G.R. No. 80116 June 30, 1989
He claimed that
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
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.
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, directing the filing of two complaints for adultery
against the petitioner. 6 The complaints were accordingly filed
and were eventually 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
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 before or 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
— al., 24 after a divorce was granted by a United States court
'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
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, 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 before the 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.
Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We
consider the German absolute divorce as valid also in the
Philippines, the fact is that the husband in the instant case, by
the very act of his obtaining an absolute divorce in Germany
can no longer be considered as the offended party in case his
former wife actually has carnal knowledge with another,
because in divorcing her, he already implicitly authorized the
woman to have sexual relations with others. A contrary ruling
would be less than fair for a man, who is free to have sex will
be allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the
Supreme Court considered the absolute divorce between the
American husband and his American wife as valid and binding
in the Philippines on the theory that their status and capacity
are governed by their National law, namely, American law.
There is no decision yet of the Supreme Court regarding the
validity of such a divorce if one of the parties, say an
American, is married to a Filipino wife, for then two (2) different
nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private
International Law and precisely because of the National
law doctrine, he considers the absolute divorce as valid insofar
as the American husband is concerned but void insofar as the
Filipino wife is involved. This results in what he calls a "socially
grotesque situation," where a Filipino woman is still married to
a man who is no longer her husband. It is the opinion however,
of the undersigned that very likely the opposite expresses the
correct view. While under the national law of the husband the
absolute divorce will be valid, still one of the exceptions to the
application of the proper foreign law (one of the exceptions to
comity) is when the foreign law will work an injustice or injury
to the people or residents of the forum. Consequently since to
recognize the absolute divorce as valid on the part of the
husband would be injurious or prejudicial to the Filipino wife
whose marriage would be still valid under her national law, it
would seem that under our law existing before the new Family
Code (which took effect on August 3, 1988) the divorce should
be considered void both with respect to the American husband
and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985])
cannot apply despite the fact that the husband was an
American can with a Filipino wife because in said case the
validity of the divorce insofar as the Filipino wife is concerned
was NEVER put in issue.
Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We whose marriage would be still valid under her national law, it
consider the German absolute divorce as valid also in the would seem that under our law existing before the new Family
Philippines, the fact is that the husband in the instant case, by Code (which took effect on August 3, 1988) the divorce should
the very act of his obtaining an absolute divorce in Germany be considered void both with respect to the American husband
can no longer be considered as the offended party in case his and the Filipino wife.
former wife actually has carnal knowledge with another,
because in divorcing her, he already implicitly authorized the The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985])
woman to have sexual relations with others. A contrary ruling cannot apply despite the fact that the husband was an
would be less than fair for a man, who is free to have sex will American can with a Filipino wife because in said case the
be allowed to deprive the woman of the same privilege. validity of the divorce insofar as the Filipino wife is concerned
was NEVER put in issue.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the
Supreme Court considered the absolute divorce between the
American husband and his American wife as valid and binding
in the Philippines on the theory that their status and capacity
are governed by their National law, namely, American law.
There is no decision yet of the Supreme Court regarding the
validity of such a divorce if one of the parties, say an
American, is married to a Filipino wife, for then two (2) different
nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private

International Law and precisely because of the National
law doctrine, he considers the absolute divorce as valid insofar
as the American husband is concerned but void insofar as the
Filipino wife is involved. This results in what he calls a "socially
grotesque situation," where a Filipino woman is still married to
a man who is no longer her husband. It is the opinion however,
of the undersigned that very likely the opposite expresses the
correct view. While under the national law of the husband the
absolute divorce will be valid, still one of the exceptions to the
application of the proper foreign law (one of the exceptions to
comity) is when the foreign law will work an injustice or injury
to the people or residents of the forum. Consequently since to
recognize the absolute divorce as valid on the part of the
husband would be injurious or prejudicial to the Filipino wife
G.R. No. 154380 October 5, 2005
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
CIPRIANO ORBECIDO III, Respondent.
DECISION
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens, where
one party is later naturalized as a foreign citizen and obtains a
valid divorce decree capacitating him or her to remarry, can
the Filipino spouse likewise remarry under Philippine law?
Before us is a case of first impression that behooves the Court
to make a definite ruling on this apparently novel question,
presented as a pure question of law.
In this petition for review, the Solicitor General assails
the Decision1 dated May 15, 2002, of the Regional Trial Court
of Molave, Zamboanga del Sur, Branch 23 and
its Resolution2 dated July 4, 2002 denying the motion for
reconsideration. The court a quo had declared that herein
respondent Cipriano Orbecido III is capacitated to remarry.
The fallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of the second
paragraph of Art. 26 of the Family Code and by reason of the
divorce decree obtained against him by his American wife, the
petitioner is given the capacity to remarry under the Philippine
Law.
IT IS SO ORDERED.3
The factual antecedents, as narrated by the trial court, are as
follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros
M. Villanueva at the United Church of Christ in the Philippines
in Lam-an, Ozamis City. Their marriage was blessed with a
son and a daughter, Kristoffer Simbortriz V. Orbecido and
Lady Kimberly V. Orbecido.
In 1986, Cipriano’s wife left for the United States bringing
along their son Kristoffer. A few years later, Cipriano
discovered that his wife had been naturalized as an American
citizen.
Sometime in 2000, Cipriano learned from his son that his wife
had obtained a divorce decree and then married a certain
Innocent Stanley. She, Stanley and her child by him currently
live at 5566 A. Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for
authority to remarry invoking Paragraph 2 of Article 26 of the
Family Code. No opposition was filed. Finding merit in the
petition, the court granted the same. The Republic, herein
petitioner, through the Office of the Solicitor General (OSG),
sought reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY
UNDER ARTICLE 26 OF THE FAMILY CODE4
The OSG contends that Paragraph 2 of Article 26 of the
Family Code is not applicable to the instant case because it
only applies to a valid mixed marriage; that is, a marriage
celebrated between a Filipino citizen and an alien. The proper
remedy, according to the OSG, is to file a petition for
annulment or for legal separation.5 Furthermore, the OSG
argues there is no law that governs respondent’s situation.
The OSG posits that this is a matter of legislation and not of
judicial determination.6
For his part, respondent admits that Article 26 is not directly
applicable to his case but insists that when his naturalized
alien wife obtained a divorce decree which capacitated her to
remarry, he is likewise capacitated by operation of law
pursuant to Section 12, Article II of the Constitution.7
At the outset, we note that the petition for authority to remarry
filed before the trial court actually constituted a petition for
declaratory relief. In this connection, Section 1, Rule 63 of the
Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1. Who may file petition—Any person interested under
a deed, will, contract or other written instrument, or whose
rights are affected by a statute, executive order or regulation,
ordinance, or other governmental regulation may, before
breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction
or validity arising, and for a declaration of his rights or duties,
thereunder.
...
The requisites of a petition for declaratory relief are: (1) there
must be a justiciable controversy; (2) the controversy must be
between persons whose interests are adverse; (3) that the
party seeking the relief has a legal interest in the controversy;
and (4) that the issue is ripe for judicial determination.8
This case concerns the applicability of Paragraph 2 of Article
26 to a marriage between two Filipino citizens where one later
acquired alien citizenship, obtained a divorce decree, and
remarried while in the U.S.A. The interests of the parties are
also adverse, as petitioner representing the State asserts its
duty to protect the institution of marriage while respondent, a
private citizen, insists on a declaration of his capacity to
remarry. Respondent, praying for relief, has legal interest in
the controversy. The issue raised is also ripe for judicial
determination inasmuch as when respondent remarries,
litigation ensues and puts into question the validity of his
second marriage.
Coming now to the substantive issue, does Paragraph 2 of
Article 26 of the Family Code apply to the case of respondent?
Necessarily, we must dwell on how this provision had come
about in the first place, and what was the intent of the
legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into
law Executive Order No. 209, otherwise known as the "Family
Code," which took effect on August 3, 1988. Article 26 thereof
states:
All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid
in this country, except those prohibited under Articles 35, 37,
and 38.
On July 17, 1987, shortly after the signing of the original
Family Code, Executive Order No. 227 was likewise signed
into law, amending Articles 26, 36, and 39 of the Family Code.
A second paragraph was added to Article 26. As so amended,
it now provides:
ART. 26. All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid
in this country, except those prohibited under Articles 35(1),
(4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under
Philippine law. (Emphasis supplied)
On its face, the foregoing provision does not appear to govern
the situation presented by the case at hand. It seems to apply
only to cases where at the time of the celebration of the
marriage, the parties are a Filipino citizen and a foreigner. The
instant case is one where at the time the marriage was
solemnized, the parties were two Filipino citizens, but later on,
the wife was naturalized as an American citizen and
subsequently obtained a divorce granting her capacity to
remarry, and indeed she remarried an American citizen while
residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings9 on the
Family Code, the Catholic Bishops’ Conference of the
Philippines (CBCP) registered the following objections to
Paragraph 2 of Article 26:
1. The rule is discriminatory. It discriminates against those
whose spouses are Filipinos who divorce them abroad. These
spouses who are divorced will not be able to re-marry, while
the spouses of foreigners who validly divorce them abroad
can.
2. This is the beginning of the recognition of the validity of
divorce even for Filipino citizens. For those whose foreign
spouses validly divorce them abroad will also be considered to
be validly divorced here and can re-marry. We propose that
this be deleted and made into law only after more widespread
consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations
showed that the intent of Paragraph 2 of Article 26, according
to Judge Alicia Sempio-Diy, a member of the Civil Code
Revision Committee, is to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the
1985 case of Van Dorn v. Romillo, Jr.10 The Van Dorn case
involved a marriage between a Filipino citizen and a foreigner.
The Court held therein that a divorce decree validly obtained
by the alien spouse is valid in the Philippines, and
consequently, the Filipino spouse is capacitated to remarry
under Philippine law.
Does the same principle apply to a case where at the time of
the celebration of the marriage, the parties were Filipino
citizens, but later on, one of them obtains a foreign citizenship
by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita
v. Court of Appeals.11 In Quita, the parties were, as in this
case, Filipino citizens when they got married. The wife became
a naturalized American citizen in 1954 and obtained a divorce
in the same year. The Court therein hinted, by way of obiter
dictum, that a Filipino divorced by his naturalized foreign
spouse is no longer married under Philippine law and can thus
remarry.
Thus, taking into consideration the legislative intent and
applying the rule of reason, we hold that Paragraph 2 of Article
26 should be interpreted to include cases involving parties
who, at the time of the celebration of the marriage were
Filipino citizens, but later on, one of them becomes naturalized
as a foreign citizen and obtains a divorce decree. The Filipino
spouse should likewise be allowed to remarry as if the other
party were a foreigner at the time of the solemnization of the
marriage. To rule otherwise would be to sanction absurdity
and injustice. Where the interpretation of a statute according to
its exact and literal import would lead to mischievous results or
contravene the clear purpose of the legislature, it should be
construed according to its spirit and reason, disregarding as
far as necessary the letter of the law. A statute may therefore
be extended to cases not within the literal meaning of its
terms, so long as they come within its spirit or intent.12
If we are to give meaning to the legislative intent to avoid the
absurd situation where the Filipino spouse remains married to
the alien spouse who, after obtaining a divorce is no longer
married to the Filipino spouse, then the instant case must be
deemed as coming within the contemplation of Paragraph 2 of
Article 26.
In view of the foregoing, we state the twin elements for the
application of Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has been celebrated between
a Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the
time of the celebration of the marriage, but their citizenship at
the time a valid divorce is obtained abroad by the alien spouse
capacitating the latter to remarry.
In this case, when Cipriano’s wife was naturalized as an
American citizen, there was still a valid marriage that has been
celebrated between her and Cipriano. As fate would have it,
the naturalized alien wife subsequently obtained a valid
divorce capacitating her to remarry. Clearly, the twin requisites
for the application of Paragraph 2 of Article 26 are both
present in this case. Thus Cipriano, the "divorced" Filipino
spouse, should be allowed to remarry.
We are also unable to sustain the OSG’s theory that the
proper remedy of the Filipino spouse is to file either a petition
for annulment or a petition for legal separation. Annulment
would be a long and tedious process, and in this particular
case, not even feasible, considering that the marriage of the
parties appears to have all the badges of validity. On the other
hand, legal separation would not be a sufficient remedy for it
would not sever the marriage tie; hence, the legally separated
Filipino spouse would still remain married to the naturalized
alien spouse.
However, we note that the records are bereft of competent
evidence duly submitted by respondent concerning the divorce
decree and the naturalization of respondent’s wife. It is settled
rule that one who alleges a fact has the burden of proving it
and mere allegation is not evidence.13
Accordingly, for his plea to prosper, respondent herein must
prove his allegation that his wife was naturalized as an
American citizen. Likewise, before a foreign divorce decree
can be recognized by our own courts, the party pleading it
must prove the divorce as a fact and demonstrate its
conformity to the foreign law allowing it.14 Such foreign law
must also be proved as our courts cannot take judicial notice
of foreign laws. Like any other fact, such laws must be alleged
and proved.15 Furthermore, respondent must also show that
the divorce decree allows his former wife to remarry as
specifically required in Article 26. Otherwise, there would be
no evidence sufficient to declare that he is capacitated to enter
into another marriage.
Nevertheless, we are unanimous in our holding that Paragraph
2 of Article 26 of the Family Code (E.O. No. 209, as amended
by E.O. No. 227), should be interpreted to allow a Filipino
citizen, who has been divorced by a spouse who had acquired
foreign citizenship and remarried, also to remarry. However,
considering that in the present petition there is no sufficient
evidence submitted and on record, we are unable to declare,
based on respondent’s bare allegations that his wife, who was
naturalized as an American citizen, had obtained a divorce
decree and had remarried an American, that respondent is
now capacitated to remarry. Such declaration could only be
made properly upon respondent’s submission of the aforecited
evidence in his favor.
