Article 7 of Family Code Persons authorized to solemnize marriage

Art. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his
church or religious sect and registered with the civil registrar general, acting within the limits of
the written authority granted by his church or religious sect and provided that at least one of the
contracting parties belongs to the solemnizing officer's church or religious sect;
(3) Any ship captain or airplane chief only in the case mentioned in Article 31;
(4) Any military commander of a unit to which a chaplain is assigned, in the absence of the
latter, during a military operation, likewise only in the cases mentioned in Article 32;
(5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a)
RODOLFO G. NAVARRO, complainant,
vs.
JUDGE HERNANDO C. DOMAGTOY, respondent.
ROMERO, J.:p
The complainant in this administrative case is the Municipal Mayor of Dapa, Surigao del Norte,
Rodolfo G. Navarro. He has submitted evidence in relation to two specific acts committed by
respondent Municipal Circuit Trial Court Judge Hernando Domagtoy, which, he contends,
exhibits gross misconduct as well as inefficiency in office and ignorance of the law.
First, on September 27, 1994, respondent judge solemnized the wedding between Gaspar A.
Tagadan and Arlyn F. Borga, despite the knowledge that the groom is merely separated from his
first wife.
Second, it is alleged that he performed a marriage ceremony between Floriano Dador Sumaylo
and Gemma G. del Rosario outside his court's jurisdiction on October 27, 1994. Respondent
judge holds office and has jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos,
Surigao del Norte. The wedding was solemnized at the respondent judge's residence in the
municipality of Dapa, which does not fall within his jurisdictional area of the municipalities of Sta.
Monica and Burgos, located some 40 to 45 kilometers away from the municipality of Dapa,
Surigao del Norte.
In his letter-comment to the office of the Court Administrator, respondent judge avers that the
office and name of the Municipal Mayor of Dapa have been used by someone else, who, as the
mayor's "lackey," is overly concerned with his actuations both as judge and as a private person.
The same person had earlier filed Administrative Matter No 94-980-MTC, which was dismissed
for lack of merit on September 15, 1994, and Administrative Matter No. OCA-IPI-95-16, "Antonio
Adapon v. Judge Hernando C. Domagtoy," which is still pending.
In relation to the charges against him, respondent judge seeks exculpation from his act of having
solemnized the marriage between Gaspar Tagadan, a married man separated from his wife, and
Arlyn F. Borga by stating that he merely relied on the Affidavit issued by the Municipal Trial
Judge of Basey, Samar, confirming the fact that Mr. Tagadan and his first wife have not seen
each other for almost seven years. 1 With respect to the second charge, he maintains that in
solemnizing the marriage between Sumaylo and del Rosario, he did not violate Article 7,

paragraph 1 of the Family Code which states that: "Marriage may be solemnized by: (1) Any
incumbent member of the judiciary within the court's jurisdiction;" and that article 8 thereof
applies to the case in question.
The complaint was not referred, as is usual, for investigation, since the pleadings submitted
were considered sufficient for a resolution of the case. 2
Since the countercharges of sinister motives and fraud on the part of complainant have not been
sufficiently proven, they will not be dwelt upon. The acts complained of and respondent judge's
answer thereto will suffice and can be objectively assessed by themselves to prove the latter's
malfeasance.
The certified true copy of the marriage contract between Gaspar Tagadan and Arlyn Borga
states that Tagadan's civil status is "separated." Despite this declaration, the wedding ceremony
was solemnized by respondent judge. He presented in evidence a joint affidavit by Maurecio A.
Labado, Sr. and Eugenio Bullecer, subscribed and sworn to before Judge Demosthenes C.
Duquilla, Municipal Trial Judge of Basey, Samar. 3 The affidavit was not issued by the latter
judge, as claimed by respondent judge, but merely acknowledged before him. In their affidavit,
the affiants stated that they knew Gaspar Tagadan to have been civilly married to Ida D.
Pearanda in September 1983; that after thirteen years of cohabitation and having borne five
children, Ida Pearanda left the conjugal dwelling in Valencia, Bukidnon and that she has not
returned nor been heard of for almost seven years, thereby giving rise to the presumption that
she is already dead.
In effect, Judge Domagtoy maintains that the aforementioned joint affidavit is sufficient proof of
Ida Pearanda's presumptive death, and ample reason for him to proceed with the marriage
ceremony. We do not agree.
Article 41 of the Family Code expressly provides:
A marriage contracted by any person during the subsistence of a previous marriage shall be
null and void, unless before the celebration of the subsequent marriage, the prior spouse
had been absent for four consecutive years and the spouse present had a well-founded
belief that the absent spouse was already dead. In case of disappearance where there is
danger of death under the circumstances set forth in the provisions of Articles 391 of the
Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph, the
spouse present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. (Emphasis added.)
There is nothing ambiguous or difficult to comprehend in this provision. In fact, the law is clear
and simple. Even if the spouse present has a well-founded belief that the absent spouse was
already dead, a summary proceeding for the declaration of presumptive death is necessary in
order to contract a subsequent marriage, a mandatory requirement which has been precisely
incorporated into the Family Code to discourage subsequent marriages where it is not proven
that the previous marriage has been dissolved or a missing spouse is factually or presumptively
dead, in accordance with pertinent provisions of law.

In the case at bar, Gaspar Tagadan did not institute a summary proceeding for the declaration of
his first wife's presumptive death. Absent this judicial declaration, he remains married to Ida
Pearanda. Whether wittingly or unwittingly, it was manifest error on the part of respondent
judge to have accepted the joint affidavit submitted by the groom. Such neglect or ignorance of
the law has resulted in a bigamous, and therefore void, marriage. Under Article 35 of the Family
Code, " The following marriage shall be void from the beginning: (4) Those bigamous . . .
marriages not falling under Article 41."
The second issue involves the solemnization of a marriage ceremony outside the court's
jurisdiction, covered by Articles 7 and 8 of the Family Code, thus:
Art. 7. Marriage may be solemnized by :
(1) Any incumbent member of the judiciary within the court's jurisdiction;
xxx xxx xxx (Emphasis supplied.)
Art. 8. The marriage shall be solemnized publicly in the chambers the judge or in open
court, in the church, chapel or temple, or in the office of the consul-general, consul or viceconsul, as the case may be, and not elsewhere, except in cases of marriages contracted
on the point of death or in remote places in accordance with Article 29 of this Code, or
where both parties request the solemnizing officer in writing in which case the marriage
may be solemnized at a house or place designated by them in a sworn statement to that
effect.
Respondent judge points to Article 8 and its exceptions as the justification for his having
solemnized the marriage between Floriano Sumaylo and Gemma del Rosario outside of his
court's jurisdiction. As the aforequoted provision states, a marriage can be held outside of the
judge's chambers or courtroom only in the following instances: (1) at the point of death, (2) in
remote places in accordance with Article 29 or (3) upon request of both parties in writing in a
sworn statement to this effect. There is no pretense that either Sumaylo or del Rosario was at
the point of death or in the remote place. Moreover, the written request presented addressed to
the respondent judge was made by only one party, Gemma del Rosario. 4
More importantly, the elementary principle underlying this provision is the authority of the
solemnizing judge. Under Article 3, one of the formal requisites of marriage is the "authority of
the solemnizing officer." Under Article 7, marriage may be solemnized by, among others, "any
incumbent member of the judiciary within the court's jurisdiction." Article 8, which is a directory
provision, refers only to the venue of the marriage ceremony and does not alter or qualify the
authority of the solemnizing officer as provided in the preceding provision. Non-compliance
herewith will not invalidate the marriage.
A priest who is commissioned and allowed by his local ordinary to marry the faithful, is
authorized to do so only within the area of the diocese or place allowed by his Bishop. An
appellate court Justice or a Justice of this Court has jurisdiction over the entire Philippines to
solemnize marriages, regardless of the venue, as long as the requisites of the law are complied
with. However, judges who are appointed to specific jurisdictions, may officiate in weddings only
within said areas and not beyond. Where a judge solemnizes a marriage outside his court's
jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which
while it may not affect the validity of the marriage, may subject the officiating official to
administrative liability. 5

Inasmuch as respondent judge's jurisdiction covers the municipalities of Sta. Monica and
Burgos, he was not clothed with authority to solemnize a marriage in the municipality of Dapa,
Surigao del Norte. By citing Article 8 and the exceptions therein as grounds for the exercise of
his misplaced authority, respondent judge again demonstrated a lack of understanding of the
basic principles of civil law.
Accordingly, the Court finds respondent to have acted in gross ignorance of the law. The legal
principles applicable in the cases brought to our attention are elementary and uncomplicated,
prompting us to conclude that respondent's failure to apply them is due to a lack of
comprehension of the law.
The judiciary should be composed of persons who, if not experts, are at least, proficient in the
law they are sworn to apply, more than the ordinary laymen. They should be skilled and
competent in understanding and applying the law. It is imperative that they be conversant with
basic legal principles like the ones involved in instant case. 6 It is not too much to expect them to
know and apply the law intelligently. 7 Otherwise, the system of justice rests on a shaky
foundation indeed, compounded by the errors committed by those not learned in the law. While
magistrates may at times make mistakes in judgment, for which they are not penalized, the
respondent judge exhibited ignorance of elementary provisions of law, in an area which has
greatly prejudiced the status of married persons.
The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous and void, there
being a subsisting marriage between Gaspar Tagadan and Ida Pearanda.
The Office of the Court Administrator recommends, in its Memorandum to the Court, a six-month
suspension and a stern warning that a repetition of the same or similar acts will be dealt with
more severely. Considering that one of the marriages in question resulted in a bigamous union
and therefore void, and the other lacked the necessary authority of respondent judge, the Court
adopts said recommendation. Respondent is advised to be more circumspect in applying the law
and to cultivate a deeper understanding of the law.
IN VIEW OF THE FOREGOING, respondent Judge Hernando C. Domagtoy is hereby
SUSPENDED for a period of six (6) months and given a STERN WARNING that a repetition of
the same or similar acts will be dealt with more severely.

