Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-22595

November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,

vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.

ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the
brothers of the deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3)
the denial of the motion for reconsideration of the order approving the partition; (4) the approval
of the purchase made by the Pietro Lana of the deceased's business and the deed of transfer of
said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and
the failure not to postpone the approval of the scheme of partition and the delivery of the
deceased's business to Pietro Lanza until the receipt of the depositions requested in reference
to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts into effect the
provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish
nationality, for which reason they are void as being in violation or article 10 of the Civil Code
which, among other things, provides the following:
Nevertheless, legal and testamentary successions, in respect to the order of succession
as well as to the amount of the successional rights and the intrinsic validity of their
provisions, shall be regulated by the national law of the person whose succession is in
question, whatever may be the nature of the property or the country in which it may be
situated.
But the fact is that the oppositor did not prove that said testimentary dispositions are not in
accordance with the Turkish laws, inasmuch as he did not present any evidence showing what
the Turkish laws are on the matter, and in the absence of evidence on such laws, they are
presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36
Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself,
acknowledges it when he desires to be given an opportunity to present evidence on this point;
so much so that he assigns as an error of the court in not having deferred the approval of the
scheme of partition until the receipt of certain testimony requested regarding the Turkish laws
on the matter.
The refusal to give the oppositor another opportunity to prove such laws does not constitute an
error. It is discretionary with the trial court, and, taking into consideration that the oppositor was
granted ample opportunity to introduce competent evidence, we find no abuse of discretion on
the part of the court in this particular. There is, therefore, no evidence in the record that the

national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in
question which, not being contrary to our laws in force, must be complied with and
executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the herein appellant
as a legatee, inasmuch as he is one of the persons designated as such in will, it must be taken
into consideration that such exclusion is based on the last part of the second clause of the will,
which says:
Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship
having been conferred upon me by conquest and not by free choice, nor by nationality
and, on the other hand, having resided for a considerable length of time in the Philippine
Islands where I succeeded in acquiring all of the property that I now possess, it is my
wish that the distribution of my property and everything in connection with this, my will,
be made and disposed of in accordance with the laws in force in the Philippine islands,
requesting all of my relatives to respect this wish, otherwise, I annul and cancel
beforehand whatever disposition found in this will favorable to the person or persons
who fail to comply with this request.
The institution of legatees in this will is conditional, and the condition is that the instituted
legatees must respect the testator's will to distribute his property, not in accordance with the
laws of his nationality, but in accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails to comply with it,
as the herein oppositor who, by his attitude in these proceedings has not respected the will of
the testator, as expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to law, for article 792 of the
civil Code provides the following:
Impossible conditions and those contrary to law or good morals shall be considered as
not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even
should the testator otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's national law
when, according to article 10 of the civil Code above quoted, such national law of the testator is
the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten, and
the institution of legatees in said will is unconditional and consequently valid and effective even
as to the herein oppositor.
It results from all this that the second clause of the will regarding the law which shall govern it,
and to the condition imposed upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly valid
and effective it not appearing that said clauses are contrary to the testator's national law.
Therefore, the orders appealed from are modified and it is directed that the distribution of this
estate be made in such a manner as to include the herein appellant Andre Brimo as one of the
legatees, and the scheme of partition submitted by the judicial administrator is approved in all
other respects, without any pronouncement as to costs.
So ordered. Street, Malcolm, Avancea, Villamor and Ostrand, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-68470 October 8, 1985
ALICE REYES VAN DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court
of the National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside
the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by
respondent Judge, which denied her Motion to Dismiss said case, and her Motion for
Reconsideration of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines while private
respondent is a citizen of the United States; that they were married in Hongkong in 1972; that,
after the marriage, they established their residence in the Philippines; that they begot two
children born on April 4, 1973 and December 18, 1975, respectively; that the parties were
divorced in Nevada, United States, in 1982; and that petitioner has re-married also in Nevada,
this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of
the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita,
Manila, (the Galleon Shop, for short), is conjugal property of the parties, and asking that
petitioner be ordered to render an accounting of that business, and that private respondent be
declared with right to manage the conjugal property. Petitioner moved to dismiss the case on
the ground that the cause of action is barred by previous judgment in the divorce proceedings
before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no
community property" as of June 11, 1982. The Court below denied the Motion to Dismiss in the
mentioned case on the ground that the property involved is located in the Philippines so that the
Divorce Decree has no bearing in the case. The denial is now the subject of this certiorari
proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to
appeal. certiorari and Prohibition are neither the remedies to question the propriety of an
interlocutory order of the trial Court. However, when a grave abuse of discretion was patently
committed, or the lower Court acted capriciously and whimsically, then it devolves upon this
Court in a certiorari proceeding to exercise its supervisory authority and to correct the error
committed which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie
since it would be useless and a waste of time to go ahead with the proceedings. 2 Weconsider
the petition filed in this case within the exception, and we have given it due course.
For resolution is the effect of the foreign divorce on the parties and their alleged conjugal
property in the Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged conjugal
property because of the representation he made in the divorce proceedings before the
American Court that they had no community of property; that the Galleon Shop was not
established through conjugal funds, and that respondent's claim is barred by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot
prevail over the prohibitive laws of the Philippines and its declared national policy; that the acts

and declaration of a foreign Court cannot, especially if the same is contrary to public policy,
divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property relations
between petitioner and private respondent, after their marriage, were upon absolute or relative
community property, upon complete separation of property, or upon any other regime. The
pivotal fact in this case is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner
who appeared in person before the Court during the trial of the case. It also obtained jurisdiction
over private respondent who, giving his address as No. 381 Bush Street, San Francisco,
California, authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the
divorce on the ground of incompatibility in the understanding that there were neither community
property nor community obligations. 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
There can be no question as to the validity of that Nevada divorce in any of the States of the
United States. The decree is binding on private respondent as an American citizen. For
instance, private respondent cannot sue petitioner, as her husband, in any State of the Union.
What he is contending in this case is that the divorce is not valid and binding in this jurisdiction,
the same being contrary to local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only
Philippine nationals are covered by the policy against absolute divorces the same being
considered contrary to our concept of public police and morality. However, aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided they are valid according
to their national law. 6 In this case, the divorce in Nevada released private respondent from the
marriage from the standards of American law, under which divorce dissolves the marriage. As
stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed.
794, 799:
The purpose and effect of a decree of divorce from the bond of matrimony by a
court of competent jurisdiction are to change the existing status or domestic
relation of husband and wife, and to free them both from the bond. The marriage
tie when thus severed as to one party, ceases to bind either. A husband without
a wife, or a wife without a husband, is unknown to the law. When the law
provides, in the nature of a penalty. that the guilty party shall not marry again,
that party, as well as the other, is still absolutely freed from the bond of the
former marriage.
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner's husband entitled to exercise
control over conjugal assets. As he is bound by the Decision of his own country's Court, which
validly exercised jurisdiction over him, and whose decision he does not repudiate, he is
estopped by his own representation before said Court from asserting his right over the alleged
conjugal property.

To maintain, as private respondent does, that, under our laws, petitioner has to be considered
still married to private respondent and still subject to a wife's obligations under Article 109, et.
seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with,
observe respect and fidelity, and render support to private respondent. The latter should not
continue to be one of her heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the
Complaint filed in Civil Case No. 1075-P of his Court.
Without costs.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial
Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of
Manila; and ERICH EKKEHARD GEILING, respondents.

REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce,
only to be followed by a criminal infidelity suit of the latter against the former, provides Us the
opportunity to lay down a decisional rule on what hitherto appears to be an unresolved
jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private
respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of
Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The
marriage started auspiciously enough, and the couple lived together for some time in Malate,
Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1
Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by
a separation de facto between them.
After about three and a half years of marriage, such connubial disharmony eventuated in private
respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg
Local Court in January, 1983. He claimed that there was failure of their marriage and that they
had been living apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal separation, support and separation of
property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where
the same is still pending as Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany,
promulgated a decree of divorce on the ground of failure of marriage of the spouses. The
custody of the child was granted to petitioner. The records show that under German law said
court was locally and internationally competent for the divorce proceeding and that the
dissolution of said marriage was legally founded on and authorized by the applicable law of that
foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance of the divorce decree, private
respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while
still married to said respondent, petitioner "had an affair with a certain William Chia as early as
1982 and with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto
A. de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the
cases on the ground of insufficiency of evidence. 5 However, upon review, the respondent city
fiscal approved a resolution, dated January 8, 1986, directing the filing of two complaints for
adultery against the petitioner. 6 The complaints were accordingly filed and were eventually
raffled to two branches of the Regional Trial Court of Manila. The case entitled "People of the
Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was
assigned to Branch XXVI presided by the respondent judge; while the other case, "People of the
Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went
to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the
aforesaid resolution of respondent fiscal be set aside and the cases against her be
dismissed. 8 A similar petition was filed by James Chua, her co-accused in Criminal Case No.
87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due course to
both petitions and directed the respondent city fiscal to inform the Department of Justice "if the
accused have already been arraigned and if not yet arraigned, to move to defer further
proceedings" and to elevate the entire records of both cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to
suspend further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended
proceedings in Criminal Case No. 87-52434. On the other hand, respondent judge merely reset
the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such
scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension
of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for
review then pending before the Secretary of Justice. 11 A motion to quash was also filed in the
same case on the ground of lack of jurisdiction, 12 which motion was denied by the respondent
judge in an order dated September 8, 1987. The same order also directed the arraignment of
both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty
while the petitioner refused to be arraigned. Such refusal of the petitioner being considered by
respondent judge as direct contempt, she and her counsel were fined and the former was
ordered detained until she submitted herself for arraignment. 13 Later, private respondent
entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a
prayer for a temporary restraining order, seeking the annulment of the order of the lower court
denying her motion to quash. The petition is anchored on the main ground that the court is
without jurisdiction "to try and decide the charge of adultery, which is a private offense that
cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not
qualify as an offended spouse having obtained a final divorce decree under his national law
prior to his filing the criminal complaint." 15
On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents
from implementing the aforesaid order of September 8, 1987 and from further proceeding with
Criminal Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A.
Ordoez acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations,
issued a resolution directing the respondent city fiscal to move for the dismissal of the
complaints against the petitioner. 16
We find this petition meritorious. The writs prayed for shall accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other
crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by
the offended spouse. It has long since been established, with unwavering consistency, that
compliance with this rule is a jurisdictional, and not merely a formal, requirement. 18 While in
point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law,
the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that
complaint which starts the prosecutory proceeding 19 and without which the court cannot
exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage the person
who can legally file the complaint should be the offended spouse, and nobody else. Unlike the
offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the
prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian
of the offended party. The so-called exclusive and successive rule in the prosecution of the first
four offenses above mentioned do not apply to adultery and concubinage. It is significant that
while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in
the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her
parents, grandparents or guardian, such amendment did not include the crimes of adultery and
concubinage. In other words, only the offended spouse, and no other, is authorized by law to
initiate the action therefor.

Corollary to such exclusive grant of power to the offended spouse to institute the action, it
necessarily follows that such initiator must have the status, capacity or legal representation to
do so at the time of the filing of the criminal action. This is a familiar and express rule in civil
actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is
determined as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean
that the same requirement and rationale would not apply. Understandably, it may not have been
found necessary since criminal actions are generally and fundamentally commenced by the
State, through the People of the Philippines, the offended party being merely the complaining
witness therein. However, in the so-called "private crimes" or those which cannot be
prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended
spouse assumes a more predominant role since the right to commence the action, or to refrain
therefrom, is a matter exclusively within his power and option.
This policy was adopted out of consideration for the aggrieved party who might prefer to suffer
the outrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently
argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital
relationship is still subsisting at the time of the institution of the criminal action for, adultery. This
is a logical consequence since the raison d'etre of said provision of law would be absent where
the supposed offended party had ceased to be the spouse of the alleged offender at the time of
the filing of the criminal case. 21
In these cases, therefore, it is indispensable that the status and capacity of the complainant to
commence the action be definitely established and, as already demonstrated, such status or
capacity must indubitably exist as of the time he initiates the action. It would be absurd if his
capacity to bring the action would be determined by his status before or subsequent to the
commencement thereof, where such capacity or status existed prior to but ceased before, or
was acquired subsequent to but did not exist at the time of, the institution of the case. We would
thereby have the anomalous spectacle of a party bringing suit at the very time when he is
without the legal capacity to do so.
To repeat, there does not appear to be any local precedential jurisprudence on the specific
issue as to when precisely the status of a complainant as an offended spouse must exist where
a criminal prosecution can be commenced only by one who in law can be categorized as
possessed of such status. Stated differently and with reference to the present case, the inquiry
;would be whether it is necessary in the commencement of a criminal action for adultery that the
marital bonds between the complainant and the accused be unsevered and existing at the time
of the institution of the action by the former against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which are in pari
materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse no
longer has the right to institute proceedings against the offenders where the statute provides
that the innocent spouse shall have the exclusive right to institute a prosecution for adultery.
Where, however, proceedings have been properly commenced, a divorce subsequently granted
can have no legal effect on the prosecution of the criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced except on the complaint of the
husband or wife.' Section 4932, Code. Though Loftus was husband of defendant
when the offense is said to have been committed, he had ceased to be such
when the prosecution was begun; and appellant insists that his status was not
such as to entitle him to make the complaint. We have repeatedly said that the
offense is against the unoffending spouse, as well as the state, in explaining the
reason for this provision in the statute; and we are of the opinion that the
unoffending spouse must be such when the prosecution is commenced.
(Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in our
jurisdiction, considering our statutory law and jural policy on the matter. We are convinced that

in cases of such nature, the status of the complainant vis-a-vis the accused must be determined
as of the time the complaint was filed. Thus, the person who initiates the adultery case must be
an offended spouse, and by this is meant that he is still married to the accused spouse, at the
time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid divorce in his country, the
Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized
in the Philippines insofar as private respondent is concerned 23 in view of the nationality
principle in our civil law on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a
United States court between Alice Van Dornja Filipina, and her American husband, the latter
filed a civil case in a trial court here alleging that her business concern was conjugal property
and praying that she be ordered to render an accounting and that the plaintiff be granted the
right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated
the error of such stance, thus:
There can be no question as to the validity of that Nevada divorce in any of the
States of the United States. The decree is binding on private respondent as an
American citizen. For instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. ...
It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against absolute
divorces the same being considered contrary to our concept of public policy and
morality. However, aliens may obtain divorces abroad, which may be recognized
in the Philippines, provided they are valid according to their national law. ...
Thus, pursuant to his national law, private respondent is no longer the husband
of petitioner. He would have no standing to sue in the case below as petitioner's
husband entitled to exercise control over conjugal assets. ... 25
Under the same considerations and rationale, private respondent, being no longer the husband
of petitioner, had no legal standing to commence the adultery case under the imposture that he
was the offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought this case before the decree
of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this
case. When said respondent initiated the divorce proceeding, he obviously knew that there
would no longer be a family nor marriage vows to protect once a dissolution of the marriage is
decreed. Neither would there be a danger of introducing spurious heirs into the family, which is
said to be one of the reasons for the particular formulation of our law on adultery, 26 since there
would thenceforth be no spousal relationship to speak of. The severance of the marital bond
had the effect of dissociating the former spouses from each other, hence the actuations of one
would not affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied upon by private
respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333
of the Revised Penal Code, which punished adultery "although the marriage be afterwards
declared void", the Court merely stated that "the lawmakers intended to declare adulterous the
infidelity of a married woman to her marital vows, even though it should be made to appear that
she is entitled to have her marriage contract declared null and void, until and unless she actually
secures a formal judicial declaration to that effect". Definitely, it cannot be logically inferred
therefrom that the complaint can still be filed after the declaration of nullity because such
declaration that the marriage is void ab initio is equivalent to stating that it never existed. There
being no marriage from the beginning, any complaint for adultery filed after said declaration of
nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated
and within the purview of the decision in said case is the situation where the criminal action for
adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab
initio. The same rule and requisite would necessarily apply where the termination of the
marriage was effected, as in this case, by a valid foreign divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must
suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended
spouse therein had duly and seasonably filed a complaint for adultery, although an issue was
raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not
involve a factual situation akin to the one at bar or any issue determinative of the controversy
herein.
WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and
another one enteredDISMISSING the complaint in Criminal Case No. 87-52435 for lack of
jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby
made permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.
Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider the German absolute
divorce as valid also in the Philippines, the fact is that the husband in the instant case, by the
very act of his obtaining an absolute divorce in Germany can no longer be considered as the
offended party in case his former wife actually has carnal knowledge with another, because in
divorcing her, he already implicitly authorized the woman to have sexual relations with others. A
contrary ruling would be less than fair for a man, who is free to have sex will be allowed to
deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the
absolute divorce between the American husband and his American wife as valid and binding in
the Philippines on the theory that their status and capacity are governed by their National law,
namely, American law. There is no decision yet of the Supreme Court regarding the validity of
such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two
(2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and precisely
because of theNational law doctrine, he considers the absolute divorce as valid insofar as the
American husband is concerned but void insofar as the Filipino wife is involved. This results in
what he calls a "socially grotesque situation," where a Filipino woman is still married to a man
who is no longer her husband. It is the opinion however, of the undersigned that very likely the
opposite expresses the correct view. While under the national law of the husband the absolute
divorce will be valid, still one of the exceptions to the application of the proper foreign law (one
of the exceptions to comity) is when the foreign law will work an injustice or injury to the people
or residents of the forum. Consequently since to recognize the absolute divorce as valid on the
part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would
be still valid under her national law, it would seem that under our law existing before the new
Family Code (which took effect on August 3, 1988) the divorce should be considered void both
with respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact
that the husband was an American can with a Filipino wife because in said case the validity of
the divorce insofar as the Filipino wife is concerned was NEVER put in issue.

Separate Opinions
PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute

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

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-37048

March 7, 1933

MANUELA BARRETTO GONZALEZ, plaintiff-appellee,

vs.
AUGUSTO C. GONZALEZ, defendant-appellant.
AUGUSTO C. GONZALEZ, Jr., ET AL., intervenors-appellees.
Quintin Paredes and Barrera and Reyes for appellant.
DeWitt, Perkins and Brady for plaintiff-appellee.
Camus and Delgado for intervenors-appellees.
HULL, J.:
Plaintiff and defendant are citizens of the Philippine Islands and at present residents of the City
of Manila. They were married in the City of Manila on January 19, 1919, and lived together as
man and wife in the Philippine Islands until the spring of 1926. They voluntarily separated and
since that time have not lived together as man and wife. Of this union four children were born
who are now 11, 10, 8 and 6 years of age. Negotiations between the parties, both being
represented by attorneys, continued for several months, whereupon it was mutually agreed to
allow the plaintiff for her support and that of her children, five hundred pesos (P500) monthly;
this amount to be increased in case of illness or necessity, and the title of certain properties to
be put in her name. Shortly after this agreement the husband left the Islands, betook himself to
Reno, Nevada, and secured in that jurisdiction an absolute divorce on the ground of desertion,
which decree was dated November 28, 1927. Shortly thereafter the defendant moved to
California and returned to these Islands in August 1928, where he has since remained. On the
same date that he secured a divorce in Nevada he went through the forms of marriage with
another citizen of these Islands and now has three children as a result of that marriage.
Defendant, after his departure from these Islands, reduced the amount he had agreed to pay
monthly for the support of his wife and four minor children and has not made the payments fixed
in the Reno divorce as alimony.
Shortly after his return his wife brought action in the Court of First Instance of Manila requesting
that the courts of the Philippine Islands confirm and ratify the decree of divorce issued by the
courts of the State of Nevada; that section 9 of Act No. 2710, which reads as follows:
The decree of divorce shall dissolve the community of property as soon as such decree
becomes final, but shall not dissolve the bonds of matrimony until one year thereafter.
The bonds of matrimony shall not be considered as dissolved with regard to the spouse
who, having legitimate children, has not delivered to each of them or to the guardian
appointed by the court, within said period of one year, the equivalent of what would have
been due to them as their legal portion if said spouse had died intestate immediately
after the dissolution of the community of property.
be enforced, and that she and the defendant deliver to the guardian ad litem the equivalent of
what would have been due to their children as their legal portion from the respective estates had
their parents did intestate on November 28, 1927. It is also prayed that the community existing
between plaintiff and defendant be declared dissolved and the defendant be ordered to render
an accounting and to deliver to the plaintiff her share of the community property, that the
defendant be ordered to pay the plaintiff alimony at the rate of five hundred pesos (P500) per
month, that the defendant be ordered to pay the plaintiff, as counsel fees, the sum of five
thousand pesos (P5000), and that the defendant be ordered to pay plaintiff the expenses
incurred in educating the three minor sons.

