G.R. No. L-2935 March 23, 1909 Fourth.

9 Fourth. That on the 11th day of February, 1904, the defendant left the
service of the plaintiff and refused to make further compliance with the
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, plaintiff-appellee, terms of the contract.
vs.
GEORGE I. FRANK, defendant-appellant. Fifth. On the 3d day of December, 1904, the plaintiff commenced an
action in the Court of First Instance of the city of Manila to recover from
Bishop and O'Brien for appellant. the defendant the sum of 269.23 dollars, which amount the plaintiff
Attorney-General Wilfley for appellee. claimed had been paid to the defendant as expenses incurred in
traveling from Chicago to Manila, and as half salary for the period
JOHNSON, J.: consumed in travel.

Judgment was rendered in the lower court on the 5th day of September, Sixth. It was expressly agreed between the parties to said contract that
1905. The defendant appealed. On the 12th day of October, 1905, the Laws No. 80 and No. 224 should constitute a part of said contract.
appellant filed his printed bill of exceptions with the clerk of the Supreme
Court. On the 5th day of December, 1905, the appellant filed his brief To the complaint of the plaintiff the defendant filed a general denial and a
with the clerk of the Supreme Court. On the 19th day of January, 1906, special defense, alleging in his special defense that the Government of
the Attorney-General filed his brief in said cause. Nothing further was the Philippine Islands had amended Laws No. 80 and No. 224 and had
done in said cause until on or about the 30th day of January, 1909, when thereby materially altered the said contract, and also that he was a minor
the respective parties were requested by this court to prosecute the at the time the contract was entered into and was therefore not
appeal under the penalty of having the same dismissed for failure so to responsible under the law.
do; whereupon the appellant, by petition, had the caused placed upon
the calendar and the same was heard on the 2d day of February, 1909. To the special defense of the defendant the plaintiff filed a demurrer,
which demurrer the court sustained.
The facts from the record appear to be as follows:
Upon the issue thus presented, and after hearing the evidence adduced
First. That on or about the 17th day of April, 1903, in the city of Chicago, during the trial of the cause, the lower court rendered a judgment against
in the state of Illinois, in the United States, the defendant, through a the defendant and in favor of the plaintiff for the sum of 265.90 dollars.
respective of the Insular Government of the Philippine Islands, entered The lower court found that at the time the defendant quit the service of
into a contract for a period of two years with the plaintiff, by which the the plaintiff there was due him from the said plaintiff the sum of 3.33
defendant was to receive a salary of 1,200 dollars per year as a dollars, leaving a balance due the plaintiff in the sum of 265.90 dollars.
stenographer in the service of the said plaintiff, and in addition thereto From this judgment the defendant appealed and made the following
was to be paid in advance the expenses incurred in traveling from the assignments of error:
said city of Chicago to Manila, and one-half salary during said period of
travel. 1. The court erred in sustaining plaintiff's demurrer to defendant's special
defenses.
Second. Said contract contained a provision that in case of a violation of
its terms on the part of the defendant, he should become liable to the 2. The court erred in rendering judgment against the defendant on the
plaintiff for the amount expended by the Government by way of facts.
expenses incurred in traveling from Chicago to Manila and one-half
salary paid during such period. With reference to the above assignments of error, it may be said that the
mere fact that the legislative department of the Government of the
Third. The defendant entered upon the performance of his contract upon Philippine Islands had amended said Acts No. 80 and No. 224 by the
the 30th day of April, 1903, and was paid half-salary from that date until Acts No. 643 and No. 1040 did not have the effect of changing the terms
June 4, 1903, the date of his arrival in the Philippine Islands. of the contract made between the plaintiff and the defendant. The
legislative department of the Government is expressly prohibited by
section 5 of the Act of Congress of 1902 from altering or changing the For the reasons above stated, the judgment of the lower court is
terms of the contract. The right which the defendant had acquired by affirmed, with costs.
virtue of Acts No. 80 and No. 224 had not been changed in any respect
by the fact that said laws had been amended. These acts, constituting Arellano, C. J., Torres, Mapa, Carson, and Willard, JJ., concur.
the terms of the contract, still constituted a part of said contract and were
enforceable in favor of the defendant. G.R. No. L-23145 November 29, 1968

