FIRST DIVISION

[A.M. No. MTJ-00-1329. March 8, 2001]

HERMINIA BORJA-MANZANO, petitioner, vs. JUDGE ROQUE R.
SANCHEZ, MTC, Infanta, Pangasinan, respondent.
RESOLUTION
DAVIDE, JR., C.J.:
The solemnization of a marriage between two contracting parties who were
both bound by a prior existing marriage is the bone of contention of the
instant complaint against respondent Judge Roque R. Sanchez, Municipal
Trial Court, Infanta, Pangasinan. For this act, complainant Herminia BorjaManzano charges respondent Judge with gross ignorance of the law in a
sworn Complaint-Affidavit filed with the Office of the Court Administrator
on 12 May 1999.
Complainant avers that she was the lawful wife of the late David Manzano,
having been married to him on 21 May 1966 in San Gabriel Archangel
Parish, Araneta Avenue, Caloocan City.[1] Four children were born out of that
marriage.[2] On 22 March 1993, however, her husband contracted another
marriage with one Luzviminda Payao before respondent Judge. [3] When
respondent Judge solemnized said marriage, he knew or ought to know
that the same was void and bigamous, as the marriage contract clearly
stated that both contracting parties were separated.
Respondent Judge, on the other hand, claims in his Comment that when he
officiated the marriage between Manzano and Payao he did not know that
Manzano was legally married. What he knew was that the two had been
living together as husband and wife for seven years already without the
benefit of marriage, as manifested in their joint affidavit. [4] According to
him, had he known that the late Manzano was married, he would have
advised the latter not to marry again; otherwise, he (Manzano) could be
charged with bigamy. He then prayed that the complaint be dismissed for
lack of merit and for being designed merely to harass him.
After an evaluation of the Complaint and the Comment, the Court
Administrator recommended that respondent Judge be found guilty of
gross ignorance of the law and be ordered to pay a fine of P2,000, with a
warning that a repetition of the same or similar act would be dealt with
more severely.
On 25 October 2000, this Court required the parties to manifest whether
they were willing to submit the case for resolution on the basis of the
pleadings thus filed. Complainant answered in the affirmative.
For his part, respondent Judge filed a Manifestation reiterating his plea for
the dismissal of the complaint and setting aside his earlier Comment. He
therein invites the attention of the Court to two separate affidavits[5] of the

late Manzano and of Payao, which were allegedly unearthed by a member

of his staff upon his instruction. In those affidavits, both David Manzano
and Luzviminda Payao expressly stated that they were married to Herminia
Borja and Domingo Relos, respectively; and that since their respective
marriages had been marked by constant quarrels, they had both left their
families and had never cohabited or communicated with their spouses
anymore. Respondent Judge alleges that on the basis of those affidavits, he
agreed to solemnize the marriage in question in accordance with Article 34
of the Family Code.
We find merit in the complaint.
Article 34 of the Family Code provides:
No license shall be necessary for the marriage of a man and a woman who
have lived together as husband and wife for at least five years and without
any legal impediment to marry each other. The contracting parties shall
state the foregoing facts in an affidavit before any person authorized by
law to administer oaths. The solemnizing officer shall also state under oath
that he ascertained the qualifications of the contracting parties and found
no legal impediment to the marriage.
For this provision on legal ratification of marital cohabitation to apply, the
following requisites must concur:
1. The man and woman must have been living together as husband and
wife for at least five years before the marriage;
2. The parties must have no legal impediment to marry each other;
3. The fact of absence of legal impediment between the parties must be
present at the time of marriage;
4. The parties must execute an affidavit stating that they have lived
together for at least five years [and are without legal impediment to marry
each other]; and
5. The solemnizing officer must execute a sworn statement that he had
ascertained the qualifications of the parties and that he had found no legal
impediment to their marriage.[6]
Not all of these requirements are present in the case at bar. It is significant
to note that in their separate affidavits executed on 22 March 1993 and
sworn to before respondent Judge himself, David Manzano and Luzviminda
Payao expressly stated the fact of their prior existing marriage.Also, in
their marriage contract, it was indicated that both were separated.
Respondent Judge knew or ought to know that a subsisting previous
marriage is a diriment impediment, which would make the subsequent
marriage null and void.[7] In fact, in his Comment, he stated that had he
known that the late Manzano was married he would have discouraged him

from contracting another marriage. And respondent Judge cannot deny

knowledge of Manzanos and Payaos subsisting previous marriage, as the
same was clearly stated in their separate affidavits which were subscribed
and sworn to before him.
The fact that Manzano and Payao had been living apart from their
respective spouses for a long time already is immaterial. Article 63(1) of
the Family Code allows spouses who have obtained a decree of legal
separation to live separately from each other, but in such a case the
marriage bonds are not severed. Elsewise stated, legal separation
does not dissolve the marriage tie, much less authorize the parties to
remarry. This holds true all the more when the separation is merely de
facto, as in the case at bar.
Neither can respondent Judge take refuge on the Joint Affidavit of David
Manzano and Luzviminda Payao stating that they had been cohabiting as
husband and wife for seven years. Just like separation, free and voluntary
cohabitation with another person for at least five years does not severe the
tie of a subsisting previous marriage. Marital cohabitation for a long period
of time between two individuals who are legally capacitated to marry
each other is merely a ground for exemption from marriage license. It
could not serve as a justification for respondent Judge to solemnize a
subsequent marriage vitiated by the impediment of a prior existing
marriage.
Clearly, respondent Judge demonstrated gross ignorance of the law when
he solemnized a void and bigamous marriage. The maxim ignorance of the
law excuses no one has special application to judges, [8] who, under Rule
1.01 of the Code of Judicial Conduct, should be the embodiment of
competence, integrity, and independence. It is highly imperative that
judges be conversant with the law and basic legal principles. [9] And when
the law transgressed is simple and elementary, the failure to know it
constitutes gross ignorance of the law.[10]
ACCORDINGLY, the recommendation of the Court Administrator is hereby
ADOPTED, with the MODIFICATION that the amount of fine to be imposed
upon respondent Judge Roque Sanchez is increased to P20,000.
SO ORDERED.
Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

YNARES-SANTIAGO, J.:

FIRST DIVISION

Before us is a petition for review on certiorari assailing the Decision [1] of the
Court of Appeals in CA-G.R. SP No. 50615 dated March 30, 2001 which
affirmed the Decision[2] of the National Labor Relations Commission (NLRC)
dated March 31, 1998 dismissing petitioners complaint for payment of
disability and other benefits for lack of merit and the Resolution [3] dated
October 5, 2001 of the Court of Appeals denying petitioners motion for
reconsideration.

The antecedent facts are as follows:

ROBERTO G. FAMANILA, G.R. No. 150429
Petitioner,
Present:

In 1989, respondent NFD International Manning Agents, Inc. hired the

services of petitioner Roberto G. Famanila as Messman[4] for Hansa Riga, a
vessel registered and owned by its principal and co-respondent, Barbership
Management Limited.

Panganiban, C.J. (Chairperson),

- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ.
THE COURT OF APPEALS (Spc. Fmr.
Seventh Division) and BARBERSHIP
MANAGEMENT LIMITED and
NFD INTERNATIONAL Promulgated:
MANNING AGENTS, INC.
Respondents. August 29, 2006

x ---------------------------------------------------------------------------------------- x

DECISION

On June 21, 1990, while Hansa Riga was docked at

the port of Eureka, California, U.S.A. and while petitioner was assisting in
the loading operations, the latter complained of a headache. Petitioner
experienced dizziness and he subsequently collapsed. Upon examination, it
was determined that he had a sudden attack of left cerebral hemorrhage
from a ruptured cerebral aneurysm.[5] Petitioner underwent a brain
operation and he was confined at
the Emmanuel Hospital in Portland, Oregon,U.S.A. On July 19, 1990, he
underwent a second brain operation.
Owing to petitioners physical and mental condition, he was repatriated to
the Philippines. On August 21, 1990, he was examined at
the American Hospital in Intramuros, Manila where the examining
physician, Dr. Patricia Abesamis declared that he cannot go back to sea
duty and has been observed for 120 days, he is being declared
permanently, totally disabled.[6]

Thereafter, authorized representatives of the respondents convinced him

to settle his claim amicably by accepting the amount of US$13,200.
[7]
Petitioner accepted the offer as evidenced by his signature in the Receipt
and Release dated February 28, 1991.[8] His wife, Gloria Famanila and one
Richard Famanila, acted as witnesses in the signing of the release.

On June 11, 1997, petitioner filed a complaint[9] with the NLRC which was
docketed as NLRC OCW Case No. 6-838-97-L praying for an award of
disability benefits, share in the insurance proceeds, moral damages and
attorneys fees. OnSeptember 29, 1997, Acting Executive Labor Arbiter
Voltaire A. Balitaan dismissed the complaint on the ground of prescription.
Petitioner appealed the decision with the NLRC. On March 31, 1998, the
NLRC promulgated its decision[10] finding the appeal to be without merit
and ordered its dismissal. When the motion for reconsideration[11] was
denied by the NLRC in its resolution dated June 29, 1998,[12] petitioner filed
a petition for certiorari with this Court. On December 2, 1998, we resolved
to refer the case to the Court of Appeals pursuant to our ruling in St. Martin
Funeral Home v. National Labor Relations Commission.[13]

On March 30, 2001, the Court of Appeals promulgated the assailed decision
which dismissed the petition for lack of merit. Petitioners motion for
reconsideration was denied, hence, the present petition for review raising
the following issues:
I. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN UPHOLDING THE
VALIDITY OF THE RECEIPT AND RELEASE SINCE PETITIONERS CONSENT
THERETO WAS VITIATED THEREBY MAKING THE SAME VOID AND
UNENFORCEABLE.
II. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THAT THE
PRESCRIPTION PERIOD APPLICABLE TO THE CLAIM OF THE PETITIONER IS
THE 3-YEAR PERIOD PROVIDED FOR UNDER THE LABOR CODE OF
THE PHILIPPINES AND NOT THE 10-YEAR PERIOD PROVIDED FOR UNDER
THE CIVIL CODE.
Petitioner claims that he did not sign the Receipt and Release voluntarily or
freely because he was permanently disabled and in financial
constraints. These factors allegedly vitiated his consent which makes the
Receipt and Release void and unenforceable.
The petition lacks merit.
It is fundamental that the scope of the Supreme Courts judicial review
under Rule 45 of the Rules of Court is confined only to errors of law. It does
not extend to questions of fact. More so in labor cases where the doctrine
applies with greater force.[14] The Labor Arbiter and the NLRC have already
determined the factual issues, and these were affirmed by the Court of
Appeals. Thus, they are accorded not only great respect but also finality
and are deemed binding upon this Court so long as they are supported by
substantial evidence.[15] We reviewed the records of the case and we find
no reason to deviate from the findings of the labor arbiter, NLRC and the
Court of Appeals.