A guardian ad litem was appointed for the minor children, and they appear as intervenors and
join their mother in these proceedings. The Court of First Instance, after hearing, found against
the defendant and granted judgment as prayed for by the plaintiff and intervenors, with the
exception of reducing attorneys fees to three thousand, and also granted costs of the action
against the defendant. From this judgment defendant appeals and makes the following
assignment of errors:
I. The lower court erred in not declaring that paragraph 2 of section 9 of the Philippine
Divorce Law, is unconstitutional, null and void.
II. The lower court erred in holding that section 9 of Act No. 2710 (Divorce Law) applies
to the Nevada decree of divorce issued in favor of appellant Augusto C. Gonzalez, said
decree being entitled to confirmation and recognition.
III. The lower court erred in not dismissing the complaint in intervention for lack of cause
of action against appellant and appellee.
IV. The lower court erred in not declaring the notice of lis pendens filed by intervenors to
be null and void.
V. The lower court erred in ordering the appellant to pay the sum of P500 per month for
the support not only of his children but also of his ex-wife, appellee herein, Manuela
Barretto.
VI. The lower court erred in not holding that plaintiff- appellee, Manuela Barretto, is not
entitled to support from her ex-husband, herein appellant, over and beyond the alimony
fixed by the divorce decree in Exhibit A.
VII. The lower court erred in condemning defendant appellant to pay to plaintiff-appellee
P3,000 attorney's fees.
VIII. The lower court erred in denying appellant's motion for new trial.
While the parties in this action are in dispute over financial matters they are in unity in trying to
secure the courts of this jurisdiction to recognize and approve of the Reno divorce. On the
record here presented this can not be done. The public policy in this jurisdiction on the question
of divorce is clearly set forth in Act No. 2710, and the decisions of this court: Goitia vs. Campos
Rueda (35 Phil., 252); Garcia Valdez vs. Soteraa Tuason (40 Phil., 943-952); Ramirez vs.
Gmur (42 Phil., 855); Chereau vs. Fuentebella (43 Phil., 216); Fernandez vs. De Castro(48
Phil., 123); Gorayeb vs. Hashim (50 Phil., 22); Francisco vs. Tayao (50 Phil., 42); Alkuino Lim
Pang vs. Uy Pian Ng Shun and Lim Tingco (52 Phil., 571); and the late case of Cousins Hix vs.
Fluemer, decided March 21, 1931, and reported in 55 Phil., 851.
The entire conduct of the parties from the time of their separation until the case was submitted
to this court, in which they all prayed that the Reno divorce be ratified and confirmed, clearly
indicates a purpose to circumvent the laws of the Philippine Islands regarding divorce and to
secure for themselves a change of status for reasons and under conditions not authorized by
our law. At all times the matrimonial domicile of this couple has been within the Philippine
Islands and the residence acquired in the State of Nevada by the husband of the purpose of
securing a divorce was not a bona fide residence and did not confer jurisdiction upon the Court
of that State to dissolve the bonds if matrimony in which he had entered in 1919. While the
decisions of this court heretofore in refusing to recognize the validity of foreign divorce has
usually been expressed in the negative and have been based upon lack of matrimonial domicile
or fraud or collusion, we have not overlooked the provisions of the Civil Code now in force in
these Islands. Article 9 thereof reads as follows:
The laws relating to family rights and duties, or to the status, condition and legal capacity
or persons, are binding upon Spaniards even though they reside in a foreign country.
And article 11, the last part of which reads:

. . . the prohibitive laws concerning persons, their acts and their property, and those
intended to promote public order and good morals, shall nor be rendered without effect
by any foreign laws or judgments or by anything done or any agreements entered into a
foreign country.
It is therefore a serious question whether any foreign divorce relating to citizens of the Philippine
Islands, will be recognized in this jurisdiction, except it be for a cause, and under conditions for
which the courts of Philippine Islands would grant a divorce. The lower court in granting relief as
prayed for frankly stated that the securing of the divorce, the contracting of another marriage
and the bringing into the world of innocent children brings about such a condition that the court
must grant relief. The hardships of the existing divorce laws of the Philippine Islands are well
known to the members of the Legislature. It is of no moment in this litigation what he personal
views of the writer on the subject of divorce may be. It is the duty of the courts to enforce the
laws of divorce as written by the Legislature if they are constitutional. Courts have no right to
say that such laws are too strict or too liberal.
Litigants by mutual agreement can not compel the courts to approve of their own actions or
permit the personal relations of the citizens of these Islands to be affected by decrees of foreign
courts in a manner which our Government believes is contrary to public order and good morals.
Holding the above views it becomes unnecessary to discuss the serious constitutional question
presented by appellant in his first assignment of error.
The judgment of the Court of First Instance of the City of Manila must therefore be reversed and
defendant absolved from the demands made against him in this action. This, however, without
prejudice to any right of maintenance that plaintiff and the intervenors may have against
defendant. No special pronouncement as to costs. So ordered.
Avancea, C.J., Street, Villamor Ostrand, Abad Santos, Vickers, Imperial and Butte JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-2935

March 23, 1909

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GEORGE I. FRANK, defendant-appellant.
Bishop and O'Brien for appellant.
Attorney-General Wilfley for appellee.
JOHNSON, J.:
Judgment was rendered in the lower court on the 5th day of September, 1905. The defendant
appealed. On the 12th day of October, 1905, the appellant filed his printed bill of exceptions with
the clerk of the Supreme Court. On the 5th day of December, 1905, the appellant filed his brief
with the clerk of the Supreme Court. On the 19th day of January, 1906, the Attorney-General
filed his brief in said cause. Nothing further was done in said cause until on or about the 30th
day of January, 1909, when the respective parties were requested by this court to prosecute the
appeal under the penalty of having the same dismissed for failure so to do; whereupon the
appellant, by petition, had the caused placed upon the calendar and the same was heard on the
2d day of February, 1909.
The facts from the record appear to be as follows:
First. That on or about the 17th day of April, 1903, in the city of Chicago, in the state of Illinois,
in the United States, the defendant, through a respective of the Insular Government of the
Philippine Islands, entered into a contract for a period of two years with the plaintiff, by which
the defendant was to receive a salary of 1,200 dollars per year as a stenographer in the service
of the said plaintiff, and in addition thereto was to be paid in advance the expenses incurred in
traveling from the said city of Chicago to Manila, and one-half salary during said period of travel.
Second. Said contract contained a provision that in case of a violation of its terms on the part of
the defendant, he should become liable to the plaintiff for the amount expended by the
Government by way of expenses incurred in traveling from Chicago to Manila and one-half
salary paid during such period.
Third. The defendant entered upon the performance of his contract upon the 30th day of April,
1903, and was paid half-salary from that date until June 4, 1903, the date of his arrival in the
Philippine Islands.
Fourth. That on the 11th day of February, 1904, the defendant left the service of the plaintiff and
refused to make further compliance with the terms of the contract.
Fifth. On the 3d day of December, 1904, the plaintiff commenced an action in the Court of First
Instance of the city of Manila to recover from the defendant the sum of 269.23 dollars, which
amount the plaintiff claimed had been paid to the defendant as expenses incurred in traveling
from Chicago to Manila, and as half salary for the period consumed in travel.
Sixth. It was expressly agreed between the parties to said contract that Laws No. 80 and No.
224 should constitute a part of said contract.
To the complaint of the plaintiff the defendant filed a general denial and a special defense,
alleging in his special defense that the Government of the Philippine Islands had amended Laws
No. 80 and No. 224 and had thereby materially altered the said contract, and also that he was a
minor at the time the contract was entered into and was therefore not responsible under the law.

To the special defense of the defendant the plaintiff filed a demurrer, which demurrer the court
sustained.
Upon the issue thus presented, and after hearing the evidence adduced during the trial of the
cause, the lower court rendered a judgment against the defendant and in favor of the plaintiff for
the sum of 265.90 dollars. The lower court found that at the time the defendant quit the service
of the plaintiff there was due him from the said plaintiff the sum of 3.33 dollars, leaving a
balance due the plaintiff in the sum of 265.90 dollars. From this judgment the defendant
appealed and made the following assignments of error:
1. The court erred in sustaining plaintiff's demurrer to defendant's special defenses.
2. The court erred in rendering judgment against the defendant on the facts.
With reference to the above assignments of error, it may be said that the mere fact that the
legislative department of the Government of the Philippine Islands had amended said Acts No.
80 and No. 224 by the Acts No. 643 and No. 1040 did not have the effect of changing the terms
of the contract made between the plaintiff and the defendant. The legislative department of the
Government is expressly prohibited by section 5 of the Act of Congress of 1902 from altering or
changing the terms of the contract. The right which the defendant had acquired by virtue of Acts
No. 80 and No. 224 had not been changed in any respect by the fact that said laws had been
amended. These acts, constituting the terms of the contract, still constituted a part of said
contract and were enforceable in favor of the defendant.
The defendant alleged in his special defense that he was a minor and therefore the contract
could not be enforced against him. The record discloses that, at the time the contract was
entered into in the State of Illinois, he was an adult under the laws of that State and had full
authority to contract. The plaintiff [the defendant] claims that, by reason of the fact that, under
the laws of the Philippine Islands at the time the contract was made, male persons in said
Islands did not reach their majority until they had attained the age of 23 years, he was not liable
under said contract, contending that the laws of the Philippine Islands governed. It is not
disputed upon the contrary the fact is admitted that at the time and place of the making of
the contract in question the defendant had full capacity to make the same. No rule is better
settled in law than that matters bearing upon the execution, interpretation and validity of a
contract are determined by the law of the place where the contract is made. (Scudder vs. Union
National Bank, 91 U. S., 406.) Matters connected with its performance are regulated by the law
prevailing at the place of performance. Matters respecting a remedy, such as the bringing of
suit, admissibility of evidence, and statutes of limitations, depend upon the law of the place
where the suit is brought. (Idem.)
The defendant's claim that he was an adult when he left Chicago but was a minor when he
arrived at Manila; that he was an adult at the time he made the contract but was a minor at the
time the plaintiff attempted to enforce the contract, more than a year later, is not tenable.
Our conclusions with reference to the first above assignment of error are, therefore:
First. That the amendments to Acts No. 80 and No. 224 in no way affected the terms of the
contract in question; and
Second. The plaintiff [defendant] being fully qualified to enter into the contract at the place and
time the contract was made, he can not plead infancy as a defense at the place where the
contract is being enforced.
We believe that the above conclusions also dispose of the second assignment of error.
For the reasons above stated, the judgment of the lower court is affirmed, with costs.
Arellano, C. J., Torres, Mapa, Carson, and Willard, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-7487 December 29, 1913
CONSTANZA YAEZ DE BARNUEVO, plaintiff and appellant,
vs.
GABRIEL FUSTER, defendant and appellant.
O'Brien & DeWitt for plaintiff.
Chicote & Miranda for defendant.

JOHNSON, J.:
On the 7th of February, 1875, Gabriel Fuster and Constanza Yaez were joined in a Catholic or
canonical marriage in the city of Malaga, Spain. In February of 1892, Gabriel Fuster came to the
Philippine Islands, settled, and acquired real and personal property. Toward the middle of 1896,
Constanza Yaez came to Manila, where her husband was residing, and here lived with him in
conjugal relations until the month of April, 1899. On the 4th day of that month and year they
made an agreement, in a public document, by which they "resolved to separate and live apart,
both consenting to such separation, and by virtue thereof the husband authorized the wife to
move to Spain, there to reside in such place as the said lady pleases." (B. of E., p. 13.) In the
same document, the husband undertook to send his wife the sum of 300 pesetas monthly for
her support, payable in Madrid, Spain, from the month of June of the said year 1899. The
husband complied with this obligation until August, 1899, after which time he ceased to make
further payments.
In the beginning of March, 1909, the wife returned to the Philippines, but the husband had
absented himself therefrom in the early days of February of the same year. On the 11th of
March, 1909, the wife commenced divorce proceedings against her husband, alleging as cause
of action the adultery committed by him in or about the year 1899 with a certain woman that she
named in the complaint and with whom he had lived and cohabited and by whom he had had
two children. She prayed that she be granted a decree of divorce; that the court order the
separation of the properties of the plaintiff and the defendant, to date from the date of the said
decree; that the conjugal society be therefore liquidated, and after the amount of the conjugal
property had been determined, that one-half thereof be adjudicated to her; furthermore, as to
the amount of pension owing for her support but not paid to her, that the defendant be ordered
to pay her the sum of 36,000 Spanish pesetas, that is, 7,220 Spanish dollars, which, reduced to
Philippine currency at the rate of exchange on the date of the complaint, amounted to
P12,959.90.
The defendant denied that either he or his wife was a resident of the city of Manila, as they had
their domicile in Barcelona, Spain, and he alleged that both of them were natives and subjects
of Spain. He admitted that he was married to Constanza Yaez; he also admitted having
executed the document of the 4th of April, 1899, in which he had undertaken to make an
allowance for the support of his wife in Madrid, but he denied the other paragraphs of the
complaint. As a special defense with regard to the allowance, he alleged: "That in or about the
month of May, 1900, he wrote to his wife, the plaintiff, instructing her to return to Manila, with a
view of joining her husband and being maintained by him in his own house; that the
communication was ignored by the plaintiff, who against the will of the defendant, continued to
live separately from him that from the year 1901, the defendant did not know her address; that
since 1900, the plaintiff has lived in comfort and has known where her husband resided; that the
plaintiff, during all of the time referred to, in addition to dispossing of valuable property belonging
to her husband, possessed and still possesses property of her own, acquired by her, in greater
amount than that owned by her husband; and that in any case the action has prescribed by
operation of law."(B. of E., pp. 7 and 8.) As to the divorce, he admits that he had by the plaintiff

two children that have died. He expressly denied the contents of paragraph 5 of the complaint,
relating to the charge of adultery and also those of paragraphs 6, 7, and 8, concerning the
possession of real and personal property of the conjugal partnership, the statement of their
amount, and their qualification as being all conjugal property. As a special defense, he alleged
that prior to the year 1899 he conferred powers of attorney upon the plaintiff to administer and
collect property and credits pertaining to him to the value of about 200,000 pesos; that the
plaintiff accepted and exercised the said power of attorney, attached the property and collected
the credits without ever having rendered any account of them. As a special preferred defense,
he alleged that neither the trial court nor any other court in the Philippine Islands has jurisdiction
over the subject matter of the complaint, because, as to the allowance for support, since neither
the plaintiff nor the defendant are residents of Manila, or of any other place in the Philippine
Islands, the agreement upon the subject was neither celebrated, nor was it to be fulfilled, in the
Philippine Islands; and as to the divorce, because the action therefore ought to be tried by the
ecclesiastical courts. In conclusion, he prayed that the court find: That the court was without
jurisdiction over the two causes of action; that even if it had jurisdiction, it could not order the
payment of the sum claimed as arrears of alimony; that, after all, the action with regard to this
cause of action has prescribed; and as to the prayer for a decree of divorce, the defendant
should be acquitted, while on the other hand the plaintiff should be required to render to the
defendant an accounting, supported by proofs, of her operations as his attorney and
administratrix of his property in Spain.
In deciding the case, the Court of First Instance of the city of Manila held itself to have
jurisdiction, decreed the suspension of life in common between the plaintiff and defendant,
ordered the latter to pay the former P5,010.17, directed that the communal property be divided
between the parties, with costs against the defendant, and in event that the parties could not
agree to the division, it was to be effected by commissioners according to law.
Both parties appealed from this judgment, but notwithstanding the appeal, the partition of the
property, by means of commissioners, was proceeded with. These latter, after various
vicissitudes, rendered their report and account of the partition to the court, who then rendered
final judgment, from which, also, both parties appealed.
I. DEFENDANT'S APPEAL.
The first error assigned is the utter lack of jurisdiction of the trial court and of all other courts of
the Islands to try the case, either with regard to the fulfillment of the contract to furnish alimony,
or to decree a divorce or suspension of life in common between the spouses: lack of jurisdiction
over the persons and over the subject matter of the litigation; and over the persons of the
contending parties, because neither of the spouses was a resident of the Philippines on the date
of the complaint.
The lower court did not commit this error attributed to him. The defendant had not proved that
he had elsewhere a legal domicile other than that which he manifestly had in the Philippines
during the seventeen years preceding the date of the complaint. On the contrary, it plainly
appears, without proof to the contrary, that during this not inconsiderable period, extending from
the year 1892 until a month prior to the arrival of his wife in the Philippines in March, 1909, he
had constantly resided in the said Islands, had kept open house, and had acquired in the city of
Manila quite a little real property which is now the object of the division of the conjugal society. It
is also plainly shown, without proof to the contrary, that his wife resided in this city of Manila
from the middle of 1896 until April, 1899, at which time she was permitted by him to change her
residence. It is affirmed by the defendant in point five of his answer to the complaint, that in
May, 1900, he sent a letter instructing the plaintiff to return to Manila to live with her husband
and to be supported by him in his house, but that the plaintiff, against the will of the defendant,
continued to live part from him. (B. of E., p. 7.) It is also affirmed in the said answer, that during
all of the time referred to in the complaint, and especially since 1900, the plaintiff knew where
her husband resided. (B. of E., p. 7.) It is also very evident that the contract, by virtue of which
he authorized his wife to move to Spain and residethere in such place as was agreeable to her,
was executed in these Islands, "in the city of Manila on the 4th of April, 1889," as is to be seen
in the heading of the document. (B. of E., p. 12.) Finally, at page 11 of his brief, he says that the
record shows him to be a Spanish subject, inscribed in the consulate of his nation, and cities
article 26 of the Civil Code, the Treaty of Paris and the Philippine Bill.