The defendant alleged in his special defense that he was a minor and TESTATE ESTATE OF IDONAH SLADE PERKINS, deceased.
therefore the contract could not be enforced against him. The record RENATO D. TAYAG, ancillary administrator-appellee,
discloses that, at the time the contract was entered into in the State of
vs.
Illinois, he was an adult under the laws of that State and had full authority BENGUET CONSOLIDATED, INC., oppositor-appellant.
to contract. The plaintiff [the defendant] claims that, by reason of the fact
that, under the laws of the Philippine Islands at the time the contract was
made, male persons in said Islands did not reach their majority until they Cirilo F. Asperillo, Jr., for ancillary administrator-appellee.
had attained the age of 23 years, he was not liable under said contract, Ross, Salcedo, Del Rosario, Bito and Misa for oppositor-appellant.
contending that the laws of the Philippine Islands governed. It is not
disputed — upon the contrary the fact is admitted — that at the time and FERNANDO, J.:
place of the making of the contract in question the defendant had full
capacity to make the same. No rule is better settled in law than that Confronted by an obstinate and adamant refusal of the domiciliary
matters bearing upon the execution, interpretation and validity of a administrator, the County Trust Company of New York, United States of
contract are determined by the law of the place where the contract is America, of the estate of the deceased Idonah Slade Perkins, who died
made. (Scudder vs. Union National Bank, 91 U. S., 406.) Matters in New York City on March 27, 1960, to surrender to the ancillary
connected with its performance are regulated by the law prevailing at the administrator in the Philippines the stock certificates owned by her in a
place of performance. Matters respecting a remedy, such as the bringing Philippine corporation, Benguet Consolidated, Inc., to satisfy the
of suit, admissibility of evidence, and statutes of limitations, depend upon legitimate claims of local creditors, the lower court, then presided by the
the law of the place where the suit is brought. (Idem.) Honorable Arsenio Santos, now retired, issued on May 18, 1964, an
order of this tenor: "After considering the motion of the ancillary
The defendant's claim that he was an adult when he left Chicago but was administrator, dated February 11, 1964, as well as the opposition filed by
a minor when he arrived at Manila; that he was an adult at the time he the Benguet Consolidated, Inc., the Court hereby (1) considers as lost for
made the contract but was a minor at the time the plaintiff attempted to all purposes in connection with the administration and liquidation of the
enforce the contract, more than a year later, is not tenable. Philippine estate of Idonah Slade Perkins the stock certificates covering
the 33,002 shares of stock standing in her name in the books of the
Our conclusions with reference to the first above assignment of error are, Benguet Consolidated, Inc., (2) orders said certificates cancelled, and (3)
therefore: directs said corporation to issue new certificates in lieu thereof, the same
to be delivered by said corporation to either the incumbent ancillary
administrator or to the Probate Division of this Court."1
First. That the amendments to Acts No. 80 and No. 224 in no way
affected the terms of the contract in question; and
From such an order, an appeal was taken to this Court not by the
domiciliary administrator, the County Trust Company of New York, but by
Second. The plaintiff [defendant] being fully qualified to enter into the the Philippine corporation, the Benguet Consolidated, Inc. The appeal
contract at the place and time the contract was made, he can not plead
cannot possibly prosper. The challenged order represents a response
infancy as a defense at the place where the contract is being enforced.
and expresses a policy, to paraphrase Frankfurter, arising out of a
specific problem, addressed to the attainment of specific ends by the use
We believe that the above conclusions also dispose of the second of specific remedies, with full and ample support from legal doctrines of
assignment of error. weight and significance.
The facts will explain why. As set forth in the brief of appellant Benguet clear its being buttressed by indisputable principles and supported by the
Consolidated, Inc., Idonah Slade Perkins, who died on March 27, 1960 in strongest policy considerations.
New York City, left among others, two stock certificates covering 33,002
shares of appellant, the certificates being in the possession of the It can truly be said then that the result arrived at upheld and vindicated
County Trust Company of New York, which as noted, is the domiciliary the honor of the judiciary no less than that of the country. Through this
administrator of the estate of the deceased. 2 Then came this portion of challenged order, there is thus dispelled the atmosphere of contingent
the appellant's brief: "On August 12, 1960, Prospero Sanidad instituted frustration brought about by the persistence of the domiciliary
ancillary administration proceedings in the Court of First Instance of administrator to hold on to the stock certificates after it had, as admitted,
Manila; Lazaro A. Marquez was appointed ancillary administrator, and on voluntarily submitted itself to the jurisdiction of the lower court by
January 22, 1963, he was substituted by the appellee Renato D. Tayag. entering its appearance through counsel on June 27, 1963, and filing a
A dispute arose between the domiciary administrator in New York and petition for relief from a previous order of March 15, 1963.
the ancillary administrator in the Philippines as to which of them was
entitled to the possession of the stock certificates in question. On
Thus did the lower court, in the order now on appeal, impart vitality and
January 27, 1964, the Court of First Instance of Manila ordered the effectiveness to what was decreed. For without it, what it had been
domiciliary administrator, County Trust Company, to "produce and decided would be set at naught and nullified. Unless such a blatant
deposit" them with the ancillary administrator or with the Clerk of Court.
disregard by the domiciliary administrator, with residence abroad, of what
The domiciliary administrator did not comply with the order, and on
was previously ordained by a court order could be thus remedied, it
February 11, 1964, the ancillary administrator petitioned the court to
would have entailed, insofar as this matter was concerned, not a partial
"issue an order declaring the certificate or certificates of stocks covering
but a well-nigh complete paralysis of judicial authority.
the 33,002 shares issued in the name of Idonah Slade Perkins by
Benguet Consolidated, Inc., be declared [or] considered as lost."3
1. Appellant Benguet Consolidated, Inc. did not dispute the power of the
appellee ancillary administrator to gain control and possession of all
It is to be noted further that appellant Benguet Consolidated, Inc. admits
assets of the decedent within the jurisdiction of the Philippines. Nor could
that "it is immaterial" as far as it is concerned as to "who is entitled to the
it. Such a power is inherent in his duty to settle her estate and satisfy the
possession of the stock certificates in question; appellant opposed the claims of local creditors.5 As Justice Tuason speaking for this Court
petition of the ancillary administrator because the said stock certificates
made clear, it is a "general rule universally recognized" that
are in existence, they are today in the possession of the domiciliary
administration, whether principal or ancillary, certainly "extends to the
administrator, the County Trust Company, in New York, U.S.A...."4
assets of a decedent found within the state or country where it was
granted," the corollary being "that an administrator appointed in one state
It is its view, therefore, that under the circumstances, the stock or country has no power over property in another state or country." 6
certificates cannot be declared or considered as lost. Moreover, it would
allege that there was a failure to observe certain requirements of its by-
It is to be noted that the scope of the power of the ancillary administrator
laws before new stock certificates could be issued. Hence, its appeal.
was, in an earlier case, set forth by Justice Malcolm. Thus: "It is often
necessary to have more than one administration of an estate. When a
As was made clear at the outset of this opinion, the appeal lacks merit. person dies intestate owning property in the country of his domicile as
The challenged order constitutes an emphatic affirmation of judicial well as in a foreign country, administration is had in both countries. That
authority sought to be emasculated by the wilful conduct of the which is granted in the jurisdiction of decedent's last domicile is termed
domiciliary administrator in refusing to accord obedience to a court the principal administration, while any other administration is termed the
decree. How, then, can this order be stigmatized as illegal? ancillary administration. The reason for the latter is because a grant of
administration does not ex proprio vigore have any effect beyond the
As is true of many problems confronting the judiciary, such a response limits of the country in which it is granted. Hence, an administrator
was called for by the realities of the situation. What cannot be ignored is appointed in a foreign state has no authority in the [Philippines]. The
that conduct bordering on wilful defiance, if it had not actually reached it, ancillary administration is proper, whenever a person dies, leaving in a
cannot without undue loss of judicial prestige, be condoned or tolerated. country other than that of his last domicile, property to be administered in
For the law is not so lacking in flexibility and resourcefulness as to the nature of assets of the deceased liable for his individual debts or to
preclude such a solution, the more so as deeper reflection would make be distributed among his heirs."7
It would follow then that the authority of the probate court to require that It may be admitted of course that such alleged loss as found by the lower
ancillary administrator's right to "the stock certificates covering the court did not correspond exactly with the facts. To be more blunt, the
33,002 shares ... standing in her name in the books of [appellant] quality of truth may be lacking in such a conclusion arrived at. It is to be
Benguet Consolidated, Inc...." be respected is equally beyond question. remembered however, again to borrow from Frankfurter, "that fictions
For appellant is a Philippine corporation owing full allegiance and subject which the law may rely upon in the pursuit of legitimate ends have played
to the unrestricted jurisdiction of local courts. Its shares of stock cannot an important part in its development."11
therefore be considered in any wise as immune from lawful court orders.
Speaking of the common law in its earlier period, Cardozo could state
Our holding in Wells Fargo Bank and Union v. Collector of Internal fictions "were devices to advance the ends of justice, [even if] clumsy
Revenue8 finds application. "In the instant case, the actual situs of the and at times offensive."12 Some of them have persisted even to the
shares of stock is in the Philippines, the corporation being domiciled present, that eminent jurist, noting "the quasi contract, the adopted child,
[here]." To the force of the above undeniable proposition, not even the constructive trust, all of flourishing vitality, to attest the empire of "as
appellant is insensible. It does not dispute it. Nor could it successfully do if" today."13 He likewise noted "a class of fictions of another order, the
so even if it were so minded. fiction which is a working tool of thought, but which at times hides itself
from view till reflection and analysis have brought it to the light." 14
2. In the face of such incontrovertible doctrines that argue in a rather
conclusive fashion for the legality of the challenged order, how does What cannot be disputed, therefore, is the at times indispensable role
appellant, Benguet Consolidated, Inc. propose to carry the extremely that fictions as such played in the law. There should be then on the part
heavy burden of persuasion of precisely demonstrating the contrary? It of the appellant a further refinement in the catholicity of its condemnation
would assign as the basic error allegedly committed by the lower court its of such judicial technique. If ever an occasion did call for the employment
"considering as lost the stock certificates covering 33,002 shares of of a legal fiction to put an end to the anomalous situation of a valid
Benguet belonging to the deceased Idonah Slade Perkins, ..."9 More judicial order being disregarded with apparent impunity, this is it. What is
specifically, appellant would stress that the "lower court could not thus most obvious is that this particular alleged error does not carry
"consider as lost" the stock certificates in question when, as a matter of persuasion.
fact, his Honor the trial Judge knew, and does know, and it is admitted by
the appellee, that the said stock certificates are in existence and are 3. Appellant Benguet Consolidated, Inc. would seek to bolster the above
today in the possession of the domiciliary administrator in New York."10 contention by its invoking one of the provisions of its by-laws which
would set forth the procedure to be followed in case of a lost, stolen or
There may be an element of fiction in the above view of the lower court. destroyed stock certificate; it would stress that in the event of a contest
That certainly does not suffice to call for the reversal of the appealed or the pendency of an action regarding ownership of such certificate or
order. Since there is a refusal, persistently adhered to by the domiciliary certificates of stock allegedly lost, stolen or destroyed, the issuance of a
administrator in New York, to deliver the shares of stocks of appellant new certificate or certificates would await the "final decision by [a] court
corporation owned by the decedent to the ancillary administrator in the regarding the ownership [thereof]."15
Philippines, there was nothing unreasonable or arbitrary in considering
them as lost and requiring the appellant to issue new certificates in lieu Such reliance is misplaced. In the first place, there is no such occasion
thereof. Thereby, the task incumbent under the law on the ancillary to apply such by-law. It is admitted that the foreign domiciliary
administrator could be discharged and his responsibility fulfilled. administrator did not appeal from the order now in question. Moreover,
there is likewise the express admission of appellant that as far as it is
Any other view would result in the compliance to a valid judicial order concerned, "it is immaterial ... who is entitled to the possession of the
being made to depend on the uncontrolled discretion of the party or stock certificates ..." Even if such were not the case, it would be a legal
entity, in this case domiciled abroad, which thus far has shown the absurdity to impart to such a provision conclusiveness and finality.
utmost persistence in refusing to yield obedience. Certainly, appellant Assuming that a contrariety exists between the above by-law and the
would not be heard to contend in all seriousness that a judicial decree command of a court decree, the latter is to be followed.
could be treated as a mere scrap of paper, the court issuing it being
powerless to remedy its flagrant disregard.
It is understandable, as Cardozo pointed out, that the Constitution creature without any existence until it has received the imprimatur of the
overrides a statute, to which, however, the judiciary must yield state according to law. It is logically inconceivable therefore that it will
deference, when appropriately invoked and deemed applicable. It would have rights and privileges of a higher priority than that of its creator.
be most highly unorthodox, however, if a corporate by-law would be More than that, it cannot legitimately refuse to yield obedience to acts of
accorded such a high estate in the jural order that a court must not only its state organs, certainly not excluding the judiciary, whenever called
take note of it but yield to its alleged controlling force. upon to do so.

