G. R. No.

142820 - June 20, 2003

WOLFGANG O. ROEHR, Petitioner, vs. MARIA
CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA
GUEVARA-SALONGA, Presiding Judge of Makati
RTC, Branch 149, Respondents.
QUISUMBING, J.:
At the core of the present controversy are issues of
(a) grave abuse of discretion allegedly committed by
public respondent and (b) lack of jurisdiction of the
regional trial court, in matters that spring from a
divorce decree obtained abroad by petitioner.
In this special civil action for certiorari, petitioner
assails (a) the 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 order3 dated March
31, 2000 denying his motion for reconsideration. The
assailed orders partially set aside the trial courts
order dismissing Civil Case No. 96-1389, for the
purpose of resolving issues relating to the property
settlement of the spouses and the custody of their
children.
Petitioner Wolfgang O. Roehr, a German citizen and
resident of Germany, married private respondent
Carmen Rodriguez, a Filipina, on December 11, 1980
in Hamburg, Germany. Their marriage was
subsequently ratified on February 14, 1981 in
Tayasan, Negros Oriental.4 Out of their union were
born Carolynne and Alexandra Kristine on November
18, 1981 and October 25, 1987, respectively.
On August 28, 1996, private respondent filed a
petition5 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
order7 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 petitioners motion to dismiss. Private
respondent filed a Motion for Partial Reconsideration,
with a prayer that the case proceed for the purpose
of determining the issues of custody of children and
the distribution of the properties between petitioner
and private respondent.
On August 18, 1999, an Opposition to the Motion for
Partial Reconsideration was filed by the petitioner on
the ground that there is nothing to be done anymore
in the instant case as the marital tie between
petitioner Wolfgang Roehr and respondent Ma.
Carmen D. Rodriguez had already been severed by
the decree of divorce promulgated by the Court of
First Instance of Hamburg, Germany on December
16, 1997 and in view of the fact that said decree of
divorce had already been recognized by the RTC in its
order of July 14, 1999, through the implementation of
the mandate of Article 26 of the Family Code,10
endowing the petitioner with the capacity to remarry
under the Philippine law.
On September 30, 1999, respondent judge issued the
assailed order partially setting aside her order dated
July 14, 1999 for the purpose of tackling the issues of
property relations of the spouses as well as support
and custody of their children. The pertinent portion of
said order provides:
Acting on the Motion for Partial Reconsideration of
the Order dated July 14, 1999 filed by petitioner thru
counsel which was opposed by respondent and
considering that the second paragraph of Article 26
of the Family Code was included as an amendment
thru Executive Order 227, to avoid the absurd
situation of a Filipino as being still married to his or
her alien spouse though the latter is no longer

married to the Filipino spouse because he/she had

obtained a divorce abroad which is recognized by
his/her national law, and considering further the
effects of the termination of the marriage under
Article 43 in relation to Article 50 and 52 of the same
Code, which include the dissolution of the property
relations of the spouses, and the support and
custody of their children, the Order dismissing this
case is partially set aside with respect to these
matters which may be ventilated in this Court.

The court shall not defer the resolution of the motion

for the reason that the ground relied upon is not
indubitable.

SO ORDERED.11 (Emphasis supplied.)

Private respondent, on her part, argues that the RTC

can validly reconsider its order dated July 14, 1999
because it had not yet attained finality, given the
timely
filing
of
respondents
motion
for
reconsideration.

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.

In every case, the resolution shall state clearly and

distinctly the reasons therefore.
Petitioner avers that a courts action on a motion is
limited to dismissing the action or claim, denying the
motion, or ordering the amendment of the pleading.

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.
It is clear from the foregoing rules that a judge can
order a partial reconsideration of a case that has not
yet attained finality. Considering that private
respondent filed a motion for reconsideration within
the reglementary period, the trial court's decision of
July 14, 1999 can still be modified. Moreover, in
Saado v. Court of Appeals,16 we held that the court
could modify or alter a judgment even after the same
has become executory whenever circumstances
transpire rendering its decision unjust and
inequitable,
as
where
certain
facts
and
circumstances
justifying
or
requiring
such
modification or alteration transpired after the
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. IbaySomera,22 where this Court specifically recognized
the validity of a divorce obtained by a German citizen
in his country, the Federal Republic of Germany. We
held in Pilapil that a foreign divorce and its legal
effects may be recognized in the Philippines insofar
as respondent is concerned in view of the nationality
principle in our civil law on the status of persons.
In this case, the divorce decree issued by the
German court dated December 16, 1997 has not
been challenged by either of the parties. In fact, save
for the issue of parental custody, even the trial court
recognized said decree to be valid and binding,
thereby endowing private respondent the capacity to
remarry. Thus, the present controversy mainly relates
to the award of the custody of their two children,
Carolynne and Alexandra Kristine, to petitioner.
As a general rule, divorce decrees obtained by
foreigners in other countries are recognizable in our
jurisdiction, but the legal effects thereof, e.g. on
custody, care and support of the children, must still
be determined by our courts.23 Before our courts
can give the effect of res judicata to a foreign
judgment, such as the award of custody to petitioner
by the German court, it must be shown that the
parties opposed to the judgment had been given
ample opportunity to do so on grounds allowed under
Rule 39, Section 50 of the Rules of Court (now Rule
39, Section 48, 1997 Rules of Civil Procedure), to wit:
SEC. 50. Effect of foreign judgments. - The effect of a
judgment of a tribunal of a foreign country, having
jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the
judgment is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the
judgment is presumptive evidence of a right as
between the parties and their successors in interest
by a subsequent title; but the judgment may be
repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake
of law or fact.

It is essential that there should be an opportunity to

challenge the foreign judgment, in order for the court
in this jurisdiction to properly determine its efficacy.
In this jurisdiction, our Rules of Court clearly provide
that with respect to actions in personam, as
distinguished from actions in rem, a foreign judgment
merely constitutes prima facie evidence of the
justness of the claim of a party and, as such, is
subject to proof to the contrary.24
In the present case, it cannot be said that private
respondent was given the opportunity to challenge
the judgment of the German court so that there is
basis for declaring that judgment as res judicata with
regard to the rights of petitioner to have parental
custody of their two children. The proceedings in the
German court were summary. As to what was the
extent of private respondents participation in the
proceedings in the German court, the records remain
unclear. The divorce decree itself states that neither
has she commented on the proceedings25 nor has
she given her opinion to the Social Services Office.26
Unlike petitioner who was represented by two
lawyers, private respondent had no counsel to assist
her in said proceedings.27 More importantly, the
divorce judgment was issued to petitioner by virtue
of the German Civil Code provision to the effect that
when a couple lived separately for three years, the
marriage is deemed irrefutably dissolved. The decree
did not touch on the issue as to who the offending
spouse was. Absent any finding that private
respondent is unfit to obtain custody of the children,
the trial court was correct in setting the issue for
hearing to determine the issue of parental custody,
care, support and education mindful of the best
interests of the children. This is in consonance with
the provision in the Child and Youth Welfare Code
that the childs welfare is always the paramount
consideration in all questions concerning his care and
custody. 28
On the matter of property relations, petitioner
asserts that public respondent exceeded the bounds
of her jurisdiction when she claimed cognizance of
the issue concerning property relations between
petitioner
and
private
respondent.
Private
respondent herself has admitted in Par. 14 of her
petition for declaration of nullity of marriage dated
August 26, 1996 filed with the RTC of Makati, subject
of this case, that: "[p]etitioner and respondent have
not acquired any conjugal or community property nor
have they incurred any debts during their
marriage."29 Herein petitioner did not contest this
averment. Basic is the rule that a court shall grant
relief warranted by the allegations and the proof.30
Given the factual admission by the parties in their
pleadings that there is no property to be accounted
for, respondent judge has no basis to assert
jurisdiction in this case to resolve a matter no longer
deemed in controversy.

In sum, we find that respondent judge may proceed

to determine the issue regarding the custody of the
two children born of the union between petitioner
and private respondent. Private respondent erred,
however, in claiming cognizance to settle the matter
of property relations of the parties, which is not at
issue.
WHEREFORE, the orders of the Regional Trial Court of
Makati, Branch 149, issued on September 30, 1999
and
March
31,
2000
are
AFFIRMED
with
MODIFICATION. We hereby declare that the trial court
has jurisdiction over the issue between the parties as
to who has parental custody, including the care,
support and education of the children, namely
Carolynne and Alexandra Kristine Roehr. Let the
records of this case be remanded promptly to the
trial
court
for
continuation
of
appropriate
proceedings. No pronouncement as to costs.
SO ORDERED.
Bellosillo, (Chairman), and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on official leave.

MANUELA BARRETTO GONZALEZ, PlaintiffAppellee,

vs.
AUGUSTO
C.
GONZALEZ,
Defendant-Appellant.
Jr.,

ET

AL.,

Quintin Paredes and Barrera and Reyes for

appellant.
DeWitt, Perkins
appellee.

and

Brady

Shortly after his return his wife brought action in the

Court of First Instance of Manila requesting that the
courts of the Philippine Islands confirm and ratify the
decree of divorce issued by the courts of the State of
Nevada; that section 9 of Act No. 2710, which reads
as follows:
The decree of divorce shall dissolve the community
of property as soon as such decree becomes final,
but shall not dissolve the bonds of matrimony until
one year thereafter.

G.R. No. L-37048 March 7, 1933

AUGUSTO
C.
GONZALEZ,
intervenors-appellees.

necessity, and the title of certain properties to be put

in her name. Shortly after this agreement the
husband left the Islands, betook himself to Reno,
Nevada, and secured in that jurisdiction an absolute
divorce on the ground of desertion, which decree was
dated November 28, 1927. Shortly thereafter the
defendant moved to California and returned to these
Islands in August 1928, where he has since
remained. On the same date that he secured a
divorce in Nevada he went through the forms of
marriage with another citizen of these Islands and
now has three children as a result of that marriage.
Defendant, after his departure from these Islands,
reduced the amount he had agreed to pay monthly
for the support of his wife and four minor children
and has not made the payments fixed in the Reno
divorce as alimony.

for

plaintiff-

Camus and Delgado for intervenors-appellees.

HULL, J.:
Plaintiff and defendant are citizens of the Philippine
Islands and at present residents of the City of Manila.
They were married in the City of Manila on January
19, 1919, and lived together as man and wife in the
Philippine Islands until the spring of 1926. They
voluntarily separated and since that time have not
lived together as man and wife. Of this union four
children were born who are now 11, 10, 8 and 6
years of age. Negotiations between the parties, both
being represented by attorneys, continued for
several months, whereupon it was mutually agreed
to allow the plaintiff for her support and that of her
children, five hundred pesos (P500) monthly; this
amount to be increased in case of illness or

The bonds of matrimony shall not be considered as

dissolved with regard to the spouse who, having
legitimate children, has not delivered to each of them
or to the guardian appointed by the court, within said
period of one year, the equivalent of what would
have been due to them as their legal portion if said
spouse had died intestate immediately after the
dissolution of the community of property.
be enforced, and that she and the defendant deliver
to the guardian ad litem the equivalent of what
would have been due to their children as their legal
portion from the respective estates had their parents
did intestate on November 28, 1927. It is also prayed
that the community existing between plaintiff and
defendant be declared dissolved and the defendant
be ordered to render an accounting and to deliver to
the plaintiff her share of the community property,
that the defendant be ordered to pay the plaintiff
alimony at the rate of five hundred pesos (P500) per
month, that the defendant be ordered to pay the
plaintiff, as counsel fees, the sum of five thousand
pesos (P5000), and that the defendant be ordered to
pay plaintiff the expenses incurred in educating the
three minor sons.
A guardian ad litem was appointed for the minor
children, and they appear as intervenors and join
their mother in these proceedings. The Court of First
Instance, after hearing, found against the defendant

and granted judgment as prayed for by the plaintiff

and intervenors, with the exception of reducing
attorneys fees to three thousand, and also granted
costs of the action against the defendant. From this
judgment defendant appeals and makes the
following assignment of errors:
I. The lower court erred in not declaring that
paragraph 2 of section 9 of the Philippine Divorce
Law, is unconstitutional, null and void.
II. The lower court erred in holding that section 9 of
Act No. 2710 (Divorce Law) applies to the Nevada
decree of divorce issued in favor of appellant
Augusto C. Gonzalez, said decree being entitled to
confirmation and recognition.
III. The lower court erred in not dismissing the
complaint in intervention for lack of cause of action
against appellant and appellee.
IV. The lower court erred in not declaring the notice
of lis pendens filed by intervenors to be null and void.
V. The lower court erred in ordering the appellant to
pay the sum of P500 per month for the support not
only of his children but also of his ex-wife, appellee
herein, Manuela Barretto.
VI. The lower court erred in not holding that plaintiffappellee, Manuela Barretto, is not entitled to support
from her ex-husband, herein appellant, over and
beyond the alimony fixed by the divorce decree in
Exhibit A.
VII. The lower court erred in condemning defendant
appellant to pay to plaintiff-appellee P3,000
attorney's fees.
VIII. The lower court erred in denying appellant's
motion for new trial.
While the parties in this action are in dispute over
financial matters they are in unity in trying to secure
the courts of this jurisdiction to recognize and
approve of the Reno divorce. On the record here
presented this can not be done. The public policy in
this jurisdiction on the question of divorce is clearly
set forth in Act No. 2710, and the decisions of this
court: Goitia vs. Campos Rueda (35 Phil., 252); Garcia
Valdez vs. Soteraa Tuason (40 Phil., 943-952);
Ramirez vs. Gmur (42 Phil., 855); Chereau vs.
Fuentebella (43 Phil., 216); Fernandez vs. De Castro
(48 Phil., 123); Gorayeb vs. Hashim (50 Phil., 22);
Francisco vs. Tayao (50 Phil., 42); Alkuino Lim Pang
vs. Uy Pian Ng Shun and Lim Tingco (52 Phil., 571);
and the late case of Cousins Hix vs. Fluemer, decided
March 21, 1931, and reported in 55 Phil., 851.
The entire conduct of the parties from the time of
their separation until the case was submitted to this

court, in which they all prayed that the Reno divorce

be ratified and confirmed, clearly indicates a purpose
to circumvent the laws of the Philippine Islands
regarding divorce and to secure for themselves a
change of status for reasons and under conditions
not authorized by our law. At all times the
matrimonial domicile of this couple has been within
the Philippine Islands and the residence acquired in
the State of Nevada by the husband of the purpose
of securing a divorce was not a bona fide residence
and did not confer jurisdiction upon the Court of that
State to dissolve the bonds if matrimony in which he
had entered in 1919. While the decisions of this court
heretofore in refusing to recognize the validity of
foreign divorce has usually been expressed in the
negative and have been based upon lack of
matrimonial domicile or fraud or collusion, we have
not overlooked the provisions of the Civil Code now in
force in these Islands. Article 9 thereof reads as
follows:
The laws relating to family rights and duties, or to the
status, condition and legal capacity or persons, are
binding upon Spaniards even though they reside in a
foreign country.
And article 11, the last part of which reads:
. . . the prohibitive laws concerning persons, their
acts and their property, and those intended to
promote public order and good morals, shall nor be
rendered without effect by any foreign laws or
judgments or by anything done or any agreements
entered into a foreign country.
It is therefore a serious question whether any foreign
divorce relating to citizens of the Philippine Islands,
will be recognized in this jurisdiction, except it be for
a cause, and under conditions for which the courts of
Philippine Islands would grant a divorce. The lower
court in granting relief as prayed for frankly stated
that the securing of the divorce, the contracting of
another marriage and the bringing into the world of
innocent children brings about such a condition that
the court must grant relief. The hardships of the
existing divorce laws of the Philippine Islands are well
known to the members of the Legislature. It is of no
moment in this litigation what he personal views of
the writer on the subject of divorce may be. It is the
duty of the courts to enforce the laws of divorce as
written by the Legislature if they are constitutional.
Courts have no right to say that such laws are too
strict or too liberal.
Litigants by mutual agreement can not compel the
courts to approve of their own actions or permit the
personal relations of the citizens of these Islands to
be affected by decrees of foreign courts in a manner
which our Government believes is contrary to public
order and good morals. Holding the above views it

becomes unnecessary to discuss the serious

constitutional question presented by appellant in his
first assignment of error.
The judgment of the Court of First Instance of the
City of Manila must therefore be reversed and
defendant absolved from the demands made against
him in this action. This, however, without prejudice to
any right of maintenance that plaintiff and the
intervenors may have against defendant. No special
pronouncement as to costs. So ordered.
Avancea, C.J., Street, Villamor Ostrand,
Santos, Vickers, Imperial and Butte JJ., concur.

