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G.R. No. 154380 October 5, 2005

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.

CIPRIANO ORBECIDO III,Respondent.

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 spouselikewise 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 Decision1dated May 15, 2002, of the Regional

Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2dated July 4, 2002 denying the

motion for reconsideration. The court a quohad declared that herein respondent Cipriano Orbecido III is

capacitated to remarry. Thefalloof the impugned Decision reads:

WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and byreason 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.

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, Ciprianos wife left for the United States bringing along their son Kristoffer. A fe w 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

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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 Hearings 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.10The

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.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

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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 otherwisewould 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.

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 abroadby the alien spouse capacitating the

latter to remarry.

In this case, when Ciprianos 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 OSGs 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 respondents 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

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G.R. No. 124862 December 22, 1998

FE D. QUITA, petitioner,

vs.

COURT OF APPEALS and BLANDINA DANDAN, *respondents.

FE D. QUITA and Arturo T. Padlan, both Filipinos, were married in the Philippines on 18 May 1941. They

were not however blessed with children. Somewhere along the way their relationship soured. EventuallyFe sued Arturo for divorce in San Francisco, California, U.S.A. She submitted in the divorce proceedings a

private writing dated 19 July 1950 evidencing their agreement to live separately from each other and a

settlement of their conjugal properties. On 23 July 1954 she obtained a final judgment of divorce. Three

(3) weeks thereafter she married a certain Felix Tupaz in the same locality but their relationship also

ended in a divorce. Still in the U.S.A., she married for the third time, to a certain Wernimont.

On 16 April 1972 Arturo died. He left no will. On 31 August 1972 Lino Javier Inciong filed a petition with

the Regional Trial Court of Quezon City for issuance of letters of administration concerning the estate of

Arturo in favor of the Philippine Trust Company. Respondent Blandina Dandan (also referred to as

Blandina Padlan), claiming to be the surviving spouse of Arturo Padlan, and Claro, Alexis, Ricardo,

Emmanuel, Zenaida and Yolanda, all surnamed Padlan, named in the children of Arturo Padlan opposed

the petition and prayed for the appointment instead of Atty. Leonardo Casaba, which was resolved in

favor of the latter. Upon motion of the oppositors themselves, Atty. Cabasal was later replaced by

Higino Castillon. On 30 April 1973 the oppositors (Blandina and Padlan children) submitted certified

photocopies of the 19 July 1950 private writing and the final judgment of divorce between petitioner

and Arturo. Later Ruperto T. Padlan, claiming to be the sole surviving brother of the deceased Arturo,

intervened.

On 7 October 1987 petitioner moved for the immediate declaration of heirs of the decedent and the

distribution of his estate. At the scheduled hearing on 23 October 1987, private respondent as well as

the six (6) Padlan children and Ruperto failed to appear despite due notice. On the same day, the trial

court required the submission of the records of birth of the Padlan children within ten (10) days from

receipt thereof, after which, with or without the documents, the issue on the declaration of heirs wouldbe considered submitted for resolution. The prescribed period lapsed without the required documents

being submitted.

The trial court invoking Tenchavez v. Escao which held that "a foreigndivorce between Filipino citizens

sought and decreed after the effectivity of the present Civil Code (Rep. Act 386) was not entitled to

recognition as valid in this jurisdiction," disregarded the divorce between petitioner and Arturo.

Consecuently, it expressed the view that their marriage subsisted until the death of Arturo in 1972.

Neither did it consider valid their extrajudicial settlement of conjugal properties due to lack of judicial

approval. On the other hand, it opined that there was no showing that marriage existed between private

respondent and Arturo, much less was it shown that the alleged Padlan children had been

acknowledged by the deceased as his children with her. As regards Ruperto, it found that he was abrother of Arturo. On 27 November 1987 only petitioner and Ruperto were declared the intestate heirs

of Arturo. Accordingly, equal adjudication of the net hereditary estate was ordered in favor of the two

intestate heirs.