Granting these facts, there can be no doubt that the defendant, although a Spanish subject, was
a resident of these Islands. Article 26 of the Civil Code that he cites itself provides that
"Spaniards who change their domicile to a foreign country, where they may be considered as
natives without other conditions than that of residents therein, shall be required, in order to
preserve the Spanish nationality, to state that such is their wish before the Spanish diplomatic or
consular agent, who must record them in the registry of Spanish residents, as well as their
spouses, should they be married, and any children they may have." From this provision, which
is the exclusive and irrefutable law governing the defendant, we are to conclude that the
domicile of the defendant and the plaintiff is fully proven, irrespective of the Treaty of Paris.
Without this supposition of having acquired his domicile and residence in these Islands, he
could not have required his wife to return to live with him therein because this requirement could
only be based on articles 58 of the Civil Code of Spain, according to which the wife is obliged to
follow her husband wherever he wishes to establish his residence, or on article 48 of chapter 5
of the Marriage Law in force in the Philippines, which imposes upon the wife the duty of obeying
her husband, living in his company, or of following him to wherever he transfers his domicile or
residence. And just because he was absent for a month before his wife returned to the
Philippines, he cannot be understood to have surrendered his habitual domicile of more than
seventeen years, without having established any other afterwards, and without making any
declaration in legal form, before he absented himself, of it being his intention to change his
domicile, while at the same time he retains here his house, real property and all manner of
means of subsistence. Section 377 of the Code of Civil Procedure leaves to the election of the
plaintiff the bringing of a personal action like the one at bar either in the place where the
defendant may reside or be found, or in that where the plaintiff resides.
The litigating spouses have gained not only domicile (domicilio) but also residence (vecindad) in
Manila. In this litigation the defendant claims that, born as he says in Mallorca, in the Balearic
Islands, he is not subject, in his marriage, to the rules governing conjugal property, that are in
force in the territories of Spain that are governed by the common law of Castillo (as the
Philippines in their day), because they are opposed to the Foral Law in force in the said Islands
and which is respected by the Civil Code. Even if this defense could be sustained herein,
paragraph 2 of article 15 of the said Civil Code would be applicable. It provides: "For the
purposes of this article, residence (vecindad) will be acquired: By residence of ten years
in common law provinces or territories, unless before the termination of that time he manifests
his will to the contrary; or by a residence of two years, if the interested person declares this to
be his will . . . In any case, the wife will follow the condition of her husband. . . ." On no occasion
had the defendant manifested his will to the contrary, not even as he was leaving, after a
residence of seventeen years, a month before the return of his wife to these Islands. On the
contrary, when he inscribed himself in the Spanish consulate, he declared his intention of
continuing to reside in the Islands as a Spaniard and not as a Mallorquin, subject as such to the
common law of Spain.
In an endeavor to demonstrate the lack of jurisdiction of the courts of these Islands over the
subject matter of the complaint that is to try an action for divorce between two Catholic
Spaniards, he alleges in his appeal: That both litigants are Spanish subjects and that they
contracted a Catholic marriage; that in accordance with article 9 of the Civil Code of Spain (the
same as that of these Islands) the laws relating to family rights and duties, or to the status,
condition and legal capacity of persons, govern Spaniards although they reside in a foreign
country; that, in consequence, "all questions of a civil nature, such as those dealing with the
validity or nullity of the matrimonial bond, the domicile of the husband and wife, their support, as
between them, the separation of their properties, the rules governing property, marital authority,
division of conjugal property, the classification of their property, legal causes for divorce, the
extent of the latter, the AUTHORITY to decree it, and, in general, the civil effects of marriage
and divorce upon the person and properties of the spouses, are questions that are governed
exclusively by the national law of the husband and wife, and, in our case, by the Spanish law by
virtue of article 9 as above set out." (Brief, p. 12.) The appellant and defendant continues his
argument, saying: That by the express provision of article 80 of the Civil Code of Spain,
"jurisdiction in actions for divorce and nullification of canonical marriages lies with ecclesiastical
courts," while that of civil tribunals is limited to civil marriages; that this being so, the action for
divorce brought by the plaintiff in the cause does not fall within the jurisdiction of the civil courts,
according to his own law of persons, because these courts ought to apply the Spanish law in
accordance with the said article 9 of the Civil Cod of Spain, and this Spanish law grants the
jurisdiction over the present cause to the ecclesiastical courts, in the place of which no tribunal

of these Islands con subrogate itself. Says this appellant: "If a law of a foreign country were of
rigorous application in a given case, a North American tribunal would have no jurisdiction upon
an ecclesiastical court and therefore the North American tribunal in applying it would have to
exercise a faculty which that law reserved to the ecclesiastical court." (Brief, pp. 13, 14, and 15.)
Unless we take the question itself for granted, the foregoing reasoning cannot be upheld. The
question is precisely whether the courts of the Philippines are competent or have jurisdiction to
decree the divorce now on appeal, and it is taken for granted that the power to decree it is one
of the rights included in the personal statute, but appellant does not prove by any law or legal
doctrine whatever that the personal statute of a foreigner carries with it, to whether he transfers
his domicile, the authority established by the law of his nation to decree his divorce, which was
what he had to demonstrate.
The authority of jurisdictional power of courts to decree a divorce is not comprised within the
personal status of the husband and wife, simply because the whole theory of the statutes and of
the rights which belong to everyone does not go beyond the sphere of private law, and the
authority and jurisdiction of the courts are not a matter of the private law of persons, but of the
public or political law of the nation. "The jurisdiction of courts and other questions relating to
procedure are considered to be of a public nature and consequently are generally submitted to
the territorial principle. . . . All persons that have to demand justice in a case in which foreigners
intervene, since they can gain nothing by a simple declaration, should endeavor to apply to the
tribunales of the state which have coercive means (property situated in the territory) to enforce
any decision they may render. Otherwise, one would expose himself in the suit to making
useless expenditures which, although he won his case, would not contribute to secure his rights
because of the court's lack of means to enforce them." (Torres Campos, "Elementos de
Derecho International Privado," p. 108.) "Justice," says the same professor, "is a principle
superior to that of nations, and it should therefore be administered without taking into any
account whatsoever the state to which the litigants belong. . . . In order to foster their relations
and develop their commerce, all civilized nations are interested in doing justice, not alone to
their own people, but to those foreigners who contract within the country or outside of it juridical
ties which in some manner effect their sovereignty. (Ibid, p. 107.) Might its courts, in some
cases, in suits between foreigners residing in its territory, apply the personal law of the parties,
but abdicate their jurisdiction, refrain from administering justice because the personal law of the
foreigner gave the jurisdiction of the given case to some court that is not the territorial one of the
nation? This has never yet been claimed in any of the theories regarding the conflict of laws
arising out of questions of nationality and domicile; it would be equivalent to recognizing
extraterritorial law in favor of private persons. The provisions of article 80 of the Civil Law of
Spain is only binding within the dominions of Spain. It does not accompany the persons of the
Spanish subject wherever he may go. He could not successfully invoke it if he resided in Japan,
in China, in Hongkong or in any other territory not subject to the dominion of Spain. Foreign
Catholics domiciled in Spain, subject to the ecclesiastical courts in actions for divorce according
to the said article 80 of the Civil Code, could not allege lack of jurisdiction by invoking, as the
law of their personal statute, a law of their nation which gives jurisdiction in such a case to
territorial courts, or to a certain court within or without the territory of their nation.1awphi1.net
It is a question that has already been settled in two decisions of the Supreme Court (Benedicto
vs. De la Rama, 3 Phil. Rep., 34, and Ibaez vs. Ortiz, 5 Phil. Rep., 325).
In the present action for divorce the Court of First Instance of the city of Manila did not lack
jurisdiction over the persons of the litigants, for, although Spanish Catholic subjects, they were
residents of this city and had their domicile herein.
The Courts of First Instance of the Philippine Islands have the power and jurisdiction to try
actions for divorce. That of the city of Manila did not lack jurisdiction by reason of the subject
matter of the litigation.
The second assignment of error is directed against the finding of the court that the defendant
had committed adultery with a certain woman in this city from the year 1899 until 1909; the third
was against the finding that the adultery was accompanied by public scandal and injured the
dignity of his wife; and the fourth for having decreed the divorce, suspension of the married life,
and the separation of the properties of the parties.

The evidence relating to the foregoing not being sent up on appeal, we are unable to review it,
so we accept the findings of the trial court.
There is a point of law regarding the claim that the adultery, even though it were proven would
not be a cause for divorce, because no public scandal resulted therefrom nor was there
contempt displayed for the wife. (Appellant's brief, p. 26.) The facts must be accepted by this
tribunal as they were found by the trial court, since the evidence cannot be reviewed; moreover,
the appellee affirms the contrary and maintains that it is a proven fact, public and notorious, an
assertion that the trial court must have found to be proven. (Appellee's brief, p. 5.) In law, it is
not necessary that adultery, to be a cause for divorce, should be accompanied by public
scandal and contempt for the wife. There is no law that requires this. Law 2, title 9, of the Fourth
Partida does not require it.
The fifth and sixth assignments of error are directed against the finding of the trial court that
there exists conjugal property, a finding that the appellant maintains is without foundation, and
that which holds that the property in the hands of the receiver (that sought to be divided) is
conjugal property, a conclusion which the appellant claims to be contrary to the law which
should be applied to the case and according to which, as alleged in the tenth assignment of
error, the whole of the property should be adjudicated to the defendant as being exclusively his.
Facts: The appellant affirms that he is a native of Mallorca in the Balearic Islands and that is
also the condition of his wife, the plaintiff. Law: That although the rule of the Civil Code is that
which legally governs conjugal property, yet at the same time it admits, as an exception, the
laws, usages, and customs of the Foral Law, according to which, as applied in the Balearic
Islands, the law of the family is that of the division of property and that of conjugal property is
not known; so that the property pertains exclusively to the spouse who, by whatever title, has
acquired it. In support of the facts, appellant cites pages 27 to 37 and 39 to 41 in the bill of
exceptions; and of the law, the doctrinal authority of Manresa, Gutierrez, and Alcubilla.
The citation from pages 39 to 41 of the bill of exceptions, the only pertinent one, is but an
affidavit filed by the defendant in which, under oath, he himself testifies as to the Foral Law in
the Balearic Islands. The adverse party says with regard to this: "This affidavit was never
presented in proof, was never received by the trial judge, and cannot seriously be considered as
an effort to establish the law of a foreign jurisdiction. Sections 300, 301 and 302 of the Code of
Civil Procedure, now in force in these islands, indicate the method by which the law of a foreign
country may be proved. We maintain that the affidavit of a person not versed in the law, which
was never submitted as proof, never received by the trial court, and which has never been
subjected to any cross-examination, is not a means of proving a foreign law on which the
defendant relies." (Brief, pp. 6 and 7.)
Furthermore, on the supposition that the defendant could invoke the Foral Law as the law of his
personal status in the matter of the regimen of his marriage, and that to allege this he be
considered as authorized by article 15 of the Civil Code, we have said before, in dealing with his
law of domicile, that paragraph 2 of this article 15 of the Civil Code would be entirely adverse to
his claim, and if it be advanced that there is a similar Foral Law in the Philippines by virtue of
paragraph 1 of the said article 15, it might be said, though there is not at present any need to
say it, that it is not in force. The two findings attacked are in perfect accord with the law. All the
property of the marriage, says article 1407 of the Civil Code, shall be considered as conjugal
property until it is proven that it belongs exclusively to the husband or to the wife. No proof has
been submitted to this effect.
As seventh assignment of error it is alleged that the court below erred in holding in the judgment
that the plaintiff had brought to the marriage a dowry of 30,000 Spanish dollars. But the
defendant himself adds that the court made no order or decree regarding the alleged dowry. On
the other hand, the plaintiff, in her fourth assignment of errors, claimed that the court erred in
not confirming the report of the commissioners which gave to the said plaintiff the sum of 30,000
Spanish dollars. It is unnecessary to say anything further.
The eighth error consists in that the court below ordered the defendant to pay to the plaintiff
P56,010.17 Philippine currency, whereas the plaintiff had made no demand in her complaint
with respect to this sum; that no arrears of payment are owing for alimony, even though

payments had been stipulated in the contract, unless they are claimed by the person who had
furnished the actual support, and that alimony is due only when it is necessary; so that, as the
plaintiff has had no need of it for ten years, nor has she stated who has furnished it, there is no
reason for awaring her the amount of the arrears for all that time; that as she has allowed ten
years to elapse before claiming it, her action prescribed in 1904, that is to say, after five years.
The plaintiff acknowledges that there is no petition or prayer in her complaint as to this cause of
action, but she considers that in equity such an omission can be supplied.
Paragraph 3 of section 89 (90) of the Code of Civil Procedure determines one of the requisites
of the complaint: "A demand for the relief which the plaintiff claims." The section goes on to say:
"If the recovery of money or damages is demanded, the amount demanded must be stated. If
special relief, such as an order for the special restitution of property, etc., the ground of
demanding such relief must be stated and the special relief prayed for. But there may be added
to the statement of the specific relief demanded a general prayer for such further or other relief
as shall be deemed equitable."
In the complaint of the case at bar the provisions of paragraph 2 of the said section 89 [90] are
complied with by setting forth in its paragraphs 4 and 5 the relation of the cause of action, that
is, the contract of the 4th of April, 1899, by which the defendant obligated himself to send to the
plaintiff in Spain a certain amount of money monthly, for her support, and the failure to comply
with this obligation after the month of August, 1899. Paragraph 6, as a consequence of the
promise established in 4 and 5, says as follows: "That the defendant Gabriel Fuster y Fuster
actually owes the plaintiff the sum of 36,100 Spanish pesetas, that is, 7,220 dollars, which,
reduced at the present rate of exchange, amounts to the sum of P12,959.90, Philippine
currency." (B. of E., p. 2.) In the case of default on the part of the defendant "the court shall
proceed to hear the plaintiff and his witnesses and assess the damages or determine the other
relief to which the plaintiff may be entitled, including the costs of the action, and render final
judgment for the plaintiff to recover such sum or to receive such other relief as the pleadings
and the facts warrant." The pleadings, not the prayer of the complaint.
This court has recently decided that the pleadings, not the prayer, exactly, are the essential part
of a complaint.
It is not a question of alimony for the present, nor for the future, which constitutes the first cause
of action, but of certain sums stipulated in a contract. This contract is a law for the contracting
parties, a law which rises superior to those general laws which regulate the nature of the subject
matter of the contract (in the present case an entirely voluntary one) and which govern judicial
action.
An action arising out of a contract of this nature does not prescribe like all personal ones, but,
by the provisions of article 1964 of the Civil Code, after fifteen years. But even though the
provisions of article 1966 were applicable, by which an action to compel the fulfillment of an
agreement to pay alimony prescribes in five years, yet by section 50 of the Code of Civil
Procedure, "when payment has been made upon any demand founded upon contract . . . an
action may be brought . . . after such payment. . . ." And the parties admit that on the 18th of
August, 1908, the plaintiff secured the payment of 6,365.68 pesetas by virtue of the contract of
April 4, 1899. So that from August, 1908, until March, 1909, the date of the complaint, the said
period of five years had not elapsed.
The ninth assignment of error consists in that the court below erred in empowering the receiver
to proceed to the separation of the property and in appointing commissioners to make the
partition and distribution between the spouses, since the principal question in this action hinges
upon the classification of the property; that it was erroneously classified as conjugal property,
whereas all of it pertained to the husband alone and should be adjudicated to him for the reason
that, as it reiterated in the tenth assignment of error, the conjugal partnership was not subject to
the provisions of the law governing conjugal property, because such provision are totally foreign
to the Foral Law of the Balearic Islands.
The action of the trial court, by the terms of section 184 of the Code of Civil Procedure, was in
accordance with law. The only question before this court is the partition of real property. All that

referred to in the second decision appealed from, dated September 9, 1911, is urban real
estate. Its classification as conjugal property is in accordance with law, as is shown in the
foregoing reasoning, and that no consideration of the Foral Law enters into the question has
also been demonstrated.
II. PLAINTIFF'S APPEAL.
As the trial court rendered judgment ordering the defendant to pay to the plaintiff only
P5,010.17, the petitioner here prays that the judgment be reversed and that in its place this
court order the defendant to pay to the plaintiff her claim of P12,959.90, plus the additional sum
which the alimony amounts to at the rate of P107.70 per month, dating from the 1st of August,
1909, until the date of payment, with legal interest upon the said P12,959.90 from the date of
the filing of the complaint until the date of payment, and, furthermore, legal interest upon each of
the monthly payments due after the filing of the complaint, and which will continue to become
due until the close of this litigation.
The trial court made the following findings: First, that the total amount of the alimony owing to
the plaintiff amounted to 34,200 pesetas; second, that of this sum the plaintiff had collected in
Madrid 6,365.68; third, that the remainder, that is, 27,834.32, was equivalent to $5,566.86
Mexican currency; fourth, that the Mexican peso was worth 90 centavos Philippine currency;
fifth, that therefore the sum of $5,566.86 Mexican currency was equivalent to P5,010 Philippine
currency; and finally, as there was no evidence as to the kind of pesetas agreed upon, it was to
be presumed that it was that current at the time and place where the agreement was made,
which was Mexican pesetas.
In her appeal, the plaintiff contends that these findings are erroneous in that, firstly, the parties
had admitted that the pesetas referred to in the contract of the 4th of April, 1899, were Spanish,
and in view of this admission the court was not empowered to define them as being different
from the kind admitted by the parties; secondly, if he were so empowered, his interpretation
should be governed by the terms of the law.
With regard to the first error, the plaintiff says that the statement is made in her complaint that
the defendant had obligated himself to pay her a "monthly pension for her support of 300
Spanish pesetas, that is, 60 Spanish dollars, which, reduced to Philippine currency, amounts to
P107.70;" that the defendant had admitted this in hi answer to the complaint, and that by his
finding in a sense other than that accepted and not refuted in the answer of the defendant, the
court violated the provisions of section 94 of the Code of Civil Procedure.
The court has not incurred this error, because it does not appear that the defendant in his
answer accepted the fact in the manner alleged in the complaint. The defendant said that he
admitted having made the agreement referred to in paragraph 4 of the complaint, and that
he stood upon its contents. The contents of the document to which he refers is of the following
tenor: "Mr. Fuster binds and obligates himself to pay to his said wife the sum of 300 pesetas,
monthly, payable de su cuenta in the city and capital of Madrid, for her support. . . ." He did not
therefore admit the matter of the Spanish pesetas; that does not appear in the contents of the
document the only thing he admitted in his answer.
As to the second error, the court did not commit it in applying the rule contained in article 1287
of the Civil Code. "The usages or customs of the country shall be taken into consideration in
interpreting ambiguity in contracts. . . ." If in the contract the word " pesetas," not being specific,
was ambiguous, then it was in harmony with this precept to interpret it as being the peseta
then in use or current when and where the agreement was made, Mexican being then the usual
and current money in the Philippines. Furthermore, the phrase de su cuenta clearly means that
it was not "Spanish pesetas" that the contracting parties had in mind, because if the agreement
had been a specific one to pay 300 Spanish pesetas in Madrid, everyone would of course
understand that the expense of following the fluctuations of change and of the differences in
value between the money current in the country, and the Spanish pesetas, would have to be
defrayed by the obligated party; whereas, if nothing more than pesetaswas mentioned, it was
necessary to decide which party should pay for the difference in value so that the
300pesetas stipulated here should be 300 Spanish pesetas paid in Madrid. Against the reasons

of the court below for his decision this court can offer no legal grounds. The rule of interpretation
cited is the one applicable and it supports the reasoning of the decision appealed from.
The appellant also alleges as error that the court did not adjudicate to her the 30,000 Spanish
dollars which the commissioners proposed in their report. First she characterizes this sum of
30,000 dollars as the dowry of the wife delivered to the husband, then, later, as paraphernal
property brought to the marriage.
According to the last instructions of the court to the commissioners, this amount of 30,000
dollars could not enter into the partition, and with reason. If, as was claimed, it was inherited by
the plaintiff from her uncle, it really constitutes paraphernal property under article 1381.
"Paraphernal property is that which the wife brings to the marriage without being included in the
dowry and that she may acquire after the creation of the same without being added thereto." But
it is a provision of article 1384 that "The wife shall have the management of the paraphernal
property unless she has delivered the same to her husband, before a notary, in order that he
may administer said property. In such case the husband is obliged to create a mortgage for the
value of the personal property he may receive, or to secure said property, in the manner
established for the dowry property." Not even was there offered in evidence the public deed of
delivery, nor the equally public mortgage deed that is required by law. So that, therefore, the
necessary proof of the obligation to return paraphernal property as here demanded does not
exist.lawphil.net
The partition of property decreed in the judgment appealed from of the 9th of September, 1911,
should be and is hereby confirmed.
The two judgments appealed from are hereby affirmed, without special pronouncement of costs
in this instance.
Arellano, C.J., Torres, Carson and Trent, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12105

