] and (e) Exhibit E Certificate of Australian Citizenship of ground of bigamy on March 3, 1998, claiming that she learned only in
Rederick A. Recio;[55] (2) for respondent: (a) Exhibit 1 -- Amended November 1997, Rederick’s marriage with Editha Samson.
Answer;[56] (b) Exhibit 2 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. Recio;[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. Recio and Grace J. Garcia Recio since ISSUE: Whether the decree of divorce submitted by Rederick Recio is
October 22, 1995.[60] admissible as evidence to prove his legal capacity to marry petitioner
and absolved him of bigamy.
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 petitioners
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 HELD:
personal law governing his status; or at the very least, to prove his legal
capacity to contract the second marriage.

Neither can we grant petitioners 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 petitioners 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.
The nullity of Rederick’s marriage with Editha as shown by the divorce
decree issued was valid and recognized in the Philippines since the
respondent is a naturalized Australian. However, there is absolutely no
evidence that proves respondent’s legal capacity to marry petitioner
though the former presented a divorce decree. The said decree, being
a foreign document was inadmissible to court as evidence primarily
because it was not authenticated by the consul/ embassy of the
country where it will be used.

WHEREFORE, in the interest of orderly procedure and

substantial justice, we REMAND the case to the court a quo for the
purpose of receiving evidence which conclusively show respondents 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.
Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.
Under Sections 24 and 25 of Rule 132, 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:

Case Digest (a) accompanied by a certificate issued by the proper diplomatic or

consular officer in the Philippine foreign service stationed in the foreign
Garcia-Recio vs. Recio country in which the record is kept and