The fear of appellant of a contingent liability with which it could be As a matter of fact, a corporation once it comes into being, following
saddled unless the appealed order be set aside for its inconsistency with American law still of persuasive authority in our jurisdiction, comes more
one of its by-laws does not impress us. Its obedience to a lawful court often within the ken of the judiciary than the other two coordinate
order certainly constitutes a valid defense, assuming that such branches. It institutes the appropriate court action to enforce its right.
apprehension of a possible court action against it could possibly Correlatively, it is not immune from judicial control in those instances,
materialize. Thus far, nothing in the circumstances as they have where a duty under the law as ascertained in an appropriate legal
developed gives substance to such a fear. Gossamer possibilities of a proceeding is cast upon it.
future prejudice to appellant do not suffice to nullify the lawful exercise of
judicial authority. To assert that it can choose which court order to follow and which to
disregard is to confer upon it not autonomy which may be conceded but
4. What is more the view adopted by appellant Benguet Consolidated, license which cannot be tolerated. It is to argue that it may, when so
Inc. is fraught with implications at war with the basic postulates of minded, overrule the state, the source of its very existence; it is to
corporate theory. contend that what any of its governmental organs may lawfully require
could be ignored at will. So extravagant a claim cannot possibly merit
We start with the undeniable premise that, "a corporation is an artificial approval.
being created by operation of law...."16 It owes its life to the state, its birth
being purely dependent on its will. As Berle so aptly stated: "Classically, 5. One last point. In Viloria v. Administrator of Veterans Affairs, 22 it was
a corporation was conceived as an artificial person, owing its existence shown that in a guardianship proceedings then pending in a lower court,
through creation by a sovereign power."17As a matter of fact, the the United States Veterans Administration filed a motion for the refund of
statutory language employed owes much to Chief Justice Marshall, who a certain sum of money paid to the minor under guardianship, alleging
in the Dartmouth College decision defined a corporation precisely as "an that the lower court had previously granted its petition to consider the
artificial being, invisible, intangible, and existing only in contemplation of deceased father as not entitled to guerilla benefits according to a
law."18 determination arrived at by its main office in the United States. The
motion was denied. In seeking a reconsideration of such order, the
The well-known authority Fletcher could summarize the matter thus: "A Administrator relied on an American federal statute making his decisions
corporation is not in fact and in reality a person, but the law treats it as "final and conclusive on all questions of law or fact" precluding any other
though it were a person by process of fiction, or by regarding it as an American official to examine the matter anew, "except a judge or judges
artificial person distinct and separate from its individual stockholders.... It of the United States court."23 Reconsideration was denied, and the
owes its existence to law. It is an artificial person created by law for Administrator appealed.
certain specific purposes, the extent of whose existence, powers and
liberties is fixed by its charter."19 Dean Pound's terse summary, a juristic In an opinion by Justice J.B.L. Reyes, we sustained the lower court.
person, resulting from an association of human beings granted legal Thus: "We are of the opinion that the appeal should be rejected. The
personality by the state, puts the matter neatly.20 provisions of the U.S. Code, invoked by the appellant, make the
decisions of the U.S. Veterans' Administrator final and conclusive when
There is thus a rejection of Gierke's genossenchaft theory, the basic made on claims property submitted to him for resolution; but they are not
theme of which to quote from Friedmann, "is the reality of the group as a applicable to the present case, where the Administrator is not acting as a
social and legal entity, independent of state recognition and judge but as a litigant. There is a great difference between actions
concession."21 A corporation as known to Philippine jurisprudence is a against the Administrator (which must be filed strictly in accordance with
the conditions that are imposed by the Veterans' Act, including the
exclusive review by United States courts), and those actions where the Testate Estate of Joseph G. Brimo, JUAN MICIANO,
Veterans' Administrator seeks a remedy from our courts and submits to administrator, petitioner-appellee,
their jurisdiction by filing actions therein. Our attention has not been vs.
called to any law or treaty that would make the findings of the Veterans' ANDRE BRIMO, opponent-appellant.
Administrator, in actions where he is a party, conclusive on our courts.
That, in effect, would deprive our tribunals of judicial discretion and Ross, Lawrence and Selph for appellant.
render them mere subordinate instrumentalities of the Veterans' Camus and Delgado for appellee.
Administrator."

