THIRD DIVISION

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

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO,
petitioner, vs. REDERICK A. RECIO, respondent.
Olivia Velasco-Jacoba for petitioner.
Gomez & Associates for respondent.
SYNOPSIS
Petitioner filed a complaint for declaration of
nullity of marriage in the court a quo on the
ground of bigamy, alleging that respondent, an
Australian citizen, had a prior subsisting marriage
to one Editha Samson, also an Australian citizen
at the time he married her in 1994. Pending trial
of the case, respondent obtained a divorce
decree from a family court in Australia. The court
held that the Australian divorce had ended the
marriage, thus, there was no more marital union
to nullify.
On appeal, the Supreme Court held: that the
Australian divorce decree did not absolutely
establish respondent's legal capacity to remarry
under his national law, hence, there is no basis
for the ruling of the trial court which assumed
that the Australian divorce restored respondent's
capacity to remarry; that as it is, there is no
evidence that proves respondent's legal capacity
to marry petitioner; that the case should,
therefore, be remanded to the lower court for the
purpose of receiving evidence which conclusively
show respondent's legal capacity to marry
petitioner; and that failing in that, of declaring
the parties' marriage void on the ground of
bigamy. ADEacC
SYLLABUS
1.REMEDIAL
LAW;
EVIDENCE;
ADMISSIBILITY; OFFICIAL RECORD OF A
FOREIGN COUNTRY, HOW PROVED. Before
a foreign judgment is given presumptive
evidentiary value, the document must first be
presented and admitted in evidence. A divorce
obtained abroad is proven by the divorce decree
itself. Indeed the best evidence of a judgment is
the judgment itself. The decree purports to be a
written act or record of an act of an official body
or tribunal of a foreign country. Under Sections 24
and 25 of Rule 132, on the other hand, a writing
or document may be proven as a public or official
record of a foreign country by either (1) an official
publication or (2) a copy thereof attested by the
officer having legal custody of the document. If
the record is not kept in the Philippines, such
copy must be (a) accompanied by a certificate
issued by the proper diplomatic or consular
officer in the Philippine foreign service stationed
in the foreign country in which the record is kept
and (b) authenticated by the seal of his office.

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2.ID.; ID.; ID.; ID.; AUSTRALIAN DIVORCE

DECREE RENDERED ADMISSIBLE DESPITE
NONCOMPLIANCE THEREWITH IN CASE AT
BAR. The divorce decree between respondent
and Editha Samson appears to be an authentic
one issued by an Australian family court.
However,
appearance
is
not
sufficient;
compliance with the aforementioned rules on
evidence must be demonstrated. Fortunately for
respondent's cause, when the divorce decree of
May 18, 1989 was submitted in evidence, counsel
for petitioner objected, not to its admissibility, but
only to the fact that it had not been registered in
the Local Civil Registry of Cabanatuan City. The
trial court ruled that it was admissible, subject to
petitioner's qualification. Hence, it was admitted
in evidence and accorded weight by the judge.
Indeed, petitioner's failure to object properly
rendered the divorce decree admissible as a
written act of the Family Court of Sydney,
Australia.
3.ID.;
ID.;
JUDICIAL
NOTICE;
COURTS
CANNOT
TAKE
JUDICIAL
NOTICE
OF
AUSTRALIAN MARITAL LAWS; CASE AT BAR.
The burden of proof lies with "the party who
alleges the existence of a fact or thing necessary
in the prosecution or defense of an action." In
civil cases, plaintiffs have the burden of proving
the material 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. Since the divorce was a defense
raised by respondent, the burden of proving the
pertinent Australian law validating it falls
squarely upon him. It is well-settled in our
jurisdiction that our courts cannot take judicial
notice of foreign laws. 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. The power of judicial notice must be
exercised with caution, and every reasonable
doubt upon the subject should be resolved in the
negative.
4.ID.; ID.; ID.; ID.; LACK OF EVIDENCE TO
SHOW
RESPONDENT'S
CAPACITY
TO
REMARRY; PROPER REMEDY; CASE AT BAR.
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." This
quotation bolsters our contention that the divorce
obtained by respondent may have been
restricted. It did not absolutely establish his legal
capacity to remarry according to his national law.
Hence, we find no basis for the ruling of the trial

court, which erroneously assumed that the

Australian
divorce
ipso
facto
restored
respondent's capacity to remarry despite the
paucity of evidence on this matter. . . . As it is,
there is absolutely no evidence that proves
respondent's legal capacity to marry petitioner.
Hence, we believe that the most judicious course
is to remand this case to the trial court to receive
evidence, if any, which show respondents 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.
DECISION
PANGANIBAN, J p:
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. aHTCIc
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. 3026-AF. The assailed
Decision disposed as follows:
"WHEREFORE, this Court declares the marriage
between Grace J. Garcia and Rederick A. Recio
solemnized on January 12, 1994 at Cabanatuan
City as dissolved and both parties can now
remarry under existing and applicable laws to any
and/or both parties." 3
The assailed Order denied reconsideration of the
above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to
Editha Samson, an Australian citizen, in Malabon,
Rizal, on March 1, 1987. 4 They lived together as
husband and wife in Australia. On May 18, 1989,
5 a decree of divorce, purportedly dissolving the
marriage, was issued by an Australian family
court.
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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 respondent's
marriage to Editha Samson only in November,
1997. TDCaSE
In his Answer, respondent averred that, as far
back as 1993, he had revealed to petitioner his
prior marriage and its subsequent dissolution. 11
He contended that his first marriage to an
Australian citizen had been validly dissolved by a
divorce decree obtained in Australia in 1989; 12
thus, he was legally capacitated to marry
petitioner in 1994.
On July 7, 1998 or about five years after the
couple's wedding and while the suit for the
declaration of nullity was pending respondent
was able to secure a divorce decree from a family
court in Sydney, Australia because the "marriage
ha[d] irretrievably broken down." 13
Respondent prayed in his Answer that the
Complaint be dismissed on the ground that it
stated no cause of action. 14 The Office of the
Solicitor General agreed with respondent. 15 The
court marked and admitted the documentary
evidence of both parties. 16 After they submitted
their respective memoranda, the case was
submitted for resolution. 17
Thereafter, the trial court rendered the assailed
Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on
the ground that the divorce issued in Australia
was valid and recognized in the Philippines. It
deemed the marriage ended, but not on the basis
of any defect in an essential element of the