A vitiated consent does not make a contract void and unenforceable. A

vitiated consent only gives rise to a voidable agreement. Under the Civil
Code, the vices of consent are mistake, violence, intimidation, undue
influence or fraud.[16] If consent is given through any of the aforementioned
vices of consent, the contract is voidable. [17] A voidable contract is binding
unless annulled by a proper action in court.[18]
Petitioner contends that his permanent and total disability vitiated his
consent to the Receipt and Release thereby rendering it void and
unenforceable. However, disability is not among the factors that may
vitiate consent. Besides, save for petitioners self-serving allegations, there
is no proof on record that his consent was vitiated on account of his
disability. In the absence of such proof of vitiated consent, the validity of
the Receipt and Release must be upheld. We agree with the findings of the
Court of Appeals that:
In the case at bar, there is nothing in the records to show that petitioners
consent was vitiated when he signed the agreement. Granting that
petitioner has not fully recovered his health at the time he signed the
subject document, the same cannot still lead to the conclusion that he did
not voluntar[il]y accept the agreement, for his wife and another relative
witnessed his signing.
Moreover, the document entitled receipt and release which was attached
by petitioner in his appeal does not show on its face any violation of law or
public policy. In fact, petitioner did not present any proof to show that the
consideration for the same is not reasonable and acceptable. Absent any
evidence to support the same, the Court cannot, on its own accord, decide
against the unreasonableness of the consideration.[19]
It is true that quitclaims and waivers are oftentimes frowned upon and are
considered as ineffective in barring recovery for the full measure of the
workers right and that acceptance of the benefits therefrom does not
amount to estoppel.[20] The reason is plain. Employer and employee,
obviously do not stand on the same footing.[21] However, not all waivers
and quitclaims are invalid as against public policy. If the agreement was
voluntarily entered into and represents a reasonable settlement, it is
binding on the parties and may not later be disowned simply because of
change of mind. It is only where there is clear proof that the waiver was
wangled from an unsuspecting or gullible person, or the terms of the
settlement are unconscionable on its face, that the law will step in to annul
the questionable transaction. But where it is shown that the person making
the waiver did so voluntarily, with full understanding of what he was doing,
and the consideration for the quitclaim is credible and reasonable, the
transaction must be recognized as a valid and binding undertaking, [22] as in
this case.
To be valid and effective, waivers must be couched in clear and
unequivocal terms, leaving no doubt as to the intention of those giving up

a right or a benefit that legally pertains to them.[23] We have reviewed the

terms and conditions contained in the Receipt and Release and we find the
same to be clear and unambiguous. The signing was even witnessed by
petitioners wife, Gloria T. Famanila and one Richard T. Famanila. The
Receipt and Release provides in part:

That for and in consideration of the sum of THIRTEEN THOUSAND TWO

HUNDRED DOLLARS (US$13,200.00) or its equivalent in Philippine currency
THREE HUNDRED SIXTY FIVE THOUSAND NINE HUNDRED FOUR PESOS
(365,904.00), the receipt of which is hereby acknowledged to my full and
complete satisfaction x x x I, ROBERTO G. FAMANILA, x x x hereby remise,
release and forever discharge said vessel HANSA RIGA, her Owners,
operators, managers, charterers, agents, underwriters, P and I Club,
master, officers, and crew and all parties at interest therein or thereon,
whether named or not named, including but not limited to BARBER SHIP
MANAGEMENT LIMITED, NFD INTERNATIONAL MANNING AGENTS, INC. and
ASSURANCEFORENIGEN GARD from any and all claims, demands, debts,
dues, liens, actions or causes of action, at law or in equity, in common law
or in admiralty, statutory or contractual, arising from and under the laws of
the United States of America, Norway, Hongkong or the Republic of the
Philippines and/or any other foreign country now held, owned or possessed
by me or by any person or persons, arising from or related to or concerning
whether directly or indirectly, proximately or remotely, without being
limited to but including the said illness suffered by me on board the vessel
HANSA RIGA on or about 21st June 1990 at Portland, Oregon and disability
compensation in connection therewith.
This instrument is a GENERAL RELEASE intended to release all liabilities of
any character and/or claims or damages and/or losses and/or any other
liabilities whatsoever, whether contractual or statutory, at common law or
in equity, tortious or in admiralty, now or henceforth in any way related to
or occurring as a consequence of the illness suffered by me as Messman of
the vessel HANSA RIGA, including but not limited to all damages and/or
losses consisting of loss of support, loss of earning capacity, loss of all
benefits of whatsoever nature and extent incurred, physical pain and
suffering and/or all damages and/or indemnities claimable in law, tort,
contract, common law, equity and/or admiralty by me or by any person or
persons pursuant to the laws of the United States of America, Norway,
Hongkong or the Republic of the Philippines and of all other countries
whatsoever.
I hereby certify that I am of legal age and that I fully understand this
instrument which was read to me in the local dialect and I agree that this is
a FULL AND FINAL RELEASE AND DISCHARGE of all parties and things
referred to herein, and I further agree that this release may be pleaded as
an absolute and final bar to any suit or suits or legal proceedings that may

hereafter be prosecuted by me or by any one claiming by, through, or

under me, against any of the persons or things
referred to or related herein, for any matter or thing referred to or related
herein.[24]
It is elementary that a contract is perfected by mere consent and from that
moment the parties are bound not only to the fulfillment of what has been
expressly stipulated but also to all the consequences which, according to
their nature, may be in keeping with good faith, usage and law. [25] Further,
dire necessity is not an acceptable ground for annulling the Receipt and
Release since it has not been shown that petitioner was forced to sign it. [26]
Regarding prescription, the applicable prescriptive period for the money
claims against the respondents is the three year period pursuant to Article
291 of the Labor Code which provides that:
ART. 291. Money Claims. All money claims arising from employer-employee
relations accruing during the effectivity of this Code shall be filed within
three (3) years from the time the cause of action accrued; otherwise they
shall be forever barred.
xxxx
Since petitioners demand for an award of disability benefits is a money
claim arising from his employment, Article 291 of the Labor Code
applies. From the time petitioner was declared permanently and totally
disabled on August 21, 1990 which gave rise to his entitlement to disability
benefits up to the time that he filed the complaint on June 11, 1997, more
than three years have elapsed thereby effectively barring his claim.

WHEREFORE, the petition is DENIED. The Decision of the Court of

Appeals dated March 30, 2001 in CA-G.R. SP No. 50615 which affirmed the
Decision of the National Labor Relations Commission dismissing
petitioners complaint for disability and other benefits for lack of merit, and

the Resolution dated October 5, 2001 denying the motion for

reconsideration, are AFFIRMED.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN

- v e r s u s - CORONA,

Chief Justice

AZCUNA and

Chairperson

GARCIA, JJ.

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

REPUBLIC OF THE
PHILIPPINES,
Respondent. Promulgated:

MINITA V. CHICO-NAZARIO

October 22, 2007

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.

x--------------------------------------------------x

DECISION
CORONA, J.:

When God created man, He made him in the likeness of God; He created
them male and female. (Genesis 5:1-2)
ARTEMIO V. PANGANIBAN
Chief Justice

FIRST DIVISION

Amihan gazed upon the bamboo reed planted by Bathala and she heard
voices coming from inside the bamboo. Oh North Wind! North Wind! Please
let us out!, the voices said. She pecked the reed once, then twice. All of a
sudden, the bamboo cracked and slit open. Out came two human beings;
one was a male and the other was a female. Amihan named the man
Malakas (Strong) and the woman Maganda (Beautiful). (The Legend of
Malakas and Maganda)

ROMMEL JACINTO DANTES G.R. No. 174689

SILVERIO,
Petitioner, Present:

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,

When is a man a man and when is a woman a woman? In particular, does

the law recognize the changes made by a physician using scalpel, drugs
and counseling with regard to a persons sex? May a person successfully
petition for a change of name and sex appearing in the birth certificate to
reflect the result of a sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a

petition for the change of his first name and sex in his birth certificate in
the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP
Case No. 02-105207, impleaded the civil registrar of Manila as respondent.

Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the purpose
of making his birth records compatible with his present sex.

Petitioner alleged in his petition that he was born in the City of Manila to
the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4,
1962. His name was registered as Rommel Jacinto Dantes Silverio in his
certificate of live birth (birth certificate). His sex was registered as male.

The [c]ourt rules in the affirmative.

He further alleged that he is a male transsexual, that is, anatomically male

but feels, thinks and acts as a female and that he had always identified
himself with girls since childhood.[1] Feeling trapped in a mans body, he
consulted several doctors in the United States. He underwent psychological
examination, hormone treatment and breast augmentation. His attempts
to transform himself to a woman culminated on January 27, 2001 when he
underwent sex reassignment surgery[2] in Bangkok, Thailand. He was
thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and
reconstruction surgeon in the Philippines, who issued a medical certificate
attesting that he (petitioner) had in fact undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be
married. He then sought to have his name in his birth certificate changed
from Rommel Jacinto to Mely, and his sex from male to female.

An order setting the case for initial hearing was published in the Peoples
Journal Tonight, a newspaper of general circulation in Metro Manila, for
three consecutive weeks.[3] Copies of the order were sent to the Office of
the Solicitor General (OSG) and the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were

established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr. ReysioCruz, Jr. and his American fianc, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision [4] in favor of petitioner.
Its relevant portions read:

The sole issue here is whether or not petitioner is entitled to the relief
asked for.

Firstly, the [c]ourt is of the opinion that granting the petition would be
more in consonance with the principles of justice and equity. With his
sexual [re-assignment], petitioner, who has always felt, thought and acted
like a woman, now possesses the physique of a female. Petitioners
misfortune to be trapped in a mans body is not his own doing and should
not be in any way taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be
caused to anybody or the community in granting the petition. On the
contrary, granting the petition would bring the much-awaited happiness on
the part of the petitioner and her [fianc] and the realization of their
dreams.