It is bad enough as the Viloria decision made patent for our judiciary to
accept as final and conclusive, determinations made by foreign ROMUALDEZ, J.:
governmental agencies. It is infinitely worse if through the absence of
any coercive power by our courts over juridical persons within our
jurisdiction, the force and effectivity of their orders could be made to The partition of the estate left by the deceased Joseph G. Brimo is in
depend on the whim or caprice of alien entities. It is difficult to imagine of question in this case.
a situation more offensive to the dignity of the bench or the honor of the
country. The judicial administrator of this estate filed a scheme of partition. Andre
Brimo, one of the brothers of the deceased, opposed it. The court,
Yet that would be the effect, even if unintended, of the proposition to however, approved it.
which appellant Benguet Consolidated seems to be firmly committed as
shown by its failure to accept the validity of the order complained of; it The errors which the oppositor-appellant assigns are:
seeks its reversal. Certainly we must at all pains see to it that it does not
succeed. The deplorable consequences attendant on appellant (1) The approval of said scheme of partition; (2) denial of his participation
prevailing attest to the necessity of negative response from us. That is in the inheritance; (3) the denial of the motion for reconsideration of the
what appellant will get. order approving the partition; (4) the approval of the purchase made by
the Pietro Lana of the deceased's business and the deed of transfer of
That is all then that this case presents. It is obvious why the appeal said business; and (5) the declaration that the Turkish laws are
cannot succeed. It is always easy to conjure extreme and even impertinent to this cause, and the failure not to postpone the approval of
oppressive possibilities. That is not decisive. It does not settle the issue. the scheme of partition and the delivery of the deceased's business to
What carries weight and conviction is the result arrived at, the just Pietro Lanza until the receipt of the depositions requested in reference to
solution obtained, grounded in the soundest of legal doctrines and the Turkish laws.
distinguished by its correspondence with what a sense of realism
requires. For through the appealed order, the imperative requirement of The appellant's opposition is based on the fact that the partition in
justice according to law is satisfied and national dignity and honor question puts into effect the provisions of Joseph G. Brimo's will which
maintained. are not in accordance with the laws of his Turkish nationality, for which
reason they are void as being in violation or article 10 of the Civil Code
WHEREFORE, the appealed order of the Honorable Arsenio Santos, the which, among other things, provides the following:
Judge of the Court of First Instance, dated May 18, 1964, is affirmed.
With costs against oppositor-appelant Benguet Consolidated, Inc. Nevertheless, legal and testamentary successions, in respect to
the order of succession as well as to the amount of the
Makalintal, Zaldivar and Capistrano, JJ., concur. successional rights and the intrinsic validity of their provisions,
Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez and Castro, JJ., concur shall be regulated by the national law of the person whose
in the result. succession is in question, whatever may be the nature of the
property or the country in which it may be situated.
G.R. No. L-22595 November 1, 1927
But the fact is that the oppositor did not prove that said testimentary The institution of legatees in this will is conditional, and the condition is
dispositions are not in accordance with the Turkish laws, inasmuch as he that the instituted legatees must respect the testator's will to distribute his
did not present any evidence showing what the Turkish laws are on the property, not in accordance with the laws of his nationality, but in
matter, and in the absence of evidence on such laws, they are presumed accordance with the laws of the Philippines.
to be the same as those of the Philippines. (Lim and Lim vs. Collector of
Customs, 36 Phil., 472.) If this condition as it is expressed were legal and valid, any legatee who
fails to comply with it, as the herein oppositor who, by his attitude in
It has not been proved in these proceedings what the Turkish laws are. these proceedings has not respected the will of the testator, as
He, himself, acknowledges it when he desires to be given an opportunity expressed, is prevented from receiving his legacy.
to present evidence on this point; so much so that he assigns as an error
of the court in not having deferred the approval of the scheme of partition The fact is, however, that the said condition is void, being contrary to
until the receipt of certain testimony requested regarding the Turkish law, for article 792 of the civil Code provides the following:
laws on the matter.
Impossible conditions and those contrary to law or good morals
The refusal to give the oppositor another opportunity to prove such laws shall be considered as not imposed and shall not prejudice the
does not constitute an error. It is discretionary with the trial court, and, heir or legatee in any manner whatsoever, even should the
taking into consideration that the oppositor was granted ample testator otherwise provide.
opportunity to introduce competent evidence, we find no abuse of
discretion on the part of the court in this particular. There is, therefore, no And said condition is contrary to law because it expressly ignores the
evidence in the record that the national law of the testator Joseph G.
testator's national law when, according to article 10 of the civil Code
Brimo was violated in the testamentary dispositions in question which,
above quoted, such national law of the testator is the one to govern his
not being contrary to our laws in force, must be complied with and
testamentary dispositions.
executed. lawphil.net
Said condition then, in the light of the legal provisions above cited, is
Therefore, the approval of the scheme of partition in this respect was not
considered unwritten, and the institution of legatees in said will is
erroneous.
unconditional and consequently valid and effective even as to the herein
oppositor.
In regard to the first assignment of error which deals with the exclusion of
the herein appellant as a legatee, inasmuch as he is one of the persons
It results from all this that the second clause of the will regarding the law
designated as such in will, it must be taken into consideration that such
which shall govern it, and to the condition imposed upon the legatees, is
exclusion is based on the last part of the second clause of the will, which
null and void, being contrary to law.
says:
All of the remaining clauses of said will with all their dispositions and
Second. I like desire to state that although by law, I am a Turkish
requests are perfectly valid and effective it not appearing that said
citizen, this citizenship having been conferred upon me by
clauses are contrary to the testator's national law.
conquest and not by free choice, nor by nationality and, on the
other hand, having resided for a considerable length of time in
the Philippine Islands where I succeeded in acquiring all of the Therefore, the orders appealed from are modified and it is directed that
property that I now possess, it is my wish that the distribution of the distribution of this estate be made in such a manner as to include the
my property and everything in connection with this, my will, be herein appellant Andre Brimo as one of the legatees, and the scheme of
made and disposed of in accordance with the laws in force in the partition submitted by the judicial administrator is approved in all other
Philippine islands, requesting all of my relatives to respect this respects, without any pronouncement as to costs.
wish, otherwise, I annul and cancel beforehand whatever
disposition found in this will favorable to the person or persons So ordered.
who fail to comply with this request.
Street, Malcolm, Avanceña, Villamor and Ostrand, JJ., concur. On January 15, 1986, Division 20 of the Schoneberg Local Court,
Federal Republic of Germany, promulgated a decree of divorce on the
G.R. No. 80116 June 30, 1989 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
IMELDA MANALAYSAY PILAPIL, petitioner, court was locally and internationally competent for the divorce
proceeding and that the dissolution of said marriage was legally founded
vs.
on and authorized by the applicable law of that foreign jurisdiction. 4
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 On June 27, 1986, or more than five months after the issuance of the
EKKEHARD GEILING, respondents. 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
REGALADO, J.: corresponding investigation, recommended the dismissal of the cases on
the ground of insufficiency of evidence. 5 However, upon review, the
An ill-starred marriage of a Filipina and a foreigner which ended in a respondent city fiscal approved a resolution, dated January 8, 1986,
foreign absolute divorce, only to be followed by a criminal infidelity suit of directing the filing of two complaints for adultery against the
the latter against the former, provides Us the opportunity to lay down a petitioner. 6 The complaints were accordingly filed and were eventually
decisional rule on what hitherto appears to be an unresolved raffled to two branches of the Regional Trial Court of Manila. The case
jurisdictional question. entitled "People of the Philippines vs. Imelda Pilapil and William
Chia", docketed as Criminal Case No. 87-52435, was assigned to
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino Branch XXVI presided by the respondent judge; while the other
citizen, and private respondent Erich Ekkehard Geiling, a German case, "People of the Philippines vs. Imelda Pilapil and James Chua",
national, were married before the Registrar of Births, Marriages and docketed as Criminal Case No. 87-52434 went to the sala of Judge
Deaths at Friedensweiler in the Federal Republic of Germany. The Leonardo Cruz, Branch XXV, of the same court. 7
marriage started auspiciously enough, and the couple lived together for
some time in Malate, Manila where their only child, Isabella Pilapil On March 14, 1987, petitioner filed a petition with the Secretary of
Geiling, was born on April 20, 1980. 1 Justice asking that the aforesaid resolution of respondent fiscal be set
aside and the cases against her be dismissed. 8 A similar petition was
Thereafter, marital discord set in, with mutual recriminations between the filed by James Chua, her co-accused in Criminal Case No. 87-52434.
spouses, followed by a separation de facto between them. The Secretary of Justice, through the Chief State Prosecutor, gave due
course to both petitions and directed the respondent city fiscal to inform
After about three and a half years of marriage, such connubial the Department of Justice "if the accused have already been arraigned
disharmony eventuated in private respondent initiating a divorce and if not yet arraigned, to move to defer further proceedings" and to
proceeding against petitioner in Germany before the Schoneberg Local elevate the entire records of both cases to his office for review. 9
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 thereafter filed a motion in both criminal cases to defer her
arraignment and to suspend further proceedings thereon. 10 As a
Petitioner, on the other hand, filed an action for legal separation, support consequence, Judge Leonardo Cruz suspended proceedings in Criminal
and separation of property before the Regional Trial Court of Manila, Case No. 87-52434. On the other hand, respondent judge merely reset
Branch XXXII, on January 23, 1983 where the same is still pending as the date of the arraignment in Criminal Case No. 87-52435 to April 6,
Civil Case No. 83-15866. 3 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 offended spouse, and nobody else. Unlike the offenses of seduction,
jurisdiction, 12 which motion was denied by the respondent judge in an abduction, rape and acts of lasciviousness, no provision is made for the
order dated September 8, 1987. The same order also directed the prosecution of the crimes of adultery and concubinage by the parents,
arraignment of both accused therein, that is, petitioner and William Chia. grandparents or guardian of the offended party. The so-called exclusive
The latter entered a plea of not guilty while the petitioner refused to be and successive rule in the prosecution of the first four offenses above
arraigned. Such refusal of the petitioner being considered by respondent mentioned do not apply to adultery and concubinage. It is significant that
judge as direct contempt, she and her counsel were fined and the former while the State, as parens patriae, was added and vested by the 1985
was ordered detained until she submitted herself for Rules of Criminal Procedure with the power to initiate the criminal action
arraignment. 13 Later, private respondent entered a plea of not guilty. 14 for a deceased or incapacitated victim in the aforesaid offenses of
seduction, abduction, rape and acts of lasciviousness, in default of her
On October 27, 1987, petitioner filed this special civil action parents, grandparents or guardian, such amendment did not include the
for certiorari and prohibition, with a prayer for a temporary restraining crimes of adultery and concubinage. In other words, only the offended
order, seeking the annulment of the order of the lower court denying her spouse, and no other, is authorized by law to initiate the action therefor.
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, Corollary to such exclusive grant of power to the offended spouse to
which is a private offense that cannot be prosecuted de officio (sic), institute the action, it necessarily follows that such initiator must have the
since the purported complainant, a foreigner, does not qualify as an status, capacity or legal representation to do so at the time of the filing of
offended spouse having obtained a final divorce decree under his the criminal action. This is a familiar and express rule in civil actions; in
national law prior to his filing the criminal complaint." 15 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.
On October 21, 1987, this Court issued a temporary restraining order
enjoining the respondents from implementing the aforesaid order of The absence of an equivalent explicit rule in the prosecution of criminal
September 8, 1987 and from further proceeding with Criminal Case No. cases does not mean that the same requirement and rationale would not
87-52435. Subsequently, on March 23, 1988 Secretary of Justice apply. Understandably, it may not have been found necessary since
Sedfrey A. Ordoñez acted on the aforesaid petitions for review and, criminal actions are generally and fundamentally commenced by the
upholding petitioner's ratiocinations, issued a resolution directing the State, through the People of the Philippines, the offended party being
respondent city fiscal to move for the dismissal of the complaints against merely the complaining witness therein. However, in the so-called
the petitioner. 16 "private crimes" or those which cannot be prosecuted de oficio, and the
present prosecution for adultery is of such genre, the offended spouse
We find this petition meritorious. The writs prayed for shall accordingly assumes a more predominant role since the right to commence the
issue. action, or to refrain therefrom, is a matter exclusively within his power
and option.
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 This policy was adopted out of consideration for the aggrieved party who
upon a sworn written complaint filed by the offended spouse. It has long might prefer to suffer the outrage in silence rather than go through the
since been established, with unwavering consistency, that compliance scandal of a public trial. 20 Hence, as cogently argued by petitioner,
with this rule is a jurisdictional, and not merely a formal, Article 344 of the Revised Penal Code thus presupposes that the marital
requirement. 18 While in point of strict law the jurisdiction of the court over relationship is still subsisting at the time of the institution of the criminal
the offense is vested in it by the Judiciary Law, the requirement for a action for, adultery. This is a logical consequence since the raison
sworn written complaint is just as jurisdictional a mandate since it is that d'etre of said provision of law would be absent where the supposed
complaint which starts the prosecutory proceeding 19 and without which offended party had ceased to be the spouse of the alleged offender at
the court cannot exercise its jurisdiction to try the case. the time of the filing of the criminal case. 21