January 30, 1960

TESTATE ESTATE OF C. O. BOHANAN, deceased. PHILIPPINE TRUST CO., executorappellee,

vs.
MAGDALENA C. BOHANAN, EDWARD C. BOHANAN, and MARY LYDIA
BOHANAN, oppositors-appellants.
Jose D. Cortes for appellants.
Ohnick, Velilla and Balonkita for appellee.
LABRADOR, J.:
Appeal against an order of the Court of First Instance of Manila, Hon. Ramon San Jose,
presiding, dismissing the objections filed by Magdalena C. Bohanan, Mary Bohanan and
Edward Bohanan to the project of partition submitted by the executor and approving the said
project.
On April 24, 195 0, the Court of First Instance of Manila, Hon. Rafael Amparo, presiding,
admitted to probate a last will and testament of C. O. Bohanan, executed by him on April 23,
1944 in Manila. In the said order, the court made the following findings:
According to the evidence of the opponents the testator was born in Nebraska and
therefore a citizen of that state, or at least a citizen of California where some of his
properties are located. This contention in untenable. Notwithstanding the long residence
of the decedent in the Philippines, his stay here was merely temporary, and he
continued and remained to be a citizen of the United States and of the state of his
pertinent residence to spend the rest of his days in that state. His permanent residence
or domicile in the United States depended upon his personal intent or desire, and he
selected Nevada as his homicide and therefore at the time of his death, he was a citizen
of that state. Nobody can choose his domicile or permanent residence for him. That is
his exclusive personal right.
Wherefore, the court finds that the testator C. O. Bohanan was at the time of his death a
citizen of the United States and of the State of Nevada and declares that his will and
testament, Exhibit A, is fully in accordance with the laws of the state of Nevada and
admits the same to probate. Accordingly, the Philippine Trust Company, named as the
executor of the will, is hereby appointed to such executor and upon the filing of a bond in
the sum of P10,000.00, let letters testamentary be issued and after taking the prescribed
oath, it may enter upon the execution and performance of its trust. (pp. 26-27, R.O.A.).
It does not appear that the order granting probate was ever questions on appeal. The executor
filed a project of partition dated January 24, 1956, making, in accordance with the provisions of
the will, the following adjudications: (1) one-half of the residuary estate, to the Farmers and
Merchants National Bank of Los Angeles, California, U.S.A. in trust only for the benefit of
testator's grandson Edward George Bohanan, which consists of several mining companies; (2)
the other half of the residuary estate to the testator's brother, F.L. Bohanan, and his sister, Mrs.
M. B. Galbraith, share and share alike. This consist in the same amount of cash and of shares
of mining stock similar to those given to testator's grandson; (3) legacies of P6,000 each to his
(testator) son, Edward Gilbert Bohana, and his daughter, Mary Lydia Bohanan, to be paid in
three yearly installments; (4) legacies to Clara Daen, in the amount of P10,000.00; Katherine
Woodward, P2,000; Beulah Fox, P4,000; and Elizabeth Hastings, P2,000;
It will be seen from the above that out of the total estate (after deducting administration
expenses) of P211,639.33 in cash, the testator gave his grandson P90,819.67 and one-half of

all shares of stock of several mining companies and to his brother and sister the same amount.
To his children he gave a legacy of only P6,000 each, or a total of P12,000.
The wife Magadalena C. Bohanan and her two children question the validity of the testamentary
provisions disposing of the estate in the manner above indicated, claiming that they have been
deprived of the legitimate that the laws of the form concede to them.
The first question refers to the share that the wife of the testator, Magdalena C. Bohanan,
should be entitled to received. The will has not given her any share in the estate left by the
testator. It is argued that it was error for the trial court to have recognized the Reno divorce
secured by the testator from his Filipino wife Magdalena C. Bohanan, and that said divorce
should be declared a nullity in this jurisdiction, citing the case of Querubin vs.Querubin, 87 Phil.,
124, 47 Off. Gaz., (Sup, 12) 315, Cousins Hiz vs. Fluemer, 55 Phil., 852, Ramirez vs. Gmur, 42
Phil., 855 and Gorayeb vs. Hashim, 50 Phil., 22. The court below refused to recognize the claim
of the widow on the ground that the laws of Nevada, of which the deceased was a citizen, allow
him to dispose of all of his properties without requiring him to leave any portion of his estate to
his wife. Section 9905 of Nevada Compiled Laws of 1925 provides:
Every person over the age of eighteen years, of sound mind, may, by last will, dispose of
all his or her estate, real and personal, the same being chargeable with the payment of
the testator's debts.
Besides, the right of the former wife of the testator, Magdalena C. Bohanan, to a share in the
testator's estafa had already been passed upon adversely against her in an order dated June
19, 1955, (pp. 155-159, Vol II Records, Court of First Instance), which had become final, as
Magdalena C. Bohanan does not appear to have appealed therefrom to question its validity. On
December 16, 1953, the said former wife filed a motion to withdraw the sum of P20,000 from the
funds of the estate, chargeable against her share in the conjugal property, (See pp. 294-297,
Vol. I, Record, Court of First Instance), and the court in its said error found that there exists no
community property owned by the decedent and his former wife at the time the decree of
divorce was issued. As already and Magdalena C. Bohanan may no longer question the fact
contained therein, i.e. that there was no community property acquired by the testator and
Magdalena C. Bohanan during their converture.
Moreover, the court below had found that the testator and Magdalena C. Bohanan were married
on January 30, 1909, and that divorce was granted to him on May 20, 1922; that sometime in
1925, Magdalena C. Bohanan married Carl Aaron and this marriage was subsisting at the time
of the death of the testator. Since no right to share in the inheritance in favor of a divorced wife
exists in the State of Nevada and since the court below had already found that there was no
conjugal property between the testator and Magdalena C. Bohanan, the latter can now have no
longer claim to pay portion of the estate left by the testator.
The most important issue is the claim of the testator's children, Edward and Mary Lydia, who
had received legacies in the amount of P6,000 each only, and, therefore, have not been given
their shares in the estate which, in accordance with the laws of the forum, should be two-thirds
of the estate left by the testator. Is the failure old the testator to give his children two-thirds of
the estate left by him at the time of his death, in accordance with the laws of the forum valid?
The old Civil Code, which is applicable to this case because the testator died in 1944, expressly
provides that successional rights to personal property are to be earned by the national law of
the person whose succession is in question. Says the law on this point:
Nevertheless, legal and testamentary successions, in respect to the order of succession
as well as to the extent of the successional rights and the intrinsic validity of their
provisions, shall be regulated by the national law of the person whose succession is in
question, whatever may be the nature of the property and the country in which it is
found. (par. 2, Art. 10, old Civil Code, which is the same as par. 2 Art. 16, new Civil
Code.)
In the proceedings for the probate of the will, it was found out and it was decided that the
testator was a citizen of the State of Nevada because he had selected this as his domicile and

his permanent residence. (See Decision dated April 24, 1950, supra). So the question at issue
is whether the estementary dispositions, especially hose for the children which are short of the
legitime given them by the Civil Code of the Philippines, are valid. It is not disputed that the laws
of Nevada allow a testator to dispose of all his properties by will (Sec. 9905, Complied Nevada
Laws of 1925, supra). It does not appear that at time of the hearing of the project of partition, the
above-quoted provision was introduced in evidence, as it was the executor's duly to do. The law
of Nevada, being a foreign law can only be proved in our courts in the form and manner
provided for by our Rules, which are as follows:
SEC. 41. Proof of public or official record. An official record or an entry therein, when
admissible for any purpose, may be evidenced by an official publication thereof or by a
copy tested by the officer having the legal custody of he record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such
officer has the custody. . . . (Rule 123).
We have, however, consulted the records of the case in the court below and we have found that
during the hearing on October 4, 1954 of the motion of Magdalena C. Bohanan for withdrawal of
P20,000 as her share, the foreign law, especially Section 9905, Compiled Nevada Laws. was
introduced in evidence by appellant's (herein) counsel as Exhibits "2" (See pp. 77-79, VOL. II,
and t.s.n. pp. 24-44, Records, Court of First Instance). Again said laws presented by the
counsel for the executor and admitted by the Court as Exhibit "B" during the hearing of the case
on January 23, 1950 before Judge Rafael Amparo (se Records, Court of First Instance, Vol. 1).
In addition, the other appellants, children of the testator, do not dispute the above-quoted
provision of the laws of the State of Nevada. Under all the above circumstances, we are
constrained to hold that the pertinent law of Nevada, especially Section 9905 of the Compiled
Nevada Laws of 1925, can be taken judicial notice of by us, without proof of such law having
been offered at the hearing of the project of partition.
As in accordance with Article 10 of the old Civil Code, the validity of testamentary dispositions
are to be governed by the national law of the testator, and as it has been decided and it is not
disputed that the national law of the testator is that of the State of Nevada, already indicated
above, which allows a testator to dispose of all his property according to his will, as in the case
at bar, the order of the court approving the project of partition made in accordance with the
testamentary provisions, must be, as it is hereby affirmed, with costs against appellants.
Paras, Bengzon, C.J., Padilla, Bautista Angelo and Endencia, JJ., concur.
Barrera, J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First
Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in
Civil Case No. 37089 therein.1wph1.t
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By
his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A.
Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and
Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three
legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that
after all taxes, obligations, and expenses of administration are paid for, his distributable estate
should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife,
Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria
Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items
have been satisfied, the remainder shall go to his seven surviving children by his first and
second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1wph1.t
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A.
His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein
including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the
three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis,
various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total
of P120,000.00, which it released from time to time according as the lower court approved and
allowed the various motions or petitions filed by the latter three requesting partial advances on
account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and filed
its "Executor's Final Account, Report of Administration and Project of Partition" wherein it
reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of
shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In
the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will

and Testament divided the residuary estate into seven equal portions for the benefit of the
testator's seven legitimate children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective
oppositions to the project of partition on the ground that they were deprived of their legitimes as
illegitimate children and, therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is
evidenced by the registry receipt submitted on April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other pertinent pleadings, the lower court,
on April 30, 1964, issued an order overruling the oppositions and approving the executor's final
account, report and administration and project of partition. Relying upon Art. 16 of the Civil
Code, it applied the national law of the decedent, which in this case is Texas law, which did not
provide for legitimes.
Their respective motions for reconsideration having been denied by the lower court on June 11,
1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply
Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi,
applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine
is usually pertinent where the decedent is a national of one country, and a domicile of another.
In the present case, it is not disputed that the decedent was both a national of Texas and a
domicile thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule
providing that the domiciliary system (law of the domicile) should govern, the same would not
result in a reference back (renvoi) to Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the
application of the law of the place where the properties are situated, renvoi would arise, since
the properties here involved are found in the Philippines. In the absence, however, of proof as to
the conflict of law rule of Texas, it should not be presumed different from ours.3 Appellants'
position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even
mentioned it in their arguments. Rather, they argue that their case falls under the circumstances
mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the
decedent, in intestate or testamentary successions, with regard to four items: (a) the order of
succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of
the will; and (d) the capacity to succeed. They provide that
ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may he the nature of the property and
regardless of the country wherein said property may be found.
ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.
Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that

Prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct.
Precisely, Congressdeleted the phrase, "notwithstanding the provisions of this and the next

preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil
Code, while reproducing without substantial change the second paragraph of Art. 10 of the old
Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph
of Art. 16 a specific provision in itself which must be applied in testate and intestate succession.
As further indication of this legislative intent, Congress added a new provision, under Art. 1039,
which decrees that capacity to succeed is to be governed by the national law of the decedent.
It is therefore evident that whatever public policy or good customs may be involved in our
System of legitimes, Congress has not intended to extend the same to the succession of foreign
nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to
the decedent's national law. Specific provisions must prevail over general ones.
Appellants would also point out that the decedent executed two wills one to govern his Texas
estate and the other his Philippine estate arguing from this that he intended Philippine law to
govern his Philippine estate. Assuming that such was the decedent's intention in executing a
separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50
Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed
in accordance with Philippine law and not with his national law, is illegal and void, for his
national law cannot be ignored in regard to those matters that Article 10 now Article 16 of
the Civil Code states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A.,
and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the
intrinsic validity of the provision of the will and the amount of successional rights are to be
determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of
Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto, with costs against
appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ.,
concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-16749

January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.

ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor
and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi,
Jr., presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949,
approving among things the final accounts of the executor, directing the executor to reimburse
Maria Lucy Christensen the amount of P3,600 paid by her to Helen Christensen Garcia as her
legacy, and declaring Maria Lucy Christensen entitled to the residue of the property to be
enjoyed during her lifetime, and in case of death without issue, one-half of said residue to be
payable to Mrs. Carrie Louise C. Borton, etc., in accordance with the provisions of the will of the
testator Edward E. Christensen. The will was executed in Manila on March 5, 1951 and contains
the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now
Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, and
who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except my
above named daughter, MARIA LUCY CHRISTENSEN DANEY.
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7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she
was baptized Christensen, is not in any way related to me, nor has she been at any time
adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao,
Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00),
Philippine Currency the same to be deposited in trust for the said Maria Helen
Christensen with the Davao Branch of the Philippine National Bank, and paid to her at
the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the
principal thereof as well as any interest which may have accrued thereon, is exhausted..
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12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA
LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No.
665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real, personal and/or mixed, of
whatsoever kind or character, and wheresoever situated, of which I may be possessed
at my death and which may have come to me from any source whatsoever, during her
lifetime: ....
It is in accordance with the above-quoted provisions that the executor in his final account and
project of partition ratified the payment of only P3,600 to Helen Christensen Garcia and
proposed that the residue of the estate be transferred to his daughter, Maria Lucy Christensen.

Opposition to the approval of the project of partition was filed by Helen Christensen Garcia,
insofar as it deprives her (Helen) of her legitime as an acknowledged natural child, she having
been declared by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased
Edward E. Christensen. The legal grounds of opposition are (a) that the distribution should be
governed by the laws of the Philippines, and (b) that said order of distribution is contrary thereto
insofar as it denies to Helen Christensen, one of two acknowledged natural children, one-half of
the estate in full ownership. In amplification of the above grounds it was alleged that the law that
should govern the estate of the deceased Christensen should not be the internal law of
California alone, but the entire law thereof because several foreign elements are involved, that
the forum is the Philippines and even if the case were decided in California, Section 946 of the
California Civil Code, which requires that the domicile of the decedent should apply, should be
applicable. It was also alleged that Maria Helen Christensen having been declared an
acknowledged natural child of the decedent, she is deemed for all purposes legitimate from the
time of her birth.
The court below ruled that as Edward E. Christensen was a citizen of the United States and of
the State of California at the time of his death, the successional rights and intrinsic validity of the
provisions in his will are to be governed by the law of California, in accordance with which a
testator has the right to dispose of his property in the way he desires, because the right of
absolute dominion over his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal.
Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179,
Record on Appeal). Oppositor Maria Helen Christensen, through counsel, filed various motions
for reconsideration, but these were denied. Hence, this appeal.
The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE
SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD
E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN
THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE
THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING
FOR THE APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL
LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE
DECEASED EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE
PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF
DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE
LAWS.
V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS
HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN
FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the United States and of the
State of California at the time of his death. But there is also no question that at the time of his

death he was domiciled in the Philippines, as witness the following facts admitted by the
executor himself in appellee's brief:
In the proceedings for admission of the will to probate, the facts of record show that the
deceased Edward E. Christensen was born on November 29, 1875 in New York City,
N.Y., U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on
July 1, 1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as
the City of San Francisco, in the State of California, U.S.A. He stayed in the Philippines
until 1904.
In December, 1904, Mr. Christensen returned to the United States and stayed there for
the following nine years until 1913, during which time he resided in, and was teaching
school in Sacramento, California.
Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in
1928, he again departed the Philippines for the United States and came back here the
following year, 1929. Some nine years later, in 1938, he again returned to his own
country, and came back to the Philippines the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of
facts. 1wph1.t
Being an American citizen, Mr. Christensen was interned by the Japanese Military
Forces in the Philippines during World War II. Upon liberation, in April 1945, he left for
the United States but returned to the Philippines in December, 1945. Appellees
Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CCDaney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once more to California shortly after the
making of his last will and testament (now in question herein) which he executed at his
lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital in the City
of Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the Philippines, we are
persuaded by the fact that he was born in New York, migrated to California and resided there for
nine years, and since he came to the Philippines in 1913 he returned to California very rarely
and only for short visits (perhaps to relatives), and considering that he appears never to have
owned or acquired a home or properties in that state, which would indicate that he would
ultimately abandon the Philippines and make home in the State of California.
Sec. 16. Residence is a term used with many shades of meaning from mere temporary
presence to the most permanent abode. Generally, however, it is used to denote
something more than mere physical presence. (Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he acquired in California when
he resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the
Philippines, for the latter was a territory of the United States (not a state) until 1946 and the
deceased appears to have considered himself as a citizen of California by the fact that when he
executed his will in 1951 he declared that he was a citizen of that State; so that he appears
never to have intended to abandon his California citizenship by acquiring another. This
conclusion is in accordance with the following principle expounded by Goodrich in his Conflict of
Laws.
The terms "'residence" and "domicile" might well be taken to mean the same thing, a
place of permanent abode. But domicile, as has been shown, has acquired a technical
meaning. Thus one may be domiciled in a place where he has never been. And he may
reside in a place where he has no domicile. The man with two homes, between which he
divides his time, certainly resides in each one, while living in it. But if he went on
business which would require his presence for several weeks or months, he might

properly be said to have sufficient connection with the place to be called a resident. It is
clear, however, that, if he treated his settlement as continuing only for the particular
business in hand, not giving up his former "home," he could not be a domiciled New
Yorker. Acquisition of a domicile of choice requires the exercise of intention as well as
physical presence. "Residence simply requires bodily presence of an inhabitant in a
given place, while domicile requires bodily presence in that place and also an intention
to make it one's domicile." Residence, however, is a term used with many shades of
meaning, from the merest temporary presence to the most permanent abode, and it is
not safe to insist that any one use et the only proper one. (Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined in Article 16 of the
Civil Code of the Philippines, which is as follows:
ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country where said property may be found.
The application of this article in the case at bar requires the determination of the meaning of the
term "national law" is used therein.
There is no single American law governing the validity of testamentary provisions in the United
States, each state of the Union having its own private law applicable to its citizens only and in
force only within the state. The "national law" indicated in Article 16 of the Civil Code above
quoted can not, therefore, possibly mean or apply to any general American law. So it can refer
to no other than the private law of the State of California.
The next question is: What is the law in California governing the disposition of personal
property? The decision of the court below, sustains the contention of the executor-appellee that
under the California Probate Code, a testator may dispose of his property by will in the form and
manner he desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952.
But appellant invokes the provisions of Article 946 of the Civil Code of California, which is as
follows:
If there is no law to the contrary, in the place where personal property is situated, it is
deemed to follow the person of its owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not denied. We have
checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the
case cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly
cited.) It is argued on executor's behalf that as the deceased Christensen was a citizen of the
State of California, the internal law thereof, which is that given in the abovecited case, should
govern the determination of the validity of the testamentary provisions of Christensen's will, such
law being in force in the State of California of which Christensen was a citizen. Appellant, on the
other hand, insists that Article 946 should be applicable, and in accordance therewith and
following the doctrine of therenvoi, the question of the validity of the testamentary provision in
question should be referred back to the law of the decedent's domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws rule of the forum
refers a jural matter to a foreign law for decision, is the reference to the purely internal
rules of law of the foreign system; i.e., to the totality of the foreign law minus its Conflict
of Laws rules?"
On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi,
that is, applied the Conflict of Laws rule of Illinois which referred the matter back to

