Persons Cases

EMETERIO CUI, plaintiff-appellant,
vs.
ARELLANO UNIVERSITY, defendant-appellee. G.A.S. Sipin, Jr., for plaintiff-appellant.
E. Voltaire Garcia for defendant-appellee.
CONCEPCION, J.:
Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of Manila,
absolving defendant Arellano University from plaintiff's complaint, with costs against the plaintiff,
and dismissing defendant's counter claim, for insufficiency of proof thereon.
In the language of the decision appealed from:
The essential facts of this case are short and undisputed. As established by the
agreement of facts Exhibits X and by the respective oral and documentary evidence
introduced by the parties, it appears conclusive that plaintiff, before the school year
1948-1949 took up preparatory law course in the defendant University. After finishing his
preparatory law course plaintiff enrolled in the College of Law of the defendant from the
school year 1948-1949. Plaintiff finished his law studies in the defendant university up to
and including the first semester of the fourth year. During all the school years in which
plaintiff was studying law in defendant law college, Francisco R. Capistrano, brother of
the mother of plaintiff, was the dean of the College of Law and legal counsel of the
defendant university. Plaintiff enrolled for the last semester of his law studies in the
defendant university but failed to pay his tuition fees because his uncle Dean Francisco
R. Capistrano having severed his connection with defendant and having accepted the
deanship and chancellorship of the College of Law of Abad Santos University, plaintiff
left the defendant's law college and enrolled for the last semester of his fourth year law
in the college of law of the Abad Santos University graduating from the college of law of
the latter university. Plaintiff, during all the time he was studying law in Defendant
University was awarded scholarship grants, for scholastic merit, so that his semestral
tuition fees were returned to him after the ends of semester and when his scholarship
grants were awarded to him. The whole amount of tuition fees paid by plaintiff to
defendant and refunded to him by the latter from the first semester up to and including
the first semester of his last year in the college of law or the fourth year, is in total
P1,033.87. After graduating in law from Abad Santos University he applied to take the
bar examination. To secure permission to take the bar he needed the transcripts of his
records in defendant Arellano University. Plaintiff petitioned the latter to issue to him the
needed transcripts. The defendant refused until after he had paid back the P1,033 87
which defendant refunded to him as above stated. As he could not take the bar
examination without those transcripts, plaintiff paid to defendant the said sum under
protest. This is the sum which plaintiff seeks to recover from defendant in this case.
Before defendant awarded to plaintiff the scholarship grants as above stated, he was
made to sign the following contract covenant and agreement:
"In consideration of the scholarship granted to me by the University, I hereby waive my
right to transfer to another school without having refunded to the University (defendant)
the equivalent of my scholarship cash.

(Sgd.) Emeterio Cui".

It is admitted that, on August 16, 1949, the Director of Private Schools issued Memorandum No.
38, series of 1949, on the subject of "Scholarship," addressed to "All heads of private schools,
colleges and universities," reading:
1. School catalogs and prospectuses submitted to this, Bureau show that some schools
offer full or partial scholarships to deserving students — for excellence in scholarship or
for leadership in extra-curricular activities. Such inducements to poor but gifted students
should be encouraged. But to stipulate the condition that such scholarships are good
only if the students concerned continue in the same school nullifies the principle of merit
in the award of these scholarships.
2. When students are given full or partial scholarships, it is understood that such
scholarships are merited and earned. The amount in tuition and other fees
corresponding to these scholarships should not be subsequently charged to the recipient
students when they decide to quit school or to transfer to another institution.
Scholarships should not be offered merely to attract and keep students in a school.
3. Several complaints have actually been received from students who have enjoyed
scholarships, full or partial, to the effect that they could not transfer to other schools
since their credentials would not be released unless they would pay the fees
corresponding to the period of the scholarships. Where the Bureau believes that the right
of the student to transfer is being denied on this ground, it reserves the right to authorize
such transfer.
that defendant herein received a copy of this memorandum; that plaintiff asked the Bureau of
Private Schools to pass upon the issue on his right to secure the transcript of his record in
defendant University, without being required to refund the sum of P1,033.87; that the Bureau of
Private Schools upheld the position taken by the plaintiff and so advised the defendant; and
that, this notwithstanding, the latter refused to issue said transcript of records, unless said
refund were made, and even recommended to said Bureau that it issue a written order directing
the defendant to release said transcript of record, "so that the case may be presented to the
court for judicial action." As above stated, plaintiff was, accordingly, constrained to pay, and did
pay under protest, said sum of P1,033.87, in order that he could take the bar examination in
1953. Subsequently, he brought this action for the recovery of said amount, aside from P2,000
as moral damages, P500 as exemplary damages, P2,000 as attorney's fees, and P500 as
expenses of litigation.
In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of Private Schools,
namely, that the provisions of its contract with plaintiff are valid and binding and that the
memorandum above-referred to is null and void. It, likewise, set up a counterclaim for
P10,000.00 as damages, and P3,000 as attorney's fees.
The issue in this case is whether the above quoted provision of the contract between plaintiff
and the defendant, whereby the former waived his right to transfer to another school without
refunding to the latter the equivalent of his scholarships in cash, is valid or not. The lower court