Finally, no evidence was presented to show any cause or ground to deny

the present petition despite due notice and publication thereof. Even the
State, through the [OSG] has not seen fit to interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and

ordering the Civil Registrar of Manila to change the entries appearing in the
Certificate of Birth of [p]etitioner, specifically for petitioners first name
from Rommel Jacinto to MELY and petitioners gender from Male
to FEMALE. [5]

On August 18, 2003, the Republic of the Philippines (Republic), thru the
OSG, filed a petition for certiorari in the Court of Appeals. [6] It alleged that
there is no law allowing the change of entries in the birth certificate by
reason of sex alteration.

On February 23, 2006, the Court of Appeals [7] rendered a decision[8] in favor
of the Republic. It ruled that the trial courts decision lacked legal basis.
There is no law allowing the change of either name or sex in the certificate
of birth on the ground of sex reassignment through surgery. Thus, the

Court of Appeals granted the Republics petition, set aside the decision of
the trial court and ordered the dismissal of SP Case No. 02-105207.
Petitioner moved for reconsideration but it was denied.[9] Hence, this
petition.

Petitioner essentially claims that the change of his name and sex in his
birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules
103 and 108 of the Rules of Court and RA 9048.[10]

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In
particular, Section 1 of RA 9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change

of First Name or Nickname. No entry in a civil register shall be changed or
corrected without a judicial order, except for clerical or typographical errors
and change of first name or nickname which can be corrected or changed
by the concerned city or municipal civil registrar or consul general in
accordance with the provisions of this Act and its implementing rules and
regulations.

The petition lacks merit.

A PERSONS FIRST NAME CANNOT BE CHANGED ON THE GROUND

OF SEX REASSIGNMENT

Petitioner invoked his sex reassignment as the ground for his petition for
change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the
purpose of making his birth records compatible with his present
sex. (emphasis supplied)

Petitioner believes that after having acquired the physical features of a

female, he became entitled to the civil registry changes sought. We
disagree.

The State has an interest in the names borne by individuals and entities for
purposes of identification.[11] A change of name is a privilege, not a right.
[12]
Petitions for change of name are controlled by statutes.[13] In this
connection, Article 376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial
authority.

RA 9048 now governs the change of first name.[14] It vests the power and
authority to entertain petitions for change of first name to the city or
municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The
intent and effect of the law is to exclude the change of first name from the
coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and
unless an administrative petition for change of name is first filed and
subsequently denied.[15] It likewise lays down the corresponding venue,
[16]
form[17] and procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in nature, not
judicial.
RA 9048 likewise provides the grounds for which change of first name may
be allowed:

SECTION 4. Grounds for Change of First Name or Nickname. The petition

for change of first name or nickname may be allowed in any of the
following cases:

(1)
The petitioner finds the first name or nickname to be ridiculous,
tainted with dishonor or extremely difficult to write or pronounce;
(2)
The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly known by
that first name or nickname in the community; or
(3)

The change will avoid confusion.

Petitioners basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex

he thought he transformed himself into through surgery. However, a

change of name does not alter ones legal capacity or civil status. [18] RA
9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioners first
name for his declared purpose may only create grave complications in the
civil registry and the public interest.

Before a person can legally change his given name, he must present
proper or reasonable cause or any compelling reason justifying such
change.[19] In addition, he must show that he will be prejudiced by the use
of his true and official name.[20]In this case, he failed to show, or even
allege, any prejudice that he might suffer as a result of using his true and
official name.

In sum, the petition in the trial court in so far as it prayed for the change of
petitioners first name was not within that courts primary jurisdiction as the
petition should have been filed with the local civil registrar concerned,
assuming it could be legally done. It was an improper remedy because the
proper remedy was administrative, that is, that provided under RA 9048. It
was also filed in the wrong venue as the proper venue was in the Office of
the Civil Registrar of Manila where his birth certificate is kept. More
importantly, it had no merit since the use of his true and official name does
not prejudice him at all. For all these reasons, the Court of Appeals
correctly dismissed petitioners petition in so far as the change of his first
name was concerned.

NO LAW ALLOWS THE CHANGE OF ENTRY IN THE BIRTH

CERTIFICATE AS TO SEX ON THE GROUND OF SEX REASSIGNMENT
The determination of a persons sex appearing in his birth certificate is a
legal issue and the court must look to the statutes. [21] In this connection,
Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected
without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by
RA 9048 in so far as clerical or typographical errors are involved. The
correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors.[22] Rule 108 now applies only to substantial
changes and corrections in entries in the civil register. [23]
Section 2(c) of RA 9048 defines what a clerical or typographical error is:

SECTION 2. Definition of Terms. As used in this Act, the following terms

shall mean:
xxx xxx xxx
(3) Clerical or typographical error refers to a mistake committed in the
performance of clerical work in writing, copying, transcribing or typing an
entry in the civil register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the like, which is visible to
the eyes or obvious to the understanding, and can be corrected or changed
only by reference to other existing record or records: Provided,
however, That no correction must involve the change of nationality,
age, status or sex of the petitioner. (emphasis supplied)

Under RA 9048, a correction in the civil registry involving the change of sex
is not a mere clerical or typographical error. It is a substantial change for
which the applicable procedure is Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and correctable
under Rule 108 of the Rules of Court are those provided in Articles 407 and
408 of the Civil Code:[24]
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments
of marriage; (6) judgments declaring marriages void from the beginning;
(7) legitimations; (8) adoptions; (9) acknowledgments of natural children;
(10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil
interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth. [25] However, no
reasonable interpretation of the provision can justify the conclusion that it
covers the correction on the ground of sex reassignment.
To correct simply means to make or set aright; to remove the faults or error
from while to change means to replace something with something else of
the same kind or with something that serves as a substitute. [26] The birth
certificate of petitioner contained no error. All entries therein, including
those corresponding to his first name and sex, were all correct. No
correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate
children and naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as legal separations,
annulments of marriage, declarations of nullity of marriages, adoptions,
naturalization, loss or recovery of citizenship, civil interdiction, judicial
determination of filiation and changes of name). These acts, events and
judicial decrees produce legal consequences that touch upon the legal
capacity, status and nationality of a person. Their effects are expressly
sanctioned by the laws. In contrast, sex reassignment is not among those
acts or events mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.

Status refers to the circumstances affecting the legal situation (that is, the
sum total of capacities and incapacities) of a person in view of his age,
nationality and his family membership.[27]

The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or illegitimate,
or his being married or not. The comprehensive term status include such
matters as the beginning and end of legal personality, capacity to have
rights in general, family relations, and its various aspects, such as birth,
legitimation, adoption, emancipation, marriage, divorce, and sometimes
even succession.[28] (emphasis supplied)

A persons sex is an essential factor in marriage and family relations. It is a

part of a persons legal capacity and civil status. In this connection, Article
413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status shall
be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. The declaration of the
physician or midwife in attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child, shall be sufficient for the

registration of a birth in the civil register. Such declaration shall be exempt

from documentary stamp tax and shall be sent to the local civil registrar
not later than thirty days after the birth, by the physician or midwife in
attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the

following facts: (a) date and hour of birth; (b) sex and nationality of
infant; (c) names, citizenship and religion of parents or, in case the father
is not known, of the mother alone; (d) civil status of parents; (e) place
where the infant was born; and (f) such other data as may be required in
the regulations to be issued.

xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the
facts as they existed at the time of birth.[29] Thus, the sex of a person is
determined at birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering that there is
no law legally recognizing sex reassignment, the determination of a
persons sex made at the time of his or her birth, if not attended by error,
[30]
is immutable.[31]
When words are not defined in a statute they are to be given their common
and ordinary meaning in the absence of a contrary legislative intent. The
words sex, male and female as used in the Civil Register Law and laws
concerning the civil registry (and even all other laws) should therefore be
understood in their common and ordinary usage, there being no legislative
intent to the contrary. In this connection, sex is defined as the sum of
peculiarities of structure and function that distinguish a male from a
female[32] or the distinction between male and female.[33] Female is the sex
that produces ova or bears young[34] and male is the sex that has organs to
produce spermatozoa for fertilizing ova.[35] Thus, the words male and
female in everyday understanding do not include persons who have
undergone sex reassignment. Furthermore, words that are employed in a
statute which had at the time a well-known meaning are presumed to have
been used in that sense unless the context compels to the contrary.
[36]
Since the statutory language of the Civil Register Law was enacted in
the early 1900s and remains unchanged, it cannot be argued that the term
sex as used then is something alterable through surgery or something that
allows a post-operative male-to-female transsexual to be included in the
category female.
For these reasons, while petitioner may have succeeded in altering his
body and appearance through the intervention of modern surgery, no law

authorizes the change of entry as to sex in the civil registry for that reason.
Thus, there is no legal basis for his petition for the correction or change of
the entries in his birth certificate.
NEITHER MAY ENTRIES IN THE BIRTH CERTIFICATE AS TO FIRST
NAME OR SEX BE CHANGED ON THE GROUND OF EQUITY
The trial court opined that its grant of the petition was in consonance with
the principles of justice and equity. It believed that allowing the petition
would cause no harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal
and public policy consequences. First, even the trial court itself found that
the petition was but petitioners first step towards his eventual marriage to
his male fianc. However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between a man and a
woman.[37] One of its essential requisites is the legal capacity of the
contracting parties who must be a male and a female.[38] To grant the
changes sought by petitioner will substantially reconfigure and greatly
alter the laws on marriage and family relations. It will allow the union of a
man with another man who has undergone sex reassignment (a male-tofemale post-operative transsexual). Second, there are various laws which
apply particularly to women such as the provisions of the Labor Code on
employment of women,[39] certain felonies under the Revised Penal
Code[40] and the presumption of survivorship in case of calamities under
Rule 131 of the Rules of Court,[41] among others. These laws underscore the
public policy in relation to women which could be substantially affected if
petitioners petition were to be granted.
It is true that Article 9 of the Civil Code mandates that [n]o judge or court
shall decline to render judgment by reason of the silence, obscurity or
insufficiency of the law. However, it is not a license for courts to engage in
judicial legislation. The duty of the courts is to apply or interpret the law,
not to make or amend it.
In our system of government, it is for the legislature, should it choose to do
so, to determine what guidelines should govern the recognition of the
effects of sex reassignment. The need for legislative guidelines becomes
particularly important in this case where the claims asserted are statutebased.
To reiterate, the statutes define who may file petitions for change of first
name and for correction or change of entries in the civil registry, where
they may be filed, what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If the legislature intends
to confer on a person who has undergone sex reassignment the privilege
to change his name and sex to conform with his reassigned sex, it has to
enact legislation laying down the guidelines in turn governing the
conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when

a person may be recognized as having successfully changed his sex.
However, this Court has no authority to fashion a law on that matter, or on
anything else. The Court cannot enact a law where no law exists. It can
only apply or interpret the written word of its co-equal branch of
government, Congress.
Petitioner pleads that [t]he unfortunates are also entitled to a life of
happiness, contentment and [the] realization of their dreams. No argument
about that. The Court recognizes that there are people whose preferences
and orientation do not fit neatly into the commonly recognized parameters
of social convention and that, at least for them, life is indeed an ordeal.
However, the remedies petitioner seeks involve questions of public policy
to be addressed solely by the legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
RENATO C. CORONA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson

ANGELINA SANDOVAL-GUTIERREZ ADOLFO S. AZCUNA

Associate Justice Associate Justice

CANCIO C. GARCIA
Associate Justice

CERTIFICATION

Wang v. Cebu City Civil Registrar, G.R. No. 159966, 30 March 2005, 454
SCRA 155.
[11]

[12]

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.