MARRIAGE LICENSE
Article 9 to 25 of Family Code Art. 9. A marriage license shall be issued by the local civil
registrar of the city or municipality where either contracting party habitually resides, except in
marriages where no license is required in accordance with Chapter 2 of this Title. (58a)
Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general,
consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license
and the duties of the local civil registrar and of the solemnizing officer with regard to the
celebration of marriage shall be performed by said consular official. (75a)
Art. 11. Where a marriage license is required, each of the contracting parties shall file separately
a sworn application for such license with the proper local civil registrar which shall specify the
following:
(1) Full name of the contracting party;
(2) Place of birth;

(3) Age and date of birth;

(4) Civil status;
(5) If previously married, how, when and where the previous marriage was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person having charge, in case the
contracting party has neither father nor mother and is under the age of twenty-one years.
The applicants, their parents or guardians shall not be required to exhibit their residence
certificates in any formality in connection with the securing of the marriage license. (59a)
Art. 12. The local civil registrar, upon receiving such application, shall require the presentation of
the original birth certificates or, in default thereof, the baptismal certificates of the contracting
parties or copies of such documents duly attested by the persons having custody of the
originals. These certificates or certified copies of the documents by this Article need not be
sworn to and shall be exempt from the documentary stamp tax. The signature and official title of
the person issuing the certificate shall be sufficient proof of its authenticity.
If either of the contracting parties is unable to produce his birth or baptismal certificate or a
certified copy of either because of the destruction or loss of the original or if it is shown by an
affidavit of such party or of any other person that such birth or baptismal certificate has not yet
been received though the same has been required of the person having custody thereof at least
fifteen days prior to the date of the application, such party may furnish in lieu thereof his current
residence certificate or an instrument drawn up and sworn to before the local civil registrar
concerned or any public official authorized to administer oaths. Such instrument shall contain the
sworn declaration of two witnesses of lawful age, setting forth the full name, residence and
citizenship of such contracting party and of his or her parents, if known, and the place and date
of birth of such party. The nearest of kin of the contracting parties shall be preferred as
witnesses, or, in their default, persons of good reputation in the province or the locality.
The presentation of birth or baptismal certificate shall not be required if the parents of the
contracting parties appear personally before the local civil registrar concerned and swear to the
correctness of the lawful age of said parties, as stated in the application, or when the local civil
registrar shall, by merely looking at the applicants upon their personally appearing before him,
be convinced that either or both of them have the required age. (60a)
Art. 13. In case either of the contracting parties has been previously married, the applicant shall
be required to furnish, instead of the birth or baptismal certificate required in the last preceding
article, the death certificate of the deceased spouse or the judicial decree of the absolute
divorce, or the judicial decree of annulment or declaration of nullity of his or her previous
marriage.
In case the death certificate cannot be secured, the party shall make an affidavit setting forth this
circumstance and his or her actual civil status and the name and date of death of the deceased
spouse. (61a)
Art. 14. In case either or both of the contracting parties, not having been emancipated by a
previous marriage, are between the ages of eighteen and twenty-one, they shall, in addition to
the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their
marriage of their father, mother, surviving parent or guardian, or persons having legal charge of
them, in the order mentioned. Such consent shall be manifested in writing by the interested
party, who personally appears before the proper local civil registrar, or in the form of an affidavit
made in the presence of two witnesses and attested before any official authorized by law to
administer oaths. The personal manifestation shall be recorded in both applications for marriage
license, and the affidavit, if one is executed instead, shall be attached to said applications. (61a)
Art. 15. Any contracting party between the age of twenty-one and twenty-five shall be obliged to
ask their parents or guardian for advice upon the intended marriage. If they do not obtain such
advice, or if it be unfavorable, the marriage license shall not be issued till after three months
following the completion of the publication of the application therefor. A sworn statement by the

contracting parties to the effect that such advice has been sought, together with the written
advice given, if any, shall be attached to the application for marriage license. Should the parents
or guardian refuse to give any advice, this fact shall be stated in the sworn statement. (62a)
Art. 16. In the cases where parental consent or parental advice is needed, the party or parties
concerned shall, in addition to the requirements of the preceding articles, attach a certificate
issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this
Code or a marriage counselor duly accredited by the proper government agency to the effect
that the contracting parties have undergone marriage counseling. Failure to attach said
certificates of marriage counseling shall suspend the issuance of the marriage license for a
period of three months from the completion of the publication of the application. Issuance of the
marriage license within the prohibited period shall subject the issuing officer to administrative
sanctions but shall not affect the validity of the marriage.
Should only one of the contracting parties need parental consent or parental advice, the other
party must be present at the counseling referred to in the preceding paragraph. (n)
Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and
residences of the applicants for a marriage license and other data given in the applications. The
notice shall be posted for ten consecutive days on a bulletin board outside the office of the local
civil registrar located in a conspicuous place within the building and accessible to the general
public. This notice shall request all persons having knowledge of any impediment to the
marriage to advise the local civil registrar thereof. The marriage license shall be issued after the
completion of the period of publication. (63a)
Art. 18. In case of any impediment known to the local civil registrar or brought to his attention, he
shall note down the particulars thereof and his findings thereon in the application for marriage
license, but shall nonetheless issue said license after the completion of the period of publication,
unless ordered otherwise by a competent court at his own instance or that of any interest party.
No filing fee shall be charged for the petition nor a corresponding bond required for the
issuances of the order. (64a)
Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or
regulations before the issuance of the marriage license. No other sum shall be collected in the
nature of a fee or tax of any kind for the issuance of said license. It shall, however, be issued
free of charge to indigent parties, that is those who have no visible means of income or whose
income is insufficient for their subsistence a fact established by their affidavit, or by their oath
before the local civil registrar. (65a) chan robles virtual law library
Art. 20. The license shall be valid in any part of the Philippines for a period of one hundred
twenty days from the date of issue, and shall be deemed automatically canceled at the
expiration of the said period if the contracting parties have not made use of it. The expiry date
shall be stamped in bold characters on the face of every license issued. (65a)
Art. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be
necessary for them before a marriage license can be obtained, to submit a certificate of legal
capacity to contract marriage, issued by their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate of legal
capacity herein required, submit an affidavit stating the circumstances showing such capacity to
contract marriage. (66a)
Art. 22. The marriage certificate, in which the parties shall declare that they take each other as
husband and wife, shall also state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according to law, except in marriage
provided for in Chapter 2 of this Title;
(5) That either or both of the contracting parties have secured the parental consent in
appropriate cases;
(6) That either or both of the contracting parties have complied with the legal requirement
regarding parental advice in appropriate cases; and

(7) That the parties have entered into marriage settlement, if any, attaching a copy thereof. (67a)
Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the
contracting parties the original of the marriage certificate referred to in Article 6 and to send the
duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to
the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be
issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage
certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage
certificate, the copy of the marriage certificate, the original of the marriage license and, in proper
cases, the affidavit of the contracting party regarding the solemnization of the marriage in place
other than those mentioned in Article 8. (68a)
Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by this
Title, and to administer oaths to all interested parties without any charge in both cases. The
documents and affidavits filed in connection with applications for marriage licenses shall be
exempt from documentary stamp tax. (n)
Art. 25. The local civil registrar concerned shall enter all applications for marriage licenses filed
with him in a registry book strictly in the order in which the same are received. He shall record in
said book the names of the applicants, the date on which the marriage license was issued, and
such other data as may be necessary. (n)

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
COURT OF APPEALS AND ANGELINA M. CASTRO, respondents.
Parungao, Abesamis, Eleazar & Pulgar Law Offices for private respondent.

PUNO, J.:
The case at bench originated from a petition filed by private respondent Angelina M. Castro in
the Regional Trial Court of Quezon City seeking a judicial declaration of nullity of her marriage to
Edwin F. Cardenas. 1 As ground therefor, Castro claims that no marriage license was ever issued
to them prior to the solemnization of their marriage.
Despite notice, defendant Edwin F. Cardenas failed to file his answer. Consequently, he was
declared in default. Trial proceeded in his absence.
The controlling facts are undisputed:
On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas were married in a civil ceremony
performed by Judge Pablo M. Malvar, City Court Judge of Pasay City. The marriage was
celebrated without the knowledge of Castro's parents. Defendant Cardenas personally attended
to the processing of the documents required for the celebration of the marriage, including the
procurement of the marriage, license. In fact, the marriage contract itself states that marriage
license no. 3196182 was issued in the name of the contracting parties on June 24, 1970 in
Pasig, Metro Manila.
The couple did not immediately live together as husband and wife since the marriage was
unknown to Castro's parents. Thus, it was only in March 1971, when Castro discovered she was

pregnant, that the couple decided to live together. However, their cohabitation lasted only for
four (4) months. Thereafter, the couple parted ways. On October 19, 1971, Castro gave birth.
The baby was adopted by Castro's brother, with the consent of Cardenas.
The baby is now in the United States. Desiring to follow her daughter, Castro wanted to put in
order her marital status before leaving for the States. She thus consulted a lawyer, Atty.
Frumencio E. Pulgar, regarding the possible annulment of her marriage. Through her lawyer's
efforts, they discovered that there was no marriage license issued to Cardenas prior to the
celebration of their marriage.
As proof, Angelina Castro offered in evidence a certification from the Civil Register of Pasig,
Metro Manila. It reads:
February 20, 1987
TO WHOM IT MAY CONCERN:
This is to certify that the names EDWIN F. CARDENAS and ANGELINA M.
CASTRO who were allegedly married in the Pasay City Court on June 21,
1970
under
an
alleged
(s)upportive marriage
license
no. 3196182 allegedly issued in the municipality on June 20, 1970 cannot
be located as said license no. 3196182 does not appear from our records.
Issued upon request of Mr. Ed Atanacio.(Sgd) CENONA D. QUINTOS
Senior Civil Registry Officer
Castro testified that she did not go to the civil registrar of Pasig on or before June 24, 1970 in
order to apply for a license. Neither did she sign any application therefor. She affixed her
signature only on the marriage contract on June 24, 1970 in Pasay City.
The trial court denied the petition. 2 It held that the above certification was inadequate to
establish the alleged non-issuance of a marriage license prior to the celebration of the marriage
between the parties. It ruled that the "inability of the certifying official to locate the marriage
license is not conclusive to show that there was no marriage license issued."
Unsatisfied with the decision, Castro appealed to respondent appellate court. She insisted that
the certification from the local civil registrar sufficiently established the absence of a marriage
license.
As stated earlier, respondent appellate court reversed the Decision of the trial court. 3 It declared
the marriage between the contracting parties null and void and directed the Civil Registrar of
Pasig to cancel the subject marriage contract.
Hence this petition for review on certiorari.
Petitioner Republic of the Philippines urges that respondent appellate court erred when it ruled
that the certification issued by the civil registrar that marriage license no. 3196182 was not in
their record adequately proved that no such license was ever issued. Petitioner also faults the
respondent court for relying on the self-serving and uncorroborated testimony of private

respondent Castro that she had no part in the procurement of the subject marriage license.
Petitioner thus insists that the certification and the uncorroborated testimony of private
respondent are insufficient to overthrow the legal presumption regarding the validity of a
marriage.
Petitioner also points that in declaring the marriage between the parties as null and void,
respondent appellate court disregarded the presumption that the solemnizing officer, Judge
Pablo M. Malvar, regularly performed his duties when he attested in the marriage contract that
marriage license no. 3196182 was duly presented to him before the solemnization of the subject
marriage.

to find" sufficiently proved that his office did not issue marriage license no. 3196182 to the
contracting parties.
The fact that private respondent Castro offered only her testimony in support of her petition is, in
itself, not a ground to deny her petition. The failure to offer any other witness to corroborate her
testimony is mainly due to the peculiar circumstances of the case. It will be remembered that the
subject marriage was a civil ceremony performed by a judge of a city court. The subject
marriage is one of those commonly known as a "secret marriage" a legally non-existent
phrase but ordinarily used to refer to a civil marriage celebrated without the knowledge of the
relatives and/or friends of either or both of the contracting parties. The records show that the
marriage between Castro and Cardenas was initially unknown to the parents of the former.