Michigan law. But once having determined the the Conflict of Laws principle is the rule
looked to, it is difficult to see why the reference back should not have been to Michigan
Conflict of Laws. This would have resulted in the "endless chain of references" which
has so often been criticized be legal writers. The opponents of the renvoi would have
looked merely to the internal law of Illinois, thus rejecting the renvoi or the reference
back. Yet there seems no compelling logical reason why the original reference should be
the internal law rather than to the Conflict of Laws rule. It is true that such a solution
avoids going on a merry-go-round, but those who have accepted the renvoitheory avoid
this inextricabilis circulas by getting off at the second reference and at that point applying
internal law. Perhaps the opponents of the renvoi are a bit more consistent for they look
always to internal law as the rule of reference.
Strangely enough, both the advocates for and the objectors to the renvoi plead that
greater uniformity will result from adoption of their respective views. And still more
strange is the fact that the only way to achieve uniformity in this choice-of-law problem is
if in the dispute the two states whose laws form the legal basis of the litigation disagree
as to whether the renvoi should be accepted. If both reject, or both accept the doctrine,
the result of the litigation will vary with the choice of the forum. In the case stated above,
had the Michigan court rejected the renvoi, judgment would have been against the
woman; if the suit had been brought in the Illinois courts, and they too rejected
the renvoi, judgment would be for the woman. The same result would happen, though
the courts would switch with respect to which would hold liability, if both courts accepted
the renvoi.
The Restatement accepts the renvoi theory in two instances: where the title to land is in
question, and where the validity of a decree of divorce is challenged. In these cases the
Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce
case, is applied by the forum, but any further reference goes only to the internal law.
Thus, a person's title to land, recognized by the situs, will be recognized by every court;
and every divorce, valid by the domicile of the parties, will be valid everywhere.
(Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable
property in Massachusetts, England, and France. The question arises as to how this
property is to be distributed among X's next of kin.
Assume (1) that this question arises in a Massachusetts court. There the rule of the
conflict of laws as to intestate succession to movables calls for an application of the law
of the deceased's last domicile. Since by hypothesis X's last domicile was France, the
natural thing for the Massachusetts court to do would be to turn to French statute of
distributions, or whatever corresponds thereto in French law, and decree a distribution
accordingly. An examination of French law, however, would show that if a French court
were called upon to determine how this property should be distributed, it would refer the
distribution to the national law of the deceased, thus applying the Massachusetts statute
of distributions. So on the surface of things the Massachusetts court has open to it
alternative course of action: (a) either to apply the French law is to intestate succession,
or (b) to resolve itself into a French court and apply the Massachusetts statute of
distributions, on the assumption that this is what a French court would do. If it accepts
the so-called renvoidoctrine, it will follow the latter course, thus applying its own law.
This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of
the forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the
matter back again to the law of the forum. This is renvoi in the narrower sense. The
German term for this judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol.
31, pp. 523-571.)
After a decision has been arrived at that a foreign law is to be resorted to as governing a
particular case, the further question may arise: Are the rules as to the conflict of laws
contained in such foreign law also to be resorted to? This is a question which, while it
has been considered by the courts in but a few instances, has been the subject of
frequent discussion by textwriters and essayists; and the doctrine involved has been

descriptively designated by them as the "Renvoyer" to send back, or the

"Ruchversweisung", or the "Weiterverweisung", since an affirmative answer to the
question postulated and the operation of the adoption of the foreign law in toto would in
many cases result in returning the main controversy to be decided according to the law
of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the
doctrine of renvoiis that the court of the forum, in determining the question before it,
must take into account the whole law of the other jurisdiction, but also its rules as to
conflict of laws, and then apply the law to the actual question which the rules of the other
jurisdiction prescribe. This may be the law of the forum. The doctrine of therenvoi has
generally been repudiated by the American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons for its application in a
country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918,
pp. 529-531. The pertinent parts of the article are quoted herein below:
The recognition of the renvoi theory implies that the rules of the conflict of laws are to be
understood as incorporating not only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well. According to this theory 'the law of a
country' means the whole of its law.
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Von Bar presented his views at the meeting of the Institute of International Law, at
Neuchatel, in 1900, in the form of the following theses:
(1) Every court shall observe the law of its country as regards the application of foreign
laws.
(2) Provided that no express provision to the contrary exists, the court shall respect:
(a) The provisions of a foreign law which disclaims the right to bind its nationals
abroad as regards their personal statute, and desires that said personal statute
shall be determined by the law of the domicile, or even by the law of the place
where the act in question occurred.
(b) The decision of two or more foreign systems of law, provided it be certain that
one of them is necessarily competent, which agree in attributing the
determination of a question to the same system of law.
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If, for example, the English law directs its judge to distribute the personal estate of an
Englishman who has died domiciled in Belgium in accordance with the law of his
domicile, he must first inquire whether the law of Belgium would distribute personal
property upon death in accordance with the law of domicile, and if he finds that the
Belgian law would make the distribution in accordance with the law of nationality that
is the English law he must accept this reference back to his own law.
We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule
applied in In re Kaufman, Supra, its internal law. If the law on succession and the conflict of laws
rules of California are to be enforced jointly, each in its own intended and appropriate sphere,
the principle cited In re Kaufman should apply to citizens living in the State, but Article 946
should apply to such of its citizens as are not domiciled in California but in other jurisdictions.
The rule laid down of resorting to the law of the domicile in the determination of matters with
foreign element involved is in accord with the general principle of American law that the
domiciliary law should govern in most matters or rights which follow the person of the owner.
When a man dies leaving personal property in one or more states, and leaves a will
directing the manner of distribution of the property, the law of the state where he was

domiciled at the time of his death will be looked to in deciding legal questions about the
will, almost as completely as the law of situs is consulted in questions about the devise
of land. It is logical that, since the domiciliary rules control devolution of the personal
estate in case of intestate succession, the same rules should determine the validity of an
attempted testamentary dispostion of the property. Here, also, it is not that the
domiciliary has effect beyond the borders of the domiciliary state. The rules of the
domicile are recognized as controlling by the Conflict of Laws rules at the situs property,
and the reason for the recognition as in the case of intestate succession, is the general
convenience of the doctrine. The New York court has said on the point: 'The general
principle that a dispostiton of a personal property, valid at the domicile of the owner, is
valid anywhere, is one of the universal application. It had its origin in that international
comity which was one of the first fruits of civilization, and it this age, when business
intercourse and the process of accumulating property take but little notice of boundary
lines, the practical wisdom and justice of the rule is more apparent than ever. (Goodrich,
Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as
the national law is the internal law of California. But as above explained the laws of California
have prescribed two sets of laws for its citizens, one for residents therein and another for those
domiciled in other jurisdictions. Reason demands that We should enforce the California internal
law prescribed for its citizens residing therein, and enforce the conflict of laws rules for the
citizens domiciled abroad. If we must enforce the law of California as in comity we are bound to
go, as so declared in Article 16 of our Civil Code, then we must enforce the law of California in
accordance with the express mandate thereof and as above explained, i.e., apply the internal
law for residents therein, and its conflict-of-laws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place
where the property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the
Civil Code of the Philippines and that the law to the contrary in the Philippines is the provision in
said Article 16 that the national law of the deceased should govern. This contention can not be
sustained. As explained in the various authorities cited above the national law mentioned in
Article 16 of our Civil Code is the law on conflict of laws in the California Civil Code, i.e., Article
946, which authorizes the reference or return of the question to the law of the testator's
domicile. The conflict of laws rule in California, Article 946, Civil Code, precisely refers back the
case, when a decedent is not domiciled in California, to the law of his domicile, the Philippines
in the case at bar. The court of the domicile can not and should not refer the case back to
California; such action would leave the issue incapable of determination because the case will
then be like a football, tossed back and forth between the two states, between the country of
which the decedent was a citizen and the country of his domicile. The Philippine court must
apply its own law as directed in the conflict of laws rule of the state of the decedent, if the
question has to be decided, especially as the application of the internal law of California
provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code of the
Philippines, makes natural children legally acknowledged forced heirs of the parent recognizing
them.
The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105;
Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs
vs. Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly apply
in the case at bar, for two important reasons, i.e., the subject in each case does not appear to
be a citizen of a state in the United States but with domicile in the Philippines, and it does not
appear in each case that there exists in the state of which the subject is a citizen, a law similar
to or identical with Art. 946 of the California Civil Code.
We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the
Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the
appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the
Civil Code of California, not by the internal law of California..
WHEREFORE, the decision appealed from is hereby reversed and the case returned to the
lower court with instructions that the partition be made as the Philippine law on succession
provides. Judgment reversed, with costs against appellees.

Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala and Makalintal,
JJ., concur.
Bengzon, C.J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 142820

June 20, 2003

WOLFGANG O. ROEHR, petitioner,

vs.
MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA,
Presiding Judge of Makati RTC, Branch 149, respondents.
QUISUMBING, J.:
At the core of the present controversy are issues of (a) grave abuse of discretion allegedly
committed by public respondent and (b) lack of jurisdiction of the regional trial court, in matters
that spring from a divorce decree obtained abroad by petitioner.
In this special civil action for certiorari, petitioner assails (a) the order1 dated September 30,
1999 of public respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati
Regional Trial Court,2 Branch 149, in Civil Case No. 96-1389 for declaration of nullity of
marriage, and (b) the order3 dated March 31, 2000 denying his motion for reconsideration. The
assailed orders partially set aside the trial courts order dismissing Civil Case No. 96-1389, for
the purpose of resolving issues relating to the property settlement of the spouses and the
custody of their children.
Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private
respondent Carmen Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany. Their
marriage was subsequently ratified on February 14, 1981 in Tayasan, Negros Oriental.4 Out of
their union were born Carolynne and Alexandra Kristine on November 18, 1981 and October 25,
1987, respectively.
On August 28, 1996, private respondent filed a petition5 for declaration of nullity of marriage
before the Regional Trial Court (RTC) of Makati City. On February 6, 1997, petitioner filed a
motion to dismiss,6 but it was denied by the trial court in its order7 dated May 28, 1997.
On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an
order8 dated August 13, 1997. On September 5, 1997, petitioner filed a petition for certiorari with
the Court of Appeals. On November 27, 1998, the appellate court denied the petition and
remanded the case to the RTC.
Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance of HamburgBlankenese, promulgated on December 16, 1997.
The decree provides in part:
[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through
Judge van Buiren of the Court of First Instance on the basis of the oral proceedings held
on 4 Nov. 1997:
The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar
of Hamburg-Altona is hereby dissolved.
The parental custody for the children
Carolynne Roehr, born 18 November 1981
Alexandra Kristine Roehr, born on 25 October 1987

is granted to the father.

The litigation expenses shall be assumed by the Parties.9
In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999 on the
ground that the trial court had no jurisdiction over the subject matter of the action or suit as a
decree of divorce had already been promulgated dissolving the marriage of petitioner and
private respondent.
On July 14, 1999, Judge Guevara-Salonga issued an order granting petitioners motion to
dismiss. Private respondent filed a Motion for Partial Reconsideration, with a prayer that the
case proceed for the purpose of determining the issues of custody of children and the
distribution of the properties between petitioner and private respondent.
On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was filed by the
petitioner on the ground that there is nothing to be done anymore in the instant case as the
marital tie between petitioner Wolfgang Roehr and respondent Ma. Carmen D. Rodriguez had
already been severed by the decree of divorce promulgated by the Court of First Instance of
Hamburg, Germany on December 16, 1997 and in view of the fact that said decree of divorce
had already been recognized by the RTC in its order of July 14, 1999, through the
implementation of the mandate of Article 26 of the Family Code,10 endowing the petitioner with
the capacity to remarry under the Philippine law.
On September 30, 1999, respondent judge issued the assailed order partially setting aside her
order dated July 14, 1999 for the purpose of tackling the issues of property relations of the
spouses as well as support and custody of their children. The pertinent portion of said order
provides:
Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by
petitioner thru counsel which was opposed by respondent and considering that the
second paragraph of Article 26 of the Family Code was included as an amendment thru
Executive Order 227, to avoid the absurd situation of a Filipino as being still married to
his or her alien spouse though the latter is no longer married to the Filipino spouse
because he/she had obtained a divorce abroad which is recognized by his/her national
law, and considering further the effects of the termination of the marriage under Article
43 in relation to Article 50 and 52 of the same Code, which include the dissolution of the
property relations of the spouses, and the support and custody of their children, the
Order dismissing this case is partially set aside with respect to these matters which may
be ventilated in this Court.
SO ORDERED.11 (Emphasis supplied.)
Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied by
respondent judge in an order dated March 31, 2000.12
Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion on the part
of respondent judge. He cites as grounds for his petition the following:
1. Partially setting aside the order dated July 14, 1999 dismissing the instant case is not
allowed by 1997 Rules of Civil Procedure.13
2. Respondent Maria Carmen Rodriguez by her motion for Partial Reconsideration had
recognized and admitted the Divorce Decision obtained by her ex-husband in Hamburg,
Germany.14
3. There is nothing left to be tackled by the Honorable Court as there are no conjugal
assets alleged in the Petition for Annulment of Marriage and in the Divorce petition, and
the custody of the children had already been awarded to Petitioner Wolfgang Roehr.15
Pertinent in this case before us are the following issues:

1. Whether or not respondent judge gravely abused her discretion in issuing her order
dated September 30, 1999, which partially modified her order dated July 14, 1999; and
2. Whether or not respondent judge gravely abused her discretion when she assumed
and retained jurisdiction over the present case despite the fact that petitioner has
already obtained a divorce decree from a German court.
On the first issue, petitioner asserts that the assailed order of respondent judge is completely
inconsistent with her previous order and is contrary to Section 3, Rule 16, Rules of Civil
Procedure, which provides:
Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or
claim, deny the motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground
relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor.
(Emphasis supplied.)
Petitioner avers that a courts action on a motion is limited to dismissing the action or claim,
denying the motion, or ordering the amendment of the pleading.
Private respondent, on her part, argues that the RTC can validly reconsider its order dated July
14, 1999 because it had not yet attained finality, given the timely filing of respondents motion
for reconsideration.
Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of Civil
Procedure, which provides:
Sec. 3. Action upon motion for new trial or reconsideration.The trial court may set
aside the judgment or final order and grant a new trial, upon such terms as may be just,
or may deny the motion. If the court finds that excessive damages have been
awarded or that the judgment or final order is contrary to the evidence or law, it may
amend such judgment or final order accordingly.
Sec. 7. Partial new trial or reconsideration.If the grounds for a motion under this Rule
appear to the court to affect the issues as to only a part, or less than all of the matters in
controversy, or only one, or less than all, of the parties to it, the court may order a new
trial or grant reconsideration as to such issues if severable without interfering with the
judgment or final order upon the rest. (Emphasis supplied.)
It is clear from the foregoing rules that a judge can order a partial reconsideration of a case that
has not yet attained finality. Considering that private respondent filed a motion for
reconsideration within the reglementary period, the trial court's decision of July 14, 1999 can still
be modified. Moreover, in Saado v. Court of Appeals,16we held that the court could modify or
alter a judgment even after the same has become executory whenever circumstances transpire
rendering its decision unjust and inequitable, as where certain facts and circumstances justifying
or requiring such modification or alteration transpired after the judgment has become final and
executory17 and when it becomes imperative in the higher interest of justice or when
supervening events warrant it.18 In our view, there are even more compelling reasons to do so
when, as in this case, judgment has not yet attained finality.
Anent the second issue, petitioner claims that respondent judge committed grave abuse of
discretion when she partially set aside her order dated July 14, 1999, despite the fact that
petitioner has already obtained a divorce decree from the Court of First Instance of Hamburg,
Germany.
In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we
consistently held that a divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the national law of the foreigner.

Relevant to the present case is Pilapil v. Ibay-Somera,22 where this Court specifically
recognized the validity of a divorce obtained by a German citizen in his country, the Federal
Republic of Germany. We held in Pilapil that a foreign divorce and its legal effects may be
recognized in the Philippines insofar as respondent is concerned in view of the nationality
principle in our civil law on the status of persons.
In this case, the divorce decree issued by the German court dated December 16, 1997 has not
been challenged by either of the parties. In fact, save for the issue of parental custody, even the
trial court recognized said decree to be valid and binding, thereby endowing private respondent
the capacity to remarry. Thus, the present controversy mainly relates to the award of the
custody of their two children, Carolynne and Alexandra Kristine, to petitioner.
As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in
our jurisdiction, but the legal effects thereof, e.g. on custody, care and support of the children,
must still be determined by our courts.23 Before our courts can give the effect of res judicata to a
foreign judgment, such as the award of custody to petitioner by the German court, it must be
shown that the parties opposed to the judgment had been given ample opportunity to do so on
grounds allowed under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48,
1997 Rules of Civil Procedure), to wit:
SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign
country, having jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title
to the thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a
right as between the parties and their successors in interest by a subsequent title; but
the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.
It is essential that there should be an opportunity to challenge the foreign judgment, in order for
the court in this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of
Court clearly provide that with respect to actions in personam, as distinguished from actions in
rem, a foreign judgment merely constitutes prima facie evidence of the justness of the claim of a
party and, as such, is subject to proof to the contrary.24
In the present case, it cannot be said that private respondent was given the opportunity to
challenge the judgment of the German court so that there is basis for declaring that judgment
as res judicata with regard to the rights of petitioner to have parental custody of their two
children. The proceedings in the German court were summary. As to what was the extent of
private respondents participation in the proceedings in the German court, the records remain
unclear. The divorce decree itself states that neither has she commented on the
proceedings25 nor has she given her opinion to the Social Services Office.26 Unlike petitioner
who was represented by two lawyers, private respondent had no counsel to assist her in said
proceedings.27 More importantly, the divorce judgment was issued to petitioner by virtue of the
German Civil Code provision to the effect that when a couple lived separately for three years,
the marriage is deemed irrefutably dissolved. The decree did not touch on the issue as to who
the offending spouse was. Absent any finding that private respondent is unfit to obtain custody
of the children, the trial court was correct in setting the issue for hearing to determine the issue
of parental custody, care, support and education mindful of the best interests of the children.
This is in consonance with the provision in the Child and Youth Welfare Code that the childs
welfare is always the paramount consideration in all questions concerning his care and
custody. 28
On the matter of property relations, petitioner asserts that public respondent exceeded the
bounds of her jurisdiction when she claimed cognizance of the issue concerning property
relations between petitioner and private respondent. Private respondent herself has admitted in
Par. 14 of her petition for declaration of nullity of marriage dated August 26, 1996 filed with the
RTC of Makati, subject of this case, that: "[p]etitioner and respondent have not acquired any
conjugal or community property nor have they incurred any debts during their

marriage."29 Herein petitioner did not contest this averment. Basic is the rule that a court shall
grant relief warranted by the allegations and the proof.30 Given the factual admission by the
parties in their pleadings that there is no property to be accounted for, respondent judge has no
basis to assert jurisdiction in this case to resolve a matter no longer deemed in controversy.
In sum, we find that respondent judge may proceed to determine the issue regarding the
custody of the two children born of the union between petitioner and private respondent. Private
respondent erred, however, in claiming cognizance to settle the matter of property relations of
the parties, which is not at issue.
WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued on
September 30, 1999 and March 31, 2000 are AFFIRMED with MODIFICATION. We hereby
declare that the trial court has jurisdiction over the issue between the parties as to who has
parental custody, including the care, support and education of the children, namely Carolynne
and Alexandra Kristine Roehr. Let the records of this case be remanded promptly to the trial
court for continuation of appropriate proceedings. No pronouncement as to costs.
SO ORDERED.
Bellosillo, (Chairman), and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on official leave.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 17958

