G.R. No.
174689 October 22, 2007 transform himself to a "woman" culminated on
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the
likeness of God; He created them male and
female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by
Bathala and she heard voices coming from inside
the bamboo. "Oh North Wind! North Wind!
Please let us out!," the voices said. She pecked the
reed once, then twice. All of a sudden, the
bamboo cracked and slit open. Out came two
human beings; one was a male and the other was
a female. Amihan named the man "Malakas"
(Strong) and the woman "Maganda" (Beautiful).
(The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman?
In particular, does the law recognize the changes made
by a physician using scalpel, drugs and counseling
with regard to a person’s sex? May a person
successfully petition for a change of name and sex
appearing in the birth certificate to reflect the result of
a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto
Dantes Silverio filed a petition for the change of his
first name and sex in his birth certificate in the
Regional Trial Court of Manila, Branch 8. The petition,
docketed as SP Case No. 02-105207, impleaded the
civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in
the City of Manila to the spouses Melecio Petines
Silverio and Anita Aquino Dantes on April 4, 1962. His
name was registered as "Rommel Jacinto Dantes
Silverio" in his certificate of live birth (birth
certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is,
"anatomically male but feels, thinks and acts as a
female" and that he had always identified himself with
girls since childhood.1 Feeling trapped in a man’s body,
he consulted several doctors in the United States. He
underwent psychological examination, hormone
treatment and breast augmentation. His attempts to
January 27, 2001 when he underwent sex
reassignment surgery2 in Bangkok, Thailand. He was
thereafter examined by Dr. Marcelino Reysio-Cruz, Jr.,
a plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate attesting
that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in
fact engaged to be married. He then sought to have his
name in his birth certificate changed from "Rommel
Jacinto" to "Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was
published in the People’s Journal Tonight, a
newspaper of general circulation in Metro Manila, for
three consecutive weeks.3 Copies of the order were
sent to the Office of the Solicitor General (OSG) and the
civil registrar of Manila.
On the scheduled initial hearing, jurisdictional
requirements were established. No opposition to the
petition was made.
During trial, petitioner testified for himself. He also
presented Dr. Reysio-Cruz, Jr. and his American fiancé,
Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in
favor of petitioner. Its relevant portions read:
Petitioner filed the present petition not to
evade any law or judgment or any infraction
thereof or for any unlawful motive but solely
for the purpose of making his birth records
compatible with his present sex.
The sole issue here is whether or not petitioner
is entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that
granting the petition would be more in
consonance with the principles of justice and
equity. With his sexual [re-assignment],
petitioner, who has always felt, thought and
acted like a woman, now possesses the
physique of a female. Petitioner’s misfortune to
be trapped in a man’s body is not his own doing
and should not be in any way taken against
him.
 Likewise, the [c]ourt believes that no harm,
injury [or] prejudice will be caused to anybody
or the community in granting the petition. On
the contrary, granting the petition would bring
the much-awaited happiness on the part of the
petitioner and her [fiancé] and the realization
of their dreams.
Finally, no evidence was presented to show any
cause or ground to deny the present petition
despite due notice and publication thereof.
Even the State, through the [OSG] has not seen
fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered
GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries
appearing in the Certificate of Birth of
[p]etitioner, specifically for petitioner’s first
name from "Rommel Jacinto" to MELY and
petitioner’s gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines
(Republic), thru the OSG, filed a petition for certiorari
in the Court of Appeals.6 It alleged that there is no law
allowing the change of entries in the birth certificate
by reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered
a decision8 in favor of the Republic. It ruled that the
trial court’s decision lacked legal basis. There is no law
allowing the change of either name or sex in the
certificate of birth on the ground of sex reassignment
through surgery. Thus, the Court of Appeals granted
the Republic’s petition, set aside the decision of the
trial court and ordered the dismissal of SP Case No.
02-105207. Petitioner moved for reconsideration but
it was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his
name and sex in his birth certificate is allowed under
Articles 407 to 413 of the Civil Code, Rules 103 and
108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Person’s First Name Cannot Be Changed On the
Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the ground
for his petition for change of name and sex. As found
by the trial court:
Petitioner filed the present petition not to
evade any law or judgment or any infraction
thereof or for any unlawful motive but solely
for the purpose of making his birth records
compatible with his present sex. (emphasis
supplied)
Petitioner believes that after having acquired the
physical features of a female, he became entitled to the
civil registry changes sought. We disagree.
The State has an interest in the names borne by
individuals and entities for purposes of
identification. A change of name is a privilege, not a
11
right.12 Petitions for change of name are controlled by
statutes.13 In this connection, Article 376 of the Civil
Code provides:
ART. 376. No person can change his name or
surname without judicial authority.
This Civil Code provision was amended by RA 9048
(Clerical Error Law). In particular, Section 1 of RA
9048 provides:
SECTION 1. Authority to Correct Clerical or
Typographical Error and Change of First Name
or Nickname. – No entry in a civil register shall
be changed or corrected without a judicial
order, except for clerical or typographical
errors and change of first name or nickname
which can be corrected or changed by the
concerned city or municipal civil registrar or
consul general in accordance with the
provisions of this Act and its implementing
rules and regulations.
RA 9048 now governs the change of first name.14 It
vests the power and authority to entertain petitions
for change of first name to the city or municipal civil
registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of
first name is now primarily lodged with the
aforementioned administrative officers. The intent and
effect of the law is to exclude the change of first name
from the coverage of Rules 103 (Change of Name) and
108 (Cancellation or Correction of Entries in the Civil
Registry) of the Rules of Court, until and unless an
administrative petition for change of name is first filed
and subsequently denied.15 It likewise lays down the
corresponding venue,16 form17 and procedure. In sum,
the remedy and the proceedings regulating change of
first name are primarily administrative in nature, not
judicial.
RA 9048 likewise provides the grounds for which
change of first name may be allowed:
SECTION 4. Grounds for Change of First Name or
Nickname. – The petition for change of first
name or nickname may be allowed in any of the
following cases:
(1) The petitioner finds the first name or
nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or
pronounce;
(2) The new first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known by
that first name or nickname in the community;
or
(3) The change will avoid confusion.
Petitioner’s basis in praying for the change of his first
name was his sex reassignment. He intended to make
his first name compatible with the sex he thought he
transformed himself into through surgery. However, a
change of name does not alter one’s legal capacity or
civil status.18 RA 9048 does not sanction a change of
first name on the ground of sex reassignment. Rather
than avoiding confusion, changing petitioner’s first
name for his declared purpose may only create grave
complications in the civil registry and the public
interest.
Before a person can legally change his given name, he
must present proper or reasonable cause or any
compelling reason justifying such change.19 In
addition, he must show that he will be prejudiced by
the use of his true and official name.20 In this case, he
failed to show, or even allege, any prejudice that he
might suffer as a result of using his true and official
name.
In sum, the petition in the trial court in so far as it
prayed for the change of petitioner’s first name was
not within that court’s primary jurisdiction as the
petition should have been filed with the local civil
registrar concerned, assuming it could be legally done.
It was an improper remedy because the proper
remedy was administrative, that is, that provided
under RA 9048. It was also filed in the wrong venue as
the proper venue was in the Office of the Civil
Registrar of Manila where his birth certificate is kept.
More importantly, it had no merit since the use of his
true and official name does not prejudice him at all.
For all these reasons, the Court of Appeals correctly
dismissed petitioner’s petition in so far as the change
of his first name was concerned.
No Law Allows The Change of Entry In The Birth
Certificate As To Sex On the Ground of Sex
Reassignment
The determination of a person’s sex appearing in his
birth certificate is a legal issue and the court must look
to the statutes.21 In this connection, Article 412 of the
Civil Code provides:
ART. 412. No entry in the civil register shall be
changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this
provision was amended by RA 9048 in so far
as clerical or typographical errors are involved. The
correction or change of such matters can now be made
through administrative proceedings and without the
need for a judicial order. In effect, RA 9048 removed
from the ambit of Rule 108 of the Rules of Court the
correction of such errors.22 Rule 108 now applies only
to substantial changes and corrections in entries in the
civil register.23
Section 2(c) of RA 9048 defines what a "clerical or
typographical error" is:
SECTION 2. Definition of Terms. – As used in this
Act, the following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error"
refers to a mistake committed in the
performance of clerical work in writing,
copying, transcribing or typing an entry
in the civil register that is harmless and
innocuous, such as misspelled name or
misspelled place of birth or the like,
which is visible to the eyes or obvious to
the understanding, and can be corrected
or changed only by reference to other
existing record or records: Provided,
however, That no correction must
involve the change of nationality, age,
status or sex of the petitioner.
(emphasis supplied)
Under RA 9048, a correction in the civil registry
involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for
which the applicable procedure is Rule 108 of the
Rules of Court.
The entries envisaged in Article 412 of the Civil Code
and correctable under Rule 108 of the Rules of Court
are those provided in Articles 407 and 408 of the Civil
Code:24
ART. 407. Acts, events and judicial decrees
concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the
civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of
name.
The acts, events or factual errors contemplated under
Article 407 of the Civil Code include even those that
occur after birth.25 However, no reasonable
interpretation of the provision can justify the
conclusion that it covers the correction on the ground
of sex reassignment.
To correct simply means "to make or set aright; to
remove the faults or error from" while to change
means "to replace something with something else of
the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner
contained no error. All entries therein, including those
corresponding to his first name and sex, were all
correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the
civil registry of certain acts (such as legitimations,
acknowledgments of illegitimate children and
naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such
as legal separations, annulments of marriage,
declarations of nullity of marriages, adoptions,
naturalization, loss or recovery of citizenship, civil
interdiction, judicial determination of filiation and
changes of name). These acts, events and judicial
decrees produce legal consequences that touch upon
the legal capacity, status and nationality of a person.
Their effects are expressly sanctioned by the laws. In
contrast, sex reassignment is not among those acts or
events mentioned in Article 407. Neither is it
recognized nor even mentioned by any law, expressly
or impliedly.
"Status" refers to the circumstances affecting the legal
situation (that is, the sum total of capacities and
incapacities) of a person in view of his age, nationality
and his family membership.27
The status of a person in law includes all his
personal qualities and relations, more or less
permanent in nature, not ordinarily
terminable at his own will, such as his being
legitimate or illegitimate, or his being married
or not. The comprehensive term status…
include such matters as the beginning and end
of legal personality, capacity to have rights in
general, family relations, and its various
aspects, such as birth, legitimation, adoption,
emancipation, marriage, divorce, and
sometimes even succession.28 (emphasis
supplied)
A person’s sex is an essential factor in marriage and
family relations. It is a part of a person’s legal capacity
and civil status. In this connection, Article 413 of the
Civil Code provides:
ART. 413. All other matters pertaining to the
registration of civil status shall be governed by
special laws.
But there is no such special law in the Philippines
governing sex reassignment and its effects. This is fatal
to petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register
Law) provides:
SEC. 5. Registration and certification of births. –
The declaration of the physician or midwife in
attendance at the birth or, in default thereof,
the declaration of either parent of the newborn
child, shall be sufficient for the registration of a
birth in the civil register. Such declaration shall
be exempt from documentary stamp tax and
shall be sent to the local civil registrar not later
than thirty days after the birth, by the physician
or midwife in attendance at the birth or by
either parent of the newborn child.
 In such declaration, the person above
mentioned shall certify to the following facts:
(a) date and hour of birth; (b) sex and
nationality of infant; (c) names, citizenship and
religion of parents or, in case the father is not
known, of the mother alone; (d) civil status of
parents; (e) place where the infant was born;
and (f) such other data as may be required in
the regulations to be issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a
historical record of the facts as they existed at the time
of birth.29Thus, the sex of a person is determined at
birth, visually done by the birth attendant (the
physician or midwife) by examining the genitals of the
infant. Considering that there is no law legally
recognizing sex reassignment, the determination of a
person’s sex made at the time of his or her birth, if not
attended by error,30 is immutable.31
When words are not defined in a statute they are to be
given their common and ordinary meaning in the
absence of a contrary legislative intent. The words
"sex," "male" and "female" as used in the Civil Register
Law and laws concerning the civil registry (and even
all other laws) should therefore be understood in their
common and ordinary usage, there being no legislative
intent to the contrary. In this connection, sex is
defined as "the sum of peculiarities of structure and
function that distinguish a male from a female"32 or
"the distinction between male and female."33Female is
"the sex that produces ova or bears young"34 and male
is "the sex that has organs to produce spermatozoa for
fertilizing ova."35 Thus, the words "male" and "female"
in everyday understanding do not include persons
who have undergone sex reassignment. Furthermore,
"words that are employed in a statute which had at the
time a well-known meaning are presumed to have
been used in that sense unless the context compels to
the contrary."36 Since the statutory language of the
Civil Register Law was enacted in the early 1900s and
remains unchanged, it cannot be argued that the term
"sex" as used then is something alterable through
surgery or something that allows a post-operative
male-to-female transsexual to be included in the
category "female."
For these reasons, while petitioner may have
succeeded in altering his body and appearance
through the intervention of modern surgery, no law
authorizes the change of entry as to sex in the civil
registry for that reason. Thus, there is no legal basis
for his petition for the correction or change of the
entries in his birth certificate.
Neither May Entries in the Birth Certificate As to
First Name or Sex Be Changed on the Ground of
Equity
The trial court opined that its grant of the petition was
in consonance with the principles of justice and equity.
It believed that allowing the petition would cause no
harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious
and wide-ranging legal and public policy
consequences. First, even the trial court itself found
that the petition was but petitioner’s first step towards
his eventual marriage to his male fiancé. However,
marriage, one of the most sacred social institutions, is
a special contract of permanent union between a man
and a woman.37 One of its essential requisites is
the legal capacity of the contracting parties who must
be a male and a female.38 To grant the changes sought
by petitioner will substantially reconfigure and greatly
alter the laws on marriage and family relations. It will
allow the union of a man with another man who has
undergone sex reassignment (a male-to-female post-
operative transsexual). Second, there are various laws
which apply particularly to women such as the
provisions of the Labor Code on employment of
women,39 certain felonies under the Revised Penal
Code40 and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of
Court,41 among others. These laws underscore the
public policy in relation to women which could be
substantially affected if petitioner’s petition were to be
granted.