resolved this question in the affirmative, upon the ground that the aforementioned memorandum
of the Director of Private Schools is not a law; that the provisions thereof are advisory, not
mandatory in nature; and that, although the contractual provision "may be unethical, yet it was
more unethical for plaintiff to quit studying with the defendant without good reasons and simply
because he wanted to follow the example of his uncle." Moreover, defendant maintains in its
brief that the aforementioned memorandum of the Director of Private Schools is null and void
because said officer had no authority to issue it, and because it had been neither approved by
the corresponding department head nor published in the official gazette.
We do not deem it necessary or advisable to consider as the lower court did, the question
whether plaintiff had sufficient reasons or not to transfer from Defendant University to the Abad
Santos University. The nature of the issue before us, and its far reaching effects, transcend
personal equations and demand a determination of the case from a high impersonal plane.
Neither do we deem it essential to pass upon the validity of said Memorandum No. 38, for,
regardless of the same, we are of the opinion that the stipulation in question is contrary to public
policy and, hence, null and void. The aforesaid memorandum merely incorporates a sound
principle of public policy. As the Director of Private Schools correctly pointed, out in his letter,
Exhibit B, to the defendant,
There is one more point that merits refutation and that is whether or not the contract
entered into between Cui and Arellano University on September 10, 1951 was void as
against public policy. In the case of Zeigel vs. Illinois Trust and Savings Bank, 245 Ill.
180, 19 Ann. Case 127, the court said: 'In determining a public policy of the state, courts
are limited to a consideration of the Constitution, the judicial decisions, the statutes,
and the practice of government officers.' It might take more than a government bureau or
office to lay down or establish a public policy, as alleged in your communication, but
courts consider the practices of government officials as one of the four factors in
determining a public policy of the state. It has been consistently held in America that
under the principles relating to the doctrine of public policy, as applied to the law of
contracts, courts of justice will not recognize or uphold a transaction which its object,
operation, or tendency is calculated to be prejudicial to the public welfare, to sound
morality or to civic honesty (Ritter vs. Mutual Life Ins. Co., 169 U.S. 139; Heding vs.
Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359). If Arellano University
understood clearly the real essence of scholarships and the motives which prompted this
office to issue Memorandum No. 38, s. 1949, it should have not entered into a contract
of waiver with Cui on September 10, 1951, which is a direct violation of our
Memorandum and an open challenge to the authority of the Director of Private Schools
because the contract was repugnant to sound morality and civic honesty. And finally, in
Gabriel vs. Monte de Piedad, Off. Gazette Supp. Dec. 6, 1941, p. 67 we read: 'In order
to declare a contract void as against public policy, a court must find that the contract as
to consideration or the thing to be done, contravenes some established interest of
society, or is inconsistent with sound policy and good morals or tends clearly to
undermine the security of individual rights. The policy enunciated in Memorandum No.
38, s. 1949 is sound policy. Scholarship are awarded in recognition of merit not to keep
outstanding students in school to bolster its prestige. In the understanding of that
university scholarships award is a business scheme designed to increase the business
potential of an education institution. Thus conceived it is not only inconsistent with sound
policy but also good morals. But what is morals? Manresa has this definition. It is good
customs; those generally accepted principles of morality which have received some kind
of social and practical confirmation. The practice of awarding scholarships to attract
students and keep them in school is not good customs nor has it received some kind of

social and practical confirmation except in some private institutions as in Arellano
University. The University of the Philippines which implements Section 5 of Article XIV of
the Constitution with reference to the giving of free scholarships to gifted children, does
not require scholars to reimburse the corresponding value of the scholarships if they
transfer to other schools. So also with the leading colleges and universities of the United
States after which our educational practices or policies are patterned. In these
institutions scholarships are granted not to attract and to keep brilliant students in school
for their propaganda mine but to reward merit or help gifted students in whom society
has an established interest or a first lien. (Emphasis supplied.)
WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered
sentencing the defendant to pay to the plaintiff the sum of P1,033.87, with interest thereon at
the legal rate from September 1, 1954, date of the institution of this case, as well as the costs,
and dismissing defendant's counterclaim. It is so ordered.
Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this case. The
judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers
of the deceased, opposed it. The court, however, approved it. The errors which the oppositorappellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3)
the denial of the motion for reconsideration of the 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
said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and
the failure not to postpone the approval of the scheme of partition and the delivery of the
deceased's business to Pietro Lanza until the receipt of the depositions requested in reference
to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts into effect the
provisions of Joseph G. Brimo's will which 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
which, among other things, provides the following:
Nevertheless, legal and testamentary successions, in respect to the order of succession
as well as to the amount of the successional rights and the intrinsic validity of their
provisions, shall be regulated by the national law of the person whose succession is in
question, whatever may be the nature of the property or the country in which it may be
situated.
But the fact is that the oppositor did not prove that said testimentary dispositions are not in
accordance with the Turkish laws, inasmuch as he did not present any evidence showing what
the Turkish laws are on the matter, and in the absence of evidence on such laws, they are

presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36
Phil., 472. It has not been proved in these proceedings what the Turkish laws are. He, himself,
acknowledges it when he desires to be given an opportunity 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 until the receipt of certain testimony requested regarding the Turkish laws on
the matter.
The refusal to give the oppositor another opportunity to prove such laws does not constitute an
error. It is discretionary with the trial court, and, taking into consideration that the oppositor was
granted ample opportunity to introduce competent evidence, we find no abuse of discretion on
the part of the court in this particular. There is, therefore, no evidence in the record that the
national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in
question which, not being contrary to our laws in force, must be complied with and
executed. lawphil.ne Therefore, the approval of the scheme of partition in this respect was not
erroneous.
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 designated as such in will, it must be taken
into consideration that such exclusion is based on the last part of the second clause of the will,
which says:
Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship
having been conferred upon me by 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 property that I now possess, it is my
wish that the distribution of my property and everything in connection with this, my will,
be made and disposed of in accordance with the laws in force in the Philippine islands,
requesting all of my relatives to respect this wish, otherwise, I annul and cancel
beforehand whatever disposition found in this will favorable to the person or persons
who fail to comply with this request.
The institution of legatees in this will is conditional, and the condition is that the instituted
legatees must respect the testator's will to distribute his property, not in accordance with the
laws of his nationality, but in accordance with the laws of the Philippines. 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 these proceedings has not respected the will of the testator, as
expressed, is prevented from receiving his legacy. The fact is, however, that the said condition is
void, being contrary to law, for article 792 of the civil Code provides the following: Impossible
conditions and those contrary to law or good morals shall be considered as not imposed and
shall not prejudice the heir or legatee in any manner whatsoever, even should the testator
otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's national law
when, according to article 10 of the civil Code above quoted, such national law of the testator is
the one to govern his testamentary dispositions. Said condition then, in the light of the legal
provisions above cited, is considered unwritten, and the institution of legatees in said will is
unconditional and consequently valid and effective even as to the herein oppositor. It results