TITLE: Grace J. Garcia-Recio v Rederick A. Recio (b) authenticated by the seal of his office.
14
Thus, the Supreme Court remands the case to the Regional Trial Court
of Cabanatuan City to receive or trial evidence that will conclusively
prove respondent’s legal capacity to marry petitioner and thus free him
on the ground of bigamy.
[G.R. No. 142820. June 20, 2003]
WOLFGANG O. ROEHR, petitioner, vs. MARIA CARMEN D.
RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-
SALONGA, Presiding Judge of Makati RTC, Branch
149, respondents.
DECISION
QUISUMBING, J.:
At the core of the present controversy are issues of (a) grave
abuse of discretion allegedly committed by public respondent and
(b) lack of jurisdiction of the regional trial court, in matters that
spring from a divorce decree obtained abroad by petitioner.
In this special civil action for certiorari, petitioner assails (a)
the order[1] dated September 30, 1999 of public respondent Judge
Josefina Guevara-Salonga, Presiding Judge of Makati Regional
Trial Court,[2] Branch 149, in Civil Case No. 96-1389 for declaration
of nullity of marriage, and (b) the order[3] dated March 31, 2000
denying his motion for reconsideration. The assailed orders
partially set aside the trial courts order dismissing Civil Case No.
96-1389, for the purpose of resolving issues relating to the property
settlement of the spouses and the custody of their children.
Petitioner Wolfgang O. Roehr, a German citizen and resident
of Germany, married private respondent Carmen Rodriguez, a
Filipina, on December 11, 1980 in Hamburg, Germany.Their
marriage was subsequently ratified on February 14, 1981 in
Tayasan, Negros Oriental.[4] Out of their union were born
Carolynne and Alexandra Kristine on November 18, 1981 and
October 25, 1987, respectively.
On August 28, 1996, private respondent filed a petition[5] for
declaration of nullity of marriage before the Regional Trial Court
(RTC) of Makati City. On February 6, 1997, petitioner filed a motion
to dismiss,[6] but it was denied by the trial court in its order[7] dated
May 28, 1997.
On June 5, 1997, petitioner filed a motion for
reconsideration, but was also denied in an order[8] dated August
13, 1997. On September 5, 1997, petitioner filed a petition for
certiorari with the Court of Appeals. On November 27, 1998, the
appellate court denied the petition and remanded the case to the
RTC.
Meanwhile, petitioner obtained a decree of divorce from the
Court of First Instance of Hamburg-Blankenese, promulgated on
December 16, 1997. The decree provides in part:
[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has
ruled through Judge van Buiren of the Court of First Instance on the
basis of the oral proceedings held on 4 Nov. 1997:
The marriage of the Parties contracted on 11 December 1980 before the
Civil Registrar of Hamburg-Altona is hereby dissolved.
The parental custody for the children
Carolynne Roehr, born 18 November 1981
15
Alexandra Kristine Roehr, born on 25 October 1987
is granted to the father.
The litigation expenses shall be assumed by the Parties.[9]
In view of said decree, petitioner filed a Second Motion to
Dismiss on May 20, 1999 on the ground that the trial court had no
jurisdiction over the subject matter of the action or suit as a decree
of divorce had already been promulgated dissolving the marriage
of petitioner and private respondent.
On July 14, 1999, Judge Guevara-Salonga issued an order
granting petitioners motion to dismiss. Private respondent filed a
Motion for Partial Reconsideration, with a prayer that the case
proceed for the purpose of determining the issues of custody of
children and the distribution of the properties between petitioner
and private respondent.
On August 18, 1999, an Opposition to the Motion for Partial
Reconsideration was filed by the petitioner on the ground that there
is nothing to be done anymore in the instant case as the marital tie
between petitioner Wolfgang Roehr and respondent Ma. Carmen
D. Rodriguez had already been severed by the decree of divorce
promulgated by the Court of First Instance of Hamburg, Germany
on December 16, 1997 and in view of the fact that said decree of
divorce had already been recognized by the RTC in its order of July
14, 1999, through the implementation of the mandate of Article 26
of the Family Code,[10] endowing the petitioner with the capacity to
remarry under the Philippine law.
On September 30, 1999, respondent judge issued the
assailed order partially setting aside her order dated July 14, 1999
for the purpose of tackling the issues of property relations of the
spouses as well as support and custody of their children. The
pertinent portion of said order provides:
Acting on the Motion for Partial Reconsideration of the Order dated July
14, 1999 filed by petitioner thru counsel which was opposed by
respondent and considering that the second paragraph of Article 26 of
the Family Code was included as an amendment thru Executive Order
227, to avoid the absurd situation of a Filipino as being still married to
his or her alien spouse though the latter is no longer married to the
Filipino spouse because he/she had obtained a divorce abroad which is
recognized by his/her national law, and considering further the effects of
the termination of the marriage under Article 43 in relation to Article 50
and 52 of the same Code, which include the dissolution of the property
relations of the spouses, and the support and custody of their children,
the Order dismissing this case is partially set aside with respect to these
matters which may be ventilated in this Court.
SO ORDERED.[11] (Emphasis supplied.)
Petitioner filed a timely motion for reconsideration on
October 19, 1999, which was denied by respondent judge in an