Id.

K v. Health Division, Department of Human Resources, 277 Or. 371, 560

P.2d 1070 (1977).
[13]

Under Section 2 (6) of RA 9048, first name refers to a name or nickname

given to a person which may consist of one or more names in addition to
the middle names and last names. Thus, the term first name will be used
here to refer both to first name and nickname.
[14]

REYNATO S. PUNO
Chief Justice

Petitioner went for his elementary and high school, as well as his
Bachelor of Science in Statistics and Master of Arts, in the University of the
Philippines. He took up Population Studies Program, Master of Arts in
Sociology and Doctor of Philosophy in Sociology at the University of Hawaii,
in Manoa, Hawaii, U.S.A. Rollo, p. 48.
[1]

This consisted of penectomy [surgical removal of penis] bilateral

oschiectomy [or orchiectomy which is the surgical excision of the
testes] penile skin inversion vaginoplasty [plastic surgery of the vagina]
clitoral hood reconstruction and augmentation mammoplasty [surgical
enhancement of the size and shape of the breasts]. Id.
[2]

[3]

On January 23, 2003, January 30, 2003 and February 6, 2003.

[4]

Penned by Judge Felixberto T. Olalia, Jr. Rollo, pp. 51-53.

[5]

Id., pp. 52-53 (citations omitted).

[6]

Docketed as CA-G.R. SP No. 78824.

[7]

Special Sixth Division.

Penned by Associate Justice Arcangelita M. Romilla-Lontok with Associate

Justices Marina L. Buzon and Aurora Santiago-Lagman concurring. Rollo,
pp. 25-33.
[8]

[9]

[15]

The last paragraph of Section 7 of RA 9048 provides:

SECTION 7. Duties and Powers of the Civil Registrar General. xxx xxx xxx
Where the petition is denied by the city or municipal civil registrar or the
consul general, the petitioner may either appeal the decision to the civil
registrar general or file the appropriate petition with the proper court.
SECTION 3. Who May File the Petition and Where. Any person having
direct and personal interest in the correction of a clerical or typographical
error in an entry and/or change of first name or nickname in the civil
register may file, in person, a verified petition with the local civil registry
office of the city or municipality where the record being sought to be
corrected or changed is kept.
[16]

In case the petitioner has already migrated to another place in the country
and it would not be practical for such party, in terms of transportation
expenses, time and effort to appear in person before the local civil
registrar keeping the documents to be corrected or changed, the petition
may be filed, in person, with the local civil registrar of the place where the
interested party is presently residing or domiciled. The two (2) local civil
registrars concerned will then communicate to facilitate the processing of
the petition.

Citizens of the Philippines who are presently residing or domiciled in

foreign countries may file their petition, in person, with the nearest
Philippine Consulates.

Resolution dated September 14, 2006, id., pp. 45-46.

An Act Authorizing the City or Municipal Civil Registrar or the Consul

General to Correct a Clerical or Typographical Error in an Entry and/or
Change of First Name or Nickname in the Civil Register Without Need of a
Judicial Order, Amending for the Purpose Articles 376 and 412 of the Civil
Code of the Philippines.
[10]

The petitions filed with the city or municipal civil registrar or the consul
general shall be processed in accordance with this Act and its
implementing rules and regulations.

All petitions for the clerical or typographical errors and/or change of first
names or nicknames may be availed of only once.
SECTION 5. Form and Contents of the Petition. The petition shall be in
the form of an affidavit, subscribed and sworn to before any person
authorized by the law to administer oaths. The affidavit shall set forth facts
necessary to establish the merits of the petition and shall show
affirmatively that the petitioner is competent to testify to the matters
stated. The petitioner shall state the particular erroneous entry or entries,
which are sought to be corrected and/or the change sought to be made.
[17]

The petition shall be supported with the following documents:

(1)
A certified true machine copy of the certificate or of the page of
the registry book containing the entry or entries sought to be corrected or
changed;
(2)
At least two (2) public or private documents showing the correct
entry or entries upon which the correction or change shall be based; and
(3)
Other documents which the petitioner or the city or municipal
civil registrar or the consul general may consider relevant and necessary
for the approval of the petition.

In case of change of first name or nickname, the petition shall likewise be

supported with the documents mentioned in the immediately preceding
paragraph. In addition, the petition shall be published at least once a week
for two (2) consecutive weeks in a newspaper of general circulation.
Furthermore, the petitioner shall submit a certification from the appropriate
law enforcement agencies that he has no pending case or no criminal
record.

FIRST DIVISION

MICHAEL C. GUY, G.R. No. 163707

Petitioner,

Present:
Panganiban, C.J. (Chairperson),
- versus - Ynares-Santiago,
Austria-Martinez,

On June 13, 1997, private respondent-minors Karen Oanes Wei and Kamille
Oanes Wei, represented by their mother Remedios Oanes (Remedios), filed
a petition for letters of administration[5] before
the Regional Trial Court of Makati City, Branch 138. The case was docketed
as Sp. Proc. No. 4549 and entitled Intestate Estate of Sima Wei (a.k.a.
Rufino Guy Susim).

Callejo, Sr., and

Chico-Nazario, JJ.
HON. COURT OF APPEALS,
HON. SIXTO MARELLA, JR.,
Presiding Judge, RTC, Branch 138,
Makati City and minors, KAREN
DANES WEI and KAMILLE DANES
WEI, represented by their mother, Promulgated:

Private respondents alleged that they are the duly acknowledged

illegitimate children of Sima Wei, who died intestate
in Makati City on October 29, 1992, leaving an estate valued at
P10,000,000.00 consisting of real and personal properties. His known heirs
are his surviving spouse Shirley Guy and children, Emy, Jeanne, Cristina,
George and Michael, all surnamed Guy. Private respondents prayed for the
appointment of a regular administrator for the orderly settlement of Sima
Weis estate. They likewise prayed that, in the meantime, petitioner Michael
C. Guy, son of the decedent, be appointed as Special Administrator of the
estate. Attached to private respondents petition was a Certification Against
Forum Shopping[6] signed by their counsel, Atty. Sedfrey A. Ordoez.

REMEDIOS OANES,
Respondents. September 15, 2006
x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari assails the January 22, 2004
Decision[1] of the Court of Appeals in CA-G.R. SP No. 79742, which affirmed
the Orders dated July 21, 2000[2] and July 17, 2003[3] of the Regional Trial
Court of Makati City, Branch 138 in SP Proc. Case No. 4549 denying
petitioners motion to dismiss; and its May 25, 2004 Resolution[4] denying
petitioners motion for reconsideration.

The facts are as follows:

In his Comment/Opposition,[7] petitioner prayed for the dismissal of the

petition. He asserted that his deceased father left no debts and that his
estate can be settled without securing letters of administration pursuant to
Section 1, Rule 74 of the Rules of Court. He further argued that private
respondents should have established their status as illegitimate children
during the lifetime of Sima Wei pursuant to Article 175 of the Family Code.

The other heirs of Sima Wei filed a Joint Motion to Dismiss [8] on the ground
that the certification against forum shopping should have been signed by
private respondents and not their counsel. They contended that Remedios
should have executed the certification on behalf of her minor daughters as
mandated by Section 5, Rule 7 of the Rules of Court.

In a Manifestation/Motion as Supplement to the Joint Motion to Dismiss,

[9]
petitioner and his co-heirs alleged that private respondents claim had
been paid, waived, abandoned or otherwise extinguished by reason of
Remedios June 7, 1993 Release and Waiver of Claim stating that in
exchange for the financial and educational assistance received from
petitioner, Remedios and her minor children discharge the estate of Sima
Wei from any and all liabilities.

The Regional Trial Court denied the Joint Motion to Dismiss as well as the
Supplemental Motion to Dismiss. It ruled that while the Release and Waiver
of Claim was signed by Remedios, it had not been established that she was
the duly constituted guardian of her minor daughters. Thus, no
renunciation of right occurred. Applying a liberal application of the rules,
the trial court also rejected petitioners objections on the certification
against forum shopping.

Petitioner moved for reconsideration but was denied. He filed a petition for
certiorari before the Court of Appeals which affirmed the orders of the
Regional Trial Court in its assailed Decision dated January 22, 2004, the
dispositive portion of which states:

WHEREFORE, premises considered, the present petition is hereby DENIED

DUE COURSE and accordingly DISMISSED, for lack of merit. Consequently,
the assailed Orders dated July 21, 2000 and July 17, 2003 are hereby both
AFFIRMED. Respondent Judge is hereby DIRECTED to resolve the
controversy over the illegitimate filiation of the private respondents (sic)
minors [-] Karen Oanes Wei and Kamille Oanes Wei who are claiming
successional rights in the intestate estate of the deceased Sima Wei, a.k.a.
Rufino Guy Susim.

SO ORDERED.[10]

The Court of Appeals denied petitioners motion for reconsideration, hence,

this petition.

Petitioner argues that the Court of Appeals disregarded existing rules on

certification against forum shopping; that the Release and Waiver of Claim
executed by Remedios released and discharged the Guy family and the
estate of Sima Wei from any claims or liabilities; and that private
respondents do not have the legal personality to institute the petition for
letters of administration as they failed to prove their filiation during the
lifetime of Sima Wei in accordance with Article 175 of the Family Code.

Private respondents contend that their counsels certification can be

considered substantial compliance with the rules on certification of nonforum shopping, and that the petition raises no new issues to warrant the

reversal of the decisions of the Regional Trial Court and the Court of
Appeals.