It is true that Article 9 of the Civil Code mandates that
"[n]o judge or court shall decline to render judgment
by reason of the silence, obscurity or insufficiency of
the law." However, it is not a license for courts to
engage in judicial legislation. The duty of the courts is
to apply or interpret the law, not to make or amend it.
In our system of government, it is for the legislature,
should it choose to do so, to determine what
guidelines should govern the recognition of the effects
of sex reassignment. The need for legislative
guidelines becomes particularly important in this case
where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions
for change of first name and for correction or change
of entries in the civil registry, where they may be filed,
what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If
the legislature intends to confer on a person who has
undergone sex reassignment the privilege to change
his name and sex to conform with his reassigned sex, it
has to enact legislation laying down the guidelines in
turn governing the conferment of that privilege.
It might be theoretically possible for this Court to
write a protocol on when a person may be recognized
as having successfully changed his sex. However, this
Court has no authority to fashion a law on that matter,
or on anything else. The Court cannot enact a law
where no law exists. It can only apply or interpret the
written word of its co-equal branch of government,
Congress.
Petitioner pleads that "[t]he unfortunates are also
entitled to a life of happiness, contentment and [the]
realization of their dreams." No argument about that.
The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the
commonly recognized parameters of social convention
and that, at least for them, life is indeed an ordeal.
However, the remedies petitioner seeks involve
questions of public policy to be addressed solely by
the legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the
likeness of God; He created them male and
female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by
Bathala and she heard voices coming from inside
the bamboo. "Oh North Wind! North Wind!
Please let us out!," the voices said. She pecked the
reed once, then twice. All of a sudden, the
bamboo cracked and slit open. Out came two
human beings; one was a male and the other was
a female. Amihan named the man "Malakas"
(Strong) and the woman "Maganda" (Beautiful).
(The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman?
In particular, does the law recognize the changes made
by a physician using scalpel, drugs and counseling
with regard to a person’s sex? May a person
successfully petition for a change of name and sex
appearing in the birth certificate to reflect the result of
a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto
Dantes Silverio filed a petition for the change of his
first name and sex in his birth certificate in the
Regional Trial Court of Manila, Branch 8. The petition,
docketed as SP Case No. 02-105207, impleaded the
civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in
the City of Manila to the spouses Melecio Petines
Silverio and Anita Aquino Dantes on April 4, 1962. His
name was registered as "Rommel Jacinto Dantes
Silverio" in his certificate of live birth (birth
certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is,
"anatomically male but feels, thinks and acts as a
female" and that he had always identified himself with
girls since childhood.1 Feeling trapped in a man’s body,
he consulted several doctors in the United States. He
underwent psychological examination, hormone
treatment and breast augmentation. His attempts to
transform himself to a "woman" culminated on
January 27, 2001 when he underwent sex
reassignment surgery2 in Bangkok, Thailand. He was
thereafter examined by Dr. Marcelino Reysio-Cruz, Jr.,
a plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate attesting
that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in
fact engaged to be married. He then sought to have his
name in his birth certificate changed from "Rommel
Jacinto" to "Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was
published in the People’s Journal Tonight, a
newspaper of general circulation in Metro Manila, for
three consecutive weeks.3 Copies of the order were
sent to the Office of the Solicitor General (OSG) and the
civil registrar of Manila.
On the scheduled initial hearing, jurisdictional
requirements were established. No opposition to the
petition was made.
During trial, petitioner testified for himself. He also
presented Dr. Reysio-Cruz, Jr. and his American fiancé,
Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in
favor of petitioner. Its relevant portions read:
Petitioner filed the present petition not to
evade any law or judgment or any infraction
thereof or for any unlawful motive but solely
for the purpose of making his birth records
compatible with his present sex.
The sole issue here is whether or not petitioner
is entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that
granting the petition would be more in
consonance with the principles of justice and
equity. With his sexual [re-assignment],
petitioner, who has always felt, thought and
acted like a woman, now possesses the
physique of a female. Petitioner’s misfortune to
be trapped in a man’s body is not his own doing
and should not be in any way taken against
him.
Likewise, the [c]ourt believes that no harm,
injury [or] prejudice will be caused to anybody
or the community in granting the petition. On
the contrary, granting the petition would bring
the much-awaited happiness on the part of the
petitioner and her [fiancé] and the realization
of their dreams.
Finally, no evidence was presented to show any
cause or ground to deny the present petition
despite due notice and publication thereof.
Even the State, through the [OSG] has not seen
fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered
GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries
appearing in the Certificate of Birth of
[p]etitioner, specifically for petitioner’s first
name from "Rommel Jacinto" to MELY and
petitioner’s gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines
(Republic), thru the OSG, filed a petition for certiorari
in the Court of Appeals.6 It alleged that there is no law
allowing the change of entries in the birth certificate
by reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered
a decision8 in favor of the Republic. It ruled that the
trial court’s decision lacked legal basis. There is no law
allowing the change of either name or sex in the
certificate of birth on the ground of sex reassignment
through surgery. Thus, the Court of Appeals granted
the Republic’s petition, set aside the decision of the
trial court and ordered the dismissal of SP Case No.
02-105207. Petitioner moved for reconsideration but
it was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his
name and sex in his birth certificate is allowed under
Articles 407 to 413 of the Civil Code, Rules 103 and
108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Person’s First Name Cannot Be Changed On the
Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the ground
for his petition for change of name and sex. As found
by the trial court:
Petitioner filed the present petition not to
evade any law or judgment or any infraction
thereof or for any unlawful motive but solely
for the purpose of making his birth records
compatible with his present sex. (emphasis
supplied)
Petitioner believes that after having acquired the
physical features of a female, he became entitled to the
civil registry changes sought. We disagree.
The State has an interest in the names borne by
individuals and entities for purposes of
identification. A change of name is a privilege, not a
11
right.12 Petitions for change of name are controlled by
statutes.13 In this connection, Article 376 of the Civil
Code provides:
ART. 376. No person can change his name or
surname without judicial authority.
This Civil Code provision was amended by RA 9048
(Clerical Error Law). In particular, Section 1 of RA
9048 provides:
SECTION 1. Authority to Correct Clerical or
Typographical Error and Change of First Name
or Nickname. – No entry in a civil register shall
be changed or corrected without a judicial
order, except for clerical or typographical
errors and change of first name or nickname
which can be corrected or changed by the
concerned city or municipal civil registrar or
consul general in accordance with the
provisions of this Act and its implementing
rules and regulations.
RA 9048 now governs the change of first name.14 It
vests the power and authority to entertain petitions
for change of first name to the city or municipal civil
registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of
first name is now primarily lodged with the
aforementioned administrative officers. The intent and
effect of the law is to exclude the change of first name
from the coverage of Rules 103 (Change of Name) and
108 (Cancellation or Correction of Entries in the Civil
Registry) of the Rules of Court, until and unless an
administrative petition for change of name is first filed
and subsequently denied.15 It likewise lays down the
corresponding venue,16 form17 and procedure. In sum,
the remedy and the proceedings regulating change of
first name are primarily administrative in nature, not
judicial.
RA 9048 likewise provides the grounds for which
change of first name may be allowed:
SECTION 4. Grounds for Change of First Name or
Nickname. – The petition for change of first
name or nickname may be allowed in any of the
following cases:
(1) The petitioner finds the first name or
nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or
pronounce;
(2) The new first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known by
that first name or nickname in the community;
or
(3) The change will avoid confusion.
Petitioner’s basis in praying for the change of his first
name was his sex reassignment. He intended to make
his first name compatible with the sex he thought he
transformed himself into through surgery. However, a
change of name does not alter one’s legal capacity or
civil status.18 RA 9048 does not sanction a change of
first name on the ground of sex reassignment. Rather
than avoiding confusion, changing petitioner’s first
name for his declared purpose may only create grave
complications in the civil registry and the public
interest.
Before a person can legally change his given name, he
must present proper or reasonable cause or any
compelling reason justifying such change.19 In
addition, he must show that he will be prejudiced by
the use of his true and official name.20 In this case, he
failed to show, or even allege, any prejudice that he
might suffer as a result of using his true and official
name.
In sum, the petition in the trial court in so far as it
prayed for the change of petitioner’s first name was
not within that court’s primary jurisdiction as the
petition should have been filed with the local civil
registrar concerned, assuming it could be legally done.
It was an improper remedy because the proper
remedy was administrative, that is, that provided
under RA 9048. It was also filed in the wrong venue as
the proper venue was in the Office of the Civil
Registrar of Manila where his birth certificate is kept.
More importantly, it had no merit since the use of his
true and official name does not prejudice him at all.
For all these reasons, the Court of Appeals correctly
dismissed petitioner’s petition in so far as the change
of his first name was concerned.
No Law Allows The Change of Entry In The Birth
Certificate As To Sex On the Ground of Sex
Reassignment
The determination of a person’s sex appearing in his
birth certificate is a legal issue and the court must look
to the statutes.21 In this connection, Article 412 of the
Civil Code provides:
ART. 412. No entry in the civil register shall be
changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this
provision was amended by RA 9048 in so far
as clerical or typographical errors are involved. The
correction or change of such matters can now be made
through administrative proceedings and without the
need for a judicial order. In effect, RA 9048 removed
from the ambit of Rule 108 of the Rules of Court the
correction of such errors.22 Rule 108 now applies only
to substantial changes and corrections in entries in the
civil register.23
Section 2(c) of RA 9048 defines what a "clerical or
typographical error" is:
SECTION 2. Definition of Terms. – As used in this
Act, the following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error"
refers to a mistake committed in the
performance of clerical work in writing,
copying, transcribing or typing an entry
in the civil register that is harmless and
innocuous, such as misspelled name or
misspelled place of birth or the like,
which is visible to the eyes or obvious to
the understanding, and can be corrected
or changed only by reference to other
existing record or records: Provided,
however, That no correction must
involve the change of nationality, age,
status or sex of the petitioner.
(emphasis supplied)
Under RA 9048, a correction in the civil registry
involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for
which the applicable procedure is Rule 108 of the
Rules of Court.
The entries envisaged in Article 412 of the Civil Code
and correctable under Rule 108 of the Rules of Court
are those provided in Articles 407 and 408 of the Civil
Code:24
ART. 407. Acts, events and judicial decrees
concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the
civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of
name.
The acts, events or factual errors contemplated under
Article 407 of the Civil Code include even those that
occur after birth.25 However, no reasonable
interpretation of the provision can justify the
conclusion that it covers the correction on the ground
of sex reassignment.
To correct simply means "to make or set aright; to
remove the faults or error from" while to change
means "to replace something with something else of
the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner
contained no error. All entries therein, including those
corresponding to his first name and sex, were all
correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the
civil registry of certain acts (such as legitimations,
acknowledgments of illegitimate children and
naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such
as legal separations, annulments of marriage,
declarations of nullity of marriages, adoptions,
naturalization, loss or recovery of citizenship, civil
interdiction, judicial determination of filiation and
changes of name). These acts, events and judicial
decrees produce legal consequences that touch upon
the legal capacity, status and nationality of a person.
Their effects are expressly sanctioned by the laws. In
contrast, sex reassignment is not among those acts or
events mentioned in Article 407. Neither is it
recognized nor even mentioned by any law, expressly
or impliedly.
"Status" refers to the circumstances affecting the legal
situation (that is, the sum total of capacities and
incapacities) of a person in view of his age, nationality
and his family membership.27
The status of a person in law includes all his
personal qualities and relations, more or less
permanent in nature, not ordinarily
terminable at his own will, such as his being
legitimate or illegitimate, or his being married
or not. The comprehensive term status…
include such matters as the beginning and end
of legal personality, capacity to have rights in
general, family relations, and its various
aspects, such as birth, legitimation, adoption,
 emancipation, marriage, divorce, and
sometimes even succession.28 (emphasis
supplied)
A person’s sex is an essential factor in marriage and
family relations. It is a part of a person’s legal capacity
and civil status. In this connection, Article 413 of the
Civil Code provides:
ART. 413. All other matters pertaining to the
registration of civil status shall be governed by
special laws.
But there is no such special law in the Philippines
governing sex reassignment and its effects. This is fatal
to petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register
Law) provides:
SEC. 5. Registration and certification of births. –
The declaration of the physician or midwife in
attendance at the birth or, in default thereof,
the declaration of either parent of the newborn
child, shall be sufficient for the registration of a
birth in the civil register. Such declaration shall
be exempt from documentary stamp tax and
shall be sent to the local civil registrar not later
than thirty days after the birth, by the physician
or midwife in attendance at the birth or by
either parent of the newborn child.
In such declaration, the person above
mentioned shall certify to the following facts:
(a) date and hour of birth; (b) sex and
nationality of infant; (c) names, citizenship and
religion of parents or, in case the father is not
known, of the mother alone; (d) civil status of
parents; (e) place where the infant was born;
and (f) such other data as may be required in
the regulations to be issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a
historical record of the facts as they existed at the time
of birth.29Thus, the sex of a person is determined at
birth, visually done by the birth attendant (the
physician or midwife) by examining the genitals of the
infant. Considering that there is no law legally
recognizing sex reassignment, the determination of a
person’s sex made at the time of his or her birth, if not
attended by error,30 is immutable.31
When words are not defined in a statute they are to be
given their common and ordinary meaning in the
absence of a contrary legislative intent. The words
"sex," "male" and "female" as used in the Civil Register
Law and laws concerning the civil registry (and even
all other laws) should therefore be understood in their
common and ordinary usage, there being no legislative
intent to the contrary. In this connection, sex is
defined as "the sum of peculiarities of structure and
function that distinguish a male from a female"32 or
"the distinction between male and female."33Female is
"the sex that produces ova or bears young"34 and male
is "the sex that has organs to produce spermatozoa for
fertilizing ova."35 Thus, the words "male" and "female"
in everyday understanding do not include persons
who have undergone sex reassignment. Furthermore,
"words that are employed in a statute which had at the
time a well-known meaning are presumed to have
been used in that sense unless the context compels to
the contrary."36 Since the statutory language of the
Civil Register Law was enacted in the early 1900s and
remains unchanged, it cannot be argued that the term
"sex" as used then is something alterable through
surgery or something that allows a post-operative
male-to-female transsexual to be included in the
category "female."