marriage; that is, respondent's alleged lack of

legal capacity to remarry. Rather, it based its
Decision on the divorce decree obtained by
respondent. The Australian divorce had ended the
marriage; thus, there was no more marital union
to nullify or annul. HDTISa
Hence, this Petition. 18

"1
The trial court gravely erred in finding that the
divorce decree obtained in Australia by the
respondent ipso facto terminated his first
marriage to Editha Samson thereby capacitating
him to contract a second marriage with the
petitioner.
"2
The failure of the respondent, who is now a
naturalized Australian, to present a certificate of
legal capacity to marry constitutes absence of a
substantial requisite voiding the petitioner's
marriage to the respondent.
"3
The trial court seriously erred in the application of
Art. 26 of the Family Code in this case.
"4
The trial court patently and grievously erred in
disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of
the Family Code as the applicable provisions in
this case.
"5
The trial court gravely erred in pronouncing that
the divorce decree obtained by the respondent in
Australia ipso facto capacitated the parties to
remarry, without first securing a recognition of
the judgment granting the divorce decree before
our courts." 19
The Petition raises five issues, but for purposes of
this Decision, we shall concentrate on two pivotal
ones: (1) whether the divorce between
respondent and Editha Samson was proven, and
(2) whether respondent was proven to be legally
capacitated to marry petitioner. Because of our
Code

Art

The Court's Ruling

The Petition is partly meritorious.
First Issue:
Proving the Divorce Between
Respondent and Editha Samson

Issues
Petitioner submits the following issues for our
consideration:

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Petitioner assails the trial court's recognition of

the divorce between respondent and Editha
Samson. Citing Adong v. Cheong Seng Gee, 20
petitioner argues that the divorce decree, like any
other foreign judgment, may be given recognition
in this jurisdiction only upon proof of the
existence of (1) the foreign law allowing absolute
divorce and (2) the alleged divorce decree itself.
She adds that respondent miserably failed to
establish these elements.
Petitioner adds that, based on the first paragraph
of Article 26 of the Family Code, marriages
solemnized abroad are governed by the law of
the place where they were celebrated (the lex loci
celebrationis). In effect, the Code requires the
presentation of the foreign law to show the
conformity of the marriage in question to the
legal requirements of the place where the
marriage was performed.
At the outset, we lay the following basic legal
principles as the take-off points for our
discussion. Philippine law does not provide for
absolute divorce; hence, our courts cannot grant
it. 21 A marriage between two Filipinos cannot be
dissolved even by a divorce obtained abroad,
because of Articles 15 22 and 17 23 of the Civil
Code. 24 In mixed marriages involving a Filipino
and a foreigner, Article 26 25 of the Family Code
allows the former to contract a subsequent
marriage in case the divorce is "validly obtained
abroad by the alien spouse capacitating him or
her to remarry." 26 A divorce obtained abroad by
a couple, who are both aliens, may be recognized
in the Philippines, provided it is consistent with
their respective national laws. 27
A comparison between marriage and divorce, as
far as pleading and proof are concerned, can be
made. Van Dorn v. Romillo Jr. decrees that "aliens
may obtain divorces abroad, which may be
recognized in the Philippines, provided they are
valid according to their national law." 28
Therefore, before a foreign divorce decree can be
recognized by our courts, the party pleading it
must prove the divorce as a fact and demonstrate
its conformity to the foreign law allowing it. 29