The issues for resolution are: 1) whether private respondents petition

should be dismissed for failure to comply with the rules on certification of
non-forum shopping; 2) whether the Release and Waiver of Claim
precludes private respondents from claiming their successional rights; and
3) whether private respondents are barred by prescription from proving
their filiation.

The petition lacks merit.

Rule 7, Section 5 of the Rules of Court provides that the certification of

non-forum shopping should be executed by the plaintiff or the principal
party. Failure to comply with the requirement shall be cause for dismissal of
the case. However, a liberal application of the rules is proper where the
higher interest of justice would be served. In Sy Chin v. Court of Appeals,
[11]
we ruled that while a petition may have been flawed where the
certificate of non-forum shopping was signed only by counsel and not by
the party, this procedural lapse may be overlooked in the interest of
substantial justice.[12] So it is in the present controversy where the
merits[13] of the case and the absence of an intention to violate the rules
with impunity should be considered as compelling reasons to temper the
strict application of the rules.

As regards Remedios Release and Waiver of Claim, the same does not bar
private respondents from claiming successional rights. To be valid and
effective, a waiver must be couched in clear and unequivocal terms which
leave no doubt as to the intention of a party to give up a right or benefit
which legally pertains to him. A waiver may not be attributed to a person
when its terms do not explicitly and clearly evince an intent to abandon a
right.[14]

In this case, we find that there was no waiver of hereditary rights. The
Release and Waiver of Claim does not state with clarity the purpose of its
execution. It merely states that Remedios received P300,000.00 and an
educational plan for her minor daughters by way of financial assistance
and in full settlement of any and all claims of whatsoever nature and kind x
x x against the estate of the late Rufino Guy Susim.[15] Considering that the
document did not specifically mention private respondents hereditary

share in the estate of Sima Wei, it cannot be construed as a waiver of

successional rights.

petitioner claims that they do not have such right. Hence, petitioners
invocation of waiver on the part of private respondents must fail.

Moreover, even assuming that Remedios truly waived the hereditary rights
of private respondents, such waiver will not bar the latters claim. Article
1044 of the Civil Code, provides:

Anent the issue on private respondents filiation, we agree with the Court of
Appeals that a ruling on the same would be premature considering that
private respondents have yet to present evidence. Before the Family Code
took effect, the governing law on actions for recognition of illegitimate
children was Article 285 of the Civil Code, to wit:

ART. 1044. Any person having the free disposal of his property may accept
or repudiate an inheritance.

Any inheritance left to minors or incapacitated persons may be

accepted by their parents or guardians. Parents or guardians may
repudiate the inheritance left to their wards only by judicial
authorization.

The right to accept an inheritance left to the poor shall belong to the
persons designated by the testator to determine the beneficiaries and
distribute the property, or in their default, to those mentioned in Article
1030. (Emphasis supplied)

Parents and guardians may not therefore repudiate the inheritance of their
wards without judicial approval. This is because repudiation amounts to an
alienation of property[16] which must pass the courts scrutiny in order to
protect the interest of the ward. Not having been judicially authorized, the
Release and Waiver of Claim in the instant case is void and will not bar
private respondents from asserting their rights as heirs of the deceased.

Furthermore, it must be emphasized that waiver is the intentional

relinquishment of a known right. Where one lacks knowledge of a right,
there is no basis upon which waiver of it can rest. Ignorance of a material
fact negates waiver, and waiver cannot be established by a consent given
under a mistake or misapprehension of fact.[17]

In the present case, private respondents could not have possibly waived
their successional rights because they are yet to prove their status as
acknowledged illegitimate children of the deceased. Petitioner himself has
consistently denied that private respondents are his co-heirs. It would thus
be inconsistent to rule that they waived their hereditary rights when

ART. 285. The action for the recognition of natural children may be brought
only during the lifetime of the presumed parents, except in the following
cases:

(1) If the father or mother died during the minority of the child, in
which case the latter may file the action before the expiration of
four years from the attainment of his majority;

(2) If after the death of the father or of the mother a document should
appear of which nothing had been heard and in which either or both
parents recognize the child.

In this case, the action must be commenced within four years from the
finding of the document. (Emphasis supplied)

We ruled in Bernabe v. Alejo[18] that illegitimate children who were still

minors at the time the Family Code took effect and whose putative parent
died during their minority are given the right to seek recognition for a
period of up to four years from attaining majority age. This vested right
was not impaired or taken away by the passage of the Family Code. [19]

On the other hand, Articles 172, 173 and 175 of the Family Code, which
superseded Article 285 of the Civil Code, provide:

ART. 172. The filiation of legitimate children is established by any of the

following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private

handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be

proved by:

(1) The open and continuous possession of the status of a legitimate child;
or

(2) Any other means allowed by the Rules of Court and special laws.

ART. 173. The action to claim legitimacy may be brought by the child
during his or her lifetime and shall be transmitted to the heirs should the
child die during minority or in a state of insanity. In these cases, the heirs
shall have a period of five years within which to institute the action.

The action already commenced by the child shall survive notwithstanding

the death of either or both of the parties.
ART. 175. Illegitimate children may establish their illegitimate filiation in
the same way and on the same, evidence as legitimate children.
The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172, in
which case the action may be brought during the lifetime of the alleged
parent.
Under the Family Code, when filiation of an illegitimate child is established
by a record of birth appearing in the civil register or a final judgment, or an
admission of filiation in a public document or a private handwritten
instrument signed by the parent concerned, the action for recognition may
be brought by the child during his or her lifetime. However, if the action is
based upon open and continuous possession of the status of an illegitimate
child, or any other means allowed by the rules or special laws, it may only
be brought during the lifetime of the alleged parent.
It is clear therefore that the resolution of the issue of prescription depends
on the type of evidence to be adduced by private respondents in proving

their filiation. However, it would be impossible to determine the same in

this case as there has been no reception of evidence yet. This Court is not
a trier of facts. Such matters may be resolved only by the Regional Trial
Court after a full-blown trial.
While the original action filed by private respondents was a petition for
letters of administration, the trial court is not precluded from receiving
evidence on private respondents filiation. Its jurisdiction extends to
matters incidental and collateral to the exercise of its recognized powers in
handling the settlement of the estate, including the determination of the
status of each heir.[20] That the two causes of action, one to compel
recognition and the other to claim inheritance, may be joined in one
complaint is not new in our jurisprudence. [21] As held in Briz v. Briz:[22]

The question whether a person in the position of the present plaintiff can in
any event maintain a complex action to compel recognition as a natural
child and at the same time to obtain ulterior relief in the character of heir,
is one which in the opinion of this court must be answered in the
affirmative, provided always that the conditions justifying the joinder of the
two distinct causes of action are present in the particular case. In other
words, there is no absolute necessity requiring that the action to compel
acknowledgment should have been instituted and prosecuted to a
successful conclusion prior to the action in which that same plaintiff seeks
additional relief in the character of heir. Certainly, there is nothing so
peculiar to the action to compel acknowledgment as to require that a rule
should be here applied different from that generally applicable in other
cases. x x x
The conclusion above stated, though not heretofore explicitly formulated
by this court, is undoubtedly to some extent supported by our prior
decisions. Thus, we have held in numerous cases, and the doctrine must
be considered well settled, that a natural child having a right to compel
acknowledgment, but who has not been in fact acknowledged, may
maintain partition proceedings for the division of the inheritance against
his coheirs (Siguiong vs. Siguiong, 8 Phil., 5; Tiamson vs. Tiamson, 32 Phil.,
62); and the same person may intervene in proceedings for the distribution
of the estate of his deceased natural father, or mother (Capistrano vs.
Fabella, 8 Phil., 135; Conde vs. Abaya, 13 Phil., 249; Ramirez vs. Gmur, 42
Phil., 855). In neither of these situations has it been thought necessary for
the plaintiff to show a prior decree compelling acknowledgment. The
obvious reason is that in partition suits and distribution proceedings the
other persons who might take by inheritance are before the court; and the
declaration of heirship is appropriate to such proceedings.
WHEREFORE, the instant petition is DENIED. The Decision dated January
22, 2004 of the Court of Appeals in CA-G.R. SP No. 79742 affirming the
denial of petitioners motion to dismiss; and its Resolution dated May 25,

2004 denying petitioners motion for reconsideration, are AFFIRMED. Let

the records be REMANDED to the Regional Trial Court of Makati City,
Branch 138 for further proceedings.

CERTIFICATION
SO ORDERED.

CONSUELO YNARES-SANTIAGO
Associate Justice

WE CONCUR:

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.

ARTEMIO V. PANGANIBAN
Chief Justice

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

THIRD DIVISION

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

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs.
REDERICK A. RECIO, respondent.
DECISION
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the national law of
the foreigner. However, the divorce decree and the governing personal law
of the alien spouse who obtained the divorce must be proven. Our courts
do not take judicial notice of foreign laws and judgments; hence, like any
other facts, both the divorce decree and the national law of the alien must
be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court,
seeking to nullify the January 7, 1999 Decision[1] and the March 24, 1999
Order[2] of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil
Case No. 3026AF. The assailed Decision disposed as follows:
WHEREFORE, this Court declares the marriage between Grace J. Garcia and
Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as
dissolved and both parties can now remarry under existing and applicable
laws to any and/or both parties.[3]
The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian
citizen, in Malabon, Rizal, on March 1, 1987.[4] They lived together as
husband and wife in Australia. On May 18, 1989, [5] a decree of divorce,
purportedly dissolving the marriage, was issued by an Australian family
court.
On June 26, 1992, respondent became an Australian citizen, as shown by a
Certificate of Australian Citizenship issued by the Australian government.
[6]
Petitioner -- a Filipina -- and respondent were married on January 12,
1994 in Our Lady of Perpetual Help Church in Cabanatuan City. [7]In
their application for a marriage license, respondent was declared as single
and Filipino.[8]
Starting October 22, 1995, petitioner and respondent lived separately
without prior judicial dissolution of their marriage. While the two were still
in Australia, their conjugal assets were divided on May 16, 1996, in
accordance with their Statutory Declarations secured in Australia. [9]