ACCORDINGLY, the petition by the Republic of the
Philippines is GRANTED. The assailed Decision dated May
15, 2002, and Resolution dated July 4, 2002, of the Regional
Trial Court of Molave, Zamboanga del Sur, Branch 23, are
hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 186571 August 11, 2010
GERBERT R. CORPUZ, Petitioner,
vs.
DAISYLYN TIROL STO. TOMAS and The SOLICITOR
GENERAL, Respondents.
DECISION
BRION, J.:
Before the Court is a direct appeal from the decision1 of the
Regional Trial Court (RTC) of Laoag City, Branch 11, elevated
via a petition for review on certiorari2 under Rule 45 of the
Rules of Court (present petition).
Petitioner Gerbert R. Corpuz was a former Filipino citizen who
acquired Canadian citizenship through naturalization on
November 29, 2000.3 On January 18, 2005, Gerbert married
respondent Daisylyn T. Sto. Tomas, a Filipina, in Pasig
City.4 Due to work and other professional commitments,
Gerbert left for Canada soon after the wedding. He returned to
the Philippines sometime in April 2005 to surprise Daisylyn,
but was shocked to discover that his wife was having an affair
with another man. Hurt and disappointed, Gerbert returned to
Canada and filed a petition for divorce. The Superior Court of
Justice, Windsor, Ontario, Canada granted Gerbert’s petition
for divorce on December 8, 2005. The divorce decree took
effect a month later, on January 8, 2006.5
Two years after the divorce, Gerbert has moved on and has
found another Filipina to love. Desirous of marrying his new
Filipina fiancée in the Philippines, Gerbert went to the Pasig
City Civil Registry Office and registered the Canadian divorce
decree on his and Daisylyn’s marriage certificate. Despite the
registration of the divorce decree, an official of the National
Statistics Office (NSO) informed Gerbert that the marriage
between him and Daisylyn still subsists under Philippine law;
to be enforceable, the foreign divorce decree must first be
judicially recognized by a competent Philippine court, pursuant
to NSO Circular No. 4, series of 1982.6
Accordingly, Gerbert filed a petition for judicial recognition of
foreign divorce and/or declaration of marriage as dissolved
(petition) with the RTC. Although summoned, Daisylyn did not
file any responsive pleading but submitted instead a notarized
letter/manifestation to the trial court. She offered no opposition
to Gerbert’s petition and, in fact, alleged her desire to file a
similar case herself but was prevented by financial and
personal circumstances. She, thus, requested that she be
considered as a party-in-interest with a similar prayer to
Gerbert’s.
In its October 30, 2008 decision,7 the RTC denied Gerbert’s
petition. The RTC concluded that Gerbert was not the proper
party to institute the action for judicial recognition of the foreign
divorce decree as he is a naturalized Canadian citizen. It ruled
that only the Filipino spouse can avail of the remedy, under the
second paragraph of Article 26 of the Family Code,8 in order
for him or her to be able to remarry under Philippine
law.9 Article 26 of the Family Code reads:
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid
in this country, except those prohibited under Articles 35(1),
(4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall likewise have capacity to remarry
under Philippine law.
This conclusion, the RTC stated, is consistent with the
legislative intent behind the enactment of the second
paragraph of Article 26 of the Family Code, as determined by
the Court in Republic v. Orbecido III;10 the provision was
enacted to "avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino
spouse."11
THE PETITION
From the RTC’s ruling,12 Gerbert filed the present petition.13
Gerbert asserts that his petition before the RTC is essentially
for declaratory relief, similar to that filed in Orbecido; he, thus,
similarly asks for a determination of his rights under the
second paragraph of Article 26 of the Family Code. Taking into
account the rationale behind the second paragraph of Article
26 of the Family Code, he contends that the provision applies
as well to the benefit of the alien spouse. He claims that the
RTC ruling unduly stretched the doctrine in Orbecido by
limiting the standing to file the petition only to the Filipino
spouse – an interpretation he claims to be contrary to the
essence of the second paragraph of Article 26 of the Family
Code. He considers himself as a proper party, vested with
sufficient legal interest, to institute the case, as there is a
possibility that he might be prosecuted for bigamy if he marries
his Filipina fiancée in the Philippines since two marriage
certificates, involving him, would be on file with the Civil
Registry Office. The Office of the Solicitor General and
Daisylyn, in their respective Comments,14 both support
Gerbert’s position.
Essentially, the petition raises the issue of whether the second
paragraph of Article 26 of the Family Code extends to aliens
the right to petition a court of this jurisdiction for the recognition
of a foreign divorce decree.
THE COURT’S RULING
The alien spouse can claim no right under the second
paragraph of Article 26 of the Family Code as the substantive
right it establishes is in favor of the Filipino spouse
The resolution of the issue requires a review of the legislative
history and intent behind the second paragraph of Article 26 of
the Family Code.
The Family Code recognizes only two types of defective
marriages – void15 and voidable16 marriages. In both cases,
the basis for the judicial declaration of absolute nullity or
annulment of the marriage exists before or at the time of the
marriage. Divorce, on the other hand, contemplates the
dissolution of the lawful union for cause arising after the
marriage.17 Our family laws do not recognize absolute divorce
between Filipino citizens.18
Recognizing the reality that divorce is a possibility in marriages
between a Filipino and an alien, President Corazon C. Aquino,
in the exercise of her legislative powers under the Freedom
Constitution,19 enacted Executive Order No. (EO) 227,
amending Article 26 of the Family Code to its present wording,
as follows:
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid
in this country, except those prohibited under Articles 35(1),
(4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall likewise have capacity to remarry
under Philippine law.
Through the second paragraph of Article 26 of the Family
Code, EO 227 effectively incorporated into the law this Court’s
holding in Van Dorn v. Romillo, Jr.20 and Pilapil v. Ibay-
Somera.21 In both cases, the Court refused to acknowledge
the alien spouse’s assertion of marital rights after a foreign
court’s divorce decree between the alien and the Filipino. The
Court, thus, recognized that the foreign divorce had already
severed the marital bond between the spouses. The Court
reasoned in Van Dorn v. Romillo that:
To maintain x x x that, under our laws, [the Filipino spouse]
has to be considered still married to [the alien spouse] and still
subject to a wife's obligations x x x cannot be just. [The Filipino
spouse] should not be obliged to live together with, observe
respect and fidelity, and render support to [the alien spouse].
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.22
As the RTC correctly stated, the provision was included in the
law "to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after obtaining a
divorce, is no longer married to the Filipino spouse."23 The
legislative intent is for the benefit of the Filipino spouse, by
clarifying his or her marital status, settling the doubts created
by the divorce decree. Essentially, the second paragraph of
Article 26 of the Family Code provided the Filipino spouse a
substantive right to have his or her marriage to the alien
spouse considered as dissolved, capacitating him or her to
remarry.24 Without the second paragraph of Article 26 of the
Family Code, the judicial recognition of the foreign decree of
divorce, whether in a proceeding instituted precisely for that
purpose or as a related issue in another proceeding, would be
of no significance to the Filipino spouse since our laws do not
recognize divorce as a mode of severing the marital
bond;25 Article 17 of the Civil Code provides that the policy
against absolute divorces cannot be subverted by judgments
promulgated in a foreign country. The inclusion of the second
paragraph in Article 26 of the Family Code provides the direct
exception to this rule and serves as basis for recognizing the
dissolution of the marriage between the Filipino spouse and
his or her alien spouse.
Additionally, an action based on the second paragraph of
Article 26 of the Family Code is not limited to the recognition of
the foreign divorce decree. If the court finds that the decree
capacitated the alien spouse to remarry, the courts can
declare that the Filipino spouse is likewise capacitated to
contract another marriage. No court in this jurisdiction,
however, can make a similar declaration for the alien spouse
(other than that already established by the decree), whose
status and legal capacity are generally governed by his
national law.26
Given the rationale and intent behind the enactment, and the
purpose of the second paragraph of Article 26 of the Family
Code, the RTC was correct in limiting the applicability of the
provision for the benefit of the Filipino spouse. In other words,
only the Filipino spouse can invoke the second paragraph of
Article 26 of the Family Code; the alien spouse can claim no
right under this provision.
The foreign divorce decree is presumptive evidence of a right
that clothes the party with legal interest to petition for its
recognition in this jurisdiction
We qualify our above conclusion – i.e., that the second
paragraph of Article 26 of the Family Code bestows no rights
in favor of aliens – with the complementary statement that this
conclusion is not sufficient basis to dismiss Gerbert’s petition
before the RTC. In other words, the unavailability of the
second paragraph of Article 26 of the Family Code to aliens
does not necessarily strip Gerbert of legal interest to petition
the RTC for the recognition of his foreign divorce decree. The
foreign divorce decree itself, after its authenticity and
conformity with the alien’s national law have been duly proven
according to our rules of evidence, serves as a presumptive
evidence of right in favor of Gerbert, pursuant to Section 48,
Rule 39 of the Rules of Court which provides for the effect of
foreign judgments. This Section states:
SEC. 48. Effect of foreign judgments or final orders.—The
effect of a judgment or final order of a tribunal of a foreign
country, having jurisdiction to render the judgment or final
order is as follows:
(a) In case of a judgment or final order upon a specific
thing, the judgment or final order is conclusive upon the
title of the thing; and
(b) In case of a judgment or final order against a
person, the judgment or final order is presumptive
evidence of a right as between the parties and their
successors in interest by a subsequent title.
In either case, the judgment or final order 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.
To our mind, direct involvement or being the subject of the
foreign judgment is sufficient to clothe a party with the
requisite interest to institute an action before our courts for the
recognition of the foreign judgment. In a divorce situation, we
have declared, no less, that the divorce obtained by an alien
abroad may be recognized in the Philippines, provided the
divorce is valid according to his or her national law.27
The starting point in any recognition of a foreign divorce
judgment is the acknowledgment that our courts do not take
judicial notice of foreign judgments and laws. Justice Herrera
explained that, as a rule, "no sovereign is bound to give effect
within its dominion to a judgment rendered by a tribunal of
another country."28 This means that the foreign judgment and
its authenticity must be proven as facts under our rules on
evidence, together with the alien’s applicable national law to
show the effect of the judgment on the alien himself or
herself.29 The recognition may be made in an action instituted
specifically for the purpose or in another action where a party
invokes the foreign decree as an integral aspect of his claim or
defense.
In Gerbert’s case, since both the foreign divorce decree and
the national law of the alien, recognizing his or her capacity to
obtain a divorce, purport to be official acts of a sovereign
authority, Section 24, Rule 132 of the Rules of Court comes
into play. This Section requires proof, either by (1) official
publications or (2) copies attested by the officer having legal
custody of the documents. If the copies of official records are
not kept in the Philippines, these 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.
The records show that Gerbert attached to his petition a copy
of the divorce decree, as well as the required certificates
proving its authenticity,30 but failed to include a copy of the
Canadian law on divorce.31 Under this situation, we can, at this
point, simply dismiss the petition for insufficiency of supporting
evidence, unless we deem it more appropriate to remand the
case to the RTC to determine whether the divorce decree is
consistent with the Canadian divorce law.
We deem it more appropriate to take this latter course of
action, given the Article 26 interests that will be served and the
Filipina wife’s (Daisylyn’s) obvious conformity with the petition.
A remand, at the same time, will allow other interested parties
to oppose the foreign judgment and overcome a petitioner’s
presumptive evidence of a right by proving want of jurisdiction,
want of notice to a party, collusion, fraud, or clear mistake of
law or fact. Needless to state, every precaution must be taken
to ensure conformity with our laws before a recognition is
made, as the foreign judgment, once recognized, shall have
the effect of res judicata32 between the parties, as provided in
Section 48, Rule 39 of the Rules of Court.33
In fact, more than the principle of comity that is served by the
practice of reciprocal recognition of foreign judgments between
nations, the res judicata effect of the foreign judgments of
divorce serves as the deeper basis for extending judicial
recognition and for considering the alien spouse bound by its
terms. This same effect, as discussed above, will not obtain for
the Filipino spouse were it not for the substantive rule that the
second paragraph of Article 26 of the Family Code provides.
Considerations beyond the recognition of the foreign divorce
decree
As a matter of "housekeeping" concern, we note that the Pasig
City Civil Registry Office has already recorded the divorce
decree on Gerbert and Daisylyn’s marriage certificate based
on the mere presentation of the decree.34 We consider the
recording to be legally improper; hence, the need to draw
attention of the bench and the bar to what had been done.
Article 407 of the Civil Code states that "[a]cts, events and
judicial decrees concerning the civil status of persons shall be
recorded in the civil register." The law requires the entry in the
civil registry of judicial decrees that produce legal
consequences touching upon a person’s legal capacity and
status, i.e., those affecting "all his personal qualities and
relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not."35
A judgment of divorce is a judicial decree, although a foreign
one, affecting a person’s legal capacity and status that must
be recorded. In fact, Act No. 3753 or the Law on Registry of
Civil Status specifically requires the registration of divorce
decrees in the civil registry:
Sec. 1. Civil Register. – A civil register is established for
recording the civil status of persons, in which shall be entered:
(a) births;
(b) deaths;
(c) marriages;
(d) annulments of marriages;
(e) divorces;
(f) legitimations;
(g) adoptions;
(h) acknowledgment of natural children;
(i) naturalization; and
(j) changes of name.
xxxx
Sec. 4. Civil Register Books. — The local registrars shall keep
and preserve in their offices the following books, in which they
shall, respectively make the proper entries concerning the civil
status of persons:
(1) Birth and death register;
(2) Marriage register, in which shall be entered not only
the marriages solemnized but also divorces and
dissolved marriages.