from all this that the second clause of the will regarding the law which shall govern it, and to the
condition imposed upon the legatees, is null and void, being contrary to law. All of the remaining
clauses of said will with all their dispositions and requests are perfectly valid and effective it not
appearing that said clauses are contrary to the testator's national law. Therefore, the orders
appealed from are modified and it is directed that the distribution of this estate be made in such
a manner as to include the herein appellant Andre Brimo as one of the legatees, and the
scheme of partition submitted by the judicial administrator is approved in all other respects,
without any pronouncement as to costs. So ordered.
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial
Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of
Manila; and ERICH EKKEHARD GEILING, respondents. REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce,
only to be followed by a criminal infidelity suit of the latter against the former, provides Us the
opportunity to lay down a decisional rule on what hitherto appears to be an unresolved
jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private
respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of
Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The
marriage started auspiciously enough, and the couple lived together for some time in Malate,
Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980. Thereafter,
marital discord set in, with mutual recriminations between the spouses, followed by a separation
de facto between them. After about three and a half years of marriage, such connubial
disharmony eventuated in private respondent initiating a divorce proceeding against petitioner in
Germany before the Schoneberg Local Court in January, 1983. He claimed that there was
failure of their marriage and that they had been living apart since April, 1982. 2

Petitioner, on the other hand, filed an action for legal separation, support and separation of
property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where
the same is still pending as Civil Case No. 83-15866. 3 On January 15, 1986, Division 20 of the
Schoneberg Local Court, Federal Republic of Germany, promulgated a decree of divorce on the
ground of failure of marriage of the spouses. The custody of the child was granted to petitioner.
The records show that under German law said court was locally and internationally competent
for the divorce proceeding and that the dissolution of said marriage was legally founded on and
authorized by the applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance of the divorce decree, private
respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while
still married to said respondent, petitioner "had an affair with a certain William Chia as early as
1982 and with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto
A. de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the

cases on the ground of insufficiency of evidence. 5 However, upon review, the respondent city
fiscal approved a resolution, dated January 8, 1986, directing the filing of two complaints for
adultery against the petitioner. 6 The complaints were accordingly filed and were eventually
raffled to two branches of the Regional Trial Court of Manila. The case entitled "People of the
Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was
assigned to Branch XXVI presided by the respondent judge; while the other case, "People of
the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 87-52434
went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the
aforesaid resolution of respondent fiscal be set aside and the cases against her be
dismissed. 8 A similar petition was filed by James Chua, her co-accused in Criminal Case No.
87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due course to
both petitions and directed the respondent city fiscal to inform the Department of Justice "if the
accused have already been arraigned and if not yet arraigned, to move to defer further
proceedings" and to elevate the entire records of both cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to
suspend further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended
proceedings in Criminal Case No. 87-52434. On the other hand, respondent judge merely reset
the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such
scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension
of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for
review then pending before the Secretary of Justice. 11 A motion to quash was also filed in the
same case on the ground of lack of jurisdiction, 12 which motion was denied by the respondent
judge in an order dated September 8, 1987. The same order also directed the arraignment of
both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty
while the petitioner refused to be arraigned. Such refusal of the petitioner being considered by
respondent judge as direct contempt, she and her counsel were fined and the former was
ordered detained until she submitted herself for arraignment. 13 Later, private respondent
entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a
prayer for a temporary restraining order, seeking the annulment of the order of the lower court
denying her motion to quash. The petition is anchored on the main ground that the court is
without jurisdiction "to try and decide the charge of adultery, which is a private offense that
cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not
qualify as an offended spouse having obtained a final divorce decree under his national law
prior to his filing the criminal complaint." 15
On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents
from implementing the aforesaid order of September 8, 1987 and from further proceeding with
Criminal Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A.
Ordoñez acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations,
issued a resolution directing the respondent city fiscal to move for the dismissal of the
complaints against the petitioner. 16

We find this petition meritorious. The writs prayed for shall accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other
crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by
the offended spouse. It has long since been established, with unwavering consistency, that
compliance with this rule is a jurisdictional, and not merely a formal, requirement. 18 While in
point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law,
the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that
complaint which starts the prosecutory proceeding 19 and without which the court cannot
exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage the person
who can legally file the complaint should be the offended spouse, and nobody else. Unlike the
offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the
prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian
of the offended party. The so-called exclusive and successive rule in the prosecution of the first
four offenses above mentioned do not apply to adultery and concubinage. It is significant that
while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in
the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her
parents, grandparents or guardian, such amendment did not include the crimes of adultery and
concubinage. In other words, only the offended spouse, and no other, is authorized by law to
initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the action, it
necessarily follows that such initiator must have the status, capacity or legal representation to
do so at the time of the filing of the criminal action. This is a familiar and express rule in civil
actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is
determined as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean
that the same requirement and rationale would not apply. Understandably, it may not have been
found necessary since criminal actions are generally and fundamentally commenced by the
State, through the People of the Philippines, the offended party being merely the complaining
witness therein. However, in the so-called "private crimes" or those which cannot be
prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended
spouse assumes a more predominant role since the right to commence the action, or to refrain
therefrom, is a matter exclusively within his power and option.
This policy was adopted out of consideration for the aggrieved party who might prefer to suffer
the outrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently
argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital
relationship is still subsisting at the time of the institution of the criminal action for, adultery. This
is a logical consequence since the raison d'etre of said provision of law would be absent where
the supposed offended party had ceased to be the spouse of the alleged offender at the time of
the filing of the criminal case. 21