Abad

PROOF OF MALICE. An action for alienation of

affection against the parents of one consort does not
lie in the absence of proof of malice or unworthy
motives on their part.
DECISION
REYES, J. B. L., J.:
Direct appeal, on factual and legal questions, from
the judgment of the Court of First Instance of Cebu,
in its Civil Case No. R-4177, denying the claim of the
plaintiff-appellant, Pastor B. Tenchavez, for legal
separation and one million pesos in damages against
his wife and parents-in-law, the defendantsappellees, Vicente, Mamerto and Mena 1 , all
surnamed "Escao" respectively. 2
The facts, supported by the evidence of record, are
the following:

[G.R. No. L-19671. November 29, 1965.]

PASTOR B. TENCHAVEZ, Plaintiff-Appellant, v.
VICENTA F. ESCAO, ET AL., DefendantsAppellees.
I. V. Binamira & F. B. Barria, for PlaintiffAppellant.
Jalandoni & Jamir for Defendants-Appellees.
SYLLABUS
1. HUSBAND AND WIFE; FOREIGN DIVORCE BETWEEN
FILIPINO CITIZENS DECREED AFTER THE EFFECTIVITY
OF THE NEW CIVIL CODE; REMARRIAGE OF DIVORCED
CONSORT. A foreign divorce between Filipino
citizens, sought and decreed after the effectivity of
the new Civil Code (Republic Act No. 386), is not
entitled to recognition as valid in the Philippines; and
neither is the marriage contracted with another party
by the divorced consort, subsequently to the foreign
decree of divorce entitled to validity in this country.
2. ID.; ID.; ID.; INNOCENT CONSORT ENTITLED TO
LEGAL SEPARATION. The remarriage of the
divorced wife and her cohabitation with a person
other than the lawful husband entitles the latter to a
decree of legal separation conformably to Philippine
law.
3. ID.; ID,; ID.; INVALID DIVORCE ENTITLES INNOCENT
CONSORT TO RECOVER DAMAGES. The desertion
and securing of an invalid divorce decree by one
consort entitles the other to recover damages.
4. ID.; ACTION FOR ALIENATION OF AFFECTIONS
AGAINST PARENTS OF ONE CONSORT; ABSENCE OF

Missing her late-afternoon classes on 24 February

1948 in the University of San Carlos, Cebu City,
where she was then enrolled as a second year
student of commerce, Vicenta Escao, 27 years of
age (scion of a well-to-do and socially prominent
Filipino family of Spanish ancestry and a "sheltered
colegiala"), exchanged marriage vows with Pastor
Tenchavez, 32 years of age, an engineer, ex-army
officer and of undistinguished stock, without the
knowledge of her parents, before a Catholic chaplain,
Lt. Moises Lavares, in the house of one Juan Alburo in
the said city. The marriage was the culmination of
previous love affair and was duly registered with the
local civil registrar.
Vicentas letters to Pastor, and his to her, before the
marriage indicate that the couple were deeply in
love. Together with a friend, Pacita Noel, their
matchmaker and go-between, they had planned out
their marital future whereby Pacita would be the
governess of their first-born; they started saving
money in a piggy bank. A few weeks before their
secret marriage, their engagement was broken;
Vicenta returned the engagement ring and accepted
another suitor, Joseling Lao. Her love for Pastor
beckoned; she pleaded for his return and they
reconciled. This time they planned to get married
and then elope. To facilitate the elopement, Vicenta
had brought some of her clothes to the room of
Pacita Noel in St. Marys Hall, which was their usual
trysting place.
Although planned for the midnight following their
marriage, the elopement did not, however,
materialize because when Vicenta went back to her
classes after the marriage, her mother, who got wind
of the intended nuptials, was already waiting for her
at the college. Vicenta was taken home where she
admitted that she had already married Pastor.

Mamerto and Mena Escao were surprised, because

Pastor never asked for the hand of Vicenta, and were
disgusted because of the great scandal that the
clandestine marriage would provoke (t.s.n., vol. 111,
pp. 1105-06). The following morning, the Escao
spouses sought priestly advice. Father Reynes
suggested a recelebration to validate what he
believed to be an invalid marriage, from the
standpoint of the Church, due to the lack of authority
from the Archbishop or the parish priest for the
officiating chaplain to celebrate the marriage. The
recelebration did not take place, because on 26
February 1948 Mamerto Escao was handed by a
maid, whose name he claims he does not remember,
a letter purportedly coming from San Carlos College
students and disclosing an amorous relationship
between Pastor Tenchavez and Pacita Noel; Vicenta
translated the letter to her father, and thereafter
would not agree to a new marriage. Vicenta and
Pastor met that day in the house of Mrs. Pilar
Mendezona. Thereafter, Vicenta continued living with
her parents while Pastor returned to his job in Manila.
Her letter of 22 March 1948 (Exh. "M"), while still
solicitous of her husbands welfare, was not as
endearing as her previous letters when their love was
aflame.
Vicenta was bred in Catholic ways but is of a
changeable disposition and Pastor knew it. She
fondly accepted her being called a "jellyfish." She
was
not
prevented
by
her
parents
from
communicating with Pastor (Exh. 1-Escao"), but her
letters became less frequent as the days passed. As
of June, 1948 the newlyweds were already estranged
(Exh. "2-Escao"). Vicenta had gone to Jimenez,
Misamis Occidental, to escape from the scandal that
her marriage stirred in Cebu society. There, a lawyer
filed for her a petition, drafted by then Senator
Emmanuel Pelaez, to annul her marriage. She did not
sign the petition (Exh. "B-5"). The case was
dismissed without prejudice because of her nonappearance at the hearing (Exh. "B-4").
On 24 June 1950, without informing her husband, she
applied for a passport, indicating in her application
that she was single, that her purpose was to study,
that she was domiciled in Cebu City, and that she
intended to return after two years. The application
was approved, and she left for the United States. On
22 August 1950, she filed a verified complaint for
divorce against the herein plaintiff in the Second
Judicial District Court of the State of Nevada in and
for the County of Washoe, on the ground of "extreme
cruelty, entirely mental in character." On 21 October
1950, a decree of divorce, "final and absolute", was
issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escao filed a petition
with the Archbishop of Cebu to annul their daughters
marriage to Pastor (Exh. "D"). On 10 September

1954, Vicenta sought papal dispensation of her

marriage (Exh. "D-2").
On 13 September 1954, Vicenta married an
American, Russell Leo Moran, in Nevada. She now
lives with him in California, and, by him, has
begotten children. She acquired American citizenship
on 8 August 1958.
But on 30 July 1955, Tenchavez had initiated the
proceedings at bar by a complaint in the Court of
First Instance of Cebu, and amended on 31 May
1956, against Vicenta F. Escao, her parents,
Mamerto and Mena Escao, whom he charged with
having dissuaded and discouraged Vicenta from
joining her husband, and alienating her affections,
and against the Roman Catholic Church, for having,
through its Diocesan Tribunal, decreed the annulment
of the marriage, and asked for legal separation and
one million pesos in damages. Vicenta claimed a
valid divorce from plaintiff and an equally valid
marriage to her present husband, Russell Leo Moran;
while her parents denied that they had in anyway
influenced their daughters acts, and counterclaimed
for moral damages.
The appealed judgment did not decree a legal
separation, but freed the plaintiff from supporting his
wife and to acquire property to the exclusion of his
wife. It allowed the counterclaim of Mamerto Escao
and Mena Escao for moral and exemplary damages
and attorneys fees against the plaintiff-appellant, to
the extent of P45,000.00, and plaintiff resorted
directly to this Court.
The appellant ascribes, as errors of the trial court,
the following:
1. In not declaring legal separation; in not holding
defendant Vicenta F. Escao liable for damages and
in dismissing the complaint;
2. In not holding the defendant parents Don Mamerto
Escao and the heirs of Doa Mena Escao liable for
damages;
3. In holding the plaintiff liable for and requiring him
to pay the damages to the defendant parents on
their counterclaim; and
4. In dismissing the complaint and in denying the
relief sought by the plaintiff.
That on 24 February 1948 the plaintiff-appellant,
Pastor Tenchavez, and the defendant-appellee,
Vicenta Escao, were validly married to each other,
from the standpoint of our civil law, is clearly
established by the record before us. Both parties
were then above the age of majority, and otherwise
qualified; and both consented to the marriage, which
was performed by a Catholic priest (army chaplain

Lavares) in the presence of competent witnesses. It

is nowhere shown that said priest was not duly
authorized under civil law to solemnize marriages.
The chaplains alleged lack of ecclesiastical
authorization from the parish priest and the Ordinary,
as required by Canon law, is irrelevant in our civil
law, not only because of the separation of the Church
and State but also because Act 3613 of the Philippine
Legislature (which was the marriage law in force at
the time) expressly provided that
"SEC.
1.
Ecclesiastical
Requisites.Essential
requisites for marriage are the legal capacity of the
contracting parties and their consent."
The actual authority of the solemnizing officer was
thus only a formal requirement, and, therefore, not
essential to give the marriage civil effects 3 and this
is emphasized by section 27 of said marriage act,
which provided the following:
"SEC. 27. Failure to comply with formal requirements:
No marriage shall be declared invalid because of
the absence of one or several of the formal
requirements of this Act if, when it was performed,
the spouses or one of them believed in good faith
that the person who solemnized the marriage was
actually empowered to do so, and that the marriage
was perfectly legal."
The good faith of all the parties to the marriage (and
hence the validity of their marriage) will be
presumed until the contrary is positively proved (Lao
v. Dee Tim, 45 Phil. 739, 745; Francisco v. Jason, 60
Phil. 442, 448). It is well to note here that in the case
at bar, doubts as to the authority of the solemnizing
priest arose only after the marriage, when Vicentas
parents consulted Father Reynes and the archbishop
of Cebu. Moreover, the very act of Vicenta in
abandoning her original action for annulment and
subsequently suing for divorce implies an admission
that her marriage to plaintiff was valid and binding.
Defendant Vicenta Escao argues that when she
contracted the marriage she was under the undue
influence of Pacita Noel, whom she charges to have
been in conspiracy with appellant Tenchavez. Even
granting, for arguments sake, the truth of that
contention, and assuming that Vicentas consent was
vitiated by fraud and undue influence, such vices did
not render her marriage ab initio void, but merely
voidable, and the marriage remained valid until
annulled by a competent civil court. This was never
done, and admittedly, Vicentas suit for annulment in
the Court of First Instance of Misamis was dismissed
for non-prosecution.
It is equally clear from the record that the valid
marriage between Pastor Tenchavez and Vicenta

Escao remained subsisting and undissolved under

Philippine Law, notwithstanding the decree of
absolute divorce that the wife sought and obtained
on 21 October 1950 from the Second Judicial District
Court of Washoe County, State of Nevada, on
grounds of "extreme cruelty, entirely mental in
character." At the time the divorce decree was
issued, Vicenta Escao, like her husband, was still a
Filipino citizen. 4 She was then subject to Philippine
law, and Article 15 of the Civil Code of the Philippines
(Republic Act. No. 386), already in force at the time,
expressly provided:
"Laws relating to family rights and duties or to the
status, condition and legal capacity of person are
binding upon the citizens of the Philippines, even
though living abroad."
The Civil Code of the Philippines, now in force, does
not admit absolute divorce, quo ad vinculo
matrimonii; and in fact it does not even use that
term, to further emphasize its restrictive policy on
the matter, in contrast to the preceding legislation
that admitted absolute divorce on grounds of
adultery of the wife or concubinage of the husband
(Act 2710). Instead of divorce, the present Civil Code
only provides for legal separation (Title IV, Book K,
Arts. 97 to 108), and, even in that case, it expressly
prescribes that "the marriage bonds shall not be
severed" (Art. 106, subpar. 1).
For the Philippine courts to recognize and give
recognition or effect to a foreign decree of absolute
divorce between Filipino citizens would be a patent
violation of the declared public policy of the state,
specially in view of the third paragraph of Article 17
of the Civil Code that prescribes the following:
"Prohibitive laws concerning persons, their acts or
property and those which have for their object public
order, public policy and good customs, shall not be
rendered ineffective by laws or judgments
promulgated, or by determinations or conventions
agreed upon in a foreign country."
Even more, the grant of effectivity in this jurisdiction
to such foreign divorce decrees would, in effect, give
rise to an irritating and scandalous discrimination in
favor of wealthy citizens, to the detriment of those
members of our polity whose means do not permit
them to sojourn abroad and obtain absolute divorces
outside the Philippines.
From this point of view, it is irrelevant that appellant
Pastor Tenchavez should have appeared in the
Nevada divorce court. Primarily because the policy of
our law can not be nullified by acts of private parties
(Civil Code, Art. 17, jam quot.); and additionally,
because the mere appearance of a non-resident

consort can not confer jurisdiction where the court

originally had none (Arca v. Javier, 95 Phil. 579).
From the preceding facts and considerations, there
flows as a necessary consequence that in this
jurisdiction Vicenta Escaos divorce and second
marriage are not entitled to recognition as valid; for
her previous union to plaintiff Tenchavez must be
declared to be existent and undissolved. It follows,
likewise, that her refusal to perform her wifely duties,
and her denial of consortium and her desertion of her
husband constitute in law a wrong caused through
her fault, for which the husband is entitled to the
corresponding indemnity (Civil Code, Art. 2176).
Neither an unsubstantiated charge of deceit, nor an
anonymous letter charging immorality against the
husband constitute, contrary to her claim, adequate
excuse. Wherefore, her marriage and cohabitation
with Russell Leo Moran is technically "intercourse
with a person not her husband" from the standpoint
of Philippine law, and entitles plaintiff-appellant
Tenchavez to a decree of "legal separation under our
law, on the basis of adultery (Revised Penal Code,
Art. 333).
The foregoing conclusions as to the untoward effect
of a remarriage after an invalid divorce are in accord
with the previous doctrines and rulings of this court
on the subject, particularly those that were rendered
under our laws prior to the approval of the absolute
divorce act (Act 2710 of the Philippine Legislature).
As a matter of legal history, our statutes did not
recognize divorces a vinculo before 1917, when Act
2710 became effective: and the present Civil Code of
the Philippines, in disregarding absolute divorces, in
effect merely reverted to the policies on the subject
prevailing before Act 2710. The rulings, therefore,
under the Civil Code of 1889, prior to the Act abovementioned, are now fully applicable. Of these, the
decision in Ramirez v. Gmur, 42 Phil. 855, is of
particular interest. Said this Court in that case:
"As the divorce granted by the French Court must be
ignored, it results that the marriage of Dr. Mory and
Leona Castro, celebrated in London in 1905, could
not legalize their relations; and the circumstance that
they afterwards passed for husband and wife in
Switzerland until her death is wholly without legal
significance. The claims of the Mory children to
participate in the estate of Samuel Bishop must
therefore de rejected. The right to inherit is limited to
legitimate, legitimated and acknowledged natural
children. The children of adulterous relations are
wholly excluded. The word "descendants" as used in
Article 941 of the Civil Code can not be interpreted to
include illegitimates born of adulterous relations."
Except for the fact that the successional rights of the
children, begotten from Vicentas marriage to Leo
Moran after the invalid divorce, are not involved in