(3) Legitimation, acknowledgment, adoption, change of
name and naturalization register.
But while the law requires the entry of the divorce decree in
the civil registry, the law and the submission of the decree by
themselves do not ipso facto authorize the decree’s
registration. The law should be read in relation with the
requirement of a judicial recognition of the foreign judgment
before it can be given res judicata effect. In the context of the
present case, no judicial order as yet exists recognizing the
foreign divorce decree. Thus, the Pasig City Civil Registry
Office acted totally out of turn and without authority of law
when it annotated the Canadian divorce decree on Gerbert
and Daisylyn’s marriage certificate, on the strength alone of
the foreign decree presented by Gerbert.
Evidently, the Pasig City Civil Registry Office was aware of the
requirement of a court recognition, as it cited NSO Circular No.
4, series of 1982,36 and Department of Justice Opinion No.
181, series of 198237 – both of which required a final order
from a competent Philippine court before a foreign judgment,
dissolving a marriage, can be registered in the civil registry,
but it, nonetheless, allowed the registration of the decree. For
being contrary to law, the registration of the foreign divorce
decree without the requisite judicial recognition is patently void
and cannot produce any legal effect.1avvphi1
Another point we wish to draw attention to is that the
recognition that the RTC may extend to the Canadian divorce
decree does not, by itself, authorize the cancellation of the
entry in the civil registry. A petition for recognition of a foreign
judgment is not the proper proceeding, contemplated under
the Rules of Court, for the cancellation of entries in the civil
registry.
Article 412 of the Civil Code declares that "no entry in a civil
register shall be changed or corrected, without judicial order."
The Rules of Court supplements Article 412 of the Civil Code
by specifically providing for a special remedial proceeding by
which entries in the civil registry may be judicially cancelled or
corrected. Rule 108 of the Rules of Court sets in detail the
jurisdictional and procedural requirements that must be
complied with before a judgment, authorizing the cancellation
or correction, may be annotated in the civil registry. It also
requires, among others, that the verified petition must be filed
with the RTC of the province where the corresponding civil
registry is located;38 that the civil registrar and all persons who
have or claim any interest must be made parties to the
proceedings;39 and that the time and place for hearing must be
published in a newspaper of general circulation.40 As these
basic jurisdictional requirements have not been met in the
present case, we cannot consider the petition Gerbert filed
with the RTC as one filed under Rule 108 of the Rules of
Court.
We hasten to point out, however, that this ruling should not be
construed as requiring two separate proceedings for the
registration of a foreign divorce decree in the civil registry –
one for recognition of the foreign decree and another
specifically for cancellation of the entry under Rule 108 of the
Rules of Court. The recognition of the foreign divorce decree
may be made in a Rule 108 proceeding itself, as the object of
special proceedings (such as that in Rule 108 of the Rules of
Court) is precisely to establish the status or right of a party or a
particular fact. Moreover, Rule 108 of the Rules of Court can
serve as the appropriate adversarial proceeding41 by which the
applicability of the foreign judgment can be measured and
tested in terms of jurisdictional infirmities, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.
WHEREFORE, we GRANT the petition for review on certiorari,
and REVERSE the October 30, 2008 decision of the Regional
Trial Court of Laoag City, Branch 11, as well as its February
17, 2009 order. We order the REMAND of the case to the trial
court for further proceedings in accordance with our ruling
above. Let a copy of this Decision be furnished the Civil
Registrar General. No costs.
SO ORDERED.
G.R. No. 221029 April 24, 2018
REPUBLIC OF THE PHILIPPINES, Petitioner
vs
MARELYN TANEDO MANALO, Respondent
RESOLUTION
peralta, J.:
This petition for review on certiorari under Rule 45 of the Rules
of Court (Rules) seeks to reverse and set aside the September
18, 2014 Decision1 and October 12, 2015 Resolution2 of the
Court of Appeals (CA) in CA-G.R. CV No. 100076. The
dispositive portion of the Decision states:
WHEREFORE, the instant appeal
is GRANTED. The Decision dated 15 October 2012 of the
Regional Trial Court of Dagupan City, First Judicial Region,
Branch 43, in SPEC. PROC. NO. 2012-0005
is REVERSED and SET ASIDE.
Let a copy of this Decision be served on the Local Civil
Registrar of San Juan, Metro Manila.
SO ORDERED.3
The facts are undisputed.
On January 10, 2012, respondent Marelyn Tanedo Manalo
(Manalo) filed a petition for cancellation of
Entry of marriage in the Civil Registry of San Juan , Metro
Manila, by virtueof a judgment of divorce Japanese court.
Finding the petition to be sufficient in form and in substance,
Branch 43 of the Regional Trial Court (RTC) of Dagupan City
set the case for initial hearing on April 25, 2012. The petition
and the notice of initial hearing were published once a week
for three consecutive weeks in newspaper of general
circulation. During the initial hearing, counsel for Manalo
marked the documentary evidence (consisting of the trial
courts Order dated January 25, 2012, affidavit of publication,
and issues of the Northern Journal dated February 21-27,
2012, February 28 - March 5, 2012, and March 6-12, 2012) for
purposes of compliance with the jurisdictional requirements.
The Office of the Solicitor General (OSG) entered its
appearance for petitioner Republic of the Philippines
authorizing the Office of the City Prosecutor of Dagupan to
appear on its behalf. Likewise, a Manifestation and Motion was
filed questioning the title and/or caption of the petition
considering that based on the allegations therein, the proper
action should be a petition for recognition and enforcement of
a foreign judgment.
As a result, Manalo moved to admit an Amended Petition,
which the court granted. The Amended Petition, which
captioned that if it is also a petition for recognition and
enforcement of foreign judgment alleged:
2. That petitioner is previously married in the Philippines to a
Japanese national named YOSHINO MINORO as shown by
their Marriage Contract xxx;
3. That recently, a case for divorce was filed by herein
[petitioner] in Japan and after die proceedings, a divorce
decree dated December 6, 2011 was rendered by the
Japanese Court x x x;
4. That at present, by virtue of the said divorce decree,
petitioner and her divorce Japanese husband are no longer
living together and in fact, petitioner and her daughter are
living separately from said Japanese former husband;
5. That there is an imperative need to have the entry of
marriage in Civil Registry of San Juan, Metro Manila cancelled,
where the petitioner and the former Japanese husband's
marriage was previously registered, in order that it would not
appear anymore that petitioner is still married to the said
Japanese national who is no longer her husband or is no
longer married to her, she shall not be bothered and disturbed
by aid entry of marriage;
6. That this petition is filed principally for the purpose of
causing the cancellation of entry of the marriage between the
petitioner and the said Japanese national, pursuant to Rule
108 of the Revised Rules of Court, which marriage was
already dissolved by virtue of the aforesaid divorce decree;
[and]
7. That petitioner prays, among others, that together with the
cancellation of the said entry of her marriage, that she be
allowed to return and use her maiden surname, MANALO.4
Manalo was allowed to testify in advance as she was
scheduled to leave for Japan for her employment. Among the
documents that were offered and admitted were:
1. Court Order dated January 25, 2012, finding the petition and
its attachments to be sufficient in form and in substance;
2. Affidavit of Publication;
3. Issues of the Northern Journal dated February 21-27, 2012,
February 28 - March 5, 2012, and March 6-12, 2012;
4. Certificate of Marriage between Manalo and her former
Japanese husband;
5. Divorce Decree of Japanese court;
6. Authentication/Certificate issued by the Philippine Consulate
General in Osaka, Japan of the Notification of Divorce; and
7. Acceptance of Certificate of Divorce.5
The OSG did not present any controverting evidence to rebut
the allegations of Manalo.
On October 15, 2012, the trial court denied the petition for lack
of merit. In ruling that the divorce obtained by Manalo in Japan
should not be recognized, it opined that, based on Article 15 of
the New Civil Code, the Philippine law "does not afford
Filipinos the right to file for a divorce whether they are in the
country or living abroad, if they are married to Filipinos or to
foreigners, or if they celebrated their marriage in the
Philippines or in another country" and that unless Filipinos "are
naturalized as citizens of another country, Philippine laws shall
have control over issues related to Filipinos' family rights and
duties, together with the determination of their condition and
legal capacity to enter into contracts and civil relations,
inclusing marriages."6
On appeal, the CA overturned the RTC decision. It held that
Article 26 of the Family Code of the Philippines (Family Code)
is applicable even if it was Manalo who filed for divorce against
her Japanese husband because the decree may obtained
makes the latter no longer married to the former, capacitating
him to remarry. Conformably with Navarro, et al. V. Exec.
Secretary Ermita, et al.7 ruling that the meaning of the law
should be based on the intent of the lawmakers and in view of
the legislative intent behind Article 26, it would be height of
injustice to consider Manalo as still married to the Japanese
national, who, in turn, is no longer married to her. For the
appellate court, the fact that it was Manalo who filed the
divorce case is inconsequential. Cited as similar to this case
was Van Dorn v. Judge Romilo, Jr.8 where the mariage
between a foreigner an a Filipino was dissolved filed abroad
by the latter.
The OSG filed a motion for reconsideration, but it was denied;
hence, this petition.
We deny the petition and partially affirm the CA decision.
Divorce, the legal dissolution of a lawful union for a cause
arising after the marriage, are of two types: (1) absolute
divorce or a vinculo matrimonii, which terminates the marriage,
and (2) limited divorce or a mensa et thoro, which suspends it
and leaves the bond in full force.9 In this jurisdiction, the
following rules exist:
1. Philippine law does not provide for absolute divorce;
hence, our courts cannot grant it.10
2. Consistent with Articles 1511 and 1712 of the New
Civil Code, the marital bond between two Filipinos
cannot be dissolved even by an absolute divorce
obtained abroad.13
3. An absolute divorce obtained abroad by a couple,
who both aliens, may be recognized in the Philippines,
provided it is consistent with their respective national
laws.14
4. In mixed marriages involving a Filipino and a
foreigner, the former is allowed to contract a
subsequent marriage in case the absolute divorce is
validly obtained abroad by the alien spouse
capacitating him or her to remarry.15
On July 6, 1987, then President Corazon C. Aquino signed
into law Executive Order (E.O.) No. 209, otherwise known as
the Family Code of the Philippines, which took effect on
August 3, 1988.16 Shortly thereafter , E.O. No. 227 was issued
on July 17, 1987.17 Aside from amending Articles 36 and 39 of
the Family Code, a second paragraph was added to Article
26.18 This provision was originally deleted by the Civil Code
Revision Committee (Committee),but it was presented and
approved at a Cabinet meeting after Pres. Aquino signed E.O.
No. 209.19 As modified, Article 26 now states:
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the where country where
they were solemnized, and valid there as such, shall also be
valid in this country, except those prohibited under Articles
35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him her to remarry
under Philippine law.
Paragraph 2 of Article 26 confers jurisdiction on Philippine
courts to extend the effect of a foreign divorce decree to a
Filipino spouse without undergoing trial to determine the
validity of the dissolution of the marriage.20 It authorizes our
courts to adopt the effects of a foreign divorce decree
precisely because the Philippines does not allow
divorce.21 Philippine courts cannot try the case on the merits
because it is tantamount to trying a divorce case.22 Under the
principles of comity, our jurisdiction recognizes a valid divorce
obtained by the spouse of foreign nationality, but the legal
effects thereof, e.g., on custody, care and support of the
children or property relations of the spouses, must still be
determined by our courts.23
According to Judge Alicia Sempio-Diy, a member of
the Committee, the idea of the amendment is to avoid the
absurd situation of a Filipino as still being married to his or her
alien spouse, although the latter is no longer married to the
former because he or she had obtained a divorce abroad that
is recognized by his or national law.24 The aim was that it
would solved the problem of many Filipino women who, under
the New Civil Code, are still considered married to their alien
husbands even after the latter have already validly divorced
them under their (the husbands') national laws and perhaps
have already married again.25
In 2005, this Court concluded that Paragraph 2 of Article 26
applies to a case where, at the time of the celebration of the
marriage, the parties were Filipino citizens, but later on, one of
them acquired foreign citizenship by naturalization, initiated a
divorce proceeding, and obtained a favorable decree. We held
in Republic of the Phils. v. Orbecido III:26
The jurisprudential answer lies latent in the 1998 case of Quita
v. Court of Appeals. In Quita, the parties were, as in this case,
Filipino citizens when they got married. The wife became
naturalized American citizen n 1954 and obtained a divorce in
the same year. The court therein hinted, by the way of obiter
dictum, that a Filipino divorced by his naturalized foreign
spouse is no longer married under Philippine law and can thus
remarry.
Thus, taking into consideration the legislative intent and
applying the rule of reason, we hold that Paragraph 2 of Article
26 should be interpreted to include cases involving parties
who, at the time of the celebration of the marriage were
Filipino citizens, but later on, one of them becomes naturalized
as foreign citizen and obtains divorce decree. The Filipino
spouse should likewise be allowed to remarry as if the other
party were foreigner at the time of the solemnization of the
marriage. To rule otherwise would be to sanction absurdity
and injustice. x x x
If we are to give meaning to the legislative intent to avoid the
absurd situation where the Filipino spouse remains married to
the alien spouse who after obtaining a divorce is no longer
married to the Filipino spouse, then the instant case must be
deemed as coming within the contemplation of Paragraph 2 of
Article 26.
In view of the foregoing, we state the twin elements for the
application of Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has been celebrated between
a Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the
time of the celebration of marriage, but their citizenship at the
time valid divorced obtained abroad by the alien spouse
capacitating the latter to remarry.