order dated March 31, 2000.[12]
Petitioner ascribes lack of jurisdiction of the trial court and
grave abuse of discretion on the part of respondent judge. He cites
as grounds for his petition the following:
1. PARTIALLY SETTING ASIDE THE ORDER DATED
JULY 14, 1999 DISMISSING THE INSTANT
CASE IS NOT ALLOWED BY 1997 RULES OF
CIVIL PROCEDURE.[13]
2. RESPONDENT MARIA CARMEN RODRIGUEZ BY
HER MOTION FOR PARTIAL
RECONSIDERATION HAD RECOGNIZED
AND ADMITTED THE DIVORCE DECISION
OBTAINED BY HER EX-HUSBAND IN
HAMBURG, GERMANY.[14]
 3. THERE IS NOTHING LEFT TO BE TACKLED BY
THE HONORABLE COURT AS THERE ARE NO
CONJUGAL ASSETS ALLEGED IN THE
PETITION FOR ANNULMENT OF MARRIAGE
AND IN THE DIVORCE PETITION, AND THE
CUSTODY OF THE CHILDREN HAD ALREADY
BEEN AWARDED TO PETITIONER
WOLFGANG ROEHR.[15]
Pertinent in this case before us are the following issues:
1. Whether or not respondent judge gravely abused her
discretion in issuing her order dated September 30,
1999, which partially modified her order dated July 14,
1999; and
2. Whether or not respondent judge gravely abused her
discretion when she assumed and retained jurisdiction
over the present case despite the fact that petitioner has
already obtained a divorce decree from a German court.
On the first issue, petitioner asserts that the assailed order
of respondent judge is completely inconsistent with her previous
order and is contrary to Section 3, Rule 16, Rules of Civil
Procedure, which provides:
Sec. 3. Resolution of motion - After the hearing, the court may dismiss
the action or claim, deny the motion, or order the amendment of the
pleading.
The court shall not defer the resolution of the motion for the reason that
the ground relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons
therefor. (Emphasis supplied.)
Petitioner avers that a courts action on a motion is limited to
dismissing the action or claim, denying the motion, or ordering the
amendment of the pleading.
Private respondent, on her part, argues that the RTC can
validly reconsider its order dated July 14, 1999 because it had not
yet attained finality, given the timely filing of respondents motion
for reconsideration.
Pertinent to this issue is Section 3 in relation to Section 7,
Rule 37 of the 1997 Rules of Civil Procedure, which provides:
Sec. 3. Action upon motion for new trial or reconsideration.The trial
court may set aside the judgment or final order and grant a new trial,
upon such terms as may be just, or may deny the motion. If the court
finds that excessive damages have been awarded or that the judgment or
final order is contrary to the evidence or law, it may amend such
judgment or final order accordingly.
Sec. 7. Partial new trial or reconsideration.If the grounds for a motion
under this Rule appear to the court to affect the issues as to only a part,
or less than all of the matters in controversy, or only one, or less than all,
of the parties to it, the court may order a new trial or grant
reconsideration as to such issues if severable without interfering with
the judgment or final order upon the rest. (Emphasis supplied.)
It is clear from the foregoing rules that a judge can order a
partial reconsideration of a case that has not yet attained finality.
Considering that private respondent filed a motion for
reconsideration within the reglementary period, the trial court's
decision of July 14, 1999 can still be modified. Moreover, in Saado
v. Court of Appeals,[16] we held that the court could modify or alter
a judgment even after the same has become executory whenever
circumstances transpire rendering its decision unjust and
inequitable, as where certain facts and circumstances justifying or
requiring such modification or alteration transpired after the
16
judgment has become final and executory[17] and when it becomes
imperative in the higher interest of justice or when supervening
events warrant it.[18] In our view, there are even more compelling
reasons to do so when, as in this case, judgment has not yet
attained finality.
Anent the second issue, petitioner claims that respondent
judge committed grave abuse of discretion when she partially set
aside her order dated July 14, 1999, despite the fact that petitioner
has already obtained a divorce decree from the Court of First
Instance of Hamburg, Germany.
In Garcia v. Recio,[19] Van Dorn v. Romillo,
Jr.,[20] and Llorente v. Court of Appeals,[21] we consistently held that
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. Relevant to the present case is Pilapil v. Ibay-
Somera,[22] where this Court specifically recognized the validity of
a divorce obtained by a German citizen in his country, the Federal
Republic of Germany. We held in Pilapil that a foreign divorce and
its legal effects may be recognized in the Philippines insofar as
respondent is concerned in view of the nationality principle in our
civil law on the status of persons.
In this case, the divorce decree issued by the German court
dated December 16, 1997 has not been challenged by either of the
parties. In fact, save for the issue of parental custody, even the trial
court recognized said decree to be valid and binding, thereby
endowing private respondent the capacity to remarry. Thus, the
present controversy mainly relates to the award of the custody of
their two children, Carolynne and Alexandra Kristine, to petitioner.
As a general rule, divorce decrees obtained by foreigners in
other countries are recognizable in our jurisdiction, but the legal
effects thereof, e.g. on custody, care and support of the children,
must still be determined by our courts.[23] Before our courts can
give the effect of res judicata to a foreign judgment, such as the