February 27, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
LOL-LO and SARAW, defendants-appellants.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and
Captain Kidd and Bartholomew Roberts gripped the imagination, when grostesque brutes like
Blackbeard flourished, seem far away in the pages of history and romance. Nevertheless, the
record before us tells a tale of twentieth century piracy in the south seas, but stripped of all
touches of chivalry or of generosity, so as to present a horrible case of rapine and near murder.
On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another Dutch
possession. In one of the boats was one individual, a Dutch subject, and in the other boat
eleven men, women, and children, likewise subjects of Holland. After a number of days of
navigation, at about 7 o'clock in the evening, the second boat arrived between the Islands of
Buang and Bukid in the Dutch East Indies. There the boat was surrounded by six vintas manned
by twenty-four Moros all armed. The Moros first asked for food, but once on the Dutch boat, too
for themselves all of the cargo, attacked some of the men, and brutally violated two of the
women by methods too horrible to the described. All of the persons on the Dutch boat, with the
exception of the two young women, were again placed on it and holes were made in it, the idea
that it would submerge, although as a matter of fact, these people, after eleven days of hardship
and privation, were succored violating them, the Moros finally arrived at Maruro, a Dutch
possession. Two of the Moro marauder were Lol-lo, who also raped one of the women, and
Saraw. At Maruro the two women were able to escape.
Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine
Islands. There they were arrested and were charged in the Court of First Instance of Sulu with
the crime of piracy. A demurrer was interposed by counsel de officio for the Moros, based on
the grounds that the offense charged was not within the jurisdiction of the Court of First
Instance, nor of any court of the Philippine Islands, and that the facts did not constitute a public
offense, under the laws in force in the Philippine Islands. After the demurrer was overruled by
the trial judge, trial was had, and a judgment was rendered finding the two defendants guilty and
sentencing each of them to life imprisonment (cadena perpetua), to return together with
Kinawalang and Maulanis, defendants in another case, to the offended parties, the thirty-nine
sacks of copras which had been robbed, or to indemnify them in the amount of 924 rupees, and
to pay a one-half part of the costs.
A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a
process of elimination, however, certain questions can be quickly disposed of.
The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy
is robbery or forcible depredation on the high seas, without lawful authority and done animo
furandi, and in the spirit and intention of universal hostility.
It cannot be contended with any degree of force as was done in the lover court and as is again
done in this court, that the Court of First Instance was without jurisdiction of the case. Pirates
are in law hostes humani generis. Piracy is a crime not against any particular state but against
all mankind. It may be punished in the competent tribunal of any country where the offender
may be found or into which he may be carried. The jurisdiction of piracy unlike all other crimes

has no territorial limits. As it is against all so may it be punished by all. Nor does it matter that
the crime was committed within the jurisdictional 3-mile limit of a foreign state, "for those limits,
though neutral to war, are not neutral to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for decision for the first time
is whether or not the provisions of the Penal Code dealing with the crime of piracy are still in
force. Article 153 to 156 of the Penal Code reads as follows:
ART. 153. The crime of piracy committed against Spaniards, or the subjects of another
nation not at war with Spain, shall be punished with a penalty ranging from cadena
temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at war with
Spain, it shall be punished with the penalty of presidio mayor.
ART. 154. Those who commit the crimes referred to in the first paragraph of the next
preceding article shall suffer the penalty of cadena perpetua or death, and those who
commit the crimes referred to in the second paragraph of the same article, from cadena
temporal to cadena perpetua:
1. Whenever they have seized some vessel by boarding or firing upon the same.
2. Whenever the crime is accompanied by murder, homicide, or by any of the
physical injuries specified in articles four hundred and fourteen and four hundred
and fifteen and in paragraphs one and two of article four hundred and sixteen.
3. Whenever it is accompanied by any of the offenses against chastity specified
in Chapter II, Title IX, of this book.
4. Whenever the pirates have abandoned any persons without means of saving
themselves.
5. In every case, the captain or skipper of the pirates.
ART. 155. With respect to the provisions of this title, as well as all others of this code,
when Spain is mentioned it shall be understood as including any part of the national
territory.
ART. 156. For the purpose of applying the provisions of this code, every person, who,
according to the Constitution of the Monarchy, has the status of a Spaniard shall be
considered as such.
The general rules of public law recognized and acted on by the United States relating to the
effect of a transfer of territory from another State to the United States are well-known. The
political law of the former sovereignty is necessarily changed. The municipal law in so far as it is
consistent with the Constitution, the laws of the United States, or the characteristics and
institutions of the government, remains in force. As a corollary to the main rules, laws subsisting
at the time of transfer, designed to secure good order and peace in the community, which are
strictly of a municipal character, continue until by direct action of the new government they are
altered or repealed. (Chicago, Rock Islands, etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)
These principles of the public law were given specific application to the Philippines by the
Instructions of President McKinley of May 19, 1898, to General Wesley Meritt, the Commanding
General of the Army of Occupation in the Philippines, when he said:
Though the powers of the military occupant are absolute and supreme, and immediately
operate upon the political condition of the inhabitants, the municipal laws of the
conquered territory, such as affect private rights of person and property, and provide for
the punishment of crime, are considered as continuing in force, so far as they are
compatible with the new order of things, until they are suspended or superseded by the
occupying belligerent; and practice they are not usually abrogated, but are allowed to

remain in force, and to be administered by the ordinary tribunals, substantially as they

were before the occupations. This enlightened practice is so far as possible, to be
adhered to on the present occasion. (Official Gazette, Preliminary Number, Jan. 1, 1903,
p. 1. See also General Merritt Proclamation of August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were
meant to include the Philippine Islands. Article 156 of the Penal Code in relation to article 1 of
the Constitution of the Spanish Monarchy, would also make the provisions of the Code
applicable not only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the
civil law, and he has never been disputed. The specific provisions of the Penal Code are similar
in tenor to statutory provisions elsewhere and to the concepts of the public law. This must
necessarily be so, considering that the Penal Code finds its inspiration in this respect in
the Novelas, the Partidas, and the Novisima Recopilacion.
The Constitution of the United States declares that the Congress shall have the power to define
and punish piracies and felonies committed on the high seas, and offenses against the law of
nations. (U.S. Const. Art. I, sec. 8, cl. 10.) The Congress, in putting on the statute books the
necessary ancillary legislation, provided that whoever, on the high seas, commits the crime of
piracy as defined by the law of nations, and is afterwards brought into or found in the United
States, shall be imprisoned for life. (U.S. Crim. Code, sec. 290; penalty formerly death: U.S.
Rev. Stat., sec. 5368.) The framers of the Constitution and the members of Congress were
content to let a definition of piracy rest on its universal conception under the law of nations.
It is evident that the provisions of the Penal Code now in force in the Philippines relating to
piracy are not inconsistent with the corresponding provisions in force in the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical
construction of articles of the Penal Code, like the articles dealing with the crime of piracy,
would be that wherever "Spain" is mentioned, it should be substituted by the words "United
States" and wherever "Spaniards" are mentioned, the word should be substituted by the
expression "citizens of the United States and citizens of the Philippine Islands." somewhat
similar reasoning led this court in the case of United States vs. Smith ([1919], 39 Phil., 533) to
give to the word "authority" as found in the Penal Code a limited meaning, which would no
longer comprehend all religious, military, and civil officers, but only public officers in the
Government of the Philippine Islands.
Under the construction above indicated, article 153 of the Penal Code would read as follows:
The crime of piracy committed against citizens of the United States and citizens of the
Philippine Islands, or the subjects of another nation not at war with the United States,
shall be punished with a penalty ranging from cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at war with
the United States, it shall be punished with the penalty of presidio mayor.
We hold those provisions of the Penal code dealing with the crime of piracy, notably articles 153
and 154, to be still in force in the Philippines.
The crime falls under the first paragraph of article 153 of the Penal Code in relation to article
154. There are present at least two of the circumstances named in the last cited article as
authorizing either cadena perpetua or death. The crime of piracy was accompanied by (1) an
offense against chastity and (2) the abandonment of persons without apparent means of saving
themselves. It is, therefore, only necessary for us to determine as to whether the penalty
of cadena perpetua or death should be imposed. In this connection, the trial court, finding
present the one aggravating circumstance of nocturnity, and compensating the same by the one
mitigating circumstance of lack of instruction provided by article 11, as amended, of the Penal
Code, sentenced the accused to life imprisonment. At least three aggravating circumstances,
that the wrong done in the commission of the crime was deliberately augmented by causing
other wrongs not necessary for its commission, that advantage was taken of superior strength,

and that means were employed which added ignominy to the natural effects of the act, must
also be taken into consideration in fixing the penalty. Considering, therefore, the number and
importance of the qualifying and aggravating circumstances here present, which cannot be
offset by the sole mitigating circumstance of lack of instruction, and the horrible nature of the
crime committed, it becomes our duty to impose capital punishment.
The vote upon the sentence is unanimous with regard to the propriety of the imposition of the
death penalty upon the defendant and appellant Lo-lo (the accused who raped on of the
women), but is not unanimous with regard to the court, Mr. Justice Romualdez, registers his
nonconformity. In accordance with provisions of Act No. 2726, it results, therefore, that the
judgment of the trial court as to the defendant and appellant Saraw is affirmed, and is reversed
as to the defendant and appellant Lol-lo, who is found guilty of the crime of piracy and is
sentenced therefor to be hung until dead, at such time and place as shall be fixed by the judge
of first instance of the Twenty-sixth Judicial District. The two appellants together with
Kinawalang and Maulanis, defendants in another case, shall indemnify jointly and severally the
offended parties in the equivalent of 924 rupees, and shall pay a one-half part of the costs of
both instances. So ordered.
Araullo, C.J., Johnson, Avancea, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 85140 May 17, 1990

TOMAS EUGENIO, SR., petitioner,
vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan
de Oro City, DEPUTY SHERIFF JOHNSON TAN, JR., Deputy Sheriff of Branch 20,
Regional Trial Court, Cagayan de Oro City, and the Private Respondents, the petitioners
in Sp. Proc. No. 88-55, for "Habeas Corpus", namely: CRISANTA VARGAS-SANCHEZ,
SANTOS and NARCISA VARGAS-BENTULAN, respondents.
G.R. No. 86470 May 17, 1990.
TOMAS EUGENIO, petitioner-appellant,
vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan
de Oro City, CRISANTA VARGAS-SANCHEZ, FELIX VARGAS, ERNESTO VARGAS,
NATIVIDAD VARGAS-CAGAPE, NENITA VARGAS-CADENAS, LUDIVINA VARGAS-DE
LOS SANTOS and NARCISA VARGAS-BENTULAN, respondents-appellees.
Maximo G. Rodriguez for petitioner.
Erasmo B. Damasing and Oliver Asis Improso for respondents.

PADILLA, J.:
On 5 October 1988, petitioner came to this Court with a petition for certiorari and prohibition with
application for restraining order and/or injunction (docketed as G.R. No. 85140) seeking to
enjoin respondent Judge from proceeding with the Habeas Corpus case (Sp. Proc. No. 88- 55,
RTC, Branch 20, Cagayan de Oro City), * the respondent Sheriff from enforcing and
implementing the writ and orders of the respondent Judge dated 28, 29, and 30 September
1988, and to declare said writ and orders as null and void. In a resolution issued on 11 October
1988, this Court required comment from the respondents on the petition but denied the
application for a temporary restraining order.
The records disclose the following:
Unaware of the death on 28 August 1988 of (Vitaliana Vargas Vitaliana for brevity), her full
blood brothers and sisters, herein private respondents (Vargases', for brevity) filed on 27
September 1988, a petition for habeas corpus before the RTC of Misamis Oriental (Branch 20,
Cagayan de Oro City) alleging that Vitaliana was forcibly taken from her residence sometime in
1987 and confined by herein petitioner in his palacial residence in Jasaan, Misamis Oriental.
Despite her desire to escape, Vitaliana was allegedly deprived of her liberty without any legal
authority. At the time the petition was filed, it was alleged that Vitaliana was 25 years of age,
single, and living with petitioner Tomas Eugenio.
The respondent court in an order dated 28 September 1988 issued the writ of habeas corpus,
but the writ was returned unsatisfied. Petitioner refused to surrender the body of Vitaliana (who
had died on 28 August 1988) to the respondent sheriff, reasoning that a corpse cannot be the
subject of habeas corpus proceedings; besides, according to petitioner, he had already obtained
a burial permit from the Undersecretary of the Department of Health, authorizing the burial at

the palace quadrangle of the Philippine Benevolent Christian Missionary, Inc. (PBCM), a
registered religious sect, of which he (petitioner) is the Supreme President and Founder.
Petitioner also alleged that Vitaliana died of heart failure due to toxemia of pregnancy in his
residence on 28 August 1988. As her common law husband, petitioner claimed legal custody of
her body. These reasons were incorporated in an explanation filed before the respondent court.
Two (2) orders dated 29 and 30 September 1988 were then issued by respondent court,
directing delivery of the deceased's body to a funeral parlor in Cagayan de Oro City and its
autopsy.
Petitioner (as respondent in the habeas corpus proceedings) filed an urgent motion to dismiss
the petition therein, claiming lack of jurisdiction of the court over the nature of the action under
sec. 1(b) of Rule 16 in relation to sec. 2, Rule 72 of the Rules of Court. 1 A special proceeding
for habeas corpus, petitioner argued, is not applicable to a dead person but extends only to all
cases of illegal confinement or detention of a live person.
Before resolving the motion to dismiss, private respondents (as petitioners below) were granted
leave to amend their petition. 2 Claiming to have knowledge of the death of Vitaliana only on 28
September 1988 (or after the filing of thehabeas corpus petition), private respondents
(Vargases') alleged that petitioner Tomas Eugenia who is not in any way related to Vitaliana
was wrongfully interfering with their (Vargases') duty to bury her. Invoking Arts. 305 and 308 of
the Civil Code, 3the Vargases contended that, as the next of kin in the Philippines, they are the
legal custodians of the dead body of their sister Vitaliana. An exchange of pleadings followed.
The motion to dismiss was finally submitted for resolution on 21 October 1988.
In the absence of a restraining order from this Court, proceedings continued before the
respondent court; the body was placed in a coffin, transferred to the Greenhills Memorial Homes
in Cagayan de Oro City, viewed by the presiding Judge of respondent court, and examined by a
duly authorized government pathologist. 4
Denying the motion to dismiss filed by petitioner, the court a quo held in an order, 5 dated 17
November 1988, that:
It should be noted from the original petition, to the first amended petition, up to
the second amended petition that the ultimate facts show that if the person of
Vitaliana Vargas turns out to be dead then this Court is being prayed to declare
the petitioners as the persons entitled to the custody, interment and/or burial of
the body of said deceased. The Court, considering the circumstance that
Vitaliana Vargas was already dead on August 28, 1988 but only revealed to the
Court on September 29, 1988 by respondent's counsel, did not lose jurisdiction
over the nature and subject matter of this case because it may entertain this case
thru the allegations in the body of the petition on the determination as to who is
entitled to the custody of the dead body of the late Vitaliana Vargas as well as
the burial or interment thereof, for the reason that under the provisions of Sec. 19
of Batas Pambansa Blg. 129, which reads as follows:
Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise
exclusive original jurisdiction:
(1) In all civil actions in which the subject of the litigation is
incapable of pecuniary estimation;
xxx xxx xxx
(5) In all actions involving the contract of marriage and marital
relations;
(6) In all cases not within the exclusive jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-judicial
functions:

xxx xxx xxx

it so provides that the Regional Trial Court has exclusive original jurisdiction to try
this case. The authority to try the issue of custody and burial of a dead person is
within the lawful jurisdiction of this Court because of Batas Pambansa Blg. 129
and because of the allegations of the pleadings in this case, which are
enumerated in Sec. 19, pars. 1, 5 and 6 of Batas Pambansa Blg. 129.
Thereafter, the court a quo proceeded as in or civil cases and, in due course, rendered a
decision on 17 January 1989, 6 resolving the main issue of whether or not said court acquired
jurisdiction over the case by treating it as an action for custody of a dead body, without the
petitioners having to file a separate civil action for such relief, and without the Court first
dismissing the original petition for habeas corpus.
Citing Sections 19 and 20 of Batas Pambansa Blg. 129 (the Judiciary Reorganization Act of
1981), 7 Sections 5 and 6 of Rule 135 of the Rules of Court 8 Articles 305 and 308 in relation to
Article 294 of the Civil Code and Section 1104 of the Revised Administrative Code, 9 the
decision stated:
. . . . By a mere reading of the petition the court observed that the allegations in
the original petition as well as in the two amended petitions show that Vitaliana
Vargas has been restrained of her liberty and if she were dead then relief was
prayed for the custody and burial of said dead person. The amendments to the
petition were but elaborations but the ultimate facts remained the same, hence,
this court strongly finds that this court has ample jurisdiction to entertain and sit
on this case as an action for custody and burial of the dead body because the
body of the petition controls and is binding and since this case was raffled to this
court to the exclusion of all other courts, it is the primary duty of this court to
decide and dispose of this case. . . . . 10
Satisfied with its jurisdiction, the respondent court then proceeded to the matter of rightful
custody over the dead body, (for purposes of burial thereof). The order of preference to give
support under Art. 294 was used as the basis of the award. Since there was no surviving
spouse, ascendants or descendants, the brothers and sisters were preferred over petitioner who
was merely a common law spouse, the latter being himself legally married to another woman. 11
On 23 January 1989, a new petition for review with application for a temporary restraining order
and/or preliminary injunction was filed with this Court (G.R. No. 86470). Raised therein were
pure questions of law, basically Identical to those raised in the earlier petition (G.R. No. 85140);
hence, the consolidation of both cases.12 On 7 February 1989, petitioner filed an urgent motion
for the issuance of an injunction to maintain status quo pending appeal, which this Court denied
in a resolution dated 23 February 1989 stating that "Tomas Eugenio has so far failed to
sufficiently establish a clear legal right to the custody of the dead body of Vitaliana Vargas,
which now needs a decent burial." The petitions were then submitted for decision without further
pleadings.
Between the two (2) consolidated petitions, the following issues are raised:
1. propriety of a habeas corpus proceeding under Rule 102 of the Rules of Court
to recover custody of the dead body of a 25 year old female, single, whose
nearest surviving claimants are full blood brothers and sisters and a common law
husband.
2. jurisdiction of the RTC over such proceedings and/or its authority to treat the
action as one for custody/possession/authority to bury the deceased/recovery of
the dead.
3. interpretation of par. 1, Art. 294 of the Civil Code (Art. 199 of
the new Family Code) which states:

Art. 294. The claim for support, when proper and two or more
persons are obliged to give it, shall be made in the following order:
(1) From the spouse;
xxx xxx xxx
Section 19, Batas Pambansa Blg. 129 provides for the exclusive original jurisdiction of the
Regional Trial Courts over civil cases. Under Sec. 2, Rule 102 of the Rules of Court, the writ
of habeas corpus may be granted by a Court of First Instance (now Regional Trial Court). It is
an elementary rule of procedure that what controls is not the caption of the complaint or petition;
but the allegations therein determine the nature of the action, and even without the prayer for a
specific remedy, proper relief may nevertheless be granted by the court if the facts alleged in
the complaint and the evidence introduced so warrant. 13
When the petition for habeas corpus was filed before the court a quo, it was not certain whether
Vitaliana was dead or alive. While habeas corpus is a writ of right, it will not issue as a matter of
course or as a mere perfimetory operation on the filing of the petition. Judicial discretion is
exercised in its issuance, and such facts must be made to appear to the judge to whom the
petition is presented as, in his judgment, prima facie entitle the petitioner to the writ. 14 While the
court may refuse to grant the writ if the petition is insufficient in form and substance, the writ
should issue if the petition complies with the legal requirements and its averments make a prima
facie case for relief. However, a judge who is asked to issue a writ of habeas corpus need not
be very critical in looking into the petition for very clear grounds for the exercise of this
jurisdiction. The latter's power to make full inquiry into the cause of commitment or detention will
enable him to correct any errors or defects in the petition. 15
In Macazo and Nunez vs. Nunez, 16 the Court frowned upon the dismissal of a habeas
corpus petition filed by a brother to obtain custody of a minor sister, stating:
All these circumstances notwithstanding, we believe that the case should not
have been dismissed. The court below should not have overlooked that by
dismissing the petition, it was virtually sanctioning the continuance of an
adulterous and scandalous relation between the minor and her married
employer, respondent Benildo Nunez against all principles of law and morality. It
is no excuse that the minor has expressed preference for remaining with said
respondent, because the minor may not chose to continue an illicit relation that
morals and law repudiate.
xxx xxx xxx
The minor's welfare being the paramount consideration, the court below should
not allow the technicality, that Teofilo Macazo was not originally made a party, to
stand in the way of its giving the child full protection. Even in a habeas
corpus proceeding the court had power to award temporary custody to the
petitioner herein, or some other suitable person, after summoning and hearing all
parties concerned. What matters is that the immoral situation disclosed by the
records be not allowed to continue. 17
After the fact of Vitaliana's death was made known to the petitioners in the habeas
corpus proceedings,amendment of the petition for habeas corpus, not dismissal, was proper to
avoid multiplicity of suits. Amendments to pleadings are generally favored and should be
liberally allowed in furtherance of justice in order that every case may so far as possible be
determined on its real facts and in order to expedite the trial of cases or prevent circuity of
action and unnecessary expense, unless there are circumstances such as inexcusable delay or
the taking of the adverse party by surprise or the like, which justify a refusal of permission to
amend. 18 As correctly alleged by respondents, the writ of habeas corpus as a remedy became
moot and academic due to the death of the person allegedly restrained of liberty, but the issue
of custody remained, which the court a quo had to resolve.

Petitioner claims he is the spouse contemplated under Art. 294 of the Civil Code, the term
spouse used therein not being preceded by any qualification; hence, in the absence of such
qualification, he is the rightful custodian of Vitaliana's body. Vitaliana's brothers and sisters
contend otherwise. Indeed, Philippine Law does not recognize common law marriages. A man
and woman not legally married who cohabit for many years as husband and wife, who represent
themselves to the public as husband and wife, and who are reputed to be husband and wife in
the community where they live may be considered legally mauled in common law jurisdictions
but not in the Philippines. 19
While it is true that our laws do not just brush aside the fact that such relationships are present
in our society, and that they produce a community of properties and interests which is governed
by law, 20 authority exists in case law to the effect that such form of co-ownership requires that
the man and woman living together must not in any way be incapacitated to contract
marriage. 21 In any case, herein petitioner has a subsisting marriage with another woman, a
legal impediment which disqualified him from even legally marrying Vitaliana. In Santero vs. CFI
of Cavite, 22 ,the Court, thru Mr. Justice Paras, interpreting Art. 188 of the Civil Code (Support of
Surviving Spouse and Children During Liquidation of Inventoried Property) stated: "Be it noted
however that with respect to 'spouse', the same must be the legitimate 'spouse' (not commonlaw spouses)."
There is a view that under Article 332 of the Revised Penal Code, the term "spouse" embraces
common law relation for purposes of exemption from criminal liability in cases of theft, swindling
and malicious mischief committed or caused mutually by spouses. The Penal Code article, it is
said, makes no distinction between a couple whose cohabitation is sanctioned by a sacrament
or legal tie and another who are husband and wife de facto. 23 But this view cannot even apply
to the facts of the case at bar. We hold that the provisions of the Civil Code, unless expressly
providing to the contrary as in Article 144, when referring to a "spouse" contemplate a lawfully
wedded spouse. Petitioner vis-a-vis Vitaliana was not a lawfully-wedded spouse to her; in fact,
he was not legally capacitated to marry her in her lifetime.
Custody of the dead body of Vitaliana was correctly awarded to her surviving brothers and
sisters (the Vargases). Section 1103 of the Revised Administrative Code provides:
Sec. 1103. Persons charged with duty of burial. The immediate duty of burying
the body of a deceased person, regardless of the ultimate liability for the expense
thereof, shall devolve upon the persons hereinbelow specified:
xxx xxx xxx
(b) If the deceased was an unmarried man or woman, or a child,
and left any kin, the duty of burial shall devolve upon the nearest
of kin of the deceased, if they be adults and within the Philippines
and in possession of sufficient means to defray the necessary
expenses.
WHEREFORE, the decision appealed from is AFFIRMED. Both petitions are hereby
DISMISSED. No Costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin,
Sarmiento, Cortes, Medialdea and Regalado, JJ., concur.
Gancayco and Grino-Aquino, JJ., are on leave.