For these reasons, while petitioner may have
succeeded in altering his body and appearance
through the intervention of modern surgery, no law
authorizes the change of entry as to sex in the civil
registry for that reason. Thus, there is no legal basis
for his petition for the correction or change of the
entries in his birth certificate.
Neither May Entries in the Birth Certificate As to
First Name or Sex Be Changed on the Ground of
Equity
The trial court opined that its grant of the petition was
in consonance with the principles of justice and equity.
It believed that allowing the petition would cause no
harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious
and wide-ranging legal and public policy
consequences. First, even the trial court itself found
that the petition was but petitioner’s first step towards
his eventual marriage to his male fiancé. However,
marriage, one of the most sacred social institutions, is
a special contract of permanent union between a man
and a woman.37 One of its essential requisites is
the legal capacity of the contracting parties who must
be a male and a female.38 To grant the changes sought
by petitioner will substantially reconfigure and greatly
alter the laws on marriage and family relations. It will
allow the union of a man with another man who has
undergone sex reassignment (a male-to-female post-
operative transsexual). Second, there are various laws
which apply particularly to women such as the
provisions of the Labor Code on employment of
women,39 certain felonies under the Revised Penal
Code40 and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of
Court,41 among others. These laws underscore the
public policy in relation to women which could be
substantially affected if petitioner’s petition were to be
granted.
It is true that Article 9 of the Civil Code mandates that
"[n]o judge or court shall decline to render judgment
by reason of the silence, obscurity or insufficiency of
the law." However, it is not a license for courts to
engage in judicial legislation. The duty of the courts is
to apply or interpret the law, not to make or amend it.
In our system of government, it is for the legislature,
should it choose to do so, to determine what
guidelines should govern the recognition of the effects
of sex reassignment. The need for legislative
guidelines becomes particularly important in this case
where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions
for change of first name and for correction or change
of entries in the civil registry, where they may be filed,
what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If
the legislature intends to confer on a person who has
undergone sex reassignment the privilege to change
his name and sex to conform with his reassigned sex, it
has to enact legislation laying down the guidelines in
turn governing the conferment of that privilege.
It might be theoretically possible for this Court to
write a protocol on when a person may be recognized
as having successfully changed his sex. However, this
Court has no authority to fashion a law on that matter,
or on anything else. The Court cannot enact a law
where no law exists. It can only apply or interpret the
written word of its co-equal branch of government,
Congress.
Petitioner pleads that "[t]he unfortunates are also
entitled to a life of happiness, contentment and [the]
realization of their dreams." No argument about that.
The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the
commonly recognized parameters of social convention
and that, at least for them, life is indeed an ordeal.
However, the remedies petitioner seeks involve
questions of public policy to be addressed solely by
the legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
G.R. No. 188289 August 20, 2014
DAVID A. NOVERAS, Petitioner,
vs.
LETICIA T. NOVERAS, Respondent.
DECISION
PEREZ, J.:
Before the Court is a petition for review assailing the 9
May 2008 Decision1 of the Court of Appeals in CA-G.R ..
CV No. 88686, which affirmed in part the 8 December
2006 Decision2 of the Regional Trial Court (RTC) of
Baler, Aurora, Branch 96.
The factual antecedents are as follow:
David A. Noveras (David) and Leticia T. Noveras
(Leticia) were married on 3 December 1988 in Quezon
City, Philippines. They resided in California, United
States of America (USA) where they eventually
acquired American citizenship. They then begot two
children, namely: Jerome T.
Noveras, who was born on 4 November 1990 and
JenaT. Noveras, born on 2 May 1993. David was
engaged in courier service business while Leticia
worked as a nurse in San Francisco, California.
During the marriage, they acquired the following
properties in the Philippines and in the USA:
IPPINES
PERTY FAIR MARKET VALUE stating that: 1) the ₱1.1Million proceeds from the sale
e and Lot with an area of 150 sq. m. ₱1,693,125.00
ed at 1085 Norma Street, Sampaloc,
la (Sampaloc property)
ultural land with an area of 20,742 ₱400,000.00
m. located at Laboy, Dipaculao,
ra
rcel of land with an area of 2.5 ₱490,000.00
res located at Maria Aurora, Aurora
Joint Affidavit with Leticia in the presence of David’s
father, Atty. Isaias Noveras, on 3 December 2003
of the Sampaloc property shall be paid to and collected
by Leticia; 2) that David shall return and pay to Leticia
₱750,000.00, which is equivalent to half of the amount
of the redemption price of the Sampaloc property; and
3) that David shall renounce and forfeit all his rights
and interest in the conjugal and real properties
situated in the Philippines.5 David was able to collect
₱1,790,000.00 from the sale of the Sampaloc property,
leaving an unpaid balance of ₱410,000.00.

rcel of land with an area of 175 ₱175,000.00 Upon3 learning that David had an extra-marital affair,

located at Sabang Baler, Aurora Leticia filed a petition for divorce with the Superior
Court of California, County of San Mateo, USA. The
. coconut plantation in San Joaquin ₱750,000.00
California court granted the divorce on 24 June 2005
a Aurora, Aurora
and judgment was duly entered on 29 June 2005.6 The
California court granted to Leticia the custody of her
two children, as well as all the couple’s properties in
PERTY FAIR MARKET VALUE
the USA.7
e and Lot at 1155 Hanover Street,
City, California On 8 August 2005, Leticia filed a petition for Judicial
Separation of Conjugal Property before the RTC of
$550,000.00 Baler, Aurora. She relied on the 3 December 2003 Joint
(unpaid debt of
Affidavit and David’s failure to comply with his
$285,000.00) obligation under the same. She prayed for: 1) the
ture and furnishings $3,000 power to administer all conjugal properties in the
Philippines; 2) David and his partner to cease and
ries (ring and watch) $9,000 desist from selling the subject conjugal properties; 3)
Nissan Frontier 4x4 pickup truck $13,770.00 the declaration that all conjugal properties be forfeited
in favor of her children; 4) David to remit half of the
of America Checking Account $8,000 purchase price as share of Leticia from the sale of the
of America Cash Deposit Sampaloc property; and 5) the payment of₱50,000.00
and ₱100,000.00 litigation expenses.8
nsurance (Cash Value) $100,000.00
ement, pension, profit-sharing, $56,228.00 In his
4 Answer, David stated that a judgment for the
ities dissolution of their marriage was entered on 29 June
2005 by the Superior Court of California, County of San
Mateo. He demanded that the conjugal partnership
The Sampaloc property used to beowned by David’s properties, which also include the USA properties, be
parents. The parties herein secured a loan from a bank liquidated and that all expenses of liquidation,
and mortgaged the property. When said property was including attorney’s fees of both parties be charged
about to be foreclosed, the couple paid a total of ₱1.5 against the conjugal partnership.9
Million for the redemption of the same.
The RTC of Baler, Aurora simplified the issues as
Due to business reverses, David left the USA and follow:
returned to the Philippines in 2001. In December
2002,Leticia executed a Special Power of Attorney 1. Whether or not respondent David A. Noveras
(SPA) authorizing David to sell the Sampaloc property committed acts of abandonment and marital
for ₱2.2 Million. According to Leticia, sometime in infidelity which can result intothe forfeiture of
September 2003, David abandoned his family and the parties’ properties in favor of the petitioner
lived with Estrellita Martinez in Aurora province. and their two (2) children.
Leticia claimed that David agreed toand executed a
 2. Whether or not the Court has jurisdiction
over the properties in California, U.S.A. and the
same can be included in the judicial separation
prayed for.
3. Whether or not the "Joint Affidavit" x x x
executed by petitioner Leticia T. Noveras and
respondent David A. Noveras will amount to a
waiver or forfeiture of the latter’s property
rights over their conjugal properties.
4. Whether or not Leticia T. Noveras isentitled
to reimbursement of onehalf of the ₱2.2
[M]illion sales proceeds of their property in
Sampaloc, Manila and one-half of the ₱1.5
[M]illion used to redeem the property of Atty.
Isaias Noveras, including interests and charges.
5. How the absolute community properties
should be distributed.
6. Whether or not the attorney’s feesand
litigation expenses of the parties were
chargeable against their conjugal properties.
Corollary to the aboveis the issue of:
Whether or not the two common children of the
parties are entitled to support and presumptive
legitimes.10
On 8 December 2006, the RTC rendered judgment as
follows:
1. The absolute community of property of the
parties is hereby declared DISSOLVED;
2. The net assets of the absolute community of
property ofthe parties in the Philippines are
hereby ordered to be awarded to respondent
David A. Noveras only, with the properties in
the United States of America remaining in the
sole ownership of petitioner Leticia Noveras
a.k.a. Leticia Tacbiana pursuant to the divorce
decree issuedby the Superior Court of
California, County of San Mateo, United States
of America, dissolving the marriage of the
parties as of June 24, 2005. The titles presently
covering said properties shall be cancelled and
new titles be issued in the name of the party to
whom said properties are awarded;
3. One-half of the properties awarded to
respondent David A. Noveras in the preceding
paragraph are hereby given to Jerome and Jena,
his two minor children with petitioner
LeticiaNoveras a.k.a. Leticia Tacbiana as their
presumptive legitimes and said legitimes must
be annotated on the titles covering the said
properties.Their share in the income from
these properties shall be remitted to them
annually by the respondent within the first half
of January of each year, starting January 2008;
4. One-half of the properties in the United
States of America awarded to petitioner Leticia
Noveras a.k.a. Leticia Tacbiana in paragraph 2
are hereby given to Jerome and Jena, her two
minor children with respondent David A.
Noveras as their presumptive legitimes and
said legitimes must be annotated on the
titles/documents covering the said properties.
Their share in the income from these
properties, if any, shall be remitted to them
annually by the petitioner within the first half
of January of each year, starting January 2008;
5. For the support of their two (2) minor
children, Jerome and Jena, respondent David A.
Noveras shall give them US$100.00 as monthly
allowance in addition to their income from
their presumptive legitimes, while petitioner
Leticia Tacbiana shall take care of their food,
clothing, education and other needs while they
are in her custody in the USA. The monthly
allowance due from the respondent shall be
increased in the future as the needs of the
children require and his financial capacity can
afford;
6. Of the unpaid amount of ₱410,000.00 on the
purchase price of the Sampaloc property, the
Paringit Spouses are hereby ordered to pay
₱5,000.00 to respondent David A. Noveras and
₱405,000.00 to the two children. The share of
the respondent may be paid to him directly but
the share of the two children shall be deposited
with a local bank in Baler, Aurora, in a joint
account tobe taken out in their names,
withdrawal from which shall only be made by
them or by their representative duly authorized
with a Special Power of Attorney. Such
payment/deposit shall be made withinthe
period of thirty (30) days after receipt of a copy
of this Decision, with the passbook of the joint
account to be submitted to the custody of the
Clerk of Court of this Court within the same
period. Said passbook can be withdrawn from
 the Clerk of Court only by the children or their
attorney-in-fact; and
7. The litigation expenses and attorney’s fees
incurred by the parties shall be shouldered by
them individually.11
The trial court recognized that since the parties are US
citizens, the laws that cover their legal and
personalstatus are those of the USA. With respect to
their marriage, the parties are divorced by virtue of
the decree of dissolution of their marriage issued by
the Superior Court of California, County of San Mateo
on 24June 2005. Under their law, the parties’ marriage
had already been dissolved. Thus, the trial court
considered the petition filed by Leticia as one for
liquidation of the absolute community of property
regime with the determination of the legitimes,
support and custody of the children, instead of an
action for judicial separation of conjugal property.
With respect to their property relations, the trial court
first classified their property regime as absolute
community of property because they did not execute
any marriage settlement before the solemnization of
their marriage pursuant to Article 75 of the Family
Code. Then, the trial court ruled that in accordance
with the doctrine of processual presumption,
Philippine law should apply because the court cannot
take judicial notice of the US law since the parties did
not submit any proof of their national law. The trial
court held that as the instant petition does not fall
under the provisions of the law for the grant of judicial
separation of properties, the absolute community
properties cannot beforfeited in favor of Leticia and
her children. Moreover, the trial court observed that
Leticia failed to prove abandonment and infidelity
with preponderant evidence.
The trial court however ruled that Leticia is not
entitled to the reimbursements she is praying for
considering that she already acquired all of the
properties in the USA. Relying still on the principle of
equity, the Court also adjudicated the Philippine
properties to David, subject to the payment of the
children’s presumptive legitimes. The trial court held
that under Article 89 of the Family Code, the waiver or
renunciation made by David of his property rights in
the Joint Affidavit is void.
On appeal, the Court of Appeals modified the trial
court’s Decision by directing the equal division of the
Philippine properties between the spouses. Moreover
with respect to the common children’s presumptive
legitime, the appellate court ordered both spouses to
each pay their children the amount of ₱520,000.00,
thus:
WHEREFORE, the instant appeal is PARTLY GRANTED.