Presentation solely of the divorce decree is

insufficient. STHAID
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can
be admitted in evidence, it must first comply with
the registration requirements under Articles 11,
13 and 52 of the Family Code. These articles read
as follows:
"ART. 11.Where a marriage license is required,
each of the contracting parties shall file
separately a sworn application for such license
with the proper local civil registrar which shall
specify the following:
xxx xxx xxx
"(5)If previously married, how, when and where
the previous marriage was dissolved or annulled;
xxx xxx xxx"
"ART. 13.In case either of the contracting parties
has been previously married, the applicant shall
be required to furnish, instead of the birth or
baptismal certificate required in the last
preceding article, the death certificate of the
deceased spouse or the judicial decree of the
absolute divorce, or the judicial decree of
annulment or declaration of nullity of his or her
previous marriage. . . . .
"ART. 52.The judgment of annulment or of
absolute nullity of the marriage, the partition and
distribution of the properties of the spouses, and
the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil
registry and registries of property; otherwise, the
same shall not affect their persons."
Respondent, on the other hand, argues that the
Australian divorce decree is a public document
a written official act of an Australian family court.
Therefore, it requires no further proof of its
authenticity and due execution.
Respondent is getting ahead of himself. Before a
foreign
judgment
is
given
presumptive
evidentiary value, the document must first be
presented and admitted in evidence. 30 A divorce
obtained abroad is proven by the divorce decree
itself. Indeed the best evidence of a judgment is
the judgment itself. 31 The decree purports to be
a written act or record of an act of an 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
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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 respondent's cause, when the
divorce decree of May 18, 1989 was submitted in
evidence, counsel for petitioner objected, not to
its admissibility, but only to the fact that it had
not been registered in the Local Civil Registry of
Cabanatuan City. 36 The trial court ruled that it
was
admissible,
subject
to
petitioner's
qualification. 37 Hence, it was admitted in
evidence and accorded weight by the judge.
Indeed, petitioner's failure to object properly
rendered the divorce decree admissible as a
written act of the Family Court of Sydney,
Australia. 38
Compliance with the quoted articles (11, 13 and
52) of the Family Code is not necessary;
respondent was no longer bound by Philippine
personal laws after he acquired Australian
citizenship in 1992. 39 Naturalization is the legal
act of adopting an alien and clothing him with the
political and civil rights belonging to a citizen. 40
Naturalized citizens, freed from the protective
cloak of their former states, don the attires of
their adoptive countries. By becoming an
Australian, respondent severed his allegiance to
the Philippines and the vinculum juris that had
tied him to Philippine personal laws. aSDCIE
Burden of Proving Australian Law
Respondent contends that the burden to prove
Australian divorce law falls upon petitioner,
because she is the party challenging the validity
of a foreign judgment. He contends that
petitioner was satisfied with the original of the
divorce decree and was cognizant of the marital
laws of Australia, because she had lived and
worked in that country for quite a long time.
Besides, the Australian divorce law is allegedly
known by Philippine courts; thus, judges may
take judicial notice of foreign laws in the exercise
of sound discretion.

We are not persuaded. The burden of proof lies

with the "party who alleges the existence of a
fact or thing necessary in the prosecution or
defense of an action." 41 In civil cases, plaintiffs
have the burden of proving the material
allegations of the complaint when those are
denied by the answer; and defendants have the
burden of proving the material allegations in their
answer when they introduce new matters. 42
Since the divorce was a defense raised by
respondent, the burden of proving the pertinent
Australian law validating it falls squarely upon
him.
It is well-settled in our jurisdiction that our courts
cannot take judicial notice of foreign laws. 43 Like
any other facts, they must be alleged and proved.
Australian marital laws are not among those
matters that judges are supposed to know by
reason of their judicial function. 44 The power of
judicial notice must be exercised with caution,
and every reasonable doubt upon the subject
should be resolved in the negative.
Second Issue:
Respondent's Legal Capacity to Remarry
Petitioner contends that, in view of the
insufficient proof of the divorce, respondent was
legally incapacitated to marry her in 1994.
Hence, she concludes that their marriage was
void ab initio.
Respondent replies that the Australian divorce
decree, which was validly admitted in evidence,
adequately established his legal capacity to
marry under Australian law.
Respondent's contention is untenable. In its strict
legal sense, divorce means the legal dissolution
of a lawful union for a cause arising after
marriage. But divorces are of different types. The
two basic ones are (1) absolute divorce or a
vinculo matrimonii and (2) limited divorce or a
mensa et thoro. The first kind terminates the
marriage, while the second suspends it and
leaves the bond in full force. 45 There is no
showing in the case at bar which type of divorce
was procured by respondent.

Respondent presented a decree nisi or an

interlocutory decree a conditional or
provisional judgment of divorce. It is in effect the
same as a separation from bed and board,
although an absolute divorce may follow after the
lapse of the prescribed period during which no
reconciliation is effected. 46

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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 offense of
bigamy." 48
This quotation bolsters our contention that the
divorce obtained by respondent may have been
restricted. It did not absolutely establish his legal
capacity to remarry according to his national law.
Hence, we find no basis for the ruling of the trial
court, which erroneously assumed that the
Australian
divorce
ipso
facto
restored
respondent's capacity to remarry despite the
paucity of evidence on this matter.
We also reject the claim of respondent that the
divorce decree raises a disputable presumption or
presumptive evidence as to his civil status based
on Section 48, Rule 39 49 of the Rules of Court,
for the simple reason that no proof has been
presented on the legal effects of the divorce
decree obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal
capacity required by Article 21 of the Family Code
was not submitted together with the application
for a marriage license. According to her, its
absence is proof that respondent did not have
legal capacity to remarry.
We clarify. To repeat, the legal capacity to
contract marriage is determined by the national
law of the party concerned. The certificate
mentioned in Article 21 of the Family Code would
have been sufficient to establish the legal
capacity of respondent, had he duly presented it
in court. A duly authenticated and admitted
certificate is prima facie evidence of legal
capacity to marry on the part of the alien
applicant for a marriage license. 50
As it is, however, there is absolutely no evidence
that proves respondent's legal capacity to marry
petitioner. A review of the records before this
Court shows that only the following exhibits were
presented before the lower court: (1) for

petitioner: (a) Exhibit "A" Complaint; 51 (b)