Now, the Court is tasked to resolve whether, under the same
provision, a Filipino citizen has the capacity to remarry under
Philippine law after initiating a divorce proceeding abroad and
obtaining a favorable judgment against his or her alien spouse
who is capacitated to remarry. Specifically, Manalo pleads for
the recognition of enforcement of the divorced decree
rendered by the Japanese court and for the cancellation of the
entry of marriage in the local civil registry " in order that it
would not appear anymore that she is still married to the said
Japanese national who is no longer her husband or is no
longer married to her; [and], in the event that [she] decides to
be remarried, she shall not be bothered and disturbed by said
entry of marriage," and to use her maiden surname.
We rule in the affirmative.
Both Dacasin v. Dacasin28 and Van Dorn29 already recognized
a foreign divorce decree that was initiated and obtained by the
Filipino spouse and extended its legal effects on the issues of
child custody and property relation, respectively.
In Dacasin, post-divorce, the former spouses executed an
Agreement for the joint custody of their minor daughter. Later
on, the husband who is a US citizen, sued his Filipino wife
enforce the Agreement, alleging that it was only the latter who
exercised sole custody of their child. The trial court dismissed
the action for lack of jurisdiction, on the ground, among others,
that the divorce decree is binding following the "nationality
rule" prevailing in this jurisdiction. The husband moved to
reconsider, arguing that the divorce decree obtained by his
former wife is void, but it was denied. In ruling that the trial
court has jurisdiction to entertain the suit bu not to enforce the
Agreement, which is void, this Court said:
Nor can petitioner rely on the divorce decree's alleged
invalidity - not because the Illinois court lacked jurisdiction or
that the divorced decree violated Illinois law, but because the
divorce was obtained by his Filipino spouse - to support the
Agreement's enforceability . The argument that foreigners in
this jurisdiction are not bound by foreign divorce decrees is
hardly novel. Van Dron v. Romillo settled the matter by holding
that an alien spouse of a Filipino is bound by a divorce decree
obtained abroad. There, we dismissed the alien divorcee's
Philippine suit for accounting of alleged post-divorce conjugal
property and rejected his submission that the foreign divorce
(obtained by the Filipino spouse) is not valid in this jurisdiction
x x x.30
Van Dorn was decided before the Family Code took into effect.
There, a complaint was filed by the ex-husband , who is a US
citizen, against his Filipino wife to render an accounting of a
business that was alleged to be a conjugal property and to be
declared with right to manage the same. Van Dorn moved to
dismiss the case on the ground that the cause of action was
barred by previous judgment in the divorce proceedings that
she initiated, but the trial court denied the motion. On his part,
her ex-husband averred that the divorce decree issued by the
Nevada court could not prevail over the prohibitive laws of the
Philippines and its declared national policy; that the acts and
declaration of a foreign court cannot, especially if the same is
contrary to public policy, divest Philippine courts of jurisdiction
to entertain matters within its jurisdiction . In dismissing the
case filed by the alien spouse, the Court discussed the effect
of the foreign divorce on the parties and their conjugal property
in the Philippines. Thus:
There can be no question as to the validity of that Nevada
divorce in any of the States of the United States. The decree is
binding on private respondent as an American citizen. For
instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. What he is contending in
this case is that the divorce is not valid and binding in this
jurisdiction, the same being contrary to local law and public
policy.
Is it true that owing to the nationality principle embodied in
Article 15 of the Civil Code, only Philippine nationals are
covered by the policy and morality. However, aliens may
obtain divorce abroad, which may be recognized in the
Philippines, provided they are valid according to their national
law. In this case, the divorce in Nevada released private
respondent from the marriage from standards of American law,
under which divorce dissolves the marriage. As stated by
the Federal Supreme Court of the United States in Atherton
vs. Atherton, 45 L. Ed. 794,799:
"The purpose and effect of a decree of divorce from the bond
of matrimony by a court of competent jurisdiction are to
change the existing status or domestic relation of husband and
wife, and to free them both from the bond. The marriage tie,
when thus severed as stone party, ceases to bind either. A
husband without a wife, or a wife without a husband, is
unknown to the law. When the law provides in the nature of
penalty, that the guilty party shall not marry again, that party,
as well as the other, is still absolutely feed from the bond of
the former marriage."
Thus, pursuant to his national law, private respondent is no
longer the husband of petitioner. He would have no standing to
sue in the case below as petitioner's husband entitled to
exercise control over conjugal assets. As he is estopped by his
own representation before said court from asserting his right
over the alleged conjugal property.
To maintain, as private respondent does, that under our laws,
petitioner has to be considered still married to private
respondent and still subject to a wife's obligations under Article
109, et. seq. of the Civil Code cannot be just. Petitioner should
not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter
should not continue to be one of her heirs with possible rights
to conjugal property. She should not be discriminated against
in her own country if the ends of justice are to be served.31
In addition, the fact that a validity obtained foreign divorce
initiated by the Filipino spouse can be recognized and given
legal effects in the Philippines is implied from Our rulings
in Fujiki v. Marinay, et al.32 and Medina v. Koike.33
In Fujiki, the Filipino wife, with the help of her husband, who is
a Japanese national, was able to obtain a judgment from
Japan's family court. Which declared the marriage between
her and her second husband, who is a Japanese national, void
on the ground of bigamy. In resolving the issue of whether a
husband or wife of a prior marriage can file a petition to
recognize a foreign judgment nullifying the subsequent
marriage between his her spouse and a foreign citizen on the
ground of bigamy, We ruled:
Fujiki has the personality to file a petition to recognize the
Japanese Family Court judgment nullifying the marriage
between Marinay and Maekara on the ground of bigamy
because the judgment concerns his civil status as married to
Marinay. For the same reason he has the personality to file a
petition under Rule 108 to cancel the entry of marriage
between Marinay and Maekara in the civil registry on the basis
of the decree of the Japanese Family Court.
There is no doubt that the prior spouse has a personal and
material interest in maintaining the integrity of the marriage he
contracted and the property relations arising from it. There is
also no doubt that he is interested in the cancellation of an
entry of a bigamous marriage in the civil registry, which
compromises the public record of his marriage. The interest
derives from the substantive right of the spouse not only to
preserve (or dissolve, in limited instances) his most intimate
human relation, but also to protect his property interests that
arise by operation of law the moment he contracts marriage.
These property interests in marriage included the right to be
supported "in keeping with the financial capacity of the family"
and preserving the property regime of the marriage.
Property rights are already substantive rights protected by the
Constitution, but a spouse's right in a marriage extends further
to relational rights recognized under Title III ("Rights and
Obligations between Husband and Wife") of the Family Code.
x x x34
On the other hand, in Medina, the Filipino wife and her
Japanese husband jointly filed for divorce, which was
granted.1âwphi1 Subsequently, she filed a petition before the
RTC for judicial recognition of foreign divorce and declaration
of capacity to remarry pursuant to Paragraph 2 of Article 26.
The RTC denied the petition on the ground that the foreign
divorce decree and the national law of the alien spouse
recognizing his capacity to obtain a divorce must be proven in
accordance with Sections 24 and 25 of Rule 132 of the
Revised Rules on Evidence. This Court agreed and ruled that,
consistent with Corpuz v. Sto. Tomas, et al.35 and Garcia v.
Recio,36 the divorce decree and the national law of the alien
spouse must be proven. Instead of dismissing the case, We
referred it to the CA for appropriate action including the
reception of evidence to determine and resolve the pertinent
factual issues.
There is no compelling reason to deviate from the above-
mentioned rulings. When this Court recognized a foreign
divorce decree that was initiated and obtained by the Filipino
spouse and extended its legal effects on the issues of child
custody and property relation, it should not stop short in a
likewise acknowledging that one of the usual and necessary
consequences of absolute divorce is the right to remarry.
Indeed, there is no longer a mutual obligation to live together
and observe fidelity. When the marriage tie is severed and
ceased to exist, the civil status and the domestic relation of the
former spouses change as both of them are freed from the
marital bond.
The dissent is of the view that, under the nationality principle,
Manalo's personal status is subject to Philippine law, which
prohibits absolute divorce. Hence, the divorce decree which
she obtained under Japanese law cannot be given effect, as
she is, without dispute, a national not of Japan, bit of the
Philippines. It is said that that a contrary ruling will subvert not
only the intention of the framers of the law, but also that of the
Filipino peopl, as expressed in the Constitution. The Court is,
therefore, bound to respect the prohibition until the legislature
deems it fit to lift the same.
We beg to differ.
Paragraph 2 of Artilce 26 speaksof "a divorce x x x validly
obtained abroad by the alien spouse capacitating him or her to
remarry." Based on a clear and plain reading of the provision,
it only requires that there be a divorce validly obtained abroad.
The letter of the law does not demand that the alien spouse
should be the one who initiated the proceeding wherein the
divorce decree was granted. It does not distinguish whether
the Filipino spouse is the petitioner or the respondent in the
foreign divorce proceeding. The Court is bound by the words
of the statute; neither can We put words in the mouth of
lawmakers.37 The legislature is presumed to know the meaning
of the words to have used words advisely and to have
expressed its intent by the use of such words as are found in
the statute. Verba legis non est recedendum, or from the
words if a statute there should be departure."38
Assuming, for the sake of argument, that the
word "obtained" should be interpreted to mean that the divorce
proceeding must be actually initiated by the alien spouse, still,
the Court will not follow the letter of the statute when to do so
would depart from the true intent of the legislature or would
otherwise yield conclusions inconsistent with the general
purpose of the act.39 Law have ends to achieve, and statutes
should be so construed as not to defeat but to carry out such
ends and purposes.40 As held in League of Cities of the Phils.
et al. v. COMELEC et. al.:41
The legislative intent is not at all times accurately reflected in
the manner in which the resulting law is couched. Thus,
applying a verba legis or strictly literal interpretation of a
statute may render it meaningless and lead to inconvience, an
absurd situation or injustice. To obviate this aberration, and
bearing in mind the principle that the intent or the spirit of the
law is the law itself, resort should be to the rule that the spirit
of the law control its letter.
To reiterate, the purpose of Paragraph 2 of Article 26 is to
avoid the absurd situation where the Filipino spouse remains
married to the alien spouse who, after a foreign divorce decree
that is effective in the country where it was rendered, is no
longer married to the Filipino spouse. The provision is a
corrective measure is free to marry under the laws of his or her
countr.42 Whether the Filipino spouse initiated the foreign
divorce proceeding or not, a favorable decree dissolving the
marriage bond and capacitating his or her alien spouse to
remarry will have the same result: the Filipino spouse will
effectively be without a husband or wife. A Filipino who
initiated a foreign divorce proceeding is in the same place and
in like circumstances as a Filipino who is at the receiving end
of an alien initiated proceeding. Therefore, the subject
provision should not make a distinction. In both instance, it is
extended as a means to recognize the residual effect of the
foreign divorce decree on a Filipinos whose marital ties to their
alien spouses are severed by operations of their alien spouses
are severed by operation on the latter's national law.
Conveniently invoking the nationality principle is erroneous.
Such principle, found under Article 15 of the City Code, is not
an absolute and unbending rule. In fact, the mer e existence of
Paragraph 2 of Article 26 is a testament that the State may
provide for an exception thereto. Moreover, blind adherence to
the nationality principle must be disallowed if it would cause
unjust discrimination and oppression to certain classes of
individuals whose rights are equally protected by law. The
courts have the duty to enforce the laws of divorce as written
by the Legislature only if they are constitutional.43
While the Congress is allowed a wide leeway in providing for a
valid classification and that its decision is accorded recognition
and respect by the court of justice, such classification may be
subjected to judicial review.44 The deference stops where the
classification violates a fundamental right, or prejudices
persons accorded special protection by the
Constitution.45 When these violations arise, this Court must
discharge its primary role as the vanguard of constitutional
guaranties, and require a stricter and more exacting
adherence to constitutional limitations.46 If a legislative
classification impermissibly interferes with the exercise of a
fundamental right or operates to the peculiar disadvantage of a
suspect class strict judicial scrutiny is required since it is
presumed unconstitutional, and the burden is upon the
government to prove that the classification is necessary to
achieve a compelling state interest and that it is the least
restrictive means to protect such interest.47
"Fundamental rights" whose infringement leads to strict
scrutiny under the equal protection clause are those basic
liberties explicitly or implicitly guaranteed in the
Constitution.48 It includes the right to free speech, political
expression, press, assembly, and forth, the right to travel, and
the right to vote.49 On the other hand, what constitutes
compelling state interest is measured by the scale rights and
powers arrayed in the Constitution and calibrated by
history.50 It is akin to the paramount interest of the state for
which some individual liberties must give way, such as the
promotion of public interest, public safety or the general
welfare.51 It essentially involves a public right or interest that,
because of its primacy, overrides individual rights, and allows
the former to take precedence over the latter.52
Although the Family Code was not enacted by the Congress,
the same principle applies with respect to the acts of the
President which have the force and effect of law unless
declared otherwise by the court. In this case, We find that
Paragraph 2 of Article 26 violates one of the essential
requisites53 of the equal protection clause.54 Particularly, the
limitation of the provision only to a foreign divorce decree
initiated by the alien spouse is unreasonable as it is based on
superficial, arbitrary, and whimsical classification.
A Filipino who is married to another Filipino is not similarly
situated with a Filipino who is married to a foreign citizen.