In these cases, therefore, it is indispensable that the status and capacity of the complainant to
commence the action be definitely established and, as already demonstrated, such status or
capacity must indubitably exist as of the time he initiates the action. It would be absurd if his
capacity to bring the action would be determined by his status before or subsequent to the
commencement thereof, where such capacity or status existed prior to but ceased before, or
was acquired subsequent to but did not exist at the time of, the institution of the case. We would
thereby have the anomalous spectacle of a party bringing suit at the very time when he is
without the legal capacity to do so.
To repeat, there does not appear to be any local precedential jurisprudence on the specific issue
as to when precisely the status of a complainant as an offended spouse must exist where a
criminal prosecution can be commenced only by one who in law can be categorized as
possessed of such status. Stated differently and with reference to the present case, the
inquiry ;would be whether it is necessary in the commencement of a criminal action for adultery
that the marital bonds between the complainant and the accused be unsevered and existing at
the time of the institution of the action by the former against the latter. American jurisprudence,
on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule
that after a divorce has been decreed, the innocent spouse no longer has the right to institute
proceedings against the offenders where the statute provides that the innocent spouse shall
have the exclusive right to institute a prosecution for adultery. Where, however, proceedings
have been properly commenced, a divorce subsequently granted can have no legal effect on
the prosecution of the criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that —
'No prosecution for adultery can be commenced except on the complaint of the
husband or wife.' Section 4932, Code. Though Loftus was husband of defendant
when the offense is said to have been committed, he had ceased to be such
when the prosecution was begun; and appellant insists that his status was not
such as to entitle him to make the complaint. We have repeatedly said that the
offense is against the unoffending spouse, as well as the state, in explaining the
reason for this provision in the statute; and we are of the opinion that the
unoffending spouse must be such when the prosecution is commenced.
(Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in our
jurisdiction, considering our statutory law and jural policy on the matter. We are convinced that
in cases of such nature, the status of the complainant vis-a-vis the accused must be determined
as of the time the complaint was filed. Thus, the person who initiates the adultery case must be
an offended spouse, and by this is meant that he is still married to the accused spouse, at the
time of the filing of the complaint. In the present case, the fact that private respondent obtained
a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its
legal effects may be recognized in the Philippines insofar as private respondent is
concerned 23 in view of the nationality principle in our civil law on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a
United States court between Alice Van Dornja Filipina, and her American husband, the latter

filed a civil case in a trial court here alleging that her business concern was conjugal property
and praying that she be ordered to render an accounting and that the plaintiff be granted the
right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated
the error of such stance, thus:
There can be no question as to the validity of that Nevada divorce in any of the
States of the United States. The decree is binding on private respondent as an
American citizen. For instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. ...
It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against absolute
divorces the same being considered contrary to our concept of public policy and
morality. However, aliens may obtain divorces abroad, which may be recognized
in the Philippines, provided they are valid according to their national law. ...
Thus, pursuant to his national law, private respondent is no longer the husband
of petitioner. He would have no standing to sue in the case below as petitioner's
husband entitled to exercise control over conjugal assets. ... 25
Under the same considerations and rationale, private respondent, being no longer the husband
of petitioner, had no legal standing to commence the adultery case under the imposture that he
was the offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought this case before the decree
of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this
case. When said respondent initiated the divorce proceeding, he obviously knew that there
would no longer be a family nor marriage vows to protect once a dissolution of the marriage is
decreed. Neither would there be a danger of introducing spurious heirs into the family, which is
said to be one of the reasons for the particular formulation of our law on adultery, 26 since there
would thenceforth be no spousal relationship to speak of. The severance of the marital bond
had the effect of dissociating the former spouses from each other, hence the actuations of one
would not affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied upon by private
respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333
of the Revised Penal Code, which punished adultery "although the marriage be afterwards
declared void", the Court merely stated that "the lawmakers intended to declare adulterous the
infidelity of a married woman to her marital vows, even though it should be made to appear that
she is entitled to have her marriage contract declared null and void, until and unless she actually
secures a formal judicial declaration to that effect". Definitely, it cannot be logically inferred
therefrom that the complaint can still be filed after the declaration of nullity because such
declaration that the marriage is void ab initio is equivalent to stating that it never existed. There
being no marriage from the beginning, any complaint for adultery filed after said declaration of
nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated
and within the purview of the decision in said case is the situation where the criminal action for
adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab

initio. The same rule and requisite would necessarily apply where the termination of the
marriage was effected, as in this case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must
suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended
spouse therein had duly and seasonably filed a complaint for adultery, although an issue was
raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not
involve a factual situation akin to the one at bar or any issue determinative of the controversy
herein. WHEREFORE, the questioned order denying petitioner's motion to quash is SET
ASIDE and another one entered. DISMISSING the complaint in Criminal Case No. 87-52435 for
lack of jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is
hereby made permanent. SO ORDERED.