On motion for reconsideration, Blandina and the Padlan children were allowed to present proofs that

the recognition of the children by the deceased as his legitimate children, except Alexis who was

recognized as his illegitimate child, had been made in their respective records of birth. Thus on 15

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February 1988 6partial reconsideration was granted declaring the Padlan children, with the exception of

Alexis, entitled to one-half of the estate to the exclusion of Ruperto Padlan, and petitioner to the other

half.7 Private respondent was not declared an heir. Although it was stated in the aforementioned

records of birth that she and Arturo were married on 22 April 1947, their marriage was clearly void since

it was celebrated during the existence of his previous marriage to petitioner.

In their appeal to the Court of Appeals, Blandina and her children assigned as one of the errors allegedly

committed by the trial court the circumstance that the case was decided without a hearing, in violationof Sec. 1, Rule 90, of the Rules of Court, which provides that if there is a controversy before the court as

to who are the lawful heirs of the deceased person or as to the distributive shares to which each person

is entitled under the law, the controversy shall be heard and decided as in ordinary cases.

Respondent appellate court found this ground alone sufficient to sustain the appeal; hence, on 11

September 1995 it declared null and void the 27 November 1987 decision and 15 February 1988 order

of the trial court, and directed the remand of the case to the trial court for further proceedings. 8On 18

April 1996 it denied reconsideration.

Should this case be remanded to the lower court for further proceedings? Petitioner insists that there is

no need because, first, no legal or factual issue obtains for resolution either as to the heirship of the

Padlan children or as to the decedent; and, second, the issue as to who between petitioner and private

respondent is the proper hier of the decedent is one of law which can be resolved in the present

petition based on establish facts and admissions of the parties.

We cannot sustain petitioner. The provision relied upon by respondent court is clear: If there is a

controversy before the court as to who are the lawful heirs of the deceased person or as to the

distributive shares to which each person is entitled under the law, the controversy shall be heard and

decided as in ordinary cases.

We agree with petitioner that no dispute exists either as to the right of the six (6) Padlan children to

inherit from the decedent because there are proofs that they have been duly acknowledged by him and

petitioner herself even recognizes them as heirs of Arturo Padlan; 10nor as to their respective hereditaryshares. But controversy remains as to who is the legitimate surviving spouse of Arturo. The trial court,

after the parties other than petitioner failed to appear during the scheduled hearing on 23 October 1987

of the motion for immediate declaration of heirs and distribution of estate, simply issued an order

requiring the submission of the records of birth of the Padlan children within ten (10) days from receipt

thereof, after which, with or without the documents, the issue on declaration of heirs would be deemed

submitted for resolution.

We note that in her comment to petitioner's motion private respondent raised, among others, the issue

as to whether petitioner was still entitled to inherit from the decedent considering that she had secured

a divorce in the U.S.A. and in fact had twice remarried. She also invoked the above quoted procedural

rule.11

To this, petitioner replied that Arturo was a Filipino and as such remained legally married to herin spite of the divorce they obtained. 12Reading between the lines, the implication is that petitioner was

no longer a Filipino citizen at the time of her divorce from Arturo. This should have prompted the trial

court to conduct a hearing to establish her citizenship. The purpose of a hearing is to ascertain the truth

of the matters in issue with the aid of documentary and testimonial evidence as well as the arguments

of the parties either supporting or opposing the evidence. Instead, the lower court perfunctorily settled

her claim in her favor by merely applying the ruling inTenchavez v. Escao.

