G.R. No.

80116 June 30, 1989

IMELDA MANALAYSAY PILAPIL, petitioner,

vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH
EKKEHARD GEILING, respondents.

REGALADO, J.:

An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed
by a criminal infidelity suit of the latter against the former, provides Us the opportunity to lay down a decisional rule
on what hitherto appears to be an unresolved jurisdictional question.

On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich
Ekkehard Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at
Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough, and the couple lived
together for some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April 20,
1980. 1

Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a separation de facto
between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private respondent
initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local Court in January, 1983.
He claimed that there was failure of their marriage and that they had been living apart since April, 1982. 2

Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the
Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still pending as Civil Case
No. 83-15866. 3

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated a
decree of divorce on the ground of failure of marriage of the spouses. The custody of the child was granted to
petitioner. The records show that under German law said court was locally and internationally competent for the
divorce proceeding and that the dissolution of said marriage was legally founded on and authorized by the applicable
law of that foreign jurisdiction. 4

On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent filed two
complaints for adultery before the City Fiscal of Manila alleging that, while still married to said respondent,
petitioner "had an affair with a certain William Chia as early as 1982 and with yet another man named Jesus Chua
sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding investigation,
recommended the dismissal of the cases on the ground of insufficiency of evidence. 5 However, upon review, the
respondent city fiscal approved a resolution, dated January 8, 1986, directing the filing of two complaints for
adultery against the petitioner. 6 The complaints were accordingly filed and were eventually raffled to two branches
of the Regional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and William
Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the respondent judge;
while the other case, "People of the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No.
87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution of
respondent fiscal be set aside and the cases against her be dismissed. 8 A similar petition was filed by James Chua,
her co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave
due course to both petitions and directed the respondent city fiscal to inform the Department of Justice "if the
accused have already been arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate
the entire records of both cases to his office for review. 9

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further
proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case No. 87-
52434. On the other hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87-52435
to April 6, 1987. Before such scheduled date, petitioner moved for the cancellation of the arraignment and for the
suspension of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for review
then pending before the Secretary of Justice. 11 A motion to quash was also filed in the same case on the ground of
lack of jurisdiction, 12 which motion was denied by the respondent judge in an order dated September 8, 1987. The
same order also directed the arraignment of both accused therein, that is, petitioner and William Chia. The latter

1
entered a plea of not guilty while the petitioner refused to be arraigned. Such refusal of the petitioner being
considered by respondent judge as direct contempt, she and her counsel were fined and the former was ordered
detained until she submitted herself for arraignment. 13 Later, private respondent entered a plea of not guilty. 14

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer for a
temporary restraining order, seeking the annulment of the order of the lower court denying her motion to quash. The
petition is anchored on the main ground that the court is without jurisdiction "to try and decide the charge of
adultery, which is a private offense that cannot be prosecuted de officio (sic), since the purported complainant, a
foreigner, does not qualify as an offended spouse having obtained a final divorce decree under his national law prior
to his filing the criminal complaint." 15

On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from implementing
the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No. 87-52435.
Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoñez acted on the aforesaid petitions for
review and, upholding petitioner's ratiocinations, issued a resolution directing the respondent city fiscal to move for
the dismissal of the complaints against the petitioner. 16

We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes against chastity,
cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been
established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal,
requirement. 18 While in point of strict law the jurisdiction of the court over the offense is vested in it by the
Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that
complaint which starts the prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction to
try the case.

Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file
the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and
acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the
parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the
prosecution of the first four offenses above mentioned do not apply to adultery and concubinage. It is significant that
while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to
initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction,
rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include
the crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is authorized by law
to initiate the action therefor.

Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that
such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal
action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a
motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.

The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same
requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal
actions are generally and fundamentally commenced by the State, through the People of the Philippines, the
offended party being merely the complaining witness therein. However, in the so-called "private crimes" or those
which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse
assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter
exclusively within his power and option.

This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in
silence rather than go through the scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article 344 of
the Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of the institution
of the criminal action for, adultery. This is a logical consequence since the raison d'etre of said provision of law
would be absent where the supposed offended party had ceased to be the spouse of the alleged offender at the time
of the filing of the criminal case. 21

In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action
be definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time
he initiates the action. It would be absurd if his capacity to bring the action would be determined by his
status before or subsequent to the commencement thereof, where such capacity or status existed prior to but ceased
before, or was acquired subsequent to but did not exist at the time of, the institution of the case. We would thereby
have the anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to do so.

2
To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when precisely
the status of a complainant as an offended spouse must exist where a criminal prosecution can be commenced only
by one who in law can be categorized as possessed of such status. Stated differently and with reference to the
present case, the inquiry ;would be whether it is necessary in the commencement of a criminal action for adultery
that the marital bonds between the complainant and the accused be unsevered and existing at the time of the
institution of the action by the former against the latter.

American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields
the rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings
against the offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a
prosecution for adultery. Where, however, proceedings have been properly commenced, a divorce subsequently
granted can have no legal effect on the prosecution of the criminal proceedings to a conclusion. 22

In the cited Loftus case, the Supreme Court of Iowa held that —

'No prosecution for adultery can be commenced except on the complaint of the husband or wife.'
Section 4932, Code. Though Loftus was husband of defendant when the offense is said to have
been committed, he had ceased to be such when the prosecution was begun; and appellant insists
that his status was not such as to entitle him to make the complaint. We have repeatedly said that
the offense is against the unoffending spouse, as well as the state, in explaining the reason for this
provision in the statute; and we are of the opinion that the unoffending spouse must be such when
the prosecution is commenced. (Emphasis supplied.)

We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering our
statutory law and jural policy on the matter. We are convinced that in cases of such nature, the status of the
complainant vis-a-vis the accused must be determined as of the time the complaint was filed. Thus, the person who
initiates the adultery case must be an offended spouse, and by this is meant that he is still married to the accused
spouse, at the time of the filing of the complaint.

In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of
Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private
respondent is concerned 23 in view of the nationality principle in our civil law on the matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United States court
between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a trial court here
alleging that her business concern was conjugal property and praying that she be ordered to render an accounting
and that the plaintiff be granted the right to manage the business. Rejecting his pretensions, this Court perspicuously
demonstrated the error of such stance, thus:

There can be no question as to the validity of that Nevada divorce in any of the States of the
United States. The decree is binding on private respondent as an American citizen. For instance,
private respondent cannot sue petitioner, as her husband, in any State of the Union. ...

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy against absolute divorces the same being considered
contrary to our concept of public policy and morality. However, aliens may obtain divorces
abroad, which may be recognized in the Philippines, provided they are valid according to their
national law. ...

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner's husband entitled to exercise control
over conjugal assets. ... 25

Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no
legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he
filed suit.

The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of
knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the
divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a
dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family,
which is said to be one of the reasons for the particular formulation of our law on adultery, 26 since there would
thenceforth be no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating
the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other.

3
The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent. In applying
Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished
adultery "although the marriage be afterwards declared void", the Court merely stated that "the lawmakers intended
to declare adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear
that she is entitled to have her marriage contract declared null and void, until and unless she actually secures a
formal judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that the complaint can
still be filed after the declaration of nullity because such declaration that the marriage is void  ab initio is equivalent
to stating that it never existed. There being no marriage from the beginning, any complaint for adultery filed after
said declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated
and within the purview of the decision in said case is the situation where the criminal action for adultery was
filed before the termination of the marriage by a judicial declaration of its nullity ab initio. The same rule and
requisite would necessarily apply where the termination of the marriage was effected, as in this case, by a valid
foreign divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the same fate
of inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and seasonably
filed a complaint for adultery, although an issue was raised as to its sufficiency but which was resolved in favor of
the complainant. Said case did not involve a factual situation akin to the one at bar or any issue determinative of the
controversy herein.

WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one
entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary
restraining order issued in this case on October 21, 1987 is hereby made permanent.

SO ORDERED.

G.R. No. 142820            June 20, 2003

WOLFGANG O. ROEHR, petitioner,
vs.
MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge of
Makati RTC, Branch 149, respondents.

QUISUMBING, J.:

At the core of the present controversy are issues of (a) grave abuse of discretion allegedly committed by public
respondent and (b) lack of jurisdiction of the regional trial court, in matters that spring from a divorce decree
obtained abroad by petitioner.

In this special civil action for certiorari, petitioner assails (a) the order 1 dated September 30, 1999 of public
respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati Regional Trial Court,2 Branch 149, in Civil
Case No. 96-1389 for declaration of nullity of marriage, and (b) the order3 dated March 31, 2000 denying his motion
for reconsideration. The assailed orders partially set aside the trial court’s order dismissing Civil Case No. 96-1389,
for the purpose of resolving issues relating to the property settlement of the spouses and the custody of their
children.

Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private respondent Carmen
Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany. Their marriage was subsequently ratified on
February 14, 1981 in Tayasan, Negros Oriental.4 Out of their union were born Carolynne and Alexandra Kristine on
November 18, 1981 and October 25, 1987, respectively.

On August 28, 1996, private respondent filed a petition5 for declaration of nullity of marriage before the Regional
Trial Court (RTC) of Makati City. On February 6, 1997, petitioner filed a motion to dismiss,6 but it was denied by
the trial court in its order7 dated May 28, 1997.

On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an order 8 dated August 13,
1997. On September 5, 1997, petitioner filed a petition for certiorari with the Court of Appeals. On November 27,
1998, the appellate court denied the petition and remanded the case to the RTC.

Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance of Hamburg-Blankenese,
promulgated on December 16, 1997.

The decree provides in part:

4
 [T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through Judge van Buiren of the
Court of First Instance on the basis of the oral proceedings held on 4 Nov. 1997:

The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar of Hamburg-Altona
is hereby dissolved.

The parental custody for the children

Carolynne Roehr, born 18 November 1981

Alexandra Kristine Roehr, born on 25 October 1987

is granted to the father.

The litigation expenses shall be assumed by the Parties.9

In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999 on the ground that the trial
court had no jurisdiction over the subject matter of the action or suit as a decree of divorce had already been
promulgated dissolving the marriage of petitioner and private respondent.

On July 14, 1999, Judge Guevara-Salonga issued an order granting petitioner’s motion to dismiss. Private
respondent filed a Motion for Partial Reconsideration, with a prayer that the case proceed for the purpose of
determining the issues of custody of children and the distribution of the properties between petitioner and private
respondent.

On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was filed by the petitioner on the
ground that there is nothing to be done anymore in the instant case as the marital tie between petitioner Wolfgang
Roehr and respondent Ma. Carmen D. Rodriguez had already been severed by the decree of divorce promulgated by
the Court of First Instance of Hamburg, Germany on December 16, 1997 and in view of the fact that said decree of
divorce had already been recognized by the RTC in its order of July 14, 1999, through the implementation of the
mandate of Article 26 of the Family Code,10 endowing the petitioner with the capacity to remarry under the
Philippine law.

On September 30, 1999, respondent judge issued the assailed order partially setting aside her order dated July 14,
1999 for the purpose of tackling the issues of property relations of the spouses as well as support and custody of
their children. The pertinent portion of said order provides:

Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by petitioner thru
counsel which was opposed by respondent and considering that the second paragraph of Article 26 of the
Family Code was included as an amendment thru Executive Order 227, to avoid the absurd situation of a
Filipino as being still married to his or her alien spouse though the latter is no longer married to the Filipino
spouse because he/she had obtained a divorce abroad which is recognized by his/her national law, and
considering further the effects of the termination of the marriage under Article 43 in relation to Article 50
and 52 of the same Code, which include the dissolution of the property relations of the spouses, and the
support and custody of their children, the Order dismissing this case is partially set aside with respect to
these matters which may be ventilated in this Court.

SO ORDERED.11 (Emphasis supplied.)

Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied by respondent judge in
an order dated March 31, 2000.12

Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion on the part of respondent
judge. He cites as grounds for his petition the following:

1. Partially setting aside the order dated July 14, 1999 dismissing the instant case is not allowed by 1997
Rules of Civil Procedure.13

2. Respondent Maria Carmen Rodriguez by her motion for Partial Reconsideration had recognized and
admitted the Divorce Decision obtained by her ex-husband in Hamburg, Germany.14

3. There is nothing left to be tackled by the Honorable Court as there are no conjugal assets alleged in the
Petition for Annulment of Marriage and in the Divorce petition, and the custody of the children had already
been awarded to Petitioner Wolfgang Roehr.15

5
Pertinent in this case before us are the following issues:

1. Whether or not respondent judge gravely abused her discretion in issuing her order dated September 30,
1999, which partially modified her order dated July 14, 1999; and

2. Whether or not respondent judge gravely abused her discretion when she assumed and retained
jurisdiction over the present case despite the fact that petitioner has already obtained a divorce decree from
a German court.

On the first issue, petitioner asserts that the assailed order of respondent judge is completely inconsistent with her
previous order and is contrary to Section 3, Rule 16, Rules of Civil Procedure, which provides:

Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or claim, deny the motion,
or order the amendment of the pleading.

The court shall not defer the resolution of the motion for the reason that the ground relied upon is not
indubitable.

In every case, the resolution shall state clearly and distinctly the reasons therefor. (Emphasis supplied.)

Petitioner avers that a court’s action on a motion is limited to dismissing the action or claim, denying the motion, or
ordering the amendment of the pleading.

Private respondent, on her part, argues that the RTC can validly reconsider its order dated July 14, 1999 because it
had not yet attained finality, given the timely filing of respondent’s motion for reconsideration.

Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of Civil Procedure, which
provides:

Sec. 3. Action upon motion for new trial or reconsideration.—The trial court may set aside the judgment or
final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the court finds
that excessive damages have been awarded or that the judgment or final order is contrary to the evidence
or law, it may amend such judgment or final order accordingly.

Sec. 7. Partial new trial or reconsideration.—If the grounds for a motion under this Rule appear to the
court to affect the issues as to only a part, or less than all of the matters in controversy, or only one, or less
than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if
severable without interfering with the judgment or final order upon the rest. (Emphasis supplied.)

It is clear from the foregoing rules that a judge can order a partial reconsideration of a case that has not yet attained
finality. Considering that private respondent filed a motion for reconsideration within the reglementary period, the
trial court's decision of July 14, 1999 can still be modified. Moreover, in Sañado v. Court of Appeals,16 we held that
the court could modify or alter a judgment even after the same has become executory whenever circumstances
transpire rendering its decision unjust and inequitable, as where certain facts and circumstances justifying or
requiring such modification or alteration transpired after the judgment has become final and executory 17 and when it
becomes imperative in the higher interest of justice or when supervening events warrant it.18 In our view, there are
even more compelling reasons to do so when, as in this case, judgment has not yet attained finality.

Anent the second issue, petitioner claims that respondent judge committed grave abuse of discretion when she
partially set aside her order dated July 14, 1999, despite the fact that petitioner has already obtained a divorce decree
from the Court of First Instance of Hamburg, Germany.

In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we consistently held that a
divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according
to the national law of the foreigner. Relevant to the present case is Pilapil v. Ibay-Somera,22 where this Court
specifically recognized the validity of a divorce obtained by a German citizen in his country, the Federal Republic of
Germany. We held in Pilapil that a foreign divorce and its legal effects may be recognized in the Philippines insofar
as respondent is concerned in view of the nationality principle in our civil law on the status of persons.

In this case, the divorce decree issued by the German court dated December 16, 1997 has not been challenged by
either of the parties. In fact, save for the issue of parental custody, even the trial court recognized said decree to be
valid and binding, thereby endowing private respondent the capacity to remarry. Thus, the present controversy
mainly relates to the award of the custody of their two children, Carolynne and Alexandra Kristine, to petitioner.

6
As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in our jurisdiction, but
the legal effects thereof, e.g. on custody, care and support of the children, must still be determined by our
courts.23 Before our courts can give the effect of res judicata to a foreign judgment, such as the award of custody to
petitioner by the German court, it must be shown that the parties opposed to the judgment had been given ample
opportunity to do so on grounds allowed under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48,
1997 Rules of Civil Procedure), to wit:

SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign country, having
jurisdiction to pronounce the judgment is as follows:

(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing;

(b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between the
parties and their successors in interest by a subsequent title; but the judgment may be repelled by evidence
of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this
jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of Court clearly provide that with
respect to actions in personam, as distinguished from actions in rem, a foreign judgment merely constitutes prima
facie evidence of the justness of the claim of a party and, as such, is subject to proof to the contrary. 24

In the present case, it cannot be said that private respondent was given the opportunity to challenge the judgment of
the German court so that there is basis for declaring that judgment as res judicata with regard to the rights of
petitioner to have parental custody of their two children. The proceedings in the German court were summary. As to
what was the extent of private respondent’s participation in the proceedings in the German court, the records remain
unclear. The divorce decree itself states that neither has she commented on the proceedings 25 nor has she given her
opinion to the Social Services Office.26 Unlike petitioner who was represented by two lawyers, private respondent
had no counsel to assist her in said proceedings.27 More importantly, the divorce judgment was issued to petitioner
by virtue of the German Civil Code provision to the effect that when a couple lived separately for three years, the
marriage is deemed irrefutably dissolved. The decree did not touch on the issue as to who the offending spouse was.
Absent any finding that private respondent is unfit to obtain custody of the children, the trial court was correct in
setting the issue for hearing to determine the issue of parental custody, care, support and education mindful of the
best interests of the children. This is in consonance with the provision in the Child and Youth Welfare Code that the
child’s welfare is always the paramount consideration in all questions concerning his care and custody. 28

On the matter of property relations, petitioner asserts that public respondent exceeded the bounds of her jurisdiction
when she claimed cognizance of the issue concerning property relations between petitioner and private respondent.
Private respondent herself has admitted in Par. 14 of her petition for declaration of nullity of marriage dated August
26, 1996 filed with the RTC of Makati, subject of this case, that: "[p]etitioner and respondent have not acquired any
conjugal or community property nor have they incurred any debts during their marriage." 29 Herein petitioner did not
contest this averment. Basic is the rule that a court shall grant relief warranted by the allegations and the
proof.30 Given the factual admission by the parties in their pleadings that there is no property to be accounted for,
respondent judge has no basis to assert jurisdiction in this case to resolve a matter no longer deemed in controversy.

In sum, we find that respondent judge may proceed to determine the issue regarding the custody of the two children
born of the union between petitioner and private respondent. Private respondent erred, however, in claiming
cognizance to settle the matter of property relations of the parties, which is not at issue.

WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued on September 30, 1999 and
March 31, 2000 are AFFIRMED with MODIFICATION. We hereby declare that the trial court has jurisdiction
over the issue between the parties as to who has parental custody, including the care, support and education of the
children, namely Carolynne and Alexandra Kristine Roehr. Let the records of this case be remanded promptly to the
trial court for continuation of appropriate proceedings. No pronouncement as to costs.

SO ORDERED.

G.R. No. 105308 September 25, 1998

HERBERT CANG, petitioner,
vs.
COURT OF APPEALS and Spouses RONALD V. CLAVANO and MARIA CLARA
CLAVANO, respondents.

7
ROMERO, J.:

Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter
has abandoned them? The answer to this interesting query, certainly not one of first impression, would have to be
reached, not solely on the basis of law and jurisprudence, but also the hard reality presented by the facts of the case.

This is the question posed before this Court in this petition for review on certiorari of the Decision1 of the Court of
Appeals affirming the decree of adoption issued by the Regional Trial Court of Cebu City, Branch 14,2 in Special
Proceedings No. 1744-CEB, "In the Matter of the Petition for Adoption of the minors Keith, Charmaine and Joseph
Anthony, all surnamed Cang, Spouses Ronald V. Clavano and Maria Clara Diago Clavano, petitioners."

Petitioner Herbert Cang and Anna Marie Clavano who were married on January 27, 1973, begot three children,
namely: Keith, born on July 3, 1973; Charmaine, born on January 23, 1977, and Joseph Anthony, born on January 3,
1981.

During the early years of their marriage, the Cang couple's relationship was undisturbed. Not long thereafter,
however, Anna Marie learned of her husband's alleged extramarital affair with Wilma Soco, a family friend of the
Clavanos.

Upon learning of her husband's alleged illicit liaison, Anna Marie filed a petition for legal separation with
alimony pendente lite 3 with the then Juvenile and Domestic Relations Court of Cebu 4 which rendered a
decision5 approving the joint manifestation of the Cang spouses providing that they agreed to "live separately and
apart or from bed and board." They further agreed:

(c) That the children of the parties shall be entitled to a monthly support of ONE
THOUSAND PESOS (P1,000.00) effective from the date of the filing of the
complaint. This shall constitute a first lien on the net proceeds of the house and
lot jointly owned by the parties situated at Cinco Village, Mandaue City;

(d) That the plaintiff shall be entitled to enter into any contract or agreement
with any person or persons, natural or juridical without the written consent of
the husband; or any undertaking or acts that ordinarily requires husband's
consent as the parties are by this agreement legally separated; 6

Petitioner then left for the United States where he sought a divorce from Anna Marie before the Second Judicial
District Court of the State of Nevada. Said court issued the divorce decree that also granted sole custody of the three
minor children to Anna Marie, reserving "rights of visitation at all reasonable times and places" to petitioner. 7

Thereafter, petitioner took an American wife and thus became a naturalized American citizen. In 1986, he divorced
his American wife and never remarried.

While in the United States, petitioner worked in Tablante Medical Clinic earning P18,000.00 to P20,000.00 a
month8 a portion of which was remitted to the Philippines for his children's expenses and another, deposited in the
bank in the name of his children.

Meanwhile, on September 25, 1987, private respondents Ronald V. Clavano and Maria Clara Diago Clavano,
respectively the brother and sister-in-law of Anna Marie, filed Special Proceedings No. 1744-CEB for the adoption
of the three minor Cang children before the Regional Trial Court of Cebu. The petition bears the signature of then
14-year-old Keith signifying consent to his adoption. Anna Marie likewise filed an affidavit of consent alleging that
her husband had "evaded his legal obligation to support" his children; that her brothers and sisters including Ronald
V. Clavano, had been helping her in taking care of the children; that because she would be going to the United States
to attend to a family business, "leaving the children would be a problem and would naturally hamper (her) job-
seeking venture abroad;" and that her husband had "long forfeited his parental rights" over the children for the
following reasons:

1. The decision in Civil Case No. JD-707 allowed her to enter into any contract without the written
consent of her husband;

2. Her husband had left the Philippines to be an illegal alien in the United States and had been
transferring from one place to another to avoid detection by Immigration authorities, and

3. Her husband had divorced her.

Upon learning of the petitioner for adoption, petitioner immediately returned to the Philippines and filed an
opposition thereto, alleging that, although private respondents Ronald and Maria Clara Clavano were financially

8
capable of supporting the children while his finances were "too meager" compared to theirs, he could not "in
conscience, allow anybody to strip him of his parental authority over his beloved children."

Pending resolution of the petition for adoption, petitioner moved to reacquire custody over his children alleging that
Anna Marie had transferred to the United States thereby leaving custody of their children to private respondents. On
January 11, 1988, the Regional Trial Court of Cebu City, Branch 19, issued an order finding that Anna Marie had, in
effect, relinquished custody over the children and, therefore, such custody should be transferred to the father. The
court then directed the Clavanos to deliver custody over the minors to petitioner.

On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14, issued a decree of adoption with a
dispositive portion reading as follows:

WHEREFORE, premises considered, the petition for adoption of the minors Keith, Charmaine and
Joseph Anthony all surnamed Cang, by the petitioner-spouses Ronald V. Clavano and Maria Clara
Diago Clavano is hereby granted and approved. These children shall henceforth be known and
called as Keith D. Clavano, Charmaine D. Clavano and Joseph Anthony D. Clavano respectively.
Moreover, this Decree of Adoption shall:

(1) Confer upon the adopted children the same rights and duties as though they
were in fact the legitimate children of the petitioners;

(2) Dissolve the authority vested in the parents by nature, of the children; and,

(3) Vest the same authority in the petitioners.

Furnish the Local Civil Registrar of Cebu City, Philippines with a copy of this Decree of Adoption
for registration purposes.

SO ORDERED.

In so ruling, the lower court was "impelled" by these reasons:

(1) The Cang children had, since birth, developed "close filial ties with the
Clavano family, especially their maternal uncle," petitioner Ronald Clavano.