the case at bar, the Gmur case is authority for the

proposition that such union is adulterous in this
jurisdiction, and, therefore, justifies an action for
legal separation on the part of the innocent consort
of the first marriage, that stands undissolved in
Philippine law. In not so declaring, the trial court
committed error.
True it is that our ruling gives rise to anomalous
situations where the status of a person (whether
divorced or not) would depend on the territory where
the question arises. Anomalies of this kind are not
new in the Philippines, and the answer to them was
given in Barretto v. Gonzales, 58 Phil. 667:
"The hardships of the existing divorce laws in the
Philippine Islands are well known to the members of
the Legislature. It is the duty of the Courts to enforce
laws of divorce as written by the Legislature if they
are constitutional. Courts have no right to say that
such laws are too strict or too liberal." (p.72)
The appellants first assignment of error is, therefore,
sustained.
However, the plaintiff-appellants charge that his
wifes parents, Dr. Mamerto Escao and his wife, the
late Doa Mena Escao, alienated the affection of
their daughter and influenced her conduct toward
her husband are not supported by credible evidence.
The testimony of Pastor Tenchavez about the
Escaos animosity toward him strikes us to be
merely conjecture and exaggeration, and are belied
by Pastors own letters written before this suit was
begun (Exh. "2- Escao" and "2-Vicenta", Rec. on
App. pp. 270-274). In these letters he expressly
apologized to the defendants for "misjudging them"
and for the "great unhappiness" caused by his
"impulsive blunders" and "sinful pride" "effrontery
and audacity" (sic). Plaintiff was admitted to the
Escao house to visit and court Vicenta, and the
record shows nothing to prove that he would not
have been accepted to marry Vicenta had he openly
asked for her hand, as good manners and breeding
demanded. Even after learning of the clandestine
marriage, and despite their shock at such
unexpected event, the parents of Vicenta proposed
and arranged that the marriage be recelebrated in
strict conformity with the canons of their religion
upon advice that the previous one was canonically
defective. If no recelebration of the marriage
ceremony was had it was not due to defendants
Mamerto Escao and his wife, but to the refusal of
Vicenta to proceed with it. That the spouses Escao
did not seek to compel or induce their daughter to
assent to the recelebration but respected her
decision, or that they abided by her resolve, does not
constitute in law an alienation of affections. Neither
does the fact that Vicentas parents sent her money
while she was in the United States; for it was natural

that they should not wish their daughter to live in

penury even if they did not concur in their decision to
divorce Tenchavez (27 Am. Jur. pp. 130-132).
There is no evidence that the parents of Vicenta, out
of improper motives, aided and abetted her original
suit for annulment, or her subsequent divorce; she
appears to have acted independently and being of
age, she was entitled to judge what was best for her
and ask that her decisions be respected. Her parents,
in so doing, certainly can not be charged with
alienation of affections in the absence of malice or
unworthy motives, which have not been shown, good
faith being always presumed until the contrary is
proved.
"Sec. 529. Liability of Parents, Guardians or kin.
The law distinguishes between the right of a parent
to interest himself in the marital affairs of his child
and the absence of right in a stranger to intermeddle
in such affairs. However, such distinction between
the liability of parents and that of strangers is only in
regard to what will justify interference. A parent is
liable for alienation of affections resulting from his
own malicious conduct, as where he wrongfully
entices his son or daughter to leave his or her
spouse, but he is not liable unless he acts
maliciously, without justification and from unworthy
motives. He is not liable where he acts and advises
his child in good faith with respect to his childs
marital relations, in the interest of his child as he
sees it, the marriage of his child not terminating his
right and liberty to interest himself in, and be
extremely solicitous for, his childs welfare and
happiness, even where his conduct and advice
suggest or result in the separation of the spouses or
the obtaining of a divorce or annulment, or where he
acts under mistake or misinformation, or where his
advice or interference are indiscreet or unfortunate,
although it has been held that the parent is liable for
consequences resulting from recklessness. He may in
good faith take his child into his home and afford him
or her protection and support, so long as he has not
maliciously enticed his child away, or does not
maliciously entice or cause him or her to stay away,
from his or her spouse. This rule has more frequently
been applied in the case of advice given to a married
daughter, but it is equally applicable in the case of
advice given to a son."
Plaintiff Tenchavez, in falsely charging Vicentas aged
parents with racial or social discrimination and with
having exerted efforts and pressured her to seek
annulment and divorce, unquestionably caused them
unrest and anxiety, entitling them to recover
damages. While his suit may not have been impelled
by actual malice, the charges were certainly reckless
in the face of the proven facts and circumstances.
Court actions are not established for parties to give
vent to their prejudices or spleen.

In the assessment of the moral damages recoverable

by appellant Pastor Tenchavez from defendant
Vicenta Escao, it is proper to take into account,
against his patently unreasonable claim for a million
pesos in damages, that (a) the marriage was
celebrated in secret, and its failure was not
characterized by publicity or undue humiliation on
appellants part; (b) that the parties never lived
together; and (c) that there is evidence that
appellant had originally agreed to the annulment of
the marriage, although such a promise was legally
invalid, being against public policy (cf. Art. 88, Civ.
Code). While appellant is unable to remarry under
our law, this fact is a consequence of the indissoluble
character of the union that appellant entered into
voluntarily and with open eyes rather than of her
divorce and her second marriage. All told, we are of
the opinion that appellant should recover P25,000
only by way of moral damages and attorneys fees.
With regard to the P45,000 damages awarded to the
defendants, Dr. Mamerto Escao and Mena Escao,
by the court below, we opine that the same are
excessive. While the filing of this unfounded suit
have wounded said defendants feelings and caused
them anxiety, the same could in no way have
seriously injured their reputation, or otherwise
prejudiced them, lawsuits having become a common
occurrence in present society. What is important, and
has been correctly established in the decision of the
court below, is that said defendants were not guilty
of any improper conduct in the whole deplorable
affair. This Court, therefore, reduces the damages
awarded to P5,000 only.
Summing up, the Court rules:
(1)
That a foreign divorce between Filipino
citizens, sought and decreed after the effectivity of
the present Civil Code (Rep. Act No. 386), is not
entitled to recognition as valid in this jurisdiction; and
neither is the marriage contracted with another party
by the divorced consort, subsequently to the foreign
decree of divorce, entitled to validity in this country.
(2)
That the remarriage of the divorced wife
and her cohabitation with a person other than the
lawful husband entitle the latter to a decree of legal
separation conformably to Philippine law;
(3)
That the desertion and securing of an invalid
divorce decree by one consort entitles the other to
recover damages;
(4)
That an action for alienation of affections
against the parents of one consort does not lie in the
absence of proof of malice or unworthy motives on
their part.

WHEREFORE, the decision under appeal is hereby

modified, as follows:
(1)
Adjudging
plaintiff-appellant
Pastor
Tenchavez entitled to a decree of legal separation
from defendant Vicenta F. Escao;
(2)
Sentencing
defendant-appellee
Vicenta
Escao to pay plaintiff-appellant Tenchavez the
amount of P25,000 for damages and attorneys fees;
(3)
Sentencing appellant Pastor Tenchavez to
pay the appellee, Mamerto Escao and the estate of
his wife, the deceased Mena Escao, P5,000 by way
of damages and attorneys fee.
Neither party to recover costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Dizon,
Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ.,
concur.

[G.R. No. 45152. April 10, 1939.]

HILARIA SIKAT, Plaintiff-Appellant,
CANSON, Defendant-Appellee.

v.

JOHN

Vicente Sotto for Appellant.

Barrera & Reyes for Appellee.
SYLLABUS
1. DIVORCE AND SEPARATION; JURISDICTION;
CITIZENSHIP AND LEGAL RESIDENCE OF PLAINTIFF.
Counsel for plaintiff-appellant contends that twelve
days prior to the issuance of the decree of divorce,
defendant-appellee became a naturalized American
citizen and argues that the Nevada court had thereby
acquired jurisdiction over him to issue a divorce
decree. It is not, however, the citizenship of the
plaintiff for divorce which confers jurisdiction upon a
court, but his legal residence within the state.
2. ID.; ID.; ID.; VALIDITY OF DECREE OF NEVADA
COURT IN THIS JURISDICTION. Assuming that J. C.
acquired legal residence in the State of Nevada
through the approval of his citizenship papers, this
did not confer jurisdiction on the Nevada court to
grant a divorce that would be valid in this jurisdiction
nor
jurisdiction
that
could
determine
their
matrimonial status, because the wife was still
domiciled in the Philippines. The Nevada court never
acquired jurisdiction over her person. This was not a
proceeding in rem to justify a court in entering a
decree as to the res or marriage relation entitled to
be enforced outside of the territorial jurisdiction of
the court.

3. ID.; ID.; DIVORCE IN THE PHILIPPINES. The

courts in the Philippines can grant a divorce only on
the ground of "adultery on the part of the wife or
concubinage on the part of the husband" as provided
for under section 1 of Act No. 2710. The divorce
decree in question was granted on the ground of
desertion, clearly not a cause for divorce under our
laws. That our divorce law, Act No. 2710, is too strict
or too liberal i8 not for this court to decide.
4. ID.; ID.; LEGISLATIVE POLICY ON THE MATTER OF
DIVORCE IN THIS JURISDICTION. The allotment of
powers between the different governmental agencies
restricts the judiciary within the confines of
interpretation, not of legislation. The legislative
policy in the matter of divorce in this jurisdiction is
clearly set forth in Act No. 2710 and has been upheld
by this court.
5. ID.; ID.; CHOICE OF TWO INCONSISTENT REMEDIES
BY PLAINTIFF. Plaintiff-appellant had made her
choice of two inconsistent remedies afforded her by
law: (1) to impugn the divorce and file an action for
support, or (2) uphold the validity of the divorce and
sue for a liquidation of conjugal partnership. She
chose the first remedy when she filed her action for
support. She lost the case and should take the
consequences.
DECISION
LAUREL, J.:
On February 15, 1904, Hilarta Sikat and John Canson
contracted marriage in the town of Bayambang,
Pangasinan. They lived together as husband and wife
until 1911 when they separated. During the same
year the wife commenced divorce proceedings
against her spouse, but on January 16, 1912, upon
petition of both parties, the case was dismissed
without the court passing upon the merits thereof. At
the time of their marriage in 1904, John Canson was
an Italian citizen but on February 27, 1922, he
became a naturalized Filipino citizen. In 1929, he
went to Reno, Nevada, United States of America, and
on October 8, of that year, he obtained an absolute
decree of divorce on the ground of desertion. Hilaria
Sikat, however, did not accompany her husband but
remained in the Philippines. Subsequently, in 1933,
the plaintiff filed another action, civil case No. 5398
of the Court of First Instance of Rizal, wherein she
sought to compel the defendant to pay her a monthly
pension of P500 as alimony or sup- port. To this
complaint, the defendant Canson interposed three
defenses: (1) adultery on the part of the plaintiff; (2)
absolute divorce obtained by the defendant as
decreed by the court in Reno, Nevada, United States
of America; and (3) that the defendant did not have
the means to pay the allowance sought. The lower
court dismissed the complaint in a decision rendered

on November 27, 1933. In this decision the court

declined to accord validity to the divorce obtained in
Reno but found that Hilaria Sikat had forfeited her
right to support because she had committed
adultery. This judgment was not appealed and it
became final.
On June 1, 1934, the present action was instituted by
the plaintiff-appellant to obtain the liquidation of the
conjugal partnership. The action is predicated on the
existence of a final decree of absolute divorce
rendered by the court of Reno, Nevada, since 1929.
The court below dismissed the action. The reasons
for this dismissal are given in the following excerpt
from its decision:
"Para el Juzgado toda la controversia gira alrededor
de la validez del divorcio decretado en Reno el ano
1929, pues si este divorcio es invalido en esta
jurisdiccion, la demandante no podria exigir la
liquidacion de la sociedad conyugal.
"Ahora bien, el divorcio absoluto, como disolucion del
vinculo conyugal, toca tan cerca a la moral y a las
buenas costumbres que no se puede menos de
considerarlo como una institucion de interes y orden
publicos, y por esta razon no cabe considerar ni
reputar como valido en esta jurisdiccion un divorcio
concedido por motivos no reconocidos ni autorizados
por las leyes de Filipinas, especialmente teniendo en
cuenta que el demandado ya se habia naturalizado
filipino cuando pidio el divorcio de que se trata.

"Ignorar el espiritu restrictivo de nuestra Ley de

Divorcio seria infringir el articulo 11, apartado
tercero, del Codigo civil que dispone que las (leyes)
que tienen por objeto el orden publico y las buenas
costumbres, no quedaran sin efecto por leyes o
sentencias dictadas, ni por adposiciones o
convenciones acordadas en pais extranjero.
"No estando disuelto el matrimonio y no habiendose
probado, ni intentado probar, ninguno de los otros
motivos que, segun el articulo 1433 del Codigo Civil,
justifican una separacion judicial de los bienes de los
esposos (interdiccion civil o ausencia declarada), no
existen terminos habiles para declarar disuelta la
sociedad conyugal entre las partes y proceder a su
liquidacion"
From this judgment of the lower court the present
appeal was taken to this court in the usual manner,
and plaintiff assigns the following principal error:
"Erro el juzgado inferior al afirmar que no cabe
considerar ni reputar como valido en esta jurisdiccion
un divorcio concedido por motivos no reconocidos ni
autorizados por las leyes de Filipinas, especialmente

teniendo en cuenta que el demandado ya se habia

naturalizado filipino cuando pidio el divorcio de que
se trata."
Counsel for plaintiff-appellant contends that twelve
days prior to the issuance of the decree of divorce,
defendant-appellee became a naturalized American
citizen and argues that the Nevada court had thereby
acquired jurisdiction over him to issue a divorce
decree. It is not, however, the citizenship of the
plaintiff for divorce which confers jurisdiction upon a
court, but his legal residence within the State
(Cousins Hix v. Fluemer, 65 Phil., 851). And assuming
that John Canson acquired legal residence in the
State of Nevada through the approval of his
citizenship papers, this did not confer jurisdiction on
the Nevada court to grant a divorce that would be
valid in this jurisdiction nor jurisdiction that could
determine their matrimonial status, because the wife
was still domiciled in the Philippines. The Nevada
court never acquired jurisdiction over her person.
(Gorayeb v. Hashim, 50 Phil., 26, and Cousins Hix v.
Fluemer, supra.) this was not a proceeding in rem to
justify a court in entering a decree as to the res or
marriage relation entitled to be enforced outside of
the territorial jurisdiction of the court. (Haddock v.
Haddock, 201 U. S., 562.) In Barretto Gonzalez v.
Gonzalez (58 Phil., 67), we observed:
". . . While the decisions of this court heretofore in
refusing to recognize the validity of foreign divorce
has usually been expressed in the negative and have
been based upon lack of matrimonial domicile or
fraud or collusion, we have not overlooked the
provisions of the Civil Code now enforced in these
Islands. Article 9 thereof reads as follows:
"The laws relating to family rights and duties, or to
the status, condition, and legal capacity of persons,
are binding upon Spaniards even though they reside
in a foreign country.
"And article 11, the last part of which reads:
" . . . prohibitive laws concerning persons, their acts
and their property, and those intended to promote
public order and good morals shall not be rendered
without effect by any foreign laws or judgments or by
anything done or any agreements entered into in a
foreign country.
"It is therefore a serious question whether any
foreign divorce, relating to citizens of the Philippine
Islands, will be recognized in this jurisdiction, except
it be for a cause, and under conditions for which the
courts of the Philippine Islands would grant a
divorce."
The courts in the Philippines can grant a divorce only
on the ground of "adultery on the part of the wife or

concubinage on the part of the husband" as provided

for under section 1 of Act No. 2710. The divorce
decree in question was granted on the ground of
desertion, clearly not a cause for divorce under our
laws. That our divorce law, Act No. 2710, is too strict
or too liberal is not for this court to decide. (Barretto
Gonzalez v. Gonzalez, supra.) The allotment of
powers between the different governmental agencies
restricts the judiciary within the confines of
interpretation, not of legislation. The legislative
policy on the matter of divorce in this jurisdiction is
clearly set forth in Act No. 2710 and has been upheld
by this court (Goitia v. Campos Rueda, 35 Phil., 252;
Garcia Valdez v. Soteraa Tuason, 40 Phil., 943-952;
Ramirez v. Gmur, 42 Phil., 855; Chereau v.
Fuentebella, 43 Phil., 216; Fernandez v. De Castro, 48
Phil., 123; Gorayeb is. Hashim, supra; Francisco v.
Tayao, 50 Phil., 42; Alkuino Lim Pang v. Uy Pian Ng
Shun and Lim Tingco, 52 Phil., 571; Cousins Hix v.
Fluemer, supra; and Barretto Gonzalez v. Gonzales,
supra.)
We observe that plaintiff-appellant had made her
choice of two inconsistent remedies afforded her by
law: (1) to impugn the divorce and file an action for
support, or (2) uphold the validity of the divorce and
sue for a liquidation of conjugal partnership. She
chose the first remedy when she filed her action for
support. She lost the case and should take the
consequences.
The decision appealed from is hereby affirmed, with
costs against the appellant. So ordered.
Avancea, C.J., Villa-Real, Imperial, Diaz, Concepcion
and Moran, JJ., concur.