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Then in private respondent's motion to set aside and/or reconsider the lower court's decision she

stressed that the citizenship of petitioner was relevant in the light of the ruling in Van Dorn v. Romillo Jr.13

that aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are

valid according to their national law. She prayed therefore that the case be set for hearing.14

Petitioner

opposed the motion but failed to squarely address the issue on her citizenship.15

The trial court did not

grant private respondent's prayer for a hearing but proceeded to resolve her motion with the finding

that both petitioner and Arturo were "Filipino citizens and were married in the Philippines."16

It

maintained that their divorce obtained in 1954 in San Francisco, California, U.S.A., was not valid inPhilippine jurisdiction. We deduce that the finding on their citizenship pertained solely to the time of

their marriage as the trial court was not supplied with a basis to determine petitioner's citizenship at the

time of their divorce. The doubt persisted as to whether she was stilla Filipino citizen when their divorce

was decreed. The trial court must have overlooked the materiality of this aspect. Once proved that she

was no longer a Filipino citizen at the time of their divorce, Van Dornwould become applicable and

petitioner could very well lose her right to inherit from Arturo.

Respondent again raised in her appeal the issue on petitioner's citizenship; it did not merit enlightenment however

from petitioner. In the present proceeding, petitioner's citizenship is brought anew to the fore by private

respondent. She even furnishes the Court with the transcript of stenographic notes taken on 5 May 1995 during

the hearing for the reconstitution of the original of a certain transfer certificate title as well as the issuance of new

owner's duplicate copy thereof before another trial court. When asked whether she was an American citizenpetitioner answered that she was since 1954.

19Significantly, the decree of divorce of petitioner and Arturo was

obtained in the same year. Petitioner however did not bother to file a reply memorandum to erase the uncertainty

about her citizenship at the time of their divorce, a factual issue requiring hearings to be conducted by the trial

court. Consequently, respondent appellate court did not err in ordering the case returned to the trial court for

further proceedings.

We emphasize however that the question to be determined by the trial court should be limited only to the right of

petitioner to inherit from Arturo as his surviving spouse. Private respondent's claim to heirship was already

resolved by the trial court. She and Arturo were married on 22 April 1947 while the prior marriage of petitioner

and Arturo was subsisting thereby resulting in a bigamous marriage considered void from the beginning under

Arts. 80 and 83 of the Civil Code. Consequently, she is not a surviving spouse that can inherit from him as this

status presupposes a legitimate relationship.

As regards the motion of private respondent for petitioner and a her counsel to be declared in contempt of court

and that the present petition be dismissed for forum shopping,21

the same lacks merit. For forum shopping to exist

the actions must involve the same transactions and same essential facts and circumstances. There must also be

identical causes of action, subject matter and issue.22

The present petition deals with declaration of heirship while

the subsequent petitions filed before the three (3) trial courts concern the issuance of new owner's duplicate

copies of titles of certain properties belonging to the estate of Arturo. Obviously, there is no reason to declare the

existence of forum shopping.

WHEREFORE, the petition is DENIED. The decision of respondent Court of Appeals ordering the remand of the case

to the court of origin for further proceedings and declaring null and void its decision holding petitioner Fe D. Quita

and Ruperto T. Padlan as intestate heirs is AFFIRMED. The order of the appellate court modifying its previous

decision by granting one-half (1/2) of the net hereditary estate to the Padlan children, namely, Claro, Ricardo,

Emmanuel, Zenaida and Yolanda, with the exception of Alexis, all surnamed Padlan, instead of Arturo's brother

Ruperto Padlan, is likewise AFFIRMED. The Court however emphasizes that the reception of evidence by the trial

court should he limited to the hereditary rights of petitioner as the surviving spouse of Arturo Padlan .

The motion to declare petitioner and her counsel in contempt of court and to dismiss the present petition for

forum shopping is DENIED. SO ORDERED.

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G.R. No. L-12105 January 30, 1960

TESTATE ESTATE OF C. O. BOHANAN, deceased. PHILIPPINE TRUST CO., executor-appellee,

vs.

MAGDALENA C. BOHANAN, EDWARD C. BOHANAN, and MARY LYDIA BOHANAN, oppositors-

appellants.