(2) Ronald and Maria Clara Clavano were childless and, with their printing
press, real estate business, export business and gasoline station and mini-mart in
Rosemead, California, U.S.A., had substantial assets and income.

(3) The natural mother of the children, Anna Marie, nicknamed "Menchu,"
approved of the adoption because of her heart ailment, near-fatal accident in
1981, and the fact that she could not provide them a secure and happy future as
she "travels a lot."

(4) The Clavanos could provide the children moral and spiritual direction as they
would go to church together and had sent the children to Catholic schools.

(5) The children themselves manifested their desire to be adopted by the

Clavanos — Keith had testified and expressed the wish to be adopted by the
Clavanos while the two younger ones were observed by the court to have
"snuggled" close to Ronald even though their natural mother was around.

On the other hand, the lower court considered the opposition of petitioner to rest on "a very shaky foundation"
because of its findings that:

(1) Petitioner was "morally unfit to be the father of his children" on account of
his being "an improvident father of his family" and an "undisguised Lothario."
This conclusion is based on the testimony of his alleged paramour, mother of his
two sons and close friend of Anna Marie, Wilma Soco, who said that she and
petitioner lived as husband and wife in the very house of the Cangs in Opao,
Mandaue City.

9
 (2) The alleged deposits of around $10,000 that were of "comparatively recent
dates" were "attempts at verisimilitude" as these were joint deposits the
authenticity of which could not be verified.

(3) Contrary to petitioner's claim, the possibility of his reconciliation with Anna
Marie was "dim if not nil" because it was petitioner who "devised, engineered
and executed the divorce proceedings at the Nevada Washoe County court."

(4) By his naturalization as a U.S. citizen, petitioner "is now an alien from the
standpoint of Philippine laws" and therefore, how his "new attachments and
loyalties would sit with his (Filipino) children is an open question."

Quoting with approval the evaluation and recommendation of the RTC Social Worker in her Child Study Report, the
lower court concluded as follows:

Simply put, the oppositor Herbert Cang has abandoned his children. And abandonment of a child
by its (sic) parent is commonly specified by statute as a ground for dispensing with his consent to
its (sic) adoption (Re Cozza, 163 Cal. 514 P. 161, Ann. [As. 1914A, 214]). Indeed, in such case,
adoption will be allowed not only without the consent of the parent, but even against his
opposition (Re McKeag, 141 Cal. 403, 74 P. 1039, 99 Am. St. Rep. 80; Re Camp. 131 Gal. 469,63
P. 736, 82 Am. St. Rep. 371; Graham v. Francis, 83 Colo. 346, 265 P. 690, citing R.C.L.; Seibert,
170 Iowa, 561, 153 N.W. 160, citing R.C.L.; Steams v. Allen, 183 Mass. 404, 67 N.E. 349; 97
Am. St. Rep. 441; Wilson v. Otis, 71 N.H. 483, 53 A. 439, 93 Am. St. Rep. 564; Nugent v.
Powell, 4 Wyo, 173, 33 P. 23, 20 L.R.A. 199, 62 Am. St. Rep. 17.) 9

Before the Court of Appeals, petitioner contended that the lower court erred in holding that it would be in the best
interest of the three children if they were adopted by private respondents Ronald and Maria Clara Clavano. He
asserted that the petition for adoption was fatally defective and tailored to divest him of parental authority because:
(a) he did not have a written consent to the adoption; (b) he never abandoned his children; (c) Keith and Charmaine
did not properly give their written consent; and (d) the petitioners for adoption did not present as witness the
representative of the Department of Social Welfare and Development who made the case study report required by
law.

The Court of Appeals affirmed the decree of adoption stating:

Art. 188 of the Family Code requires the written consent of the natural parents of the child to be
adopted. It has been held however that the consent of the parent who has abandoned the child is
not necessary (Dayrit vs. Piccio, 92 Phil. 729; Santos vs. Ananzanso, 16 SCRA 344). The question
therefore is whether or not oppositor may be considered as having abandoned the children. In
adoption cases, abandonment connotes any conduct on the part of the parent to forego parental
duties and relinquish parental claims to the child, or the neglect or refusal to perform the natural
and legal obligations which parents owe their children (Santos vs. Ananzanso, supra), or the
withholding of the parent's presence, his care and the opportunity to display voluntary affection.
The issue of abandonment is amply covered by the discussion of the first error.

Oppositor argues that he has been sending dollar remittances to the children and has in fact even
maintained bank accounts in their names. His duty to provide support comes from two judicial
pronouncements. The first, the decision in JD-707 CEB, supra, obliges him to pay the children
P1,000.00 a month. The second is mandated by the divorce decree of the Nevada, U.S.A. Federal
Court which orders him to pay monthly support of US$50.00 for each child. Oppositor has not
submitted any evidence to show compliance with the decision in JD-101 CEB, but he has
submitted 22 cancelled dollar checks (Exhs. 24 to 45) drawn in the children's names totalling
$2,126.98. The last remittance was on October 6, 1987 (Exh. 45). His obligation to provide
support commenced under the divorce decree on May 5, 1982 so that as of October 6, 1987,
oppositor should have made 53 remittances of $150.00, or a total of $7,950.00. No other
remittances were shown to have been made after October 6, 1987, so that as of this date, oppositor
was woefully in arrears under the terms of the divorce decree. And since he was totally in default
of the judgment in JD-707 CEB, the inevitable conclusion is oppositor had not really been
performing his duties as a father, contrary to his protestations.

True, it has been shown that oppositor had opened three accounts in different banks, as follows —

Acct. No. Date Opened Balance Name of Bank

———— —————— ———— ——————

10
 1) 118-606437-4 July 23, 1985 $5,018.50 Great Western Savings,

Oct. 29, 1987 Daly City, Cal., U.S.A.

2) 73-166-8 March 5, 1986 3,129.00 Matewan National Bank

Oct. 26, 1987 of Williamson, West

Virginia, U.S.A.

3) 564-146883 December 31, 1986 2,622.19 Security Pacific National

Oct. 29, 1987 Bank, Daly City, Cal.,

U.S.A.

The first and third accounts were opened however in oppositor's name as trustee for Charmaine
Cang and Joseph Anthony Cang, respectively. In other words, the accounts are operated and the
amounts withdrawable by oppositor himself and it cannot be said that they belong to the minors.
The second is an "or" account, in the names of Herbert Cang or Keith Cang. Since Keith is a
minor and in the Philippines, said account is operable only by oppositor and the funds
withdrawable by him alone.

The bank accounts do not really serve what oppositor claimed in his offer of evidence "the aim
and purpose of providing for a better future and security of his family."10

Petitioner moved to reconsider the decision of the Court of Appeals. He emphasized that the decree of legal
separation was not based on the merits of the case as it was based on a manifestation amounting to a compromise
agreement between him and Anna Marie. That he and his wife agreed upon the plan for him to leave for the United
States was borne out by the fact that prior to his departure to the United States, the family lived with petitioner's
parents. Moreover, he alone did not instigate the divorce proceedings as he and his wife initiated the "joint
complaint" for divorce.

Petitioner argued that the finding that he was not fit to rear and care for his children was belied by the award to him
of custody over the children in Civil Case No. JD-707. He took exception to the appellate court's findings that as an
American citizen he could no longer lay claim to custody over his children because his citizenship would not take
away the fact that he "is still a father to his children." As regards his alleged illicit relationship with another woman,
he had always denied the same both in Civil Case No. JD-707 and the instant adoption case. Neither was it true that
Wilma Soco was a neighbor and family friend of the Clavanos as she was residing in Mandaue City seven (7)
kilometers away from the Clavanos who were residents of Cebu City. Petitioner insisted that the testimony of Wilma
Soco should not have been given weight for it was only during the hearing of the petition for adoption that Jose
Clavano, a brother of Ronald, came to know her and went to her residence in Iligan City to convince her to be a
witness for monetary considerations. Lastly, petitioner averred that it would be hypocritical of the Clavanos to claim
that they could love the children much more than he could. 11

His motion for reconsideration having been denied, petitioner is now before this Court, alleging that the petition for
adoption was fatally defective as it did not have his written consent as a natural father as required by Article 31 (2)
of Presidential Decree No. 603, the Child and Youth Welfare Code, and Article 188 (2) of the Family Code.

Art. 31 of P.D. No. 603 provides —

Art. 31. Whose Consent is Necessary. — The written consent of the following to the adoption
shall be necessary:

(1) The person to be adopted, if fourteen years of age or, over;

(2) The natural parents of the child or his legal guardian of the Department of
Social Welfare or any duly licensed child placement agency under whose care
the child may be;

(3) The natural children, fourteen years and above, of the adopting parents.
(Emphasis supplied)

11
On December 17, 1986, then President Corazon C. Aquino issued Executive Order No. 91 amending Articles 27, 28,
29, 31, 33 and 35 of the Child and Youth Welfare Code. As thus amended, Article 31 read:

Art. 31. Whose Consent is Necessary. — The written consent of the following to the adoption shall
be necessary:

(1) The person to be adopted, if fourteen years of age or over;

(2) The natural parents of the child or his legal guardian after receiving
counselling and appropriate social services from the Ministry of Social Services
and Development or from a duly licensed child-placement agency;

(3) The Ministry of Social Services and Development or any duly licensed child-
placement agency under whose care and legal custody the child may be;

(4) The natural children, fourteen years and above, of the adopting parents.
(Emphasis supplied)

Jurisdiction being a matter of substantive law, the established rule is that the statute in force at the time of the
commencement of the action determines the jurisdiction of the court. 12 As such, when private respondents filed the
petition for adoption on September 25, 1987, the applicable law was the Child and Youth Welfare Code, as amended
by Executive Order No. 91.

During the pendency of the petition for adoption or on August 3, 1988, the Family Code which amended the Child
and Youth Welfare Code took effect. Article 256 of the Family Code provides for its retroactivity "insofar as it does
not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws." As amended by
the Family Code, the statutory provision on consent for adoption now reads:

Art. 188. The written consent of the following to the adoption shall be necessary:

(1) The person to be adopted, if ten years of age or over;

(2) The parents by nature of the child, the legal guardian, or the proper
government instrumentality;

(3) The legitimate and adopted children, ten years of age or over, of the adopting
parent or parents;

(4) The illegitimate children, ten years of age or over, of the adopting parents, if
living with said parent and the latter's spouse, if any; and

(5) The spouse, if any, of the person adopting or to be adopted. (Emphasis

supplied)

Based on the foregoing, it is thus evident that notwithstanding the amendments to the law, the written consent of the
natural parent to the adoption has remained a requisite for its validity. Notably, such requirement is also embodied in
Rule 99 of the Rules of Court as follows:

Sec. 3. Consent to adoption. — There shall be filed with the petition a written consent to the
adoption signed by the child, if fourteen years of age or over and not incompetent, and by the
child's spouse, if any, and by each of its known living parents who is not insane or hopelessly
intemperate or has not abandoned the child, or if the child is in the custody of an orphan asylum,
children's home, or benevolent society or person, by the proper officer or officers of such asylum,
home, or society, or by such persons; but if the child is illegitimate and has not been recognized,
the consent of its father to the adoption shall not be required. (Emphasis supplied)

As clearly inferred from the foregoing provisions of law, the written consent of the natural parent is indispensable
for the validity of the decree of adoption. Nevertheless, the requirement of written consent can be dispensed with if
the parent has abandoned the child 13 or that such parent is "insane or hopelessly intemperate." The court may
acquire jurisdiction over the case even, without the written consent of the parents or one of the parents provided that
the petition for adoption alleges facts sufficient to warrant exemption from compliance therewith. This is in
consonance with the liberality with which this Court treats the procedural aspect of adoption. Thus, the Court
declared:

12
 . . . . The technical rules of pleading should not be stringently applied to adoption proceedings, and
it is deemed more important that the petition should contain facts relating to the child and its
parents, which may give information to those interested, than that it should be formally correct as
a pleading. Accordingly, it is generally held that a petition will confer jurisdiction if it
substantially complies with the adoption statute, alleging all facts necessary to give the court
jurisdiction. 14

In the instant case, only the affidavit of consent of the natural mother was attached to the petition for adoption.
Petitioner's consent, as the natural father is lacking. Nonetheless, the petition sufficiently alleged the fact of
abandonment of the minors for adoption by the natural father as follows:

3. That the children's mother, sister of petitioner RONALD V. CLAVANO, has given her express
consent to this adoption, as shown by Affidavit of Consent, Annex "A". Likewise, the written
consent of Keith Cang, now 14 years of age appears on page 2 of this petition; However, the father
of the children, Herbert Cang, had already left his wife and children and had already divorced the
former, as evidenced by the xerox copy of the DECREE OF DIVORCE issued by the County of
Washoe, State of Nevada, U.S.A. (Annex "B") which was filed at the instance of Mr. Cang, not
long after he abandoned his family to live in the United States as an illegal immigrant. 15

The allegations of abandonment in the petition for adoption, even absent the written consent of petitioner,
sufficiently vested the lower court with jurisdiction since abandonment of the child by his natural parents is one of
the circumstances under which our statutes and jurisprudence 16 dispense with the requirement of written consent to
the adoption of their minor children.

