Republic of the Philippines

Regional Trial Court

Branch 1, Cebu City
A,
Plaintiff,
- versus -

Civil Case No. 00001

.
B,
Defendant.
x--------------------------------------x

PLAINTIFFS POSITION PAPER

PLAINTIFF unto this Honorable Court, most respectfully submit this
position Paper, and state:
STATEMENT OF THE CASE
A, Filipina, married B, foreigner, they married in the Philippines.
They live in Canada.
B, divorced the A
A, want to remarry.

STATEMENT OF THE FACTS

A, Filipina, married B, foreigner, they married in the Philippines.
They live in Canada.
B, divorced the A
A, want to remarry.

ISSUE
WHETHER OR NOT THE FILIPINA WIFE CAN REMARRY

DISCUSSIONS
PLAINTIFF CAN REMARRY
-------------------------------------------Article 26, par. 2, allows a Filipino citizen divorced by a spouse to also
remarry, and its intent.
-------------------------------------------Plaintiff A is entitled to remarry, under the second paragraph of
Article 26 of The Family Code of the Philippines;
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained and a divorce
is thereafter validly obtained abroad by the alien spouse capacitating him
or her to remarry, the Filipino spouse shall likewise have capacity to
remarry under Philippine Law.
The intent of Paragraph 2 of Article 26 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.( Edgar San Luis vs. Felicidad San Luis, G.R. Nos. 133743 & 134029,
February 6, 2007; Republic of the Phil. vs. Cipriano Orbecido III, G.R. No. 154380,
October 5, 2005; Alice Reyes Van Dorn vs. Manuel V. Romillo, Jr., et al., G.R. No. L68470, October 8, 1985).

Essentially, the second paragraph of Article 26 of the Family Code

provided the Filipino spouse a substantive right to have his or her marriage
to the alien spouse considered as dissolved, capacitating him or her to
remarry. (Gerbert R. Corpuz vs. Daisylyn Tirol Sto. Tomas, et al., G.R. No. 186571,
August 11, 2010).
An

action based on the second paragraph of Article 26 of the

Family Code is not limited to the recognition of the foreign divorce decree.
If the court finds that the decree capacitated the alien spouse to remarry,
the courts can declare that the Filipino spouse is likewise capacitated to
contract another marriage. (Gerbert R. Corpuz vs. Daisylyn Tirol Sto. Tomas, et
al., G.R. No. 186571, August 11, 2010).

Defendant Bs positive act of obtaining a divorce decree in Canada

is a proof that the marital status of the wife have ceased.
Without

the second paragraph of Article 26 of the Family Code, the

judicial recognition of the foreign decree of divorce, whether in a
proceeding instituted precisely for that purpose or as a related issue in
another proceeding, would be of no significance to the Filipino spouse
since our laws do not recognize divorce as a mode of severing the marital
bond; Article 17 of the Civil Code provides that the policy against absolute
divorces cannot be subverted by judgments promulgated in a foreign
country. The inclusion of the second paragraph in Article 26 of the Family
Code provides the direct exception to this rule and serves as basis for

recognizing the dissolution of the marriage between the Filipino spouse

and his or her alien spouse.( Gerbert R. Corpuz vs. Daisylyn Tirol Sto. Tomas, et
al., G.R. No. 186571, August 11, 2010).

PROOF OF FACT AND VALIDITY OF DIVORCE DECREE

-------------------------------------------------------------------------------

Plaintiff A attached Annex A a decree of divorce capacitating him to

remarry obtained by defendant B in Canada as an evidence of fact and
validity of the decree of divorce. In the case of Garcia vs Recio, G.R. No.
138322, Oct. 2, 2001, the Supreme Court had a occasion to discuss the
best evidence to be presented in court as a proof that there was in fact a
divorce decree, to wit;
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 officially 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.
Under the first paragraph of Article 17 of the Civil Code of the
Philippines it states that The forms and solemnities of contracts, wills, and
other public instruments shall be governed by the laws of the country
which they are executed.
Here, defendant is a national of Canada and the decree of divorce
was obtained in Canada. Hence, law of Canada will govern the decree of
divorce and considered as a public document according to our Philippine
law, under Sec. 19, Rule 132 of the Rules of Court;
Public documents are:
(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public
officers, whether of the Philippines, or of a foreign country.
WHEREFORE, premises considered, it is most respectfully prayed
that this honorable court render judgment in favor of plaintiff A to allow her
to remarry.
Cebu City Philippines, December 1, 2015.

Atty. NIVLA YACADAD

Counsel for the plaintif

L-Flores St. Pasil Cebu City, Philippines

P.T.R. No. 00000 * Cebu City * Jan. 5, 2015
I.B.P No. 100000 * Cebu City * Feb. 1, 2015
MCLE No. IV 000001 * Cebu City * May 1, 2014
Roll No. 00002
EXPLANATION
A copy of this position paper is being furnished to defendants
counsel not by personal service but by registered mail due to time
constraint.

NIVLA YACADAD
VERIFICATION
I, A, of legal age and Filipino, after having been duly sworn to in
accordance with law, depose and state THAT:
I am the Plaintiff in the above entitled case; I have caused the
preparation of the foregoing document and I have read the same and the
contents of which are true and correct of my own knowledge and/or on the
basis of authentic documents.
AFFIANT SAYETH NAUGHT.
In witness whereof, I hereunto affix my signature this Dec, 1, 2015.
A,
Affiant
REPUBLIC OF THE PHILIPPINES)
CEBU CITY
)SS.
SUBSCRIBED AND SWORN to before me this December 1, 2015;
affaint exhibiting to me his TIN I.D. No. 100-000-000-000.
WITNESS MY HAND AND SEAL this December 1, 2015.
DOC. NO._______
PAGE NO._______
BOOK NO._______

NOTARY PUBLIC

SERIES OF 2015.
Copy furnished by registered mail
Registry Receipt No.__________
Cebu City Post Office
Date: December 1, 2015
Atty. Wael Hi
Counsel for the Defendant
3rd floor Gubaon Bldg.
A.C. Cortes Mandaue City