The issues, being interrelated, shall be discussed jointly.

The core issue presented by the case at bench is whether or not the documentary and
testimonial evidence presented by private respondent are sufficient to establish that no marriage
license was issued by the Civil Registrar of Pasig prior to the celebration of the marriage of
private respondent to Edwin F. Cardenas.
We affirm the impugned Decision.
At the time the subject marriage was solemnized on June 24, 1970, the law governing marital
relations was the New Civil Code. The law 4 provides that no marriage shall be solemnized
without a marriage license first issued by a local civil registrar. Being one of the essential
requisites of a valid marriage, absence of a license would render the marriage voidab initio. 5
Petitioner posits that the certification of the local civil registrar of due search and inability to find
a record or entry to the effect that marriage license no. 3196182 was issued to the parties is not
adequate to prove its non-issuance.
We hold otherwise. The presentation of such certification in court is sanctioned by Section 29,
Rule 132 of the Rules of Court, viz.:
Sec. 29. Proof of lack of record. A written statement signed by an officer
having custody of an official record or by his deputy, that after diligent
search, no record or entry of a specified tenor is found to exist in the records
of his office, accompanied by a certificate as above provided, is admissible
as evidence that the records of his office contain no such record or entry.
The above Rule authorized the custodian of documents to certify that despite diligent search, a
particular document does not exist in his office or that a particular entry of a specified tenor was
not to be found in a register. As custodians of public documents, civil registrars are public
officers charged with the duty, inter alia, of maintaining a register book where they are required
to enter all applications for marriage licenses, including the names of the applicants, the date the
marriage license was issued and such other relevant data. 6
The certification of "due search and inability to find" issued by the civil registrar of Pasig enjoys
probative value, he being the officer charged under the law to keep a record of all data relative to
the issuance of a marriage license. Unaccompanied by any circumstance of suspicion and
pursuant to Section 29, Rule 132 of the Rules of Court, a certificate of "due search and inability

Surely, the fact that only private respondent Castro testified during the trial cannot be held
against her. Her husband, Edwin F. Cardenas, was duly served with notice of the proceedings
and a copy of the petition. Despite receipt thereof, he chose to ignore the same. For failure to
answer, he was properly declared in default. Private respondent cannot be faulted for her
husband's lack of interest to participate in the proceedings. There was absolutely no evidence
on record to show that there was collusion between private respondent and her husband
Cardenas.
It is noteworthy to mention that the finding of the appellate court that the marriage between the
contracting parties is null and void for lack of a marriage license does not discount the fact that
indeed, a spurious marriage license, purporting to be issued by the civil registrar of Pasig, may
have been presented by Cardenas to the solemnizing officer.
In fine, we hold that, under the circumstances of the case, the documentary and testimonial
evidence presented by private respondent Castro sufficiently established the absence of the
subject marriage license.
IN VIEW WHEREOF, the petition is DENIED there being no showing of any reversible error
committed by respondent appellate court.

Article 26 Foreign Marriage

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), 3637 and 38. (17a)
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. (As amended by Executive
Order 227)
Civil Code
Article 15. Laws relating to family rights and duties, or to the status, condition and legal capacity
of persons are binding upon citizens of the Philippines, even though living abroad. (9a)
Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be
governed by the laws of the country in which they are executed.
Article 66. When either or both of the contracting parties are citizens or subjects of a foreign
country, it shall be necessary, before a marriage license can be obtained, to provide themselves
with a certificate of legal capacity to contract marriage, to be issued by their respective
diplomatic or consular officials. (13a)

Article 71. All marriages performed outside the Philippines in accordance with the laws in force
in the country where they were performed, and valid there as such, shall also be valid in this
country, except bigamous, polygamous, or incestuous marriages as determined by Philippine
law. (19a)
Article 75. Marriages between Filipino citizens abroad may be solemnized by consuls and viceconsuls of the Republic of the Philippines. The duties of the local civil registrar and of a judge or
justice of the peace or mayor with regard to the celebration of marriage shall be performed by
such consuls and vice-consuls. (n)
Article 124. If the marriage is between a citizen of the Philippines and a foreigner, whether
celebrated in the Philippines or abroad, the following rules shall prevail:
(1) If the husband is a citizen of the Philippines while the wife is a foreigner, the provisions of this
Code shall govern their relations;
(2) If the husband is a foreigner and the wife is a citizen of the Philippines, the laws of the
husband's country shall be followed, without prejudice to the provisions of this Code with regard
to immovable property. (1325a)
RA 8171 - AN ACT PROVIDING FOR THE REPATRIATION OF FILIPINO WOMEN WHO HAVE
LOST THEIR PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND OF NATURALBORN
FILIPINOS
EO 227 - AMENDING EXECUTIVE ORDER NO. 209, OTHERWISE KNOWN AS THE "FAMILY
CODE OF THE PHILIPPINES"
Family Code
Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general,
consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license
and the duties of the local civil registrar and of the solemnizing officer with regard to the
celebration of marriage shall be performed by said consular official. (75a)
Art. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be
necessary for them before a marriage license can be obtained, to submit a certificate of legal
capacity to contract marriage, issued by their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate of legal
capacity herein required, submit an affidavit stating the circumstances showing such capacity to
contract marriage. (66a)
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), 3637 and 38. (17a)
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. (As amended by Executive
Order 227)
E.O. 292 Sec 6
SECTION 6. Omission of Some Rules.(1) The University of the Philippines Law Center may
omit from the bulletin or the codification any rule if its publication would be unduly cumbersome,
expensive or otherwise inexpedient, but copies of that rule shall be made available on
application to the agency which adopted it, and the bulletin shall contain a notice stating the
general subject matter of the omitted rule and new copies thereof may be obtained.
(2) Every rule establishing an offense or defining an act which, pursuant to law is punishable as
a crime or subject to a penalty shall in all cases be published in full text.

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner,

vs.
REDERICK A. RECIO, respondents.
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such
decree is valid according to the national law of the foreigner. However, the divorce decree and
the governing personal law of the alien spouse who obtained the divorce must be proven. Our
courts do not take judicial notice of foreign laws and judgment; hence, like any other facts, both
the divorce decree and the national law of the alien must be alleged and proven according to our
law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the
January 7, 1999 Decision 1 and the March 24, 1999 Order 2 of the Regional Trial Court of
Cabanatuan City, Branch 28, in Civil Case No. 3026-AF. The assailed Decision disposed as
follows:
"WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A.
Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties
can now remarry under existing and applicable laws to any and/or both parties." 3
The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon,
Rizal, on March 1, 1987.4 They lived together as husband and wife in Australia. On May 18,
1989,5 a decree of divorce, purportedly dissolving the marriage, was issued by an Australian
family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of
Australian Citizenship" issued by the Australian government. 6 Petitioner a Filipina and
respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in
Cabanatuan City.7 In their application for a marriage license, respondent was declared as
"single" and "Filipino."8
Starting October 22, 1995, petitioner and respondent lived separately without prior judicial
dissolution of their marriage. While the two were still in Australia, their conjugal assets were
divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.9
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage 10 in the
court a quo, on the ground of bigamy respondent allegedly had a prior subsisting marriage at
the time he married her on January 12, 1994. She claimed that she learned of respondent's
marriage to Editha Samson only in November, 1997.

In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his
prior marriage andits subsequent dissolution.11 He contended that his first marriage to an
Australian citizen had been validly dissolved by a divorce decree obtained in Australian in
1989;12 thus, he was legally capacitated to marry petitioner in 1994.1wphi1.nt
On July 7, 1998 or about five years after the couple's wedding and while the suit for the
declaration of nullity was pending respondent was able to secure a divorce decree from a
family court in Sydney, Australia because the "marriage ha[d] irretrievably broken down."13
Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated
no cause of action. 14 The Office of the Solicitor General agreed with respondent. 15 The court
marked and admitted the documentary evidence of both parties. 16 After they submitted their
respective memoranda, the case was submitted for resolution.17

The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and
53 of the Family Code as the applicable provisions in this case.
"5
The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing
that the divorce decree obtained by the respondent in Australia ipso facto capacitated the
parties to remarry, without first securing a recognition of the judgment granting the divorce
decree before our courts."19
The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two
pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and
(2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our
ruling on these two, there is no more necessity to take up the rest.

Thereafter, the trial court rendered the assailed Decision and Order.
The Court's Ruling
Ruling of the Trial Court
The Petition is partly meritorious.
The trial court declared the marriage dissolved on the ground that the divorce issued in Australia
was valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis
of any defect in an essential element of the marriage; that is, respondent's alleged lack of legal
capacity to remarry. Rather, it based its Decision on the divorce decree obtained by respondent.
The Australian divorce had ended the marriage; thus, there was no more martial union to nullify
or annual.
Hence, this Petition.18
Issues
Petitioner submits the following issues for our consideration:
"I
The trial court gravely erred in finding that the divorce decree obtained in Australia by the
respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating
him to contract a second marriage with the petitioner.
"2
The failure of the respondent, who is now a naturalized Australian, to present a certificate of
legal capacity to marry constitutes absence of a substantial requisite voiding the petitioner'
marriage to the respondent.
"3
The trial court seriously erred in the application of Art. 26 of the Family Code in this case.
"4

First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial court's recognition of the divorce between respondent and Editha
Samson. Citing Adong v. Cheong Seng Gee,20 petitioner argues that the divorce decree, like any
other foreign judgment, may be given recognition in this jurisdiction only upon proof of the
existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree
itself. She adds that respondent miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages
solemnized abroad are governed by the law of the place where they were celebrated (the lex
loci celebrationist). In effect, the Code requires the presentation of the foreign law to show the
conformity of the marriage in question to the legal requirements of the place where the marriage
was performed.
At the outset, we lay the following basic legal principles as the take-off points for our discussion.
Philippine law does not provide for absolute divorce; hence, our courts cannot grant it. 21 A
marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad,
because of Articles 1522 and 1723 of the Civil Code.24 In mixed marriages involving a Filipino and
a foreigner, Article 2625 of the Family Code allows the former to contract a subsequent marriage
in case the divorce is "validly obtained abroad by the alien spouse capacitating him or her to
remarry."26 A divorce obtained abroad by a couple, who are both aliens, may be recognized in
the Philippines, provided it is consistent with their respective national laws. 27
A comparison between marriage and divorce, as far as pleading and proof are concerned, can
be made. Van Dorn v. Romillo Jr. decrees that "aliens may obtain divorces abroad, which may
be recognized in the Philippines, provided they are valid according to their national
law."28 Therefore, before a foreign divorce decree can be recognized by our courts, the party
pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law
allowing it.29 Presentation solely of the divorce decree is insufficient.