However, in cases where the father opposes the adoption primarily because his consent thereto was not sought, the
matter of whether he had abandoned his child becomes a proper issue for determination. The issue of abandonment
by the oppositor natural parent is a preliminary issue that an adoption court must first confront. Only upon, failure of
the oppositor natural father to prove to the satisfaction of the court that he did not abandon his child may the petition
for adoption be considered on its merits.

As a rule, factual findings of the lower courts are final and binding upon this Court. 17 This Court is not expected nor
required to examine or contrast the oral and documentary evidence submitted by the parties. 18 However, although
this Court is not a trier of facts, it has the authority to review and reverse the factual findings of the lower courts if it
that these do not conform to the evidence on record. 19

In Reyes v. Court of Appeals, 20 this Court has held that the exceptions to the rule that factual findings of the trial
court are final and conclusive and may not be reviewed on appeal are the following: (1) when the inference made is
manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is
grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based
on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making
its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and
appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings
of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals
manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would
justify a different conclusion and (10) when the findings of fact of the Court of Appeals are premised on the absence
of evidence and are contradicted by the evidence on record.

This Court finds that both the lower court and the Court of Appeals failed to appreciate facts and circumstances that
should have elicited a different conclusion 21 on the issue of whether petitioner has so abandoned his children,
thereby making his consent to the adoption unnecessary.

In its ordinary sense, the word "abandon'' means to forsake entirely, to forsake or renounce utterly. The dictionaries
trace this word to the root idea of "putting under a ban." The emphasis is on the finality and publicity with which a
thing or body is thus put in the control of another, hence, the meaning of giving up absolutely, with intent never to
resume or claim one's rights or interests. 22 In reference to abandonment of a child by his parent, the act of
abandonment imports "any conduct of the parent which evinces a settled purpose to forego all parental duties and
relinquish all parental claims to the child." It means "neglect or refusal to perform the natural and legal obligations
of care and support which parents owe their children." 23

In the instant case, records disclose that petitioner's conduct did not manifest a settled purpose to forego all parental
duties and relinquish all parental claims over his children as to, constitute abandonment. Physical estrangement
alone, without financial and moral desertion, is not tantamount to abandonment. 24 While admittedly, petitioner was
physically absent as he was then in the United States, he was not remiss in his natural and legal obligations of love,
care and support for his children. He maintained regular communication with his wife and children through letters
and telephone. He used to send packages by mail and catered to their whims.

13
Petitioner's testimony on the matter is supported by documentary evidence consisting of the following handwritten
letters to him of both his wife and children:

1. Exh. 1 — a 4-page updated letter of Menchu (Anna Marie) addressed to "Dear Bert" on a C.
Westates Carbon Phil. Corp. stationery. Menchu stated therein that it had been "a long time since
the last time you've heard from me excluding that of the phone conversation we've had." She
discussed petitioner's intention to buy a motorbike for Keith, expressing apprehension over risks
that could be engendered by Keith's use of it. She said that in the "last phone conversation" she
had with petitioner on the birthday of "Ma," she forgot to tell petitioner that Keith's voice had
changed; he had become a "bagito" or a teen-ager with many "fans" who sent him Valentine's
cards. She told him how Charmaine had become quite a talkative "almost dalaga" who could carry
on a conversation with her angkong and how pretty she was in white dress when she won among
the candidates in the Flores de Mayo after she had prayed so hard for it. She informed him,
however, that she was worried because Charmaine was vain and wont to extravagance as she
loved clothes. About Joeton (Joseph Anthony), she told petitioner that the boy was smart for his
age and "quite spoiled" being the youngest of the children in Lahug. Joeton was mischievous but
Keith was his idol with whom he would sleep anytime. She admitted having said so much about
the children-because they might not have informed petitioner of "some happenings and spices of
life" about themselves. She said that it was "just very exciting to know how they've grown up and
very pleasant, too, that each of them have (sic) different characters." She ended the letter with the
hope that petitioner was "at the best of health." After extending her regards "to all," she signed her
name after the word "Love." This letter was mailed on July 9, 1986 from Cebu to petitioner whose
address was P.O. Box 2445, Williamson, West Virginia 25661 (Exh. 1-D).

2. Exh. 2 — letter dated 11/13/84 on a green stationery with golden print of "a note from Menchu"
on the left upper corner. Anna Marie stated that "we" wrote to petitioner on Oct. 2, 1984 and that
Keith and Joeton were very excited when petitioner "called up last time." She told him how Joeton
would grab the phone from Keith just so petitioner would know what he wanted to order.
Charmaine, who was asleep, was so disappointed that she missed petitioner's call because she also
wanted something that petitioner should buy. Menchu told petitioner that Charmaine wanted a
pencil sharpener, light-colored T-shirts for her walking shorts and a (k)nap sack. Anna Marie
informed petitioner that the kids were growing up and so were their needs. She told petitioner to
be "very fatherly" about the children's needs because those were expensive here. For herself, Anna
Marie asked for a subscription of Glamour and Vogue magazines and that whatever expenses he
would incur, she would "replace" these. As a postscript, she told petitioner that Keith wanted a
size 6 khaki-colored "Sperry topsider shoes."

3. Exh. 3 — an undated note on a yellow small piece of paper that reads:

Dear Herbert,

Hi, how was Christmas and New Year? Hope you had a wonderful one.

By the way thanks for the shoes, it was a nice one. It's nice to be thought of at X'mas. Thanks
again.

Sincerely
,

Menchu

4. Exh. 4 — a two-page undated letter of Keith on stationery of Jose Clavano, Inc. addressed to
"Dear Dad." Keith told his father that they tried to tell their mother "to stay for a little while, just a
few weeks after classes start(s)" on June 16. He informed petitioner that Joeton would be in
Kinder I and that, about the motorbike, he had told his mother to write petitioner about it and
"we'll see what you're (sic) decision will be." He asked for chocolates, nuts, basketball shirt and
shorts, rubber shoes, socks, headband, some clothes for outing and perfume. He told petitioner that
they had been going to Labug with their mother picking them up after Angkong or Ama had
prepared lunch or dinner. From her aerobics, his mother would go for them in Lahug at about 9:30
or 10:00 o'clock in the evening. He wished his father "luck and the best of health" and that they
prayed for him and their other relatives. The letter was ended with "Love Keith."

5. Exh. 5 — another undated long letter of Keith. He thanked his father for the Christmas card
"with $40.00, $30.00 and $30.00" and the "card of Joeton with $5.00 inside." He told petitioner
the amounts following his father's instructions and promise to send money through the mail. He
asked his father to address his letter directly to him because he wanted to open his own letters. He

14
informed petitioner of activities during the Christmas season — that they enjoyed eating, playing
and giving surprises to their mother. He apprised him of his daily schedule and that their mother
had been closely supervising them, instructing them to fold their blankets and pile up their pillows.
He informed petitioner that Joeton had become very smart while Charmaine, who was also smart,
was very demanding of their mother. Because their mother was leaving for the United States on
February 5, they would be missing her like they were missing petitioner. He asked for his "things"
and $200.00. He told petitioner more anecdotes about Joeton like he would make the sign of the
cross even when they would pass by the Iglesia ni Cristo church and his insistence that Aquino
was not dead because he had seen him on the betamax machine. For Keith, Charmaine had
become "very maldita" who was not always satisfied with her dolls and things but Joeton was full
of surprises. He ended the letter with "Love your son, Keith." The letter was mailed on February 6,
1985 (Exh. 5-D).

6. Exh. 6 — an undated letter Charmaine. She thanked petitioner for the bathing suit, key chain,
pencil box, socks, half shirt, pencil sharpener and $50.00. She reminded him of her birthday on
January 23 when she would turn 9 years old. She informed him that she wore size 10 and the size
of her feet was IM. They had fun at Christmas in Lahug but classes would start on January 9
although Keith's classes had started on January 6. They would feel sad again because Mommy
would be leaving soon. She hoped petitioner would keep writing them. She signed, "Love,
Charmaine."

7. Exh . 7 — an undated letter of Keith. He explained to petitioner that they had not been remiss in
writing letters to him. He informed him of their trip to Manila — they went to Malacañang, Tito
Doy Laurel's house, the Ministry of Foreign Affairs, the executive house, Tagaytay for three days
and Baguio for one week. He informed him that he got "honors," Charmaine was 7th in her class
and Joeton had excellent grades. Joeton would be enrolled in Sacred Heart soon and he was glad
they would be together in that school. He asked for his "reward" from petitioner and so with
Charmaine and Joeton. He asked for a motorbike and dollars that he could save. He told petitioner
that he was saving the money he had been sending them. He said he missed petitioner and wished
him the best. He added that petitioner should call them on Sundays.

8. Exh. 8 — a letter from Joeton and Charmaine but apparently written by the latter. She asked for
money from petitioner to buy something for the school and "something else." She, promised not to
spend so much and to save some. She said she loved petitioner and missed him. Joeton said "hi!"
to petitioner. After ending the letter with "Love, Joeton and Charmaine," she asked for her prize
for her grades as she got seventh place.

9. Exh. 9 — undated letter of Keith. He assured petitioner that he had been writing him; that he
would like to have some money but he would save them; that he learned that petitioner had called
them up but he was not around; that he would be going to Manila but would be back home May 3;
that his Mommy had just arrived Thursday afternoon, and that he would be the "official altar boy."
He asked petitioner to write them soon.

10. Exh. 10 — Keith thanked petitioner for the money he sent. He told petitioner that he was
saving some in the bank and he was proud because he was the only one in his group who saved in
the bank. He told him that Joeton had become naughty and would claim as his own the shirts sent
to Keith by petitioner. He advised petitioner to send pants and shirts to Joeton, too, and asked for a
pair of topsider shoes and candies. He informed petitioner that he was a member of the basketball
team and that his mom would drive for his group. He asked him to call them often like the father
of Ana Christie and to write them when he would call so that they could wait for it. He informed
petitioner that they had all grown bigger and heavier. He hoped petitioner would be happy with the
letter that had taken him so long to write because he did not want to commit any mistakes. He
asked petitioner to buy him perfume (Drakkar) and, after thanking petitioner, added that the latter
should buy something for Mommy.

11. Exh. 11 — a Christmas card "For My Wonderful Father" dated October 8, 1984 from Keith,
Charmaine and Joeton.

12. Exh. 12 — another Christmas card, "Our Wish For You" with the year '83 written on the upper
right hand corner of the inside page, from Keith, Charmaine and Joeton.

13. Exh. 13 — a letter of Keith telling petitioner that he had written him even when their Mom
"was there" where she bought them clothes and shoes. Keith asked petitioner for $300.00. Because
his mother would not agree to buy him a motorbike, he wanted a Karaoke unit that would cost
P12,000.00. He informed petitioner that he would go to an afternoon disco with friends but their
grades were all good with Joeton receiving "stars" for excellence. Keith wanted a bow and arrow

15
 Rambo toys and G.I. Joe. He expressed his desire that petitioner would come and visit them
someday.

14. Exh. 14 — a letter of Keith with one of the four pages bearing the date January 1986. Keith
told his father that they had received the package that the latter sent them. The clothes he sent,
however, fitted only Keith but not Charmaine and Joeton who had both grown bigger. Keith asked
for grocery items, toys and more clothes. He asked, in behalf of his mother, for low-heeled shoes
and a dress to match, jogging pants, tights and leotards that would make her look sexy. He
intimated to petitioner that he had grown taller and that he was already ashamed to be asking for
things to buy in the grocery even though his mother had told him not to be shy about it.