award of custody to petitioner by the German court, it must be
shown that the parties opposed to the judgment had been given
ample opportunity to do so on grounds allowed under Rule 39,
Section 50 of the Rules of Court (now Rule 39, Section 48, 1997
Rules of Civil Procedure), to wit:
SEC. 50. Effect of foreign judgments. - The effect of a judgment of a
tribunal of a foreign country, having jurisdiction to pronounce the
judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is
conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is presumptive
evidence of a right as between the parties and their successors in interest
by a subsequent title; but the judgment may be repelled by evidence of a
want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
It is essential that there should be an opportunity to
challenge the foreign judgment, in order for the court in this
jurisdiction to properly determine its efficacy. In this jurisdiction, our
Rules of Court clearly provide that with respect to actions in
personam, as distinguished from actions in rem, a foreign
judgment merely constitutes prima facie evidence of the justness
of the claim of a party and, as such, is subject to proof to the
contrary.[24]
In the present case, it cannot be said that private respondent
was given the opportunity to challenge the judgment of the German
court so that there is basis for declaring that judgment as res
judicata with regard to the rights of petitioner to have parental
custody of their two children. The proceedings in the German court
were summary. As to what was the extent of private respondents
participation in the proceedings in the German court, the records
remain unclear. The divorce decree itself states that neither has
she commented on the proceedings[25] nor has she given her
opinion to the Social Services Office.[26] Unlike petitioner who was
represented by two lawyers, private respondent had no counsel to
assist her in said proceedings.[27]More importantly, the divorce
judgment was issued to petitioner by virtue of the German Civil
Code provision to the effect that when a couple lived separately for
three years, the marriage is deemed irrefutably dissolved. The
decree did not touch on the issue as to who the offending spouse
was. Absent any finding that private respondent is unfit to obtain
custody of the children, the trial court was correct in setting the
issue for hearing to determine the issue of parental custody, care,
support and education mindful of the best interests of the children.
This is in consonance with the provision in the Child and Youth
Welfare Code that the childs welfare is always the paramount
consideration in all questions concerning his care and custody. [28]
On the matter of property relations, petitioner asserts that
public respondent exceeded the bounds of her jurisdiction when
she claimed cognizance of the issue concerning property relations
between petitioner and private respondent. Private respondent
herself has admitted in Par. 14 of her petition for declaration of
nullity of marriage dated August 26, 1996 filed with the RTC of
Makati, subject of this case, that: [p]etitioner and respondent have
not acquired any conjugal or community property nor have they
incurred any debts during their marriage.[29]Herein petitioner did not
contest this averment. Basic is the rule that a court shall grant relief
warranted by the allegations and the proof.[30] Given the factual
admission by the parties in their pleadings that there is no property
to be accounted for, respondent judge has no basis to assert
jurisdiction in this case to resolve a matter no longer deemed in
controversy.
In sum, we find that respondent judge may proceed to
determine the issue regarding the custody of the two children born
of the union between petitioner and private respondent.Private
respondent erred, however, in claiming cognizance to settle the
matter of property relations of the parties, which is not at issue.
WHEREFORE, the orders of the Regional Trial Court of
Makati, Branch 149, issued on September 30, 1999 and March 31,
2000 are AFFIRMED with MODIFICATION. We hereby declare
that the trial court has jurisdiction over the issue between the
parties as to who has parental custody, including the care, support
and education of the children, namely Carolynne and Alexandra
Kristine Roehr. Let the records of this case be remanded promptly
to the trial court for continuation of appropriate proceedings. No
pronouncement as to costs.
SO ORDERED.
Bellosillo, (Chairman), and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on official leave.
Case Digest
Roehr v. Rodriguez
G.R. No. 142820, 20 June 2003
FACTS:
Wife Rodriguez filed for declaration of nullity of marriage, which
was subsequently moved for dismissal by husband Roehr, a
German national. Pending decision, the husband obtained a
decree of divorce from a German Court, providing for (1) the
dissolution of their marriage and (2) the grant of parental custody
of the children to Roehr.
Thereafter, wife moved for partial reconsideration with a prayer
that the case proceed for the purpose of determining the issues of
custody of children and the distribution of the properties between
17
the Roehr and Rodriguez. Motion was granted and thus
challenged by Roehr.
ISSUE:
W/N there is nothing left to be tackled by the Court since there
are no conjugal properties alleged in the annulment and the
divorce decree provides for the finality of the custody of children.
RULING:
No. As a general rule, divorce decrees obtained by foreigners in
other countries are recognizable in our jurisdiction, but the legal
effects thereof, e.g. on custody, care and support of the children,
must be determined by our courts. The Court held that before our