Divorce as a Question of Fact

Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply
with the registration requirements under Articles 11, 13 and 52 of the Family Code. These
articles read as follows:
"ART. 11. Where a marriage license is required, each of the contracting parties shall
file separately a sworn application for such license with the proper local civil registrar
which shall specify the following:
xxx

xxx

xxx

"(5) If previously married, how, when and where the previous marriage was dissolved
or annulled;

Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in
evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had
not been registered in the Local Civil Registry of Cabanatuan City.36 The trial court ruled that it
was admissible, subject to petitioner's qualification. 37Hence, it was admitted in evidence and
accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce
decree admissible as a written act of the Family Court of Sydney, Australia.38
Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary;
respondent was no longer bound by Philippine personal laws after he acquired Australian
citizenship in 1992.39 Naturalization is the legal act of adopting an alien and clothing him with the
political and civil rights belonging to a citizen. 40 Naturalized citizens, freed from the protective
cloak of their former states, don the attires of their adoptive countries. By becoming an
Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had
tied him to Philippine personal laws.
Burden of Proving Australian Law

xxx

xxx

xxx

"ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to furnish, instead of the birth of baptismal certificate
required in the last preceding article, the death certificate of the deceased spouse or
the judicial decree of annulment or declaration of nullity of his or her previous
marriage. x x x.
"ART. 52. The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses, and the delivery of the
children's presumptive legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not affect their persons."
Respondent, on the other hand, argues that the Australian divorce decree is a public document
a written official act of an Australian family court. Therefore, it requires no further proof of its
authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given presumptive
evidentiary value, the document must first be presented and admitted in evidence. 30 A divorce
obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment
is the judgment itself.31 The decree purports to be a written act or record of an act of an officially
body or tribunal of a foreign country.32
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven
as a public or official record of a foreign country by either (1) an official publication or (2) a copy
thereof attested33 by the officer having legal custody of the document. If the record is not kept in
the Philippines, such copy must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in
which the record is kept and (b) authenticated by the seal of his office.34
The divorce decree between respondent and Editha Samson appears to be an authentic one
issued by an Australian family court.35 However, appearance is not sufficient; compliance with
the aforemetioned rules on evidence must be demonstrated.

Respondent contends that the burden to prove Australian divorce law falls upon petitioner,
because she is the party challenging the validity of a foreign judgment. He contends that
petitioner was satisfied with the original of the divorce decree and was cognizant of the marital
laws of Australia, because she had lived and worked in that country for quite a long time.
Besides, the Australian divorce law is allegedly known by Philippine courts: thus, judges may
take judicial notice of foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with "the party who alleges the existence of a
fact or thing necessary in the prosecution or defense of an action."41 In civil cases, plaintiffs have
the burden of proving the material allegations of the complaint when those are denied by the
answer; and defendants have the burden of proving the material allegations in their answer
when they introduce new matters.42 Since the divorce was a defense raised by respondent, the
burden of proving the pertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign
laws.43 Like any other facts, they must be alleged and proved. Australian marital laws are not
among those matters that judges are supposed to know by reason of their judicial function. 44 The
power of judicial notice must be exercised with caution, and every reasonable doubt upon the
subject should be resolved in the negative.
Second Issue:
Respondent's Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally
incapacitated to marry her in 1994.
Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly admitted in evidence,
adequately established his legal capacity to marry under Australian law.

Respondent's contention is untenable. In its strict legal sense, divorce means the legal
dissolution of a lawful union for a cause arising after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce
or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and
leaves the bond in full force.45 There is no showing in the case at bar which type of divorce was
procured by respondent.
Respondent presented a decree nisi or an interlocutory decree a conditional or provisional
judgment of divorce. It is in effect the same as a separation from bed and board, although an
absolute divorce may follow after the lapse of the prescribed period during which no
reconciliation is effected.46
Even after the divorce becomes absolute, the court may under some foreign statutes and
practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by
statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be
prohibited from remarrying again. The court may allow a remarriage only after proof of good
behavior.47
On its face, the herein Australian divorce decree contains a restriction that reads:
"1. A party to a marriage who marries again before this decree becomes absolute
(unless the other party has died) commits the offence of bigamy."48
This quotation bolsters our contention that the divorce obtained by respondent may have been
restricted. It did not absolutely establish his legal capacity to remarry according to his national
law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the
Australian divorce ipso facto restored respondent's capacity to remarry despite the paucity of
evidence on this matter.
We also reject the claim of respondent that the divorce decree raises a disputable presumption
or presumptive evidence as to his civil status based on Section 48, Rule 39 49 of the Rules of
Court, for the simple reason that no proof has been presented on the legal effects of the divorce
decree obtained under Australian laws.

Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija; 52(c) Exhibit "C"
Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian)
on March 1, 1987 in Malabon, Metro Manila; 53 (d) Exhibit "D" Office of the City Registrar of
Cabanatuan City Certification that no information of annulment between Rederick A. Recto and
Editha D. Samson was in its records;54 and (e) Exhibit "E" Certificate of Australian Citizenship
of Rederick A. Recto;55 (2) for respondent: (Exhibit "1" Amended Answer; 56 (b) Exhibit "S"
Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia; 57 (c)
Exhibit "3" Certificate of Australian Citizenship of Rederick A. Recto; 58 (d) Exhibit "4" Decree
Nisi of Dissolution of Marriage in the Family Court of Australia Certificate; 59 and Exhibit "5"
Statutory Declaration of the Legal Separation Between Rederick A. Recto and Grace J. Garcia
Recio since October 22, 1995.60
Based on the above records, we cannot conclude that respondent, who was then a naturalized
Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree
with petitioner's contention that the court a quo erred in finding that the divorce decree ipso facto
clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient
evidence to show the Australian personal law governing his status; or at the very least, to prove
his legal capacity to contract the second marriage.
Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on
the ground of bigamy. After all, it may turn out that under Australian law, he was really
capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that
the most judicious course is to remand this case to the trial court to receive evidence, if any,
which show petitioner's legal capacity to marry petitioner. Failing in that, then the court a
quo may declare a nullity of the parties' marriage on the ground of bigamy, there being already in
evidence two existing marriage certificates, which were both obtained in the Philippines, one in
Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January
12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the
case to the court a quo for the purpose of receiving evidence which conclusively show
respondent's legal capacity to marry petitioner; and failing in that, of declaring the parties'
marriage void on the ground of bigamy, as above discussed. No costs.

Significance of the Certificate of Legal Capacity

Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code
was not submitted together with the application for a marriage license. According to her, its
absence is proof that respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of
the party concerned. The certificate mentioned in Article 21 of the Family Code would have been
sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly
authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the
part of the alien applicant for a marriage license.50
As it is, however, there is absolutely no evidence that proves respondent's legal capacity to
marry petitioner. A review of the records before this Court shows that only the following exhibits
were presented before the lower court: (1) for petitioner: (a) Exhibit "A" Complaint; 51 (b) Exhibit
"B" Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and Grace J.

ALICE REYES VAN DORN, petitioner,

vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court
of the National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside
the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by
respondent Judge, which denied her Motion to Dismiss said case, and her Motion for
Reconsideration of the Dismissal Order, respectively.

The basic background facts are that petitioner is a citizen of the Philippines while private
respondent is a citizen of the United States; that they were married in Hongkong in 1972; that,
after the marriage, they established their residence in the Philippines; that they begot two
children born on April 4, 1973 and December 18, 1975, respectively; that the parties were
divorced in Nevada, United States, in 1982; and that petitioner has re-married also in Nevada,
this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of
the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita,
Manila, (the Galleon Shop, for short), is conjugal property of the parties, and asking that
petitioner be ordered to render an accounting of that business, and that private respondent be
declared with right to manage the conjugal property. Petitioner moved to dismiss the case on the
ground that the cause of action is barred by previous judgment in the divorce proceedings
before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no
community property" as of June 11, 1982. The Court below denied the Motion to Dismiss in the
mentioned case on the ground that the property involved is located in the Philippines so that the
Divorce Decree has no bearing in the case. The denial is now the subject of this certiorari
proceeding.

property nor community obligations. 3 As explicitly stated in the Power of Attorney he executed in
favor of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in
the divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to file an Answer,
appear on my behalf and do an things necessary and proper to represent
me, without further contesting, subject to the following:
1. That my spouse seeks a divorce on the ground of incompatibility.
2. That there is no community of property to be adjudicated by the Court.
3. 'I'hat there are no community obligations to be adjudicated by the court.
xxx xxx xxx 4

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to
appeal. certiorari and Prohibition are neither the remedies to question the propriety of an
interlocutory order of the trial Court. However, when a grave abuse of discretion was patently
committed, or the lower Court acted capriciously and whimsically, then it devolves upon this
Court in a certiorari proceeding to exercise its supervisory authority and to correct the error
committed which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie
since it would be useless and a waste of time to go ahead with the proceedings. 2 Weconsider
the petition filed in this case within the exception, and we have given it due course.
For resolution is the effect of the foreign divorce on the parties and their alleged conjugal
property in the Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged conjugal
property because of the representation he made in the divorce proceedings before the American
Court that they had no community of property; that the Galleon Shop was not established
through conjugal funds, and that respondent's claim is barred by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot
prevail over the prohibitive laws of the Philippines and its declared national policy; that the acts
and declaration of a foreign Court cannot, especially if the same is contrary to public policy,
divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property relations
between petitioner and private respondent, after their marriage, were upon absolute or relative
community property, upon complete separation of property, or upon any other regime. The
pivotal fact in this case is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner
who appeared in person before the Court during the trial of the case. It also obtained jurisdiction
over private respondent who, giving his address as No. 381 Bush Street, San Francisco,
California, authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the
divorce on the ground of incompatibility in the understanding that there were neither community

There can be no question as to the validity of that Nevada divorce in any of the States of the
United States. The decree is binding on private respondent as an American citizen. For instance,
private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is
contending in this case is that the divorce is not valid and binding in this jurisdiction, the same
being contrary to local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only
Philippine nationals are covered by the policy against absolute divorces the same being
considered contrary to our concept of public police and morality. However, aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided they are valid according
to their national law. 6 In this case, the divorce in Nevada released private respondent from the
marriage from the standards of American law, under which divorce dissolves the marriage. As
stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed.
794, 799:
The purpose and effect of a decree of divorce from the bond of matrimony by a court of
competent jurisdiction are to change the existing status or domestic relation of husband
and wife, and to free them both from the bond. The marriage tie when thus severed as to
one party, ceases to bind either. A husband without a wife, or a wife without a husband, is
unknown to the law. When the law provides, in the nature of a penalty. that the guilty party
shall not marry again, that party, as well as the other, is still absolutely freed from the bond
of the former marriage.
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner's husband entitled to exercise
control over conjugal assets. As he is bound by the Decision of his own country's Court, which
validly exercised jurisdiction over him, and whose decision he does not repudiate, he is
estopped by his own representation before said Court from asserting his right over the alleged
conjugal property.
To maintain, as private respondent does, that, under our laws, petitioner has to be considered
still married to private respondent and still subject to a wife's obligations under Article 109, et.

seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with,
observe respect and fidelity, and render support to private respondent. The latter should not
continue to be one of her heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to be served.