Numbers 2, 4 and 6 of the assailedDecision dated
December 8, 2006 of Branch 96, RTC of Baler, Aurora
Province, in Civil Case No. 828 are hereby MODIFIED
to read as follows:
2. The net assets of the absolute community of
property of the parties in the Philippines are
hereby divided equally between petitioner
Leticia Noveras a.k.a. Leticia Tacbiana (sic) and
respondent David A. Noveras;
xxx
4. One-half of the properties awarded to
petitioner Leticia Tacbiana (sic) in paragraph 2
shall pertain to her minor children, Jerome and
Jena, as their presumptive legitimes which shall
be annotated on the titles/documents covering
the said properties. Their share in the income
therefrom, if any, shall be remitted to them by
petitioner annually within the first half of
January, starting 2008;
xxx
6. Respondent David A. Noveras and petitioner
Leticia Tacbiana (sic) are each ordered to pay
the amount of₱520,000.00 to their two
children, Jerome and Jena, as their presumptive
legitimes from the sale of the Sampaloc
property inclusive of the receivables therefrom,
which shall be deposited to a local bank of
Baler, Aurora, under a joint account in the
latter’s names. The payment/deposit shall be
made within a period of thirty (30) days from
receipt ofa copy of this Decision and the
corresponding passbook entrusted to the
custody ofthe Clerk of Court a quowithin the
same period, withdrawable only by the
children or their attorney-in-fact.
A number 8 is hereby added, which shall read
as follows:
8. Respondent David A. Noveras is hereby
ordered to pay petitioner Leticia Tacbiana (sic)
the amount of ₱1,040,000.00 representing her
share in the proceeds from the sale of the
Sampaloc property.
The last paragraph shall read as follows:
Send a copy of this Decision to the local civil registry of
Baler, Aurora; the local civil registry of Quezon City;
the Civil RegistrarGeneral, National Statistics Office,
Vibal Building, Times Street corner EDSA, Quezon City;
the Office of the Registry of Deeds for the Province of
Aurora; and to the children, Jerome Noveras and Jena
Noveras.
The rest of the Decision is AFFIRMED.12
In the present petition, David insists that the Court of
Appeals should have recognized the California
Judgment which awarded the Philippine properties to
him because said judgment was part of the pleading
presented and offered in evidence before the trial
court. David argues that allowing Leticia to share in
the Philippine properties is tantamount to unjust
enrichment in favor of Leticia considering that the
latter was already granted all US properties by the
California court.
In summary and review, the basic facts are: David and
Leticia are US citizens who own properties in the USA
and in the Philippines. Leticia obtained a decree of
divorce from the Superior Court of California in June
2005 wherein the court awarded all the properties in
the USA to Leticia. With respect to their properties in
the Philippines, Leticiafiled a petition for judicial
separation ofconjugal properties.
At the outset, the trial court erred in recognizing the
divorce decree which severed the bond of marriage
between the parties. In Corpuz v. Sto. Tomas,13 we
stated that:
The starting point in any recognition of a foreign
divorce judgment is the acknowledgment that our
courts do not take judicial notice of foreign judgments
and laws. Justice Herrera explained that, as a rule, "no
sovereign is bound to give effect within its dominion
to a judgment rendered by a tribunal of another
country." This means that the foreign judgment and its
authenticity must beproven as facts under our rules on
evidence, together with the alien’s applicable national
law to show the effect of the judgment on the alien
himself or herself. The recognition may be made in an
action instituted specifically for the purpose or in
another action where a party invokes the foreign
decree as an integral aspect of his claim or defense.14
The requirements of presenting the foreign divorce
decree and the national law of the foreigner must
comply with our Rules of Evidence. Specifically, for
Philippine courts to recognize a foreign judgment
relating to the status of a marriage, a copy of the
foreign judgment may be admitted in evidence and
proven as a fact under Rule 132, Sections 24 and 25, in
relation to Rule 39, Section 48(b) of the Rules of
Court.15
Under Section 24 of Rule 132, the record of public
documents of a sovereign authority or tribunal may be
proved by: (1) an official publication thereof or (2) a
copy attested by the officer having the legal custody
thereof. Such official publication or copy must
beaccompanied, if the record is not kept in the
Philippines, with a certificate that the attesting officer
has the legal custody thereof. The certificate may be
issued by any of the authorized Philippine embassy or
consular officials stationed in the foreign country in
which the record is kept, and authenticated by the seal
of his office. The attestation must state, in substance,
that the copy is a correct copy of the original, or a
specific part thereof, asthe case may be, and must be
under the official seal of the attesting officer.
Section 25 of the same Rule states that whenever a
copy of a document or record is attested for the
purpose of evidence, the attestation must state, in
substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be.
The attestation must be under the official seal of the
attesting officer, if there be any, or if hebe the clerk of
a court having a seal, under the seal of such court.
Based on the records, only the divorce decree was
presented in evidence. The required certificates to
prove its authenticity, as well as the pertinent
California law on divorce were not presented.
It may be noted that in Bayot v. Court of Appeals,16 we
relaxed the requirement on certification where we
held that "[petitioner therein] was clearly an American
citizenwhen she secured the divorce and that divorce
is recognized and allowed in any of the States of the
Union, the presentation of a copy of foreign divorce
decree duly authenticatedby the foreign court issuing
said decree is, as here, sufficient." In this case
however, it appears that there is no seal from the
office where the divorce decree was obtained.
Even if we apply the doctrine of processual
presumption17 as the lower courts did with respect to
the property regime of the parties, the recognition of
divorce is entirely a different matter because, to begin
with, divorce is not recognized between Filipino
citizens in the Philippines. Absent a valid recognition
of the divorce decree, it follows that the parties are
still legally married in the Philippines. The trial court
thus erred in proceeding directly to liquidation.
As a general rule, any modification in the marriage
settlements must be made before the celebration of
marriage. An exception to this rule is allowed provided
that the modification isjudicially approved and refers
only to the instances provided in Articles 66,67, 128,
135 and 136 of the Family Code.18
Leticia anchored the filing of the instant petition for
judicial separation of property on paragraphs 4 and 6
of Article 135 of the Family Code, to wit:
Art. 135. Any of the following shall be considered
sufficient cause for judicial separation of property:
(1) That the spouse of the petitioner has been
sentenced to a penalty which carries with it
civil interdiction;
(2) That the spouse of the petitioner has been
judicially declared an absentee;
(3) That loss of parental authority ofthe spouse
of petitioner has been decreed by the court;
(4) That the spouse of the petitioner has
abandoned the latter or failed to comply with
his or her obligations to the family as provided
for in Article 101;
(5) That the spouse granted the power of
administration in the marriage settlements has
abused that power; and
(6) That at the time of the petition, the spouses
have been separated in fact for at least one year
and reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2), and (3),
the presentation of the final judgment against the
guiltyor absent spouse shall be enough basis for the
grant of the decree ofjudicial separation of property.
(Emphasis supplied).
The trial court had categorically ruled that there was
no abandonment in this case to necessitate judicial
separation of properties under paragraph 4 of Article
135 of the Family Code. The trial court ratiocinated:
Moreover, abandonment, under Article 101 of the
Family Code quoted above, must be for a valid cause
and the spouse is deemed to have abandoned the
other when he/she has left the conjugal dwelling
without intention of returning. The intention of not
returning is prima facie presumed if the allegedly [sic]
abandoning spouse failed to give any information as to
his or her whereabouts within the period of three
months from such abandonment.
In the instant case, the petitioner knows that the
respondent has returned to and stayed at his
hometown in Maria Aurora, Philippines, as she even
went several times to visit him there after the alleged
abandonment. Also, the respondent has been going
back to the USA to visit her and their children until the
relations between them worsened. The last visit of
said respondent was in October 2004 when he and the
petitioner discussed the filing by the latter of a
petition for dissolution of marriage with the California
court. Such turn for the worse of their relationship and
the filing of the saidpetition can also be considered as
valid causes for the respondent to stay in the
Philippines.19
Separation in fact for one year as a ground to grant a
judicial separation of property was not tackled in the
trial court’s decision because, the trial court
erroneously treated the petition as liquidation of the
absolute community of properties.
The records of this case are replete with evidence that
Leticia and David had indeed separated for more than
a year and that reconciliation is highly improbable.
First, while actual abandonment had not been proven,
it is undisputed that the spouses had been living
separately since 2003 when David decided to go back
to the Philippines to set up his own business. Second,
Leticia heard from her friends that David has been
cohabiting with Estrellita Martinez, who represented
herself as Estrellita Noveras. Editha Apolonio, who
worked in the hospital where David was once
confined, testified that she saw the name of Estrellita
listed as the wife of David in the Consent for Operation
form.20Third and more significantly, they had filed for
divorce and it was granted by the California court in
June 2005.
Having established that Leticia and David had actually
separated for at least one year, the petition for judicial
separation of absolute community of property should
be granted.
The grant of the judicial separation of the absolute
community property automatically dissolves the
absolute community regime, as stated in the 4th
paragraph of Article 99 ofthe Family Code, thus:
Art. 99. The absolute community terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared
void; or
(4) In case of judicial separation of property
during the marriage under Articles 134 to 138.
(Emphasis supplied).
Under Article 102 of the same Code, liquidation
follows the dissolution of the absolute community
regime and the following procedure should apply:
Art. 102. Upon dissolution of the absolute community
regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing
separately all the properties of the absolute
community and the exclusive properties of each
spouse.
(2) The debts and obligations of the absolute
community shall be paid out of its assets. In
case of insufficiency of said assets, the spouses
shall be solidarily liable for the unpaid balance
with their separate properties in accordance
with the provisions of the second paragraph of
Article 94.
(3) Whatever remains of the exclusive
properties of the spouses shall thereafter be
delivered to each of them.
(4) The net remainder of the properties of the
absolute community shall constitute its net
assets, which shall be divided equally between
husband and wife, unless a different proportion
or division was agreed upon in the marriage
settlements, or unless there has been a
voluntary waiver of such share provided in this
Code. For purposes of computing the net profits
subject to forfeiture in accordance with Articles
43, No. (2) and 63, No. (2),the said profits shall
be the increase in value between the market
value of the community property at the time of
the celebration of the marriage and the market
value at the time of its dissolution.
(5) The presumptive legitimes of the common
children shall be delivered upon partition, in
accordance with Article 51.
(6) Unless otherwise agreed upon by the
parties, in the partition of the properties, the
conjugal dwelling and the lot on which it is
situated shall be adjudicated tothe spouse with
whom the majority of the common children
choose to remain. Children below the age of
seven years are deemed to have chosen the
mother, unless the court has decided otherwise.
In case there is no such majority, the court shall
decide, taking into consideration the best
interests of said children. At the risk of being
repetitious, we will not remand the case to the
trial court. Instead, we shall adopt the
modifications made by the Court of Appeals on
the trial court’s Decision with respect to
liquidation.
We agree with the appellate court that the Philippine
courts did not acquire jurisdiction over the California
properties of David and Leticia. Indeed, Article 16 of
the Civil Code clearly states that real property as well
as personal property is subject to the law of the
country where it is situated. Thus, liquidation shall
only be limited to the Philippine properties.
We affirm the modification madeby the Court of
Appeals with respect to the share of the spouses in the
absolutecommunity properties in the Philippines, as
well as the payment of their children’s presumptive
legitimes, which the appellate court explained in this
wise:
Leticia and David shall likewise have an equal share in
the proceeds of the Sampaloc property.1âwphi1 While
both claimed to have contributed to the redemption of
the Noveras property, absent a clear showing where
their contributions came from, the same is presumed
to have come from the community property. Thus,
Leticia is not entitled to reimbursement of half of the
redemption money.
David's allegation that he used part of the proceeds
from the sale of the Sampaloc property for the benefit
of the absolute community cannot be given full
credence. Only the amount of ₱120,000.00 incurred in
going to and from the U.S.A. may be charged thereto.
Election expenses in the amount of ₱300,000.00 when
he ran as municipal councilor cannot be allowed in the
absence of receipts or at least the Statement of
Contributions and Expenditures required under
Section 14 of Republic Act No. 7166 duly received by
the Commission on Elections. Likewise, expenses
incurred to settle the criminal case of his personal
driver is not deductible as the same had not benefited
the family. In sum, Leticia and David shall share
equally in the proceeds of the sale net of the amount of
₱120,000.00 or in the respective amounts of
₱1,040,000.00.
xxxx
Under the first paragraph of Article 888 of the Civil
Code, "(t)he legitime of legitimate children and
descendants consists of one-half or the hereditary
estate of the father and of the mother." The children
arc therefore entitled to half of the share of each
spouse in the net assets of the absolute community,
which shall be annotated on the titles/documents
covering the same, as well as to their respective shares
in the net proceeds from the sale of the Sampaloc
property including the receivables from Sps. Paringit
in the amount of ₱410,000.00. Consequently, David
and Leticia should each pay them the amount of
₱520,000.00 as their presumptive legitimes
therefrom.21
WHEREFORE, the petition is DENIED. The assailed
Decision of the Court of Appeals in CA G.R. CV No.
88686 is AFFIRMED.
SO ORDERED.
G.R. No. 193707 December 10, 2014
NORMA A. DEL SOCORRO, for and in behalf of her
minor child RODERIGO NORJO VAN
WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN
WILSEM, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari
under Rule 45 of the Rules of Court seeking to reverse
and set aside the Orders1 dated February 19, 2010 and
September 1, 2010, respectively, of the Regional Trial
Court of Cebu City (RTC-Cebu), which dismissed the
criminal case entitled People of the Philippines v.
Ernst Johan Brinkman Van Wilsem, docketed as
Criminal Case No. CBU-85503, for violation of Republic
Act (R.A.) No. 9262, otherwise known as the Anti-
Violence Against Women and Their Children Act of
2004.
The following facts are culled from the records:
Petitioner Norma A. Del Socorro and respondent Ernst
Johan Brinkman Van Wilsem contracted marriage in
Holland on September 25, 1990.2 On January 19, 1994,
they were blessed with a son named Roderigo Norjo
Van Wilsem, who at the time of the filing of the instant
petition was sixteen (16) years of age.3
Unfortunately, their marriage bond ended on July 19,
1995 by virtue of a Divorce Decree issued by the
appropriate Court of Holland.4 At that time, their son
was only eighteen (18) months old.5 Thereafter,
petitioner and her son came home to the Philippines.6
According to petitioner, respondent made a promise to
provide monthly support to their son in the amount of
Two Hundred Fifty (250) Guildene (which is
equivalent to Php17,500.00 more or less).7 However,
since the arrival of petitioner and her son in the
Philippines, respondent never gave support to the son,
Roderigo.8
Not long thereafter, respondent cameto the
Philippines and remarried in Pinamungahan, Cebu,
and since then, have been residing
thereat.9 Respondent and his new wife established a
business known as Paree Catering, located at Barangay
Tajao, Municipality of Pinamungahan, Cebu City.10 To
date, all the parties, including their son, Roderigo, are
presently living in Cebu City.11
On August 28, 2009, petitioner, through her counsel,
sent a letter demanding for support from respondent.