Exhibit "B" Certificate of Marriage Between
Rederick A. Recio (Filipino-Australian) and Grace J.
Garcia (Filipino) on January 12, 1994 in
Cabanatuan City, Nueva Ecija; 52 (c) Exhibit "C"
Certificate of Marriage Between Rederick A.
Recio (Filipino) and Editha D. Samson (Australian)
on March 1, 1987 in Malabon, Metro Manila; 53
(d) Exhibit "D" Office of the City Registrar of
Cabanatuan City Certification that no information
of annulment between Rederick A. Recio and
Editha D. Samson was in its records; 54 and (e)
Exhibit "E" Certificate of Australian Citizenship
of Rederick A. Recio; 55 (2) for respondent: (a)
Exhibit "1" Amended Answer; 56 (b) Exhibit "2"
Family Law Act 1975 Decree Nisi of Dissolution
of Marriage in the Family Court of Australia; 57 (c)
Exhibit "3" Certificate of Australian Citizenship
of Rederick A. Recio; 58 (d) Exhibit "4" Decree
Nisi of Dissolution of Marriage in the Family Court
of Australia Certificate; 59 and Exhibit "5"
Statutory Declaration of the Legal Separation
Between Rederick A. Recio and Grace J. Garcia
Recio since October 22, 1995. 60 EHaASD
Based on the above records, we cannot conclude
that respondent, who was then a naturalized
Australian citizen, was legally capacitated to
marry petitioner on January 12, 1994. We agree
with petitioner's contention that the court a quo
erred in finding that the divorce decree ipso facto
clothed respondent with the legal capacity to
remarry without requiring him to adduce
sufficient evidence to show the Australian
personal law governing his status; or at the very
least, to prove his legal capacity to contract the
second marriage.
Neither can we grant petitioner's prayer to
declare her marriage to respondent null and void
on the ground of bigamy. After all, it may turn out
that under Australian law, he was really
capacitated to marry petitioner as a direct result
of the divorce decree. Hence, we believe that the
most judicious course is to remand this case to
the trial court to receive evidence, if any, which
show respondent's 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 respondent's
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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, Vitug and Sandoval-Gutierrez, JJ., concur.
SECOND DIVISION
[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.
SYLLABUS
1.REMEDIAL LAW; CRIMINAL PROCEDURE;
PROSECUTION OF OFFENSES; ADULTERY
AND
CONCUBINAGE;
SWORN
WRITTEN
COMPLAINT
OF
OFFENDED
SPOUSE,
JURISDICTIONAL. Under Article 344 of the
Revised Penal Code, the crime of adultery, as well
as four other crimes against chastity, cannot be
prosecuted except upon a sworn written
complaint filed by the offended spouse. It has
long since been established, with unwavering
consistency, that compliance with this rule is a
jurisdictional, and not merely a formal,
requirement. While in point of strict law the
jurisdiction of the court over the offense is vested
in it by the Judiciary Law, the requirement for a
sworn written complaint is just as jurisdictional a
mandate since it is that complaint which starts
the prosecutory proceeding and without which
the court cannot exercise its jurisdiction to try the
case.
2.ID.; ID.; ID.; EXCLUSIVE AND SUCCESSIVE
RULE IN THE PROSECUTION OF SEDUCTION,
ABDUCTION,
RAPE
AND
ACTS
OF
LASCIVIOUSNESS, NOT APPLICABLE TO
CONCUBINAGE AND ADULTERY. 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
partriae, was added and vested by the 1985
Rules of Criminal Procedure with the power to

initiate the criminal action for a deceased or

incapacitated victim in the aforesaid offenses of
seduction,
abduction,
rape
and
acts of
lasciviousness, in default of her parents,
grandparents or guardian, such amendment did
not include the crimes of adultery and
concubinage. In other words, only the offended
spouse, and no other, is authorized by law to
initiate the action therefor.
3.ID.; ID.; ID.; LEGAL CAPACITY TO SUE IN
CIVIL CASES, DETERMINED AS OF THE
FILING OF THE COMPLAINT, APPLIED TO
PROSECUTION OF CRIMINAL CASES.
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.
4.ID.; ID.; ID.; ID.; RATIONALE. This policy
was adopted out of consideration for the
aggrieved party who might prefer to suffer the
outrage in silence rather than go through the
scandal of a public trial. Hence, as cogently
argued by petitioner, Article 344 of the Revised
Penal Code thus presupposes that the marital
relationship is still subsisting at the time of the
institution of the criminal action for adultery. This
is a logical consequence since the raison d'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.
5.ID.;
ID.;
ID.;
ADULTERY
AND
CONCUBINAGE; AFTER A DIVORCE HAS BEEN
DECREED, THE INNOCENT SPOUSE NO
LONGER HAS THE RIGHT TO INSTITUTE
PROCEEDINGS AGAINST THE OFFENDERS.
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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.
6.ID.; ID.; ID.; ID.; U.S. RULE APPLIED IN
THIS JURISDICTION. 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.
7.CIVIL
LAW;
PERSONS
AND
FAMILY
RELATIONS; MARRIAGE IN THE FEDERAL
REPUBLIC
OF
GERMANY
BETWEEN
A
FILIPINA AND A GERMAN, RECOGNIZED IN
THE PHILIPPINES. 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 in
view of the nationality principle in our civil law on
the matter of status of persons.
8.ID.; ID.; ID.; SEVERANCE OF MATERIAL
BOND HAD THE EFFECT OF DISSOCIATING
THE FORMER SPOUSES FROM EACH OTHER.
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, 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.