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.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the
Complaint filed in Civil Case No. 1075-P of his Court.

In this petition, the OSG raises a pure question of law:

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:

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 respondents 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

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, Ciprianos 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.

Section 1. Who may file petitionAny 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 Hearings 9 on the Family Code, the Catholic Bishops
Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of
Article 26:
1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who
divorce them abroad. These spouses who are divorced will not be able to re-marry, while the
spouses of foreigners who validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For
those whose foreign spouses validly divorce them abroad will also be considered to be validly
divorced here and can re-marry. We propose that 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;
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 Ciprianos 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 OSGs 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 respondents 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 respondents 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 respondents 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.
CORPUZ VS STO TOMAS STAT CON CASE
MINORU FUJIKI, PETITIONER,
vs.
MARIA PAZ GALELA MARINAY, SHINICHI MAEKARA, LOCAL CIVIL REGISTRAR OF
QUEZON CITY, AND THE ADMINISTRATOR AND CIVIL REGISTRAR GENERAL OF THE
NATIONAL STATISTICS OFFICE,RESPONDENTS.
CARPIO, J.:

The Case
This is a direct recourse to this Court from the Regional Trial Court (RTC), Branch 107, Quezon
City, through a petition for review on certiorari under Rule 45 of the Rules of Court on a pure
question of law. The petition assails the Order 1 dated 31 January 2011 of the RTC in Civil Case
No. Q-11-68582 and its Resolution dated 2 March 2011 denying petitioners Motion for
Reconsideration. The RTC dismissed the petition for "Judicial Recognition of Foreign Judgment
(or Decree of Absolute Nullity of Marriage)" based on improper venue and the lack of personality
of petitioner, Minoru Fujiki, to file the petition.
The Facts
Petitioner Minoru Fujiki (Fujiki) is a Japanese national who married respondent Maria Paz Galela
Marinay (Marinay) in the Philippines 2 on 23 January 2004. The marriage did not sit well with
petitioners parents. Thus, Fujiki could not bring his wife to Japan where he resides. Eventually,
they lost contact with each other.
In 2008, Marinay met another Japanese, Shinichi Maekara (Maekara). Without the first marriage
being dissolved, Marinay and Maekara were married on 15 May 2008 in Quezon City,
Philippines. Maekara brought Marinay to Japan. However, Marinay allegedly suffered physical
abuse from Maekara. She left Maekara and started to contact Fujiki. 3
Fujiki and Marinay met in Japan and they were able to reestablish their relationship. In 2010,
Fujiki helped Marinay obtain a judgment from a family court in Japan which declared the
marriage between Marinay and Maekara void on the ground of bigamy.4 On 14 January 2011,
Fujiki filed a petition in the RTC entitled: "Judicial Recognition of Foreign Judgment (or Decree of
Absolute Nullity of Marriage)." Fujiki prayed that (1) the Japanese Family Court judgment be
recognized; (2) that the bigamous marriage between Marinay and Maekara be declared void ab
initio under Articles 35(4) and 41 of the Family Code of the Philippines; 5 and (3) for the RTC to
direct the Local Civil Registrar of Quezon City to annotate the Japanese Family Court judgment
on the Certificate of Marriage between Marinay and Maekara and to endorse such annotation to
the Office of the Administrator and Civil Registrar General in the National Statistics Office
(NSO).6
The Ruling of the Regional Trial Court
A few days after the filing of the petition, the RTC immediately issued an Order dismissing the
petition and withdrawing the case from its active civil docket. 7 The RTC cited the following
provisions of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-SC):
Sec. 2. Petition for declaration of absolute nullity of void marriages.
(a) Who may file. A petition for declaration of absolute nullity of void marriage may be filed
solely by the husband or the wife.
Sec. 4. Venue. The petition shall be filed in the Family Court of the province or city where the
petitioner or the respondent has been residing for at least six months prior to the date of filing, or
in the case of a non-resident respondent, where he may be found in the Philippines, at the
election of the petitioner. x x x

The RTC ruled, without further explanation, that the petition was in "gross violation" of the above
provisions. The trial court based its dismissal on Section 5(4) of A.M. No. 02-11-10-SC which
provides that "[f]ailure to comply with any of the preceding requirements may be a ground for
immediate dismissal of the petition."8 Apparently, the RTC took the view that only "the husband
or the wife," in this case either Maekara or Marinay, can file the petition to declare their marriage
void, and not Fujiki.
Fujiki moved that the Order be reconsidered. He argued that A.M. No. 02-11-10-SC
contemplated ordinary civil actions for declaration of nullity and annulment of marriage. Thus,
A.M. No. 02-11-10-SC does not apply. A petition for recognition of foreign judgment is a special
proceeding, which "seeks to establish a status, a right or a particular fact," 9 and not a civil action
which is "for the enforcement or protection of a right, or the prevention or redress of a
wrong."10 In other words, the petition in the RTC sought to establish (1) the status and
concomitant rights of Fujiki and Marinay as husband and wife and (2) the fact of the rendition of
the Japanese Family Court judgment declaring the marriage between Marinay and Maekara as
void on the ground of bigamy. The petitioner contended that the Japanese judgment was
consistent with Article 35(4) of the Family Code of the Philippines 11on bigamy and was therefore
entitled to recognition by Philippine courts.12
In any case, it was also Fujikis view that A.M. No. 02-11-10-SC applied only to void marriages
under Article 36 of the Family Code on the ground of psychological incapacity.13 Thus, Section
2(a) of A.M. No. 02-11-10-SC provides that "a petition for declaration of absolute nullity of void
marriages may be filed solely by the husband or the wife." To apply Section 2(a) in bigamy would
be absurd because only the guilty parties would be permitted to sue. In the words of Fujiki, "[i]t is
not, of course, difficult to realize that the party interested in having a bigamous marriage
declared a nullity would be the husband in the prior, pre-existing marriage." 14 Fujiki had material
interest and therefore the personality to nullify a bigamous marriage.
Fujiki argued that Rule 108 (Cancellation or Correction of Entries in the Civil Registry) of the
Rules of Court is applicable. Rule 108 is the "procedural implementation" of the Civil Register
Law (Act No. 3753)15 in relation to Article 413 of the Civil Code. 16 The Civil Register Law imposes
a duty on the "successful petitioner for divorce or annulment of marriage to send a copy of the
final decree of the court to the local registrar of the municipality where the dissolved or annulled
marriage was solemnized."17 Section 2 of Rule 108 provides that entries in the civil registry
relating to "marriages," "judgments of annulments of marriage" and "judgments declaring
marriages void from the beginning" are subject to cancellation or correction. 18 The petition in the
RTC sought (among others) to annotate the judgment of the Japanese Family Court on the
certificate of marriage between Marinay and Maekara.

dismissal, i.e. lack of personality to sue and improper venue under Sections 2(a) and 4 of A.M.
No. 02-11-10-SC. The RTC considered Fujiki as a "third person" 22 in the proceeding because he
"is not the husband in the decree of divorce issued by the Japanese Family Court, which he now
seeks to be judicially recognized, x x x."23 On the other hand, the RTC did not explain its ground
of impropriety of venue. It only said that "[a]lthough the Court cited Sec. 4 (Venue) x x x as a
ground for dismissal of this case[,] it should be taken together with the other ground cited by the
Court x x x which is Sec. 2(a) x x x."24
The RTC further justified its motu proprio dismissal of the petition based on Braza v. The City
Civil Registrar of Himamaylan City, Negros Occidental.25 The Court in Braza ruled that "[i]n a
special proceeding for correction of entry under Rule 108 (Cancellation or Correction of Entries
in the Original Registry), the trial court has no jurisdiction to nullify marriages x x x." 26 Braza
emphasized that the "validity of marriages as well as legitimacy and filiation can be questioned
only in a direct action seasonably filed by the proper party, and not through a collateral attack
such as [a] petition [for correction of entry] x x x."27
The RTC considered the petition as a collateral attack on the validity of marriage between
Marinay and Maekara. The trial court held that this is a "jurisdictional ground" to dismiss the
petition.28 Moreover, the verification and certification against forum shopping of the petition was
not authenticated as required under Section 5 29 of A.M. No. 02-11-10-SC. Hence, this also
warranted the "immediate dismissal" of the petition under the same provision.
The Manifestation and Motion of the Office of the Solicitor General and the Letters of
Marinay and Maekara
On 30 May 2011, the Court required respondents to file their comment on the petition for
review.30 The public respondents, the Local Civil Registrar of Quezon City and the Administrator
and Civil Registrar General of the NSO, participated through the Office of the Solicitor General.
Instead of a comment, the Solicitor General filed a Manifestation and Motion.31
The Solicitor General agreed with the petition. He prayed that the RTCs "pronouncement that
the petitioner failed to comply with x x x A.M. No. 02-11-10-SC x x x be set aside" and that the
case be reinstated in the trial court for further proceedings. 32 The Solicitor General argued that
Fujiki, as the spouse of the first marriage, is an injured party who can sue to declare the
bigamous marriage between Marinay and Maekara void. The Solicitor General cited JulianoLlave v. Republic33 which held that Section 2(a) of A.M. No. 02-11-10-SC does not apply in cases
of bigamy. In Juliano-Llave, this Court explained:

Fujikis motion for reconsideration in the RTC also asserted that the trial court "gravely erred"
when, on its own, it dismissed the petition based on improper venue. Fujiki stated that the RTC
may be confusing the concept of venue with the concept of jurisdiction, because it is lack of
jurisdiction which allows a court to dismiss a case on its own. Fujiki cited Dacoycoy v.
Intermediate Appellate Court19 which held that the "trial court cannot pre-empt the defendants
prerogative to object to the improper laying of the venue by motu proprio dismissing the
case."20Moreover, petitioner alleged that the trial court should not have "immediately dismissed"
the petition under Section 5 of A.M. No. 02-11-10-SC because he substantially complied with the
provision.