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of

Marriage[10] in the court a quo, on the ground of bigamy -- respondent
allegedly had a prior subsisting marriage at the time he married her on
January 12, 1994. She claimed that she learned of respondents marriage to
Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had
revealed to petitioner his prior marriage and its subsequent dissolution.
[11]
He contended that his first marriage to an Australian citizen had been
validly dissolved by a divorce decree obtained in Australia in 1989; [12] thus,
he was legally capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couples wedding and while
the suit for the declaration of nullity was pending -- respondent was able to
secure a divorce decree from a family court in Sydney, Australia because
the marriage ha[d] irretrievably broken down.[13]
Respondent prayed in his Answer that the Complaint be dismissed on the
ground that it stated no cause of action.[14] The Office of the Solicitor
General agreed with respondent.[15] The court marked and admitted the
documentary evidence of both parties.[16] After they submitted their
respective memoranda, the case was submitted for resolution. [17]
Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the
divorce issued in Australia was valid and recognized in the Philippines. It
deemed the marriage ended, but not on the basis of any defect in an
essential element of the marriage; that is, respondents alleged lack of
legal capacity to remarry. Rather, it based its Decision on the divorce
decree obtained by respondent. The Australian divorce had ended the
marriage; thus, there was no more marital union to nullify or annul.
Hence, this Petition.[18]
Issues
Petitioner submits the following issues for our consideration:
1
The trial court gravely erred in finding that the divorce decree obtained in
Australia by the respondent ipso facto terminated his first marriage to
Editha Samson thereby capacitating him to contract a second marriage
with the petitioner.
2

The failure of the respondent, who is now a naturalized Australian, to

present a certificate of legal capacity to marry constitutes absence of a
substantial requisite voiding the petitioners marriage to the respondent
3
The trial court seriously erred in the application of Art. 26 of the Family
Code in this case.
4
The trial court patently and grievously erred in disregarding Arts. 11, 13,
21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in
this case.
5
The trial court gravely erred in pronouncing that the divorce decree
obtained by the respondent in Australia ipso facto capacitated the parties
to remarry, without first securing a recognition of the judgment granting
the divorce decree before our courts.[19]
The Petition raises five issues, but for purposes of this Decision, we shall
concentrate on two pivotal ones: (1) whether the divorce between
respondent and Editha Samson was proven, and (2) whether respondent
was proven to be legally capacitated to marry petitioner. Because of our
ruling on these two, there is no more necessity to take up the rest.
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial courts recognition of the divorce between
respondent and Editha Samson. Citing Adong v. Cheong Seng Gee,
[20]
petitioner argues that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction only upon proof of
the existence of (1) the foreign law allowing absolute divorce and (2) the
alleged divorce decree itself. She adds that respondent miserably failed to
establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the
Family Code, marriages solemnized abroad are governed by the law of the
place where they were celebrated (the lex loci celebrationis). In effect, the
Code requires the presentation of the foreign law to show the conformity of
the marriage in question to the legal requirements of the place where the
marriage was performed.

At the outset, we lay the following basic legal principles as the take-off
points for our discussion. Philippine law does not provide for absolute
divorce; hence, our courts cannot grant it.[21] A marriage between two
Filipinos cannot be dissolved even by a divorce obtained abroad, because
of Articles 15[22] and 17[23] of the Civil Code.[24] In mixed marriages involving
a Filipino and a foreigner, Article 26[25] of the Family Code allows the former
to contract a subsequent marriage in case the divorce is validly obtained
abroad by the alien spouse capacitating him or her to remarry. [26] A divorce
obtained abroad by a couple, who are both aliens, may be recognized in
the Philippines, provided it is consistent with their respective national laws.
[27]

A comparison between marriage and divorce, as far as pleading and proof

are concerned, can be made. Van Dorn v. Romillo Jr. decrees that aliens
may obtain divorces abroad, which may be recognized in the Philippines,
provided they are valid according to their national law.[28]Therefore, before
a foreign divorce decree can be recognized by our courts, the party
pleading it must prove the divorce as a fact and demonstrate its
conformity to the foreign law allowing it.[29] Presentation solely of the
divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence,
it must first comply with the registration requirements under Articles 11,
13 and 52 of the Family Code. These articles read as follows:
ART. 11. Where a marriage license is required, each of the contracting
parties shall file separately a sworn application for such license with the
proper local civil registrar which shall specify the following:
xxxxxxxxx
(5) If previously married, how, when and where the previous marriage was
dissolved or annulled;
xxxxxxxxx
ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to
ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to furnish, instead of the birth or
baptismal certificate required in the last preceding article, the death
certificate of the deceased spouse or the judicial decree of the absolute
divorce, or the judicial decree of annulment or declaration of nullity of his
or her previous marriage. x x x.
ART. 52. The judgment of annulment or of absolute nullity of the marriage,
the partition and distribution of the properties of the spouses, and the
delivery of the childrens presumptive legitimes shall be recorded in the

appropriate civil registry and registries of property; otherwise, the same

shall not affect their persons.
Respondent, on the other hand, argues that the Australian divorce decree
is a public document -- a written official act of an Australian family
court. Therefore, it requires no further proof of its authenticity and due
execution.
Respondent is getting ahead of himself. Before a foreign judgment is given
presumptive evidentiary value, the document must first be presented and
admitted in evidence.[30] A divorce obtained abroad is proven by the
divorce decree itself. Indeed the best evidence of a judgment is the
judgment itself.[31] The decree purports to be a written act or record of an
act of an official body or tribunal of a foreign country. [32]
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or
document may be proven as a public or official record of a foreign country
by either (1) an official publication or (2) a copy thereof attested[33] by the
officer having legal custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a certificate issued by
the proper diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office. [34]
The divorce decree between respondent and Editha Samson appears to be
an authentic one issued by an Australian family court. [35] However,
appearance is not sufficient; compliance with the aforementioned rules on
evidence must be demonstrated.
Fortunately for respondents cause, when the divorce decree of May 18,
1989 was submitted in evidence, counsel for petitioner objected, not to its
admissibility, but only to the fact that it had not been registered in the
Local Civil Registry of Cabanatuan City.[36] The trial court ruled that it was
admissible, subject to petitioners qualification. [37] Hence, it was admitted in
evidence and accorded weight by the judge. Indeed, petitioners failure to
object properly rendered the divorce decree admissible as a written act of
the Family Court of Sydney, Australia.[38]
Compliance with the quoted articles (11, 13 and 52) of the Family Code is
not necessary; respondent was no longer bound by Philippine personal
laws after he acquired Australian citizenship in 1992. [39] Naturalization is
the legal act of adopting an alien and clothing him with the political and
civil rights belonging to a citizen.[40] Naturalized citizens, freed from the
protective cloak of their former states, don the attires of their adoptive
countries. By becoming an Australian, respondent severed his allegiance to
the Philippines and the vinculum juris that had tied him to Philippine
personal laws.
Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law falls
upon petitioner, because she is the party challenging the validity of a
foreign judgment. He contends that petitioner was satisfied with the
original of the divorce decree and was cognizant of the marital laws of
Australia, because she had lived and worked in that country for quite a
long time. Besides, the Australian divorce law is allegedly known by
Philippine courts; thus, judges may take judicial notice of foreign laws in
the exercise of sound discretion.
We are not persuaded. The burden of proof lies with the party who alleges
the existence of a fact or thing necessary in the prosecution or defense of
an action.[41] In civil cases, plaintiffs have the burden of proving the
material allegations of the complaint when those are denied by the
answer; and defendants have the burden of proving the material
allegations in their answer when they introduce new matters. [42] Since the
divorce was a defense raised by respondent, the burden of proving the
pertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial
notice of foreign laws.[43] Like any other facts, they must be alleged and
proved. Australian marital laws are not among those matters that judges
are supposed to know by reason of their judicial function. [44] The power of
judicial notice must be exercised with caution, and every reasonable doubt
upon the subject should be resolved in the negative.
Second Issue: Respondents Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce,
respondent was legally incapacitated to marry her in 1994. Hence, she
concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly
admitted in evidence, adequately established his legal capacity to marry
under Australian law.
Respondents contention is untenable. In its strict legal
sense, divorce means the legal dissolution of a lawful union for a cause
arising after marriage. But divorces are of different types. The two basic
ones are (1) absolute divorce or a vinculo matrimonii and (2) limited
divorce or a mensa et thoro. The first kind terminates the marriage, while
the second suspends it and leaves the bond in full force. [45] There is no
showing in the case at bar which type of divorce was procured by
respondent.
Respondent presented a decree nisi or an interlocutory decree -- a
conditional or provisional judgment of divorce. It is in effect the same as a
separation from bed and board, although an absolute divorce may follow
after the lapse of the prescribed period during which no reconciliation is
effected.[46]

Even after the divorce becomes absolute, the court may under some
foreign statutes and practices, still restrict remarriage. Under some other
jurisdictions, remarriage may be limited by statute; thus, the guilty party in
a divorce which was granted on the ground of adultery may be prohibited
from marrying again. The court may allow a remarriage only after proof of
good behavior.[47]
On its face, the herein Australian divorce decree contains a restriction that
reads:
1. A party to a marriage who marries again before this decree becomes
absolute (unless the other party has died) commits the offence of bigamy.
[48]

This quotation bolsters our contention that the divorce obtained by

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

(d) Exhibit D Office of the City Registrar of Cabanatuan City Certification

that no information of annulment between Rederick A. Recio and Editha D.
Samson was in its records;[54] and (e) Exhibit E Certificate of Australian
Citizenship of Rederick A. Recio;[55] (2) for respondent: (a) Exhibit 1 -Amended Answer;[56] (b) Exhibit 2 Family Law Act 1975 Decree Nisi of
Dissolution of Marriage in the Family Court of Australia;[57] (c) Exhibit 3
Certificate of Australian Citizenship of Rederick A. Recio; [58] (d) Exhibit 4
Decree Nisi of Dissolution of Marriage in the Family Court of Australia
Certificate;[59] and Exhibit 5 -- Statutory Declaration of the Legal Separation
Between Rederick A. Recio and Grace J. Garcia Recio since October 22,
1995.[60]
[53]

Based on the above records, we cannot conclude that respondent, who was
then a naturalized Australian citizen, was legally capacitated to marry
petitioner on January 12, 1994. We agree with petitioners contention that
the court a quo erred in finding that the divorce decree ipso facto clothed
respondent with the legal capacity to remarry without requiring him to
adduce sufficient evidence to show the Australian personal law governing
his status; or at the very least, to prove his legal capacity to contract the
second marriage.
Neither can we grant petitioners prayer to declare her marriage to
respondent null and void on the ground of bigamy. After all, it may turn out
that under Australian law, he was really capacitated to marry petitioner as
a direct result of the divorce decree. Hence, we believe that the most
judicious course is to remand this case to the trial court to receive
evidence, if any, which show petitioners legal capacity to marry
petitioner. Failing in that, then the court a quo may declare a nullity of the
parties marriage on the ground of bigamy, there being already in evidence
two existing marriage certificates, which were both obtained in the
Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the
other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice,
we REMAND the case to the court a quo for the purpose of receiving
evidence which conclusively show respondents legal capacity to marry
petitioner; and failing in that, of declaring the parties marriage void on the
ground of bigamy, as above discussed. No costs.