[G.R. No. L-6768. July 31, 1954.]

SALUD R. ARCA and ALFREDO JAVIER. JR.,
Plaintiffs-Appellees,
v.
ALFREDO
JAVIER,
Defendant-Appellant.
David F. Barrera, for Appellant.
Jose P. Santillan, for Appellees.
SYLLABUS
1. DIVORCE CONDITIONS ESSENTIAL TO DECLARE
FOREIGN DIVORCE IN THIS JURISDICTION; ANSWER
FILED BY LOCAL RESIDENT DOES NOT CONFER
JURISDICTION TO FOREIGN COURT. In 1937, A, a
natural born Filipino citizen, married S, another
Filipino citizen. Before their marriage they had
already a child, who thereby became legitimated. a
enlisted in the United States Navy and later sailed for
the United States leaving behind his wife and child.
On August 13, 1940, he filed an action for divorce in

the Circuit Court of mobile Country, Alabama, U.S.A.,

alleging as ground abandonment by his wife. Having
received a copy of the complaint, S filed an answer
alleging, among other things, that A was not a
resident of Mobile Country, but of Naic, Cavite,
Philippines, and that it was not true that the cause of
their separation was abandonment on her part but
that A was in the United States, without her, because
he was then enlisted in the U.S. Navy. The Circuit
Court of Mobile Country granted the divorce on April
9, 1941. does this decree have a valid effect in this
jurisdiction? Held: This court, in a number of cases of
similar nature, has invariably denied the validity of
the cases of similar nature, has invariably denied the
validity of the divorce decree. In essence, it was held
that one of the essential conditions for the validity of
a decree of divorce is that the court must have
jurisdiction over the subject matter and in order that
this may be acquired, plaintiff must be domiciled in
good faith in the State in which it is granted (Cousins
Hix v. Fluemer, 55 Phil., 851,856). . . . "and assuming
that (plaintiff)acquired legal residence in the State of
Nevada through the approval of his citizenship
papers, this would not confer jurisdiction on the
Nevada court to grant divorce that would be valid i
this
jurisdiction, nor jurisdiction
that could
determined their matrimonial status, because the
wife was still domiciled in the Philippines. The
Nevada court never acquired jurisdiction over her
person." (Sikat v. Canson, 67 Phil., 207.) The answer
filed by S, in view of the summons served upon her in
this jurisdiction, cannot be interpreted as placing
hereunder the jurisdiction of the court because its
only purpose was to impugn the claim of A that his
domicile or legal residence at that time was Mobile
Country, and to show that the ground of desertion
imputed to her was baseless and false. Such answer
should be considered as a special appearance the
purpose of which is to impugn the jurisdiction of the
court over the case.
2. RESIDENCE; PERMANENT RESIDENCE REQUIRED
TO CONFER JURISDICTION OF FOREIGN COURT.
Where a local resident went to a foreign country, not
with the intention of permanently residing there, or
of considering that place as his permanent abode,
but for the sole purpose of obtaining divorce from his
wife, such residence is not sufficient to confer
jurisdiction on the foreign court.
3. ID.; GROUNDS FOR DIVORCE UNDER ACT No.
2710; FOREIGN JUDGMENT CONTRARY TO LAWS OF
THE FORUM, CANNOT BE ENFORCED. Under
section 1 of Act No. 2710, the courts in the
Philippines can grant divorce only on the ground of
adultery on the part of the wife or concubinage on
the part of the husband, and if the decree is
predicated on another ground, that decree cannot be
enforced in this jurisdiction. The divorce decree in
question was granted on the ground of desertion,

clearly not a cause for divorce under our laws. This is

in keeping with the well-known principle of Private
International Law which prohibits the extension of
foreign judgment, or the law affecting the same, if it
is contrary to the law or fundamental policy of the
State of the forum. (Minor Conflict of Laws, pp. 8-14)
DECISION
BAUTISTA ANGELO, J.:
Dissatisfied with the decision of the Court of First
Instance of Cavite ordering him to give a monthly
allowance of P60 to plaintiffs beginning March 31,
1953, and to pay them attorneys fees in the amount
of P150 defendant took the case directly to this Court
attributing five errors to the court below. This implies
that the facts are not disputed.
The important facts which need to be considered in
relation to the errors assigned appear well narrated
in the decision of the court below which, for purposes
of this appeal, are quoted hereunder:
"On November 19, 1937, plaintiff Salud R. Arca and
defendant Alfredo Javier had their marriage
solemnized by Judge Mariano Nable of the Municipal
Court of Manila. At the time of their marriage, they
had already begotten a son named Alfredo Javier,
Junior who was born on December 2, 1931.
Sometime in 1938, defendant Alfredo Javier left for
the United States on board a ship of the United
States Navy, for it appears that he had joined the
United States Navy since 1927, such that at the time
of his marriage with plaintiff Salud R. Arca, defendant
Alfredo Javier was already an enlisted man in the
United States Navy. Because of defendant Alfredo
Javiers departure for the United States in 1938, his
wife, Salud R. Arca, who is from (Maragondon),
Cavite, chose to live with defendants parents at
Naic, Cavite. But for certain incompatibility of
character (frictions having occurred between plaintiff
Salud R. Arcas and defendants folks) plaintiff Salud
R. Arca had found it necessary to leave defendants
parents abode and transfer her residence to
(Maragondon), Cavite her native place Since then
the relation between plaintiff Salud R. Arca and
defendant Alfredo Javier became strained such that
on August 13, 1940 defendant Alfredo Javier brought
an action for divorce against Salud R. Arca before the
Circuit Court of Mobile County, State of Alabama,
USA, docketed as civil case No. 14313 of that court
and marked as Exhibit 2(c) in this case. Having
received a copy of the complaint for divorce on
September 23, 1940, plaintiff Salud R. Arca
answering the complaint alleged in her answer
that she received copy of the complaint on
September 23, 1940 although she was directed to file
her answer thereto on or before September 23, 1940.
In that answer she filed, plaintiff Salud R. Arca

averred among other things that defendant Alfredo

Javier was not a resident of Mobile County, State of
Alabama, for the period of twelve months preceding
the institution of the complaint, but that he was a
resident of Naic, Cavite, Philippines. Another
averment of interest, which is essential to relate
here, is that under paragraph 5 of her answer to the
complaint for divorce, Salud R. Arca alleged that it
was not true that the cause of their separation was
desertion on her part but that if defendant Alfredo
Javier was in the United States at that time and she
was not with him then it was because he was in
active duty as an enlisted man of the United States
Navy, as a consequence of which he had to leave for
the United States without her. She further alleged
that since his departure from the Philippines for the
United States, he had always supported her and her
co-plaintiff Alfredo Javier Junior through allotments
made by the Navy Department of the United States
Government. She denied, furthermore, the allegation
that she had abandoned defendants home at Naic,
Cavite, and their separation was due to physical
impossibility for they were separated by about
10,000 miles from each other. At this juncture, under
the old Civil Code the wife is not bound to live with
her husband if the latter has gone to ultramarine
colonies. Plaintiff Salud R. Arca, in her answer to the
complaint for divorce by defendant Alfredo Javier,
prayed that the complaint for divorce be dismissed.
However, notwithstanding Salud R. Arcas averments
in her answer, contesting the jurisdiction of the
Circuit Court of Mobile County, State of Alabama, to
take cognizance of the divorce proceeding filed by
defendant Alfredo Javier, as shown by her answer
marked Exhibit 2 (d), nevertheless the Circuit Court
of Mobile County rendered judgment decreeing
dissolution of the marriage of Salud R. Arca and
Alfredo Javier, and granting the latter a decree of
divorce dated April 9, 1941, a certified copy of which
is marked Exhibit 2(f). Thereupon, the evidence
discloses that some time in 1946 defendant Alfredo
Javier returned to the Philippines but went back to
the United States.
"In July, 1941 that is after securing a divorce from
plaintiff Salud R. Arca on April 9, 1941 defendant
Alfredo Javier married Thelma Francis, an American
citizen, and bought a house and lot at 248 Brooklyn,
New York City. In 1949, Thelma Francis, defendants
American wife, obtained a divorce from him for
reasons not disclosed by the evidence, and, later on,
having retired from the United States Navy,
defendant Alfredo Javier returned to the Philippines,
arriving here on February 13, 1950. After his arrival in
the Philippines, armed with two decrees of divorce
one against his first wife Salud R. Arca and the
other against him by his second wife Thelma Francis
issued by the Circuit Court of Mobile County, State
of Alabama, USA, defendant Alfredo Javier married
Maria Odvina before Judge Natividad Almeda- Lopez

of the Municipal Court of Manila on April 19, 1950,

marked Exhibit 2(b).
"At the instance of plaintiff Salud R. Arca an
information for bigamy was filed by the City Fiscal of
Manila on July 25, 1950 against defendant Alfredo
Javier with the Court of First Instance of Manila,
docketed as Criminal Case No. 13310 and marked
Exhibit 2(a). However, defendant Alfredo Javier was
acquitted of the charge of Bigamy in a decision
rendered by the Court of First Instance of Manila
through Judge Alejandro J. Panlilio, dated August 10,
1951, predicated on the proposition that the
marriage of defendant Alfredo Javier with Maria
Odvina was made in all good faith and in the honest
belief that his marriage with plaintiff Salud R. Arca
had been legally dissolved by the decree of divorce
obtained by him from the Circuit Court of Mobile
County, State of Alabama, USA which had the legal
effect of dissolving the marital ties between
defendant Alfredo Javier and plaintiff Salud R. Arca.
At this juncture, again, it is this courts opinion that
defendant Alfredo Javiers acquittal in that Criminal
Case No. 13310 of the Court of First Instance of
Manila by Judge Panlilio was due to the fact that the
accused had no criminal intent in contracting a
second or subsequent marriage while his first
marriage was still subsisting."
Appellant was a native born citizen of the Philippines
who, in 1937, married Salud R. Arca, another Filipino
citizen. Before their marriage they had already a
child, Alfredo Javier, Jr., who thereby became
legitimated. In 1927 appellant enlisted in the U.S.
Navy and in 1938 sailed for the United States aboard
a navy ship in connection with his service leaving
behind his wife and child, and on August 13, 1940, he
filed an action for divorce in the Circuit Court of
Mobile County, Alabama, U.S.A., alleging as ground
abandonment by his wife. Having received a copy of
the complaint, Salud R. Arca filed an answer alleging,
among other things, that appellant was not a
resident of Mobile County, but of Naic, Cavite,
Philippines, and that it was not true that the cause of
their separation was abandonment on her part but
that appellant was in the United States, without her,
because he was then enlisted in the U.S. Navy.
Nevertheless, the Circuit Court of Mobile County
rendered judgment granting appellant a decree of
divorce on April 9, 1941.
The issue now to be determined is: Does this decree
have a valid effect in this jurisdiction?
The issue is not new. This court has had already
occasion to pass upon questions of similar nature in a
number of cases and its ruling has invariably been to
deny validity to the decree. In essence, it was held
that one of the essential conditions for the validity of
a decree of divorce is that the court must have

jurisdiction over the subject matter and in order that

this may be acquired, plaintiff must be domiciled in
good faith in the State in which it is granted (Cousins
Hix v. Fluemer, 55 Phil., 851, 856). Most recent of
such cases is Sikat v. Canson, 67 Phil., 207, which
involves a case of divorce also based on the ground
of desertion. In that case, John Canson claimed not
only that he had legal residence in the State of
Nevada, where the action was brought, but he was
an American citizen, although it was proven that his
wife never accompanied him there but has always
remained in the Philippines, and so it has been held
that: "it is not . . . the citizenship of the plaintiff for
divorce which confers jurisdiction upon a court, but
his legal residence within the State." The court
further said: "And assuming that John Canson
acquired legal residence in the State of Nevada
through the approval of his citizenship papers, this
would not confer jurisdiction on the Nevada court to
grant divorce that would be valid in this jurisdiction,
nor
jurisdiction
that
could
determine
their
matrimonial status, because the wife was still
domiciled in the Philippines. The Nevada court never
acquired jurisdiction over her person."
It is true that Salud R. Arca filed an answer in the
divorce case instituted at the Mobile County in view
of the summons served upon her in this jurisdiction,
but this action cannot be interpreted as placing her
under the jurisdiction of the court because its only
purpose was to impugn the claim of appellant that
his domicile or legal residence at that time was
Mobile County, and to show that the ground of
desertion imputed to her was baseless and false.
Such answer should be considered as a special
appearance the purpose of which is to impugn the
jurisdiction of the court over the case.
In deciding the Canson case, this court did not
overlook the other cases previously decided on the
matter, but precisely took good note of them. Among
the cases invoked are Ramirez v. Gmur, 42 Phil., 855;
Cousins Hix v. Fluemer, 55 Phil., 851, and Barreto
Gonzales v. Gonzales, 58 Phil., 67. In the cases just
mentioned, this court laid down the following
doctrines:
"It is established by the great weight of authority that
the court of a country in which neither of the spouses
is domiciled and to which one or both of them may
resort merely for the purpose of obtaining a divorce
has no jurisdiction to determine their matrimonial
status; and a divorce granted by such a court is not
entitled to recognition elsewhere. (See Note to
Succession of Benton, 59 L. R. A., 143) The voluntary
appearance of the defendant before such a tribunal
does not invest the court with jurisdiction. (Andrews
v. Andrews, 188 U. S., 14; 47 L. ed., 366.)