[t]he subsequent spouse may only be expected to take action if he or she had only discovered
during the connubial period that the marriage was bigamous, and especially if the conjugal bliss
had already vanished. Should parties in a subsequent marriage benefit from the bigamous
marriage, it would not be expected that they would file an action to declare the marriage void
and thus, in such circumstance, the "injured spouse" who should be given a legal remedy is the
one in a subsisting previous marriage. The latter is clearly the aggrieved party as the bigamous
marriage not only threatens the financial and the property ownership aspect of the prior marriage
but most of all, it causes an emotional burden to the prior spouse. The subsequent marriage will
always be a reminder of the infidelity of the spouse and the disregard of the prior marriage which
sanctity is protected by the Constitution.34

On 2 March 2011, the RTC resolved to deny petitioners motion for reconsideration. In its
Resolution, the RTC stated that A.M. No. 02-11-10-SC applies because the petitioner, in effect,
prays for a decree of absolute nullity of marriage. 21 The trial court reiterated its two grounds for

The Solicitor General contended that the petition to recognize the Japanese Family Court
judgment may be made in a Rule 108 proceeding. 35 In Corpuz v. Santo Tomas,36 this Court held

that "[t]he recognition of the foreign divorce decree may be made in a Rule 108 proceeding itself,
as the object of special proceedings (such as that in Rule 108 of the Rules of Court) is precisely
to establish the status or right of a party or a particular fact." 37 WhileCorpuz concerned a foreign
divorce decree, in the present case the Japanese Family Court judgment also affected the civil
status of the parties, especially Marinay, who is a Filipino citizen.
The Solicitor General asserted that Rule 108 of the Rules of Court is the procedure to record
"[a]cts, events and judicial decrees concerning the civil status of persons" in the civil registry as
required by Article 407 of the Civil Code. In other words, "[t]he law requires the entry in the civil
registry of judicial decrees that produce legal consequences upon a persons legal capacity and
status x x x."38 The Japanese Family Court judgment directly bears on the civil status of a
Filipino citizen and should therefore be proven as a fact in a Rule 108 proceeding.
Moreover, the Solicitor General argued that there is no jurisdictional infirmity in assailing a void
marriage under Rule 108, citing De Castro v. De Castro39 and Nial v. Bayadog40 which declared
that "[t]he validity of a void marriage may be collaterally attacked."41
Marinay and Maekara individually sent letters to the Court to comply with the directive for them
to comment on the petition.42 Maekara wrote that Marinay concealed from him the fact that she
was previously married to Fujiki.43Maekara also denied that he inflicted any form of violence on
Marinay.44 On the other hand, Marinay wrote that she had no reason to oppose the
petition.45 She would like to maintain her silence for fear that anything she say might cause
misunderstanding between her and Fujiki.46
The Issues
Petitioner raises the following legal issues:
(1) Whether the Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No. 02-11-10-SC) is applicable.
(2) Whether a husband or wife of a prior marriage can file a petition to recognize a
foreign judgment nullifying the subsequent marriage between his or her spouse and a
foreign citizen on the ground of bigamy.
(3) Whether the Regional Trial Court can recognize the foreign judgment in a
proceeding for cancellation or correction of entries in the Civil Registry under Rule 108
of the Rules of Court.
The Ruling of the Court
We grant the petition.
The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages (A.M. No. 02-11-10-SC) does not apply in a petition to recognize a foreign judgment
relating to the status of a marriage where one of the parties is a citizen of a foreign country.
Moreover, in Juliano-Llave v. Republic,47 this Court held that the rule in A.M. No. 02-11-10-SC
that only the husband or wife can file a declaration of nullity or annulment of marriage "does not
apply if the reason behind the petition is bigamy."48

I.
For Philippine courts to recognize a foreign judgment relating to the status of a marriage where
one of the parties is a citizen of a foreign country, the petitioner only needs to prove the foreign
judgment as a fact under the Rules of Court. To be more specific, 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. 49 Petitioner may prove the Japanese
Family Court judgment through (1) an official publication or (2) a certification or copy attested by
the officer who has custody of the judgment. If the office which has custody is in a foreign
country such as Japan, the certification may be made by the proper diplomatic or consular
officer of the Philippine foreign service in Japan and authenticated by the seal of office. 50
To hold that A.M. No. 02-11-10-SC applies to a petition for recognition of foreign judgment would
mean that the trial court and the parties should follow its provisions, including the form and
contents of the petition,51 the service of summons,52 the investigation of the public
prosecutor,53 the setting of pre-trial,54 the trial55 and the judgment of the trial court.56 This is
absurd because it will litigate the case anew. It will defeat the purpose of recognizing foreign
judgments, which is "to limit repetitive litigation on claims and issues." 57 The interpretation of the
RTC is tantamount to relitigating the case on the merits. In Mijares v. Raada,58 this Court
explained that "[i]f every judgment of a foreign court were reviewable on the merits, the plaintiff
would be forced back on his/her original cause of action, rendering immaterial the previously
concluded litigation."59
A foreign judgment relating to the status of a marriage affects the civil status, condition and legal
capacity of its parties. However, the effect of a foreign judgment is not automatic. To extend the
effect of a foreign judgment in the Philippines, Philippine courts must determine if the foreign
judgment is consistent with domestic public policy and other mandatory laws. 60 Article 15 of the
Civil Code provides that "[l]aws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even though living
abroad." This is the rule of lex nationalii in private international law. Thus, the Philippine State
may require, for effectivity in the Philippines, recognition by Philippine courts of a foreign
judgment affecting its citizen, over whom it exercises personal jurisdiction relating to the status,
condition and legal capacity of such citizen.
A petition to recognize a foreign judgment declaring a marriage void does not require relitigation
under a Philippine court of the case as if it were a new petition for declaration of nullity of
marriage. Philippine courts cannot presume to know the foreign laws under which the foreign
judgment was rendered. They cannot substitute their judgment on the status, condition and legal
capacity of the foreign citizen who is under the jurisdiction of another state. Thus, Philippine
courts can only recognize the foreign judgment as a fact according to the rules of evidence.
Section 48(b), Rule 39 of the Rules of Court provides that a foreign judgment or final order
against a person creates a "presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title." Moreover, Section 48 of the Rules of Court states
that "the judgment or final order may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact." Thus, Philippine courts
exercise limited review on foreign judgments. Courts are not allowed to delve into the merits of a
foreign judgment. Once a foreign judgment is admitted and proven in a Philippine court, it can
only be repelled on grounds external to its merits, i.e. , "want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact." The rule on limited review embodies the
policy of efficiency and the protection of party expectations, 61 as well as respecting the
jurisdiction of other states.62

Since 1922 in Adong v. Cheong Seng Gee,63 Philippine courts have recognized foreign divorce
decrees between a Filipino and a foreign citizen if they are successfully proven under the rules
of evidence.64 Divorce involves the dissolution of a marriage, but the recognition of a foreign
divorce decree does not involve the extended procedure under A.M. No. 02-11-10-SC or the
rules of ordinary trial. While the Philippines does not have a divorce law, Philippine courts may,
however, recognize a foreign divorce decree under the second paragraph of Article 26 of the
Family Code, to capacitate a Filipino citizen to remarry when his or her foreign spouse obtained
a divorce decree abroad.65
There is therefore no reason to disallow Fujiki to simply prove as a fact the Japanese Family
Court judgment nullifying the marriage between Marinay and Maekara on the ground of bigamy.
While the Philippines has no divorce law, the Japanese Family Court judgment is fully consistent
with Philippine public policy, as bigamous marriages are declared void from the beginning under
Article 35(4) of the Family Code. Bigamy is a crime under Article 349 of the Revised Penal
Code. Thus, Fujiki can prove the existence of the Japanese Family Court judgment in
accordance with Rule 132, Sections 24 and 25, in relation to Rule 39, Section 48(b) of the Rules
of Court.
II.
Since the recognition of a foreign judgment only requires proof of fact of the judgment, it may be
made in a special proceeding for cancellation or correction of entries in the civil registry under
Rule 108 of the Rules of Court. Rule 1, Section 3 of the Rules of Court provides that "[a] special
proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact."
Rule 108 creates a remedy to rectify facts of a persons life which are recorded by the State
pursuant to the Civil Register Law or Act No. 3753. These are facts of public consequence such
as birth, death or marriage,66 which the State has an interest in recording. As noted by the
Solicitor General, in Corpuz v. Sto. Tomas this Court declared that "[t]he recognition of the
foreign divorce decree may be made in a Rule 108 proceeding itself, as the object of special
proceedings (such as that in Rule 108 of the Rules of Court) is precisely to establish the status
or right of a party or a particular fact."67
Rule 108, Section 1 of the Rules of Court states:
Sec. 1. Who may file petition. Any person interested in any act, event, order or
decree concerning the civil status of persons which has been recorded in the civil
register, may file a verified petition for the cancellation or correction of any entry relating thereto,
with the Regional Trial Court of the province where the corresponding civil registry is located.
(Emphasis supplied)
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 68) his most

intimate human relation, but also to protect his property interests that arise by operation of law
the moment he contracts marriage.69 These property interests in marriage include the right to be
supported "in keeping with the financial capacity of the family" 70 and preserving the property
regime of the marriage.71
Property rights are already substantive rights protected by the Constitution, 72 but a spouses right
in a marriage extends further to relational rights recognized under Title III ("Rights and
Obligations between Husband and Wife") of the Family Code. 73 A.M. No. 02-11-10-SC cannot
"diminish, increase, or modify" the substantive right of the spouse to maintain the integrity of his
marriage.74 In any case, Section 2(a) of A.M. No. 02-11-10-SC preserves this substantive right
by limiting the personality to sue to the husband or the wife of the union recognized by law.
Section 2(a) of A.M. No. 02-11-10-SC does not preclude a spouse of a subsisting marriage to
question the validity of a subsequent marriage on the ground of bigamy. On the contrary, when
Section 2(a) states that "[a] petition for declaration of absolute nullity of void marriage may be
filed solely by the husband or the wife"75it refers to the husband or the wife of the subsisting
marriage. Under Article 35(4) of the Family Code, bigamous marriages are void from the
beginning. Thus, the parties in a bigamous marriage are neither the husband nor the wife under
the law. The husband or the wife of the prior subsisting marriage is the one who has the
personality to file a petition for declaration of absolute nullity of void marriage under Section 2(a)
of A.M. No. 02-11-10-SC.
Article 35(4) of the Family Code, which declares bigamous marriages void from the beginning, is
the civil aspect of Article 349 of the Revised Penal Code, 76 which penalizes bigamy. Bigamy is a
public crime. Thus, anyone can initiate prosecution for bigamy because any citizen has an
interest in the prosecution and prevention of crimes. 77If anyone can file a criminal action which
leads to the declaration of nullity of a bigamous marriage, 78 there is more reason to confer
personality to sue on the husband or the wife of a subsisting marriage. The prior spouse does
not only share in the public interest of prosecuting and preventing crimes, he is also personally
interested in the purely civil aspect of protecting his marriage.
When the right of the spouse to protect his marriage is violated, the spouse is clearly an injured
party and is therefore interested in the judgment of the suit. 79 Juliano-Llave ruled that the prior
spouse "is clearly the aggrieved party as the bigamous marriage not only threatens the financial
and the property ownership aspect of the prior marriage but most of all, it causes an emotional
burden to the prior spouse."80 Being a real party in interest, the prior spouse is entitled to sue in
order to declare a bigamous marriage void. For this purpose, he can petition a court to recognize
a foreign judgment nullifying the bigamous marriage and judicially declare as a fact that such
judgment is effective in the Philippines. Once established, there should be no more impediment
to cancel the entry of the bigamous marriage in the civil registry.
III.
In Braza v. The City Civil Registrar of Himamaylan City, Negros Occidental, this Court held that a
"trial court has no jurisdiction to nullify marriages" in a special proceeding for cancellation or
correction of entry under Rule 108 of the Rules of Court. 81 Thus, the "validity of marriage[] x x x
can be questioned only in a direct action" to nullify the marriage.82 The RTC relied on Braza in
dismissing the petition for recognition of foreign judgment as a collateral attack on the marriage
between Marinay and Maekara.