However, respondent refused to receive the letter.12
Because of the foregoing circumstances, petitioner
filed a complaint affidavit with the Provincial
Prosecutor of Cebu City against respondent for
violation of Section 5, paragraph E(2) of R.A. No. 9262
for the latter’s unjust refusal to support his minor
child with petitioner.13 Respondent submitted his
counter-affidavit thereto, to which petitioner also
submitted her reply-affidavit.14 Thereafter, the
Provincial Prosecutor of Cebu City issued a Resolution
recommending the filing of an information for the
crime charged against herein respondent.
The information, which was filed with the RTC-Cebu
and raffled to Branch 20 thereof, states that:
That sometime in the year 1995 and up to the present,
more or less, in the Municipality of Minglanilla,
Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, did then and there wilfully, unlawfully and
deliberately deprive, refuse and still continue to
deprive his son RODERIGO NORJO VAN WILSEM, a
fourteen (14) year old minor, of financial support
legally due him, resulting in economic abuse to the
victim. CONTRARY TO LAW.15
Upon motion and after notice and hearing, the RTC-
Cebu issued a Hold Departure Order against
respondent.16Consequently, respondent was arrested
and, subsequently, posted bail.17 Petitioner also filed a
Motion/Application of Permanent Protection Order to
which respondent filed his Opposition.18 Pending the
resolution thereof, respondent was
arraigned.19 Subsequently, without the RTC-Cebu
having resolved the application of the protection
order, respondent filed a Motion to Dismiss on the
ground of: (1) lack of jurisdiction over the offense
charged; and (2) prescription of the crime charged.20
On February 19, 2010, the RTC-Cebu issued the herein
assailed Order,21 dismissing the instant criminal case
against respondent on the ground that the facts
charged in the information do not constitute an
offense with respect to the respondent who is an alien,
the dispositive part of which states:
WHEREFORE, the Court finds that the facts charged in
the information do not constitute an offense with
respect to the accused, he being an alien, and
accordingly, orders this case DISMISSED.
The bail bond posted by accused Ernst Johan
Brinkman Van Wilsem for his provisional liberty is
hereby cancelled (sic) and ordered released.
SO ORDERED.
Cebu City, Philippines, February 19, 2010.22
Thereafter, petitioner filed her Motion for
Reconsideration thereto reiterating respondent’s
obligation to support their child under Article 19523 of
the Family Code, thus, failure to do so makes him liable
under R.A. No. 9262 which "equally applies to all
persons in the Philippines who are obliged to support
their minor children regardless of the obligor’s
nationality."24
On September 1, 2010, the lower court issued an
Order25 denying petitioner’s Motion for
Reconsideration and reiterating its previous ruling.
Thus:
x x x The arguments therein presented are basically a
rehash of those advanced earlier in the memorandum
of the prosecution. Thus, the court hereby reiterates
its ruling that since the accused is a foreign national he
is not subject to our national law (The Family Code) in
regard to a parent’s duty and obligation to givesupport
to his child. Consequently, he cannot be charged of
violating R.A. 9262 for his alleged failure to support
his child. Unless it is conclusively established that R.A.
9262 applies to a foreigner who fails to give support
tohis child, notwithstanding that he is not bound by
our domestic law which mandates a parent to give
such support, it is the considered opinion of the court
that no prima faciecase exists against the accused
herein, hence, the case should be dismissed.
WHEREFORE, the motion for reconsideration is
hereby DENIED for lack of merit.
SO ORDERED.
Cebu City, Philippines, September 1, 2010.26
Hence, the present Petition for Review on Certiorari
raising the following issues:
1. Whether or not a foreign national has an
obligation to support his minor child under
Philippine law; and
2. Whether or not a foreign national can be held
criminally liable under R.A. No. 9262 for his
unjustified failure to support his minor child.27
At the outset, let it be emphasized that We are taking
cognizance of the instant petition despite the fact that
the same was directly lodged with the Supreme Court,
consistent with the ruling in Republic v. Sunvar Realty
Development Corporation,28 which lays down the
instances when a ruling of the trial court may be
brought on appeal directly to the Supreme Court
without violating the doctrine of hierarchy of courts,
to wit:
x x x Nevertheless, the Rules do not prohibit any of the
parties from filing a Rule 45 Petition with this Court, in
case only questions of law are raised or involved. This
latter situation was one that petitioners found
themselves in when they filed the instant Petition to
raise only questions of law. In Republic v. Malabanan,
the Court clarified the three modes of appeal from
decisions of the RTC, to wit: (1) by ordinary appeal or
appeal by writ of error under Rule 41, whereby
judgment was rendered in a civil or criminal action by
the RTC in the exercise of its original jurisdiction; (2)
by a petition for review under Rule 42, whereby
judgment was rendered by the RTC in the exercise of
its appellate jurisdiction; and (3) by a petition for
review on certiorari before the Supreme Court under
Rule 45. "The first mode of appeal is taken to the
[Court of Appeals] on questions of fact or mixed
questions of fact and law. The second mode of appeal
is brought to the CA on questions of fact, of law, or
mixed questions of fact and law. The third mode of
appealis elevated to the Supreme Court only on
questions of law." (Emphasis supplied)
There is a question of law when the issue does not call
for an examination of the probative value of the
evidence presented or of the truth or falsehood of the
facts being admitted, and the doubt concerns the
correct application of law and jurisprudence on the
matter. The resolution of the issue must rest solely on
what the law provides on the given set of
circumstances.29
Indeed, the issues submitted to us for resolution
involve questions of law – the response thereto
concerns the correct application of law and
jurisprudence on a given set of facts, i.e.,whether or
not a foreign national has an obligation to support his
minor child under Philippine law; and whether or not
he can be held criminally liable under R.A. No. 9262
for his unjustified failure to do so.
It cannot be negated, moreover, that the instant
petition highlights a novel question of law concerning
the liability of a foreign national who allegedly
commits acts and omissions punishable under special
criminal laws, specifically in relation to family rights
and duties. The inimitability of the factual milieu of the
present case, therefore, deserves a definitive ruling by
this Court, which will eventually serve as a guidepost
for future cases. Furthermore, dismissing the instant
petition and remanding the same to the CA would only
waste the time, effort and resources of the courts.
Thus, in the present case, considerations of efficiency
and economy in the administration of justice should
prevail over the observance of the hierarchy of courts.
Now, on the matter of the substantive issues, We find
the petition meritorious. Nonetheless, we do not fully
agree with petitioner’s contentions.
To determine whether or not a person is criminally
liable under R.A. No. 9262, it is imperative that the
legal obligation to support exists.
Petitioner invokes Article 19530 of the Family Code,
which provides the parent’s obligation to support his
child. Petitioner contends that notwithstanding the
existence of a divorce decree issued in relation to
Article 26 of the Family Code,31 respondent is not
excused from complying with his obligation to support
his minor child with petitioner.
On the other hand, respondent contends that there is
no sufficient and clear basis presented by petitioner
that she, as well as her minor son, are entitled to
financial support.32 Respondent also added that by
reason of the Divorce Decree, he is not obligated
topetitioner for any financial support.33
On this point, we agree with respondent that
petitioner cannot rely on Article 19534 of the New Civil
Code in demanding support from respondent, who is a
foreign citizen, since Article 1535 of the New Civil Code
stresses the principle of nationality. In other words,
insofar as Philippine laws are concerned, specifically
the provisions of the Family Code on support, the
same only applies to Filipino citizens. By analogy, the
same principle applies to foreigners such that they are
governed by their national law with respect to family
rights and duties.36
The obligation to give support to a child is a matter
that falls under family rights and duties. Since the
respondent is a citizen of Holland or the Netherlands,
we agree with the RTC-Cebu that he is subject to the
laws of his country, not to Philippinelaw, as to whether
he is obliged to give support to his child, as well as the
consequences of his failure to do so.37
In the case of Vivo v. Cloribel,38 the Court held that –
Furthermore, being still aliens, they are not in position
to invoke the provisions of the Civil Code of the
Philippines, for that Code cleaves to the principle that
family rights and duties are governed by their
personal law, i.e.,the laws of the nation to which they
belong even when staying in a foreign country (cf. Civil
Code, Article 15).39
It cannot be gainsaid, therefore, that the respondent is
not obliged to support petitioner’s son under
Article195 of the Family Code as a consequence of the
Divorce Covenant obtained in Holland. This does not,
however, mean that respondent is not obliged to
support petitioner’s son altogether.
In international law, the party who wants to have a
foreign law applied to a dispute or case has the burden
of proving the foreign law.40 In the present case,
respondent hastily concludes that being a national of
the Netherlands, he is governed by such laws on the
matter of provision of and capacity to support.41 While
respondent pleaded the laws of the Netherlands in
advancing his position that he is not obliged to
support his son, he never proved the same.
It is incumbent upon respondent to plead and prove
that the national law of the Netherlands does not
impose upon the parents the obligation to support
their child (either before, during or after the issuance
of a divorce decree), because Llorente v. Court of
Appeals,42 has already enunciated that:
True, foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to
takejudicial notice of them. Like any other fact, they
must be alleged and proved.43
In view of respondent’s failure to prove the national
law of the Netherlands in his favor, the doctrine of
processual presumption shall govern. Under this
doctrine, if the foreign law involved is not properly
pleaded and proved, our courts will presume that the
foreign law is the same as our local or domestic or
internal law.44 Thus, since the law of the Netherlands
as regards the obligation to support has not been
properly pleaded and proved in the instant case, it is
presumed to be the same with Philippine law, which
enforces the obligation of parents to support their
children and penalizing the non-compliance therewith.
Moreover, while in Pilapil v. Ibay-Somera,45 the Court
held that a divorce obtained in a foreign land as well as
its legal effects may be recognized in the Philippines in
view of the nationality principle on the matter of
status of persons, the Divorce Covenant presented by
respondent does not completely show that he is
notliable to give support to his son after the divorce
decree was issued. Emphasis is placed on petitioner’s
allegation that under the second page of the aforesaid
covenant, respondent’s obligation to support his child
is specifically stated,46 which was not disputed by
respondent.
We likewise agree with petitioner that
notwithstanding that the national law of respondent
states that parents have no obligation to support their
children or that such obligation is not punishable by
law, said law would still not find applicability,in light
of the ruling in Bank of America, NT and SA v.
American Realty Corporation,47 to wit:
In the instant case, assuming arguendo that the
English Law on the matter were properly pleaded and
proved in accordance with Section 24, Rule 132 of the
Rules of Court and the jurisprudence laid down in Yao
Kee, et al. vs. Sy-Gonzales, said foreign law would still
not find applicability.
Thus, when the foreign law, judgment or contract is
contrary to a sound and established public policy of
the forum, the said foreign law, judgment or order
shall not be applied.
Additionally, 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.
The public policy sought to be protected in the instant
case is the principle imbedded in our jurisdiction
proscribing the splitting up of a single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure
is pertinent
—
If two or more suits are instituted on the basis of the
same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground for
the dismissal of the others. Moreover, foreign law
should not be applied when its application would
work undeniable injustice to the citizens or residents
of the forum. To give justice is the most important
function of law; hence, a law, or judgment or contract
that is obviously unjust negates the fundamental
principles of Conflict of Laws.48
Applying the foregoing, even if the laws of the
Netherlands neither enforce a parent’s obligation to
support his child nor penalize the noncompliance
therewith, such obligation is still duly enforceable in
the Philippines because it would be of great injustice
to the child to be denied of financial support when the
latter is entitled thereto.
We emphasize, however, that as to petitioner herself,
respondent is no longer liable to support his former
wife, in consonance with the ruling in San Luis v. San
Luis,49 to wit:
As to the effect of the divorce on the Filipino wife, the
Court ruled that she should no longerbe considered
marriedto the alien spouse. Further, she should not be
required to perform her marital duties and
obligations. It held:
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. (Emphasis added)50
Based on the foregoing legal precepts, we find that
respondent may be made liable under Section 5(e) and
(i) of R.A. No. 9262 for unjustly refusing or failing to
give support topetitioner’s son, to wit:
SECTION 5. Acts of Violence Against Women and Their
Children.- The crime of violence against women and
their children is committed through any of the
following acts:
xxxx
(e) Attempting to compel or compelling the woman or
her child to engage in conduct which the woman or
her child has the right to desist from or desist from
conduct which the woman or her child has the right to
engage in, or attempting to restrict or restricting the
woman's or her child's freedom of movement or
conduct by force or threat of force, physical or other
harm or threat of physical or other harm, or
intimidation directed against the woman or child. This
shall include, butnot limited to, the following acts
committed with the purpose or effect of controlling or
restricting the woman's or her child's movement or
conduct:
xxxx
(2) Depriving or threatening to deprive the woman or
her children of financial support legally due her or her
family, or deliberately providing the woman's children
insufficient financial support; x x x x
(i) Causing mental or emotional anguish, public
ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and
emotional abuse, and denial of financial support or
custody of minor childrenof access to the woman's
child/children.51
Under the aforesaid special law, the deprivation or
denial of financial support to the child is considered
anact of violence against women and children.
In addition, considering that respondent is currently
living in the Philippines, we find strength in
petitioner’s claim that the Territoriality Principle in
criminal law, in relation to Article 14 of the New Civil
Code, applies to the instant case, which provides that:
"[p]enal laws and those of public security and safety
shall be obligatory upon all who live and sojourn in
Philippine territory, subject to the principle of public
international law and to treaty stipulations." On this
score, it is indisputable that the alleged continuing acts
of respondent in refusing to support his child with
petitioner is committed here in the Philippines as all of
the parties herein are residents of the Province of
Cebu City. As such, our courts have territorial
jurisdiction over the offense charged against
respondent. It is likewise irrefutable that jurisdiction
over the respondent was acquired upon his arrest.