"It follows that, to give a court jurisdiction on the

ground of the plaintiffs residence in the State or
country of the judicial forum, his residence must be
bona fide. If a spouse leaves the family domicile and
goes to another State for the sole purpose of
obtaining a divorce, and with no intention of
remaining, his residence there is not sufficient to
confer jurisdiction on the courts of the State. This is
especially true where the cause of divorce is one not
recognized by the laws of the State of his own
domicile. (14 Cyc. 817, 818.)" (Ramirez v. Gmur, 82
Phil., 855.) .
"But even if his residence had been taken up in good
faith, and the court had acquired jurisdiction to take
cognizance of the divorce suit, the decree issued in
his favor is not binding upon the appellant; for the
matrimonial domicile of the spouses being the City of
Manila, and no new domicile having been acquired in
West Virginia, the summons made by publication, she
not having entered an appearance in the case, either
personally or by counsel, did not confer jurisdiction
upon said court over her person." (Cousins Hix v.
Fluemer, 55 Phil., 851.)
"At all times the matrimonial domicile of this couple
has been within the Philippine Islands and the
residence acquired in the State of Nevada by the
husband for the purpose of securing a divorce was
not a bona fide residence and did not confer
jurisdiction upon the court of the State to dissolve
the bonds of matrimony in which he had entered in
1919." (Barretto Gonzales v. Gonzales, 58 Phil., 67.)
In the light of the foregoing authorities, it cannot
therefore be said that the Mobile County Court of
Alabama had acquired jurisdiction over the case for
the simple reason that at the time it was filed
appellants legal residence was then in the
Philippines. He could not have acquired legal
residence or domicile at Mobile County when he
moved to that place in 1938 because at that time he
was still in the service of the U.S. Navy and merely
rented a room where he used to stay during his
occasional shore leave for shift duty. That he never
intended to live there permanently is shown by the
fact that after his marriage to Thelma Francis in
1941, he moved to New York where he bought a
house and a lot, and after his divorce from Thelma in
1949 and his retirement from the U.S. Navy, he
returned to the Philippines and married Maria Odvina
of Naic, Cavite, where he lived ever since. It may
therefore be said that appellant went to Mobile
County, not with the intention of permanently
residing there, or of considering that place as his
permanent abode, but for the sole purpose of
obtaining divorce from his wife. Such residence is not
sufficient to confer jurisdiction on the court.

It is claimed that the Canson case cannot be invoked

as authority or precedent in the present case for the
reason that the Haddeck case which was cited by the
court in the course of the decision was reversed by
the Supreme Court of the United States in the case of
Williams v. North Carolina, 317 U.S. 287. This claim is
not quite correct, for the Haddeck case was merely
cited as authority for the statement that a divorce
case is not a proceeding in rem, and the reversal did
not necessarily overrule the ruling laid down therein
that before a court may acquire jurisdiction over a
divorce case, it is necessary that plaintiff be
domiciled in the State in which it is filed. (Cousins Hix
v. Fluemer, supra.) At any rate, the applicability of
the ruling in the Canson case may be justified on
another ground: The courts in the Philippines can
grant divorce only on the ground of adultery on the
part of the wife or concubinage on the part of the
husband, and if the decree is predicated on another
ground, that decree cannot be enforced in this
jurisdiction. Said the Court in the Canson case:
". . . In Barretto Gonzales v. Gonzales (55 Phil., 67),
we observed:jgc:chanrobles.com.ph
". . . While the decisions of this court heretofore in
refusing to recognize the validity of foreign divorce
has usually been expressed in the negative and have
been based upon lack of matrimonial domicile or
fraud or collusion, we have not overlooked the
provisions of the Civil Code now enforced in these
Islands. Article 9 thereof reads as follows:
"The laws relating to family rights and duties, or to
the status, condition, and legal capacity of persons,
are binding upon Spaniards even though they reside
in a foreign country.
"And Article 11, the last part of which reads:" . . .
prohibitive laws concerning persons, their acts and
their property, and those intended to promote public
order and good morals shall not be rendered without
effect by any foreign laws or judgments or by
anything done or any agreements entered into a
foreign country.
"It is therefore a serious question whether any
foreign divorce, relating to citizens of the Philippine
Islands, will be recognized in this Jurisdiction, except
it be for a cause, and under conditions for which the
courts of the Philippine Islands would grant a
divorce.
"The courts in the Philippines can grant a divorce
only on the ground of adultery on the part of the
wife or concubinage on the part of the husband as
provided for under section 1 of Act No. 2710. The
divorce decree in question was granted on the
ground of desertion, clearly not a cause for divorce
under our laws. That our divorce law, Act No. 2710, is

too strict or too liberal is not for this court to decide.

(Barretto Gonzales v. Gonzales, supra). The allotment
of powers between the different governmental
agencies restricts the judiciary within the confines of
interpretation, not of legislation. The legislative
policy on the matter of divorce in this jurisdiction is
clearly set forth in Act No. 2710 and has been upheld
by this court (Goitia v. Campos Rueda, 35 Phil., 252;
Garcia Valdez v. Soteraa Tuason, 40 Phil., 943-952;
Ramirez v. Gmur, 42 Phil., 855; Chereau v.
Fuentebella, 43 Phil., 216; Fernandez v. De Castro, 48
Phil., 123; Gorayeb v. Hashim, supra; Francisco v.
Tayao, 50 Phil., 42; Alkuino Lim Pang v. Uy Pian Ng
Shun and Lim Tingco, 52 Phil., 571; Cousins Hix v.
Fluemer, supra; and Barretto Gonzales v. Gonzales,
supra).
The above pronouncement is sound as it is in
keeping with the well known principle of Private
International Law which prohibits the extension of a
foreign judgment, or the law affecting the same, if it
is contrary to the law or fundamental policy of the
State of the forum. (Minor, Conflict of Laws, pp. 814). It is also in keeping with our concept of moral
values which has always looked upon marriage as an
institution. And such concept has actually crystalized
in a more tangible manner when in the new Civil
Code our people, through Congress, decided to
eliminate altogether our law relative to divorce.
Because of such concept we cannot but react
adversely to any attempt to extend here the effect of
a decree which is not in consonance with our
customs, morals, and traditions. (Article 11, old Civil
Code; Articles 15 and 17, new Civil Code; Gonzales v.
Gonzales, 58 Phil., 67.)
With regard to the plea of appellant that Salud R.
Arca had accused him of the crime of bigamy and
consequently she forfeited her right to support, and
that her child Alfredo Javier, Jr. is not also entitled to
support because he has already reached his age of
majority, we do not need to consider it here, it
appearing that these questions have already been
passed upon in G. R. No. L-6706. 1 These questions
were resolved against the pretense of Appellant.
Wherefore, the decision appealed from is affirmed,
with costs.
Paras, C.J., Pablo, Bengzon, Padilla, Montemayor,
Reyes, A., Jugo, Labrador, Concepcion and Reyes,
J.B.L., JJ., concur.

G.R. No. L-11796 August 5, 1918

In the matter of estate of Samuel Bischoff
Werthmuller. ANA M. RAMIREZ, executrixappellant, vs. OTTO GMUR, as guardian of the

minors Esther Renate Mory, Carmen Maria

Mory, and Leontina Elizabeth, claimantappellant.
C. Lozano for executrix-appellant.
Thos. D. Aitken for claimant-appellant.
STREET, J.:
Samuel Bischoff Werthmuller, native of the Republic
of Switzerland, but for many years a resident of the
Philippine Islands, died in the city of Iloilo on June 29,
1913, leaving a valuable estate of which he disposed
by will. A few days after his demise the will was
offered for probate in the Court of First Instance of
Iloilo and, upon publication of notice, was duly
allowed and established by the court. His widow,
Doa Ana M. Ramirez, was named as executrix in the
will, and to her accordingly letters testamentary were
issued. By the will everything was given to the
widow, with the exception of a piece of real property
located in the City of Thun, Switzerland, which was
devised to the testator's brothers and sisters.
The first cause of the will contains a statement to the
effect that inasmuch as the testator had no children
from his marriage with Ana M. Ramirez he was
therefore devoid of forced heirs. In making this
statement the testator ignored the possible claims of
two sets of children, born to his natural daughter,
Leona Castro.
The pertinent biographical facts concerning Leona
Castro are these: As appears from the original
baptismal entry made in the church record of
Bacolod, she was born in that pueblo on April 11,
1875, her mother being Felisa Castro, and father
"unknown." Upon the margin of this record there is
written in Spanish an additional annotation of the
following tenor: "According to a public document
( escritura) which was exhibited, she was recognized
by Samuel Bischoff on June 22, 1877." This
annotation as well as the original entry is
authenticated by the signature of Father Ferrero,
whose deposition was taken in this case. He testifies
that the work "escritura" in this entry means a public
document; and he says that such document was
exhibited to him when the marginal note which has
been quoted was added to the baptismal record and
supplied the basis for the annotation in question.
As the years passed Leona Castro was taken into the
family of Samuel Bischoff and brought up by him and
his wife a a member of the family; and it is
sufficiently shown by the evidence adduced in this
case that Samuel Bischoff tacitly recognized Leona a
his daughter and treated her as such. In the year
1895 Leona Castro was married to Frederick von
Kauffman, a British subject, born in Hong Kong, who

had come to live in the city of Iloilo. Three children

were born of this marriage, namely, Elena, Federico,
and Ernesto, the youngest having been born on
November 10, 1898. In the month of April 1899,
Leona Castro was taken by her husband from Iloilo to
the City of Thun, Switzerland, for the purpose of
recuperating her health. She was there placed in a
sanitarium, and on August 20th the husband
departed for the Philippine Islands, where he arrived
on October 10, 1899.
Leona Castro continued to remain in Switzerland, and
a few years later informed her husband, whom she
had not seen again, that she desired to remain free
and would not resume life in common with him. As a
consequence, in the year 1904, Mr. Kauffman went to
the City of Paris, France, for the purpose of obtaining
a divorce from his wife under the French laws; and
there is submitted in evidence in this case a certified
copy of an extract from the minutes of the Court of
First Instance of the Department of the Seine, from
which it appears that a divorce was there decreed on
January 5, 1905, in favor of Mr. Kauffman and against
his wife, Leona, in default. Though the record recites
that Leona was then in fact residing at No. 6, Rue
Donizetti, Paris, there is no evidence that she had
acquired a permanent domicile in that city.
The estrangement between the von Kauffman
spouses is explained by the fact that Leona Castro
had become attracted to Dr. Ernest Emil Mory, the
physician in charge of the sanatorium in Switzerland
where she was originally placed; and soon after the
decree of divorce was entered, as aforesaid, Doctor
Mory and Leona Castro repaired to the City of
London, England, and on May 5, 1905, in the
registrar's office in the district of Westminster, went
through the forms of a marriage ceremony before an
officer duly qualified to celebrate marriage under the
English law. It appears that Doctor Mory himself had
been previously married to one Helena Wolpman,
and had been divorced from her; but how or under
what circumstances this divorce had been obtained
does not appear.
Prior to the celebration of this ceremony of marriage
a daughter, named Leontina Elizabeth, had been
born (July 21, 1900) to Doctor Mory and Leona
Castro, in Thun, Switzerland. On July 2, 1906, a
second daughter, named Carmen Maria, was born to
them in Berne, Switzerland, now the place of their
abode; and on June 10, 1909, a third daughter was
born, name Esther. On October 6, 1910, the mother
died.
In the present proceedings Otto Gmur has appeared
as the guardian of the three Mory claimants, while
Frederick von Kauffman has appeared as the
guardian of his own three children, Elena, Federico,
and Ernesto.

As will be surmised from the foregoing statement,

the claims of both sets of children are founded upon
the contention that Leona Castro was the recognized
natural daughter of Samuel Bischoff and that as such
she would, if living, at the time of her father's death,
have been a forced heir of his estate and would have
been entitled to participate therein to the extend of a
one-third interest. Ana M. Ramirez, as the widow of
Samuel Bischoff and residuary legatee under his will,
insists - at least as against the Mory claimants, - that
Leona Castro had never been recognized at all by
Samuel Bischoff.
In behalf of Leontina, the oldest of the Mory
claimants, it was originally insisted in the court
below, that, having been born while her mother still
passed as the wife of Frederick von Kauffman, she
was to be considered as a legitimate daughter of the
wedded pair. This contention has been abandoned on
this appeal a untenable; and it is now contended
here merely that, being originally the illegitimate
daughter of Doctor Mory and Leona Castro, she was
legitimated by their subsequent marriage.
In behalf of Carmen Maria and Esther Renate, the two
younger of the Mory claimants, it is argued that the
bonds of matrimony which united Frederick von
Kauffman and Leona Castro were dissolved by the
decree of divorce granted by the Paris court on
January 5, 1905; that the marriage ceremony which
was soon thereafter celebrated between Doctor Mory
and Leona in London was in all respects valid; and
that therefore these claimants are to be considered
the legitimate offspring of their mother.
In behalf of the children of Frederick von Kauffman it
is insisted that the decree of divorce was wholly
invalid, that all three of the Mory children are the
offspring of adulterous relations, and that the von
Kauffman children, as the legitimate offspring of
Leona Castro, are alone entitled to participate in the
division of such part of the estate of Samuel Bischoff
as would have been inherited by their mother, if
living.
We are of the opinion that the status of Leona Castro
as recognized natural daughter of Samuel Bischoff is
fully and satisfactorily shown. It is proved that prior
to her marriage with Frederick von Kauffman she was
in an uninterrupted enjoyment of the de facto status
of a natural child and was treated as such by Samuel
Bischoff and his kindred. The proof of tacit
recognition is full and complete.
From the memorandum made by Padre Ferrero in the
record of the birth, as well as from the testimony of
this priest, taken upon the deposition, it also appears
that Samuel Bischoff had executed a document,
authenticated by a notarial act, recognizing Leona as
his daughter, that said document was presented to

the priest, as custodian of the church records, and

upon the faith of that document the marginal note
was added to the baptismal record, showing the fact
of such recognition. The original document itself was
not produced in evidence but it is shown that diligent
search was made to discover its whereabouts,
without avail. This was sufficient to justify the
introduction of secondary evidence concerning its
contents; and the testimony of the priest show that
the fact of recognition was therein stated.
Furthermore, the memorandum in the baptismal
record itself constitutes original and substantive
proof of the facts therein recited.
It will be observed that the recognition of Leona
Castro as the daughter of Samuel Bischoff occurred
prior to the date when the Civil Code was put in force
in these Islands; and consequently her rights as
derived from the recognition must be determined
under the law as it then existed, that is, under Law
11 of Toro, which afterwards became Law 1, title 5,
book 10, of the Novisima Recopilacion. ( See
Capistrano vs. Estate of Gabino, 8 Phil., 135, 139,
where this statute is quoted in the opinion written by
Mr. Justice Torres.) Under that law recognition could
be established by proof of acts on the part of the
parent unequivocally recognizing the status of his
offspring. (Cosio vs. Pili, 10 Phil., 72, 77.) In other
words at tacit recognition was sufficient. Under
article 131 of the present Civil Code, the
acknowledgment of a natural child must be made in
the record of birth, by will, or in other public
instrument. We are of the opinion that the
recognition of Leona Castro is sufficiently shown
whether the case be judged by the one provision or
the other.
But it is contended by counsel for Doa Ana Ramirez
that only children born of persons free to marry may
possess the status of recognized natural children,
and there is no evidence to show that Felisa Catro
was either a single woman or widow at the time of
the conception or birth of Leona. In the absence of
proof to the contrary, however, it must be presumed
that she was a single woman or a widow.
Relative to this presumption of the capacity of the
parents to marry, the author Sanchez Roman makes
the following comment:
Furthermore, viewing the conception of natural child
in connection with two mutually interrelated
circumstances, to wit, the freedom of the parents to
intermarry, with or without dispensation, at the time
of the conception of the offspring stigmatized as
natural, the first of these, or freedom to marry, is a
point upon which there is, according to the
jurisprudence of our former law, whose spirit is
maintained in the Code, an affirmative presumption
which places the burden of proving the contrary upon