There are real, material and substantial differences between
them. Ergo, they should not be treated alike, both as to rights
conferred and liabilities imposed. Without a doubt, there are
political, economic cultural, and religious dissimilarities as well
as varying legal systems and procedures, all too unfamiliar,
that a Filipino national who is married to an alien spouse has
to contend with. More importantly, while a divorce decree
obtained abroad by a Filipino against another Filipino is null
and void, a divorce decree obtained by an alien against his her
Filipino spouse is recognized if made in accordance with the
national law of the foreigner.55
On the contrary, there is no real and substantial difference
between a Filipino who initiated a foreign divorce proceedings
a Filipino who obtained a divorce decree upon the instance of
his or her alien spouse . In the eyes of the Philippine and
foreign laws, both are considered as Filipinos who have the
same rights and obligations in a alien land. The circumstances
surrounding them are alike. Were it not for Paragraph 2 of
Article 26, both are still married to their foreigner spouses who
are no longer their wives/husbands. Hence, to make a
distinction between them based merely on the superficial
difference of whether they initiated the divorce proceedings or
not is utterly unfair. Indeed, the treatment gives undue favor to
one and unjustly discriminate against the other.
Further, the differentiation in Paragraph 2 Article 26 is
arbitrary. There is inequality in treatment because a foreign
divorce decree that was initiated and obtained by a Filipino
citizen against his or her alien spouse would not be recognized
even if based on grounds similar to Articles 35, 36, 37 and 38
of the Family Code.56 In filing for divorce based on these
grounds, the Filipino spouse cannot be accused of invoking
foreign law at whim, tantamount to insisting that he or she
should be governed with whatever law he or she chooses. The
dissent's comment that Manalo should be "reminded that all is
not lost, for she may still pray for the severance of her martial
ties before the RTC in accordance with the mechanism now
existing under the Family Code" is anything but comforting.
For the guidance of the bench and the bar, it would have been
better if the dissent discussed in detail what these
"mechanism" are and how they specifically apply in Manalo's
case as well as those who are similarly situated. If the dissent
refers to a petition for declaration of nullity or annulment of
marriage, the reality is that there is no assurance that our
courts will automatically grant the same. Besides, such
proceeding is duplicitous, costly, and protracted. All to the
prejudice of our kababayan.
It is argued that the Court's liberal interpretation of Paragraph
2 of Artilce 26 encourages Filipinos to marry foreigners,
opening the floodgate to the indiscriminate practice of Filipinos
marrying foreign nationals or initiating divorce proceedings
against their alien spouses.
The supposition is speculative and unfounded.
First, the dissent falls into a hasty generalization as no data
whatsoever was sworn to support what he intends to
prove. Second, We adhere to the presumption of good faith in
this jurisdiction. Under the rules on evidence, it is disputable
presumed (i.e., satisfactory if uncontradicted and overcome by
other evidence) that a person is innocent of crime or
wrong,57 that a person takes ordinary care of his
concerns,59 that acquiescence resulted from a belief that the
thing acquiesced in was conformable to the law and
fact, 60 that a man and woman deporting themselves as
husband and wife have entered into a lawful contract of
marriage,61 and that the law has been obeyed.62 It is whimsical
to easily attribute any illegal, irregular or immoral conduct on
the part of a Filipino just because he or she opted to marry a
foreigner instead of a fellow Filipino. It is presumed that
interracial unions are entered into out of genuine love and
affection, rather than prompted by pure lust or profit. Third, We
take judicial notice of the fact that Filipinos are relatively more
forbearing and conservative in nature and that they are more
often the victims or losing end of mixed marriages.
And Fourth, it is not for Us to prejudge the motive behind
Filipino's decision to marry an alien national. In one case, it
was said:
Motive for entering into a marriage are varied and complex.
The State does not and cannot dictated on the kind of life that
a couple chooses to lead. Any attempt to regulate their lifestyle
would go into the realm of their right to privacy and would raise
serious constitutional questions. The right marital privacy
allows married couples to structure their marriages in almost
any way they see it fit, to live together or live apart, to have
children or no children, to love one another or not, and so on.
Thus, marriages entered into for other purposes, limited or
otherwise, such as convenience, companionship, money,
status, and title, provided that they comply with all the legal
requisites, are equally valid. Love, though the ideal
consideration in a marriage contract, is not the only valid
cause for marriage. Other considerations, not precluded by
law, may validly support a marriage.63
The 1987 Constitution expresses that marriage, as an
inviolable social institution, is the foundation of the family and
shall be protected by the State.64 Nevertheless, it was not
meant to be a general prohibition on divorce because
Commissioner Jose Luis Martin C. Gascon, in response to a
question by Father Joaquin G. Bernas during the deliberations
of the 1986 Constitutional Commission, was categorical about
this point.65 Their exchange reveal as follows:
MR. RAMA. Mr. Presiding Officer, may I ask that
Commissioner Bernas be recognized.
THE PRESIDING OFFICER (Mr. Colayco). Commissioner
Bernas is recognized.
FR. BERNAS. Just one question, and I am not sure if it has
been categorically answered. I refer specifically to the
proposal of Commissioner Gascon. Is this be understood as a
prohibition of a general law on divorce? His intention is to
make this a prohibition so that the legislature cannot pass a
divorce law.
MR. GASCON. Mr. Presding Officer, that was not primarily my
intention. My intention was primarily to encourage the social
institution of marriage, but not necessarily discourage divorce.
But now that the mentioned the issue of divorce, my personal
opinion is to discourage it. Mr. Presiding Officer.
FR. BERNAS. No my question is more categorical. Does this
carry the meaning of prohibiting a divorce law?
MR. GASCON. No Mr. Presiding Officer.
FR. BERNAS. Thank you.66
Notably, a law on absolute divorce is not new in our country.
Effectivity March 11, 1917, Philippine courts could grant an
absolute divorce in the grounds of adultery on the part of the
wife or concubinage on the part of the husband by virtue of Act
No. 2710 of the Philippine Legislature.67 On March 25, 1943,
pursuant to the authority conferred upon him by the
Commander-in-Chief fo the Imperial Japanese Forces in the
Philippines and with the approval of the latter, the Chairman of
the Philippine Executive Commission promulgated an E.O. No.
141 ("New Divorce Law"), which repealed Act No. 2710 and
provided eleven ground for absolute divorce, such as
intentional or unjustified desertion continuously for at least one
year prior to the filing of the action, slander by deed or gross
insult by one spouse against the other to such an extent as to
make further living together impracticable, and a spouse's
incurable insanity.68 When the Philippines was liberated and
the Commonwealth Government was restored, it ceased to
have force and effect and Act No. 2710 again
prevailed.69 From August 30, 1950, upon the effectivity of
Republic Act No. 836 or the New Civil Code, an absolute
divorce obatined by Filipino citizens, whether here or abroad,
is no longer recognized.70
Through the years, there has been constant clamor from
various sectors of the Philippine society to re-institute absolute
divorce. As a matte of fcat, in the currnet 17th Congress,
House Bill (H.B.) Nos. 11671 106272 238073 and 602774 were
filed in the House of representatives. In substitution of these
bills, H.B. No. 7303 entitled "An Act Instituting Absolute
Divorce and Dissolution of Marriage in the Philippines" or
the Absolute Divorce Act of 2018 was submitted by the House
Committee on Population
And Family Relations of February 8, 2018. It was approved on
March 19, 2018 on Third Reading - with 134 in favor, 57
against, and 2 absentations. Under the bill, the grounds for a
judicial decree of absolute divorce are as follows:
1. The grounds for legal separation under Article 55 of the
Family Code, modified or amended, as follows:
a. Physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a
child of the petitioner;
b. Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
c. Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of a petitioner, to
engage in prostitution, or connivance in such corruption
or inducement;
d. Final judgment sentencing the respondent to
imprisonment of more than six (6) years, even if
pardoned;
e. Drug addiction or habitual alchoholism ro chronic
gambling of respondent;
f. Homosexuality of the respondent;
g. Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or
abroad;
h. Marital infidelity or perversion or having a child with
another person other than one's spouse during the
marriage, except when upon the mutual agreement of
 the spouses, a child is born to them by in vitro or a
similar procedure or when the wife bears a child after
being a victim of rape;
i. attempt by the respondent against the life of the
petitioner, a common child or a child of a petitioner; and
j. Abandonment of petitioner by respondent without
justifiable cause for more than one (1) year.
When the spouses are legally separated by judicial decree for
more thath two (2) years, either or both spouses can petition
the proper court for an absolute divorce based on said judicial
decree of legal separation.
1. Grounds for annulment of marriage under Article 45 of the
Family Code restated as follows:
a. The party in whose behalf it is sought to have the
marriage annulled was eighteen (18) years of age or
over but below twety-one (21), and the marriage was
solemnized without the consent of the parents guradian
or personl having substitute parental authority over the
party, in that order, unless after attaining the age of
twenty-one (21) such party freely cohabited with the
other and both lived together as husband and wife;
b. either party was of unsound mind, unless such party
after coming to reason, freely cohabited with the other
as husband and wife;
c. The consent of either party was obtained by fraud,
unless such party afterwards with full knowledge of the
facts constituting the fraud, freely cohabited with the
other husband and wife;
d. consent of either party was obtained by force,
intimidation or undue influence, unless the same
having disappeared or ceased, such party thereafter
freely cohabited with the other as husband and wife;
e. Either party was physically incapable of
consummating the marriage with the other and such
incapacity continues or appears to be incurable; and
f. Either part was afflicted with the sexually
transmissible infection found to be serious or appears
to be incurable.
Provided, That the ground mentioned in b, e and f existed
either at the time of the marriage or supervening after the
marriage.
1. When the spouses have been separated in fact for at least
five (5) years at the time the petition for absolute divorce is
filed, and the reconciliation is highly improbable;
2. Psychological incapacity of either spouse as provided for in
Article 36 of the Family Code, whether or not the incapacity
was present at the time of the celebration of the marriage or
later;
3. When one of the spouses undergoes a gender
reassignment surgery or transition from one sex to another,
the other spouse is entitled to petition for absolute divorce with
the transgender or transsexual as respondent, or vice-versa;
4. Irreconcilable marital differences and conflicts which have
resulted in the total breakdown of the marriage beyond repair,
despite earnest and repeated efforts at reconciliation.
To be sure, a good number of Filipinos led by the Roman
Catholic Church react adversely to any attempt to enact a law
on absolute divorce, viewing it as contrary to our customs,
morals, and traditions that has looked upon marriage and
family as an institution and their nature of permanence,
In the same breath that the establishment clause restricts what
the government can do with religion, it also limits what
religious sects can or cannot do. They can neither cause the
government to adopt their particular doctrines as policy for
everyone, nor can they cause the government to restrict other
groups. To do so, in simple terms, would cause the State to
adhere to a particular religion and, thus establish a state
religion.76
The Roman Catholic Church can neither impose its beliefs and
convictions on the State and the rest of the citizenry nor can it
demand that the nation follow its beliefs, even if it is sincerely
believes that they are good for country.77 While marriage is
considered a sacrament, it has civil and legal consequences
which are governed by the Family Code.78 It is in this aspect,
bereft of any ecclesiastical overtone, that the State has a
legitimate right and interest to regulate.
The declared State policy that marriage, as an inviolable social
institution, is a foundation of the family and shall be protected
by the State, should not be read in total isolation but must be
harmonized with other constitutional provision. Aside from
strengthening the solidarity of the Filipino family, the State is
equally mandated to actively promote its total development.79 It
is also obligated to defend, among others, the right of children
to special protection from all forms of neglect, abuse, cruelty,
exploitation, and other conditions prejudicial to their
development.80 To Our mind, the State cannot effectively
enforce these obligation s if We limit the application of
Paragraph 2 or Article 26 only those foreign divorce initiated
by the alien spouse. It is not amiss to point that the women
and children are almost always the helpless victims of all forms
of domestic abuse and violence. In fact, among the notable
legislation passed in order to minimize, if not eradicate, the
menace are R.A. No. 9262 ("Anti-Violence Against Women
and Their Children Act of 2004") R.A. No. 9710 ("The Magna
Carta of Women"), R.A. No 10354 ("The Responsible
Parenthood and Reproductive Health Act of 2012") and R.A.
No 9208 ("Anti-Trafficking in Person Act of 2003"), as
amended by R.A. No. 10364 ("ExpandedAnti-Trafficking in
Persons Act of 2012"). Moreover, in protecting and
strengthening the Filipino family as a basic autonomous social
institution, the Court must not lose sight of the constitutional
mandate to value the dignity of every human person,
guarantee full respect for human rights, and ensure the
fundamental equality before the law of women and men.81
A prohibitive view of Paragraph 2 of Article 26 would do more
harm than good. If We disallow a Filipino citizen who initiated
and obtained a foreign divorce from the coverage of
Paragraph 2 Article 26 and still require him or her to first avail
of the existing "mechanisms" under the Family Code, any
subsequent relationship that he or she would enter in the
meantime shall be considered as illicit in the eyes of the
Philippine law. Worse, any child born out such "extra-marital"
affair has to suffer the stigma of being branded as illegitimate.
Surely, these are just but a few of the adverse consequences,
not only to the parent but also to the child, if We are to hold a
restrictive interpretation of the subject provision. The irony is
that the principle of inviolability of marriage under Section 2,
Article XV of the Constitution is meant to be tilted in favor of
marriage and against unions not formalized by marriage, but
without denying State protection and assistance to live-in
arrangements or to families formed according to indigenous
customs.82
This Court should not turn a blind eye to the realities of the
present time. With the advancement of communication and
information technology, as well as the improvement of the
transportation system that almost instantly connect people
from all over the world, mixed marriages have become not too
uncommon. Likewise, it is recognized that not all marriages
are made in heaven and that imperfect humans more often
than not create imperfect unions.83 Living in a flawed world, the
unfortunate reality for some is that the attainment of the
individual's full human potential and self fulfillment is not found
and achieved in the context of a marriage. Thus it is
hypocritical to safeguard the quantity of existing marriages
and, at the same time, brush aside the truth that some of them
are rotten quality.