Republic of the Philippines

SUPREME COURT
SECOND DIVISION
G.R. No. 152577 September 21, 2005
REPUBLIC OF THE PHILIPPINES, Petitioners,
vs.
CRASUS L. IYOY, Respondent.
DECISION
CHICO-NAZARIO, J.:
In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, petitioner Republic
of the Philippines, represented by the Office of the Solicitor General, prays for the reversal of
the Decision of the Court of Appeals in CA-G.R. CV No. 62539, dated 30 July 2001,1 affirming
the Judgment of the Regional Trial Court (RTC) of Cebu City, Branch 22, in Civil Case No. CEB20077, dated 30 October 1998,2 declaring the marriage between respondent Crasus L. Iyoy and
Fely Ada Rosal-Iyoy null and void on the basis of Article 36 of the Family Code of the
Philippines.
The proceedings before the RTC commenced with the filing of a Complaint3 for declaration of
nullity of marriage by respondent Crasus on 25 March 1997. According to the said Complaint,
respondent Crasus married Fely on 16 December 1961 at Bradford Memorial Church, Jones
Avenue, Cebu City. As a result of their union, they had five children Crasus, Jr., Daphne,
Debbie, Calvert, and Carlos who are now all of legal ages. After the celebration of their
marriage, respondent Crasus discovered that Fely was "hot-tempered, a nagger and
extravagant." In 1984, Fely left the Philippines for the United States of America (U.S.A.), leaving
all of their five children, the youngest then being only six years old, to the care of respondent
Crasus. Barely a year after Fely left for the U.S.A., respondent Crasus received a letter from her
requesting that he sign the enclosed divorce papers; he disregarded the said request.
Sometime in 1985, respondent Crasus learned, through the letters sent by Fely to their children,
that Fely got married to an American, with whom she eventually had a child. In 1987, Fely came
back to the Philippines with her American family, staying at Cebu Plaza Hotel in Cebu City.
Respondent Crasus did not bother to talk to Fely because he was afraid he might not be able to
bear the sorrow and the pain she had caused him. Fely returned to the Philippines several times
more: in 1990, for the wedding of their eldest child, Crasus, Jr.; in 1992, for the brain operation
of their fourth child, Calvert; and in 1995, for unknown reasons. Fely continued to live with her
American family in New Jersey, U.S.A. She had been openly using the surname of her
American husband in the Philippines and in the U.S.A. For the wedding of Crasus, Jr., Fely
herself had invitations made in which she was named as "Mrs. Fely Ada Micklus." At the time
the Complaint was filed, it had been 13 years since Fely left and abandoned respondent
Crasus, and there was no more possibility of reconciliation between them. Respondent Crasus
finally alleged in his Complaint that Felys acts brought danger and dishonor to the family, and
clearly demonstrated her psychological incapacity to perform the essential obligations of
marriage. Such incapacity, being incurable and continuing, constitutes a ground for declaration
of nullity of marriage under Article 36, in relation to Articles 68, 70, and 72, of the Family Code
of the Philippines.
Fely filed her Answer and Counterclaim4 with the RTC on 05 June 1997. She asserted therein
that she was already an American citizen since 1988 and was now married to Stephen Micklus.
While she admitted being previously married to respondent Crasus and having five children with
him, Fely refuted the other allegations made by respondent Crasus in his Complaint. She
explained that she was no more hot-tempered than any normal person, and she may had been
indignant at respondent Crasus on certain occasions but it was because of the latters
drunkenness, womanizing, and lack of sincere effort to find employment and to contribute to the
maintenance of their household. She could not have been extravagant since the family hardly
had enough money for basic needs. Indeed, Fely left for abroad for financial reasons as
respondent Crasus had no job and what she was then earning as the sole breadwinner in the

Philippines was insufficient to support their family. Although she left all of her children with
respondent Crasus, she continued to provide financial support to them, as well as, to
respondent Crasus. Subsequently, Fely was able to bring her children to the U.S.A., except for
one, Calvert, who had to stay behind for medical reasons. While she did file for divorce from
respondent Crasus, she denied having herself sent a letter to respondent Crasus requesting
him to sign the enclosed divorce papers. After securing a divorce from respondent Crasus, Fely
married her American husband and acquired American citizenship. She argued that her
marriage to her American husband was legal because now being an American citizen, her
status shall be governed by the law of her present nationality. Fely also pointed out that
respondent Crasus himself was presently living with another woman who bore him a child. She
also accused respondent Crasus of misusing the amount of P90,000.00 which she advanced to
him to finance the brain operation of their son, Calvert. On the basis of the foregoing, Fely also
prayed that the RTC declare her marriage to respondent Crasus null and void; and that
respondent Crasus be ordered to pay to Fely the P90,000.00 she advanced to him, with
interest, plus, moral and exemplary damages, attorneys fees, and litigation expenses.
After respondent Crasus and Fely had filed their respective Pre-Trial Briefs,5 the RTC afforded
both parties the opportunity to present their evidence. Petitioner Republic participated in the trial
through the Provincial Prosecutor of Cebu.6
Respondent Crasus submitted the following pieces of evidence in support of his Complaint: (1)
his own testimony on 08 September 1997, in which he essentially reiterated the allegations in
his Complaint;7 (2) the Certification, dated 13 April 1989, by the Health Department of Cebu
City, on the recording of the Marriage Contract between respondent Crasus and Fely in the
Register of Deeds, such marriage celebration taking place on 16 December 1961;8 and (3) the
invitation to the wedding of Crasus, Jr., their eldest son, wherein Fely openly used her American
husbands surname, Micklus.9
Felys counsel filed a Notice,10 and, later on, a Motion,11 to take the deposition of witnesses,
namely, Fely and her children, Crasus, Jr. and Daphne, upon written interrogatories, before the
consular officers of the Philippines in New York and California, U.S.A, where the said witnesses
reside. Despite the Orders12 and Commissions13issued by the RTC to the Philippine Consuls of
New York and California, U.S.A., to take the depositions of the witnesses upon written
interrogatories, not a single deposition was ever submitted to the RTC. Taking into account that
it had been over a year since respondent Crasus had presented his evidence and that Fely
failed to exert effort to have the case progress, the RTC issued an Order, dated 05 October
1998,14 considering Fely to have waived her right to present her evidence. The case was thus
deemed submitted for decision.
Not long after, on 30 October 1998, the RTC promulgated its Judgment declaring the marriage
of respondent Crasus and Fely null and void ab initio, on the basis of the following findings
The ground bearing defendants psychological incapacity deserves a reasonable consideration.
As observed, plaintiffs testimony is decidedly credible. The Court finds that defendant had
indeed exhibited unmistakable signs of psychological incapacity to comply with her marital
duties such as striving for family unity, observing fidelity, mutual love, respect, help and support.
From the evidence presented, plaintiff adequately established that the defendant practically
abandoned him. She obtained a divorce decree in the United States of America and married
another man and has establish [sic] another family of her own. Plaintiff is in an anomalous
situation, wherein he is married to a wife who is already married to another man in another
country.
Defendants intolerable traits may not have been apparent or manifest before the marriage, the
FAMILY CODE nonetheless allows the annulment of the marriage provided that these were
eventually manifested after the wedding. It appears to be the case in this instance.
Certainly defendants posture being an irresponsible wife erringly reveals her very low regard for
that sacred and inviolable institution of marriage which is the foundation of human society
throughout the civilized world. It is quite evident that the defendant is bereft of the mind, will and
heart to comply with her marital obligations, such incapacity was already there at the time of the
marriage in question is shown by defendants own attitude towards her marriage to plaintiff.

In sum, the ground invoked by plaintiff which is defendants psychological incapacity to comply
with the essential marital obligations which already existed at the time of the marriage in
question has been satisfactorily proven. The evidence in herein case establishes the
irresponsibility of defendant Fely Ada Rosal Iyoy, firmly.
Going over plaintiffs testimony which is decidedly credible, the Court finds that the defendant
had indeed exhibited unmistakable signs of such psychological incapacity to comply with her
marital obligations. These are her excessive disposition to material things over and above the
marital stability. That such incapacity was already there at the time of the marriage in question is
shown by defendants own attitude towards her marriage to plaintiff. And for these reasons there
is a legal ground to declare the marriage of plaintiff Crasus L. Iyoy and defendant Fely Ada
Rosal Iyoy null and void ab initio.15
Petitioner Republic, believing that the afore-quoted Judgment of the RTC was contrary to law
and evidence, filed an appeal with the Court of Appeals. The appellate court, though, in its
Decision, dated 30 July 2001, affirmed the appealed Judgment of the RTC, finding no reversible
error therein. It even offered additional ratiocination for declaring the marriage between
respondent Crasus and Fely null and void, to wit
Defendant secured a divorce from plaintiff-appellee abroad, has remarried, and is now
permanently residing in the United States. Plaintiff-appellee categorically stated this as one of
his reasons for seeking the declaration of nullity of their marriage

Article 26 of the Family Code 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 LIKEWISE HAVE CAPACITY TO REMARRY UNDER PHILIPPINE LAW."
The rationale behind the second paragraph of the above-quoted provision is to avoid the absurd
and unjust situation of a Filipino citizen still being married to his or her alien spouse, although
the latter is no longer married to the Filipino spouse because he or she has obtained a divorce
abroad. In the case at bench, the defendant has undoubtedly acquired her American husbands
citizenship and thus has become an alien as well. This Court cannot see why the benefits of Art.
26 aforequoted can not be extended to a Filipino citizen whose spouse eventually embraces
another citizenship and thus becomes herself an alien.
It would be the height of unfairness if, under these circumstances, plaintiff would still be
considered as married to defendant, given her total incapacity to honor her marital covenants to
the former. To condemn plaintiff to remain shackled in a marriage that in truth and in fact does
not exist and to remain married to a spouse who is incapacitated to discharge essential marital
covenants, is verily to condemn him to a perpetual disadvantage which this Court finds
abhorrent and will not countenance. Justice dictates that plaintiff be given relief by affirming the
trial courts declaration of the nullity of the marriage of the parties.16
After the Court of Appeals, in a Resolution, dated 08 March 2002,17 denied its Motion for
Reconsideration, petitioner Republic filed the instant Petition before this Court, based on the
following arguments/grounds
I. Abandonment by and sexual infidelity of respondents wife do not per se constitute
psychological incapacity.

II. The Court of Appeals has decided questions of substance not in accord with law and
jurisprudence considering that the Court of Appeals committed serious errors of law in ruling
that Article 26, paragraph 2 of the Family Code is inapplicable to the case at bar.18
In his Comment19 to the Petition, respondent Crasus maintained that Felys psychological
incapacity was clearly established after a full-blown trial, and that paragraph 2 of Article 26 of
the Family Code of the Philippines was indeed applicable to the marriage of respondent Crasus
and Fely, because the latter had already become an American citizen. He further questioned the
personality of petitioner Republic, represented by the Office of the Solicitor General, to institute
the instant Petition, because Article 48 of the Family Code of the Philippines authorizes the
prosecuting attorney or fiscal assigned to the trial court, not the Solicitor General, to intervene
on behalf of the State, in proceedings for annulment and declaration of nullity of marriages.
After having reviewed the records of this case and the applicable laws and jurisprudence, this
Court finds the instant Petition to be meritorious.
I
The totality of evidence presented during trial is insufficient to support the finding of
psychological incapacity of Fely.
Article 36, concededly one of the more controversial provisions of the Family Code of the
Philippines, reads
ART. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of marriage, shall
likewise be void even if such incapacity becomes manifest only after its solemnization.
Issues most commonly arise as to what constitutes psychological incapacity. In a series of
cases, this Court laid down guidelines for determining its existence.
In Santos v. Court of Appeals,20 the term psychological incapacity was defined, thus
". . . [P]sychological incapacity" should refer to no less than a mental (not physical) incapacity
that causes a party to be truly cognitive of the basic marital covenants that concomitantly must
be assumed and discharged by the parties to the marriage which, as so expressed by Article 68
of the Family Code, include their mutual obligations to live together, observe love, respect and
fidelity and render help and support. There is hardly any doubt that the intendment of the law
has been to confine the meaning of "psychological incapacity" to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning
and significance to the marriage. This psychological condition must exist at the time the
marriage is celebrated21
The psychological incapacity must be characterized by
(a) Gravity It must be grave or serious such that the party would be incapable of carrying out
the ordinary duties required in a marriage;
(b) Juridical Antecedence It must be rooted in the history of the party antedating the marriage,
although the overt manifestations may emerge only after the marriage; and
(c) Incurability It must be incurable or, even if it were otherwise, the cure would be beyond the
means of the party involved.22
More definitive guidelines in the interpretation and application of Article 36 of the Family Code of
the Philippines were handed down by this Court in Republic v. Court of Appeals and
Molina,23 which, although quite lengthy, by its significance, deserves to be reproduced below
(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt
should be resolved in favor of the existence and continuation of the marriage and against its
dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish

the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article
on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally
"inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and
marriage are to be "protected" by the state.
The Family Code echoes this constitutional edict on marriage and the family and emphasizes
their permanence, inviolability and solidarity.
(2) The root cause of the psychological incapacity must be (a) medically or clinically identified,
(b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the
decision. Article 36 of the Family Code requires that the incapacity must be psychological - not
physical, although its manifestations and/or symptoms may be physical. The evidence must
convince the court that the parties, or one of them, was mentally or psychically ill to such an
extent that the person could not have known the obligations he was assuming, or knowing them,
could not have given valid assumption thereof. Although no example of such incapacity need be
given here so as not to limit the application of the provision under the principle of ejusdem
generis, nevertheless such root cause must be identified as a psychological illness and its
incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists
and clinical psychologists.
(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage.
The evidence must show that the illness was existing when the parties exchanged their "I do's."
The manifestation of the illness need not be perceivable at such time, but the illness itself must
have attached at such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically permanent or incurable.
Such incurability may be absolute or even relative only in regard to the other spouse, not
necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be
relevant to the assumption of marriage obligations, not necessarily to those not related to
marriage, like the exercise of a profession or employment in a job
(5) Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes,
occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown
as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other
words, there is a natal or supervening disabling factor in the person, an adverse integral
element in the personality structure that effectively incapacitates the person from really
accepting and thereby complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the
Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same
Code in regard to parents and their children. Such non-complied marital obligation(s) must also
be stated in the petition, proven by evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in
the Philippines, while not controlling or decisive, should be given great respect by our courts
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to
appear as counsel for the state. No decision shall be handed down unless the Solicitor General
issues a certification, which will be quoted in the decision, briefly stating therein his reasons for
his agreement or opposition, as the case may be, to the petition. The Solicitor General, along
with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days
from the date the case is deemed submitted for resolution of the court. The Solicitor General
shall discharge the equivalent function of the defensor vinculi contemplated under Canon
1095.24
A later case, Marcos v. Marcos,25 further clarified that there is no requirement that the
defendant/respondent spouse should be personally examined by a physician or psychologist as
a condition sine qua non for the declaration of nullity of marriage based on psychological
incapacity. Such psychological incapacity, however, must be established by the totality of the
evidence presented during the trial.

Using the guidelines established by the afore-mentioned jurisprudence, this Court finds that the
totality of evidence presented by respondent Crasus failed miserably to establish the alleged
psychological incapacity of his wife Fely; therefore, there is no basis for declaring their marriage
null and void under Article 36 of the Family Code of the Philippines.
The only substantial evidence presented by respondent Crasus before the RTC was his
testimony, which can be easily put into question for being self-serving, in the absence of any
other corroborating evidence. He submitted only two other pieces of evidence: (1) the
Certification on the recording with the Register of Deeds of the Marriage Contract between
respondent Crasus and Fely, such marriage being celebrated on 16 December 1961; and (2)
the invitation to the wedding of Crasus, Jr., their eldest son, in which Fely used her American
husbands surname. Even considering the admissions made by Fely herself in her Answer to
respondent Crasuss Complaint filed with the RTC, the evidence is not enough to convince this
Court that Fely had such a grave mental illness that prevented her from assuming the essential
obligations of marriage.
It is worthy to emphasize that Article 36 of the Family Code of the Philippines contemplates
downright incapacity or inability to take cognizance of and to assume the basic marital
obligations; not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant
spouse.26 Irreconcilable differences, conflicting personalities, emotional immaturity and
irresponsibility, physical abuse, habitual alcoholism, sexual infidelity or perversion, and
abandonment, by themselves, also do not warrant a finding of psychological incapacity under
the said Article.27
As has already been stressed by this Court in previous cases, Article 36 "is not to be confused
with a divorce law that cuts the marital bond at the time the causes therefore manifest
themselves. It refers to a serious psychological illness afflicting a party even before the
celebration of marriage. It is a malady so grave and so permanent as to deprive one of
awareness of the duties and responsibilities of the matrimonial bond one is about to assume."28
The evidence may have proven that Fely committed acts that hurt and embarrassed respondent
Crasus and the rest of the family. Her hot-temper, nagging, and extravagance; her
abandonment of respondent Crasus; her marriage to an American; and even her flaunting of her
American family and her American surname, may indeed be manifestations of her alleged
incapacity to comply with her marital obligations; nonetheless, the root cause for such was not
identified. If the root cause of the incapacity was not identified, then it cannot be satisfactorily
established as a psychological or mental defect that is serious or grave; neither could it be
proven to be in existence at the time of celebration of the marriage; nor that it is incurable. While
the personal examination of Fely by a psychiatrist or psychologist is no longer mandatory for the
declaration of nullity of their marriage under Article 36 of the Family Code of the Philippines, by
virtue of this Courts ruling in Marcos v. Marcos,29 respondent Crasus must still have complied
with the requirement laid down in Republic v. Court of Appeals and Molina30 that the root cause
of the incapacity be identified as a psychological illness and that its incapacitating nature be fully
explained.
In any case, any doubt shall be resolved in favor of the validity of the marriage.31 No less than
the Constitution of 1987 sets the policy to protect and strengthen the family as the basic social
institution and marriage as the foundation of the family.32
II
Article 26, paragraph 2 of the Family Code of the Philippines is not applicable to the case at bar.
According to Article 26, paragraph 2 of the Family Code of the Philippines
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce
is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall likewise have capacity to remarry under Philippine law.
As it is worded, Article 26, paragraph 2, refers to a special situation wherein one of the couple
getting married is a Filipino citizen and the other a foreigner at the time the marriage was

celebrated. By its plain and literal interpretation, the said provision cannot be applied to
the case of respondent Crasus and his wife Fely because at the time Fely obtained her
divorce, she was still a Filipino citizen. Although the exact date was not established, Fely
herself admitted in her Answer filed before the RTC that she obtained a divorce from
respondent Crasus sometime after she left for the United States in 1984, after which she
married her American husband in 1985. In the same Answer, she alleged that she had been an
American citizen since 1988. At the time she filed for divorce, Fely was still a Filipino citizen,
and pursuant to the nationality principle embodied in Article 15 of the Civil Code of the
Philippines, she was still bound by Philippine laws on family rights and duties, status, condition,
and legal capacity, even when she was already living abroad. Philippine laws, then and even
until now, do not allow and recognize divorce between Filipino spouses. Thus, Fely could not
have validly obtained a divorce from respondent Crasus.
III
The Solicitor General is authorized to intervene, on behalf of the Republic, in proceedings for
annulment and declaration of nullity of marriages.
Invoking Article 48 of the Family Code of the Philippines, respondent Crasus argued that only
the prosecuting attorney or fiscal assigned to the RTC may intervene on behalf of the State in
proceedings for annulment or declaration of nullity of marriages; hence, the Office of the
Solicitor General had no personality to file the instant Petition on behalf of the State. Article 48
provides
ART. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall
order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take
steps to prevent collusion between the parties and to take care that the evidence is not
fabricated or suppressed.
That Article 48 does not expressly mention the Solicitor General does not bar him or his Office
from intervening in proceedings for annulment or declaration of nullity of marriages. Executive
Order No. 292, otherwise known as the Administrative Code of 1987, appoints the Solicitor
General as the principal law officer and legal defender of the Government.33 His Office is tasked
to represent the Government of the Philippines, its agencies and instrumentalities and its
officials and agents in any litigation, proceeding, investigation or matter requiring the services of
lawyers. The Office of the Solicitor General shall constitute the law office of the Government
and, as such, shall discharge duties requiring the services of lawyers.34
The intent of Article 48 of the Family Code of the Philippines is to ensure that the interest of the
State is represented and protected in proceedings for annulment and declaration of nullity of
marriages by preventing collusion between the parties, or the fabrication or suppression of
evidence; and, bearing in mind that the Solicitor General is the principal law officer and legal
defender of the land, then his intervention in such proceedings could only serve and contribute
to the realization of such intent, rather than thwart it.
Furthermore, the general rule is that only the Solicitor General is authorized to bring or defend
actions on behalf of the People or the Republic of the Philippines once the case is brought
before this Court or the Court of Appeals.35 While it is the prosecuting attorney or fiscal who
actively participates, on behalf of the State, in a proceeding for annulment or declaration of
nullity of marriage before the RTC, the Office of the Solicitor General takes over when the case
is elevated to the Court of Appeals or this Court. Since it shall be eventually responsible for
taking the case to the appellate courts when circumstances demand, then it is only reasonable
and practical that even while the proceeding is still being held before the RTC, the Office of the
Solicitor General can already exercise supervision and control over the conduct of the
prosecuting attorney or fiscal therein to better guarantee the protection of the interests of the
State.
In fact, this Court had already recognized and affirmed the role of the Solicitor General in
several cases for annulment and declaration of nullity of marriages that were appealed before it,
summarized as follows in the case of Ancheta v. Ancheta36