[50]

SO ORDERED.

As it is, however, there is absolutely no evidence that proves respondents

legal capacity to marry petitioner. A review of the records before this Court
shows that only the following exhibits were presented before the lower
court: (1) for petitioner: (a) Exhibit A Complaint;[51] (b) Exhibit B Certificate
of Marriage Between Rederick A. Recio (Filipino-Australian) and Grace J.
Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija; [52] (c)
Exhibit C Certificate of Marriage Between Rederick A. Recio (Filipino) and
Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila;

Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.

[1]

Penned by Judge Feliciano V. Buenaventura; rollo, pp. 7-9.

[2]

Rollo, p. 10.

[3]

Ibid., p. 9.

ART. 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
executed.

[4]

Rollo, p. 37.

xxxxxxxxx

[5]

Ibid., p. 47.

[6]

Id., p. 44.

[7]

Id., p. 36.

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.

[8]

Annex 1; temporary rollo, p. 9.

The couple secured an Australian Statutory Declaration of their legal

separation and division of conjugal assets.
[9]

See Annexes 3 and 4 of Respondents Comment; rollo, p. 48.

[10]

Id., pp. 33-35.

[11]

Id., p. 39.

[12]

Amended Answer, p. 2; rollo, p. 39.

[13]

Id., pp. 77-78.

[14]

Id., p. 43.

[15]

Rollo, pp. 48-51.

[16]

TSN, December 16, 1998, pp. 1-8; records, pp. 172-179.

[17]

RTC Order of December 16, 1998; ibid., p. 203.

[23]

Tenchaves v. Escano 15 SCRA 355, 362, November 29, 1965; Barretto

Gonzalez v. Gonzalez, 58 Phil. 67, 71-72, March 7, 1933.
[24]

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. (71a)
[25]

Where a marriage between a Filipino citizen and a foreigner is validly

celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (As amended by EO 227, prom.
July 27, 1987)
Cf. Van Dorn v. Romillo Jr., 139 SCRA 139, 143-144, October 8, 1985;
and Pilapil v. Ibay-Somera, 174 SCRA 653, 663, June 30, 1989.
[26]

[27]

Van Dorn v. Romillo Jr., supra.

[28]

Ibid., p. 143.

For a detailed discussion of Van Dorn, see Salonga, Private International

Law, 1995 ed. pp. 295-300. See also Jose C. Vitug, Compendium of Civil
Law and Jurisprudence, 1993 ed., p. 16;
[29]

The case was deemed submitted for decision on January 11, 2000, upon
this Courts receipt of the Memorandum for petitioner, signed by Atty. Olivia
Velasco-Jacoba. The Memorandum for respondent, signed by Atty. Gloria V.
Gomez of Gomez and Associates, had been filed on December 10, 1999.
[18]

[19]

Petitioners Memorandum, pp. 8-9; rollo, pp. 242-243.

[20]

43 Phil. 43, 49, March 3, 1922.

Ruben F. Balane, Family Courts and Significant Jurisprudence in Family

Law, Journal of the Integrated Bar of the Philippines, 1st & 2nd Quarters,
2001, Vol. XXVII, No. 1, p. 25.
[21]

ART. 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens of the
Philippines, even though living abroad.
[22]

SEC. 19. Classes of documents.For the purpose of their presentation in

evidence, documents are either public or private.
[30]

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether in the
Philippines, or of a foreign country.
x x x x x x x x x.
Burr W. Jones, Commentaries on the Law of Evidence in Civil Cases, Vol.
IV, 1926 ed., p. 3511; 3, Rule 130 of the Rules on Evidence provides that
when the subject of inquiry is the contents of a document, no evidence
shall be admissible other than the original document itself.
[31]

[32]

SEC. 19. Classes of documents. For the purpose of their presentation in

evidence, documents are either public or private.

[40]

Public documents are:

[41]

(a) The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether in the
Philippines, or of a foreign country.

[42]

x x x x x x x x x.
Sec. 25. What attestation of copy must state. Whenever a copy of a
document or record is attested for the purpose of evidence, the attestation
must state, in substance, that the copy is a correct copy of the original, or
a specific part thereof, as the case may be. The attestation must be under
the official seal of the attesting officer, if there be any, or if he be the clerk
of a court having a seal, under the seal of such court.
[33]

Sec. 24. Proof of official record.The record of public documents referred

to in paragraph (a) of Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the
officer having the legal custody of the 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. If the office in which the record is kept is
in a foreign country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice-consul, or consular agent
or by any officer in the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and authenticated by the seal
of his office.

Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines:

A Commentary, 1996 ed., p. 566.
Ricardo J. Francisco, Evidence: Rules of Court in the Philippines, second
edition, p. 382.

Wildvalley Shipping Co., Ltd. v. Court of Appeals, GR No. 119602,

October 6, 2000, p. 7.
[43]

Francisco, p. 29, citing De los Angeles v. Cabahug, 106 Phil. 839,

December 29, 1959.
[44]

[45]

27A CJS, 15-17, 1.

[46]

Ibid., p. 611-613, 161.

[47]

27A CJS, 625, 162.

[48]

Rollo, p. 36.

[34]

See also Asiavest Ltd. v. Court of Appeals, 296 SCRA 539, 550-551,
September 25, 1998; Pacific Asia Overseas Shipping Corp. v. National
Labor Relations Commission, 161 SCRA 122, 133-134, May 6, 1988.
The transcript of stenographic notes states that the original copies of
the divorce decrees were presented in court (TSN, December 16, 1998, p.
5; records, p. 176), but only photocopies of the same documents were
attached to the records (Records, Index of Exhibits, p. 1.).
[35]

[36]

TSN, December 15, 1998, p. 7; records, p. 178.

[37]

TSN, December 16, 1998, p. 7; records, p. 178.

People v. Yatco, 97 Phil. 941, 945, November 28, 1955; Marella v.

Reyes, 12 Phil. 1, 3, November 10, 1908; People v. Diaz, 271 SCRA 504,
516, April 18, 1997; De la Torre v. Court of Appeals, 294 SCRA 196, 203204, August 14, 1998; Maunlad Savings & Loan Asso., Inc. v. Court of
Appeals, GR No. 114942, November 27, 2000, pp. 8-9.
[38]

[39]

Art. 15, Civil Code.

Ibid., p. 384.

SEC. 48. Effect of foreign judgments or final orders.The effect of a

judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as follows:
[49]

xxxxxxxxx
(b) In case of a judgment or final order against a person, the judgment or
final order is presumptive evidence of a right as between the parties and
their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of
a want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
In passing, we note that the absence of the said certificate is merely an
irregularity in complying with the formal requirement for procuring a
marriage license. Under Article 4 of the Family Code, an irregularity will not
affect the validity of a marriage celebrated on the basis of a marriage
license issued without that certificate. (Vitug,Compendium, pp. 120-126;
Sempio-Diy, Handbook on the Family Code of the Philippines, 1997 reprint,
p. 17; Rufus Rodriguez, The Family Code of the Philippines Annotated, 1990
ed., p. 42; Melencio Sta. Maria Jr., Persons and Family Relations Law, 1999
ed., p. 146.)
[50]

[51]

Records, pp. 1-3.

[52]

Ibid., p. 4.

[53]

Id., p. 5.

[54]

Id., p. 180.

[55]

Id., pp. 170-171.

[56]

Id., pp. 84-89.

SECOND DIVISION

[57]

Id., pp. 181-182.

[G.R. No. 124862. December 22, 1998]

[58]

Id., pp. 40-41.

[59]

Id., p. 183.

FE D. QUITA, petitioner, vs. COURT OF APPEALS and BLANDINA

DANDAN,* respondents.

[60]

Id., pp. 184-187.

DECISION
BELLOSILLO, J .:
FE D. QUITA and Arturo T. Padlan, both Filipinos, were married in
the Philippines on 18 May 1941. They were not however blessed
with children. Somewhere along the way their relationship
soured. Eventually Fe sued Arturo for divorce in San Francisco,
California, U.S.A. She submitted in the divorce proceedings a
private writing dated 19 July 1950 evidencing their agreement to
live separately from each other and a settlement of their conjugal
properties. On 23 July 1954 she obtained a final judgment of
divorce. Three (3) weeks thereafter she married a certain Felix
Tupaz in the same locality but their relationship also ended in a
divorce. Still in the U.S.A., she married for the third time, to a
certain Wernimont.
On 16 April 1972 Arturo died. He left no will. On 31 August 1972
Lino Javier Inciong filed a petition with the Regional Trial Court of
Quezon City for issuance of letters of administration concerning
the estate of Arturo in favor of the Philippine Trust
Company. Respondent Blandina Dandan (also referred to
as Blandina Padlan), claiming to be the surviving spouse of Arturo
Padlan, and Claro, Alexis, Ricardo, Emmanuel, Zenaida and
Yolanda, all surnamed Padlan, named in the petition as surviving
children of Arturo Padlan, opposed the petition and prayed for the
appointment instead of Atty. Leonardo Cabasal, which was
resolved in favor of the latter. Upon motion of the oppositors
themselves, Atty. Cabasal was later replaced by Higino
Castillon. On 30 April 1973 the oppositors (Blandina and the
Padlan children) submitted certified photocopies of the 19 July
1950 private writing and the final judgment of divorce between
petitioner and Arturo. Later Ruperto T. Padlan, claiming to be the
sole surviving brother of the deceased Arturo, intervened.
On 7 October 1987 petitioner moved for the immediate declaration
of heirs of the decedent and the distribution of his estate. At the
scheduled hearing on 23 October 1987, private respondent as well
as the six (6) Padlan children and Ruperto failed to appear despite
due notice. On the same day, the trial court required the
submission of the records of birth of the Padlan children within