Going back, we hold that marriage, being a mutual and shared
commitment between two parties, cannot possibly be
productive of any good to the society where one is considered
released from the marital bond while the other remains bound
to it.84 In reiterating that the Filipino spouse should not be
discriminated against in his or her own country if the ends of
justice are to be served, San Luis v. San Luis85 quoted:
x x x In Alonzo v. Intermediate Applellate Court, the Court
stated:
But as has also been aptly observed, we test a law by its
results: and likewise, we may add, by its purposes. It is a
cardinal rule that, in seeking the meaning of the law, the first
concern of the judge should be to discover in its provisions the
intent of the lawmaker. Unquestionably, the law should never
be interpreted in such a way as to cause injustice as this is
never within the legislative intent. An indispensable part of that
intent, in fact, for we presume the good motives of the
legislature, is to render justice.
Thus, we interpret and apply the law not independently of but
in consonance with justice. Law and justice are inseparable,
and we must keep them so. To be sure, there are some laws
that, while generally valid, may seem arbitrary when applied in
a particular case because only of our nature and functions, to
apply them just the same, in slavish obedience to their
language. What we do instead is find a balance between the
sord and the will, that justice may be done even as the law is
obeyed.
As judges, we are not automatons. We do not and must not
unfeelingly apply the law as it worded, yielding like robots to
the literal command without regard to its cause and
consequence. "Courts are apt to err by sticking too closely to
the words of law," so we are warned, by Justice Holmes
agaian, "where these words import a policy that goes beyond
them."
xxxx
More that twenty centuries ago, Justinian defined justice "as
the constant and perpetual wish to render every one of his
due." That wish continues to motivate this Court when it
assesses the facts and the law in ever case brought to it for
decisions. Justice is always an essential ingredient of its
decisions. Thus when the facts warrant, we interpret the law in
a way that will render justice, presuming that it was the
intention if the lawmaker, to begin with, that the law be
dispensed with justice.86
Indeed, where the interpretation of a statute according to its
exact and literal import would lead to mischievous results or
contravene the clear purpose of the legislature, it should be
construed according to its spirit and reason, disregarding as
far as necessary the letter of the law.87 A statute may
therefore, be extended to cases not within the literal meaning
of its terms, so long as they come within its spirit or intent.88
The foregoing notwithstanding, We cannot yet write finis to this
controversy by granting Manalo's petition to recognize and
enforce the divorce decree rendered by the Japanese court
and to cancel the entry of marriage in the Civil Registry of San
Juan, Metro Manila.
Jurisprudence has set guidelines before the Philippine courts
recognize a foreign judgment relating to the status of a
marriage where one of the parties is a citizen of foreign
country. Presentation solely of the divorce decree will not
suffice.89 The fact of divorce must still first be proven.90 Before
a a foreign divorce decree can be recognized by our courts,
the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it.91
x x x Before a foreign judgment is given presumptive
evidentiary value, the document must first be presented and
admitted in evidence. A divorce obtained abroad is proven by
the divorce decree itself. The decree purports to be written act
or record of an act of an official body or tribunal of foreign
country.
Under Sections 24 and 25 of Rule 132, on the other hand, a
writing or document may be proven as a public or official
record of a foreign country by either (1) an official publication
or (2) a copy thereof attested by the officer having legal
custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a
certificate issued by the proper diplomatic or consular officer in
the Philippine foreign service stationed in the foreign country in
which the record is kept and (b)authenticated by the seal of his
office.92
In granting Manalo's petition, the CA noted:
In this case, Petitioner was able to submit before the court a
quo the 1) Decision of the Japanese Court allowing the
divorce; 2) the Authentication/Certificate issued by the
Philippines Consulate General in Osaka, Japan of the Decree
of Divorce; and 3) Acceptance of Certificate of Divorce byu the
Petitioner and the Japanese national. Under Rule 132,
Sections 24 and 25, in relation to Rule 39, Section 48 (b) of
the Rules of Court, these documents sufficiently prove the
subject Divorce Decree as a fact. Thus, We are constrained to
recognize the Japanese Court's judgment decreeing the
divorce.93
If the opposing party fails to properly object, as in this case,
the divorce decree is rendered admissible a a written act of the
foreign court.94 As it appears, the existence of the divorce
decree was not denied by the OSG; neither was the
jurisdiction of the divorce court impeached nor the validity of its
proceedings challenged on the ground of collusion, fraud, or
clear mistake of fact or law, albeit an opportunity to do so.95
Nonetheless, the Japanese law on divorce must still be
proved.
x x x The burden of proof lies with the "party who alleges the
existence of a fact or thing necessary in the prosecution or
defense of an action." In civil cases, plaintiffs have the burden
of proving the material defendants have the burden of proving
the material allegations in their answer when they introduce
new matters. x x x
It is well-settled in our jurisdiction that our courts cannot take
judicial notice of foreign laws. Like any other facts, they must
alleged and proved. x x x The power of judicial notice must be
exercise d with caution, and every reasonable doubt upon the
subject should be resolved in the negative.96
Since the divorce was raised by Manalo, the burden of proving
the pertinent Japanese law validating it, as well as her former
husband's capacity to remarry, fall squarely upon her.
Japanese laws on persons and family relations are not among
those matters that Filipino judges are supposed to know by
reason of their judicial function.
WHEREFORE, the petition for review on certiorari is DENIED.
The September 18, 2014 Decision and October 12, 2015
Resolution if the Court of Appeals in CA G.R. CV. No. 100076,
are AFFIRMED IN PART. The case is REMANDED to the
court of origin for further proceedings and reception of
evidence as to the relevant Japanese law on divorce.
SO ORDERED
G.R. No. 138322 October 2, 2001
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-
RECIO, petitioner,
vs.
REDERICK A. RECIO, respondents.
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in
our jurisdiction, provided such decree is valid according to the
national law of the foreigner. However, the divorce decree and
the governing personal law of the alien spouse who obtained
the divorce must be proven. Our courts do not take judicial
notice of foreign laws and judgment; hence, like any other
facts, both the divorce decree and the national law of the alien
must be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules
of Court, seeking to nullify the January 7, 1999 Decision1 and
the March 24, 1999 Order2 of the Regional Trial Court of
Cabanatuan City, Branch 28, in Civil Case No. 3026-AF. The
assailed Decision disposed as follows:
"WHEREFORE, this Court declares the marriage
between Grace J. Garcia and Rederick A. Recio
solemnized on January 12, 1994 at Cabanatuan City
as dissolved and both parties can now remarry under
existing and applicable laws to any and/or both
parties."3
The assailed Order denied reconsideration of the above-
quoted Decision.
 The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson,
an Australian citizen, in Malabon, Rizal, on March 1,
1987.4 They lived together as husband and wife in Australia.
On May 18, 1989,5 a decree of divorce, purportedly dissolving
the marriage, was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen,
as shown by a "Certificate of Australian Citizenship" issued by
the Australian government.6 Petitioner – a Filipina – and
respondent were married on January 12, 1994 in Our Lady of
Perpetual Help Church in Cabanatuan City.7 In
their application for a marriage license, respondent was
declared as "single" and "Filipino."8
Starting October 22, 1995, petitioner and respondent lived
separately without prior judicial dissolution of their marriage.
While the two were still in Australia, their conjugal assets were
divided on May 16, 1996, in accordance with their Statutory
Declarations secured in Australia.9
On March 3, 1998, petitioner filed a Complaint for Declaration
of Nullity of Marriage10 in the court a quo, on the ground of
bigamy – respondent allegedly had a prior subsisting marriage
at the time he married her on January 12, 1994. She claimed
that she learned of respondent's marriage to Editha Samson
only in November, 1997.
In his Answer, respondent averred that, as far back as 1993,
he had revealed to petitioner his prior marriage and its
subsequent dissolution.11 He contended that his first marriage
to an Australian citizen had been validly dissolved by a divorce
decree obtained in Australian in 1989;12 thus, he was legally
capacitated to marry petitioner in 1994.1âwphi1.nêt
On July 7, 1998 – or about five years after the couple's
wedding and while the suit for the declaration of nullity was
pending – respondent was able to secure a divorce decree
from a family court in Sydney, Australia because the "marriage
ha[d] irretrievably broken down."13
Respondent prayed in his Answer that the Complained be
dismissed on the ground that it stated no cause of
action.14 The Office of the Solicitor General agreed with
respondent.15 The court marked and admitted the
documentary evidence of both parties.16 After they submitted
their respective memoranda, the case was submitted for
resolution.17
Thereafter, the trial court rendered the assailed Decision and
Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground
that the divorce issued in Australia was valid and recognized in
the Philippines. It deemed the marriage ended, but not on the
basis of any defect in an essential element of the marriage;
that is, respondent's alleged lack of legal capacity to remarry.
Rather, it based its Decision on the divorce decree obtained by
respondent. The Australian divorce had ended the marriage;
thus, there was no more martial union to nullify or annual.
Hence, this Petition.18
Issues
Petitioner submits the following issues for our consideration:
"I
 The trial court gravely erred in finding that the divorce
decree obtained in Australia by the respondent ipso
facto terminated his first marriage to Editha Samson
thereby capacitating him to contract a second marriage
with the petitioner.
"2
The failure of the respondent, who is now a naturalized
Australian, to present a certificate of legal capacity to
marry constitutes absence of a substantial requisite
voiding the petitioner' marriage to the respondent.
"3
The trial court seriously erred in the application of Art.
26 of the Family Code in this case.
"4
The trial court patently and grievously erred in
disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the
Family Code as the applicable provisions in this case.
"5
The trial court gravely erred in pronouncing that the
divorce gravely erred in pronouncing that the divorce
decree obtained by the respondent in Australia ipso
facto capacitated the parties to remarry, without first
securing a recognition of the judgment granting the
divorce decree before our courts."19
The Petition raises five issues, but for purposes of this
Decision, we shall concentrate on two pivotal ones: (1)
whether the divorce between respondent and Editha Samson
was proven, and (2) whether respondent was proven to be
legally capacitated to marry petitioner. Because of our ruling
on these two, there is no more necessity to take up the rest.
The Court's Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha
Samson
Petitioner assails the trial court's recognition of the divorce
between respondent and Editha Samson. Citing Adong v.
Cheong Seng Gee,20 petitioner argues that the divorce decree,
like any other foreign judgment, may be given recognition in
this jurisdiction only upon proof of the existence of (1) the
foreign law allowing absolute divorce and (2) the alleged
divorce decree itself. She adds that respondent miserably
failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26
of the Family Code, marriages solemnized abroad are
governed by the law of the place where they were celebrated
(the lex loci celebrationist). In effect, the Code requires the
presentation of the foreign law to show the conformity of the
marriage in question to the legal requirements of the place
where the marriage was performed.
At the outset, we lay the following basic legal principles as the
take-off points for our discussion. Philippine law does not
provide for absolute divorce; hence, our courts cannot grant
it.21 A marriage between two Filipinos cannot be dissolved
even by a divorce obtained abroad, because of Articles
1522 and 1723 of the Civil Code.24 In mixed marriages involving
a Filipino and a foreigner, Article 2625 of the Family Code
allows the former to contract a subsequent marriage in case
the divorce is "validly obtained abroad by the alien spouse
capacitating him or her to remarry."26 A divorce obtained
abroad by a couple, who are both aliens, may be recognized in
the Philippines, provided it is consistent with their respective
national laws.27
A comparison between marriage and divorce, as far as
pleading and proof are concerned, can be made. Van Dorn v.
Romillo Jr. decrees that "aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are
valid according to their national law."28 Therefore, before a
foreign divorce decree can be recognized by our courts, the
party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing
it.29 Presentation solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted
in evidence, it must first comply with the registration
requirements under Articles 11, 13 and 52 of the Family Code.
These articles read as follows:
"ART. 11. Where a marriage license is required, each
of the contracting parties shall file separately a sworn
application for such license with the proper local civil
registrar which shall specify the following:
xxx xxx xxx
"(5) If previously married, how, when and where the
previous marriage was dissolved or annulled;
xxx xxx xxx
"ART. 13. In case either of the contracting parties has
been previously married, the applicant shall be required
to furnish, instead of the birth of baptismal certificate
required in the last preceding article, the death
certificate of the deceased spouse or the judicial
decree of annulment or declaration of nullity of his or
her previous marriage. x x x.
"ART. 52. The judgment of annulment or of absolute
nullity of the marriage, the partition and distribution of
the properties of the spouses, and the delivery of the
children's presumptive legitimes shall be recorded in
the appropriate civil registry and registries of property;
otherwise, the same shall not affect their persons."
Respondent, on the other hand, argues that the Australian
divorce decree is a public document – a written official act of
an Australian family court. Therefore, it requires no further
proof of its authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign
judgment is given presumptive evidentiary value, the
document must first be presented and admitted in
evidence.30 A divorce obtained abroad is proven by the divorce
decree itself. Indeed the best evidence of a judgment is the
judgment itself.31 The decree purports to be a written act or
record of an act of an officially body or tribunal of a foreign
country.32
Under Sections 24 and 25 of Rule 132, on the other hand, a
writing or document may be proven as a public or official
record of a foreign country by either (1) an official publication
or (2) a copy thereof attested33 by the officer having legal
custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a
certificate issued by the proper diplomatic or consular officer in
the Philippine foreign service stationed in the foreign country in
which the record is kept and (b) authenticated by the seal of
his office.34
The divorce decree between respondent and Editha Samson
appears to be an authentic one issued by an Australian family
court.35 However, appearance is not sufficient; compliance with
the aforemetioned rules on evidence must be demonstrated.