WOLFGANG O. ROEHR, petitioner, vs. MARIA CARMEN D. RODRIGUEZ, HON. JUDGE
JOSEFINA GUEVARA-SALONGA, Presiding Judge of Makati RTC, Branch
149, respondents.
At the core of the present controversy are issues of (a) grave abuse of discretion allegedly
committed by public respondent and (b) lack of jurisdiction of the regional trial court, in matters
that spring from a divorce decree obtained abroad by petitioner. In this special civil action for
certiorari, petitioner assails (a) the order1 dated September 30, 1999 of public respondent Judge
Josefina Guevara-Salonga, Presiding Judge of Makati Regional Trial Court, 2 Branch 149, in Civil
Case No. 96-1389 for declaration of nullity of marriage, and (b) the order 3 dated March 31, 2000
denying his motion for reconsideration. The assailed orders partially set aside the trial court’s
order dismissing Civil Case No. 96-1389, for the purpose of resolving issues relating to the
property settlement of the spouses and the custody of their children.
Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private
respondent Carmen Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany. Their
marriage was subsequently ratified on February 14, 1981 in Tayasan, Negros Oriental. 4 Out of
their union were born Carolynne and Alexandra Kristine on November 18, 1981 and October 25,
1987, respectively. On August 28, 1996, private respondent filed a petition 5 for declaration of
nullity of marriage before the Regional Trial Court (RTC) of Makati City. On February 6, 1997,
petitioner filed a motion to dismiss, 6 but it was denied by the trial court in its order 7 dated May
28, 1997. On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in
an order8 dated August 13, 1997. On September 5, 1997, petitioner filed a petition for certiorari
with the Court of Appeals. On November 27, 1998, the appellate court denied the petition and
remanded the case to the RTC.

Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance of HamburgBlankenese, promulgated on December 16, 1997. The decree provides in part: [T]he Court of
First Instance, Hamburg-Blankenese, Branch 513, has ruled through Judge van Buiren of the
Court of First Instance on the basis of the oral proceedings held on 4 Nov. 1997: The marriage
of the Parties contracted on 11 December 1980 before the Civil Registrar of Hamburg-Altona is
hereby dissolved. The parental custody for the children Carolynne Roehr, born 18 November
1981 Alexandra Kristine Roehr, born on 25 October 1987 is granted to the father. The litigation
expenses shall be assumed by the Parties.9
In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999 on the
ground that the trial court had no jurisdiction over the subject matter of the action or suit as a
decree of divorce had already been promulgated dissolving the marriage of petitioner and
private respondent. On July 14, 1999, Judge Guevara-Salonga issued an order granting
petitioner’s motion to dismiss. Private respondent filed a Motion for Partial Reconsideration, with
a prayer that the case proceed for the purpose of determining the issues of custody of children
and the distribution of the properties between petitioner and private respondent.
On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was filed by the
petitioner on the ground that there is nothing to be done anymore in the instant case as the
marital tie between petitioner Wolfgang Roehr and respondent Ma. Carmen D. Rodriguez had
already been severed by the decree of divorce promulgated by the Court of First Instance of
Hamburg, Germany on December 16, 1997 and in view of the fact that said decree of divorce
had already been recognized by the RTC in its order of July 14, 1999, through the
implementation of the mandate of Article 26 of the Family Code, 10 endowing the petitioner with
the capacity to remarry under the Philippine law.
On September 30, 1999, respondent judge issued the assailed order partially setting aside her
order dated July 14, 1999 for the purpose of tackling the issues of property relations of the
spouses as well as support and custody of their children. The pertinent portion of said order
provides:
Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by
petitioner thru counsel which was opposed by respondent and considering that the
second paragraph of Article 26 of the Family Code was included as an amendment thru
Executive Order 227, to avoid the absurd situation of a Filipino as being still married to
his or her alien spouse though the latter is no longer married to the Filipino spouse
because he/she had obtained a divorce abroad which is recognized by his/her national
law, and considering further the effects of the termination of the marriage under Article
43 in relation to Article 50 and 52 of the same Code, which include the dissolution of the
property relations of the spouses, and the support and custody of their children, the
Order dismissing this case is partially set aside with respect to these matters which may
be ventilated in this Court.
SO ORDERED.11 (Emphasis supplied.)
Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied by
respondent judge in an order dated March 31, 2000. 12 Petitioner ascribes lack of jurisdiction of

the trial court and grave abuse of discretion on the part of respondent judge. He cites as
grounds for his petition the following: 1. Partially setting aside the order dated July 14, 1999
dismissing the instant case is not allowed by 1997 Rules of Civil Procedure. 13 2. Respondent
Maria Carmen Rodriguez by her motion for Partial Reconsideration had recognized and
admitted the Divorce Decision obtained by her ex-husband in Hamburg, Germany. 14 3. There is
nothing left to be tackled by the Honorable Court as there are no conjugal assets alleged in the
Petition for Annulment of Marriage and in the Divorce petition, and the custody of the children
had already been awarded to Petitioner Wolfgang Roehr.15
Pertinent in this case before us are the following issues: 1. Whether or not respondent judge
gravely abused her discretion in issuing her order dated September 30, 1999, which partially
modified her order dated July 14, 1999; and 2. Whether or not respondent judge gravely abused
her discretion when she assumed and retained jurisdiction over the present case despite the
fact that petitioner has already obtained a divorce decree from a German court.
On the first issue, petitioner asserts that the assailed order of respondent judge is completely
inconsistent with her previous order and is contrary to Section 3, Rule 16, Rules of Civil
Procedure, which provides: Sec. 3. Resolution of motion - After the hearing, the court may
dismiss the action or claim, deny the motion, or order the amendment of the pleading. The
court shall not defer the resolution of the motion for the reason that the ground relied upon is not
indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor.
(Emphasis supplied.) Petitioner avers that a court’s action on a motion is limited to dismissing
the action or claim, denying the motion, or ordering the amendment of the pleading. Private
respondent, on her part, argues that the RTC can validly reconsider its order dated July 14,
1999 because it had not yet attained finality, given the timely filing of respondent’s motion for
reconsideration.
Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of Civil
Procedure, which provides: Sec. 3. Action upon motion for new trial or reconsideration.—The
trial court may set aside the judgment or final order and grant a new trial, upon such terms as
may be just, or may deny the motion. If the court finds that excessive damages have been
awarded or that the judgment or final order is contrary to the evidence or law, it may amend
such judgment or final order accordingly. Sec. 7. Partial new trial or reconsideration.—If the
grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or
less than all of the matters in controversy, or only one, or less than all, of the parties to it, the
court may order a new trial or grant reconsideration as to such issues if severable without
interfering with the judgment or final order upon the rest. (Emphasis supplied.)