9.REMEDIAL LAW; CRIMINAL PROCEDURE;

PROSECUTION OF OFFENSES; RULE IN MATA
CASE (18 PHIL. 4 90), NOT APPLICABLE TO
CASE AT BAR. 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.

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 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

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

Thereafter, marital discord set in, with mutual

recriminations between the spouses, followed by
a separation de facto between them.

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

DECISION
REGALADO, J p:
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.

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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
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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. LexLib
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
partriae, was added and vested by the 1985
Rules of Criminal Procedure with the power to
initiate the criminal action for a deceased or
incapacitated victim in the aforesaid offenses of
seduction,
abduction,
rape
and
acts of
lasciviousness, in default of her parents,
grandparents or guardian, such amendment did
not include the crimes of adultery and
concubinage. In other words, only the offended
spouse, and no other, is authorized by law to
initiate the action therefor.
Corollary to such exclusive grant of power to the
offended spouse to institute the action, it
necessarily follows that such initiator must have
the status, capacity or legal representation to do
so at the time of the filing of the criminal action.
This is a familiar and express rule in civil actions;
in fact, lack of legal capacity to sue, as a ground
for a motion to dismiss in civil cases, is
determined as of the filing of the complaint or
petition.

The absence of an equivalent explicit rule in the

prosecution of criminal cases does not mean that
the same requirement and rationale would not
apply. Understandably, it may not have been
found necessary since criminal actions are
generally and fundamentally commenced by the
State, through the People of the Philippines, the
offended party being merely the complaining
witness therein. However, in the so-called
"private crimes", or those which cannot be
prosecuted de oficio, and the present prosecution
for adultery is of such genre, the offended spouse
assumes a more predominant role since the right
to commence the action, or to refrain therefrom,
is a matter exclusively within his power and
option.
This policy was adopted out of consideration for
the aggrieved party who might prefer to suffer
the outrage in silence rather than go through the
scandal of a public trial. 20 Hence, as cogently
argued by petitioner, Article 344 of the Revised
Penal Code thus presupposes that the marital
relationship is still subsisting at the time of the
institution of the criminal action for adultery. This
is a logical consequence since the raison d'etre of
said provision of law would be absent where the
supposed offended party had ceased to be the
spouse of the alleged offender at the time of the
filing of the criminal case. 21
In these cases, therefore, it is indispensable that
the status and capacity of the complainant to
commence the action be definitely established
and, as already demonstrated, such status or
capacity must indubitably exist as of the time he
initiates the action. It would be absurd if his
capacity to bring the action would be determined
by his status before or subsequent to the
commencement thereof, where such capacity or
status existed prior to but ceased before, or was
acquired subsequent to but did not exist at the
time of, the institution of the case. We would
thereby have the anomalous spectacle of a party
bringing suit at the very time when he is without
the legal capacity to do so.
To repeat, there does not appear to be any local
precedential jurisprudence on the specific issue
as to when precisely the status of a complainant
as an offended spouse must exist where a
criminal prosecution can be commenced only by
one who in law can be categorized as possessed
of such status. Stated differently and with
reference to the present case, the inquiry would
be whether it is necessary in the commencement
of a criminal action for adultery that the marital
bonds between the complainant and the accused
be unsevered and existing at the time of the
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institution of the action by the former against the

latter. cdphil
American jurisprudence, on cases involving
statutes in that jurisdiction which are in pari
materia with ours, yields the rule that after a
divorce has been decreed, the innocent spouse
no longer has the right to institute proceedings
against the offenders where the statute provides
that the innocent spouse shall have the exclusive
right to institute a prosecution for adultery.
Where, however, proceedings have been properly
commenced, a divorce subsequently granted can
have no legal effect on the prosecution of the
criminal proceedings to a conclusion. 22

In the cited Loftus case, the Supreme Court of

Iowa held that
" 'No prosecution for adultery can be commenced
except on the complaint of the husband or wife.'
Section 4932, Code. Though Loftus was husband
of defendant when the offense is said to have
been committed, he had ceased to be such when
the prosecution was begun; and appellant insists
that his status was not such as to entitle him to
make the complaint. We have repeatedly said
that the offense is against the unoffending
spouse, as well as the state, in explaining the
reason for this provision in the statute; and we
are of the opinion that the unoffending spouse
must be such when the prosecution is
commenced." (Emphasis supplied.)
We see no reason why the same doctrinal rule
should not apply in this case and in our
jurisdiction, considering our statutory law and
jural policy on the matter. We are convinced that
in cases of such nature, the status of the
complainant vis-a-vis the accused must be
determined as of the time the complaint was
filed. Thus, the person who initiates the adultery
case must be an offended spouse, and by this is
meant that he is still married to the accused
spouse, at the time of the filing of the complaint.
In the present case, the fact that private
respondent obtained a valid divorce in his
country, the Federal Republic of Germany, is
admitted. Said divorce and its legal effects may
be recognized in the Philippines insofar as private
respondent is concerned 23 in view of the
nationality principle in our civil law on the matter
of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo,
Jr., et al., 24 after a divorce was granted by a
United States court between Alice Van Dorn, a