Aside from these letters, petitioner also presented certifications of banks in the U.S.A. showing that even prior to the
filing of the petition for adoption, he had deposited amounts for the benefit of his children. 25 Exhibits 24 to 45 are
copies of checks sent by petitioner to the children from 1985 to 1989.

These pieces of evidence are all on record. It is, therefore, quite surprising why the courts below simply glossed over
these, ignoring not only evidence on financial support but also the emotional exchange of sentiments between
petitioner and his family. Instead, the courts below emphasized the meagerness of the amounts he sent to his
children and the fact that, as regards the bank deposits, these were "withdrawable by him alone." Simply put, the
courts below attached a high premium to the prospective adopters' financial status but totally brushed aside the
possible repercussion of the adoption on the emotional and psychological well-being of the children.

True, Keith had expressed his desire to be adopted by his uncle and aunt. However, his seeming steadfastness on the
matter as shown by his testimony is contradicted by his feelings towards his father as revealed in his letters to him. It
is not at all farfetched to conclude that Keith's testimony was actually the effect of the filing of the petition for
adoption that would certainly have engendered confusion in his young mind as to the capability of his father to
sustain the lifestyle he had been used to.

The courts below emphasized respondents' emotional attachment to the children. This is hardly surprising for, from
the very start of their young lives, the children were used to their presence. Such attachment had persisted and
certainly, the young ones' act of snuggling close to private respondent Ronald Clavano was not indicative of their
emotional detachment from their father. Private respondents, being the uncle and aunt of the children, could not but
come to their succor when they needed help as when Keith got sick and private respondent Ronald spent for his
hospital bills.

In a number of cases, this Court has held that parental authority cannot be entrusted to a person simply because he
could give the child a larger measure of material comfort than his natural parent. Thus, in David v. Court of
Appeals, 26 the Court awarded custody of a minor illegitimate child to his mother who was a mere secretary and
market vendor instead of to his affluent father who was a married man, not solely because the child opted to go with
his mother. The Court said:

Daisie and her children may not be enjoying a life of affluence that private respondent promises if
the child lives with him. It is enough, however, that petitioner is earning a decent living and is able
to support her children according to her means.

In Celis v. Cafuir 27 where the Court was confronted with the issue of whether to award custody of a child to the
natural mother or to a foster mother, this Court said:

This court should avert the tragedy in the years to come of having deprived mother and son of the
beautiful associations and tender, imperishable memories engendered by the relationship of parent
and child. We should not take away from a mother the opportunity of bringing up her own child
even at the cost of extreme sacrifice due to poverty and lack of means; so that afterwards, she may
be able to look back with pride and a sense of satisfaction at her sacrifices and her efforts,
however humble, to make her dreams of her little boy come true. We should not forget that the
relationship between a foster mother and a child is not natural but artificial. If the child turns out to
be a failure or forgetful of what its foster parents had done for him, said parents might yet count
and appraise (sic) all that they have done and spent for him and with regret consider all of it as a
dead loss, and even rue the day they committed the blunder of taking the child into their hearts and
their home. Not so with a real natural mother who never counts the cost and her sacrifices, ever
treasuring memories of her associations with her child, however unpleasant and disappointing.
Flesh and blood count. . . . .

In Espiritu v. Court of Appeals, 28 the Court stated that "(I)n ascertaining the welfare and best interests of the child,
courts are mandated by the Family Code to take into account all relevant considerations." Thus, in awarding custody
of the child to the father, the Court said:

16
 A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more
intent on emphasizing the "torture and agony" of a mother separated from her children and the
humiliation she suffered as a, result of her character being made a key issue in court rather than
the feelings and future, the best interests and welfare of her children. While the bonds between a
mother and her small child are special in nature, either parent, whether father or mother, is
bound to suffer agony and pain if deprived of custody. One cannot say that his or her suffering is
greater than that of the other parent. It is not so much the suffering, pride, and other feelings of
either parent but the welfare of the child which is the paramount consideration. (Emphasis
supplied) 29

Indeed, it would be against the spirit of the law if financial consideration were to be the paramount consideration in
deciding whether to deprive a person of parental authority over his children. There should be a holistic approach to
the matter, taking into account the physical, emotional, psychological, mental, social and spiritual needs of the
child. 30 The conclusion of the courts below that petitioner abandoned his family needs more evidentiary support
other than his inability to provide them the material comfort that his admittedly affluent in-laws could provide.
There should be proof that he had so emotionally abandoned them that his children would not miss his guidance and
counsel if they were given to adopting parents. The letters he received from his children prove that petitioner
maintained the more important emotional tie between him and his children. The children needed him not only
because he could cater to their whims but also because he was a person they could share with their daily activities,
problems and triumphs.

The Court is thus dismayed that the courts below did not look beyond petitioner's "meager" financial support to
ferret out other indications on whether petitioner had in fact abandoned his family. The omission of said courts has
led us to examine why the children were subjected to the process of adoption, notwithstanding the proven ties that
bound them to their father. To our consternation, the record of the case bears out the fact that the welfare of the
children was not exactly the "paramount consideration" that impelled Anna Marie to consent to their adoption.

In her affidavit of consent, Anna Marie expressly said that leaving the children in the country, as she was wont to
travel abroad often, was a problem that would naturally hamper her job-seeking abroad. In other words, the adoption
appears to be a matter of convenience for her because Anna Marie herself is financially capable of supporting her
children. 31 In his testimony, private respondent Ronald swore that Anna Marie had been out of the country for two
years and came home twice or three times, 32 thereby manifesting the fact that it was she who actually left her
children to the care of her relatives. It was bad enough that their father left their children when he went abroad, but
when their mother followed suit for her own reasons, the situation worsened. The Clavano family must have realized
this. Hence, when the family first discussed the adoption of the children, they decided that the prospective adopter
should be Anna Marie's brother Jose. However, because he had children of his own, the family decided to devolve
the task upon private respondents. 33

This couple, however, could not always be in Cebu to care for the children. A businessman, private respondent
Ronald Clavano commutes between Cebu and Manila while his wife, private respondent Maria Clara, is an
international flight stewardess. 34 Moreover, private respondent Ronald claimed that he could "take care of the
children while their parents are away," 35 thereby indicating the evanescence of his intention. He wanted to have the
children's surname changed to Clavano for the reason that he wanted to take them to the United States as it would be
difficult for them to get a visa if their surname were different from his. 36 To be sure, he also testified that he wanted
to spare the children the stigma of being products of a broken home.

Nevertheless, a close analysis of the testimonies of private respondent Ronald, his sister Anna Marie and their
brother Jose points to the inescapable conclusion that they just wanted to keep the children away from their father.
One of the overriding considerations for the adoption was allegedly the state of Anna Marie's health — she was a
victim of an almost fatal accident and suffers from a heart ailment. However, she herself admitted that her health
condition was not that serious as she could still take care of the children. 37 An eloquent evidence of her ability to
physically care for them was her employment at the Philippine Consulate in Los Angeles 38 — she could not have
been employed if her health were endangered. It is thus clear that the Clavanos' attempt at depriving petitioner of
parental authority apparently stemmed from their notion that he was an inveterate womanizer. Anna Marie in fact
expressed fear that her children would "never be at ease with the wife of their father." 39

Petitioner, who described himself as single in status, denied being a womanizer and father to the sons of Wilma
Soco. 40 As to whether he was telling the truth is beside the point. Philippine society, being comparatively
conservative and traditional, aside from being Catholic in orientation, it does not countenance womanizing on the
part of a family man, considering the baneful effects such irresponsible act visits on his family. Neither may the
Court place a premium on the inability of a man to distinguish between siring children and parenting them.
Nonetheless, the actuality that petitioner carried on an affair with a paramour cannot be taken as sufficient basis for
the conclusion that petitioner was necessarily an unfit father. 41 Conventional wisdom and common human
experience show that a "bad" husband does not necessarily make a "bad" father. That a husband is not exactly an
upright man is not, strictly speaking, a sufficient ground to deprive him as a father of his inherent right to parental
authority over the children. 42 Petitioner has demonstrated his love and concern for his children when he took the
trouble of sending a telegram 43 to the lower court expressing his intention to oppose the adoption immediately after

17
learning about it. He traveled back to this country to attend to the case and to testify about his love for his children
and his desire to unite his family once more in the United States. 44

Private respondents themselves explained why petitioner failed to abide by the agreement with his wife on the
support of the children. Petitioner was an illegal alien in the United States. As such, he could not have procured
gainful employment. Private respondents failed to refute petitioner's testimony that he did not receive his share from
the sale of the conjugal home, 45 pursuant to their manifestation/compromise agreement in the legal separation case.
Hence, it can be reasonably presumed that the proceeds of the sale redounded to the benefit of his family,
particularly his children. The proceeds may not have lasted long but there is ample evidence to show that thereafter,
petitioner tried to abide by his agreement with his wife and sent his family money, no matter how "meager."

The liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent
purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the
paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper
context and perspective. The Court's position, should not be misconstrued or misinterpreted as to extend to
inferences beyond the contemplation of law and jurisprudence. 46 The discretion to approve adoption proceedings is
not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the
parents over the child. 47

In this regard, this Court notes private respondents' reliance on the manifestation/compromise agreement between
petitioner and Anna Marie which became the basis of the decree of legal separation. According to private
respondents' counsel, 48 the authority given to Anna Marie by that decree to enter into contracts as a result of the
legal separation was "all embracing" 49 and, therefore, included giving her sole consent to the adoption. This
conclusion is however, anchored on the wrong premise that the authority given to the innocent spouse to enter into
contracts that obviously refer to their conjugal properties, shall include entering into agreements leading to the
adoption of the children. Such conclusion is as devoid of a legal basis as private respondents' apparent reliance on
the decree of legal separation for doing away with petitioner's consent to the adoption.

The transfer of custody over the children to Anna Marie by virtue of the decree of legal separation did not, of
necessity; deprive petitioner of parental authority for the purpose of placing the children up for adoption. Article 213
of the Family Code states: ". . . in case of legal separation of parents, parental authority shall be exercised by the
parent designated by the court." In awarding custody, the court shall take into account "all relevant considerations,
especially the choice of the child over seven years of age, unless the parent chosen is unfit."

If should be noted, however, that the law only confers on the innocent spouse the "exercise" of parental authority.
Having custody of the child, the innocent spouse shall implement the sum of parental rights with respect to his
rearing and care. The innocent spouse shall have the right to the child's services and earnings, and the right to direct
his activities and make decisions regarding his care and control, education, health and religion. 50

In a number of cases, this Court has considered parental authority, the joint exercise of which is vested by the law
upon the parents, 51 as

. . . a mass of rights and obligations which the law grants to parents for the purpose of the
children's physical preservation and development, as well as the cultivation of their intellect and
the education of their hearts and senses. As regards parental authority, "there is no power, but a
task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of
the minor."

Parental authority and responsibility are inalienable and may not be transferred or renounced
except in cases authorized by law. The right attached to parental authority, being purely personal,
the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender
to a children's home or an orphan institution. When a parent entrusts the custody of a minor to
another, such as a friend or godfather, even in a document, what is given is merely temporary
custody and it does not constitute a renunciation of parental authority. Even if a definite
renunciation is manifest, the law still disallows the same.

The father and mother, being the natural guardians of unemancipated children, are duty-bound and
entitled to keep them in their custody and company. 52 (Emphasis supplied)

As such, in instant case, petitioner may not be deemed as having been completely deprived of parental authority,
notwithstanding the award of custody to Anna Marie in the legal separation case. To reiterate, that award was
arrived at by the lower court on the basis of the agreement of the spouses.

While parental authority may be waived, as in law it may be subject to a compromise, 53 there was no factual finding
in the legal separation case that petitioner was such an irresponsible person that he should be deprived of custody of
his children or that there are grounds under the law that could deprive him of parental authority. In fact, in the legal

18
separation case, the court thereafter ordered the transfer of custody over the children from Anna Marie back to
petitioner. The order was not implemented because of Anna Marie's motion for reconsideration thereon. The
Clavano family also vehemently objected to the transfer of custody to the petitioner, such that the latter was forced
to file a contempt charge against them. 54

The law is clear that either parent may lose parental authority over the child only for a valid reason. No such reason
was established in the legal separation case. In the instant case for adoption, the issue is whether or not petitioner
had abandoned his children as to warrant dispensation of his consent to their adoption. Deprivation of parental
authority is one of the effects of a decree of adoption. 55 But there cannot be a valid decree of adoption in this case
precisely because, as this Court has demonstrated earlier, the finding of the courts below on the issue of petitioner's
abandonment of his family was based on a misappreciation that was tantamount to non-appreciation, of facts on
record.