It is clear from the foregoing rules that a judge can order a partial reconsideration of a case that
has not yet attained finality. Considering that private respondent filed a motion for
reconsideration within the reglementary period, the trial court's decision of July 14, 1999 can still
be modified. Moreover, in Sañado v. Court of Appeals,16we held that the court could modify or
alter a judgment even after the same has become executory whenever circumstances transpire
rendering its decision unjust and inequitable, as where certain facts and circumstances justifying
or requiring such modification or alteration transpired after the judgment has become final and

executory17 and when it becomes imperative in the higher interest of justice or when
supervening events warrant it.18 In our view, there are even more compelling reasons to do so
when, as in this case, judgment has not yet attained finality.Anent the second issue, petitioner
claims that respondent judge committed grave abuse of discretion when she partially set aside
her order dated July 14, 1999, despite the fact that petitioner has already obtained a divorce
decree from the Court of First Instance of Hamburg, Germany.
In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we
consistently held that a divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the national law of the foreigner.
Relevant to the present case is Pilapil v. Ibay-Somera,22 where this Court specifically recognized
the validity of a divorce obtained by a German citizen in his country, the Federal Republic of
Germany. We held in Pilapil that a foreign divorce and its legal effects may be recognized in the
Philippines insofar as respondent is concerned in view of the nationality principle in our civil law
on the status of persons. In this case, the divorce decree issued by the German court dated
December 16, 1997 has not been challenged by either of the parties. In fact, save for the issue
of parental custody, even the trial court recognized said decree to be valid and binding, thereby
endowing private respondent the capacity to remarry. Thus, the present controversy mainly
relates to the award of the custody of their two children, Carolynne and Alexandra Kristine, to
petitioner.
As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in
our jurisdiction, but the legal effects thereof, e.g. on custody, care and support of the children,
must still be determined by our courts.23 Before our courts can give the effect of res judicata to a
foreign judgment, such as the award of custody to petitioner by the German court, it must be
shown that the parties opposed to the judgment had been given ample opportunity to do so on
grounds allowed under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48,
1997 Rules of Civil Procedure), to wit: SEC. 50. Effect of foreign judgments. - The effect of a
judgment of a tribunal of a foreign country, having jurisdiction to pronounce the judgment is as
follows: (a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title
to the thing; (b) In case of a judgment against a person, the judgment is presumptive evidence
of a right as between the parties and their successors in interest by a subsequent title; but the
judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
It is essential that there should be an opportunity to challenge the foreign judgment, in order for
the court in this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of
Court clearly provide that with respect to actions in personam, as distinguished from actions in
rem, a foreign judgment merely constitutes prima facie evidence of the justness of the claim of a
party and, as such, is subject to proof to the contrary.24 In the present case, it cannot be said
that private respondent was given the opportunity to challenge the judgment of the German
court so that there is basis for declaring that judgment as res judicata with regard to the rights of
petitioner to have parental custody of their two children. The proceedings in the German court
were summary. As to what was the extent of private respondent’s participation in the
proceedings in the German court, the records remain unclear. The divorce decree itself states
that neither has she commented on the proceedings 25 nor has she given her opinion to the
Social Services Office.26 Unlike petitioner who was represented by two lawyers, private