Braza is not applicable because Braza does not involve a recognition of a foreign judgment
nullifying a bigamous marriage where one of the parties is a citizen of the foreign country.
To be sure, a petition for correction or cancellation of an entry in the civil registry cannot
substitute for an action to invalidate a marriage. A direct action is necessary to prevent
circumvention of the substantive and procedural safeguards of marriage under the Family Code,
A.M. No. 02-11-10-SC and other related laws. Among these safeguards are the requirement of
proving the limited grounds for the dissolution of marriage, 83 support pendente lite of the
spouses and children,84 the liquidation, partition and distribution of the properties of the
spouses,85 and the investigation of the public prosecutor to determine collusion. 86 A direct action
for declaration of nullity or annulment of marriage is also necessary to prevent circumvention of
the jurisdiction of the Family Courts under the Family Courts Act of 1997 (Republic Act No.
8369), as a petition for cancellation or correction of entries in the civil registry may be filed in the
Regional Trial Court "where the corresponding civil registry is located." 87 In other words, a
Filipino citizen cannot dissolve his marriage by the mere expedient of changing his entry of
marriage in the civil registry.
However, this does not apply in a petition for correction or cancellation of a civil registry entry
based on the recognition of a foreign judgment annulling a marriage where one of the parties is
a citizen of the foreign country. There is neither circumvention of the substantive and procedural
safeguards of marriage under Philippine law, nor of the jurisdiction of Family Courts under R.A.
No. 8369. A recognition of a foreign judgment is not an action to nullify a marriage. It is an action
for Philippine courts to recognize the effectivity of a foreign judgment, which presupposes a
case which was already tried and decided under foreign law. The procedure in A.M. No. 0211-10-SC does not apply in a petition to recognize a foreign judgment annulling a bigamous
marriage where one of the parties is a citizen of the foreign country. Neither can R.A. No. 8369
define the jurisdiction of the foreign court.
Article 26 of the Family Code 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. The second paragraph of Article 26 of the Family Code provides
that "[w]here 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." In Republic v.
Orbecido,88 this Court recognized the legislative intent of the second paragraph of Article 26
which 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" 89 under the
laws of his or her country. The second paragraph of Article 26 of the Family Code only
authorizes Philippine courts to adopt the effects of a foreign divorce decree precisely because
the Philippines does not allow divorce. Philippine courts cannot try the case on the merits
because it is tantamount to trying a case for divorce.
The second paragraph of Article 26 is only a corrective measure to address the anomaly that
results from a marriage between a Filipino, whose laws do not allow divorce, and a foreign
citizen, whose laws allow divorce. The anomaly consists in the Filipino spouse being tied to the
marriage while the foreign spouse is free to marry under the laws of his or her country. The
correction is made by extending in the Philippines the effect of the foreign divorce decree, which
is already effective in the country where it was rendered. The second paragraph of Article 26 of
the Family Code is based on this Courts decision in Van Dorn v. Romillo90 which declared that
the Filipino spouse "should not be discriminated against in her own country if the ends of justice
are to be served."91

The principle in Article 26 of the Family Code applies in a marriage between a Filipino and a
foreign citizen who obtains a foreign judgment nullifying the marriage on the ground of bigamy.
The Filipino spouse may file a petition abroad to declare the marriage void on the ground of
bigamy. The principle in the second paragraph of Article 26 of the Family Code applies because
the foreign spouse, after the foreign judgment nullifying the marriage, is capacitated to remarry
under the laws of his or her country. If the foreign judgment is not recognized in the Philippines,
the Filipino spouse will be discriminatedthe foreign spouse can remarry while the Filipino
spouse cannot remarry.
Under the second paragraph of Article 26 of the Family Code, Philippine courts are empowered
to correct a situation where the Filipino spouse is still tied to the marriage while the foreign
spouse is free to marry. Moreover, notwithstanding Article 26 of the Family Code, Philippine
courts already have jurisdiction to extend the effect of a foreign judgment in the Philippines to
the extent that the foreign judgment does not contravene domestic public policy. A critical
difference between the case of a foreign divorce decree and a foreign judgment nullifying a
bigamous marriage is that bigamy, as a ground for the nullity of marriage, is fully consistent with
Philippine public policy as expressed in Article 35(4) of the Family Code and Article 349 of the
Revised Penal Code. The Filipino spouse has the option to undergo full trial by filing a petition
for declaration of nullity of marriage under A.M. No. 02-11-10-SC, but this is not the only remedy
available to him or her. Philippine courts have jurisdiction to recognize a foreign judgment
nullifying a bigamous marriage, without prejudice to a criminal prosecution for bigamy.
In the recognition of foreign judgments, Philippine courts are incompetent to substitute their
judgment on how a case was decided under foreign law. They cannot decide on the "family
rights and duties, or on the status, condition and legal capacity" of the foreign citizen who is a
party to the foreign judgment. Thus, Philippine courts are limited to the question of whether to
extend the effect of a foreign judgment in the Philippines. In a foreign judgment relating to the
status of a marriage involving a citizen of a foreign country, Philippine courts only decide
whether to extend its effect to the Filipino party, under the rule of lex nationalii expressed in
Article 15 of the Civil Code.
For this purpose, Philippine courts will only determine (1) whether the foreign judgment is
inconsistent with an overriding public policy in the Philippines; and (2) whether any alleging party
is able to prove an extrinsic ground to repel the foreign judgment, i.e. want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact. If there is neither
inconsistency with public policy nor adequate proof to repel the judgment, Philippine courts
should, by default, recognize the foreign judgment as part of the comity of nations. Section
48(b), Rule 39 of the Rules of Court states that the foreign judgment is already "presumptive
evidence of a right between the parties." Upon recognition of the foreign judgment, this right
becomes conclusive and the judgment serves as the basis for the correction or cancellation of
entry in the civil registry. The recognition of the foreign judgment nullifying a bigamous marriage
is a subsequent event that establishes a new status, right and fact92 that needs to be reflected in
the civil registry. Otherwise, there will be an inconsistency between the recognition of the
effectivity of the foreign judgment and the public records in the Philippines.1wphi1
However, the recognition of a foreign judgment nullifying a bigamous marriage is without
prejudice to prosecution for bigamy under Article 349 of the Revised Penal Code. 93 The
recognition of a foreign judgment nullifying a bigamous marriage is not a ground for extinction of
criminal liability under Articles 89 and 94 of the Revised Penal Code. Moreover, under Article 91
of the Revised Penal Code, "[t]he term of prescription [of the crime of bigamy] shall not run when
the offender is absent from the Philippine archipelago."

Since A.M. No. 02-11-10-SC is inapplicable, the Court no longer sees the need to address the
questions on venue and the contents and form of the petition under Sections 4 and 5,
respectively, of A.M. No. 02-11-10-SC.

Affairs that the same cannot be issued to her until she can prove bycompetent court decision
that her marriage with her said husband Masatomi Y. Ando is valid until otherwise declared.
xxxx

WHEREFORE, we GRANT the petition. The Order dated 31 January 2011 and the Resolution
dated 2 March 2011 of the Regional Trial Court, Branch 107, Quezon City, in Civil Case No. Q11-68582
are REVERSED andSET
ASIDE.
The
Regional
Trial
Court
is ORDERED to REINSTATE the petition for further proceedings in accordance with this
Decision.
EDELINA T. ANDO, Petitioner,
vs.
DEPARTMENT OF FOREIGN AFFAIRS, Respondent.

12. Prescinding from the foregoing, petitioners marriage with her said husband Masatomi Y.
Ando musttherefore be honored, considered and declared valid, until otherwise declared by a
competent court. Consequently, and until then, petitioner therefore is and must be declared
entitled to the issuance of a Philippine passport under the name Edelina Ando y Tungol.
Hence, this petitioner pursuant to Rule 63 of the Rules of Court.2
On 29 October 2010, petitioner filed with the RTC a Petition for Declaratory Relief, which was
later raffled off to Branch 46. She impleaded the Department of Foreign Affairs (DFA) as
respondent and prayed for the following reliefs before the lower court:

SERENO, CJ:
This is a Petition for Review under Rule 45 of the Rules of Court, seeking the nullification of the
Orders dated 14 January and 8 February 2011 issued by the Regional Trial Court (R TC), Third
Judicial Region, Branch 45,1 City of San Fernando, Pampanga, in Civil Case No. 137, which
dismissed the Petition for Declaratory Relief filed therein.
STATEMENT OF THE FACTS AND OF THE CASE

WHEREFORE, petitioner most respectfully prays of this Honorable Court that after proper
proceedings, judgment be rendered, as follows:
(a) declaring as valid and subsisting the marriage between petitioner Edelina T. Ando and
her husband Masatomi Y. Ando until otherwise declared by a competent court;
(b) declaring petitioner entitled to the issuance of a Philippine Passport under the name
"Edelina Ando y Tungol"; and

The pertinent facts of the case, as alleged by petitioner, are as follows:

3. On 16 September 2001, petitioner married Yuichiro Kobayashi, a Japanese National, in a
civil wedding solemnized at Candaba, Pampanga. A copy of their Certificate of Marriage is
hereto attached as Annex 'A' and made an integral part hereof.