As regards the divorce obtained in the United States, this Court has ruled in Tenchavez v. Escaño 56 that a divorce
obtained by Filipino citizens after the effectivity of the Civil Code is not recognized in this jurisdiction as it is
contrary to State policy. While petitioner is now an American citizen, as regards Anna Marie who has apparently
remained a Filipino citizen, the divorce has no legal effect.

Parental authority is a constitutionally protected State policy borne out of established customs and tradition of our
people. Thus, in Silva v. Court of Appeals, 57 a case involving the visitorial rights of an illegitimate parent over his
child, the Court expressed the opinion that:

Parents have the natural right, as well as the moral and legal duty, to care for their children, see to
their upbringing and safeguard their best interest and welfare. This authority and responsibility
may not be unduly denied the parents; neither may it be renounced by them. Even when the
parents are estranged and their affection for each other is lost, the attachment and feeling for their
offsprings invariably remain unchanged. Neither the law not the courts allow this affinity to suffer
absent, of course, any real, grave and imminent threat to the well being of the child.

Since the incorporation of the law concerning adoption in the Civil Code, there has been a pronounced trend to place
emphasis in adoption proceedings, not so much on the need of childless couples for a child, as on the paramount
interest, of a child who needs the love and care of parents. After the passage of the Child and Youth Welfare Code
and the Family Code, the discernible trend has impelled the enactment of Republic Act No. 8043 on Intercountry,
Adoption 58 and Republic Act No. 8552 establishing the rules on the domestic adoption of Filipino children. 59

The case at bar applies the relevant provisions of these recent laws, such as the following policies in the "Domestic
Adoption Act of 1998":

(a) To ensure that every child remains under the care and custody of his/her
parent(s) and be provided with love, care, understanding and security towards
the full and harmonious development of his/her personality. 60

(b) In all matters relating to the care, custody and adoption of a child, his/her
interest shall be the paramount consideration in accordance with the tenets set
forth in the United Nations (UN) Convention on the Rights of the Child. 61

(c) To prevent the child from unnecessary separation from his/her biological
parent(s). 62

Inasmuch as the Philippines is a signatory to the United Nations Convention on the Rights of the Child, the
government and its officials are duty bound to comply with its mandates. Of particular relevance to instant case are
the following provisions:

States Parties shall respect the responsibilities, rights and duties of parents . . . to provide, in a
manner consistent with the evolving capacities of the child, appropriate direction and guidance in
the exercise by the child of the rights recognized in the present Convention. 63

States Parties shall respect the right of the child who is separated from one or both parents to
maintain personal relations and direct contact with both parents on a regular basis, except if it is
contrary to the child's best interests. 64

A child whose parents reside in different States shall have the right to maintain on a regular basis,
save in exceptional circumstances personal relations and direct contacts with both parents . . . 65

19
 States Parties shall respect the rights and duties of the parents . . . to provide direction to the child
in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 66

Underlying the policies and precepts in international conventions and the domestic statutes with respect to children
is the overriding principle that all actuations should be in the best interests of the child. This is not, however, to be
implemented in derogation of the primary right of the parent or parents to exercise parental authority over him. The
rights of parents vis-à-vis that of their children are not antithetical to each other, as in fact, they must be respected
and harmonized to the fullest extent possible.

Keith, Charmaine and Joseph Anthony have all grown up. Keith and Charmaine are now of legal age while Joseph
Anthony is approaching eighteen, the age of majority. For sure, they shall be endowed with the discretion to lead
lives independent of their parents. This is not to state that this case has been rendered moot and academic, for their
welfare and best interests regarding their adoption, must be determined as of the time that the petition for adoption
was filed. 67 Said petition must be denied as it was filed without the required consent of their father who, by law and
under the facts of the case at bar, has not abandoned them.

WHEREFORE, the instant petition for review on certiorari is hereby GRANTED. The questioned Decision and
Resolution of the Court of Appeals, as well as the decision of the Regional Trial Court of Cebu, are SET ASIDE
thereby denying the petition for adoption of Keith, Charmaine and Joseph Anthony, all surnamed Cang, by the
spouse respondents Ronald and Maria Clara Clavano. This Decision is immediately executory.

SO ORDERED.

G.R. No. 155635             November 7, 2008

MARIA REBECCA MAKAPUGAY BAYOT, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and VICENTE MADRIGAL BAYOT, respondents.

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

G.R. No. 163979             November 7, 2008

MARIA REBECCA MAKAPUGAY BAYOT, petitioner,

vs.
VICENTE MADRIGAL BAYOT, respondent.

DECISION

VELASCO, JR., J.:

The Case

Before us are these two petitions interposed by petitioner Maria Rebecca Makapugay Bayot impugning certain
issuances handed out by the Court of Appeals (CA) in CA-G.R. SP No. 68187.

In the first, a petition for certiorari1 under Rule 65 and docketed as G.R. No. 155635, Rebecca assails and seeks to
nullify the April 30, 2002 Resolution2 of the CA, as reiterated in another Resolution of September 2, 2002,3 granting
a writ of preliminary injunction in favor of private respondent Vicente Madrigal Bayot staving off the trial court's
grant of support pendente lite to Rebecca.

The second, a petition for review under Rule 45,4 docketed G.R. No. 163979, assails the March 25, 2004
Decision5 of the CA, (1) dismissing Civil Case No. 01-094, a suit for declaration of absolute nullity of marriage with
application for support commenced by Rebecca against Vicente before the Regional Trial Court (RTC) in
Muntinlupa City; and (2) setting aside certain orders and a resolution issued by the RTC in the said case.

Per its Resolution of August 11, 2004, the Court ordered the consolidation of both cases.

The Facts

Vicente and Rebecca were married on April 20, 1979 in Sanctuario de San Jose, Greenhills, Mandaluyong City. On
its face, the Marriage Certificate6 identified Rebecca, then 26 years old, to be an American citizen7 born in Agaña,
Guam, USA to Cesar Tanchiong Makapugay, American, and Helen Corn Makapugay, American.

20
On November 27, 1982 in San Francisco, California, Rebecca gave birth to Marie Josephine Alexandra or Alix.
From then on, Vicente and Rebecca's marital relationship seemed to have soured as the latter, sometime in 1996,
initiated divorce proceedings in the Dominican Republic. Before the Court of the First Instance of the Judicial
District of Santo Domingo, Rebecca personally appeared, while Vicente was duly represented by counsel. On
February 22, 1996, the Dominican court issued Civil Decree No. 362/96,8 ordering the dissolution of the couple's
marriage and "leaving them to remarry after completing the legal requirements," but giving them joint custody and
guardianship over Alix. Over a year later, the same court would issue Civil Decree No. 406/97,9 settling the couple's
property relations pursuant to an Agreement10 they executed on December 14, 1996. Said agreement specifically
stated that the "conjugal property which they acquired during their marriage consist[s] only of the real property and
all the improvements and personal properties therein contained at 502 Acacia Avenue, Alabang, Muntinlupa." 11

Meanwhile, on March 14, 1996, or less than a month from the issuance of Civil Decree No. 362/96, Rebecca filed
with the Makati City RTC a petition12 dated January 26, 1996, with attachments, for declaration of nullity of
marriage, docketed as Civil Case No. 96-378. Rebecca, however, later moved13 and secured approval14 of the motion
to withdraw the petition.

On May 29, 1996, Rebecca executed an Affidavit of Acknowledgment15 stating under oath that she is an American
citizen; that, since 1993, she and Vicente have been living separately; and that she is carrying a child not of Vicente.

On March 21, 2001, Rebecca filed another petition, this time before the Muntinlupa City RTC, for declaration of
absolute nullity of marriage16 on the ground of Vicente's alleged psychological incapacity. Docketed as Civil Case
No. 01-094 and entitled as Maria Rebecca Makapugay Bayot v. Vicente Madrigal Bayot, the petition was eventually
raffled to Branch 256 of the court. In it, Rebecca also sought the dissolution of the conjugal partnership of gains
with application for support pendente lite for her and Alix. Rebecca also prayed that Vicente be ordered to pay a
permanent monthly support for their daughter Alix in the amount of PhP 220,000.

On June 8, 2001, Vicente filed a Motion to Dismiss17 on, inter alia, the grounds of lack of cause of action and that
the petition is barred by the prior judgment of divorce. Earlier, on June 5, 2001, Rebecca filed and moved for the
allowance of her application for support pendente lite.

To the motion to dismiss, Rebecca interposed an opposition, insisting on her Filipino citizenship, as affirmed by the
Department of Justice (DOJ), and that, therefore, there is no valid divorce to speak of.

Meanwhile, Vicente, who had in the interim contracted another marriage, and Rebecca commenced several criminal
complaints against each other. Specifically, Vicente filed adultery and perjury complaints against Rebecca. Rebecca,
on the other hand, charged Vicente with bigamy and concubinage.

Ruling of the RTC on the Motion to Dismiss

and Motion for Support Pendente Lite

On August 8, 2001, the RTC issued an Order18 denying Vicente's motion to dismiss Civil Case No. 01-094 and
granting Rebecca's application for support pendente lite, disposing as follows:

Wherefore, premises considered, the Motion to Dismiss filed by the respondent is DENIED. Petitioner's
Application in Support of the Motion for Support Pendente Lite is hereby GRANTED. Respondent is
hereby ordered to remit the amount of TWO HUNDRED AND TWENTY THOUSAND PESOS (Php
220,000.00) a month to Petitioner as support for the duration of the proceedings relative to the instant
Petition.

SO ORDERED.19

The RTC declared, among other things, that the divorce judgment invoked by Vicente as bar to the petition for
declaration of absolute nullity of marriage is a matter of defense best taken up during actual trial. As to the grant of
support pendente lite, the trial court held that a mere allegation of adultery against Rebecca does not operate to
preclude her from receiving legal support.

Following the denial20 of his motion for reconsideration of the above August 8, 2001 RTC order, Vicente went to the
CA on a petition for certiorari, with a prayer for the issuance of a temporary restraining order (TRO) and/or writ of
preliminary injunction.21 His petition was docketed as CA-G.R. SP No. 68187.

Grant of Writ of Preliminary Injunction by the CA

On January 9, 2002, the CA issued the desired TRO.22 On April 30, 2002, the appellate court granted, via a
Resolution, the issuance of a writ of preliminary injunction, the decretal portion of which reads:

21
 IN VIEW OF ALL THE FOREGOING, pending final resolution of the petition at bar, let the Writ of
Preliminary Injunction be ISSUED in this case, enjoining the respondent court from implementing the
assailed Omnibus Order dated August 8, 2001 and the Order dated November 20, 2001, and from
conducting further proceedings in Civil Case No. 01-094, upon the posting of an injunction bond in the
amount of P250,000.00.

SO ORDERED.23

Rebecca moved24 but was denied reconsideration of the aforementioned April 30, 2002 resolution. In the meantime,
on May 20, 2002, the preliminary injunctive writ25 was issued. Rebecca also moved for reconsideration of this
issuance, but the CA, by Resolution dated September 2, 2002, denied her motion.

The adverted CA resolutions of April 30, 2002 and September 2, 2002 are presently being assailed in Rebecca's
petition for certiorari, docketed under G.R. No. 155635.

Ruling of the CA

Pending resolution of G.R. No. 155635, the CA, by a Decision dated March 25, 2004, effectively dismissed Civil
Case No. 01-094, and set aside incidental orders the RTC issued in relation to the case. The fallo of the presently
assailed CA Decision reads:

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Omnibus Order dated August 8, 2001
and the Order dated November 20, 2001 are REVERSED and SET ASIDE and a new one
entered DISMISSING Civil Case No. 01-094, for failure to state a cause of action. No pronouncement as to
costs.