Now, the law specifically provides that in prosecutions for adultery and In these cases, therefore, it is indispensable that the status and capacity
concubinage the person who can legally file the complaint should be the 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 on the matter. We are convinced that in cases of such nature, the status
bring the action would be determined by his of the complainant vis-a-vis the accused must be determined as of the
status before or subsequent to the commencement thereof, where such time the complaint was filed. Thus, the person who initiates the adultery
capacity or status existed prior to but ceased before, or was acquired case must be an offended spouse, and by this is meant that he is still
subsequent to but did not exist at the time of, the institution of the case. married to the accused spouse, at the time of the filing of the complaint.
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. In the present case, the fact that private respondent obtained a valid
divorce in his country, the Federal Republic of Germany, is admitted.
To repeat, there does not appear to be any local precedential Said divorce and its legal effects may be recognized in the Philippines
jurisprudence on the specific issue as to when precisely the status of a insofar as private respondent is concerned 23 in view of the nationality
complainant as an offended spouse must exist where a criminal principle in our civil law on the matter of status of persons.
prosecution can be commenced only by one who in law can be
categorized as possessed of such status. Stated differently and with Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a
reference to the present case, the inquiry ;would be whether it is divorce was granted by a United States court between Alice Van Dornja
necessary in the commencement of a criminal action for adultery that the Filipina, and her American husband, the latter filed a civil case in a trial
marital bonds between the complainant and the accused be unsevered court here alleging that her business concern was conjugal property and
and existing at the time of the institution of the action by the former praying that she be ordered to render an accounting and that the plaintiff
against the latter. be granted the right to manage the business. Rejecting his pretensions,
this Court perspicuously demonstrated the error of such stance, thus:
American jurisprudence, on cases involving statutes in that jurisdiction
which are in pari materia with ours, yields the rule that after a divorce has There can be no question as to the validity of that
been decreed, the innocent spouse no longer has the right to institute Nevada divorce in any of the States of the United States.
proceedings against the offenders where the statute provides that the The decree is binding on private respondent as an
innocent spouse shall have the exclusive right to institute a prosecution American citizen. For instance, private respondent
for adultery. Where, however, proceedings have been properly cannot sue petitioner, as her husband, in any State of
commenced, a divorce subsequently granted can have no legal effect on the Union. ...
the prosecution of the criminal proceedings to a conclusion. 22
It is true that owing to the nationality principle embodied
In the cited Loftus case, the Supreme Court of Iowa held that — in Article 15 of the Civil Code, only Philippine nationals
are covered by the policy against absolute divorces the
'No prosecution for adultery can be commenced except same being considered contrary to our concept of public
on the complaint of the husband or wife.' Section 4932, policy and morality. However, aliens may obtain divorces
Code. Though Loftus was husband of defendant when abroad, which may be recognized in the Philippines,
the offense is said to have been committed, he had provided they are valid according to their national law. ...
ceased to be such when the prosecution was begun;
and appellant insists that his status was not such as to Thus, pursuant to his national law, private respondent is
entitle him to make the complaint. We have repeatedly no longer the husband of petitioner. He would have no
said that the offense is against the unoffending spouse, standing to sue in the case below as petitioner's
as well as the state, in explaining the reason for this husband entitled to exercise control over conjugal
provision in the statute; and we are of the opinion assets. ... 25
that the unoffending spouse must be such when the
prosecution is commenced. (Emphasis supplied.)
Under the same considerations and rationale, private respondent, being
no longer the husband of petitioner, had no legal standing to commence
We see no reason why the same doctrinal rule should not apply in this the adultery case under the imposture that he was the offended spouse
case and in our jurisdiction, considering our statutory law and jural policy at the time he filed suit.
The allegation of private respondent that he could not have brought this temporary restraining order issued in this case on October 21, 1987 is
case before the decree of divorce for lack of knowledge, even if true, is hereby made permanent.
of no legal significance or consequence in this case. When said
respondent initiated the divorce proceeding, he obviously knew that there SO ORDERED.
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 Melencio-Herrera, Padilla and Sarmiento, JJ., concur.
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.
Separate Opinions
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 PARAS, J., concurring:
declared void", the Court merely stated that "the lawmakers intended to
declare adulterous the infidelity of a married woman to her marital vows,
It is my considered opinion that regardless of whether We consider the
even though it should be made to appear that she is entitled to have her
German absolute divorce as valid also in the Philippines, the fact is that
marriage contract declared null and void, until and unless she actually
the husband in the instant case, by the very act of his obtaining an
secures a formal judicial declaration to that effect". Definitely, it cannot
absolute divorce in Germany can no longer be considered as the
be logically inferred therefrom that the complaint can still be filed after
offended party in case his former wife actually has carnal knowledge with
the declaration of nullity because such declaration that the marriage is
another, because in divorcing her, he already implicitly authorized the
void ab initio is equivalent to stating that it never existed. There being no
woman to have sexual relations with others. A contrary ruling would be
marriage from the beginning, any complaint for adultery filed after said
less than fair for a man, who is free to have sex will be allowed to deprive
declaration of nullity would no longer have a leg to stand on. Moreover,
the woman of the same privilege.
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 In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court
declaration of its nullity ab initio. The same rule and requisite would considered the absolute divorce between the American husband and his
necessarily apply where the termination of the marriage was effected, as American wife as valid and binding in the Philippines on the theory that
in this case, by a valid foreign divorce. 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
Private respondent's invocation of Donio-Teves, et al. vs.
married to a Filipino wife, for then two (2) different nationalities would be
Vamenta, hereinbefore cited, 27 must suffer the same fate of
involved.
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 the book of Senate President Jovito Salonga entitled Private
in favor of the complainant. Said case did not involve a factual situation International Law and precisely because of the National law doctrine, he
akin to the one at bar or any issue determinative of the controversy considers the absolute divorce as valid insofar as the American husband
herein. 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
WHEREFORE, the questioned order denying petitioner's motion to
however, of the undersigned that very likely the opposite expresses the
quash is SET ASIDE and another one entered DISMISSING the
correct view. While under the national law of the husband the absolute
complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The
divorce will be valid, still one of the exceptions to the application of the is still married to a man who is no longer her husband. It is the opinion
proper foreign law (one of the exceptions to comity) is when the foreign however, of the undersigned that very likely the opposite expresses the
law will work an injustice or injury to the people or residents of the forum. correct view. While under the national law of the husband the absolute
Consequently since to recognize the absolute divorce as valid on the divorce will be valid, still one of the exceptions to the application of the
part of the husband would be injurious or prejudicial to the Filipino wife proper foreign law (one of the exceptions to comity) is when the foreign
whose marriage would be still valid under her national law, it would seem law will work an injustice or injury to the people or residents of the forum.
that under our law existing before the new Family Code (which took Consequently since to recognize the absolute divorce as valid on the
effect on August 3, 1988) the divorce should be considered void both part of the husband would be injurious or prejudicial to the Filipino wife
with respect to the American husband and 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
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot effect on August 3, 1988) the divorce should be considered void both
apply despite the fact that the husband was an American can with a with respect to the American husband and the Filipino wife.
Filipino wife because in said case the validity of the divorce insofar as
the Filipino wife is concerned was NEVER put in issue. 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
G.R. No. 142820 June 20, 2003
PARAS, J., concurring:
WOLFGANG O. ROEHR, petitioner,
vs.
It is my considered opinion that regardless of whether We consider the
MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA
German absolute divorce as valid also in the Philippines, the fact is that
GUEVARA-SALONGA, Presiding Judge of Makati RTC, Branch
the husband in the instant case, by the very act of his obtaining an
149, respondents.
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 QUISUMBING, J.:
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 At the core of the present controversy are issues of (a) grave abuse of
the woman of the same privilege. discretion allegedly committed by public respondent and (b) lack of
jurisdiction of the regional trial court, in matters that spring from a divorce
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court decree obtained abroad by petitioner.
considered the absolute divorce between the American husband and his
American wife as valid and binding in the Philippines on the theory that In this special civil action for certiorari, petitioner assails (a) the
their status and capacity are governed by their National law, namely, order1 dated September 30, 1999 of public respondent Judge Josefina
American law. There is no decision yet of the Supreme Court regarding Guevara-Salonga, Presiding Judge of Makati Regional Trial
the validity of such a divorce if one of the parties, say an American, is Court,2 Branch 149, in Civil Case No. 96-1389 for declaration of nullity of
married to a Filipino wife, for then two (2) different nationalities would be marriage, and (b) the order3 dated March 31, 2000 denying his motion for
involved. reconsideration. The assailed orders partially set aside the trial court’s
order dismissing Civil Case No. 96-1389, for the purpose of resolving
In the book of Senate President Jovito Salonga entitled Private issues relating to the property settlement of the spouses and the custody
International Law and precisely because of the National law doctrine, he of their children.
considers the absolute divorce as valid insofar as the American husband
is concerned but void insofar as the Filipino wife is involved. This results Petitioner Wolfgang O. Roehr, a German citizen and resident of
in what he calls a "socially grotesque situation," where a Filipino woman Germany, married private respondent Carmen Rodriguez, a Filipina, on
December 11, 1980 in Hamburg, Germany. Their marriage was On July 14, 1999, Judge Guevara-Salonga issued an order granting
subsequently ratified on February 14, 1981 in Tayasan, Negros petitioner’s motion to dismiss. Private respondent filed a Motion for
Oriental.4 Out of their union were born Carolynne and Alexandra Kristine Partial Reconsideration, with a prayer that the case proceed for the
on November 18, 1981 and October 25, 1987, respectively. purpose of determining the issues of custody of children and the
distribution of the properties between petitioner and private respondent.
On August 28, 1996, private respondent filed a petition 5 for declaration of
nullity of marriage before the Regional Trial Court (RTC) of Makati City. On August 18, 1999, an Opposition to the Motion for Partial
On February 6, 1997, petitioner filed a motion to dismiss,6 but it was Reconsideration was filed by the petitioner on the ground that there is
denied by the trial court in its order7 dated May 28, 1997. nothing to be done anymore in the instant case as the marital tie
between petitioner Wolfgang Roehr and respondent Ma. Carmen D.
On June 5, 1997, petitioner filed a motion for reconsideration, but was Rodriguez had already been severed by the decree of divorce
also denied in an order8 dated August 13, 1997. On September 5, 1997, promulgated by the Court of First Instance of Hamburg, Germany on
petitioner filed a petition for certiorari with the Court of Appeals. On December 16, 1997 and in view of the fact that said decree of divorce
November 27, 1998, the appellate court denied the petition and had already been recognized by the RTC in its order of July 14, 1999,
remanded the case to the RTC. through the implementation of the mandate of Article 26 of the Family
Code,10 endowing the petitioner with the capacity to remarry under the
Philippine law.
Meanwhile, petitioner obtained a decree of divorce from the Court of First
Instance of Hamburg-Blankenese, promulgated on December 16, 1997.
On September 30, 1999, respondent judge issued the assailed order
partially setting aside her order dated July 14, 1999 for the purpose of
The decree provides in part:
tackling the issues of property relations of the spouses as well as support
and custody of their children. The pertinent portion of said order
[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, provides:
has ruled through Judge van Buiren of the Court of First Instance
on the basis of the oral proceedings held on 4 Nov. 1997:
Acting on the Motion for Partial Reconsideration of the Order
dated July 14, 1999 filed by petitioner thru counsel which was
The marriage of the Parties contracted on 11 December 1980 opposed by respondent and considering that the second
before the Civil Registrar of Hamburg-Altona is hereby dissolved. paragraph of Article 26 of the Family Code was included as an
amendment thru Executive Order 227, to avoid the absurd
The parental custody for the children situation of a Filipino as being still married to his or her alien
spouse though the latter is no longer married to the Filipino
Carolynne Roehr, born 18 November 1981 spouse because he/she had obtained a divorce abroad which is
recognized by his/her national law, and considering further
Alexandra Kristine Roehr, born on 25 October 1987 the effects of the termination of the marriage under Article 43 in
relation to Article 50 and 52 of the same Code, which include the
dissolution of the property relations of the spouses, and the
is granted to the father.
support and custody of their children, the Order dismissing this
case is partially set aside with respect to these matters which
The litigation expenses shall be assumed by the Parties.9 may be ventilated in this Court.