courts can give the effect of res judicata to a foreign judgment,
such as the award of custody to petitioner by the German court, it
must be shown that the parties opposed to the judgment had
been given ample opportunity to do so on grounds allowed under
Rule 39, Section 50 of the Rules of Court.
Pursuant to Article 26 of the Family Code, 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. (As amended by
Executive Order 227)
Moreover, Section 50 of the Rules of Court states that the effect
of a judgment of a tribunal of a foreign country, having jurisdiction
to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is
conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is
presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title; but the judgment
may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact.
Since the proceedings in the German court were summary, the
wife was not given opportunity to challenge said judgment.
Therefore, the divorce decree did not provide for the finality of the
custody of children.
* Case digest by Immanuel Y. Granada, LLB-1, Andres Bonifacio
Law School, SY 2017-2018
G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors
appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A.
Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from
an order of the Court of First Instance of Manila dated April 30,
1964, approving the project of partition filed by the executor in
Civil Case No. 37089 therein.1äwphï1.ñët
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of
Texas and of the United States." By his first wife, Mary E. Mallen,
whom he divorced, he had five legitimate children: Edward A.
Bellis, George Bellis (who pre-deceased him in infancy), Henry A.
Bellis, Alexander Bellis and Anna Bellis Allsman; by his second
wife, Violet Kennedy, who survived him, he had three legitimate
children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and
finally, he had three illegitimate children: Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes, obligations,
and expenses of administration are paid for, his distributable
estate should be divided, in trust, in the following order and
manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b)
P120,000.00 to his three illegitimate children, Amos Bellis, Jr.,
Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each
and (c) after the foregoing two items have been satisfied, the
remainder shall go to his seven surviving children by his first and
second wives, namely: Edward A. Bellis, Henry A. Bellis,
Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter
S. Bellis, and Dorothy E. Bellis, in equal shares.1äwphï1.ñët
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident
of San Antonio, Texas, U.S.A. His will was admitted to probate in
the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will,
paid all the bequests therein including the amount of $240,000.00
in the form of shares of stock to Mary E. Mallen and to the three
(3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis, various amounts totalling P40,000.00 each
in satisfaction of their respective legacies, or a total of
P120,000.00, which it released from time to time according as the
lower court approved and allowed the various motions or petitions
filed by the latter three requesting partial advances on account of
their respective legacies.
On January 8, 1964, preparatory to closing its administration, the
executor submitted and filed its "Executor's Final Account, Report
of Administration and Project of Partition" wherein it
reported, inter alia, the satisfaction of the legacy of Mary E.
Mallen by the delivery to her of shares of stock amounting to
$240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis in the amount of P40,000.00 each
or a total of P120,000.00. In the project of partition, the executor
— pursuant to the "Twelfth" clause of the testator's Last Will and
Testament — divided the residuary estate into seven equal
portions for the benefit of the testator's seven legitimate children
by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma
Bellis filed their respective oppositions to the project of partition
on the ground that they were deprived of their legitimes as
illegitimate children and, therefore, compulsory heirs of the
deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him,
proof of service of which is evidenced by the registry receipt
submitted on April 27, 1964 by the executor.1
18
After the parties filed their respective memoranda and other
pertinent pleadings, the lower court, on April 30, 1964, issued an
order overruling the oppositions and approving the executor's
final account, report and administration and project of partition.
Relying upon Art. 16 of the Civil Code, it applied the national law
of the decedent, which in this case is Texas law, which did not
provide for legitimes.
Their respective motions for reconsideration having been denied
by the lower court on June 11, 1964, oppositors-appellants
appealed to this Court to raise the issue of which law must apply
— Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor even
discuss, the doctrine of renvoi, applied by this Court in Aznar v.
Christensen Garcia, L-16749, January 31, 1963. Said doctrine is
usually pertinent where the decedent is a national of one country,
and a domicile of another. In the present case, it is not disputed
that the decedent was both a national of Texas and a domicile
thereof at the time of his death.2 So that even assuming Texas
has a conflict of law rule providing that the domiciliary system
(law of the domicile) should govern, the same would not result in
a reference back (renvoi) to Philippine law, but would still refer to