those who are interested in impugning the natural

filiation. (Vol. 5, Derecho Civil, pp. 1018-1019.)
The contrary presumption would be that Felisa Castro
was guilty of adultery, which cannot be entertained.
If such had in fact been the case, the burden of
proving it would have been upon the persons
impugning the recognition of the child by her father.
(Sec. 334, par. 1, Code of Civil Procedure.)chanrobles
virtual law library
From the fact that Leona Castro was an
acknowledged natural daughter of her father, it
follows that had she survived him she would have
been his forced heir, he having died after the Civil
Code took effect. (Civil Code, article 807 [3], art. 939;
Civil Code, first transitory disposition); and as such
forced heir she would have been entitled to one-third
of the inheritance (art. 842, Civil Code).
With reference to the right of the von Kauffman
children, it is enough to say that they are legitimate
children, born to their parents in lawful wedlock; and
they are therefore entitled to participate in the
inheritance which would have devolved upon their
mother, if he had survived the testator.
As regards the Mory claimants, it is evident that their
rights principally depend upon the effect to be given
by this court to the decree of divorce granted to von
Kauffman by the Court of First Instance of the City of
Paris. If this decree is valid, the subsequent marriage
of Doctor Mory and Leona Castro must also be
conceded to be valid; and as a consequence the two
younger children, born after said marriage, would be
the legitimate offspring of their mother, and would
be entitle to participate in their mother's portion of
Mr. Bischoff's estate. With respect to Leontina
Elizabeth, the older one of the Mory claimants, there
would in the case still be the insuperable obstacle
which results from the fact that she was the offspring
of adulterous intercourse and a such was incapable
of legitimation (art. 119, Civil Code).
We are of the opinion that the decree of divorce upon
which reliance is placed by the representation of the
Mory children cannot be recognized as valid in the
courts of the Philippine Islands. The French tribunal
has no jurisdiction to entertain an action for the
dissolution of a marriage contracted in these Islands
by person domiciled here, such marriage being
indissoluble under the laws then prevailing in this
country.
The evidence shows conclusively that Frederick von
Kauffman at all times since earliest youth has been,
and is now, domiciled in the city of Iloilo in the
Philippine Islands; that he there married Leona
Castro, who was a citizen of the Philippine Islands,
and that Iloilo was their matrimonial domicile; that

his departure from iloilo for the purpose of taking his

wife to Switzerland was limited to that purpose
alone, without any intent to establish a domicile
elsewhere; and finally that he went to Paris in 1904,
for the sole purpose of getting a divorce, without any
intention of establishing a permanent residence in
that city. The evidence shows that the decree was
entered against the defendant in default, for failure
to answer, and there is nothing to show that she had
acquired, or had attempted to acquire, a permanent
domicile in the City of Paris. It is evident of course
that the presence of both the spouses in that city
was due merely to the mutual desire to procure a
divorce from each other.
It is established by the great weight of authority that
the court of a country in which neither of the spouses
is domiciled and to which one or both of them may
resort merely for the purpose of obtaining a divorce
has no jurisdiction to determine their matrimonial
status; and a divorce granted by such a court is not
entitled to recognition elsewhere. ( See Note to
Succession of Benton, 59 L. R. A., 143.) The voluntary
appearance of the defendant before such a tribunal
does not invest the court with jurisdiction. (Andrews
vs. Andrews, 188 U. S., 14; 47 L. ed., 366.)
It follows that, to give a court jurisdiction on the
ground of the plaintiff's residence in the State or
country of the judicial forum, his residence must be
bona fide. If a spouse leaves the family domicile and
goes to another State for the sole purpose of
obtaining a divorce, and with no intention of
remaining, his residence there is not sufficient to
confer jurisdiction on the courts of that State. This is
especially true where the cause of divorce is one not
recognized by the laws of the State of his own
domicile. (14 Cyc., 817, 818.)
As have been well said by the Supreme Court of the
United States marriage is an institution in the
maintenance of which in its purity the public is
deeply interested, for it is the foundation of the
family and of society, without which there could be
neither civilization nor progress. (Maynard vs. Hill,
125 U. S., 210; 31 L. ed., 659.) Until the adoption of
Act No. 2710 by the Philippine Legislature (March 11,
1917), it had been the law of these Islands that
marriage, validly contracted, could not be dissolved
absolutely except by the death of one of the parties;
and such was the law in this jurisdiction at the time
when the divorce in question was procured. The Act
to which we have referred permits an absolute
divorce to be granted where the wife has been guilty
of adultery or the husband of concubinage. The
enactment of this statute undoubtedly reflect a
change in the policy of our laws upon the subject of
divorce, the exact effect and bearing of which need
not be here discussed. But inasmuch as the tenets of
the Catholic Church absolutely deny the validity of

marriages where one of the parties is divorced, it is

evident that the recognition of a divorce obtained
under the conditions revealed in this case would be
as repugnant to the moral sensibilities of our people
as it is contrary to the well-established rules of law.
As the divorce granted by the French court must be
ignored, it results that the marriage of Doctor Mory
and Leona Castro, celebrated in London in 1905,
could not legalize their relations; and the
circumstance that they afterwards passed for
husband and wife in Switzerland until her death is
wholly without legal significance. The claims of the
Mory children to participate in the estate of Samuel
Bischoff must therefore be rejected. The right to
inherit is limited to legitimate, legitimated, and
acknowledged natural children. The children of
adulterous relations are wholly excluded. The word
"descendants," as used in article 941 of the Civil
Code cannot be interpreted to include illegitimates
born of adulterous relations.
An important question arises in connection with the
time within which the claims of the two sets of
children were presented to the court. In this
connection it appears that the will of Samuel Bischoff
was probated in August, 1913. A committee on
claims was appointed and it report was field and
accepted February 20, 1914. About the same time
Otto Gmur entered an appearance for the Mory
claimants and petitioned the court to enter a decree
establishing their right to participate in the
distribution of the estate. The executrix, Doa Ana
Ramirez, answered the petition denying that said
minors were the legitimate children of Leona Castro
and further denying that the latter was the
recognized natural daughter of Samuel Bischoff.
Upon the issues thus presented a trial was had
before the Honorable Fermin Mariano, and on
December 29, 1915, he rendered a decision in which
he held (1) that Leona Castro was the recognized
natural daughter of Samuel Bischoff; (2) that the
minor, Leontina Elizabeth, is a legitimate daughter of
Leona Castro; and (3) that the minors Carmen Maria
and Esther Renate are illegitimate children of Leona
Castro.
From these facts the court drew the conclusion that
Leontina Elizabeth was entitled to one-third of the
estate of the late Samuel Bischoff, and that his
widow, Doa Ana Ramirez, was entitled to the
remaining two-thirds. From this decision both Doa
Ana Ramirez and Otto Gmur, as guardian, appealed.
Shortly after the appeals above-mentioned were
taken, Mr. Frederick von Kauffman made application
to the Court of First Instance of Iloilo by petition filed
in the proceedings therein pending upon the estate
of the late Samuel Bischoff for appointment as
guardian ad litem of his minor children, the von

Kauffman heirs, which petition was granted by order

dated March 4, 1916. Thereafter, on April 1, 1916,
von Kauffman, on behalf of the said minors, filed in
the cause a petition setting forth their right to share
in the estate. This petition was answered by Mr. Otto
Gmur, guardian, on April 26, 1916, the sole
contention of said answer being that the matter to
which the petition relates had been disposed of by
the decision of the Court of First Instance rendered in
said proceedings by Judge Mariano on December 9,
1915. Doa Ana Ramirez answered denying all the
allegations of von Kauffman's petition.
The trial of the petition of von Kauffman, as guardian,
came on for hearing before the Court of First Instance
of Iloilo on the 10th day of August, 1916. Upon the
evidence taken at that hearing the Honorable J. S.
Powell, as judge then presiding in the Court of First
Instance of Iloilo, rendered a decision under date of
November 14, 1916, in which he found as a fact
Leona Castro was the acknowledged natural
daughter of Samuel Bischoff and that the minors,
Elena, Fritz, and Ernesto, are the legitimate children
of Frederick von Kauffman and the said Leona Castro,
born in lawful wedlock. Upon the facts so found,
Judge Powell based his conclusion that all that
portion of the estate of Samuel Bischoff pertaining to
Leona Castro should be equally divided among the
children Federico, Ernesto, and Elena, thereby
excluding by inference the Mory claimants from all
participation in the estate.
From this judgments an appeal was taken by Mr. Otto
Gmur as guardian, no appeal having taken by Doa
Ama Ramirez.
Though the circumstance is now of no practical
importance, it may be stated in passing that the
appeals of Doa Ana Ramirez and of Otto Gmur,
guardian, from the decision of Judge Mariano of
December 9, 1915, and the appeal of Otto Gmur,
guardian from the decision of Judge Powell, of
November 14, 1916, were brought to this court
separately; but the causes were subsequently
consolidated and have been heard together. The
parties to the litigation have also stipulated that all
the "evidence, stipulations and admissions in each of
the two proceedings above-mentioned may be
considered for all purposes by this court in the
other." The case is therefore considered here as
though there had been but one trial below and all the
issues of law and fact arising from the contentions of
the oppossing claimants had been heard at the same
time.
Upon the facts above stated it is insisted for Ana M.
Ramirez that her rights to the estate under the will of
Samuel Bischoff were at the latest determined by the
final decree of December 29, 1915; and that it was
thereafter incompetent for the court to take

cognizance of the application of the Mory claimants.

If this contention is sustainable, the same
considerations would operate to defeat the later
application filed on behalf of the von Kauffman
children - and indeed with even greater force, - since
this application was not made until the appeals from
the decree of December 9, 1915, had actually been
perfected and the cause had been transferred to the
Supreme Court.
Two questions are here involved, one as to the effect
of the probate of a will upon the rights of forced heirs
who do not appear to contest the probate, and the
other as to the conclusiveness and finality of an
order for the distribution of an estate, as against
persons who are not before the court.
Upon the first of these questions it is enough to say
that the rights of forced heirs to their legitime are not
divested by the decree admitting a will to probate, and this regardless of the fact that no provision has
been made for them in the will, for the decree of
probate is conclusive only a regards the due
execution of the will, the question of its intrinsic
validity not being determined by such decree. (Code
of Civil Procedure, sec. 625; Castaeda vs. Alemany,
3 Phil., 426; Sahagun vs. De Gorostiza, 7 Phil., 347;
JocSoy vs. Vao, 8 Phil., 119; Limjuco vs. Ganara, 11
Phil., 393, 395; Austria vs. Ventenilla, 21 Phil., 180.)
Indeed it is evident, under the express terms of the
proviso to section 753 of the Code of Civil Procedure,
that the forced heirs cannot be prejudiced by the
failure of the testator to provide for them in his will;
and regardless of the intention of the testator to
leave all his property, or practically all of it, to his
wife, the will is intrinsically invalid so far a it would
operate to cut off their rights.
The question as to the conclusiveness of the order of
distribution can best be considered with reference to
the von Kauffman children, as the solution of the
problem as to them necessarily involves the
disposition of the question as to the Mory claimants.
It is evident that the von Kauffman children cannot
be considered to have been in any sense parties to
the proceeding at the time Judge Mariano rendered
his decision. So far a the record shows the court was
then unaware even of their existence. No notice of
any kind was served upon them; nor was any person
then before the court authorized to act in their
behalf. Nevertheless, as we have already shown,
upon the death of Samuel Bischoff, the right to
participate in his estate vested immediately in this
children, to the extent to which their mother would
have been entitled to participate had she survived
her father. If the right vested upon the death of
Samuel Bischoff, how has it been since divested?

The record shows that the decision of December 29,

1915, in which Judge Mariano holds that the estate
should be divided between Leontina Elizabeth and
the residuary legatee Doa Ana Ramirez, was made
without publication of notice, or service of any kind
upon other persons who might consider themselves
entitled to participate in the estate.
The law in force in the Philippine Islands regarding
the distribution of estates of deceased persons is to
be found in section 753 et seq., of the Code of Civil
Procedure. In general terms the law is that after the
payment of the debts and expenses of administration
the court shall distribute the residue of the estate
among the persons who are entitled to receive it,
whether by the terms of the will or by operation of
law. It will be noted that while the law (sec. 754)
provides that the order of distribution may be had
upon the application of the executor or administrator,
or of a person interested in the estate, no provision is
made for notice, by publication or otherwise, of such
application. The proceeding, therefore, is to all
intents and purposes ex parte. A will be seen our law
is very vague and incomplete; and certainly it cannot
be held that a purely ex parte proceeding, had
without notice by personal service or by publication,
by which the court undertakes to distribute the
property of deceased persons, can be conclusive
upon minor heirs who are not represented therein.
Section 41 of the Code of Civil Procedure provides
that ten years actual adverse possession by
"occupancy, grant, descent, or otherwise' shall vest
title in the possessor. This would indicate that a
decree of distribution under which one may be
placed in possession of land acquired by descent, is
not in itself conclusive, and that, a held in Layre vs.
Pasco (5 Rob. [La.], 9), the action of revindication
may be brought by the heir against the persons put
in possession by decree of the probate court at any
time within the period allowed by the general statute
of limitations.
Our conclusion is that the application of the von
Kauffman children was presented in ample time and
that the judgment entered in their favor by Judge
Powell was correct. The Mory claimants, as already
stated, are debarred from participation in the estate
on other grounds.
So much of the judgment entered in the Court of First
Instance, pursuant to the decision of Judge Mariano
of December 29, 1915, as admits Leontina Elizabeth
Mory to participate in the estate of Samuel Bischoff is
reversed; and instead the von Kauffman children will
be admitted to share equally in one-third of the
estate as provided in the decision of Judge Powell of
November 14, 1916. In other respects the judgment
of Judge Mariano is affirmed. The costs of this
instance will be paid out of the estate. So ordered.

Arellano, C.J., Torres,

Avancea, JJ., concur.

Johnson,

Malcolm

and

[G.R. No. L-20530. June 29, 1967.]

MANILA SURETY & FIDELITY COMPANY, INC.,
Petitioner, v. TRINIDAD TEODORO and THE
COURT OF APPEALS, Respondents.
De Santos & Delfino for Petitioner.
V .J . Francisco
Respondents.