Filipina, and her American husband, the latter

filed a civil case in a trial court here alleging that
her business concern was conjugal property and
praying that she be ordered to render an
accounting and that the plaintiff be granted the
right to manage the business. Rejecting his
pretensions,
this
Court
perspicuously
demonstrated the error of such stance, thus:
"There can be no question as to the validity of
that Nevada divorce in any of the States of the
United States. The decree is binding on private
respondent as an American citizen. For instance,
private respondent cannot sue petitioner, as her
husband, in any State of the Union . . .
"It is true that owing to the nationality principle
embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy
against absolute divorces the same being
considered contrary to our concept of public
policy and morality. However, aliens may obtain
divorces abroad, which may be recognized in the
Philippines, provided they are valid according to
their national law . . .
"Thus, pursuant to his national law, private
respondent is no longer the husband of petitioner.
He would have no standing to sue in the case
below as petitioner's husband entitled to exercise
control over conjugal assets . . ." 25
Under the same considerations and rationale,
private respondent, being no longer the husband
of petitioner, had no legal standing to commence
the adultery case under the imposture that he
was the offended spouse at the time he filed suit.
The allegation of private respondent that he could
not have brought this case before the decree of
divorce for lack of knowledge, even if true, is of
no legal significance or consequence in this case.
When said respondent initiated the divorce
proceeding, he obviously knew that there would
no longer be a family nor marriage vows to
protect once a dissolution of the marriage is
decreed. Neither would there be a danger of
introducing spurious heirs into the family, which
is said to be one of the reasons for the particular
formulation of our law on adultery, 26 since there
would thenceforth be no spousal relationship to
speak of. The severance of the marital bond had
the effect of dissociating the former spouses from
each other, hence the actuations of one would
not affect or cast obloquy on the other.
The aforecited case of United States vs. Mata
cannot be successfully relied upon by private
respondent. In applying Article 433 of the old
Penal Code, substantially the same as Article 333
of the Revised Penal Code, which punished
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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, herein before cited, 27 must
suffer the same fate of inapplicability. A cursory
reading of said case reveals that the offended
spouse therein had duly and seasonably filed a
complaint for adultery, although an issue was
raised as to its sufficiency but which was resolved
in favor of the complainant. Said case did not
involve a factual situation akin to the one at bar
or any issue determinative of the controversy
herein.
WHEREFORE, the questioned order denying
petitioner's motion to quash is SET ASIDE and
another one entered DISMISSING the complaint in
Criminal Case No. 87-52435 for lack of
jurisdiction. The temporary restraining order
issued in this case on October 21, 1987 is hereby
made permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ .,
concur.
FIRST DIVISION
[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.
DECISION

MELENCIO-HERRERA, J p:
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 We consider the
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petition filed in this case within the exception,

and we have given it due course.
For resolution is the effect of the foreign divorce
on the parties and their alleged conjugal property
in the Philippines.
Petitioner contends that respondent is estopped
from laying claim on the alleged conjugal
property because of the representation he made
in the divorce proceedings before the American
Court that they had no community of property;
that the Galleon Shop was not established
through conjugal funds; and that respondent's
claim is barred by prior judgment.
For his part, respondent avers that the Divorce
Decree issued by the Nevada Court cannot
prevail over the prohibitive laws of the Philippines
and its declared national policy; that the acts and
declaration of a foreign Court cannot, especially if
the same is contrary to public policy, divest
Philippine Courts of jurisdiction to entertain
matters within its jurisdiction.
For the resolution of this case, it is not necessary
to determine whether the property relations
between petitioner and private respondent, after
their marriage, were upon absolute or relative
community property, upon complete separation
of property, or upon any other regime. The
pivotal fact in this case is the Nevada divorce of
the parties.
The Nevada District Court, which decreed the
divorce, had obtained jurisdiction over petitioner
who appeared in person before the Court during
the trial of the case. It also obtained jurisdiction
over private respondent who, giving his address
as No. 381 Bush Street, San Francisco, California,
authorized his attorneys in the divorce case, Karp
& Gradt, Ltd., to agree to the divorce on the
ground of incompatibility in the understanding
that there were neither community property nor
community obligations. 3 As explicitly stated in
the Power of Attorney he executed in favor of the
law firm of KARP & GRAD LTD., 336 W. Liberty,
Reno, Nevada, to represent him in the divorce
proceedings:
xxx xxx xxx
"You are hereby authorized to accept service of
Summons, to file an Answer, appear on my behalf
and do all 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.That 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
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. 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. cdll
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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.
FIRST DIVISION
[G.R. No. 154380. October 5, 2005.]
REPUBLIC OF THE PHILIPPINES, petitioner, vs.
CIPRIANO ORBECIDO III, respondent.
DECISION
QUISUMBING, J p:
Given a valid marriage between two Filipino
citizens, where one party is later naturalized as a
foreign citizen and obtains a valid divorce decree
capacitating him or her to remarry, can the
Filipino spouse likewise remarry under Philippine
law?
Before us is a case of first impression that
behooves the Court to make a definite ruling on
this apparently novel question, presented as a
pure question of law.
In this petition for review, the Solicitor General
assails the Decision 1 dated May 15, 2002, of the
Regional Trial Court of Molave, Zamboanga del
Sur, Branch 23 and its Resolution 2 dated July 4,
2002 denying the motion for reconsideration. The
court a quo had declared that herein respondent
Cipriano Orbecido III is capacitated to remarry.
The fallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of the
second paragraph of Art. 26 of the Family Code
and by reason of the divorce decree obtained
against him by his American wife, the petitioner
is given the capacity to remarry under the
Philippine Law.