Texas law. Nonetheless, if Texas has a conflicts rule adopting the
situs theory (lex rei sitae) calling for the application of the law of
the place where the properties are situated, renvoi would arise,
since the properties here involved are found in the Philippines. In
the absence, however, of proof as to the conflict of law rule of
Texas, it should not be presumed different from ours.3 Appellants'
position is therefore not rested on the doctrine of renvoi. As
stated, they never invoked nor even mentioned it in their
arguments. Rather, they argue that their case falls under the
circumstances mentioned in the third paragraph of Article 17 in
relation to Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render
applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a) the order
of succession; (b) the amount of successional rights; (e) the
intrinsic validity of the provisions of the will; and (d) the capacity
to succeed. They provide that —
ART. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary successions, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may he the nature of the
property and regardless of the country wherein said
property may be found.
ART. 1039. Capacity to succeed is governed by the law
of the nation of the decedent.
Appellants would however counter that Art. 17, paragraph three,
of the Civil Code, stating that —
Prohibitive laws concerning persons, their acts or
property, and those which have for their object public
order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated,
or by determinations or conventions agreed upon in a
foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-
quoted. This is not correct. Precisely, Congress deleted the
phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil ISSUE:
Code as Art. 17 of the new Civil Code, while reproducing without
substantial change the second paragraph of Art. 10 of the old
Whether or not the Philippine law be applied in the case in the
Civil Code as Art. 16 in the new. It must have been their purpose
determination of the illegitimate children’s successional rights
to make the second paragraph of Art. 16 a specific provision in
itself which must be applied in testate and intestate succession.
As further indication of this legislative intent, Congress added a RULING:
new provision, under Art. 1039, which decrees that capacity to
succeed is to be governed by the national law of the decedent.
Court ruled that provision in a foreigner’s will to the effect that his
properties shall be distributed in accordance with Philippine law
It is therefore evident that whatever public policy or good customs and not with his national law, is illegal and void, for his national law
may be involved in our System of legitimes, Congress has not cannot be ignored in view of those matters that Article 10 — now
intended to extend the same to the succession of foreign Article 16 — of the Civil Code states said national law should
nationals. For it has specifically chosen to leave, inter alia, govern.
the amount of successional rights, to the decedent's national law.
Specific provisions must prevail over general ones.
Where the testator was a citizen of Texas and domiciled in Texas,
the intrinsic validity of his will should be governed by his national
Appellants would also point out that the decedent executed two law. Since Texas law does not require legitimes, then his will, which
wills — one to govern his Texas estate and the other his deprived his illegitimate children of the legitimes, is valid.
Philippine estate — arguing from this that he intended Philippine
law to govern his Philippine estate. Assuming that such was the
decedent's intention in executing a separate Philippine will, it The Supreme Court held that the illegitimate children are not
would not alter the law, for as this Court ruled in Miciano v. Brimo, entitled to the legitimes under the texas law, which is the national
law of the deceased.
50 Phil. 867, 870, a provision in a foreigner's will to the effect that
his properties shall be distributed in accordance with Philippine
law and not with his national law, is illegal and void, for his
national law cannot be ignored in regard to those matters that
Article 10 — now Article 16 — of the Civil Code states said
national law should govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen
of the State of Texas, U.S.A., and that under the laws of Texas,
there are no forced heirs or legitimes. Accordingly, since the
intrinsic validity of the provision of the will and the amount of
successional rights are to be determined under Texas law, the
Philippine law on legitimes cannot be applied to the testacy of
Amos G. Bellis.

Wherefore, the order of the probate court is hereby affirmed in

toto, with costs against appellants. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal,

Zaldivar, Sanchez and Castro, JJ., concur.

Case digest

G.R. No. L-23678 (June 6, 1967)

Testate of Amos Bellis vs. Edward A. Bellis, et al

FACTS:

Amos G. Bellis was a citizen of the State of Texas and of the United
States. He had five legitimate children with his first wife (whom he
divorced), three legitimate children with his second wife (who
survived him) and, finally, three illegitimate children.

6 years prior Amos Bellis’ death, he executed two(2) wills,

apportioning the remainder of his estate and properties to his
seven surviving children. The appellants filed their oppositions to
the project of partition claiming that they have been deprived of
their legitimes to which they were entitled according to the
Philippine law. Appellants argued that the deceased wanted his
Philippine estate to be governed by the Philippine law, thus the
creation of two separate wills.

19