and

R.F

Francisco

for

SYLLABUS
1. EXECUTION; EXCLUSIVE PROPERTIES OF ONE OF
THE PARTNERS IN A VOID MARRIAGE NOT
ANSWERABLE FOR JUDGMENT DEBT OF THE OTHER
PARTNER. The properties that can be the subject of
co-ownership under Article 144 of the Civil Code are
those acquired by either or both of the partners in
the void marriage through their work or industry or
their wages and salaries. Where the funds used in
acquiring the properties were fruits of one of the
partners paraphernal investments which accrued
before the "marriage the said properties remain
exclusively those of that partner, and, as such are
beyond the reach of execution to satisfy the
judgment debt of the other partner.
2. ID.; THIRD-PARTY CLAIM NOT AN EXCLUSIVE
REMEDY. A third-party claim is not an exclusive
remedy. Section 16, Rule 39 of the Rules of Court
provides that nothing therein contained "shall
prevent such third person from vindicating his claim
to the property by any proper action."
3. INJUNCTION; ELEVATION OF APPEAL TO THE COURT
OF APPEALS WHEN AN INDEPENDENT PETITION FOR
INJUNCTION IS JUSTIFIED. An independent petition
for injunction is not unjustified if under the
circumstances it is impracticable to first wait for the
appeal to be elevated to and docketed in the Court of
Appeals and then secure the ancillary remedy of
injunction therein.
DECISION
MAKALINTAL, J.:
The Manila Surety & Fidelity Company, Inc., filed this
petition for review by certiorari of the decision of the
Court of Appeals in its Case No. CA-G.R. No. 30916.
The case relates to the execution of a joint and

several judgment for money obtained by the said

company against the Philippine Ready-Mix Concrete
Co., Inc. and Jose Corominas, Jr., in a litigation started
in 1952 in the Court of First Instance of Manila (Civil
Case No. 17014), whose decision was affirmed by the
Court of Appeals with only a slight modification in
respect of the award for attorneys fees.
The proceedings which took place thereafter are
narrated in the decision sought to be reviewed as
follows:
"When said decision became final, respondent Manila
Surety secured on September 20, 1961, from the
Court of First Instance of Manila in Civil Case No.
17014 a second alias writ of execution addressed to
respondent provincial sheriff of Rizal whose deputy,
together with counsel for respondent Manila Surety,
repaired to the residence of herein petitioner at No.
794 Harvard Street, Mandaluyong, Rizal, and levied
upon a car, some furniture, appliances and personal
properties found therein belonging solely and
exclusively to the petitioner with the exception of a
sewing machine which belonged to a maid by the
name of Nati Fresco, a G.E. television set which was
the property of the minor Jose Alfonso Corominas,
and a baby grand piano as well as a Columbia, radio
phonograph which belonged to Jose Corominas, Jr. As
the petitioner was then abroad, her sister Josefina
Teodoro, to whom she had entrusted the custody and
safekeeping
of
the
properties,
had
made
representations to the deputy sheriff and to the
counsel of respondent Manila Surety regarding the
ownership of the petitioner over certain personal
effects levied upon, but they ignored the same and
proceeded with the levy.
Thus, respondents caused the posting at several
places notices of sale, preparatory to disposing
petitioners properties at public auction.
To stay the sale at public auction of petitioners
properties, she filed on November 3, 1961, with the
Court of First Instance of Rizal a complaint with
injunction, entitled Trinidad Teodoro v. Manila Surety
& Fidelity Co., Inc. and the Provincial Sheriff of Rizal.
praying among other things, for damages and a writ
of preliminary injunction which was accordingly
issued upon petitioners filing of a bond in the sum of
P30,000.00 enjoining the provincial sheriff of Rizal
from selling at public auction the properties claimed
by said petitioner.
However, on November 9, 1961, respondent Manila
Surety filed an Omnibus Motion to Dismiss the
Complaint and to Dissolve Injunction to which an
opposition was filed.
After the parties had adduced their evidence in
support of their respective claims and after hearing

their arguments, the lower court declared that the

properties in question are community properties of
Trinidad Teodoro (herein petitioner) and Jose
Corominas, Jr., dissolved on May 12, 1962, the writ of
preliminary injunction it had issued and dismissed
the complaint (Civil case No. 6865, CFI-Rizal).
Not satisfied, Trinidad Teodoro (as plaintiff in said civil
case No. 6865 of Rizal) interposed an appeal. In the
meanwhile, however, the Manila Surety filed on May
29, 1962, in the Court of First Instance of Manila a
motion for the issuance of a third alias writ of
execution for the satisfaction of the judgment debt in
civil case No. 17014. Acting upon said motion the
Court of First Instance of Manila issued on June 2,
1962, the Third Alias Writ of Execution.
Thus, on June 7, 1962, deputies of the provincial
sheriff of Rizal again repaired to the residence of
herein petitioner at No. 794 Harvard St.,
Mandaluyong, and levied upon the same properties,
with the exception of the baby grand piano and the
Columbia phonograph which were the properties of
Jose Corominas, Jr. and which had already been sold
at public auction November 6, 1961 for P3,305.00,
the Regal sewing machine owned by Nati Fresco, the
beds found in the boys and girls rooms, a marble
dining table and chairs, a stereophonic phonograph
and the G.E. television set. An on the following day,
June 8, 1962, respondent provincial sheriff of Rizal
advertised the sale at public auction of the
aforementioned properties claimed by herein
petitioner, setting the date thereof for June 16,
1962."
Trinidad Teodoro thereupon filed an original petition
for injunction in the Court of Appeals to stop the
scheduled sale. On October 24, 1962 the said Court
rendered the decision now under review, granting the
writ prayed for and permanently enjoining
respondent provincial sheriff of Rizal from selling at
public auction the properties in question for the
satisfaction of the judgment debt of Jose Corominas,
Jr.
The case for herein petitioner rests on the
proposition that the said properties, claimed by
respondent Teodoro to be hers exclusively, pertain to
the co-ownership established between her and Jose
Corominas, Jr., pursuant to Article 144 of the Civil
Code, and consequently may be levied upon on
execution for the satisfaction of the latters judgment
debt. The facts relied upon in support of this theory
of co-ownership are stated in the decision of the
court a quo and quoted by the Court of Appeals, as
follows:
"Jose Corominas, Jr. and Sonia Lizares were married
in Iloilo on January 5, 1935. On November 29, 1954, a
decree of divorce was granted by the Court of the

State of Nevada dissolving the bonds of matrimony

between Sonia Lizares and Jose Corominas, Jr. . . .
"Trinidad Teodoro met Jose Corominas, Jr. in
Hongkong on October 30, 1955 . . . On March 26,
1956, they went through a Buddhist wedding
ceremony in Hongkong. Upon their return to the
Philippines they took up residence in a rented house
at No. 2305 Agno Street, Manila, . . . On September
5, 1961, plaintiff and Jose Corominas, Jr. were
married for a second time on Washoe County,
Nevada, U.S.A."
Additional pertinent facts, also mentioned in the
decision under review and not controverted by the
parties, are that Sonia Lizares is still living and that
the conjugal partnership formed by her marriage to
Corominas was dissolved by the Juvenile and
Domestic Relations Court of Manila upon their joint
petition, the decree of dissolution having been issued
on October 21, 1957.
The principal issue here is the applicability of Article
144 of the Civil Code to the situation thus created.
This Article provides:
"When a man and a woman live together as husband
and wife, but they are not married, or their marriage
is void from the beginning, the property acquired by
either or both of them through their work or industry
or their wages and salaries shall be governed by the
rules on co-ownership."
There is no doubt that the decree of divorce granted
by the Court of Nevada in 1954 is not valid under
Philippine law, which has outlawed divorce
altogether; that the matrimonial bonds between Jose
Corominas, Jr. and Sonia Lizares have not been
dissolved, although their conjugal partnership was
terminated in 1957; and that the formers
subsequent marriage in Hongkong to Trinidad
Teodoro is bigamous and void.
While Article 144 speaks, inter alia, of a void
marriage without any qualification, the Court of
Appeals declined to apply it in this case on two
grounds: (1) the subsisting marriage of Corominas to
Sonia Lizares constitutes an impediment to a valid
marriage between him and respondent Trinidad
Teodoro, which impediment, according to a number
of decisions of the Supreme Court, precludes the
establishment of a co-ownership under said article,
and (2) the funds used by said respondent in
acquiring the properties in question were "fruits of
her paraphernal investments which accrued before
her marriage to Corominas."
The decisions cited under the first ground are
Christensen v. Garcia, 56 Off. Gaz., No. 16, p. 3199,
Samson v. Salaysay, 56 Off. Gaz., No. 11, p. 2401;

and Osmea v. Rodriguez, 54 Off. Gaz., No. 20, p.

5526. In a proper case, where it may be necessary to
do so in order to resolve an unavoidable issue, the
precise scope of the "no impediment to a valid
marriage" dictum in said decisions will undoubtedly
deserve closer examination, since it establishes an
exception to the broad terms of Article 144. For one
thing, a situation may arise involving a conflict of
rights between a co-ownership under that provision
and an existing conjugal partnership formed by a
prior marriage where, for instance, the husband in
such marriage lives with another woman and with his
salary or wages acquires properties during the extramarital cohabitation. A ruling would then be in order
to determine which as between the co-ownership
and the conjugal partnership could claim
ascendancy insofar as the properties are concerned.
In the present case, however, we find no need to
pass on this question. The particular properties
involved here, which were admittedly acquired by
respondent Teodoro, cannot be deemed to belong to
each co-ownership because, as found by the trial
court and confirmed by the Court of Appeals, the
funds used in acquiring said properties were fruits of
respondents paraphernal investments which accrued
before her "marriage" to Corominas. In other words
they were not acquired by either or both of the
partners in the void marriage through their work or
industry or their wages and salaries, and hence
cannot be the subject of co-ownership under Article
144. They remain respondents exclusive properties,
beyond the reach of execution to satisfy the
judgment debt of Corominas.
Several procedural questions have been raised by
petitioner. First, that the injunction issued by the
Court of appeals was improper since it was not in aid
of its appellate jurisdiction; second, that respondent
Trinidad Teodoro having elected to appeal from the
decision of the Court of First Instance of Rizal, she
may not pursue the remedy of injunction as she did
in this case; third, that respondents petition for
injunction in the Court of Appeals failed to state a
cause of action; fourth, that the proper remedy
available to respondent was by filing a third-party
claim; and finally, that the trial judge should have
been included as party respondent in the petition for
injunction.
As to the first and second points, the fact is that
respondent Trinidad Teodoro perfected her appeal to
the Court of Appeals, which found that there were
questions of fact involved therein, one of them being
whether the properties in question were acquired
before or after her void marriage to Corominas. In aid
of its appellate jurisdiction, therefore, the said Court
could issue a writ of injunction. Of course, what
happened here was that before the record on appeal
could be filed (on June 18, 1962) or approved (on

September 8, 1962) a third alias writ of execution

was issued by the trial court (on June 2, 1962) and
the properties in question were again levied upon by
the sheriff and advertised for sale on June 16, 1962.
It was impracticable for respondent to first wait for
the appeal to be elevated to and docketed in the
Court of Appeals and then secure the ancillary
remedy of injunction therein. An independent petition
for injunction, under the circumstances, was not
unjustified.
Respondent could, indeed, have filed a third party
claim instead as indicated in Rule 39, Section 15. But
then her sister Josefina Teodoro did make such a
claim in her behalf after the second alias writ of
execution was issued, but it was ignored and the
sheriff proceeded with the levy. In any event, a third
party claim is not an exclusive remedy: the same rule
provides that nothing therein contained "shall
prevent such third person from vindicating his claim
to the property by any proper action."
We do not deem it to be a reversible error for Trinidad
Teodoro not to include the trial Judge as partyrespondent in her petition for injunction in the Court
of Appeals. The trial Judge would have been merely a
nominal party anyway, and no substantial rights of
petitioner here have been prejudiced by the
omission.
In view of the foregoing, the judgment of the Court of
Appeals is affirmed, with costs.
Concepcion, C.J., Reyes, J .B.L., Dizon, Bengzon, J .P.,
Zaldivar, Sanchez and Castro, JJ., concur.

G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, Petitioner, vs. HON.
MANUEL V. ROMILLO, JR., as Presiding Judge of
Branch CX, Regional Trial Court of the National
Capital Region Pasay City and RICHARD UPTON
Respondents.
MELENCIO-HERRERA, J.:
In this Petition for certiorari and Prohibition,
petitioner Alice Reyes Van Dorn seeks to set aside
the Orders, dated September 15, 1983 and August 3,
1984, in Civil Case No. 1075-P, issued by respondent
Judge, which denied her Motion to Dismiss said case,
and her Motion for Reconsideration of the Dismissal
Order, respectively.
The basic background facts are that petitioner is a
citizen of the Philippines while private respondent is
a citizen of the United States; that they were married
in Hongkong in 1972; that, after the marriage, they
established their residence in the Philippines; that

they begot two children born on April 4, 1973 and

December 18, 1975, respectively; that the parties
were divorced in Nevada, United States, in 1982; and
that petitioner has re-married also in Nevada, this
time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit
against petitioner in Civil Case No. 1075-P of the
Regional Trial Court, Branch CXV, in Pasay City,
stating that petitioner's business in Ermita, Manila,
(the Galleon Shop, for short), is conjugal property of
the parties, and asking that petitioner be ordered to
render an accounting of that business, and that
private respondent be declared with right to manage
the conjugal property. Petitioner moved to dismiss
the case on the ground that the cause of action is
barred by previous judgment in the divorce
proceedings before the Nevada Court wherein
respondent had acknowledged that he and petitioner
had "no community property" as of June 11, 1982.
The Court below denied the Motion to Dismiss in the
mentioned case on the ground that the property
involved is located in the Philippines so that the
Divorce Decree has no bearing in the case. The
denial is now the subject of this certiorari proceeding.
Generally, the denial of a Motion to Dismiss in a civil
case is interlocutory and is not subject to appeal.
certiorari and Prohibition are neither the remedies to
question the propriety of an interlocutory order of the
trial Court. However, when a grave abuse of
discretion was patently committed, or the lower
Court acted capriciously and whimsically, then it
devolves upon this Court in a certiorari proceeding to
exercise its supervisory authority and to correct the
error committed which, in such a case, is equivalent
to lack of jurisdiction. 1 Prohibition would then lie
since it would be useless and a waste of time to go
ahead with the proceedings. 2 Weconsider the
petition filed in this case within the exception, and
we have given it due course.
For resolution is the effect of the foreign divorce on
the parties and their alleged conjugal property in the
Philippines.
Petitioner contends that respondent is estopped from
laying claim on the alleged conjugal property
because of the representation he made in the divorce
proceedings before the American Court that they had
no community of property; that the Galleon Shop was
not established through conjugal funds, and that
respondent's claim is barred by prior judgment.
For his part, respondent avers that the Divorce
Decree issued by the Nevada Court cannot prevail
over the prohibitive laws of the Philippines and its
declared national policy; that the acts and
declaration of a foreign Court cannot, especially if
the same is contrary to public policy, divest

Philippine Courts of jurisdiction to entertain matters

within its jurisdiction.
For the resolution of this case, it is not necessary to
determine whether the property relations between
petitioner and private respondent, after their
marriage, were upon absolute or relative community
property, upon complete separation of property, or
upon any other regime. The pivotal fact in this case
is the Nevada divorce of the parties.
The Nevada District Court, which decreed the
divorce, had obtained jurisdiction over petitioner who
appeared in person before the Court during the trial
of the case. It also obtained jurisdiction over private
respondent who, giving his address as No. 381 Bush
Street, San Francisco, California, authorized his
attorneys in the divorce case, Karp & Gradt Ltd., to
agree to the divorce on the ground of incompatibility
in the understanding that there were neither
community property nor community obligations. 3As
explicitly stated in the Power of Attorney he executed
in favor of the law firm of KARP & GRAD LTD., 336 W.
Liberty, Reno, Nevada, to represent him in the
divorce proceedings:
xxx

xxx

xxx

You are hereby authorized to accept service of

Summons, to file an Answer, appear on my behalf
and do an things necessary and proper to represent
me, without further contesting, subject to the
following:
1.
That my spouse seeks a divorce on the
ground of incompatibility.
2.
That there is no community of property to
be adjudicated by the Court.
3.
'I'hat there are no community obligations to
be adjudicated by the court.
xxx

xxx

xxx 4

There can be no question as to the validity of that

Nevada divorce in any of the States of the United
States. The decree is binding on private respondent
as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in
any State of the Union. What he is contending in this
case is that the divorce is not valid and binding in
this jurisdiction, the same being contrary to local law
and public policy.
It is true that owing to the nationality principle
embodied in Article 15 of the Civil Code, 5 only
Philippine nationals are covered by the policy against
absolute divorces the same being considered
contrary to our concept of public police and morality.
However, aliens may obtain divorces abroad, which

may be recognized in the Philippines, provided they

are valid according to their national law. 6 In this
case, the divorce in Nevada released private
respondent from the marriage from the standards of
American law, under which divorce dissolves the
marriage. As stated by the Federal Supreme Court of
the United States in Atherton vs. Atherton, 45 L. Ed.
794, 799:
The purpose and effect of a decree of divorce from
the bond of matrimony by a court of competent
jurisdiction are to change the existing status or
domestic relation of husband and wife, and to free
them both from the bond. The marriage tie when
thus severed as to one party, ceases to bind either. A
husband without a wife, or a wife without a husband,
is unknown to the law. When the law provides, in the
nature of a penalty. that the guilty party shall not
marry again, that party, as well as the other, is still
absolutely freed from the bond of the former
marriage.
Thus, pursuant to his national law, private
respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as
petitioner's husband entitled to exercise control over
conjugal assets. As he is bound by the Decision of his
own country's Court, which validly exercised
jurisdiction over him, and whose decision he does not
repudiate, he is estopped by his own representation
before said Court from asserting his right over the
alleged conjugal property.
To maintain, as private respondent does, that, under
our laws, petitioner has to be considered still married
to private respondent and still subject to a wife's
obligations under Article 109, et. seq. of the Civil
Code cannot be just. Petitioner should not be obliged
to live together with, observe respect and fidelity,
and render support to private respondent. The latter
should not continue to be one of her heirs with
possible rights to conjugal property. She should not
be discriminated against in her own country if the
ends of justice are to be served.
WHEREFORE, the Petition is granted, and respondent
Judge is hereby ordered to dismiss the Complaint
filed in Civil Case No. 1075-P of his Court.
Without costs.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr.,
De la Fuente and Patajo, JJ., concur.