IT IS SO ORDERED. 3
The factual antecedents, as narrated by the trial
court, are as follows.
On May 24, 1981, Cipriano Orbecido III married
Lady Myros M. Villanueva at the United Church of
Christ in the Philippines in Lam-an, Ozamis City.
Their marriage was blessed with a son and a
daughter, Kristoffer Simbortriz V. Orbecido and
Lady Kimberly V. Orbecido.
In 1986, Cipriano's wife left for the United States
bringing along their son Kristoffer. A few years
later, Cipriano discovered that his wife had been
naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son
that his wife had obtained a divorce decree and
then married a certain Innocent Stanley. She,
Stanley and her child by him currently live at
5566 A. Walnut Grove Avenue, San Gabriel,
California.
Cipriano thereafter filed with the trial court a
petition for authority to remarry invoking
Paragraph 2 of Article 26 of the Family Code. No
opposition was filed. Finding merit in the petition,
the court granted the same. The Republic, herein
petitioner, through the Office of the Solicitor
General (OSG), sought reconsideration but it was
denied.
In this petition, the OSG raises a pure question of
law:
WHETHER OR NOT RESPONDENT CAN REMARRY
UNDER ARTICLE 26 OF THE FAMILY CODE 4
The OSG contends that Paragraph 2 of Article 26
of the Family Code is not applicable to the instant
case because it only applies to a valid mixed
marriage; that is, a marriage celebrated between
a Filipino citizen and an alien. The proper remedy,
according to the OSG, is to file a petition for
annulment or for legal separation. 5 Furthermore,
the OSG argues there is no law that governs
respondent's situation. The OSG posits that this is
a matter of legislation and not of judicial
determination. 6
For his part, respondent admits that Article 26 is
not directly applicable to his case but insists that
when his naturalized alien wife obtained a divorce
decree which capacitated her to remarry, he is
likewise capacitated by operation of law pursuant
to Section 12, Article II of the Constitution. 7

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At the outset, we note that the petition for

authority to remarry filed before the trial court
actually constituted a petition for declaratory
relief. In this connection, Section 1, Rule 63 of the
Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1.Who may file petition Any person
interested under a deed, will, contract or other
written instrument, or whose rights are affected
by a statute, executive order or regulation,
ordinance, or other governmental regulation may,
before breach or violation thereof, bring an action
in the appropriate Regional Trial Court to
determine any question of construction or validity
arising, and for a declaration of his rights or
duties, thereunder.
xxx xxx xxx
The requisites of a petition for declaratory relief
are: (1) there must be a justiciable controversy;
(2) the controversy must be between persons
whose interests are adverse; (3) that the party
seeking the relief has a legal interest in the
controversy; and (4) that the issue is ripe for
judicial determination. 8
This case concerns the applicability of Paragraph
2 of Article 26 to a marriage between two Filipino
citizens where one later acquired alien
citizenship, obtained a divorce decree, and
remarried while in the U.S.A. The interests of the
parties
are
also
adverse,
as
petitioner
representing the State asserts its duty to protect
the institution of marriage while respondent, a
private citizen, insists on a declaration of his
capacity to remarry. Respondent, praying for
relief, has legal interest in the controversy. The
issue raised is also ripe for judicial determination
inasmuch as when respondent remarries,
litigation ensues and puts into question the
validity of his second marriage.
Coming now to the substantive issue, does
Paragraph 2 of Article 26 of the Family Code apply
to the case of respondent? Necessarily, we must
dwell on how this provision had come about in
the first place, and what was the intent of the
legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino
signed into law Executive Order No. 209,
otherwise known as the "Family Code," which
took effect on August 3, 1988. Article 26 thereof
states:

All marriages solemnized outside the Philippines

in accordance with the laws in force in the
country where they were solemnized, and valid
there as such, shall also be valid in this country,
except those prohibited under Articles 35, 37, and
38.
On July 17, 1987, shortly after the signing of the
original Family Code, Executive Order No. 227
was likewise signed into law, amending Articles
26, 36, and 39 of the Family Code. A second
paragraph was added to Article 26. As so
amended, it now provides:
ART. 26.All marriages solemnized outside the
Philippines in accordance with the laws in force in
the country where they were solemnized, and
valid there as such, shall also be valid in this
country, except those prohibited under Articles
35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry
under Philippine law. (Emphasis supplied)
On its face, the foregoing provision does not
appear to govern the situation presented by the
case at hand. It seems to apply only to cases
where at the time of the celebration of the
marriage, the parties are a Filipino citizen and a
foreigner. The instant case is one where at the
time the marriage was solemnized, the parties
were two Filipino citizens, but later on, the wife
was naturalized as an American citizen and
subsequently obtained a divorce granting her
capacity to remarry, and indeed she remarried an
American citizen while residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings
9 on the Family Code, the Catholic Bishops'
Conference of the Philippines (CBCP) registered
the following objections to Paragraph 2 of Article
26:
1.The rule is discriminatory. It discriminates
against those whose spouses are Filipinos who
divorce them abroad. These spouses who are
divorced will not be able to re-marry, while the
spouses of foreigners who validly divorce them
abroad can.
2.This is the beginning of the recognition of the
validity of divorce even for Filipino citizens. For
those whose foreign spouses validly divorce them
abroad will also be considered to be validly
divorced here and can re-marry. We propose that
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this be deleted and made into law only after more