SO ORDERED.26

To the CA, the RTC ought to have granted Vicente's motion to dismiss on the basis of the following premises:

(1) As held in China Road and Bridge Corporation v. Court of Appeals, the hypothetical-admission rule applies in
determining whether a complaint or petition states a cause of action.27 Applying said rule in the light of the essential
elements of a cause of action,28 Rebecca had no cause of action against Vicente for declaration of nullity of
marriage.

(2) Rebecca no longer had a legal right in this jurisdiction to have her marriage with Vicente declared void, the
union having previously been dissolved on February 22, 1996 by the foreign divorce decree she personally secured
as an American citizen. Pursuant to the second paragraph of Article 26 of the Family Code, such divorce restored
Vicente's capacity to contract another marriage.

(3) Rebecca's contention about the nullity of a divorce, she being a Filipino citizen at the time the foreign divorce
decree was rendered, was dubious. Her allegation as to her alleged Filipino citizenship was also doubtful as it was
not shown that her father, at the time of her birth, was still a Filipino citizen. The Certification of Birth of Rebecca
issued by the Government of Guam also did not indicate the nationality of her father.

(4) Rebecca was estopped from denying her American citizenship, having professed to have that nationality status
and having made representations to that effect during momentous events of her life, such as: (a) during her marriage;
(b) when she applied for divorce; and (c) when she applied for and eventually secured an American passport on
January 18, 1995, or a little over a year before she initiated the first but later withdrawn petition for nullity of her
marriage (Civil Case No. 96-378) on March 14, 1996.

(5) Assuming that she had dual citizenship, being born of a purportedly Filipino father in Guam, USA which follows
the jus soli principle, Rebecca's representation and assertion about being an American citizen when she secured her
foreign divorce precluded her from denying her citizenship and impugning the validity of the divorce.

Rebecca seasonably filed a motion for reconsideration of the above Decision, but this recourse was denied in the
equally assailed June 4, 2004 Resolution.29 Hence, Rebecca's Petition for Review on Certiorari under Rule 45,
docketed under G.R. No. 163979.

The Issues

In G.R. No. 155635, Rebecca raises four (4) assignments of errors as grounds for the allowance of her petition, all
of which converged on the proposition that the CA erred in enjoining the implementation of the RTC's orders which
would have entitled her to support pending final resolution of Civil Case No. 01-094.

22
In G.R. No. 163979, Rebecca urges the reversal of the assailed CA decision submitting as follows:

THE COURT OF APPEALS GRAVELY ERRED IN NOT MENTIONING AND NOT TAKING INTO
CONSIDERATION IN ITS APPRECIATION OF THE FACTS THE FACT OF PETITIONER'S
FILIPINO CITIZENSHIP AS CATEGORICALLY STATED AND ALLEGED IN HER PETITION
BEFORE THE COURT A QUO.

II

THE COURT OF APPEALS GRAVELY ERRED IN RELYING ONLY ON ANNEXES TO THE

PETITION IN RESOLVING THE MATTERS BROUGHT BEFORE IT.

III

THE COURT OF APPEALS GRAVELY ERRED IN FAILING TO CONSIDER THAT RESPONDENT

IS ESTOPPED FROM CLAIMING THAT HIS MARRIAGE TO PETITIONER HAD ALREADY BEEN
DISSOLVED BY VIRTUE OF HIS SUBSEQUENT AND CONCURRENT ACTS.

IV

THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THERE WAS ABUSE OF
DISCRETION ON THE PART OF THE TRIAL COURT, MUCH LESS A GRAVE ABUSE.30

We shall first address the petition in G.R. No. 163979, its outcome being determinative of the success or failure of
the petition in G.R. No. 155635.

Three legal premises need to be underscored at the outset. First, a divorce obtained abroad by an alien married to a
Philippine national may be recognized in the Philippines, provided the decree of divorce is valid according to the
national law of the foreigner.31 Second, the reckoning point is not the citizenship of the divorcing parties at birth or
at the time of marriage, but their citizenship at the time a valid divorce is obtained abroad. And third, an absolute
divorce secured by a Filipino married to another Filipino is contrary to our concept of public policy and morality and
shall not be recognized in this jurisdiction.32

Given the foregoing perspective, the determinative issue tendered in G.R. No. 155635, i.e., the propriety of the
granting of the motion to dismiss by the appellate court, resolves itself into the questions of: first, whether petitioner
Rebecca was a Filipino citizen at the time the divorce judgment was rendered in the Dominican Republic on
February 22, 1996; and second, whether the judgment of divorce is valid and, if so, what are its consequent legal
effects?

The Court's Ruling

The petition is bereft of merit.

Rebecca an American Citizen in the Purview of This Case

There can be no serious dispute that Rebecca, at the time she applied for and obtained her divorce from Vicente, was
an American citizen and remains to be one, absent proof of an effective repudiation of such citizenship. The
following are compelling circumstances indicative of her American citizenship: (1) she was born in Agaña, Guam,
USA; (2) the principle of jus soli is followed in this American territory granting American citizenship to those who
are born there; and (3) she was, and may still be, a holder of an American passport. 33

And as aptly found by the CA, Rebecca had consistently professed, asserted, and represented herself as an American
citizen, particularly: (1) during her marriage as shown in the marriage certificate; (2) in the birth certificate of Alix;
and (3) when she secured the divorce from the Dominican Republic. Mention may be made of the Affidavit of
Acknowledgment34 in which she stated being an American citizen.

It is true that Rebecca had been issued by the Bureau of Immigration (Bureau) of Identification (ID) Certificate No.
RC 9778 and a Philippine Passport. On its face, ID Certificate No. RC 9778 would tend to show that she has indeed
been recognized as a Filipino citizen. It cannot be over-emphasized, however, that such recognition was given only
on June 8, 2000 upon the affirmation by the Secretary of Justice of Rebecca's recognition pursuant to the Order of
Recognition issued by Bureau Associate Commissioner Edgar L. Mendoza.

23
For clarity, we reproduce in full the contents of ID Certificate No. RC 9778:

To Whom It May Concern:

This is to certify that *MARIA REBECCA MAKAPUGAY BAYOT* whose photograph and thumbprints

are affixed hereto and partially covered by the seal of this Office, and whose other particulars are as
follows:

Place of Birth:     Guam, USA       Date of Birth:     March 5, 1953

Sex:     female                              Civil Status:     married       Color of Hair:    brown

Color of Eyes:     brown               Distinguishing marks on face:    none

was - r e c o g n i z e d - as a citizen of the Philippines as per pursuant to Article IV, Section 1, Paragraph 3
of the 1935 Constitution per order of Recognition JBL 95-213 signed by Associate Commissioner Jose B.
Lopez dated October 6, 1995, and duly affirmed by Secretary of Justice Artemio G. Tuquero in his
1st Indorsement dated June 8, 2000.

Issued for identification purposes only. NOT VALID for travel purposes.

Given under my hand and seal this 11th day of October, 1995

(SGD) EDGAR L. MENDOZA

ASSO. COMMISSIONER

Official Receipt No. 5939988

issued at Manila
dated Oct. 10, 1995 for P 2,000

From the text of ID Certificate No. RC 9778, the following material facts and dates may be deduced: (1) Bureau
Associate Commissioner Jose B. Lopez issued the Order of Recognition on October 6, 1995; (2) the 1st Indorsement
of Secretary of Justice Artemio G. Tuquero affirming Rebecca's recognition as a Filipino citizen was issued on June
8, 2000 or almost five years from the date of the order of recognition; and (3) ID Certificate No. RC 9778 was
purportedly issued on October 11, 1995 after the payment of the PhP 2,000 fee on October 10, 1995 per OR No.
5939988.

What begs the question is, however, how the above certificate could have been issued by the Bureau on October 11,
1995 when the Secretary of Justice issued the required affirmation only on June 8, 2000. No explanation was given
for this patent aberration. There seems to be no error with the date of the issuance of the 1st Indorsement by
Secretary of Justice Tuquero as this Court takes judicial notice that he was the Secretary of Justice from February
16, 2000 to January 22, 2001. There is, thus, a strong valid reason to conclude that the certificate in question must be
spurious.

Under extant immigration rules, applications for recognition of Filipino citizenship require the affirmation by the
DOJ of the Order of Recognition issued by the Bureau. Under Executive Order No. 292, also known as the 1987
Administrative Code, specifically in its Title III, Chapter 1, Sec. 3(6), it is the DOJ which is tasked to "provide
immigration and naturalization regulatory services and implement the laws governing citizenship and the
admission and stay of aliens." Thus, the confirmation by the DOJ of any Order of Recognition for Filipino
citizenship issued by the Bureau is required.

Pertinently, Bureau Law Instruction No. RBR-99-00235 on Recognition as a Filipino Citizen clearly provides:

The Bureau [of Immigration] through its Records Section shall automatically furnish the Department of
Justice an official copy of its Order of Recognition within 72 days from its date of approval by the way of
indorsement for confirmation of the Order by the Secretary of Justice pursuant to Executive Order No.
292. No Identification Certificate shall be issued before the date of confirmation by the Secretary of
Justice and any Identification Certificate issued by the Bureau pursuant to an Order of Recognition shall
prominently indicate thereon the date of confirmation by the Secretary of Justice. (Emphasis ours.)

Not lost on the Court is the acquisition by Rebecca of her Philippine passport only on June 13, 2000, or five days
after then Secretary of Justice Tuquero issued the 1st Indorsement confirming the order of recognition. It may be too
much to attribute to coincidence this unusual sequence of close events which, to us, clearly suggests that prior to
said affirmation or confirmation, Rebecca was not yet recognized as a Filipino citizen. The same sequence would

24
also imply that ID Certificate No. RC 9778 could not have been issued in 1995, as Bureau Law Instruction No.
RBR-99-002 mandates that no identification certificate shall be issued before the date of confirmation by the
Secretary of Justice. Logically, therefore, the affirmation or confirmation of Rebecca's recognition as a Filipino
citizen through the 1st Indorsement issued only on June 8, 2000 by Secretary of Justice Tuquero corresponds to the
eventual issuance of Rebecca's passport a few days later, or on June 13, 2000 to be exact.

When Divorce Was Granted Rebecca, She Was not a

Filipino Citizen and Was not Yet Recognized as One

The Court can assume hypothetically that Rebecca is now a Filipino citizen. But from the foregoing disquisition, it
is indubitable that Rebecca did not have that status of, or at least was not yet recognized as, a Filipino citizen when
she secured the February 22, 1996 judgment of divorce from the Dominican Republic.

The Court notes and at this juncture wishes to point out that Rebecca voluntarily withdrew her original petition for
declaration of nullity (Civil Case No. 96-378 of the Makati City RTC) obviously because she could not show proof
of her alleged Filipino citizenship then. In fact, a perusal of that petition shows that, while bearing the date January
26, 1996, it was only filed with the RTC on March 14, 1996 or less than a month after Rebecca secured, on February
22, 1996, the foreign divorce decree in question. Consequently, there was no mention about said divorce in the
petition. Significantly, the only documents appended as annexes to said original petition were: the Vicente-Rebecca
Marriage Contract (Annex "A") and Birth Certificate of Alix (Annex "B"). If indeed ID Certificate No. RC 9778
from the Bureau was truly issued on October 11, 1995, is it not but logical to expect that this piece of document be
appended to form part of the petition, the question of her citizenship being crucial to her case?

As may be noted, the petition for declaration of absolute nullity of marriage under Civil Case No. 01-094, like the
withdrawn first petition, also did not have the ID Certificate from the Bureau as attachment. What were attached
consisted of the following material documents: Marriage Contract (Annex "A") and Divorce Decree. It was only
through her Opposition (To Respondent's Motion to Dismiss dated 31 May 2001)36 did Rebecca attach as Annex "C"
ID Certificate No. RC 9778.

At any rate, the CA was correct in holding that the RTC had sufficient basis to dismiss the petition for declaration of
absolute nullity of marriage as said petition, taken together with Vicente's motion to dismiss and Rebecca's
opposition to motion, with their respective attachments, clearly made out a case of lack of cause of action, which we
will expound later.

Validity of Divorce Decree

Going to the second core issue, we find Civil Decree Nos. 362/96 and 406/97 valid.