respondent had no counsel to assist her in said proceedings. 27 More importantly, the divorce
judgment was issued to petitioner by virtue of the German Civil Code provision to the effect that
when a couple lived separately for three years, the marriage is deemed irrefutably dissolved.
The decree did not touch on the issue as to who the offending spouse was. Absent any finding
that private respondent is unfit to obtain custody of the children, the trial court was correct in
setting the issue for hearing to determine the issue of parental custody, care, support and
education mindful of the best interests of the children. This is in consonance with the provision
in the Child and Youth Welfare Code that the child’s welfare is always the paramount
consideration in all questions concerning his care and custody. 28
On the matter of property relations, petitioner asserts that public respondent exceeded the
bounds of her jurisdiction when she claimed cognizance of the issue concerning property
relations between petitioner and private respondent. Private respondent herself has admitted in
Par. 14 of her petition for declaration of nullity of marriage dated August 26, 1996 filed with the
RTC of Makati, subject of this case, that: "[p]etitioner and respondent have not acquired any
conjugal or community property nor have they incurred any debts during their
marriage."29 Herein petitioner did not contest this averment. Basic is the rule that a court shall
grant relief warranted by the allegations and the proof.30 given the factual admission by the
parties in their pleadings that there is no property to be accounted for, respondent judge has no
basis to assert jurisdiction in this case to resolve a matter no longer deemed in controversy. In
sum, we find that respondent judge may proceed to determine the issue regarding the custody
of the two children born of the union between petitioner and private respondent. Private
respondent erred, however, in claiming cognizance to settle the matter of property relations of
the parties, which is not at issue.
WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued on
September 30, 1999 and March 31, 2000 are AFFIRMED with MODIFICATION. We hereby
declare that the trial court has jurisdiction over the issue between the parties as to who has
parental custody, including the care, support and education of the children, namely Carolynne
and Alexandra Kristine Roehr. Let the records of this case be remanded promptly to the trial
court for continuation of appropriate proceedings. No pronouncement as to costs.
SO ORDERED.
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A.
RECIO, respondent.
DECISION
A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such
decree is valid according to the national law of the foreigner. However, the divorce decree and
the governing personal law of the alien spouse who obtained the divorce must be proven. Our
courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both
the divorce decree and the national law of the alien must be alleged and proven according to
our law on evidence.
The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the
January 7, 1999 Decision[1] and the March 24, 1999 Order [2] of the Regional Trial Court of
Cabanatuan City, Branch 28, in Civil Case No. 3026AF. The assailed Decision disposed as
follows: WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick
A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can
now remarry under existing and applicable laws to any and/or both parties. [3] The assailed Order
denied reconsideration of the above-quoted Decision. The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in
Malabon, Rizal, on March 1, 1987.[4] They lived together as husband and wife in Australia. On
May 18, 1989, [5] a decree of divorce, purportedly dissolving the marriage, was issued by an
Australian family court. On June 26, 1992, respondent became an Australian citizen, as shown
by a Certificate of Australian Citizenship issued by the Australian government. [6] Petitioner -- a
Filipina -- and respondent were married on January 12, 1994 in Our Lady of Perpetual Help
Church in Cabanatuan City.[7] In their application for a marriage license, respondent was
declared as single and Filipino.[8] Starting October 22, 1995, petitioner and respondent lived
separately without prior judicial dissolution of their marriage. While the two were still in Australia,
their conjugal assets were divided on May 16, 1996, in accordance with their Statutory
Declarations secured in Australia.[9] On March 3, 1998, petitioner filed a Complaint for
Declaration of Nullity of Marriage[10] in the court a quo, on the ground of bigamy -- respondent
allegedly had a prior subsisting marriage at the time he married her on January 12, 1994. She
claimed that she learned of respondents marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner
his prior marriage and its subsequent dissolution.[11] He contended that his first marriage to an
Australian citizen had been validly dissolved by a divorce decree obtained in Australia in 1989;
[12]
thus, he was legally capacitated to marry petitioner in 1994. On July 7, 1998 -- or about five
years after the couples wedding and while the suit for the declaration of nullity was pending -respondent was able to secure a divorce decree from a family court in Sydney, Australia
because the marriage ha[d] irretrievably broken down. [13] Respondent prayed in his Answer that
the Complaint be dismissed on the ground that it stated no cause of action. [14] The Office of the
Solicitor General agreed with respondent.[15] The court marked and admitted the documentary
evidence of both parties.[16] After they submitted their respective memoranda, the case was
submitted for resolution.[17] Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the divorce issued in
Australia was valid and recognized in the Philippines. It deemed the marriage ended, but not on
the basis of any defect in an essential element of the marriage; that is, respondents alleged lack
of legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by
respondent. The Australian divorce had ended the marriage; thus, there was no more marital
union to nullify or annul. Hence, this Petition.[18]

Issues: Petitioner submits the following issues for our consideration:

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

2. The failure of the respondent, who is now a naturalized Australian, to present a
certificate of legal capacity to marry constitutes absence of a substantial requisite
voiding the petitioners marriage to the respondent
3. The trial court seriously erred in the application of Art. 26 of the Family Code in this case.
4. The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52
and 53 of the Family Code as the applicable provisions in this case.
5. The trial court gravely erred in pronouncing that the divorce decree obtained by the
respondent in Australia ipso facto capacitated the parties to remarry, without first
securing a recognition of the judgment granting the divorce decree before our courts. [19]
The Petition raises five issues, but for purposes of this Decision, we shall concentrate on
two pivotal ones: (1) whether the divorce between respondent and Editha Samson was
proven, and (2) whether respondent was proven to be legally capacitated to marry
petitioner. Because of our ruling on these two, there is no more necessity to take up the
rest.
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial courts recognition of the divorce between respondent and Editha
Samson. Citing Adong v. Cheong Seng Gee,[20] petitioner argues that the divorce decree, like
any other foreign judgment, may be given recognition in this jurisdiction only upon proof of the
existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree
itself. She adds that respondent miserably failed to establish these elements. Petitioner adds
that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized
abroad are governed by the law of the place where they were celebrated (the lex loci
celebrationis). In effect, the Code requires the presentation of the foreign law to show the
conformity of the marriage in question to the legal requirements of the place where the marriage
was performed. At the outset, we lay the following basic legal principles as the take-off points for
our discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot
grant it.[21] A marriage between two Filipinos cannot be dissolved even by a divorce obtained
abroad, because of Articles 15[22] and 17[23] of the Civil Code.[24] In mixed marriages involving a
Filipino and a foreigner, Article 26[25] of the Family Code allows the former to contract a
subsequent marriage in case the divorce is validly obtained abroad by the alien spouse
capacitating him or her to remarry.[26] A divorce obtained abroad by a couple, who are both
aliens, may be recognized in the Philippines, provided it is consistent with their respective
national laws.[27]

A comparison between marriage and divorce, as far as pleading and proof are concerned,
can be made. Van Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which
may be recognized in the Philippines, provided they are valid according to their national law.
[28]
Therefore, before a foreign divorce decree can be recognized by our courts, the party

pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law
allowing it.[29] Presentation solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must first
comply with the registration requirements under Articles 11, 13 and 52 of the Family
Code. These articles read as follows: ART. 11. Where a marriage license is required, each of the
contracting parties shall file separately a sworn application for such license with the proper local
civil registrar which shall specify the following: (5) If previously married, how, when and where
the previous marriage was dissolved or annulled; ART. 13. In case either of the contracting
parties has been previously married, the applicant shall be required to ART. 13. In case either of
the contracting parties has been previously married, the applicant shall be required to furnish,
instead of the birth or baptismal certificate required in the last preceding article, the death
certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial
decree of annulment or declaration of nullity of his or her previous marriage. x x x. ART. 52. The
judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the
properties of the spouses, and the delivery of the childrens presumptive legitimes shall be
recorded in the appropriate civil registry and registries of property; otherwise, the same shall not
affect their persons.
Respondent, on the other hand, argues that the Australian divorce decree is a public
document -- a written official act of an Australian family court. Therefore, it requires no further
proof of its authenticity and due execution. Respondent is getting ahead of himself. Before a
foreign judgment is given presumptive evidentiary value, the document must first be presented
and admitted in evidence.[30] A divorce obtained abroad is proven by the divorce decree
itself. Indeed the best evidence of a judgment is the judgment itself. [31] The decree purports to
be a written act or record of an act of an official body or tribunal of a foreign country. [32] Under
Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a
public or official record of a foreign country by either (1) an official publication or (2) a copy
thereof attested[33] by the officer having legal custody of the document. If the record is not kept in
the Philippines, such copy must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in
which the record is kept and (b) authenticated by the seal of his office. [34] The divorce decree
between respondent and Editha Samson appears to be an authentic one issued by an
Australian family court.[35] However, appearance is not sufficient; compliance with the
aforementioned rules on evidence must be demonstrated. Fortunately for respondents cause,
when the divorce decree of May 18, 1989 was submitted in evidence, counsel for petitioner
objected, not to its admissibility, but only to the fact that it had not been registered in the Local
Civil Registry of Cabanatuan City.[36] The trial court ruled that it was admissible, subject to
petitioners qualification.[37] Hence, it was admitted in evidence and accorded weight by the
judge. Indeed, petitioners failure to object properly rendered the divorce decree admissible as a
written act of the Family Court of Sydney, Australia. [38] Compliance with the quoted articles (11,
13 and 52) of the Family Code is not necessary; respondent was no longer bound by Philippine
personal laws after he acquired Australian citizenship in 1992. [39]Naturalization is the legal act of
adopting an alien and clothing him with the political and civil rights belonging to a citizen.
[40]
Naturalized citizens, freed from the protective cloak of their former states, don the attires of
their adoptive countries. By becoming an Australian, respondent severed his allegiance to the
Philippines and the vinculum juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law falls upon petitioner,
because she is the party challenging the validity of a foreign judgment. He contends that
petitioner was satisfied with the original of the divorce decree and was cognizant of the marital
laws of Australia, because she had lived and worked in that country for quite a long
time. Besides, the Australian divorce law is allegedly known by Philippine courts; thus, judges
may take judicial notice of foreign laws in the exercise of sound discretion. We are not
persuaded. The burden of proof lies with the party who alleges the existence of a fact or thing
necessary in the prosecution or defense of an action.[41] In civil cases, plaintiffs have the burden
of proving the material allegations of the complaint when those are denied by the answer; and
defendants have the burden of proving the material allegations in their answer when they
introduce new matters.[42] Since the divorce was a defense raised by respondent, the burden of
proving the pertinent Australian law validating it falls squarely upon him. It is well-settled in our
jurisdiction that our courts cannot take judicial notice of foreign laws.[43] Like any other facts, they
must be alleged and proved. Australian marital laws are not among those matters that judges
are supposed to know by reason of their judicial function. [44] The power of judicial notice must be
exercised with caution, and every reasonable doubt upon the subject should be resolved in the
negative.
Second Issue: Respondents Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent was
legally incapacitated to marry her in 1994. Hence, she concludes that their marriage was
void ab initio. Respondent replies that the Australian divorce decree, which was validly admitted
in evidence, adequately established his legal capacity to marry under Australian law.
Respondents contention is untenable. In its strict legal sense, divorce means the legal
dissolution of a lawful union for a cause arising after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited
divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends
it and leaves the bond in full force. [45]There is no showing in the case at bar which type of
divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree -- a conditional or
provisional judgment of divorce. It is in effect the same as a separation from bed and board,
although an absolute divorce may follow after the lapse of the prescribed period during which no
reconciliation is effected.[46] Even after the divorce becomes absolute, the court may under some
foreign statutes and practices, still restrict remarriage. Under some other jurisdictions,
remarriage may be limited by statute; thus, the guilty party in a divorce which was granted on
the ground of adultery may be prohibited from marrying again. The court may allow a
remarriage only after proof of good behavior.[47] On its face, the herein Australian divorce decree
contains a restriction that reads:
1. A party to a marriage who marries again before this decree becomes absolute
(unless the other party has died) commits the offence of bigamy.[48]
This quotation bolsters our contention that the divorce obtained by respondent may have
been restricted. It did not absolutely establish his legal capacity to remarry according to his
national law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed
that the Australian divorce ipso facto restored respondents capacity to remarry despite the
paucity of evidence on this matter. We also reject the claim of respondent that the divorce
decree raises a disputable presumption or presumptive evidence as to his civil status based on
Section 48, Rule 39[49] of the Rules of Court, for the simple reason that no proof has been
presented on the legal effects of the divorce decree obtained under Australian laws.

Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the Family
Code was not submitted together with the application for a marriage license. According to her,
its absence is proof that respondent did not have legal capacity to remarry. We clarify. To repeat,
the legal capacity to contract marriage is determined by the national law of the party
concerned. The certificate mentioned in Article 21 of the Family Code would have been
sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly
authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the
part of the alien applicant for a marriage license.[50]
As it is, however, there is absolutely no evidence that proves respondents legal capacity to
marry petitioner. A review of the records before this Court shows that only the following exhibits
were presented before the lower court: (1) for petitioner: (a) Exhibit A Complaint; [51] (b) Exhibit B
Certificate of Marriage Between Rederick A. 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 parties marriage on the ground of bigamy, there being already in evidence two
existing marriage certificates, which were both obtained in the Philippines, one in Malabon,
Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the
case to the court a quo for the purpose of receiving evidence which conclusively show
respondents legal capacity to marry petitioner; and failing in that, of declaring the parties
marriage void on the ground of bigamy, as above discussed. No costs.
SO ORDERED.