Appeal against an order of the Court of First Instance of Manila, Hon. Ramon San Jose, presiding,dismissing the objections filed by Magdalena C. Bohanan, Mary Bohanan and Edward Bohanan to the

project of partition submitted by the executor and approving the said project.

On April 24, 195 0, the Court of First Instance of Manila, Hon. Rafael Amparo, presiding, admitted to

probate a last will and testament of C. O. Bohanan, executed by him on April 23, 1944 in Manila. In the

said order, the court made the following findings:

According to the evidence of the opponents the testator was born in Nebraska and therefore a

citizen of that state, or at least a citizen of California where some of his properties are located.

This contention in untenable. Notwithstanding the long residence of the decedent in the

Philippines, his stay here was merely temporary, and he continued and remained to be a citizenof the United States and of the state of his pertinent residence to spend the rest of his days in

that state. His permanent residence or domicile in the United States depended upon his

personal intent or desire, and he selected Nevada as his homicide and therefore at the time of

his death, he was a citizen of that state. Nobody can choose his domicile or permanent

residence for him. That is his exclusive personal right.

Wherefore, the court finds that the testator C. O. Bohanan was at the time of his death a citizen

of the United States and of the State of Nevada and declares that his will and testament, Exhibit

A, is fully in accordance with the laws of the state of Nevada and admits the same to probate.

Accordingly, the Philippine Trust Company, named as the executor of the will, is hereby

appointed to such executor and upon the filing of a bond in the sum of P10,000.00, let letters

testamentary be issued and after taking the prescribed oath, it may enter upon the executionand performance of its trust. (pp. 26-27, R.O.A.).

It does not appear that the order granting probate was ever questions on appeal. The executor filed a

project of partition dated January 24, 1956, making, in accordance with the provisions of the will, the

following adjudications: (1) one-half of the residuary estate, to the Farmers and Merchants National

Bank of Los Angeles, California, U.S.A. in trust only for the benefit of testator's grandson Edward George

Bohanan, which consists of several mining companies; (2) the other half of the residuary estate to the

testator's brother, F.L. Bohanan, and his sister, Mrs. M. B. Galbraith, share and share alike. This consist

in the same amount of cash and of shares of mining stock similar to those given to testator's grandson;

(3) legacies of P6,000 each to his (testator) son, Edward Gilbert Bohana, and his daughter, Mary Lydia

Bohanan, to be paid in three yearly installments; (4) legacies to Clara Daen, in the amount ofP10,000.00; Katherine Woodward, P2,000; Beulah Fox, P4,000; and Elizabeth Hastings, P2,000;

It will be seen from the above that out of the total estate (after deducting administration expenses) of

P211,639.33 in cash, the testator gave his grandson P90,819.67 and one-half of all shares of stock of

several mining companies and to his brother and sister the same amount. To his children he gave a

legacy of only P6,000 each, or a total of P12,000.

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The wife Magadalena C. Bohanan and her two children question the validity of the testamentary

provisions disposing of the estate in the manner above indicated, claiming that they have been deprived

of the legitimate that the laws of the form concede to them.

The first question refers to the share that the wife of the testator, Magdalena C. Bohanan, should be

entitled to received. The will has not given her any share in the estate left by the testator. It is argued

that it was error for the trial court to have recognized the Reno divorce secured by the testator from his

Filipino wife Magdalena C. Bohanan, and that said divorce should be declared a nullity in thisjurisdiction, citing the case of Querubin vs.Querubin, 87 Phil., 124, 47 Off. Gaz., (Sup, 12) 315, Cousins

Hiz vs.Fluemer, 55 Phil., 852, Ramirez vs.Gmur, 42 Phil., 855 and Gorayeb vs.Hashim, 50 Phil., 22. The

court below refused to recognize the claim of the widow on the ground that the laws of Nevada, of

which the deceased was a citizen, allow him to dispose of all of his properties without requiring him to

leave any portion of his estate to his wife. Section 9905 of Nevada Compiled Laws of 1925 provides:

Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all his

or her estate, real and personal, the same being chargeable with the payment of the testator's

debts.