ten (10) days from receipt thereof, after which, with or without the
documents, the issue on the declaration of heirs would be
considered submitted for resolution. The prescribed period lapsed
without the required documents being submitted.
The trial court invoking Tenchavez v. Escao[1] which held that "a
foreign divorce between Filipino citizens sought and
decreed after the effectivity of the present Civil Code (Rep. Act
386) was not entitled to recognition as valid in this
jurisdiction,"[2] disregarded the divorce between petitioner and
Arturo. Consequently, it expressed the view that their marriage
subsisted until the death of Arturo in 1972. Neither did it consider
valid their extrajudicial settlement of conjugal properties due to
lack of judicial approval.[3] On the other hand, it opined that there
was no showing that marriage existed between private
respondent and Arturo, much less was it shown that the alleged
Padlan children had been acknowledged by the deceased as his
children with her. As regards Ruperto, it found that he was a
brother of Arturo. On 27 November 1987[4] only petitioner and
Ruperto were declared the intestate heirs of Arturo. Accordingly,
equal adjudication of the net hereditary estate was ordered in
favor of the two intestate heirs.[5]
On motion for reconsideration, Blandina and the Padlan children
were allowed to present proofs that the recognition of the children
by the deceased as his legitimate children, except Alexis who was
recognized as his illegitimate child, had been made in their
respective records of birth.Thus on 15 February 1988[6] partial
reconsideration was granted declaring the Padlan children, with
the exception of Alexis, entitled to one-half of the estate to the
exclusion of Ruperto Padlan, and petitioner to the other half.
[7]
Private respondent was not declared an heir. Although it was
stated in the aforementioned records of birth that she and Arturo
were married on 22 April 1947, their marriage was clearly void
since it was celebrated during the existence of his previous
marriage to petitioner.
In their appeal to the Court of Appeals, Blandina and her children
assigned as one of the errors allegedly committed by the trial
court the circumstance that the case was decided without a
hearing, in violation of Sec. 1, Rule 90, of the Rules of Court,
which provides that if there is a controversy before the court as to
who are the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled under the law,
the controversy shall be heard and decided as in ordinary cases.
Respondent appellate court found this ground alone sufficient to
sustain the appeal; hence, on 11 September 1995 it declared null
and void the 27 November 1987 decision and 15 February 1988

order of the trial court, and directed the remand of the case to the
trial court for further proceedings.[8] On 18 April 1996 it denied
reconsideration.[9]
Should this case be remanded to the lower court for further
proceedings? Petitioner insists that there is no need because,
first, no legal or factual issue obtains for resolution either as to
the heirship of the Padlan children or as to their respective shares
in the intestate estate of the decedent; and, second, the issue as
to who between petitioner and private respondent is the proper
heir of the decedent is one of law which can be resolved in the
present petition based on established facts and admissions of the
parties.
We cannot sustain petitioner. The provision relied upon by
respondent court is clear: If there is a controversy before the
court as to who are the lawful heirs of the deceased person or as
to the distributive shares to which each person is entitled under
the law, the controversy shall be heard and decided as in ordinary
cases.
We agree with petitioner that no dispute exists either as to the
right of the six (6) Padlan children to inherit from the decedent
because there are proofs that they have been duly acknowledged
by him and petitioner herself even recognizes them as heirs of
Arturo Padlan;[10] nor as to their respective hereditary shares. But
controversy remains as to who is the legitimate surviving spouse
of Arturo. The trial court, after the parties other than petitioner
failed to appear during the scheduled hearing on 23 October 1987
of the motion for immediate declaration of heirs and distribution
of estate, simply issued an order requiring the submission of the
records of birth of the Padlan children within ten (10) days from
receipt thereof, after which, with or without the documents, the
issue on declaration of heirs would be deemed submitted for
resolution.
We note that in her comment to petitioner's motion private
respondent raised, among others, the issue as to whether
petitioner was still entitled to inherit from the decedent
considering that she had secured a divorce in the U.S.A. and in
fact had twice remarried. She also invoked the above quoted
procedural rule.[11] To this, petitioner replied that Arturo was a
Filipino and as such remained legally married to her in spite of the
divorce they obtained.[12] Reading between the lines, the
implication is that petitioner was no longer a Filipino citizen at the
time of her divorce from Arturo. This should have prompted the
trial court to conduct a hearing to establish her citizenship. The
purpose of a hearing is to ascertain the truth of the matters in
issue with the aid of documentary and testimonial evidence as

well as the arguments of the parties either supporting or opposing

the evidence. Instead, the lower court perfunctorily settled her
claim in her favor by merely applying the ruling in Tenchavez v.
Escao.
Then in private respondent's motion to set aside and/or reconsider
the lower court's decision she stressed that the citizenship of
petitioner was relevant in the light of the ruling in Van Dorn v.
Romillo Jr.[13] that aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to
their national law. She prayed therefore that the case be set for
hearing.[14] Petitioner opposed the motion but failed to squarely
address the issue on her citizenship.[15] The trial court did not
grant private respondent's prayer for a hearing but proceeded to
resolve her motion with the finding that both petitioner and Arturo
were "Filipino citizens and were married in the Philippines." [16] It
maintained that their divorce obtained in 1954 in San Francisco,
California, U.S.A., was not valid in Philippine jurisdiction. We
deduce that the finding on their citizenship pertained solely to the
time of their marriage as the trial court was not supplied with a
basis to determine petitioner's citizenship at the time of
their divorce. The doubt persisted as to whether she was still a
Filipino citizen when their divorce was decreed. The trial court
must have overlooked the materiality of this aspect. Once proved
that she was no longer a Filipino citizen at the time of their
divorce, Van Dorn would become applicable and petitioner could
very well lose her right to inherit from Arturo.
Respondent again raised in her appeal the issue on petitioner's
citizenship;[17] it did not merit enlightenment however from
petitioner.[18] In the present proceeding, petitioner's citizenship is
brought anew to the fore by private respondent. She even
furnishes the Court with the transcript of stenographic notes
taken on 5 May 1995 during the hearing for the reconstitution of
the original of a certain transfer certificate title as well as the
issuance of new owner's duplicate copy thereof before another
trial court. When asked whether she was an American citizen
petitioner answered that she was since 1954.[19] Significantly, the
decree of divorce of petitioner and Arturo was obtained in the
same year. Petitioner however did not bother to file a reply
memorandum to erase the uncertainty about her citizenship at the
time of their divorce, a factual issue requiring hearings to be
conducted by the trial court. Consequently, respondent appellate
court did not err in ordering the case returned to the trial court
for further proceedings.
We emphasize however that the question to be determined by the
trial court should be limited only to the right of petitioner to
inherit from Arturo as his surviving spouse. Private respondent's

claim to heirship was already resolved by the trial court. She and
Arturo were married on 22 April 1947 while the prior marriage of
petitioner and Arturo was subsisting thereby resulting in a
bigamous marriage considered void from the beginning under
Arts. 80 and 83 of the Civil Code. Consequently, she is not a
surviving spouse that can inherit from him as this status
presupposes a legitimate relationship.[20]
As regards the motion of private respondent for petitioner and her
counsel to be declared in contempt of court and that the present
petition be dismissed for forum shopping,[21] the same lacks
merit. For forum shopping to exist the actions must involve the
same transactions and same essential facts and
circumstances. There must also be identical causes of action,
subject matter and issue.[22] The present petition deals with
declaration of heirship while the subsequent petitions filed before
the three (3) trial courts concern the issuance of new owner's
duplicate copies of titles of certain properties belonging to the
estate of Arturo. Obviously, there is no reason to declare the
existence of forum shopping.
WHEREFORE, the petition is DENIED. The decision of respondent
Court of Appeals ordering the remand of the case to the court of
origin for further proceedings and declaring null and void its
decision holding petitioner Fe D. Quita and Ruperto T. Padlan as
intestate heirs isAFFIRMED. The order of the appellate court
modifying its previous decision by granting one-half (1/2) of the
net hereditary estate to the Padlan children, namely, Claro,
Ricardo, Emmanuel, Zenaida and Yolanda, with the exception of
Alexis, all surnamed Padlan, instead of Arturo's brotherRuperto
Padlan, is likewise AFFIRMED. The Court however emphasizes that
the reception of evidence by the trial court should be limited to
the hereditary rights of petitioner as the surviving spouse of
Arturo Padlan.
The motion to declare petitioner and her counsel in contempt of
court and to dismiss the present petition for forum shopping
is DENIED.
SO ORDERED.
Puno, Mendoza, and Martinez, JJ., concur.

The name of private respondent Blandina Dandan appears as

Blandina Padlan in the proceedings before the lower courts.
*

[1]

No. L-19671, 29 November 1965, 15 SCRA 355.

[19]

[2]

Id., p. 367.

[20]

Then Art. 190 of the Civil Code provided that in the absence of
an express declaration in the marriage settlement, the separation
of property between spouses during the marriage shall not take
place save in virtue of a judicial order. Quite in relation thereto,
then Art. 191, par. 4 of the same Code provided that the husband
and the wife may agree upon the dissolution of the conjugal
partnership during the marriage, subject to judicial approval.
[3]

Decision penned by Judge Tomas V. Tadeo Jr. of RTC-Br. 105,

Quezon City; Appendix "A" of Brief for the Oppositors-Appellants;
CA Rollo, p. 15.
[4]

Article 1001 of the Civil Code provides that should brothers and
sisters or their children survive with the widow or widower, the
latter shall be entitled to one-half of the inheritance and the
brothers and sisters or their children to the other half.
[5]

[6]

Appendix "B" of Brief for the Oppositors-Appellants; See Note 4.

Article 998 of the Civil Code provides that if a widow or widower

survives with illegitimate children, such widow or widower shall be
entitled to one-half of the inheritance, and the illegitimate
children or their descendants, whether legitimate or illegitimate,
to the other half.
[7]

Decision penned by Justice Pacita Caizares-Nye with the

concurrence of Justices Romeo J. Callejo Jr. and Delilah VidallonMagtolis; Rollo, p. 39.
[8]

[9]

Id., p. 42.

[10]

Id., p. 180.

[11]

Rollo, p. 196.

[12]

CA Rollo, p. 29.

[13]

G. R. No. 68470, 8 October 1985, 139 SCRA 139.

[14]

CA Rollo, p. 30.

[15]

Record on Appeal, pp. 24-26.

[16]

Rollo, p. 206.

[17]

Brief of Oppositors-Appellants, p. 13; CA Rollo, p. 15.

[18]

Brief of Appellee; Id., p. 17.

Rollo, pp. 225-226.

Arturo M. Tolentino, Commentaries and Jurisprudence on the

Civil Code of the Philippines, 1979 Ed., Vol. III, p. 264.
[21]

Rollo, pp. 129-132.

Professional Regulation Commission v. Court of Appeals, G. R.

No. 117817, 9 July 1998.
[22]