(c) directing the Department ofForeign Affairs to honor petitioners marriage to her husband
Masatomi Y. Ando and to issue a Philippine Passport to petitioner under the name "Edelina
Ando y Tungol".
Petitioner prays for such other just and equitable reliefs.3

4. On 16 September 2004, Yuichiro Kobayashi sought in Japan, and was validly granted
under Japaneselaws, a divorce in respect of his marriage with petitioner. A copy of the
Divorce Certificate duly issued by the Consulate-General of Japan and duly authenticated by
the Department of Foreign Affairs, Manila, is heretoas Annex B and made an integral part
hereof. 5. Said Divorce Certificate was duly registered with the Office of the Civil Registry of
Manila. A copy of the Certification dated 28 October 2005 is hereto attached as Annex C and
made an integral part hereof.
6. Believing in good faith that said divorce capacitated her to remarry and that by such she
reverted to her single status, petitioner married Masatomi Y. Ando on 13 September 2005 in a
civil wedding celebrated in Sta. Ana, Pampanga. A copy of their Certificate of Marriage is
hereto attached as Annex D and made an integral part hereof.
7. In the meantime, Yuichiro Kobayashi married Ryo Miken on 27 December 2005. A copy of
the JapaneseFamily Registry Record of Kobayashi showing the divorce he obtained and his
remarriage with Ryo Miken, duly authenticated by the Consulate-General of Japan and the
Department of Foreign Affairs, Manila, is hereto attached as Annex E and made an integral
part hereof.
8. Recently, petitioner applied for the renewal of her Philippine passport to indicate her
surname withher husband Masatomi Y. Ando but she was told at the Department of Foreign

On 15 November 2010, in an Order dismissing the Petition for want of cause and action, as well
as jurisdiction, the RTC held thus:
Records of the case would reveal that prior to petitioners marriage to Masatomi Y. Ando, herein
petitioner was married to Yuichiro Kobayashi, a Japanese National, in Candaba, Pampanga, on
September 16, 2001, and that though a divorce was obtained and granted in Japan, with respect
to the their (sic) marriage, there is no showing that petitioner herein complied with the
requirements set forth in Art. 13 of the Family Code that is obtaining a judicial recognition of
the foreign decree of absolute divorce in our country.
It is therefore evident, under the foregoing circumstances, that herein petitioner does not have
any causeof action and/or is entitled to the reliefs prayed for under Rule 63 of the Rules of
Court. In the same vein, though there is other adequate remedy available to the petitioner, such
remedy is however beyond the authority and jurisdiction of this court to act upon and grant, as it
isonly the family court which is vested with such authority and jurisdiction.4
On 3 December 2010, petitioner filed an Ex ParteMotion for Reconsideration of the Order dated
15 November 2010. In anOrder dated 14 December 2010, the RTC granted the motion in this
wise:

WHEREFORE, considering that the allegations and reliefs prayed for by the petitioner in her
petition and the instant Motion for Reconsideration falls within the jurisdiction of the Special
Family Court of this jurisdiction and for the interest ofsubstantial justice, the Order of the Court
dated November 15, 2010 is hereby reconsidered.
Let the record of this case be therefore referred back to the Office of the Clerk of Court for
proper endorsement to the Family Court of this jurisdiction for appropriateaction and/or
disposition.5 Thereafter, the case was raffled to Branch 45 of the RTC. On 14 January 2011, the
trial court dismissed the Petition anew on the ground that petitioner had no cause of action. The
Order reads thus:
The petition specifically admits that the marriage she seeks to be declared as valid is already
her second marriage, a bigamous marriage under Article 35(4) of the Family Codeconsidering
that the first one, though allegedly terminated by virtue of the divorce obtained by Kobayashi,
was never recognized by a Philippine court, hence, petitioner is considered as still married to
Kobayashi. Accordingly, the second marriage with Ando cannot be honored and considered
asvalid at this time.
Petitioners allegation of Sec. 2 (a) of A.M. No. 02-11-10-SC is misplaced. The fact that no
judicial declaration of nullity of her marriage with Ando was rendered does not make the same
valid because such declaration under Article 40 ofthe Family Code is applicable onlyin case of
re-marriage. More importantly, the absence of a judicial declaration of nullity of marriage is not
even a requisite to make a marriage valid.
In view of the foregoing, the dismissal of this case is imperative.6
On 1 February 2011,petitioner filed an Ex ParteMotion for Reconsideration of the Order dated 14
January 2011. The motion was denied by the RTC in open court on 8 February2011, considering
that neither the Office of the Solicitor General (OSG) nor respondent was furnished with copies
of the motion.
On 24 March 2011, petitioner filed the instant Petition for Review, raising the sole issue of
whether or not the RTC erred in ruling that she had no cause of action.
Petitioner argues that under A.M. No. 02-11-10-SC, or the Rule on the Declaration of Absolute
Nullity of Void Marriages and Annulment of Voidable Marriages, it is solely the wife or the
husband who can file a petition for the declaration of the absolute nullity of a void marriage.
Thus, as the state is not even allowed to filea direct petition for the declaration of the absolute
nullity of a void marriage,with even more reason can it not collaterally attack the validity of a
marriage, as in a petition for declaratory relief. Further, petitioner alleges that under the law, a
marriage even one that is void or voidable shall be deemed valid until declared otherwise in
a judicial proceeding.
Petitioner also argues that assuming a court judgment recognizing a judicial decree of divorce is
required under Article 13 of the Family Code, noncompliance therewith is a mere irregularity in
the issuance of a marriage license. Any irregularity in the formal requisites of marriage, such as
with respect to the marriage license, shall notaffect the legality of the marriage. Petitioner further
claims that all the requisites for a petition for declaratory relief have been complied with.

With respect to the failure to furnish a copy of the Ex ParteMotion for Reconsideration to the
OSG and the DFA, petitioner avers that at the time of the filing, the RTC had yet to issue a
summons to respondent; thus, it had yet to acquire jurisdiction over them.
Thereafter, the DFA, through the OSG, filed a Comment on the Petition. The latter raised the
following arguments: (1) the Petition was improperly verified, as the juratin the Verification
thereof only stated that the affiant had exhibited "her currentand valid proof of identity," which
proof was not properly indicated, however; (2) prior judicial recognition by a Philippine court of a
divorce decree obtained by the alien spouse is required before a Filipino spouse can remarry
and be entitled to the legal effects of remarriage; (3) petitioner failed to show that she had first
exhausted all available administrative remedies, such as appealing to the Secretary of the DFA
under Republic Act No. (R.A.) 8239, or the Philippine Passport Act of 1996, before resorting to
the special civil action of declaratory relief; and (4) petitioners Motion for Reconsideration before
the RTC was a mere scrap of paper and did not toll the running of the period to appeal. Hence,
the RTC Order dated 14 January 2011 is now final.
On 29 November 2011, petitioner filed her Reply to the Comment, addressing the issues raised
therein.
THE COURTS RULING
The Court finds the Petition to be without merit.
First, with respect to her prayer tocompel the DFA to issue her passport, petitioner incorrectly
filed a petition for declaratory relief before the RTC. She should have first appealed before the
Secretary of Foreign Affairs, since her ultimate entreaty was toquestion the DFAs refusal to
issue a passport to her under her second husbands name.
Under the Implementing Rules and Regulations (IRR) of R.A. 8239, which was adopted on 25
February 1997, the following are the additional documentary requirements before a married
woman may obtain a passport under the name of her spouse:
SECTION 2. The issuance of passports to married, divorced or widowed women shall be made
inaccordance with the following provisions:
a) In case of a woman who is married and who decides to adopt the surname of her
husband pursuant to Art. 370 of Republic Act No. 386, she must present the original or
certifiedtrue copy of her marriage contract, and one photocopy thereof.
In addition thereto, a Filipino who contracts marriage in the Philippines to a foreigner,
shall be required to present a Certificate of Attendance in a Guidance and Counselling
Seminar conducted by the CFO when applying for a passport for the first time.
b) In case of annulment of marriage, the applicant must present a certified true copy of
her annotated Marriage Contract or Certificate of Registration and the Court Order
effecting the annulment.

c) In case of a woman who was divorced by her alien husband, she must present a
certified true copy of the Divorce Decree duly authenticated by the Philippine Embassy
or consular post which has jurisdiction over the place where the divorce is obtained or
by the concerned foreign diplomatic or consular mission in the Philippines.
When the divorcee is a Filipino Muslim, she must present a certified true copy of the Divorce
Decree or a certified true copy of the Certificate of Divorce from the Shariah Court or the
OCRG. d) In the event that marriage is dissolved by the death of the husband, the applicant
must present the original or certified true copy of the Death Certificate of the husband or the
Declaration of Presumptive Death by a Civil or Shariah Court, in which case the applicant may
choose to continue to use her husbands surname or resume the use of her maiden surname.
From the above provisions, it is clear that for petitioner to obtain a copy of her passport under
her married name, all she needed to present were the following: (1) the original or certified true
copyof her marriage contract and one photocopy thereof; (2) a Certificate of Attendance in a
Guidance and Counseling Seminar, if applicable; and (3) a certified true copy of the Divorce
Decree duly authenticated by the Philippine Embassy or consular post that has jurisdiction over
the place where the divorce is obtained or by the concerned foreign diplomatic or consular
mission in the Philippines.
In this case, petitioner was allegedly told that she would not be issued a Philippine passport
under her second husbands name.1wphi1 Should her application for a passport be denied, the
remedies available to her are provided in Section 9 of R.A. 8239, which reads thus:
Sec. 9. Appeal. Any person who feels aggrieved as a result of the application of this Act of the
implementing rules and regulations issued by the Secretary shall have the right to appeal to the
Secretary of Foreign Affairs from whose decision judicial review may be had to the Courts in due
course.
The IRR further provides in detail:
ARTICLE
Appeal

In the event that an application for a passport is denied, or an existing one cancelled or
restricted, the applicant or holder thereof shall have the right to appeal in writing to the Secretary
within fifteen (15) days from notice of denial, cancellation or restriction.
Clearly, she should have filed anappeal with the Secretary of the DFA in the event of the denial
of her application for a passport, after having complied with the provisions of R.A. 8239.
Petitioners argument that her application "cannot be said to havebeen either denied, cancelled
or restricted by [the DFA ], so as to make her an aggrieved party entitled to appeal", 7 as instead
she "was merely told"8 that her passport cannot be issued, does not persuade. The law provides
a direct recourse for petitioner in the event of the denial of her application.
Second, with respect to her prayer for the recognition of her second marriage as valid, petitioner
should have filed, instead, a petition for the judicial recognition of her foreign divorce from her
first husband.
In Garcia v. Recio,9 we ruled that a divorce obtained abroad by an alien may be recognized in
our jurisdiction, provided the decree is valid according to the national law of the foreigner. The
presentation solely of the divorce decree is insufficient; both the divorce decree and the
governing personal law of the alien spouse who obtained the divorce must be proven. Because
our courts do not take judicial notice of foreign laws and judgment, our law on evidence requires
that both the divorce decree and the national law of the alien must be alleged and proven and
like any other fact.10
While it has been ruled that a petition for the authority to remarry filed before a trial court actually
constitutes a petition for declaratory relief, 11 we are still unable to grant the prayer of petitioner.
As held by the RTC, there appears to be insufficient proof or evidence presented on record of
both the national law of her first husband, Kobayashi, and of the validity of the divorce decree
under that national law.12 Hence, any declaration as to the validity of the divorce can only be
made upon her complete submission of evidence proving the divorce decree and the national
law of her alien spouse, in an action instituted in the proper forum.

10
WHEREFORE, the instant Petition is DENIED without prejudice to petitioner's recourse to the
proper remedies available.