Besides, the right of the former wife of the testator, Magdalena C. Bohanan, to a share in the testator's

estafa had already been passed upon adversely against her in an order dated June 19, 1955, (pp. 155-

159, Vol II Records, Court of First Instance), which had become final, as Magdalena C. Bohanan does not

appear to have appealed therefrom to question its validity. On December 16, 1953, the said former wife

filed a motion to withdraw the sum of P20,000 from the funds of the estate, chargeable against her

share in the conjugal property, (See pp. 294-297, Vol. I, Record, Court of First Instance), and the court in

its said error found that there exists no community property owned by the decedent and his former wife

at the time the decree of divorce was issued. As already and Magdalena C. Bohanan may no longer

question the fact contained therein, i.e. that there was no community property acquired by the testator

and Magdalena C. Bohanan during their converture.

Moreover, the court below had found that the testator and Magdalena C. Bohanan were married on

January 30, 1909, and that divorce was granted to him on May 20, 1922; that sometime in 1925,Magdalena C. Bohanan married Carl Aaron and this marriage was subsisting at the time of the death of

the testator. Since no right to share in the inheritance in favor of a divorced wife exists in the State of

Nevada and since the court below had already found that there was no conjugal property between the

testator and Magdalena C. Bohanan, the latter can now have no longer claim to pay portion of the

estate left by the testator.

The most important issue is the claim of the testator's children, Edward and Mary Lydia, who had

received legacies in the amount of P6,000 each only, and, therefore, have not been given their shares in

the estate which, in accordance with the laws of the forum, should be two-thirds of the estate left by

the testator. Is the failure old the testator to give his children two-thirds of the estate left by him at the

time of his death, in accordance with the laws of the forum valid?

The old Civil Code, which is applicable to this case because the testator died in 1944, expressly provides

that successional rights to personal property are to be earned by the national law of the person whose

succession is in question. Says the law on this point:

Nevertheless, legal and testamentary successions, in respect to the order of succession as well

as to the extent of the successional rights and the intrinsic validity of their provisions, shall be

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regulated by the national law of the person whose succession is in question, whatever may be

the nature of the property and the country in which it is found. (par. 2, Art. 10, old Civil Code,

which is the same as par. 2 Art. 16, new Civil Code.)

In the proceedings for the probate of the will, it was found out and it was decided that the testator was

a citizen of the State of Nevada because he had selected this as his domicile and his permanent

residence. (See Decision dated April 24, 1950, supra). So the question at issue is whether the

estementary dispositions, especially hose for the children which are short of the legitime given them bythe Civil Code of the Philippines, are valid. It is not disputed that the laws of Nevada allow a testator to

dispose of all his properties by will (Sec. 9905, Complied Nevada Laws of 1925, supra). It does not

appear that at time of the hearing of the project of partition, the above-quoted provision was

introduced in evidence, as it was the executor's duly to do. The law of Nevada, being a foreign law can

only be proved in our courts in the form and manner provided for by our Rules, which are as follows:

SEC. 41. Proof of public or official record. An official record or an entry therein, when

admissible for any purpose, may be evidenced by an official publication thereof or by a copy

tested by the officer having the legal custody of he record, or by his deputy, and accompanied, if

the record is not kept in the Philippines, with a certificate that such officer has the custody. . . .

(Rule 123).

We have, however, consulted the records of the case in the court below and we have found that during

the hearing on October 4, 1954 of the motion of Magdalena C. Bohanan for withdrawal of P20,000 as

her share, the foreign law, especially Section 9905, Compiled Nevada Laws. was introduced in evidence

by appellant's (herein) counsel as Exhibits "2" (See pp. 77-79, VOL. II, and t.s.n. pp. 24-44, Records, Court

of First Instance). Again said laws presented by the counsel for the executor and admitted by the Court

as Exhibit "B" during the hearing of the case on January 23, 1950 before Judge Rafael Amparo (se

Records, Court of First Instance, Vol. 1).