Fortunately for respondent's cause, when the divorce decree
of May 18, 1989 was submitted in evidence, counsel for
petitioner objected, not to its admissibility, but only to the fact
that it had not been registered in the Local Civil Registry of
Cabanatuan City.36 The trial court ruled that it was admissible,
subject to petitioner's qualification.37 Hence, it was admitted in
evidence and accorded weight by the judge. Indeed,
petitioner's failure to object properly rendered the divorce
decree admissible as a written act of the Family Court of
Sydney, Australia.38
Compliance with the quoted articles (11, 13 and 52) of the
Family Code is not necessary; respondent was no longer
bound by Philippine personal laws after he acquired Australian
citizenship in 1992.39 Naturalization is the legal act of adopting
an alien and clothing him with the political and civil rights
belonging to a citizen.40 Naturalized citizens, freed from the
protective cloak of their former states, don the attires of their
adoptive countries. By becoming an Australian, respondent
severed his allegiance to the Philippines and the vinculum
juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian
divorce law falls upon petitioner, because she is the party
challenging the validity of a foreign judgment. He contends
that petitioner was satisfied with the original of the divorce
decree and was cognizant of the marital laws of Australia,
because she had lived and worked in that country for quite a
long time. Besides, the Australian divorce law is allegedly
known by Philippine courts: thus, judges may take judicial
notice of foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with "the party
who alleges the existence of a fact or thing necessary in the
prosecution or defense of an action."41 In civil cases, plaintiffs
have the burden of proving the material allegations of the
complaint when those are denied by the answer; and
defendants have the burden of proving the material allegations
in their answer when they introduce new matters.42 Since the
divorce was a defense raised by respondent, the burden of
proving the pertinent Australian law validating it falls squarely
upon him.
It is well-settled in our jurisdiction that our courts cannot take
judicial notice of foreign laws.43 Like any other facts, they must
be alleged and proved. Australian marital laws are not among
those matters that judges are supposed to know by reason of
their judicial function.44 The power of judicial notice must be
exercised with caution, and every reasonable doubt upon the
subject should be resolved in the negative.
Second Issue:
Respondent's Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the
divorce, respondent was legally incapacitated to marry her in
1994.
Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which
was validly admitted in evidence, adequately established his
legal capacity to marry under Australian law.
Respondent's contention is untenable. In its strict legal
sense, divorce means the legal dissolution of a lawful union for
a cause arising after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce or a vinculo
matrimonii and (2) limited divorce or a mensa et thoro. The first
kind terminates the marriage, while the second suspends it
and leaves the bond in full force.45 There is no showing in the
case at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree
– a conditional or provisional judgment of divorce. It is in effect
the same as a separation from bed and board, although an
absolute divorce may follow after the lapse of the prescribed
period during which no reconciliation is effected.46
Even after the divorce becomes absolute, the court may under
some foreign statutes and practices, still restrict remarriage.
Under some other jurisdictions, remarriage may be limited by
statute; thus, the guilty party in a divorce which was granted
on the ground of adultery may be prohibited from remarrying
again. The court may allow a remarriage only after proof of
good behavior.47
On its face, the herein Australian divorce decree contains a
restriction that reads:
"1. A party to a marriage who marries again before this
decree becomes absolute (unless the other party has
died) commits the offence of bigamy."48
This quotation bolsters our contention that the divorce
obtained by respondent may have been restricted. It did not
absolutely establish his legal capacity to remarry according to
his national law. Hence, we find no basis for the ruling of the
trial court, which erroneously assumed that the Australian
divorce ipso facto restored respondent's capacity to remarry
despite the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce decree
raises a disputable presumption or presumptive evidence as to
his civil status based on Section 48, Rule 3949 of the Rules of
Court, for the simple reason that no proof has been presented
on the legal effects of the divorce decree obtained under
Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required
by Article 21 of the Family Code was not submitted together
with the application for a marriage license. According to her, its
absence is proof that respondent did not have legal capacity to
remarry.
We clarify. To repeat, the legal capacity to contract marriage is
determined by the national law of the party concerned. The
certificate mentioned in Article 21 of the Family Code would
have been sufficient to establish the legal capacity of
respondent, had he duly presented it in court. A duly
authenticated and admitted certificate is prima facie evidence
of legal capacity to marry on the part of the alien applicant for
a marriage license.50
As it is, however, there is absolutely no evidence that proves
respondent's legal capacity to marry petitioner. A review of the
records before this Court shows that only the following exhibits
were presented before the lower court: (1) for petitioner: (a)
Exhibit "A" – Complaint;51 (b) Exhibit "B" – Certificate of
Marriage Between Rederick A. Recto (Filipino-Australian) and
Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan
City, Nueva Ecija;52 (c) Exhibit "C" – Certificate of Marriage
Between Rederick A. Recio (Filipino) and Editha D. Samson
(Australian) on March 1, 1987 in Malabon, Metro Manila;53 (d)
Exhibit "D" – Office of the City Registrar of Cabanatuan City
Certification that no information of annulment between
Rederick A. Recto and Editha D. Samson was in its
records;54 and (e) Exhibit "E" – Certificate of Australian
Citizenship of Rederick A. Recto;55 (2) for respondent: (Exhibit
"1" – Amended Answer;56 (b) Exhibit "S" – Family Law Act
1975 Decree Nisi of Dissolution of Marriage in the Family
Court of Australia;57 (c) Exhibit "3" – Certificate of Australian
Citizenship of Rederick A. Recto;58 (d) Exhibit "4" – Decree
Nisi of Dissolution of Marriage in the Family Court of Australia
Certificate;59 and Exhibit "5" – Statutory Declaration of the
Legal Separation Between Rederick A. Recto and Grace J.
Garcia Recio since October 22, 1995.60
declare a nullity of the parties' marriage on the ground of
bigamy, there being already in evidence two existing marriage
certificates, which were both obtained in the Philippines, one in
Malabon, Metro Manila dated March 1, 1987 and the other, in
Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and
substantial justice, we REMAND the case to the court a
quo for the purpose of receiving evidence which conclusively
show respondent's legal capacity to marry petitioner; and
failing in that, of declaring the parties' marriage void on the
ground of bigamy, as above discussed. No costs.
SO ORDERED.

Based on the above records, we cannot conclude that

respondent, who was then a naturalized Australian citizen,
was legally capacitated to marry petitioner on January 12,
1994. We agree with petitioner's contention that the court a
quo erred in finding that the divorce decree ipso facto clothed
respondent with the legal capacity to remarry without requiring
him to adduce sufficient evidence to show the Australian
personal law governing his status; or at the very least, to prove
his legal capacity to contract the second marriage.

Neither can we grant petitioner's prayer to declare her

marriage to respondent null and void on the ground of bigamy.
After all, it may turn out that under Australian law, he was
really capacitated to marry petitioner as a direct result of the
divorce decree. Hence, we believe that the most judicious
course is to remand this case to the trial court to receive
evidence, if any, which show petitioner's legal capacity to
marry petitioner. Failing in that, then the court a quo may
G.R. No. L-19671 November 29, 1965
PASTOR B. TENCHAVEZ, plaintiff-appellant,
vs.
VICENTA F. ESCAÑO, ET AL., defendants-appellees.
I. V. Binamira & F. B. Barria for plaintiff-appellant.
Jalandoni & Jarnir for defendants-appellees.
REYES, J.B.L., J.:
Direct appeal, on factual and legal questions, from the
judgment of the Court of First Instance of Cebu, in its Civil
Case No. R-4177, denying the claim of the plaintiff-appellant,
Pastor B. Tenchavez, for legal separation and one million
pesos in damages against his wife and parents-in-law, the
defendants-appellees, Vicente, Mamerto and Mena,1 all
surnamed "Escaño," respectively.2
The facts, supported by the evidence of record, are the
following:
Missing her late afternoon classes on 24 February 1948 in the
University of San Carlos, Cebu City, where she was then
enrolled as a second year student of commerce, Vicenta
Escaño, 27 years of age (scion of a well-to-do and socially
prominent Filipino family of Spanish ancestry and a "sheltered
colegiala"), exchanged marriage vows with Pastor Tenchavez,
32 years of age, an engineer, ex-army officer and of
undistinguished stock, without the knowledge of her parents,
before a Catholic chaplain, Lt. Moises Lavares, in the house of
one Juan Alburo in the said city. The marriage was the
culmination of a previous love affair and was duly registered
with the local civil register.
Vicenta's letters to Pastor, and his to her, before the marriage,
indicate that the couple were deeply in love. Together with a
friend, Pacita Noel, their matchmaker and go-between, they
had planned out their marital future whereby Pacita would be
the governess of their first-born; they started saving money in
a piggy bank. A few weeks before their secret marriage, their
engagement was broken; Vicenta returned the engagement
ring and accepted another suitor, Joseling Lao. Her love for
Pastor beckoned; she pleaded for his return, and they
reconciled. This time they planned to get married and then
elope. To facilitate the elopement, Vicenta had brought some
of her clothes to the room of Pacita Noel in St. Mary's Hall,
which was their usual trysting place.
Although planned for the midnight following their marriage, the
elopement did not, however, materialize because when
Vicente went back to her classes after the marriage, her
mother, who got wind of the intended nuptials, was already
waiting for her at the college. Vicenta was taken home where
she admitted that she had already married Pastor. Mamerto
and Mena Escaño were surprised, because Pastor never
asked for the hand of Vicente, and were disgusted because of
the great scandal that the clandestine marriage would provoke
(t.s.n., vol. III, pp. 1105-06). The following morning, the
Escaño spouses sought priestly advice. Father Reynes
suggested a recelebration to validate what he believed to be
an invalid marriage, from the standpoint of the Church, due to
the lack of authority from the Archbishop or the parish priest
for the officiating chaplain to celebrate the marriage. The
recelebration did not take place, because on 26 February 1948
Mamerto Escaño was handed by a maid, whose name he
claims he does not remember, a letter purportedly coming from
San Carlos college students and disclosing an amorous
relationship between Pastor Tenchavez and Pacita Noel;
Vicenta translated the letter to her father, and thereafter would
not agree to a new marriage. Vicenta and Pastor met that day
in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta
continued living with her parents while Pastor returned to his
job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still
solicitous of her husband's welfare, was not as endearing as
her previous letters when their love was aflame.
Vicenta was bred in Catholic ways but is of a changeable
disposition, and Pastor knew it. She fondly accepted her being
called a "jellyfish." She was not prevented by her parents from
communicating with Pastor (Exh. "1-Escaño"), but her letters
became less frequent as the days passed. As of June, 1948
the newlyweds were already estranged (Exh. "2-Escaño").
Vicenta had gone to Jimenez, Misamis Occidental, to escape
from the scandal that her marriage stirred in Cebu society.
There, a lawyer filed for her a petition, drafted by then Senator
Emmanuel Pelaez, to annul her marriage. She did not sign the
petition (Exh. "B-5"). The case was dismissed without
prejudice because of her non-appearance at the hearing (Exh.
"B-4").
On 24 June 1950, without informing her husband, she applied
for a passport, indicating in her application that she was single,
that her purpose was to study, and she was domiciled in Cebu
City, and that she intended to return after two years. The
application was approved, and she left for the United States.
On 22 August 1950, she filed a verified complaint for divorce
against the herein plaintiff in the Second Judicial District Court
of the State of Nevada in and for the County of Washoe, on
the ground of "extreme cruelty, entirely mental in character."
On 21 October 1950, a decree of divorce, "final and absolute",
was issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escaño filed a petition with the
Archbishop of Cebu to annul their daughter's marriage to
Pastor (Exh. "D"). On 10 September 1954, Vicenta sought
papal dispensation of her marriage (Exh. "D"-2).
On 13 September 1954, Vicenta married an American, Russell
Leo Moran, in Nevada. She now lives with him in California,
and, by him, has begotten children. She acquired American
citizenship on 8 August 1958.
But on 30 July 1955, Tenchavez had initiated the proceedings
at bar by a complaint in the Court of First Instance of Cebu,
and amended on 31 May 1956, against Vicenta F. Escaño, her
parents, Mamerto and Mena Escaño, whom he charged with
having dissuaded and discouraged Vicenta from joining her
husband, and alienating her affections, and against the Roman
Catholic Church, for having, through its Diocesan Tribunal,
decreed the annulment of the marriage, and asked for legal
separation and one million pesos in damages. Vicenta claimed
a valid divorce from plaintiff and an equally valid marriage to
her present husband, Russell Leo Moran; while her parents
denied that they had in any way influenced their daughter's
acts, and counterclaimed for moral damages.
The appealed judgment did not decree a legal separation, but
freed the plaintiff from supporting his wife and to acquire
property to the exclusion of his wife. It allowed the
counterclaim of Mamerto Escaño and Mena Escaño for moral
and exemplary damages and attorney's fees against the
plaintiff-appellant, to the extent of P45,000.00, and plaintiff
resorted directly to this Court.
The appellant ascribes, as errors of the trial court, the
following:
1. In not declaring legal separation; in not holding
defendant Vicenta F. Escaño liable for damages and in
dismissing the complaint;.
 2. In not holding the defendant parents Mamerto
Escano and the heirs of Doña Mena Escaño liable for
damages;.
3 In holding the plaintiff liable for and requiring him to
pay the damages to the defendant parents on their
counterclaims; and.
4. In dismissing the complaint and in denying the relief
sought by the plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor
Tenchavez, and the defendant-appellee, Vicenta Escaño,
were validly married to each other, from the standpoint of our
civil law, is clearly established by the record before us. Both
parties were then above the age of majority, and otherwise
qualified; and both consented to the marriage, which was
performed by a Catholic priest (army chaplain Lavares) in the
presence of competent witnesses. It is nowhere shown that
said priest was not duly authorized under civil law to solemnize
marriages.