widespread consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code
deliberations showed that the intent of Paragraph
2 of Article 26, according to Judge Alicia SempioDiy, a member of the Civil Code Revision
Committee, is to avoid the absurd situation where
the Filipino spouse remains married to the alien
spouse who, after obtaining a divorce, is no
longer married to the Filipino spouse. AETcSa
Interestingly, Paragraph 2 of Article 26 traces its
origin to the 1985 case of Van Dorn v. Romillo, Jr.
10 The Van Dorn case involved a marriage
between a Filipino citizen and a foreigner. The
Court held therein that a divorce decree validly
obtained by the alien spouse is valid in the
Philippines, and consequently, the Filipino spouse
is capacitated to remarry under Philippine law.
Does the same principle apply to a case where at
the time of the celebration of the marriage, the
parties were Filipino citizens, but later on, one of
them
obtains
a
foreign
citizenship
by
naturalization?
The jurisprudential answer lies latent in the 1998
case of Quita v. Court of Appeals. 11 In Quita, the
parties were, as in this case, Filipino citizens
when they got married. The wife became a
naturalized American citizen in 1954 and
obtained a divorce in the same year. The Court
therein hinted, by way of obiter dictum, that a
Filipino divorced by his naturalized foreign spouse
is no longer married under Philippine law and can
thus remarry.
Thus, taking into consideration the legislative
intent and applying the rule of reason, we hold
that Paragraph 2 of Article 26 should be
interpreted to include cases involving parties
who, at the time of the celebration of the
marriage were Filipino citizens, but later on, one
of them becomes naturalized as a foreign citizen
and obtains a divorce decree. The Filipino spouse
should likewise be allowed to remarry as if the
other party were a foreigner at the time of the
solemnization of the marriage. To rule otherwise
would be to sanction absurdity and injustice.
Where the interpretation of a statute according to
its exact and literal import would lead to
mischievous results or contravene the clear
purpose of the legislature, it should be construed
according to its spirit and reason, disregarding as
far as necessary the letter of the law. A statute
may therefore be extended to cases not within
the literal meaning of its terms, so long as they
come within its spirit or intent. 12

If we are to give meaning to the legislative intent

to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who,
after obtaining a divorce is no longer married to
the Filipino spouse, then the instant case must be
deemed as coming within the contemplation of
Paragraph 2 of Article 26. AHDTIE
In view of the foregoing, we state the twin
elements for the application of Paragraph 2 of
Article 26 as follows:
1.There is a valid marriage that has been
celebrated between a Filipino citizen and a
foreigner; and
2.A valid divorce is obtained abroad by the alien
spouse capacitating him or her to remarry.
The reckoning point is not the citizenship of the
parties at the time of the celebration of the
marriage, but their citizenship at the time a valid
divorce is obtained abroad by the alien spouse
capacitating the latter to remarry.
In this case, when Cipriano's wife was naturalized
as an American citizen, there was still a valid
marriage that has been celebrated between her
and Cipriano. As fate would have it, the
naturalized alien wife subsequently obtained a
valid divorce capacitating her to remarry. Clearly,
the twin requisites for the application of
Paragraph 2 of Article 26 are both present in this
case. Thus Cipriano, the "divorced" Filipino
spouse, should be allowed to remarry.
We are also unable to sustain the OSG's theory
that the proper remedy of the Filipino spouse is to
file either a petition for annulment or a petition
for legal separation. Annulment would be a long
and tedious process, and in this particular case,
not even feasible, considering that the marriage
of the parties appears to have all the badges of
validity. On the other hand, legal separation
would not be a sufficient remedy for it would not
sever the marriage tie; hence, the legally
separated Filipino spouse would still remain
married to the naturalized alien spouse.
However, we note that the records are bereft of
competent
evidence
duly
submitted
by
respondent concerning the divorce decree and
the naturalization of respondent's wife. It is

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settled rule that one who alleges a fact has the

burden of proving it and mere allegation is not
evidence. 13
Accordingly, for his plea to prosper, respondent
herein must prove his allegation that his wife was
naturalized as an American citizen. Likewise,
before a foreign divorce decree can be recognized
by our own courts, the party pleading it must
prove the divorce as a fact and demonstrate its
conformity to the foreign law allowing it. 14 Such
foreign law must also be proved as our courts
cannot take judicial notice of foreign laws. Like
any other fact, such laws must be alleged and
proved. 15 Furthermore, respondent must also
show that the divorce decree allows his former
wife to remarry as specifically required in Article
26. Otherwise, there would be no evidence
sufficient to declare that he is capacitated to
enter into another marriage.
Nevertheless, we are unanimous in our holding
that Paragraph 2 of Article 26 of the Family Code
(E.O. No. 209, as amended by E.O. No. 227),
should be interpreted to allow a Filipino citizen,
who has been divorced by a spouse who had
acquired foreign citizenship and remarried, also
to remarry. However, considering that in the
present petition there is no sufficient evidence
submitted and on record, we are unable to
declare, based on respondent's bare allegations
that his wife, who was naturalized as an American
citizen, had obtained a divorce decree and had
remarried an American, that respondent is now
capacitated to remarry. Such declaration could
only be made properly upon respondent's
submission of the aforecited evidence in his favor.
CcAHEI
ACCORDINGLY, the petition by the Republic of the
Philippines is GRANTED. The assailed Decision
dated May 15, 2002, and Resolution dated July 4,
2002, of the Regional Trial Court of Molave,
Zamboanga del Sur, Branch 23, are hereby SET
ASIDE.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Ynares-Santiago, Carpio and
Azcuna, JJ., concur.