In addition, the other appellants, children of the testator, do not dispute the above-quoted provision of

the laws of the State of Nevada. Under all the above circumstances, we are constrained to hold that the

pertinent law of Nevada, especially Section 9905 of the Compiled Nevada Laws of 1925, can be takenjudicial notice of by us, without proof of such law having been offered at the hearing of the project of

partition.

As in accordance with Article 10 of the old Civil Code, the validity of testamentary dispositions are to be

governed by the national law of the testator, and as it has been decided and it is not disputed that the

national law of the testator is that of the State of Nevada, already indicated above, which allows a

testator to dispose of all his property according to his will, as in the case at bar, the order of the court

approving the project of partition made in accordance with the testamentary provisions, must be, as it is

hereby affirmed, with costs against appellants.

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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.

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside theOrders, 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 theRegional 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 ofthe 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 propertybecause 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

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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 divorceof 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 onmy 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

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, 5only 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.6In 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 Statesin 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

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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.

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G.R. No. 80116 June 30, 1989

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.

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.

Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by aseparation de facto between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private

respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local

Court in January, 1983. He claimed that there was failure of their marriage and that they had been living

apart since April, 1982. 2

Petitioner, on the other hand, filed an action for legal separation, support and separation of property

before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still

pending as Civil Case No. 83-15866.

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.

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. 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. 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.

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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. 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.

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.

On October 27, 1987, petitioner filed this special civil action for certiorariand 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."

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 CaseNo. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoez 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.

We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code, 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. 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 complaintis just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding 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

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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, asparens 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. 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'etreof 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.

In these cases, therefore, it is indispensable that the status and capacity of the complainant tocommence 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 necessaryin 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 materiawith

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

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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.

In the cited Loftuscase, the Supreme Court of Iowa held that

'No prosecution for adultery can be commenced except on the complaint of the

husband or wife.' Section 4932, Code. Though Loftus was husband of defendant whenthe 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 concerned23

in view of the nationality principle in our civil law on the

matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al.,24after a divorce was granted by a United

States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in

a trial court here alleging that her business concern was conjugal property and praying that she be

ordered to render an accounting and that the plaintiff be granted the right to manage the business.

Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance, thus:

There can be no question as to the validity of that Nevada divorce in any of the States of

the United States. The decree is binding on private respondent as an American citizen.

For instance, private respondent cannot sue petitioner, as her husband, in any State of

the Union. ...

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code,

only Philippine nationals are covered by the policy against absolute divorces the same

being considered contrary to our concept of public policy and morality. However, aliens

may obtain divorces abroad, which may be recognized in the Philippines, provided they

are valid according to their national law. ...

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

petitioner. He would have no standing to sue in the case below as petitioner's husband

entitled to exercise control over conjugal assets. ...

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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 therebe 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. Matacannot 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 initiois equivalent to stating

that it never existed. There being no marriage from the beginning, any complaint for adultery filed after

said declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently

contemplated and within the purview of the decision in said case is the situation where the criminal

action for adultery was filed beforethe termination of the marriage by a judicial declaration of its nullity

ab initio. The same rule and requisite would necessarily apply where the termination of the marriage

was effected, as in this case, by a valid foreign divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta,hereinbefore cited,27

must suffer the

same fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein had

duly and seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency butwhich 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 ASIDEand another one

entered DISMISSINGthe 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.

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G.R. No. 138322 October 2, 2001

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

vs.

REDERICK A. RECIO, respondents.

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 governingpersonal 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 Decision1and the March 24, 1999 Order2of 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. Reciosolemnized 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. They lived together as husband and wife in Australia. On May 18, 1989, 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.6Petitionera Filipinaand respondent were married

on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.7In their applicationfor 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 Marriage10in the court a quo,

on the ground of bigamyrespondent 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 onlyin November, 1997.