The chaplain's alleged lack of ecclesiastical authorization from
the parish priest and the Ordinary, as required by Canon law,
is irrelevant in our civil law, not only because of the separation
of Church and State but also because Act 3613 of the
Philippine Legislature (which was the marriage law in force at
the time) expressly provided that —
SEC. 1. Essential requisites. Essential requisites for
marriage are the legal capacity of the contracting
parties and consent. (Emphasis supplied)
The actual authority of the solemnizing officer was thus only a
formal requirement, and, therefore, not essential to give the
marriage civil effects,3 and this is emphasized by section 27 of
said marriage act, which provided the following:
SEC. 27. Failure to comply with formal requirements.
No marriage shall be declared invalid because of the
absence of one or several of the formal requirements of
this Act if, when it was performed, the spouses or one
of them believed in good faith that the person who
solemnized the marriage was actually empowered to
do so, and that the marriage was perfectly legal.
The good faith of all the parties to the marriage (and hence the
validity of their marriage) will be presumed until the contrary is
positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745;
Francisco vs. Jason, 60 Phil. 442, 448). It is well to note here
that in the case at bar, doubts as to the authority of the
solemnizing priest arose only after the marriage, when
Vicenta's parents consulted Father Reynes and the archbishop
of Cebu. Moreover, the very act of Vicenta in abandoning her
original action for annulment and subsequently suing for
divorce implies an admission that her marriage to plaintiff was
valid and binding.
Defendant Vicenta Escaño argues that when she contracted
the marriage she was under the undue influence of Pacita
Noel, whom she charges to have been in conspiracy with
appellant Tenchavez. Even granting, for argument's sake, the
truth of that contention, and assuming that Vicenta's consent
was vitiated by fraud and undue influence, such vices did not
render her marriage ab initio void, but merely voidable, and the
marriage remained valid until annulled by a competent civil
court. This was never done, and admittedly, Vicenta's suit for
annulment in the Court of First Instance of Misamis was
dismissed for non-prosecution.
It is equally clear from the record that the valid marriage
between Pastor Tenchavez and Vicenta Escaño remained
subsisting and undissolved under Philippine law,
notwithstanding the decree of absolute divorce that the wife
sought and obtained on 21 October 1950 from the Second
Judicial District Court of Washoe County, State of Nevada, on
grounds of "extreme cruelty, entirely mental in character." At
the time the divorce decree was issued, Vicenta Escaño, like
her husband, was still a Filipino citizen.4 She was then subject
to Philippine law, and Article 15 of the Civil Code of the
Philippines (Rep. Act No. 386), already in force at the time,
expressly provided:
Laws relating to family rights and duties or to the
status, condition and legal capacity of persons are
binding upon the citizens of the Philippines, even
though living abroad.
The Civil Code of the Philippines, now in force, does not admit
absolute divorce, quo ad vinculo matrimonii; and in fact does
not even use that term, to further emphasize its restrictive
policy on the matter, in contrast to the preceding legislation
that admitted absolute divorce on grounds of adultery of the
wife or concubinage of the husband (Act 2710). Instead of
divorce, the present Civil Code only provides for legal
separation (Title IV, Book 1, Arts. 97 to 108), and, even in that
case, it expressly prescribes that "the marriage bonds shall not
be severed" (Art. 106, subpar. 1).
For the Philippine courts to recognize and give recognition or
effect to a foreign decree of absolute divorce betiveen Filipino
citizens could be a patent violation of the declared public
policy of the state, specially in view of the third paragraph of
Article 17 of the Civil Code that prescribes the following:
Prohibitive laws concerning persons, their acts or
property, and those which have for their object public
order, 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.
Even more, the grant of effectivity in this jurisdiction to such
foreign divorce decrees would, in effect, give rise to an
irritating and scandalous discrimination in favor of wealthy
citizens, to the detriment of those members of our polity whose
means do not permit them to sojourn abroad and obtain
absolute divorces outside the Philippines.
From this point of view, it is irrelevant that appellant Pastor
Tenchavez should have appeared in the Nevada divorce court.
Primarily because the policy of our law cannot be nullified by
acts of private parties (Civil Code,Art. 17, jam quot.); and
additionally, because the mere appearance of a non-resident
consort cannot confer jurisdiction where the court originally
had none (Area vs. Javier, 95 Phil. 579).
From the preceding facts and considerations, there flows as a
necessary consequence that in this jurisdiction Vicenta
Escaño's divorce and second marriage are not entitled to
recognition as valid; for her previous union to plaintiff
Tenchavez must be declared to be existent and undissolved. It
follows, likewise, that her refusal to perform her wifely duties,
and her denial of consortium and her desertion of her husband
constitute in law a wrong caused through her fault, for which
the husband is entitled to the corresponding indemnity (Civil
Code, Art. 2176). Neither an unsubstantiated charge of deceit
nor an anonymous letter charging immorality against the
husband constitute, contrary to her claim, adequate excuse.
Wherefore, her marriage and cohabitation with Russell Leo
Moran is technically "intercourse with a person not her
husband" from the standpoint of Philippine Law, and entitles
plaintiff-appellant Tenchavez to a decree of "legal separation
under our law, on the basis of adultery" (Revised Penal Code,
Art. 333).
The foregoing conclusions as to the untoward effect of a
marriage after an invalid divorce are in accord with the
previous doctrines and rulings of this court on the subject,
particularly those that were rendered under our laws prior to
the approval of the absolute divorce act (Act 2710 of the
Philippine Legislature). As a matter of legal history, our
statutes did not recognize divorces a vinculo before 1917,
when Act 2710 became effective; and the present Civil Code
of the Philippines, in disregarding absolute divorces, in effect
merely reverted to the policies on the subject prevailing before
Act 2710. The rulings, therefore, under the Civil Code of 1889,
prior to the Act above-mentioned, are now, fully applicable. Of
these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of
particular interest. Said this Court in that case:
As the divorce granted by the French Court must be
ignored, it results that the marriage of Dr. Mory and
Leona Castro, celebrated in London in 1905, could not
legalize their relations; and the circumstance that they
afterwards passed for husband and wife in Switzerland
until her death is wholly without legal significance. The
claims of the very children to participate in the estate of
Samuel Bishop must therefore be rejected. The right to
inherit is limited to legitimate, legitimated and
acknowledged natural children. The children of
adulterous relations are wholly excluded. The word
"descendants" as used in Article 941 of the Civil Code
cannot be interpreted to include illegitimates born
of adulterous relations. (Emphasis supplied)
Except for the fact that the successional rights of the children,
begotten from Vicenta's marriage to Leo Moran after the
invalid divorce, are not involved in the case at bar,
the Gmur case is authority for the proposition that such union
is adulterous in this jurisdiction, and, therefore, justifies an
action for legal separation on the part of the innocent consort
of the first marriage, that stands undissolved in Philippine law.
In not so declaring, the trial court committed error.
True it is that our ruling gives rise to anomalous situations
where the status of a person (whether divorced or not) would
depend on the territory where the question arises. Anomalies
of this kind are not new in the Philippines, and the answer to
them was given in Barretto vs. Gonzales, 58 Phil. 667:
The hardship of the existing divorce laws in the
Philippine Islands are well known to the members of
the Legislature. It is the duty of the Courts to enforce
the laws of divorce as written by Legislature if they are
constitutional. Courts have no right to say that such
laws are too strict or too liberal. (p. 72)
The appellant's first assignment of error is, therefore,
sustained.
However, the plaintiff-appellant's charge that his wife's
parents, Dr. Mamerto Escaño and his wife, the late Doña
Mena Escaño, alienated the affections of their daughter and
influenced her conduct toward her husband are not supported
by credible evidence. The testimony of Pastor Tenchavez
about the Escaño's animosity toward him strikes us to be
merely conjecture and exaggeration, and are belied by
Pastor's own letters written before this suit was begun (Exh.
"2-Escaño" and "Vicenta," Rec. on App., pp. 270-274). In
these letters he expressly apologized to the defendants for
"misjudging them" and for the "great unhappiness" caused by
his "impulsive blunders" and "sinful pride," "effrontery and
audacity" [sic]. Plaintiff was admitted to the Escaño house to
visit and court Vicenta, and the record shows nothing to prove
that he would not have been accepted to marry Vicente had he
openly asked for her hand, as good manners and breeding
demanded. Even after learning of the clandestine marriage,
and despite their shock at such unexpected event, the parents
of Vicenta proposed and arranged that the marriage be
recelebrated in strict conformity with the canons of their
religion upon advice that the previous one was canonically
defective. If no recelebration of the marriage ceremony was
had it was not due to defendants Mamerto Escaño and his
wife, but to the refusal of Vicenta to proceed with it. That the
spouses Escaño did not seek to compel or induce their
daughter to assent to the recelebration but respected her
decision, or that they abided by her resolve, does not
constitute in law an alienation of affections. Neither does the
fact that Vicenta's parents sent her money while she was in
the United States; for it was natural that they should not wish
their daughter to live in penury even if they did not concur in
her decision to divorce Tenchavez (27 Am. Jur. 130-132).
There is no evidence that the parents of Vicenta, out of
improper motives, aided and abetted her original suit for
annulment, or her subsequent divorce; she appears to have
acted independently, and being of age, she was entitled to
judge what was best for her and ask that her decisions be
respected. Her parents, in so doing, certainly cannot be
charged with alienation of affections in the absence of malice
or unworthy motives, which have not been shown, good faith
being always presumed until the contrary is proved.
SEC. 529. Liability of Parents, Guardians or Kin. —
The law distinguishes between the right of a parent to
interest himself in the marital affairs of his child and the
absence of rights in a stranger to intermeddle in such
affairs. However, such distinction between the liability
of parents and that of strangers is only in regard to
what will justify interference. A parent isliable for
alienation of affections resulting from his own malicious
conduct, as where he wrongfully entices his son or
daughter to leave his or her spouse, but he is not liable
unless he acts maliciously, without justification and
from unworthy motives. He is not liable where he acts
and advises his child in good faith with respect to his
child's marital relations in the interest of his child as he
sees it, the marriage of his child not terminating his
right and liberty to interest himself in, and be extremely
solicitous for, his child's welfare and happiness, even
where his conduct and advice suggest or result in the
separation of the spouses or the obtaining of a divorce
or annulment, or where he acts under mistake or
misinformation, or where his advice or interference are
indiscreet or unfortunate, although it has been held that
the parent is liable for consequences resulting from
recklessness. He may in good faith take his child into
his home and afford him or her protection and support,
so long as he has not maliciously enticed his child
away, or does not maliciously entice or cause him or
her to stay away, from his or her spouse. This rule has
more frequently been applied in the case of advice
given to a married daughter, but it is equally applicable
in the case of advice given to a son.
Plaintiff Tenchavez, in falsely charging Vicenta's aged parents
with racial or social discrimination and with having exerted
efforts and pressured her to seek annulment and divorce,
unquestionably caused them unrest and anxiety, entitling them
to recover damages. While this suit may not have been
impelled by actual malice, the charges were certainly reckless
in the face of the proven facts and circumstances. Court
actions are not established for parties to give vent to their
prejudices or spleen.
In the assessment of the moral damages recoverable by
appellant Pastor Tenchavez from defendant Vicente Escaño, it
is proper to take into account, against his patently
unreasonable claim for a million pesos in damages, that (a)
the marriage was celebrated in secret, and its failure was not
characterized by publicity or undue humiliation on appellant's
part; (b) that the parties never lived together; and (c) that there
is evidence that appellant had originally agreed to the
annulment of the marriage, although such a promise was
legally invalid, being against public policy (cf. Art. 88, Civ.
Code). While appellant is unable to remarry under our law, this
fact is a consequence of the indissoluble character of the
union that appellant entered into voluntarily and with open
eyes rather than of her divorce and her second marriage. All
told, we are of the opinion that appellant should recover
P25,000 only by way of moral damages and attorney's fees.
With regard to the P45,000 damages awarded to the
defendants, Dr. Mamerto Escaño and Mena Escaño, by the
court below, we opine that the same are excessive. While the
filing of this unfounded suit must have wounded said
defendants' feelings and caused them anxiety, the same could
in no way have seriously injured their reputation, or otherwise
prejudiced them, lawsuits having become a common
occurrence in present society. What is important, and has
been correctly established in the decision of the court below, is
that said defendants were not guilty of any improper conduct in
the whole deplorable affair. This Court, therefore, reduces the
damages awarded to P5,000 only.
Summing up, the Court rules:
(1) That a foreign divorce between Filipino citizens, sought and
decreed after the effectivity of the present Civil Code (Rep. Act
386), is not entitled to recognition as valid in this jurisdiction;
and neither is the marriage contracted with another party by
the divorced consort, subsequently to the foreign decree of
divorce, entitled to validity in the country;
(2) That the remarriage of divorced wife and her co-habitation
with a person other than the lawful husband entitle the latter to
a decree of legal separation conformably to Philippine law;
(3) That the desertion and securing of an invalid divorce
decree by one consort entitles the other to recover damages;
(4) That an action for alienation of affections against the
parents of one consort does not lie in the absence of proof of
malice or unworthy motives on their part.
WHEREFORE, the decision under appeal is hereby modified
as follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a
decree of legal separation from defendant Vicenta F. Escaño;
(2) Sentencing defendant-appellee Vicenta Escaño to pay
plaintiff-appellant Tenchavez the amount of P25,000 for
damages and attorneys' fees;
(3) Sentencing appellant Pastor Tenchavez to pay the
appellee, Mamerto Escaño and the estate of his wife, the
deceased Mena Escaño, P5,000 by way of damages and
attorneys' fees.
Neither party to recover costs.
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 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.