In view of said decree, petitioner filed a Second Motion to Dismiss on SO ORDERED.11 (Emphasis supplied.)
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
Petitioner filed a timely motion for reconsideration on October 19, 1999,
been promulgated dissolving the marriage of petitioner and private
which was denied by respondent judge in an order dated March 31,
respondent.
2000.12
Petitioner ascribes lack of jurisdiction of the trial court and grave abuse Petitioner avers that a court’s action on a motion is limited to dismissing
of discretion on the part of respondent judge. He cites as grounds for his the action or claim, denying the motion, or ordering the amendment of
petition the following: the pleading.

1. Partially setting aside the order dated July 14, 1999 dismissing Private respondent, on her part, argues that the RTC can validly
the instant case is not allowed by 1997 Rules of Civil reconsider its order dated July 14, 1999 because it had not yet attained
Procedure.13 finality, given the timely filing of respondent’s motion for reconsideration.

2. Respondent Maria Carmen Rodriguez by her motion for Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the
Partial Reconsideration had recognized and admitted the 1997 Rules of Civil Procedure, which provides:
Divorce Decision obtained by her ex-husband in Hamburg,
Germany.14 Sec. 3. Action upon motion for new trial or reconsideration.—The
trial court may set aside the judgment or final order and grant a
3. There is nothing left to be tackled by the Honorable Court as new trial, upon such terms as may be just, or may deny the
there are no conjugal assets alleged in the Petition for motion. If the court finds that excessive damages have been
Annulment of Marriage and in the Divorce petition, and the awarded or that the judgment or final order is contrary to the
custody of the children had already been awarded to Petitioner evidence or law, it may amend such judgment or final order
Wolfgang Roehr.15 accordingly.

Pertinent in this case before us are the following issues: Sec. 7. Partial new trial or reconsideration.—If the grounds for a
motion under this Rule appear to the court to affect the issues as
1. Whether or not respondent judge gravely abused her to only a part, or less than all of the matters in controversy, or
discretion in issuing her order dated September 30, 1999, which only one, or less than all, of the parties to it, the court may order
partially modified her order dated July 14, 1999; and a new trial or grant reconsideration as to such issues if severable
without interfering with the judgment or final order upon the rest.
(Emphasis supplied.)
2. Whether or not respondent judge gravely abused her
discretion when she assumed and retained jurisdiction over the
present case despite the fact that petitioner has already obtained It is clear from the foregoing rules that a judge can order a partial
a divorce decree from a German court. reconsideration of a case that has not yet attained finality. Considering
that private respondent filed a motion for reconsideration within the
On the first issue, petitioner asserts that the assailed order of respondent reglementary period, the trial court's decision of July 14, 1999 can still be
modified. Moreover, in Sañado v. Court of Appeals,16we held that the
judge is completely inconsistent with her previous order and is contrary
to Section 3, Rule 16, Rules of Civil Procedure, which provides: court could modify or alter a judgment even after the same has become
executory whenever circumstances transpire rendering its decision
unjust and inequitable, as where certain facts and circumstances
Sec. 3. Resolution of motion - After the hearing, the court may justifying or requiring such modification or alteration transpired after the
dismiss the action or claim, deny the motion, or order the judgment has become final and executory17 and when it becomes
amendment of the pleading. imperative in the higher interest of justice or when supervening events
warrant it.18 In our view, there are even more compelling reasons to do
The court shall not defer the resolution of the motion for the so when, as in this case, judgment has not yet attained finality.
reason that the ground relied upon is not indubitable.
Anent the second issue, petitioner claims that respondent judge
In every case, the resolution shall state clearly and distinctly the committed grave abuse of discretion when she partially set aside her
reasons therefor. (Emphasis supplied.) order dated July 14, 1999, despite the fact that petitioner has already
obtained a divorce decree from the Court of First Instance of Hamburg, It is essential that there should be an opportunity to challenge the foreign
Germany. judgment, in order for the court in this jurisdiction to properly determine
its efficacy. In this jurisdiction, our Rules of Court clearly provide that with
In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of respect to actions in personam, as distinguished from actions in rem, a
Appeals,21 we consistently held that a divorce obtained abroad by an foreign judgment merely constitutes prima facie evidence of the justness
alien may be recognized in our jurisdiction, provided such decree is valid of the claim of a party and, as such, is subject to proof to the contrary. 24
according to the national law of the foreigner. Relevant to the present
case is Pilapil v. Ibay-Somera,22 where this Court specifically recognized In the present case, it cannot be said that private respondent was given
the validity of a divorce obtained by a German citizen in his country, the the opportunity to challenge the judgment of the German court so that
Federal Republic of Germany. We held in Pilapil that a foreign divorce there is basis for declaring that judgment as res judicata with regard to
and its legal effects may be recognized in the Philippines insofar as the rights of petitioner to have parental custody of their two children. The
respondent is concerned in view of the nationality principle in our civil law proceedings in the German court were summary. As to what was the
on the status of persons. extent of private respondent’s participation in the proceedings in the
German court, the records remain unclear. The divorce decree itself
In this case, the divorce decree issued by the German court dated states that neither has she commented on the proceedings25 nor has she
December 16, 1997 has not been challenged by either of the parties. In given her opinion to the Social Services Office.26 Unlike petitioner who
fact, save for the issue of parental custody, even the trial court was represented by two lawyers, private respondent had no counsel to
recognized said decree to be valid and binding, thereby endowing private assist her in said proceedings.27 More importantly, the divorce judgment
respondent the capacity to remarry. Thus, the present controversy was issued to petitioner by virtue of the German Civil Code provision to
mainly relates to the award of the custody of their two children, the effect that when a couple lived separately for three years, the
Carolynne and Alexandra Kristine, to petitioner. marriage is deemed irrefutably dissolved. The decree did not touch on
the issue as to who the offending spouse was. Absent any finding that
private respondent is unfit to obtain custody of the children, the trial court
As a general rule, divorce decrees obtained by foreigners in other
was correct in setting the issue for hearing to determine the issue of
countries are recognizable in our jurisdiction, but the legal effects
thereof, e.g. on custody, care and support of the children, must still be parental custody, care, support and education mindful of the best
interests of the children. This is in consonance with the provision in the
determined by our courts.23 Before our courts can give the effect of res
Child and Youth Welfare Code that the child’s welfare is always the
judicata to a foreign judgment, such as the award of custody to petitioner
paramount consideration in all questions concerning his care and
by the German court, it must be shown that the parties opposed to the
custody. 28
judgment had been given ample opportunity to do so on grounds allowed
under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section
48, 1997 Rules of Civil Procedure), to wit: On the matter of property relations, petitioner asserts that public
respondent exceeded the bounds of her jurisdiction when she claimed
SEC. 50. Effect of foreign judgments. - The effect of a judgment cognizance of the issue concerning property relations between petitioner
and private respondent. Private respondent herself has admitted in Par.
of a tribunal of a foreign country, having jurisdiction to pronounce
the judgment is as follows: 14 of her petition for declaration of nullity of marriage dated August 26,
1996 filed with the RTC of Makati, subject of this case, that: "[p]etitioner
and respondent have not acquired any conjugal or community property
(a) In case of a judgment upon a specific thing, the judgment is nor have they incurred any debts during their marriage."29 Herein
conclusive upon the title to the thing; petitioner did not contest this averment. Basic is the rule that a court
shall grant relief warranted by the allegations and the proof. 30 Given the
(b) In case of a judgment against a person, the judgment is factual admission by the parties in their pleadings that there is no
presumptive evidence of a right as between the parties and their property to be accounted for, respondent judge has no basis to assert
successors in interest by a subsequent title; but the judgment jurisdiction in this case to resolve a matter no longer deemed in
may be repelled by evidence of a want of jurisdiction, want of controversy.
notice to the party, collusion, fraud, or clear mistake of law or
fact.
In sum, we find that respondent judge may proceed to determine the Before us is a Petition for Review under Rule 45 of the Rules of
issue regarding the custody of the two children born of the union Court, seeking to nullify the January 7, 1999 Decision[1] and the March
between petitioner and private respondent. Private respondent erred, 24, 1999 Order[2] of the Regional Trial Court of Cabanatuan City, Branch
however, in claiming cognizance to settle the matter of property relations 28, in Civil Case No. 3026AF. The assailed Decision disposed as
of the parties, which is not at issue. follows:

WHEREFORE, the orders of the Regional Trial Court of Makati, Branch WHEREFORE, this Court declares the marriage between Grace J.
149, issued on September 30, 1999 and March 31, 2000 are AFFIRMED Garcia and Rederick A. Recio solemnized on January 12, 1994 at
with MODIFICATION. We hereby declare that the trial court has Cabanatuan City as dissolved and both parties can now remarry under
jurisdiction over the issue between the parties as to who has parental existing and applicable laws to any and/or both parties.[3]
custody, including the care, support and education of the children,
namely Carolynne and Alexandra Kristine Roehr. Let the records of this The assailed Order denied reconsideration of the above-quoted
case be remanded promptly to the trial court for continuation of Decision.
appropriate proceedings. No pronouncement as to costs.

SO ORDERED.
The Facts
Bellosillo, (Chairman), and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on official leave. 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
[G.R. No. 138322. October 2, 2001] 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
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs.
January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan
REDERICK A. RECIO, respondent.
City.[7] In their application for a marriage license, respondent was
declared as single and Filipino.[8]
DECISION
Starting October 22, 1995, petitioner and respondent lived
PANGANIBAN, J.: separately without prior judicial dissolution of their marriage. While the
two were still in Australia, their conjugal assets were divided on May 16,
A divorce obtained abroad by an alien may be recognized in our 1996, in accordance with their Statutory Declarations secured in
jurisdiction, provided such decree is valid according to the national law of Australia.[9]
the foreigner. However, the divorce decree and the governing personal
law of the alien spouse who obtained the divorce must be proven. Our On March 3, 1998, petitioner filed a Complaint for Declaration of
courts do not take judicial notice of foreign laws and judgments; hence, Nullity of Marriage[10] in the court a quo, on the ground of bigamy --
like any other facts, both the divorce decree and the national law of the respondent allegedly had a prior subsisting marriage at the time he
alien must be alleged and proven according to our law on evidence. married her on January 12, 1994. She claimed that she learned of
respondents marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had
The Case revealed to petitioner his prior marriage and its subsequent
dissolution.[11] He contended that his first marriage to an Australian
citizen had been validly dissolved by a divorce decree obtained in
Australia in 1989;[12] thus, he was legally capacitated to marry petitioner The failure of the respondent, who is now a naturalized Australian, to
in 1994. present a certificate of legal capacity to marry constitutes absence of a
substantial requisite voiding the petitioners marriage to the respondent
On July 7, 1998 -- or about five years after the couples wedding and
while the suit for the declaration of nullity was pending -- respondent was
able to secure a divorce decree from a family court in Sydney, Australia 3
because the marriage ha[d] irretrievably broken down.[13]
The trial court seriously erred in the application of Art. 26 of the Family
Respondent prayed in his Answer that the Complaint be dismissed Code in this case.
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 4
admitted the documentary evidence of both parties.[16] After they
submitted their respective memoranda, the case was submitted for
resolution.[17] 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
Thereafter, the trial court rendered the assailed Decision and Order. this case.

5
Ruling of the Trial Court
The trial court gravely erred in pronouncing that the divorce decree
obtained by the respondent in Australia ipso facto capacitated the parties
The trial court declared the marriage dissolved on the ground that to remarry, without first securing a recognition of the judgment granting
the divorce issued in Australia was valid and recognized in the the divorce decree before our courts.[19]
Philippines. It deemed the marriage ended, but not on the basis of any
defect in an essential element of the marriage; that is, respondents The Petition raises five issues, but for purposes of this Decision, we
alleged lack of legal capacity to remarry. Rather, it based its Decision on shall concentrate on two pivotal ones: (1) whether the divorce between
the divorce decree obtained by respondent. The Australian divorce had respondent and Editha Samson was proven, and (2) whether respondent
ended the marriage; thus, there was no more marital union to nullify or was proven to be legally capacitated to marry petitioner. Because of our
annul. ruling on these two, there is no more necessity to take up the rest.
Hence, this Petition.[18]