In the case of Republic v. Court of Appeals [268 SCRA 198 (1997)], this Court laid down the
guidelines in the interpretation and application of Art. 48 of the Family Code, one of which
concerns the role of the prosecuting attorney or fiscal and the Solicitor General to appear as
counsel for the State:
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to
appear as counsel for the state. No decision shall be handed down unless the Solicitor General
issues a certification, which will be quoted in the decision, briefly stating therein his reasons for
his agreement or opposition, as the case may be, to the petition. The Solicitor General, along
with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days
from the date the case is deemed submitted for resolution of the court. The Solicitor General
shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.
[Id., at 213]
This Court in the case of Malcampo-Sin v. Sin [355 SCRA 285 (2001)] reiterated its
pronouncement in Republic v. Court of Appeals [Supra.] regarding the role of the prosecuting
attorney or fiscal and the Solicitor General to appear as counsel for the State37
Finally, the issuance of this Court of the Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages,38 which became effective on 15 March 2003,
should dispel any other doubts of respondent Crasus as to the authority of the Solicitor General
to file the instant Petition on behalf of the State. The Rule recognizes the authority of the
Solicitor General to intervene and take part in the proceedings for annulment and declaration of
nullity of marriages before the RTC and on appeal to higher courts. The pertinent provisions of
the said Rule are reproduced below
Sec. 5. Contents and form of petition.

(4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of
the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the
date of its filing and submit to the court proof of such service within the same period.

Sec. 18. Memoranda. The court may require the parties and the public prosecutor, in
consultation with the Office of the Solicitor General, to file their respective memoranda in
support of their claims within fifteen days from the date the trial is terminated. It may require the
Office of the Solicitor General to file its own memorandum if the case is of significant interest to
the State. No other pleadings or papers may be submitted without leave of court. After the lapse
of the period herein provided, the case will be considered submitted for decision, with or without
the memoranda.
Sec. 19. Decision.

(2) The parties, including the Solicitor General and the public prosecutor, shall be served with
copies of the decision personally or by registered mail. If the respondent summoned by
publication failed to appear in the action, the dispositive part of the decision shall be published
once in a newspaper of general circulation.
(3) The decision becomes final upon the expiration of fifteen days from notice to the parties.
Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed
by any of the parties, the public prosecutor, or the Solicitor General.

Sec. 20. Appeal.


(2) Notice of Appeal. An aggrieved party or the Solicitor General may appeal from the decision
by filing a Notice of Appeal within fifteen days from notice of denial of the motion for
reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the
adverse parties.
Given the foregoing, this Court arrives at a conclusion contrary to those of the RTC and the
Court of Appeals, and sustains the validity and existence of the marriage between respondent
Crasus and Fely. At most, Felys abandonment, sexual infidelity, and bigamy, give respondent
Crasus grounds to file for legal separation under Article 55 of the Family Code of the
Philippines, but not for declaration of nullity of marriage under Article 36 of the same Code.
While this Court commiserates with respondent Crasus for being continuously shackled to what
is now a hopeless and loveless marriage, this is one of those situations where neither law nor
society can provide the specific answer to every individual problem.39
WHEREFORE, the Petition is GRANTED and the assailed Decision of the Court of Appeals in
CA-G.R. CV No. 62539, dated 30 July 2001, affirming the Judgment of the RTC of Cebu City,
Branch 22, in Civil Case No. CEB-20077, dated 30 October 1998, is REVERSED and SET
ASIDE.
The marriage of respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy remains valid and
subsisting.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Associate Justice
Chairman
MA. ALICIA AUSTRIA-MARTINEZ

ROMEO J. CALLEJO, SR.

Associate Justice

Associate Justice

DANTE O. TINGA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Associate Justice
Chairman, Second Division
CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairmans Attestation,
it is hereby certified that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
HILARIO G. DAVIDE, JR.
Chief Justice

Republic of the Philippines

SUPREME COURT
FIRST DIVISION
G.R. No. 154380 October 5, 2005
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
CIPRIANO ORBECIDO III, Respondent.
DECISION
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens, where one party is later naturalized as a
foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the
Filipino spouse likewise remarry under Philippine law?
Before us is a case of first impression that behooves the Court to make a definite ruling on this
apparently novel question, presented as a pure question of law.
In this petition for review, the Solicitor General assails the Decision1 dated May 15, 2002, of the
Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2 dated July
4, 2002 denying the motion for reconsideration. The court a quo had declared that herein
respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision
reads:
WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code
and by reason of the divorce decree obtained against him by his American wife, the petitioner is
given the capacity to remarry under the Philippine Law.
IT IS SO ORDERED.3
The factual antecedents, as narrated by the trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church
of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and
a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.
In 1986, 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.
Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph
2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the
court granted the same. The Republic, herein petitioner, through the Office of the Solicitor
General (OSG), sought reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY
CODE4
The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the
instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated
between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a

petition for annulment or for legal separation.5 Furthermore, the OSG argues there is no law that
governs 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
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 Hearings9 on the Family Code, the Catholic Bishops
Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of
Article 26:
1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who
divorce them abroad. These spouses who are divorced will not be able to re-marry, while the
spouses of foreigners who validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For
those whose foreign spouses validly divorce them abroad will also be considered to be validly
divorced here and can re-marry. We propose that this be deleted and made into law only after
more widespread consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the intent of
Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code
Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married
to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v.
Romillo, Jr.10 The Van Dorn case involved a marriage between a Filipino citizen and a foreigner.
The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the
Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine
law.
Does the same principle apply to a case where at the time of the celebration of the marriage,
the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by
naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.11 In Quita,
the parties were, as in this case, Filipino citizens when they got married. The wife became a
naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein
hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no
longer married under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of reason, we hold
that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at
the time of the celebration of the marriage were Filipino citizens, but later on, one of them
becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse
should likewise be allowed to remarry as if the other party were a foreigner at the time of the
solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice.
Where the interpretation of a statute according to its exact and literal import would lead to
mischievous results or contravene the clear purpose of the legislature, it should be construed
according to its spirit and reason, disregarding as far as necessary the letter of the law. A
statute may therefore be extended to cases not within the literal meaning of its terms, so long as
they come within its spirit or intent.12
If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a divorce is no longer married

to the Filipino spouse, then the instant case must be deemed as coming within the
contemplation of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article
26 as follows:
1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner;
and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the time of the celebration of the
marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse
capacitating the latter to remarry.
In this case, when 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.
No pronouncement as to costs.
SO ORDERED.
LEONARDO A. QUISUMBING

Associate Justice
WE CONCUR:
HILARIO G. DAVIDE, JR.
Chief Justice
Chairman
CONSUELO YNARES-SANTIAGO, ANTONIO T. CARPIO
Associate Justice Associate Justice
ADOLFO S. AZCUNA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions
in the above Decision were reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.
HILARIO G. DAVIDE, JR.
Chief Justice

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 142820

June 20, 2003

WOLFGANG O. ROEHR, petitioner,

vs.
MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA,
Presiding Judge of Makati RTC, Branch 149, respondents.
QUISUMBING, J.:
At the core of the present controversy are issues of (a) grave abuse of discretion allegedly
committed by public respondent and (b) lack of jurisdiction of the regional trial court, in matters
that spring from a divorce decree obtained abroad by petitioner.
In this special civil action for certiorari, petitioner assails (a) the order1 dated September 30,
1999 of public respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati
Regional Trial Court,2 Branch 149, in Civil Case No. 96-1389 for declaration of nullity of
marriage, and (b) the order3 dated March 31, 2000 denying his motion for reconsideration. The
assailed orders partially set aside the trial courts order dismissing Civil Case No. 96-1389, for
the purpose of resolving issues relating to the property settlement of the spouses and the
custody of their children.
Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private
respondent Carmen Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany. Their
marriage was subsequently ratified on February 14, 1981 in Tayasan, Negros Oriental.4 Out of
their union were born Carolynne and Alexandra Kristine on November 18, 1981 and October 25,
1987, respectively.
On August 28, 1996, private respondent filed a petition5 for declaration of nullity of marriage
before the Regional Trial Court (RTC) of Makati City. On February 6, 1997, petitioner filed a
motion to dismiss,6 but it was denied by the trial court in its order7 dated May 28, 1997.
On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an
order8 dated August 13, 1997. On September 5, 1997, petitioner filed a petition for certiorari with
the Court of Appeals. On November 27, 1998, the appellate court denied the petition and
remanded the case to the RTC.
Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance of HamburgBlankenese, promulgated on December 16, 1997.
The decree provides in part:
[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through
Judge van Buiren of the Court of First Instance on the basis of the oral proceedings held
on 4 Nov. 1997:
The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar
of Hamburg-Altona is hereby dissolved.
The parental custody for the children
Carolynne Roehr, born 18 November 1981
Alexandra Kristine Roehr, born on 25 October 1987

is granted to the father.

The litigation expenses shall be assumed by the Parties.9
In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999 on the
ground that the trial court had no jurisdiction over the subject matter of the action or suit as a
decree of divorce had already been promulgated dissolving the marriage of petitioner and
private respondent.
On July 14, 1999, Judge Guevara-Salonga issued an order granting petitioners motion to
dismiss. Private respondent filed a Motion for Partial Reconsideration, with a prayer that the
case proceed for the purpose of determining the issues of custody of children and the
distribution of the properties between petitioner and private respondent.
On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was filed by the
petitioner on the ground that there is nothing to be done anymore in the instant case as the
marital tie between petitioner Wolfgang Roehr and respondent Ma. Carmen D. Rodriguez had
already been severed by the decree of divorce promulgated by the Court of First Instance of
Hamburg, Germany on December 16, 1997 and in view of the fact that said decree of divorce
had already been recognized by the RTC in its order of July 14, 1999, through the
implementation of the mandate of Article 26 of the Family Code,10 endowing the petitioner with
the capacity to remarry under the Philippine law.
On September 30, 1999, respondent judge issued the assailed order partially setting aside her
order dated July 14, 1999 for the purpose of tackling the issues of property relations of the
spouses as well as support and custody of their children. The pertinent portion of said order
provides:
Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by
petitioner thru counsel which was opposed by respondent and considering that the
second paragraph of Article 26 of the Family Code was included as an amendment thru
Executive Order 227, to avoid the absurd situation of a Filipino as being still married to
his or her alien spouse though the latter is no longer married to the Filipino spouse
because he/she had obtained a divorce abroad which is recognized by his/her national
law, and considering further the effects of the termination of the marriage under Article
43 in relation to Article 50 and 52 of the same Code, which include the dissolution of the
property relations of the spouses, and the support and custody of their children, the
Order dismissing this case is partially set aside with respect to these matters which may
be ventilated in this Court.
SO ORDERED.11 (Emphasis supplied.)
Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied by
respondent judge in an order dated March 31, 2000.12
Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion on the part
of respondent judge. He cites as grounds for his petition the following:
1. Partially setting aside the order dated July 14, 1999 dismissing the instant case is not
allowed by 1997 Rules of Civil Procedure.13
2. Respondent Maria Carmen Rodriguez by her motion for Partial Reconsideration had
recognized and admitted the Divorce Decision obtained by her ex-husband in Hamburg,
Germany.14
3. There is nothing left to be tackled by the Honorable Court as there are no conjugal
assets alleged in the Petition for Annulment of Marriage and in the Divorce petition, and
the custody of the children had already been awarded to Petitioner Wolfgang Roehr.15
Pertinent in this case before us are the following issues:

1. Whether or not respondent judge gravely abused her discretion in issuing her order
dated September 30, 1999, which partially modified her order dated July 14, 1999; and
2. Whether or not respondent judge gravely abused her discretion when she assumed
and retained jurisdiction over the present case despite the fact that petitioner has
already obtained a divorce decree from a German court.
On the first issue, petitioner asserts that the assailed order of respondent judge is completely
inconsistent with her previous order and is contrary to Section 3, Rule 16, Rules of Civil
Procedure, which provides:
Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or
claim, deny the motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground
relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor.
(Emphasis supplied.)
Petitioner avers that a courts action on a motion is limited to dismissing the action or claim,
denying the motion, or ordering the amendment of the pleading.
Private respondent, on her part, argues that the RTC can validly reconsider its order dated July
14, 1999 because it had not yet attained finality, given the timely filing of respondents motion
for reconsideration.
Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of Civil
Procedure, which provides:
Sec. 3. Action upon motion for new trial or reconsideration.The trial court may set
aside the judgment or final order and grant a new trial, upon such terms as may be just,
or may deny the motion. If the court finds that excessive damages have been
awarded or that the judgment or final order is contrary to the evidence or law, it may
amend such judgment or final order accordingly.
Sec. 7. Partial new trial or reconsideration.If the grounds for a motion under this Rule
appear to the court to affect the issues as to only a part, or less than all of the matters in
controversy, or only one, or less than all, of the parties to it, the court may order a new
trial or grant reconsideration as to such issues if severable without interfering with the
judgment or final order upon the rest. (Emphasis supplied.)
It is clear from the foregoing rules that a judge can order a partial reconsideration of a case that
has not yet attained finality. Considering that private respondent filed a motion for
reconsideration within the reglementary period, the trial court's decision of July 14, 1999 can still
be modified. Moreover, in Saado v. Court of Appeals,16we held that the court could modify or
alter a judgment even after the same has become executory whenever circumstances transpire
rendering its decision unjust and inequitable, as where certain facts and circumstances justifying
or requiring such modification or alteration transpired after the judgment has become final and
executory17 and when it becomes imperative in the higher interest of justice or when
supervening events warrant it.18 In our view, there are even more compelling reasons to do so
when, as in this case, judgment has not yet attained finality.
Anent the second issue, petitioner claims that respondent judge committed grave abuse of
discretion when she partially set aside her order dated July 14, 1999, despite the fact that
petitioner has already obtained a divorce decree from the Court of First Instance of Hamburg,
Germany.
In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we
consistently held that a divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the national law of the foreigner.

Relevant to the present case is Pilapil v. Ibay-Somera,22 where this Court specifically
recognized the validity of a divorce obtained by a German citizen in his country, the Federal
Republic of Germany. We held in Pilapil that a foreign divorce and its legal effects may be
recognized in the Philippines insofar as respondent is concerned in view of the nationality
principle in our civil law on the status of persons.
In this case, the divorce decree issued by the German court dated December 16, 1997 has not
been challenged by either of the parties. In fact, save for the issue of parental custody, even the
trial court recognized said decree to be valid and binding, thereby endowing private respondent
the capacity to remarry. Thus, the present controversy mainly relates to the award of the
custody of their two children, Carolynne and Alexandra Kristine, to petitioner.
As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in
our jurisdiction, but the legal effects thereof, e.g. on custody, care and support of the children,
must still be determined by our courts.23 Before our courts can give the effect of res judicata to a
foreign judgment, such as the award of custody to petitioner by the German court, it must be
shown that the parties opposed to the judgment had been given ample opportunity to do so on
grounds allowed under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48,
1997 Rules of Civil Procedure), to wit:
SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign
country, having jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title
to the thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a
right as between the parties and their successors in interest by a subsequent title; but
the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.
It is essential that there should be an opportunity to challenge the foreign judgment, in order for
the court in this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of
Court clearly provide that with respect to actions in personam, as distinguished from actions in
rem, a foreign judgment merely constitutes prima facie evidence of the justness of the claim of a
party and, as such, is subject to proof to the contrary.24
In the present case, it cannot be said that private respondent was given the opportunity to
challenge the judgment of the German court so that there is basis for declaring that judgment
as res judicata with regard to the rights of petitioner to have parental custody of their two
children. The proceedings in the German court were summary. As to what was the extent of
private respondents participation in the proceedings in the German court, the records remain
unclear. The divorce decree itself states that neither has she commented on the
proceedings25 nor has she given her opinion to the Social Services Office.26 Unlike petitioner
who was represented by two lawyers, private respondent had no counsel to assist her in said
proceedings.27 More importantly, the divorce judgment was issued to petitioner by virtue of the
German Civil Code provision to the effect that when a couple lived separately for three years,
the marriage is deemed irrefutably dissolved. The decree did not touch on the issue as to who
the offending spouse was. Absent any finding that private respondent is unfit to obtain custody
of the children, the trial court was correct in setting the issue for hearing to determine the issue
of parental custody, care, support and education mindful of the best interests of the children.
This is in consonance with the provision in the Child and Youth Welfare Code that the childs
welfare is always the paramount consideration in all questions concerning his care and
custody. 28
On the matter of property relations, petitioner asserts that public respondent exceeded the
bounds of her jurisdiction when she claimed cognizance of the issue concerning property
relations between petitioner and private respondent. Private respondent herself has admitted in
Par. 14 of her petition for declaration of nullity of marriage dated August 26, 1996 filed with the
RTC of Makati, subject of this case, that: "[p]etitioner and respondent have not acquired any
conjugal or community property nor have they incurred any debts during their

marriage."29 Herein petitioner did not contest this averment. Basic is the rule that a court shall
grant relief warranted by the allegations and the proof.30 Given the factual admission by the
parties in their pleadings that there is no property to be accounted for, respondent judge has no
basis to assert jurisdiction in this case to resolve a matter no longer deemed in controversy.
In sum, we find that respondent judge may proceed to determine the issue regarding the
custody of the two children born of the union between petitioner and private respondent. Private
respondent erred, however, in claiming cognizance to settle the matter of property relations of
the parties, which is not at issue.
WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued on
September 30, 1999 and March 31, 2000 are AFFIRMED with MODIFICATION. We hereby
declare that the trial court has jurisdiction over the issue between the parties as to who has
parental custody, including the care, support and education of the children, namely Carolynne
and Alexandra Kristine Roehr. Let the records of this case be remanded promptly to the trial
court for continuation of appropriate proceedings. No pronouncement as to costs.
SO ORDERED.
Bellosillo, (Chairman), and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on official leave.