Finally, we do not agree with respondent’s argument
that granting, but not admitting, that there is a legal
basis for charging violation of R.A. No. 9262 in the
instant case, the criminal liability has been
extinguished on the ground of prescription of
crime52 under Section 24 of R.A. No. 9262, which
provides that:
SECTION 24. Prescriptive Period. – Acts falling under
Sections 5(a) to 5(f) shall prescribe in twenty (20)
years. Acts falling under Sections 5(g) to 5(I) shall
prescribe in ten (10) years.
The act of denying support to a child under Section
5(e)(2) and (i) of R.A. No. 9262 is a continuing
offense,53 which started in 1995 but is still ongoing at
present. Accordingly, the crime charged in the instant
case has clearly not prescribed.
Given, however, that the issue on whether respondent
has provided support to petitioner’s child calls for an
examination of the probative value of the evidence
presented, and the truth and falsehood of facts being
admitted, we hereby remand the determination of this
issue to the RTC-Cebu which has jurisdiction over the
case.
WHEREFORE, the petition is GRANTED. The Orders
dated February 19, 2010 and September 1, 2010,
respectively, of the Regional Trial Court of the City of
Cebu are hereby REVERSED and SET ASIDE. The case
is REMANDED to the same court to conduct further
proceedings based on the merits of the case.
SO ORDERED.
DIOSDADO M. PERA
G.R. No. 154380 October 5, 2005
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
CIPRIANO ORBECIDO III, Respondent.
DECISION
QUISUMBING, J.:
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 Decision1 dated May 15, 2002, of the Regional
Trial Court of Molave, Zamboanga del Sur, Branch 23
and its Resolution2 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 CODE4
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
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.
...
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 Hearings9 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 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 Sempio-Diy, 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.
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.
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 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.
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.
G.R. No. 221029
REPUBLIC OF THE PHILIPPINES, Petitioner
vs
MARELYN TANEDO MANALO, Respondent
RESOLUTION
peralta, J.:
This petition for review on certiorari under Rule 45 of
the Rules of Court (Rules) seeks to reverse and set
aside the September 18, 2014 Decision1 and October
12, 2015 Resolution2 of the Court of Appeals (CA) in
CA-G.R. CV No. 100076. The dispositive portion of the
Decision states:
WHEREFORE, the instant appeal
is GRANTED. The Decision dated 15 October 2012 of
the Regional Trial Court of Dagupan City, First Judicial
Region, Branch 43, in SPEC. PROC. NO. 2012-0005
is REVERSED and SET ASIDE.
Let a copy of this Decision be served on the Local Civil
Registrar of San Juan, Metro Manila.
SO ORDERED.3
The facts are undisputed.
On January 10, 2012, respondent Marelyn Tanedo
Manalo (Manalo) filed a petition for cancellation of
Entry of marriage in the Civil Registry of San Juan ,
Metro Manila, by virtueof a judgment of divorce
Japanese court.
Finding the petition to be sufficient in form and in
substance, Branch 43 of the Regional Trial Court (RTC)
of Dagupan City set the case for initial hearing on April
25, 2012. The petition and the notice of initial hearing
were published once a week for three consecutive
weeks in newspaper of general circulation. During the
initial hearing, counsel for Manalo marked the
documentary evidence (consisting of the trial courts
Order dated January 25, 2012, affidavit of publication,
and issues of the Northern Journal dated February 21-
27, 2012, February 28 - March 5, 2012, and March 6-
12, 2012) for purposes of compliance with the
jurisdictional requirements.
The Office of the Solicitor General (OSG) entered its
appearance for petitioner Republic of the Philippines
authorizing the Office of the City Prosecutor of
Dagupan to appear on its behalf. Likewise, a
Manifestation and Motion was filed questioning the
title and/or caption of the petition considering that
based on the allegations therein, the proper action
should be a petition for recognition and enforcement
of a foreign judgment.
As a result, Manalo moved to admit an Amended
Petition, which the court granted. The Amended
Petition, which captioned that if it is also a petition for
recognition and enforcement of foreign judgment
alleged:
2. That petitioner is previously married in the
Philippines to a Japanese national named YOSHINO
MINORO as shown by their Marriage Contract xxx;
3. That recently, a case for divorce was filed by herein
[petitioner] in Japan and after die proceedings, a
divorce decree dated December 6, 2011 was rendered
by the Japanese Court x x x;
4. That at present, by virtue of the said divorce decree,
petitioner and her divorce Japanese husband are no
longer living together and in fact, petitioner and her
daughter are living separately from said Japanese
former husband;
5. That there is an imperative need to have the entry of
marriage in Civil Registry of San Juan, Metro Manila
cancelled, where the petitioner and the former
Japanese husband's marriage was previously
registered, in order that it would not appear anymore
that petitioner is still married to the said Japanese
national who is no longer her husband or is no longer
married to her, she shall not be bothered and
disturbed by aid entry of marriage;
6. That this petition is filed principally for the purpose
of causing the cancellation of entry of the marriage
between the petitioner and the said Japanese national,
pursuant to Rule 108 of the Revised Rules of Court,
which marriage was already dissolved by virtue of the
aforesaid divorce decree; [and]
7. That petitioner prays, among others, that together
with the cancellation of the said entry of her marriage,
that she be allowed to return and use her maiden
surname, MANALO.4
Manalo was allowed to testify in advance as she was
scheduled to leave for Japan for her employment.
Among the documents that were offered and admitted
were:
1. Court Order dated January 25, 2012, finding the
petition and its attachments to be sufficient in form
and in substance;
2. Affidavit of Publication;
3. Issues of the Northern Journal dated February 21-
27, 2012, February 28 - March 5, 2012, and March 6-
12, 2012;
4. Certificate of Marriage between Manalo and her
former Japanese husband;
5. Divorce Decree of Japanese court;
6. Authentication/Certificate issued by the Philippine
Consulate General in Osaka, Japan of the Notification
of Divorce; and
7. Acceptance of Certificate of Divorce.5
The OSG did not present any controverting evidence to
rebut the allegations of Manalo.
On October 15, 2012, the trial court denied the
petition for lack of merit. In ruling that the divorce
obtained by Manalo in Japan should not be recognized,
it opined that, based on Article 15 of the New Civil
Code, the Philippine law "does not afford Filipinos the
right to file for a divorce whether they are in the
country or living abroad, if they are married to
Filipinos or to foreigners, or if they celebrated their
marriage in the Philippines or in another country" and
that unless Filipinos "are naturalized as citizens of
another country, Philippine laws shall have control
over issues related to Filipinos' family rights and
duties, together with the determination of their
condition and legal capacity to enter into contracts
and civil relations, inclusing marriages."6
On appeal, the CA overturned the RTC decision. It held
that Article 26 of the Family Code of the Philippines
(Family Code) is applicable even if it was Manalo who
filed for divorce against her Japanese husband because
the decree may obtained makes the latter no longer
married to the former, capacitating him to remarry.
Conformably with Navarro, et al. V. Exec. Secretary
Ermita, et al.7 ruling that the meaning of the law
should be based on the intent of the lawmakers and in
view of the legislative intent behind Article 26, it
would be height of injustice to consider Manalo as still
married to the Japanese national, who, in turn, is no
longer married to her. For the appellate court, the fact
that it was Manalo who filed the divorce case is
inconsequential. Cited as similar to this case was Van
Dorn v. Judge Romilo, Jr.8 where the mariage between
a foreigner an a Filipino was dissolved filed abroad by
the latter.
The OSG filed a motion for reconsideration, but it was
denied; hence, this petition.
We deny the petition and partially affirm the CA
decision.
Divorce, the legal dissolution of a lawful union for a
cause arising after the marriage, are of two types: (1)
absolute divorce or a vinculo matrimonii, which
terminates the marriage, and (2) limited divorce or a
mensa et thoro, which suspends it and leaves the bond
in full force.9 In this jurisdiction, the following rules
exist:
1. Philippine law does not provide for absolute
divorce; hence, our courts cannot grant it.10
2. Consistent with Articles 1511 and 1712 of the
New Civil Code, the marital bond between two
Filipinos cannot be dissolved even by an
absolute divorce obtained abroad.13
3. An absolute divorce obtained abroad by a
couple, who both aliens, may be recognized in
the Philippines, provided it is consistent with
their respective national laws.14
4. In mixed marriages involving a Filipino and a
foreigner, the former is allowed to contract a
subsequent marriage in case the absolute
divorce is validly obtained abroad by the alien
spouse capacitating him or her to remarry.15
On July 6, 1987, then President Corazon C. Aquino
signed into law Executive Order (E.O.) No. 209,
otherwise known as the Family Code of the
Philippines, which took effect on August 3,
1988.16 Shortly thereafter , E.O. No. 227 was issued on
July 17, 1987.17 Aside from amending Articles 36 and
39 of the Family Code, a second paragraph was added
to Article 26.18 This provision was originally deleted
by the Civil Code Revision Committee (Committee),but it
was presented and approved at a Cabinet meeting
after Pres. Aquino signed E.O. No. 209.19 As modified,
Article 26 now states:
Art. 26. All marriages solemnized outside the
Philippines, in accordance with the laws in force in the
where 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 Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse
capacitating him her to remarry under Philippine law.
Paragraph 2 of Article 26 confers jurisdiction on
Philippine courts to extend the effect of a foreign
divorce decree to a Filipino spouse without
undergoing trial to determine the validity of the
dissolution of the marriage.20 It authorizes our courts
to adopt the effects of a foreign divorce decree
precisely because the Philippines does not allow
divorce.21 Philippine courts cannot try the case on the
merits because it is tantamount to trying a divorce
case.22Under the principles of comity, our jurisdiction
recognizes a valid divorce obtained by the spouse of
foreign nationality, but the legal effects thereof, e.g., on
custody, care and support of the children or property
relations of the spouses, must still be determined by
our courts.23
According to Judge Alicia Sempio-Diy, a member of
the Committee, the idea of the amendment is to avoid
the absurd situation of a Filipino as still being married
to his or her alien spouse, although the latter is no
longer married to the former because he or she had
obtained a divorce abroad that is recognized by his or
national law.24 The aim was that it would solved the
problem of many Filipino women who, under the New
Civil Code, are still considered married to their alien
husbands even after the latter have already validly
divorced them under their (the husbands') national
laws and perhaps have already married again.25
In 2005, this Court concluded that Paragraph 2 of
Article 26 applies to a case where, at the time of the
celebration of the marriage, the parties were Filipino
citizens, but later on, one of them acquired foreign
citizenship by naturalization, initiated a divorce
proceeding, and obtained a favorable decree. We held
in Republic of the Phils. v. Orbecido III:26
The jurisprudential answer lies latent in the 1998 case
of Quita v. Court of Appeals. In Quita, the parties were,
as in this case, Filipino citizens when they got married.
The wife became naturalized American citizen n 1954
and obtained a divorce in the same year. The court
therein hinted, by the 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 foreign
citizen and obtains divorce decree. The Filipino spouse
should likewise be allowed to remarry as if the other
party were foreigner at the time of the solemnization
of the marriage. To rule otherwise would be to
sanction absurdity and injustice. x x x
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.
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 marriage, but
their citizenship at the time valid divorced obtained
abroad by the alien spouse capacitating the latter to
remarry.
Now, the Court is tasked to resolve whether, under the
same provision, a Filipino citizen has the capacity to
remarry under Philippine law after initiating a divorce
proceeding abroad and obtaining a favorable
judgment against his or her alien spouse who is
capacitated to remarry. Specifically, Manalo pleads for
the recognition of enforcement of the divorced decree
rendered by the Japanese court and for the
cancellation of the entry of marriage in the local civil
registry " in order that it would not appear anymore
that she is still married to the said Japanese national
who is no longer her husband or is no longer married
to her; [and], in the event that [she] decides to be
remarried, she shall not be bothered and disturbed by
said entry of marriage," and to use her maiden
surname.
We rule in the affirmative.
Both Dacasin v. Dacasin28 and Van Dorn29 already
recognized a foreign divorce decree that was initiated
and obtained by the Filipino spouse and extended its
legal effects on the issues of child custody and
property relation,respectively.
In Dacasin, post-divorce, the former spouses executed
an Agreement for the joint custody of their minor
daughter. Later on, the husband who is a US citizen,
sued his Filipino wife enforce the Agreement, alleging
that it was only the latter who exercised sole custody
of their child. The trial court dismissed the action for
lack of jurisdiction, on the ground, among others, that
the divorce decree is binding following the "nationality
rule" prevailing in this jurisdiction. The husband
moved to reconsider, arguing that the divorce decree
obtained by his former wife is void, but it was denied.
In ruling that the trial court has jurisdiction to
entertain the suit bu not to enforce the Agreement,
which is void, this Court said:
Nor can petitioner rely on the divorce decree's alleged
invalidity - not because the Illinois court lacked
jurisdiction or that the divorced decree violated
Illinois law, but because the divorce was obtained by
his Filipino spouse - to support the Agreement's
enforceability . The argument that foreigners in this
jurisdiction are not bound by foreign divorce decrees
is hardly novel. Van Dron v. Romillo settled the matter
by holding that an alien spouse of a Filipino is bound
by a divorce decree obtained abroad. There, we
dismissed the alien divorcee's Philippine suit for
accounting of alleged post-divorce conjugal property
and rejected his submission that the foreign divorce
(obtained by the Filipino spouse) is not valid in this
jurisdiction x x x.30
Van Dorn was decided before the Family Code took
into effect. There, a complaint was filed by the ex-
husband , who is a US citizen, against his Filipino wife
to render an accounting of a business that was alleged
to be a conjugal property and to be declared with right
to manage the same. Van Dorn moved to dismiss the
case on the ground that the cause of action was barred
by previous judgment in the divorce proceedings that
she initiated, but the trial court denied the motion. On
his part, her ex-husband averred that the divorce
decree issued by the Nevada court could not 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
. In dismissing the case filed by the alien spouse, the
Court discussed the effect of the foreign divorce on the
parties and their conjugal property in the Philippines.