The Courts Ruling

Issues
The Petition is partly meritorious.
Petitioner submits the following issues for our consideration:
1
First Issue:
Proving the Divorce Between Respondent and Editha Samson
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 Petitioner assails the trial courts recognition of the divorce between
with the petitioner. respondent and Editha Samson. Citing Adong v. Cheong Seng
Gee,[20] petitioner argues that the divorce decree, like any other foreign
2 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 ART. 13. In case either of the contracting parties has been previously
to establish these elements. married, the applicant shall be required to
Petitioner adds that, based on the first paragraph of Article 26 of the
Family Code, marriages solemnized abroad are governed by the law of ART. 13. In case either of the contracting parties has been previously
the place where they were celebrated (the lex loci celebrationis). In married, the applicant shall be required to furnish, instead of the birth or
effect, the Code requires the presentation of the foreign law to show the baptismal certificate required in the last preceding article, the death
conformity of the marriage in question to the legal requirements of the certificate of the deceased spouse or the judicial decree of the absolute
place where the marriage was performed. divorce, or the judicial decree of annulment or declaration of nullity of his
or her previous marriage. x x x.
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 ART. 52. The judgment of annulment or of absolute nullity of the
divorce; hence, our courts cannot grant it.[21] A marriage between two marriage, the partition and distribution of the properties of the spouses,
Filipinos cannot be dissolved even by a divorce obtained abroad, and the delivery of the childrens presumptive legitimes shall be recorded
because of Articles 15[22] and 17[23] of the Civil Code.[24] In mixed in the appropriate civil registry and registries of property; otherwise, the
marriages involving a Filipino and a foreigner, Article 26[25] of the Family same shall not affect their persons.
Code allows the former to contract a subsequent marriage in case the
divorce is validly obtained abroad by the alien spouse capacitating him or Respondent, on the other hand, argues that the Australian divorce
her to remarry.[26] A divorce obtained abroad by a couple, who are both decree is a public document -- a written official act of an Australian family
aliens, may be recognized in the Philippines, provided it is consistent court. Therefore, it requires no further proof of its authenticity and due
with their respective national laws.[27] execution.
A comparison between marriage and divorce, as far as pleading and Respondent is getting ahead of himself. Before a foreign judgment
proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that is given presumptive evidentiary value, the document must first be
aliens may obtain divorces abroad, which may be recognized in the presented and admitted in evidence.[30] A divorce obtained abroad is
Philippines, provided they are valid according to their national proven by the divorce decree itself. Indeed the best evidence of a
law.[28] Therefore, before a foreign divorce decree can be recognized by judgment is the judgment itself.[31] The decree purports to be a written act
our courts, the party pleading it must prove the divorce as a fact and or record of an act of an official body or tribunal of a foreign country.[32]
demonstrate its conformity to the foreign law allowing it.[29] Presentation
solely of the divorce decree is insufficient. 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
Divorce as a Question of Fact country by either (1) an official publication or (2) a copy thereof
Petitioner insists that before a divorce decree can be admitted in attested[33] by the officer having legal custody of the document. If the
evidence, it must first comply with the registration requirements under record is not kept in the Philippines, such copy must be (a) accompanied
Articles 11, 13 and 52 of the Family Code. These articles read as follows: 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]
ART. 11. Where a marriage license is required, each of the contracting
parties shall file separately a sworn application for such license with the The divorce decree between respondent and Editha Samson
proper local civil registrar which shall specify the following: appears to be an authentic one issued by an Australian family
court.[35] However, appearance is not sufficient; compliance with the
xxxxxxxxx aforementioned rules on evidence must be demonstrated.
Fortunately for respondents cause, when the divorce decree of May
(5) If previously married, how, when and where the previous marriage 18, 1989 was submitted in evidence, counsel for petitioner objected, not
was dissolved or annulled; 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
xxxxxxxxx was admissible, subject to petitioners qualification.[37] Hence, it was
admitted in evidence and accorded weight by the judge. Indeed, Respondent replies that the Australian divorce decree, which was
petitioners failure to object properly rendered the divorce decree validly admitted in evidence, adequately established his legal capacity to
admissible as a written act of the Family Court of Sydney, Australia.[38] marry under Australian law.
Compliance with the quoted articles (11, 13 and 52) of the Family Respondents contention is untenable. In its strict legal
Code is not necessary; respondent was no longer bound by Philippine sense, divorce means the legal dissolution of a lawful union for a cause
personal laws after he acquired Australian citizenship in arising after marriage. But divorces are of different types. The two basic
1992.[39] Naturalization is the legal act of adopting an alien and clothing ones are (1) absolute divorce or a vinculo matrimonii and (2) limited
him with the political and civil rights belonging to a citizen. [40] Naturalized divorce or a mensa et thoro. The first kind terminates the marriage, while
citizens, freed from the protective cloak of their former states, don the the second suspends it and leaves the bond in full force. [45] There is no
attires of their adoptive countries. By becoming an Australian, showing in the case at bar which type of divorce was procured by
respondent severed his allegiance to the Philippines and the vinculum respondent.
juris that had tied him to Philippine personal laws.
Respondent presented a decree nisi or an interlocutory decree -- a
Burden of Proving Australian Law conditional or provisional judgment of divorce. It is in effect the same as
a separation from bed and board, although an absolute divorce may
Respondent contends that the burden to prove Australian divorce follow after the lapse of the prescribed period during which no
law falls upon petitioner, because she is the party challenging the validity reconciliation is effected.[46]
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 Even after the divorce becomes absolute, the court may under
Australia, because she had lived and worked in that country for quite a some foreign statutes and practices, still restrict remarriage. Under some
long time. Besides, the Australian divorce law is allegedly known by other jurisdictions, remarriage may be limited by statute; thus, the guilty
Philippine courts; thus, judges may take judicial notice of foreign laws in party in a divorce which was granted on the ground of adultery may be
the exercise of sound discretion. prohibited from marrying again. The court may allow a remarriage only
after proof of good behavior.[47]
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 On its face, the herein Australian divorce decree contains a
defense of an action.[41] In civil cases, plaintiffs have the burden of restriction that reads:
proving the material allegations of the complaint when those are denied
by the answer; and defendants have the burden of proving the material 1. A party to a marriage who marries again before this decree
allegations in their answer when they introduce new matters. [42] Since the becomes absolute (unless the other party has died)
divorce was a defense raised by respondent, the burden of proving the commits the offence of bigamy.[48]
pertinent Australian law validating it falls squarely upon him. This quotation bolsters our contention that the divorce obtained by
It is well-settled in our jurisdiction that our courts cannot take judicial respondent may have been restricted. It did not absolutely establish his
notice of foreign laws.[43] Like any other facts, they must be alleged and legal capacity to remarry according to his national law. Hence, we find no
proved. Australian marital laws are not among those matters that judges basis for the ruling of the trial court, which erroneously assumed that the
are supposed to know by reason of their judicial function. [44] The power of Australian divorce ipso facto restored respondents capacity to remarry
judicial notice must be exercised with caution, and every reasonable despite the paucity of evidence on this matter.
doubt upon the subject should be resolved in the negative. We also reject the claim of respondent that the divorce decree
raises a disputable presumption or presumptive evidence as to his civil
status based on Section 48, Rule 39[49] of the Rules of Court, for the
Second Issue: Respondents Legal Capacity to Remarry 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 contends that, in view of the insufficient proof of the
divorce, respondent was legally incapacitated to marry her in Petitioner argues that the certificate of legal capacity required by
1994. Hence, she concludes that their marriage was void ab initio. Article 21 of the Family Code was not submitted together with the
application for a marriage license. According to her, its absence is proof parties marriage on the ground of bigamy, there being already in
that respondent did not have legal capacity to remarry. evidence two existing marriage certificates, which were both obtained in
the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and
We clarify. To repeat, the legal capacity to contract marriage is the other, in Cabanatuan City dated January 12, 1994.
determined by the national law of the party concerned. The certificate
mentioned in Article 21 of the Family Code would have been sufficient to WHEREFORE, in the interest of orderly procedure and substantial
establish the legal capacity of respondent, had he duly presented it in justice, we REMAND the case to the court a quo for the purpose of
court. A duly authenticated and admitted certificate is prima facie receiving evidence which conclusively show respondents legal capacity
evidence of legal capacity to marry on the part of the alien applicant for a to marry petitioner; and failing in that, of declaring the parties marriage
marriage license.[50] void on the ground of bigamy, as above discussed. No costs.
As it is, however, there is absolutely no evidence that proves SO ORDERED.
respondents legal capacity to marry petitioner. A review of the records
before this Court shows that only the following exhibits were presented Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.
before the lower court: (1) for petitioner: (a) Exhibit A Complaint; [51] (b)
Exhibit B Certificate of Marriage Between Rederick A. Recio (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. Recio and Editha D. Samson was in its
records;[54] and (e) Exhibit E Certificate of Australian Citizenship of
Rederick A. Recio;[55] (2) for respondent: (a) Exhibit 1 -- Amended
Answer;[56] (b) Exhibit 2 Family Law Act 1975 Decree Nisi of Dissolution
of Marriage in the Family Court of Australia; [57] (c) Exhibit 3 Certificate of
Australian Citizenship of Rederick A. Recio;[58] (d) Exhibit 4 Decree Nisi
of Dissolution of Marriage in the Family Court of Australia
Certificate;[59] and Exhibit 5 -- Statutory Declaration of the Legal
Separation Between Rederick A. Recio and Grace J. Garcia Recio since
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 petitioners
contention that the court a quo erred in finding that the divorce decree
ipso facto clothed respondent with the legal capacity to remarry without
requiring him to adduce sufficient evidence to show the Australian
personal law governing his status; or at the very least, to prove his legal
capacity to contract the second marriage.
Neither can we grant petitioners prayer to declare her marriage to
respondent null and void on the ground of bigamy. After all, it may turn
out that under Australian law, he was really capacitated to marry
petitioner as a direct result of the divorce decree. Hence, we believe that
the most judicious course is to remand this case to the trial court to
receive evidence, if any, which show petitioners legal capacity to marry
petitioner. Failing in that, then the court a quo may declare a nullity of the