G.R. No. 80116

June 30, 1989

IMELDA MANALAYSAY PILAPIL, Petitioner, vs.

HON. CORONA IBAY-SOMERA, in her capacity as
Presiding Judge of the Regional Trial Court of
Manila, Branch XXVI; HON. LUIS C. VICTOR, in
his capacity as the City Fiscal of Manila; and
ERICH EKKEHARD GEILING, Respondents.
REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner
which ended in a foreign absolute divorce, only to be
followed by a criminal infidelity suit of the latter
against the former, provides Us the opportunity to
lay down a decisional rule on what hitherto appears
to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay
Pilapil, a Filipino citizen, and private respondent Erich
Ekkehard Geiling, a German national, were married
before the Registrar of Births, Marriages and Deaths
at Friedensweiler in the Federal Republic of Germany.
The marriage started auspiciously enough, and the
couple lived together for some time in Malate, Manila
where their only child, Isabella Pilapil Geiling, was
born on April 20, 1980. 1
Thereafter, marital discord set in, with mutual
recriminations between the spouses, followed by a
separation de facto between them.
After about three and a half years of marriage, such
connubial
disharmony
eventuated
in
private
respondent initiating a divorce proceeding against
petitioner in Germany before the Schoneberg Local
Court in January, 1983. He claimed that there was
failure of their marriage and that they had been
living apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal
separation, support and separation of property
before the Regional Trial Court of Manila, Branch
XXXII, on January 23, 1983 where the same is still
pending as Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg
Local
Court,
Federal Republic
of Germany,
promulgated a decree of divorce on the ground of
failure of marriage of the spouses. The custody of the
child was granted to petitioner. The records show
that under German law said court was locally and
internationally competent for the divorce proceeding
and that the dissolution of said marriage was legally
founded on and authorized by the applicable law of
that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the
issuance of the divorce decree, private respondent
filed two complaints for adultery before the City
Fiscal of Manila alleging that, while still married to
said respondent, petitioner "had an affair with a

certain William Chia as early as 1982 and with yet

another man named Jesus Chua sometime in 1983".
Assistant Fiscal Jacinto A. de los Reyes, Jr., after the
corresponding investigation, recommended the
dismissal of the cases on the ground of insufficiency
of evidence. 5 However, upon review, the respondent
city fiscal approved a resolution, dated January 8,
1986, 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. Ordoez acted on the
aforesaid petitions for review and, upholding
petitioner's ratiocinations, issued a resolution
directing the respondent city fiscal to move for the
dismissal of the complaints against the petitioner. 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 therefore.
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. 20Hence, 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.

of the nationality principle in our civil law on the

matter of status of persons.

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

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. ...

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.
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

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:

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.

his former wife actually has carnal knowledge with

another, because in divorcing her, he already
implicitly authorized the woman to have sexual
relations with others. A contrary ruling would be less
than fair for a man, who is free to have sex will be
allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]),
the Supreme Court considered the absolute divorce
between the American husband and his American
wife as valid and binding in the Philippines on the
theory that their status and capacity are governed by
their National law, namely, American law. There is no
decision yet of the Supreme Court regarding the
validity of such a divorce if one of the parties, say an
American, is married to a Filipino wife, for then two
(2) different nationalities would be involved.
In the book of Senate President Jovito Salonga
entitled Private International Law and precisely
because of the National law doctrine, he considers
the absolute divorce as valid insofar as the American
husband is concerned but void insofar as the Filipino
wife is involved. This results in what he calls a
"socially grotesque situation," where a Filipino
woman is still married to a man who is no longer her
husband. It is the opinion however, of the
undersigned that very likely the opposite expresses
the correct view. While under the national law of the
husband the absolute divorce will be valid, still one of
the exceptions to the application of the proper
foreign law (one of the exceptions to comity) is when
the foreign law will work an injustice or injury to the
people or residents of the forum. Consequently since
to recognize the absolute divorce as valid on the part
of the husband would be injurious or prejudicial to
the Filipino wife whose marriage would be still valid
under her national law, it would seem that under our
law existing before the new Family Code (which took
effect on August 3, 1988) the divorce should be
considered void both with respect to the American
husband and the Filipino wife.

Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

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

Separate Opinions

PARAS, J., concurring:

PARAS, J., concurring:

It is my considered opinion that regardless of

whether We consider the German absolute divorce as
valid also in the Philippines, the fact is that the
husband in the instant case, by the very act of his
obtaining an absolute divorce in Germany can no
longer be considered as the offended party in case

It is my considered opinion that regardless of

whether We consider the German absolute divorce as
valid also in the Philippines, the fact is that the
husband in the instant case, by the very act of his
obtaining an absolute divorce in Germany can no
longer be considered as the offended party in case

SO ORDERED.

his former wife actually has carnal knowledge with

another, because in divorcing her, he already
implicitly authorized the woman to have sexual
relations with others. A contrary ruling would be less
than fair for a man, who is free to have sex will be
allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]),
the Supreme Court considered the absolute divorce
between the American husband and his American
wife as valid and binding in the Philippines on the
theory that their status and capacity are governed by
their National law, namely, American law. There is no
decision yet of the Supreme Court regarding the
validity of such a divorce if one of the parties, say an
American, is married to a Filipino wife, for then two
(2) different nationalities would be involved.
In the book of Senate President Jovito Salonga
entitled Private International Law and precisely
because of the National law doctrine, he considers
the absolute divorce as valid insofar as the American
husband is concerned but void insofar as the Filipino
wife is involved. This results in what he calls a
"socially grotesque situation," where a Filipino
woman is still married to a man who is no longer her
husband. It is the opinion however, of the
undersigned that very likely the opposite expresses
the correct view. While under the national law of the
husband the absolute divorce will be valid, still one of
the exceptions to the application of the proper
foreign law (one of the exceptions to comity) is when
the foreign law will work an injustice or injury to the
people or residents of the forum. Consequently since
to recognize the absolute divorce as valid on the part
of the husband would be injurious or prejudicial to
the Filipino wife whose marriage would be still valid
under her national law, it would seem that under our
law existing before the new Family Code (which took
effect on August 3, 1988) the divorce should be
considered void both with respect to the American
husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA
[1985]) cannot apply despite the fact that the
husband was an American can with a Filipino wife
because in said case the validity of the divorce
insofar as the Filipino wife is concerned was NEVER
put in issue.

G.R. No. 138322. October 2, 2001

GRACE J. GARCIA, a.k.a. GRACE J. GARCIARECIO,, Petitioner, v. REDERICK A. RECIO,
respondent.
DECISION

PANGANIBAN, J.:
A divorce obtained abroad by an alien may be
recognized in our jurisdiction, provided such decree
is valid according to the national law of the foreigner.
However, the divorce decree and the governing
personal law of the alien spouse who obtained the
divorce must be proven. Our courts do not take
judicial notice of foreign laws and judgments; hence,
like any other facts, both the divorce decree and the
national law of the alien must be alleged and proven
according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of
the Rules of Court, seeking to nullify the January 7,
1999 Decision 1 and the March 24, 1999 Order 2 of
the Regional Trial Court of Cabanatuan City, Branch
28, in Civil Case No. 3026AF. The assailed Decision
disposed as follows:
WHEREFORE, this Court declares the marriage
between Grace J. Garcia and Rederick A. Recio
solemnized on January 12, 1994 at Cabanatuan City
as dissolved and both parties can now remarry under
existing and applicable laws to any and/or both
parties.3
The assailed Order denied reconsideration of the
above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha
Samson, an Australian citizen, in Malabon, Rizal, on
March 1, 1987. 4 They lived together as husband and
wife in Australia. On May 18, 1989, 5 a decree of
divorce, purportedly dissolving the marriage, was
issued by an Australian family court.
On June 26, 1992, respondent became an Australian
citizen, as shown by a Certificate of Australian
Citizenship issued by the Australian government. 6
Petitioner -- a Filipina -- and respondent were married
on January 12, 1994 in Our Lady of Perpetual Help
Church in Cabanatuan City. 7 In their application for a
marriage license, respondent was declared as single
and Filipino. 8
Starting October 22, 1995, petitioner and respondent
lived separately without prior judicial dissolution of
their marriage. While the two were still in Australia,
their conjugal assets were divided on May 16, 1996,
in accordance with their Statutory Declarations
secured in Australia. 9
On March 3, 1998, petitioner filed a Complaint for
Declaration of Nullity of Marriage 10 in the court a
quo, on the ground of bigamy -- respondent allegedly
had a prior subsisting marriage at the time he

married her on January 12, 1994. She claimed that

she learned of respondents marriage to Editha
Samson only in November, 1997.
In his Answer, respondent averred that, as far back
as 1993, he had revealed to petitioner his prior
marriage and its subsequent dissolution. 11 He
contended that his first marriage to an Australian
citizen had been validly dissolved by a divorce
decree obtained in Australia in 1989; 12 thus, he was
legally capacitated to marry petitioner in 1994.

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

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

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.

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

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

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
consideration:

the following

issues

for

our

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 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.

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 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

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.

A comparison between marriage and divorce, as far

as pleading and proof are concerned, can be made.
Van Dorn v. Romillo Jr. decrees that aliens may obtain
divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their
national law. 28 Therefore, before a foreign divorce
decree can be recognized by our courts, the party
pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law
allowing it. 29 Presentation solely of the divorce
decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be
admitted in evidence, it must first comply with the
registration requirements under Articles 11, 13 and
52 of the Family Code. These articles read as follows:
ART. 11. Where a marriage license is required, each
of the contracting parties shall file separately a
sworn application for such license with the proper
local civil registrar which shall specify the following:
xxx
(5) If previously married, how, when and where the
previous marriage was dissolved or annulled;
xxx
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

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.

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.

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.

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

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.

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.

Second Issue:
Remarry

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.

Respondents

Legal

Capacity

to

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.

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 (FilipinoAustralian) 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.
Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ.,
concur .
G.R. No. L-11467 March 15, 1916
NG HIAN, petitioner-appellee, vs. THE INSULAR
COLLECTOR
OF
CUSTOMS,
respondentappellant.
Attorney-General Avancea for appellant.
Williams, Ferrier and SyCip for appellee.
JOHNSON, J.:
This action was commenced in the Court of First
Instance of the city of Manila on the 26th of
November, 1915, by the presentation of a petition for
the writ of habeas corpus.
From an examination of the record the following facts
appear to be proved beyond question:
First.
That on or about the 30th of October, 1915
on the steamship Tian there arrived at the port of
Manila, a woman, Marcosa S. Dy Jiongco, together
with two children, Ng Tio a female of the age of 9
years, and Ng Hian a boy of 16 years of age (the
petitioner herein);
Second. That Marcosa S. Dy Jiongco had been born in
the Philippine Islands, of a Filipina mother and a
Chinese father;
Third.
That Marcosa S. Dy Jiongco was married to a
Chinaman by the name of (Filipino name) Juan Uy
Tue, (Chinese name) Ng Chion Tue:
Fourth. That Juan Uy Tue (Ng Chion Tue), before his
marriage with Marcosa S. Dy Jiongco, had been
married to a Chinese woman with whom he had

some children, the petitioner herein and also one

called Ng Guan. It appears that Ng Guan was residing
in the Philippine Islands at the time of the
presentation of the present petition;
Fifth.
That the Chinese wife of Juan Uy Tue died
while the petitioner herein, Ng Hian, was a very small
child;
Sixth.
That the said Juan Uy Tue, after the death of
his Chinese wife, was legally married to the said
Marcosa S. Dy Jiongco;
Seventh.That the said little girl, Ng Tio, of 9 years of
age was the daughter of the brother of the said Juan
Uy Tue, born of a Chinese father and mother; that the
father of the little girl had given her to the said
Marcosa S. Dy Jiongco;
Eight.
That Marcosa S. Dy Jiongco, being the
stepmother of the said Ng Hian, adopted him and
was bringing him to the Philippine Islands to study.
After the close of the investigation before the board
of special inquiry, during which examination the
foregoing facts were presented, the said board
refused the right of each of said children to enter the
Philippine Islands.
Later, on the 17th of November, 1915, a rehearing
was granted for the purpose of examining other
witnesses upon the question of the right of said two
children, Ng Tio and Ng Hian, to enter the Philippine
Islands. At the close of the second hearing the board
of special inquiry admitted Ng Tio, but denied the
right of Ng Hian to enter the Philippine Islands. From
that decision an appeal was taken to the Collector of
Customs and by him affirmed on the 23d of
November, 1915. The petition for the writ of habeas
corpus in the present case was presented on the
26th of November, 1915.
The petition and answer and the record made in the
department of customs were presented to the Court
of First Instance. The court, after an examination of
the record, reached the conclusion that the petition
(Ng Hian) was entitled to enter the Philippine Islands.
From that decision the Collector of Customs appealed
to this court. The question which the AttorneyGeneral presents is whether or not the minor children
of a deceased resident Chinese merchant have a
right to enter the territory of the Philippine Islands.
That question has been answered by this court in
numerous decisions in the negative. (Lee Jua vs.
Collector of Customs, 32 Phil. Rep., 24; Tan Lin Jo vs.
Collector of Customs, 32 Phil. Rep., 78; Cang Kai
Guan vs. Collector of Customs, 32 Phil. Rep., 102; Yat

Tian Un (Sun) vs. Collector of Customs, 32 Phil. Rep.,

487; De Eng Hoa vs. Collector of Customs, 32 Phil.
Rep., 490; Ex parte Chan Fooi, 217 Fed. Rep., 308.)
It is true that the petitioner, Ng Hian, had never been
in the Philippine Islands before. It is also true that the
said Marcosa S. Dy Jingco was his stepmother. She
swore positively that she had adopted him. That fact
is not denied of record. Until the fact is denied we
must accept it. There is nothing in the record which
shows or tends to show that she had not adopted
him in good faith. The question whether or not
Marcosa S. Dy Jiongco could bring Ng Hian into the
territory of the Philippine Islands as her adopted son
has been discussed by the Federal Courts of the
United States. In the case of Ex parte Fong Yim (134
Fed. Rep., 938), the court held that:
A Chinese merchant domiciled in the United States
has the right to bring into this country with his wife
minor children legally adopted by him in China,
where it is shown that the adoption was bona fide,
and that the children have lived as members of his
family and have been supported by him for several
years.
The court further said:
Of course, the question whether the adoption is a
genuine one is a question of fact, open to
investigation . . . . The evidence shows that the
practice of adopting children in China is very
common, that it takes place substantially without
legal formalities, but that the rights and obligations
of children adopted and recognized as such are
similar to those of natural children. Under these
circumstances I can see no difference between the
legal status of adopted children and of natural
children. The Supreme Court (of the United States)
having decided that a Chinese merchant domiciled in
this country has the right to bring into it his natural
children, I think that the same decision is authority
for the proposition that he has the right to introduce
his adopted children.
Upon the theory, therefore, that Ng Hian had been
adopted by his stepmother, and upon the theory that
she has a right to enter territory of the United States,
without objection, we are of the opinion and so hold
that Ng Hian has a right to enter the territory of the
Philippine Islands as her adopted son. Therefore the
judgment of the lower court is hereby affirmed, with
costs. So ordered.
Torres, Trent, and Araullo, JJ., concur.
Moreland, J., reserves his vote.