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. 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.
Is it true that owing to the nationality principle
embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy and
morality. However, aliens may obtain divorce abroad,
which may be recognized in the Philippines, provided
they are valid according to their national law. In this
case, the divorce in Nevada released private
respondent from the marriage from 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 stone 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 penalty, that the guilty party shall not marry
again, that party, as well as the other, is still absolutely
feed 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 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.31
In addition, the fact that a validity obtained foreign
divorce initiated by the Filipino spouse can be
recognized and given legal effects in the Philippines is
implied from Our rulings in Fujiki v. Marinay, et
al.32 and Medina v. Koike.33
In Fujiki, the Filipino wife, with the help of her
husband, who is a Japanese national, was able to
obtain a judgment from Japan's family court. Which
declared the marriage between her and her second
husband, who is a Japanese national, void on the
ground of bigamy. In resolving the issue of whether a
husband or wife of a prior marriage can file a petition
to recognize a foreign judgment nullifying the
subsequent marriage between his her spouse and a
foreign citizen on the ground of bigamy, We ruled:
Fujiki has the personality to file a petition to recognize
the Japanese Family Court judgment nullifying the
marriage between Marinay and Maekara on the
ground of bigamy because the judgment concerns his
civil status as married to Marinay. For the same reason
he has the personality to file a petition under Rule 108
to cancel the entry of marriage between Marinay and
Maekara in the civil registry on the basis of the decree
of the Japanese Family Court.
There is no doubt that the prior spouse has a personal
and material interest in maintaining the integrity of
the marriage he contracted and the property relations
arising from it. There is also no doubt that he is
interested in the cancellation of an entry of a bigamous
marriage in the civil registry, which compromises the
public record of his marriage. The interest derives
from the substantive right of the spouse not only to
preserve (or dissolve, in limited instances) his most
intimate human relation, but also to protect his
property interests that arise by operation of law the
moment he contracts marriage. These property
interests in marriage included the right to be
supported "in keeping with the financial capacity of
the family" and preserving the property regime of the
marriage.
Property rights are already substantive rights
protected by the Constitution, but a spouse's right in a
marriage extends further to relational rights
recognized under Title III ("Rights and Obligations
between Husband and Wife") of the Family Code. x x
x34
On the other hand, in Medina, the Filipino wife and her
Japanese husband jointly filed for divorce, which was
granted.1âwphi1 Subsequently, she filed a petition
before the RTC for judicial recognition of foreign
divorce and declaration of capacity to remarry
pursuant to Paragraph 2 of Article 26. The RTC denied
the petition on the ground that the foreign divorce
decree and the national law of the alien spouse
recognizing his capacity to obtain a divorce must be
proven in accordance with Sections 24 and 25 of Rule
132 of the Revised Rules on Evidence. This Court
agreed and ruled that, consistent with Corpuz v. Sto.
Tomas, et al.35 and Garcia v. Recio,36 the divorce decree
and the national law of the alien spouse must be
proven. Instead of dismissing the case, We referred it
to the CA for appropriate action including the
reception of evidence to determine and resolve the
pertinent factual issues.
There is no compelling reason to deviate from the
above-mentioned rulings. When this Court recognized
a foreign divorce decree that was initiated and
obtained by the Filipino spouse and extended its legal
effects on the issues of child custody and property
relation, it should not stop short in a likewise
acknowledging that one of the usual and necessary
consequences of absolute divorce is the right to
remarry. Indeed, there is no longer a mutual obligation
to live together and observe fidelity. When the
marriage tie is severed and ceased to exist, the civil
status and the domestic relation of the former spouses
change as both of them are freed from the marital
bond.
The dissent is of the view that, under the nationality
principle, Manalo's personal status is subject to
Philippine law, which prohibits absolute divorce.
Hence, the divorce decree which she obtained under
Japanese law cannot be given effect, as she is, without
dispute, a national not of Japan, bit of the Philippines.
It is said that that a contrary ruling will subvert not
only the intention of the framers of the law, but also
that of the Filipino peopl, as expressed in the
Constitution. The Court is, therefore, bound to respect
the prohibition until the legislature deems it fit to lift
the same.
We beg to differ.
Paragraph 2 of Artilce 26 speaksof "a divorce x x x
validly obtained abroad by the alien spouse
capacitating him or her to remarry." Based on a clear
and plain reading of the provision, it only requires that
there be a divorce validly obtained abroad. The letter
of the law does not demand that the alien spouse
should be the one who initiated the proceeding
wherein the divorce decree was granted. It does not
distinguish whether the Filipino spouse is the
petitioner or the respondent in the foreign divorce
proceeding. The Court is bound by the words of the
statute; neither can We put words in the mouth of
lawmakers.37 The legislature is presumed to know the
meaning of the words to have used words advisely and
to have expressed its intent by the use of such words
as are found in the statute. Verba legis non est
recedendum, or from the words if a statute there
should be departure."38
Assuming, for the sake of argument, that the
word "obtained" should be interpreted to mean that
the divorce proceeding must be actually initiated by
the alien spouse, still, the Court will not follow the
letter of the statute when to do so would depart from
the true intent of the legislature or would otherwise
yield conclusions inconsistent with the general
purpose of the act.39 Law have ends to achieve, and
statutes should be so construed as not to defeat but to
carry out such ends and purposes.40 As held in League
of Cities of the Phils. et al. v. COMELEC et. al.:41
The legislative intent is not at all times accurately
reflected in the manner in which the resulting law is
couched. Thus, applying a verba legis or strictly literal
interpretation of a statute may render it meaningless
and lead to inconvience, an absurd situation or
injustice. To obviate this aberration, and bearing in
mind the principle that the intent or the spirit of the
law is the law itself, resort should be to the rule that
the spirit of the law control its letter.
To reiterate, the purpose of Paragraph 2 of Article 26
is to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after
a foreign divorce decree that is effective in the country
where it was rendered, is no longer married to the
Filipino spouse. The provision is a corrective measure
is free to marry under the laws of his or her
countr.42 Whether the Filipino spouse initiated the
foreign divorce proceeding or not, a favorable decree
dissolving the marriage bond and capacitating his or
her alien spouse to remarry will have the same result:
the Filipino spouse will effectively be without a
husband or wife. A Filipino who initiated a foreign
divorce proceeding is in the same place and in like
circumstances as a Filipino who is at the receiving end
of an alien initiated proceeding. Therefore, the subject
provision should not make a distinction. In both
instance, it is extended as a means to recognize the
residual effect of the foreign divorce decree on a
Filipinos whose marital ties to their alien spouses are
severed by operations of their alien spouses are
severed by operation on the latter's national law.
Conveniently invoking the nationality principle is
erroneous. Such principle, found under Article 15 of
the City Code, is not an absolute and unbending rule.
In fact, the mer e existence of Paragraph 2 of Article 26
is a testament that the State may provide for an
exception thereto. Moreover, blind adherence to the
nationality principle must be disallowed if it would
cause unjust discrimination and oppression to certain
classes of individuals whose rights are equally
protected by law. The courts have the duty to enforce
the laws of divorce as written by the Legislature only if
they are constitutional.43
While the Congress is allowed a wide leeway in
providing for a valid classification and that its decision
is accorded recognition and respect by the court of
justice, such classification may be subjected to judicial
review.44 The deference stops where the classification
violates a fundamental right, or prejudices persons
accorded special protection by the
Constitution.45 When these violations arise, this Court
must discharge its primary role as the vanguard of
constitutional guaranties, and require a stricter and
more exacting adherence to constitutional
limitations. If
46 a legislative classification
impermissibly interferes with the exercise of a
fundamental right or operates to the peculiar
disadvantage of a suspect class strict judicial scrutiny
is required since it is presumed unconstitutional, and
the burden is upon the government to prove that the
classification is necessary to achieve a compelling
state interest and that it is the least restrictive means
to protect such interest.47
"Fundamental rights" whose infringement leads to
strict scrutiny under the equal protection clause are
those basic liberties explicitly or implicitly guaranteed
in the Constitution.48 It includes the right to free
speech, political expression, press, assembly, and
forth, the right to travel, and the right to vote.49 On the
other hand, what constitutes compelling state interest
is measured by the scale rights and powers arrayed in
the Constitution and calibrated by history.50 It is akin
to the paramount interest of the state for which some
individual liberties must give way, such as the
promotion of public interest, public safety or the
general welfare.51 It essentially involves a public right
or interest that, because of its primacy, overrides
individual rights, and allows the former to take
precedence over the latter.52
Although the Family Code was not enacted by the
Congress, the same principle applies with respect to
the acts of the President which have the force and
effect of law unless declared otherwise by the court. In
this case, We find that Paragraph 2 of Article 26
violates one of the essential requisites53 of the equal
protection clause.54 Particularly, the limitation of the
provision only to a foreign divorce decree initiated by
the alien spouse is unreasonable as it is based on
superficial, arbitrary, and whimsical classification.
A Filipino who is married to another Filipino is not
similarly situated with a Filipino who is married to a
foreign citizen. There are real, material and substantial
differences between them. Ergo, they should not be
treated alike, both as to rights conferred and liabilities
imposed. Without a doubt, there are political,
economic cultural, and religious dissimilarities as well
as varying legal systems and procedures, all too
unfamiliar, that a Filipino national who is married to
an alien spouse has to contend with. More importantly,
while a divorce decree obtained abroad by a Filipino
against another Filipino is null and void, a divorce
decree obtained by an alien against his her Filipino
spouse is recognized if made in accordance with the
national law of the foreigner.55
On the contrary, there is no real and substantial
difference between a Filipino who initiated a foreign
divorce proceedings a Filipino who obtained a divorce
decree upon the instance of his or her alien spouse . In
the eyes of the Philippine and foreign laws, both are
considered as Filipinos who have the same rights and
obligations in a alien land. The circumstances
surrounding them are alike. Were it not for Paragraph
2 of Article 26, both are still married to their foreigner
spouses who are no longer their wives/husbands.
Hence, to make a distinction between them based
merely on the superficial difference of whether they
initiated the divorce proceedings or not is utterly
unfair. Indeed, the treatment gives undue favor to one
and unjustly discriminate against the other.
Further, the differentiation in Paragraph 2 Article 26 is
arbitrary. There is inequality in treatment because a
foreign divorce decree that was initiated and obtained
by a Filipino citizen against his or her alien spouse
would not be recognized even if based on grounds
similar to Articles 35, 36, 37 and 38 of the Family
Code.56 In filing for divorce based on these grounds,
the Filipino spouse cannot be accused of invoking
foreign law at whim, tantamount to insisting that he or
she should be governed with whatever law he or she
chooses. The dissent's comment that Manalo should be
"reminded that all is not lost, for she may still pray for
the severance of her martial ties before the RTC in
accordance with the mechanism now existing under
the Family Code" is anything but comforting. For the
guidance of the bench and the bar, it would have been
better if the dissent discussed in detail what these
"mechanism" are and how they specifically apply in
Manalo's case as well as those who are similarly
situated. If the dissent refers to a petition for
declaration of nullity or annulment of marriage, the
reality is that there is no assurance that our courts will
automatically grant the same. Besides, such
proceeding is duplicitous, costly, and protracted. All to
the prejudice of our kababayan.
It is argued that the Court's liberal interpretation of
Paragraph 2 of Artilce 26 encourages Filipinos to
marry foreigners, opening the floodgate to the
indiscriminate practice of Filipinos marrying foreign
nationals or initiating divorce proceedings against
their alien spouses.
The supposition is speculative and unfounded.
First, the dissent falls into a hasty generalization as no
data whatsoever was sworn to support what he
intends to prove. Second, We adhere to the
presumption of good faith in this jurisdiction. Under
the rules on evidence, it is disputable presumed (i.e.,
satisfactory if uncontradicted and overcome by other
evidence) that a person is innocent of crime or
wrong,57 that a person takes ordinary care of his
concerns,59 that acquiescence resulted from a belief
that the thing acquiesced in was conformable to the
law and fact, 60 that a man and woman deporting
themselves as husband and wife have entered into a
lawful contract of marriage,61 and that the law has
been obeyed.62 It is whimsical to easily attribute any
illegal, irregular or immoral conduct on the part of a
Filipino just because he or she opted to marry a
foreigner instead of a fellow Filipino. It is presumed
that interracial unions are entered into out of genuine
love and affection, rather than prompted by pure lust
or profit. Third, We take judicial notice of the fact that
Filipinos are relatively more forbearing and
conservative in nature and that they are more often
the victims or losing end of mixed marriages.
And Fourth, it is not for Us to prejudge the motive
behind Filipino's decision to marry an alien national.
In one case, it was said:
Motive for entering into a marriage are varied and
complex. The State does not and cannot dictated on
the kind of life that a couple chooses to lead. Any
attempt to regulate their lifestyle would go into the
realm of their right to privacy and would raise serious
constitutional questions. The right marital privacy
allows married couples to structure their marriages in
almost any way they see it fit, to live together or live
apart, to have children or no children, to love one
another or not, and so on. Thus, marriages entered
into for other purposes, limited or otherwise, such as
convenience, companionship, money, status, and title,
provided that they comply with all the legal requisites,
are equally valid. Love, though the ideal consideration
in a marriage contract, is not the only valid cause for
marriage. Other considerations, not precluded by law,
may validly support a marriage.63
The 1987 Constitution expresses that marriage, as an
inviolable social institution, is the foundation of the
family and shall be protected by the
State. Nevertheless, it was not meant to be a general
64
prohibition on divorce because Commissioner Jose
Luis Martin C. Gascon, in response to a question by
Father Joaquin G. Bernas during the deliberations of
the 1986 Constitutional Commission, was categorical
about this point.65 Their exchange reveal as follows:
MR. RAMA. Mr. Presiding Officer, may I ask that
Commissioner Bernas be recognized.
THE PRESIDING OFFICER (Mr. Colayco).
Commissioner Bernas is recognized.