In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior

marriage andits subsequent dissolution.11He 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.

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On July 7, 1998or 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."

Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no

cause of action.14The Office of the Solicitor General agreed with respondent.15The court marked and

admitted the documentary evidence of both parties.16 After they submitted their respective

memoranda, the case was submitted for resolution.

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.

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 factoterminated 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

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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 factocapacitated the parties to

remarry, without first securing a recognition of the judgment granting the divorce decree before

our courts."

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 thesetwo, 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 1723of the Civil Code.24 In mixed marriages involving a Filipino and a foreigner, Article 26 25of 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 factand demonstrate its conformity to the foreign law allowing it.29Presentation solely of the divorce decree

is insufficient.

Divorce as a Question of Fact

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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:

x x x x x x x x x

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

annulled;

x x x x x x x x x

"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.30A divorce obtained abroad is

proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.31The

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.35However, 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

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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, donthe attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance to

the Philippines and the vinculum juristhat 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."41In 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. 43Like 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.44The 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 matrimoniiand (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.45There is

no showing in the case at bar which type of divorce was procured by respondent.

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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 3949of 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 BetweenRederick 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;54and (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; 59and

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Exhibit "5" Statutory Declaration of the Legal Separation Between Rederick A. Recto and Grace J.

Garcia Recio since October 22, 1995.60

Based on the above records, we cannot conclude that respondent, who was then a naturalized

Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with

petitioner's contention that the court a quoerred 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 tocontract 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 quomay 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 REMANDthe 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.

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G.R. No. 142820 June 20, 2003

WOLFGANG O. ROEHR, petitioner,

vs.

MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge of

Makati RTC, Branch 149,respondents.

At the core of the present controversy are issues of (a) grave abuse of discretion allegedly committed bypublic respondent and (b) lack of jurisdiction of the regional trial court, in matters that spring from a

divorce decree obtained abroad by petitioner.

In this special civil action for certiorari, petitioner assails (a) the order1 dated September 30, 1999 of

public respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati Regional Trial Court,2

Branch 149, in Civil Case No. 96-1389 for declaration of nullity of marriage, and (b) the order3dated

March 31, 2000 denying his motion for reconsideration. The assailed orders partially set aside the trial

courts order dismissing Civil Case No. 96-1389, for the purpose of resolving issues relating to the

property settlement of the spouses and the custody of their children.

Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private respondentCarmen Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany. Their marriage was

subsequently ratified on February 14, 1981 in Tayasan, Negros Oriental.4Out of their union were born

Carolynne and Alexandra Kristine on November 18, 1981 and October 25, 1987, respectively.

On August 28, 1996, private respondent filed a petition5for declaration of nullity of marriage before the

Regional Trial Court (RTC) of Makati City. On February 6, 1997, petitioner filed a motion to dismiss,6but

it was denied by the trial court in its order7dated May 28, 1997.

On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an order 8 dated

August 13, 1997. On September 5, 1997, petitioner filed a petition for certiorari with the Court of

Appeals. On November 27, 1998, the appellate court denied the petition and remanded the case to the

RTC.

Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance of Hamburg-

Blankenese, promulgated on December 16, 1997.

The decree provides in part:

[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through Judge van

Buiren of the Court of First Instance on the basis of the oral proceedings held on 4 Nov. 1997:

The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar of

Hamburg-Altona is hereby dissolved.

The parental custody for the children

Carolynne Roehr, born 18 November 1981

Alexandra Kristine Roehr, born on 25 October 1987

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is granted to the father.

The litigation expenses shall be assumed by the Parties.9

In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999 on the ground that

the trial court had no jurisdiction over the subject matter of the action or suit as a decree of divorce had

already been promulgated dissolving the marriage of petitioner and private respondent