FR. BERNAS. Just one question, and I am not sure if it
has been categorically answered. I refer specifically to
the proposal of Commissioner Gascon. Is this be
understood as a prohibition of a general law on
divorce? His intention is to make this a prohibition so
that the legislature cannot pass a divorce law.
MR. GASCON. Mr. Presding Officer, that was not
primarily my intention. My intention was primarily to
encourage the social institution of marriage, but not
necessarily discourage divorce. But now that the
mentioned the issue of divorce, my personal opinion is
to discourage it. Mr. Presiding Officer.
FR. BERNAS. No my question is more categorical. Does
this carry the meaning of prohibiting a divorce law?
MR. GASCON. No Mr. Presiding Officer.
FR. BERNAS. Thank you.66
Notably, a law on absolute divorce is not new in our
country. Effectivity March 11, 1917, Philippine courts
could grant an absolute divorce in the grounds of
adultery on the part of the wife or concubinage on the
part of the husband by virtue of Act No. 2710 of the
Philippine Legislature.67 On March 25, 1943, pursuant
to the authority conferred upon him by the
Commander-in-Chief fo the Imperial Japanese Forces
in the Philippines and with the approval of the latter,
the Chairman of the Philippine Executive Commission
promulgated an E.O. No. 141 ("New Divorce Law"),
which repealed Act No. 2710 and provided eleven
ground for absolute divorce, such as intentional or
unjustified desertion continuously for at least one year
prior to the filing of the action, slander by deed or
gross insult by one spouse against the other to such an
extent as to make further living together
impracticable, and a spouse's incurable
insanity. When the Philippines was liberated and the
68
Commonwealth Government was restored, it ceased to
have force and effect and Act No. 2710 again
prevailed.69 From August 30, 1950, upon the effectivity
of Republic Act No. 836 or the New Civil Code, an
absolute divorce obatined by Filipino citizens, whether
here or abroad, is no longer recognized.70
Through the years, there has been constant clamor
from various sectors of the Philippine society to re-
institute absolute divorce. As a matte of fcat, in the
currnet 17th Congress, House Bill (H.B.) Nos.
11671 106272 238073 and 602774 were filed in the
House of representatives. In substitution of these bills,
H.B. No. 7303 entitled "An Act Instituting Absolute
Divorce and Dissolution of Marriage in the
Philippines" or the Absolute Divorce Act of 2018 was
submitted by the House Committee on Population
And Family Relations of February 8, 2018. It was
approved on March 19, 2018 on Third Reading - with
134 in favor, 57 against, and 2 absentations. Under the
bill, the grounds for a judicial decree of absolute
divorce are as follows:
1. The grounds for legal separation under Article 55 of
the Family Code, modified or amended, as follows:
a. Physical violence or grossly abusive conduct
directed against the petitioner, a common child,
or a child of the petitioner;
b. Physical violence or moral pressure to
compel the petitioner to change religious or
political affiliation;
c. Attempt of respondent to corrupt or induce
the petitioner, a common child, or a child of a
petitioner, to engage in prostitution, or
connivance in such corruption or inducement;
d. Final judgment sentencing the respondent to
imprisonment of more than six (6) years, even
if pardoned;
e. Drug addiction or habitual alchoholism ro
chronic gambling of respondent;
f. Homosexuality of the respondent;
g. Contracting by the respondent of a
subsequent bigamous marriage, whether in the
Philippines or abroad;
h. Marital infidelity or perversion or having a
child with another person other than one's
spouse during the marriage, except when upon
the mutual agreement of the spouses, a child is
born to them by in vitro or a similar procedure
or when the wife bears a child after being a
victim of rape;
i. attempt by the respondent against the life of
the petitioner, a common child or a child of a
petitioner; and
j. Abandonment of petitioner by respondent
without justifiable cause for more than one (1)
year.
When the spouses are legally separated by judicial
decree for more thath two (2) years, either or both
spouses can petition the proper court for an absolute
divorce based on said judicial decree of legal
separation.
1. Grounds for annulment of marriage under Article 45
of the Family Code restated as follows:
a. The party in whose behalf it is sought to have
the marriage annulled was eighteen (18) years
of age or over but below twety-one (21), and
 the marriage was solemnized without the
consent of the parents guradian or personl
having substitute parental authority over the
party, in that order, unless after attaining the
age of twenty-one (21) such party freely
cohabited with the other and both lived
together as husband and wife;
b. either party was of unsound mind, unless
such party after coming to reason, freely
cohabited with the other as husband and wife;
c. The consent of either party was obtained by
fraud, unless such party afterwards with full
knowledge of the facts constituting the fraud,
freely cohabited with the other husband and
wife;
d. consent of either party was obtained by
force, intimidation or undue influence, unless
the same having disappeared or ceased, such
party thereafter freely cohabited with the other
as husband and wife;
e. Either party was physically incapable of
consummating the marriage with the other and
such incapacity continues or appears to be
incurable; and
f. Either part was afflicted with the sexually
transmissible infection found to be serious or
appears to be incurable.
Provided, That the ground mentioned in b, e and f
existed either at the time of the marriage or
supervening after the marriage.
1. When the spouses have been separated in fact for at
least five (5) years at the time the petition for absolute
divorce is filed, and the reconciliation is highly
improbable;
2. Psychological incapacity of either spouse as
provided for in Article 36 of the Family Code, whether
or not the incapacity was present at the time of the
celebration of the marriage or later;
3. When one of the spouses undergoes a gender
reassignment surgery or transition from one sex to
another, the other spouse is entitled to petition for
absolute divorce with the transgender or transsexual
as respondent, or vice-versa;
4. Irreconcilable marital differences and conflicts
which have resulted in the total breakdown of the
marriage beyond repair, despite earnest and repeated
efforts at reconciliation.
To be sure, a good number of Filipinos led by the
Roman Catholic Church react adversely to any attempt
to enact a law on absolute divorce, viewing it as
contrary to our customs, morals, and traditions that
has looked upon marriage and family as an institution
and their nature of permanence,
In the same breath that the establishment clause
restricts what the government can do with religion, it
also limits what religious sects can or cannot do. They
can neither cause the government to adopt their
particular doctrines as policy for everyone, nor can
they cause the government to restrict other groups. To
do so, in simple terms, would cause the State to adhere
to a particular religion and, thus establish a state
religion.76
The Roman Catholic Church can neither impose its
beliefs and convictions on the State and the rest of the
citizenry nor can it demand that the nation follow its
beliefs, even if it is sincerely believes that they are
good for country.77While marriage is considered a
sacrament, it has civil and legal consequences which
are governed by the Family Code.78 It is in this aspect,
bereft of any ecclesiastical overtone, that the State has
a legitimate right and interest to regulate.
The declared State policy that marriage, as an
inviolable social institution, is a foundation of the
family and shall be protected by the State, should not
be read in total isolation but must be harmonized with
other constitutional provision. Aside from
strengthening the solidarity of the Filipino family, the
State is equally mandated to actively promote its total
development.79 It is also obligated to defend, among
others, the right of children to special protection from
all forms of neglect, abuse, cruelty, exploitation, and
other conditions prejudicial to their development.80 To
Our mind, the State cannot effectively enforce these
obligation s if We limit the application of Paragraph 2
or Article 26 only those foreign divorce initiated by the
alien spouse. It is not amiss to point that the women
and children are almost always the helpless victims of
all forms of domestic abuse and violence. In fact,
among the notable legislation passed in order to
minimize, if not eradicate, the menace are R.A. No.
9262 ("Anti-Violence Against Women and Their
Children Act of 2004") R.A. No. 9710 ("The Magna
Carta of Women"), R.A. No 10354 ("The Responsible
Parenthood and Reproductive Health Act of 2012") and
R.A. No 9208 ("Anti-Trafficking in Person Act of
2003"), as amended by R.A. No. 10364 ("ExpandedAnti-
Trafficking in Persons Act of 2012").Moreover, in
protecting and strengthening the Filipino family as a
basic autonomous social institution, the Court must
not lose sight of the constitutional mandate to value
the dignity of every human person, guarantee full
respect for human rights, and ensure the fundamental
equality before the law of women and men.81
A prohibitive view of Paragraph 2 of Article 26 would
do more harm than good. If We disallow a Filipino
citizen who initiated and obtained a foreign divorce
from the coverage of Paragraph 2 Article 26 and still
require him or her to first avail of the existing
"mechanisms" under the Family Code, any subsequent
relationship that he or she would enter in the
meantime shall be considered as illicit in the eyes of
the Philippine law. Worse, any child born out such
"extra-marital" affair has to suffer the stigma of being
branded as illegitimate. Surely, these are just but a few
of the adverse consequences, not only to the parent
but also to the child, if We are to hold a restrictive
interpretation of the subject provision. The irony is
that the principle of inviolability of marriage under
Section 2, Article XV of the Constitution is meant to be
tilted in favor of marriage and against unions not
formalized by marriage, but without denying State
protection and assistance to live-in arrangements or to
families formed according to indigenous customs.82
This Court should not turn a blind eye to the realities
of the present time. With the advancement of
communication and information technology, as well as
the improvement of the transportation system that
almost instantly connect people from all over the
world, mixed marriages have become not too
uncommon. Likewise, it is recognized that not all
marriages are made in heaven and that imperfect
humans more often than not create imperfect
unions.83 Living in a flawed world, the unfortunate
reality for some is that the attainment of the
individual's full human potential and self fulfillment is
not found and achieved in the context of a marriage.
Thus it is hypocritical to safeguard the quantity of
existing marriages and, at the same time, brush aside
the truth that some of them are rotten quality.
Going back, we hold that marriage, being a mutual and
shared commitment between two parties, cannot
possibly be productive of any good to the society
where one is considered released from the marital
bond while the other remains bound to it.84 In
reiterating that the Filipino spouse should not be
discriminated against in his or her own country if the
ends of justice are to be served, San Luis v. San
Luis85 quoted:
x x x In Alonzo v. Intermediate Applellate Court, the
Court stated:
But as has also been aptly observed, we test a law by
its results: and likewise, we may add, by its purposes.
It is a cardinal rule that, in seeking the meaning of the
law, the first concern of the judge should be to
discover in its provisions the intent of the lawmaker.
Unquestionably, the law should never be interpreted
in such a way as to cause injustice as this is never
within the legislative intent. An indispensable part of
that intent, in fact, for we presume the good motives of
the legislature, is to render justice.
Thus, we interpret and apply the law not
independently of but in consonance with justice. Law
and justice are inseparable, and we must keep them
so. To be sure, there are some laws that, while
generally valid, may seem arbitrary when applied in a
particular case because only of our nature and
functions, to apply them just the same, in slavish
obedience to their language. What we do instead is
find a balance between the sord and the will, that
justice may be done even as the law is obeyed.
As judges, we are not automatons. We do not and must
not unfeelingly apply the law as it worded, yielding
like robots to the literal command without regard to
its cause and consequence. "Courts are apt to err by
sticking too closely to the words of law," so we are
warned, by Justice Holmes agaian, "where these words
import a policy that goes beyond them."
xxxx
More that twenty centuries ago, Justinian defined
justice "as the constant and perpetual wish to render
every one of his due." That wish continues to motivate
this Court when it assesses the facts and the law in
ever case brought to it for decisions. Justice is always
an essential ingredient of its decisions. Thus when the
facts warrant, we interpret the law in a way that will
render justice, presuming that it was the intention if
the lawmaker, to begin with, that the law be dispensed
with justice.86
Indeed, 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.87 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.88
The foregoing notwithstanding, We cannot yet
write finis to this controversy by granting Manalo's
petition to recognize and enforce the divorce decree
rendered by the Japanese court and to cancel the entry
of marriage in the Civil Registry of San Juan, Metro
Manila.
Jurisprudence has set guidelines before the Philippine
courts recognize a foreign judgment relating to the
status of a marriage where one of the parties is a
citizen of foreign country. Presentation solely of the
divorce decree will not suffice.89 The fact of divorce
must still first be proven.90 Before a 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.91
x x x 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.
The decree purports to be written act or record of an
act of an official body or tribunal of 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.92
In granting Manalo's petition, the CA noted:
In this case, Petitioner was able to submit before the
court a quo the 1) Decision of the Japanese Court
allowing the divorce; 2)
the Authentication/Certificate issued by the
Philippines Consulate General in Osaka, Japan of
the Decree of Divorce; and 3) Acceptance of Certificate
of Divorce byu the Petitioner and the Japanese
national. Under Rule 132, Sections 24 and 25, in
relation to Rule 39, Section 48 (b) of the Rules of
Court, these documents sufficiently prove the subject
Divorce Decree as a fact. Thus, We are constrained to
recognize the Japanese Court's judgment decreeing the
divorce.93
If the opposing party fails to properly object, as in this
case, the divorce decree is rendered admissible a a
written act of the foreign court.94 As it appears, the
existence of the divorce decree was not denied by the
OSG; neither was the jurisdiction of the divorce court
impeached nor the validity of its proceedings
challenged on the ground of collusion, fraud, or clear
mistake of fact or law, albeit an opportunity to do so.95
Nonetheless, the Japanese law on divorce must still be
proved.
x x x 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
defendants have the burden of proving the material
allegations in their answer when they introduce new
matters. x x x
It is well-settled in our jurisdiction that our courts
cannot take judicial notice of foreign laws. Like any
other facts, they must alleged and proved. x x x The
power of judicial notice must be exercise d with
caution, and every reasonable doubt upon the subject
should be resolved in the negative.96
Since the divorce was raised by Manalo, the burden of
proving the pertinent Japanese law validating it, as
well as her former husband's capacity to remarry, fall
squarely upon her. Japanese laws on persons and
family relations are not among those matters that
Filipino judges are supposed to know by reason of
their judicial function.
WHEREFORE, the petition for review
on certiorari is DENIED. The September 18, 2014
Decision and October 12, 2015 Resolution if the Court
of Appeals in CA G.R. CV. No. 100076, are AFFIRMED
IN PART. The case is REMANDED to the court of
origin for further proceedings and reception of
evidence as to the relevant Japanese law on divorce.
SO ORDERED