First, at the time of the divorce, as above elucidated, Rebecca was still to be recognized, assuming for argument that
she was in fact later recognized, as a Filipino citizen, but represented herself in public documents as an American
citizen. At the very least, she chose, before, during, and shortly after her divorce, her American citizenship to govern
her marital relationship. Second, she secured personally said divorce as an American citizen, as is evident in the text
of the Civil Decrees, which pertinently declared:

IN THIS ACTION FOR DIVORCE in which the parties expressly submit to the jurisdiction of this court,
by reason of the existing incompatibility of temperaments x x x. The parties MARIA REBECCA M.
BAYOT, of United States nationality, 42 years of age, married, domiciled and residing at 502 Acacia
Ave., Ayala Alabang, Muntin Lupa, Philippines, x x x, who personally appeared before this court,
accompanied by DR. JUAN ESTEBAN OLIVERO, attorney, x x x and VICENTE MADRIGAL BAYOT,
of Philippine nationality, of 43 years of age, married and domiciled and residing at 502 Acacia Ave., Ayala
Alabang, Muntin Lupa, Filipino, appeared before this court represented by DR. ALEJANDRO TORRENS,
attorney, x x x, revalidated by special power of attorney given the 19th of February of 1996, signed before
the Notary Public Enrico L. Espanol of the City of Manila, duly legalized and authorizing him to subscribe
all the acts concerning this case.37 (Emphasis ours.)

Third, being an American citizen, Rebecca was bound by the national laws of the United States of America, a
country which allows divorce. Fourth, the property relations of Vicente and Rebecca were properly adjudicated
through their Agreement38 executed on December 14, 1996 after Civil Decree No. 362/96 was rendered on February
22, 1996, and duly affirmed by Civil Decree No. 406/97 issued on March 4, 1997. Veritably, the foreign divorce
secured by Rebecca was valid.

To be sure, the Court has taken stock of the holding in Garcia v. Recio that a foreign divorce can be recognized
here, provided the divorce decree is proven as a fact and as valid under the national law of the alien spouse.39 Be this
as it may, the fact that Rebecca was clearly an American citizen when she secured the divorce and that divorce is
recognized and allowed in any of the States of the Union,40 the presentation of a copy of foreign divorce decree duly
authenticated by the foreign court issuing said decree is, as here, sufficient.

25
It bears to stress that the existence of the divorce decree has not been denied, but in fact admitted by both parties.
And neither did they impeach the jurisdiction of the divorce court nor challenge the validity of its proceedings on the
ground of collusion, fraud, or clear mistake of fact or law, albeit both appeared to have the opportunity to do so. The
same holds true with respect to the decree of partition of their conjugal property. As this Court explained in Roehr v.
Rodriguez:

Before our courts can give the effect of res judicata to a foreign judgment [of divorce] x x x, it must be
shown that the parties opposed to the judgment had been given ample opportunity to do so on grounds
allowed under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48, 1997 Rules of Civil
Procedure), to wit:

SEC. 50. Effect of foreign judgments.--The effect of a judgment of a tribunal of a foreign country,
having jurisdiction to pronounce the judgment is as follows:

(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the
thing;

(b) In case of a judgment against a person, the judgment is presumptive evidence of a right as
between the parties and their successors in interest by a subsequent title; but the judgment may be
repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.

It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in
this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of Court clearly provide
that with respect to actions in personam, as distinguished from actions in rem, a foreign judgment |merely
constitutes prima facie evidence of the justness of the claim of a party and, as such, is subject to proof to
the contrary.41

As the records show, Rebecca, assisted by counsel, personally secured the foreign divorce while Vicente was duly
represented by his counsel, a certain Dr. Alejandro Torrens, in said proceedings. As things stand, the foreign divorce
decrees rendered and issued by the Dominican Republic court are valid and, consequently, bind both Rebecca and
Vicente.

Finally, the fact that Rebecca may have been duly recognized as a Filipino citizen by force of the June 8, 2000
affirmation by Secretary of Justice Tuquero of the October 6, 1995 Bureau Order of Recognition will not, standing
alone, work to nullify or invalidate the foreign divorce secured by Rebecca as an American citizen on February 22,
1996. For as we stressed at the outset, in determining whether or not a divorce secured abroad would come within
the pale of the country's policy against absolute divorce, the reckoning point is the citizenship of the parties at the
time a valid divorce is obtained.42

Legal Effects of the Valid Divorce

Given the validity and efficacy of divorce secured by Rebecca, the same shall be given a res judicata effect in this
jurisdiction. As an obvious result of the divorce decree obtained, the marital vinculum between Rebecca and Vicente
is considered severed; they are both freed from the bond of matrimony. In plain language, Vicente and Rebecca are
no longer husband and wife to each other. As the divorce court formally pronounced: "[T]hat the marriage between
MARIA REBECCA M. BAYOT and VICENTE MADRIGAL BAYOT is hereby dissolved x x x leaving them free
to remarry after completing the legal requirements."43

Consequent to the dissolution of the marriage, Vicente could no longer be subject to a husband's obligation under
the Civil Code. He cannot, for instance, be obliged to live with, observe respect and fidelity, and render support to
Rebecca.44

The divorce decree in question also brings into play the second paragraph of Art. 26 of the Family Code, providing
as follows:

Art. 26. x x x x

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall
likewise have capacity to remarry under Philippine law. (As amended by E.O. 227)

In Republic v. Orbecido III, we spelled out the twin elements for the applicability of the second paragraph of Art.
26, thus:

26
 x x x [W]e state the twin elements for the application of Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but
their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to
remarry.45

Both elements obtain in the instant case. We need not belabor further the fact of marriage of Vicente and Rebecca,
their citizenship when they wed, and their professed citizenship during the valid divorce proceedings.

Not to be overlooked of course is the fact that Civil Decree No. 406/97 and the Agreement executed on December
14, 1996 bind both Rebecca and Vicente as regards their property relations. The Agreement provided that the ex-
couple's conjugal property consisted only their family home, thus:

9. That the parties stipulate that the conjugal property which they acquired during their marriage
consists only of the real property and all the improvements and personal properties therein contained at
502 Acacia Avenue, Ayala Alabang, Muntinlupa, covered by TCT No. 168301 dated Feb. 7, 1990 issued
by the Register of Deeds of Makati, Metro Manila registered in the name of Vicente M. Bayot, married to
Rebecca M. Bayot, x x x.46 (Emphasis ours.)

This property settlement embodied in the Agreement was affirmed by the divorce court which, per its second
divorce decree, Civil Decree No. 406/97 dated March 4, 1997, ordered that, "THIRD: That the agreement entered
into between the parties dated 14th day of December 1996 in Makati City, Philippines shall survive in this Judgment
of divorce by reference but not merged and that the parties are hereby ordered and directed to comply with each
and every provision of said agreement."47

Rebecca has not repudiated the property settlement contained in the Agreement. She is thus estopped by her
representation before the divorce court from asserting that her and Vicente's conjugal property was not limited to
their family home in Ayala Alabang.48

No Cause of Action in the Petition for Nullity of Marriage

Upon the foregoing disquisitions, it is abundantly clear to the Court that Rebecca lacks, under the premises, cause of
action. Philippine Bank of Communications v. Trazo explains the concept and elements of a cause of action, thus:

A cause of action is an act or omission of one party in violation of the legal right of the other. A motion to
dismiss based on lack of cause of action hypothetically admits the truth of the allegations in the complaint.
The allegations in a complaint are sufficient to constitute a cause of action against the defendants if,
hypothetically admitting the facts alleged, the court can render a valid judgment upon the same in
accordance with the prayer therein. A cause of action exists if the following elements are present, namely:
(1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an
obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or
omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the
obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of
damages.49

One thing is clear from a perusal of Rebecca's underlying petition before the RTC, Vicente's motion to dismiss and
Rebecca's opposition thereof, with the documentary evidence attached therein: The petitioner lacks a cause of action
for declaration of nullity of marriage, a suit which presupposes the existence of a marriage.

To sustain a motion to dismiss for lack of cause of action, the movant must show that the claim for relief does not
exist rather than that a claim has been defectively stated or is ambiguous, indefinite, or uncertain. 50 With the valid
foreign divorce secured by Rebecca, there is no more marital tie binding her to Vicente. There is in fine no more
marriage to be dissolved or nullified.

The Court to be sure does not lose sight of the legal obligation of Vicente and Rebecca to support the needs of their
daughter, Alix. The records do not clearly show how he had discharged his duty, albeit Rebecca alleged that the
support given had been insufficient. At any rate, we do note that Alix, having been born on November 27, 1982,
reached the majority age on November 27, 2000, or four months before her mother initiated her petition for
declaration of nullity. She would now be 26 years old. Hence, the issue of back support, which allegedly had been
partly shouldered by Rebecca, is best litigated in a separate civil action for reimbursement. In this way, the actual
figure for the support of Alix can be proved as well as the earning capacity of both Vicente and Rebecca. The trial

27
court can thus determine what Vicente owes, if any, considering that support includes provisions until the child
concerned shall have finished her education.

Upon the foregoing considerations, the Court no longer need to delve into the issue tendered in G.R. No. 155635,
that is, Rebecca's right to support pendente lite. As it were, her entitlement to that kind of support hinges on the
tenability of her petition under Civil Case No. 01-094 for declaration of nullity of marriage. The dismissal of Civil
Case No. 01-094 by the CA veritably removed any legal anchorage for, and effectively mooted, the claim for
support pendente lite.

WHEREFORE, the petition for certiorari in G.R. No. 155635 is hereby DISMISSED on the ground of mootness,
while the petition for review in G.R. No. 163979 is hereby DENIED for lack of merit. Accordingly, the March 25,
2004 Decision and June 4, 2004 Resolution of the CA in CA-G.R. SP No. 68187 are hereby AFFIRMED. Costs
against petitioner.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

G.R. No. 154380 October 5, 2005

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
CIPRIANO ORBECIDO III, Respondent.

DECISION

QUISUMBING, J.:

Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and
obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under
Philippine law?

Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel
question, presented as a pure question of law.

In this petition for review, the Solicitor General assails the Decision1 dated May 15, 2002, of the Regional Trial
Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2 dated July 4, 2002 denying the motion for
reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to
remarry. The fallo of the impugned Decision reads:

WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason of
the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under
the Philippine Law.

IT IS SO ORDERED.3

The factual antecedents, as narrated by the trial court, are as follows.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the
Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V.
Orbecido and Lady Kimberly V. Orbecido.

In 1986, Cipriano’s wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano
discovered that his wife had been naturalized as an American citizen.

Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a
certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San
Gabriel, California.

28
Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of
the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic,
herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied.

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

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE4

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it
only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The
proper remedy, according to the OSG, is to file a petition for annulment or for legal separation. 5 Furthermore, the
OSG argues there is no law that governs respondent’s situation. The OSG posits that this is a matter of legislation
and not of judicial determination.6

For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his
naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by
operation of law pursuant to Section 12, Article II of the Constitution.7

At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a
petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides:

RULE 63

DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petition—Any person interested under a deed, will, contract or other written instrument, or
whose rights are affected by a statute, executive order or regulation, ordinance, or other governmental regulation
may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a declaration of his rights or duties, thereunder.

...

The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy
must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the
controversy; and (4) that the issue is ripe for judicial determination.8

This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where
one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The interests of the
parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage
while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief,
has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when
respondent remarries, litigation ensues and puts into question the validity of his second marriage.

Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of
respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the
intent of the legislators in its enactment?

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the
"Family Code," which took effect on August 3, 1988. Article 26 thereof states:

All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles
35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise
signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26.
As so amended, it now provides:

ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country
where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited
under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

29
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to
remarry under Philippine law. (Emphasis supplied)

On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems to
apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a
foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino
citizens, but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting
her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A.

Noteworthy, in the Report of the Public Hearings9 on the Family Code, the Catholic Bishops’ Conference of the
Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26:

1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them abroad.
These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who validly divorce
them abroad can.

2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose
foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can re-marry.
We propose that this be deleted and made into law only after more widespread consultation. (Emphasis supplied.)

Legislative Intent

Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26,
according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd
situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer
married to the Filipino spouse.

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.10 The Van
Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce
decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is
capacitated to remarry under Philippine law.

Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were
Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization?

The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.11 In Quita, the parties were, as
in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and
obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by
his naturalized foreign spouse is no longer married under Philippine law and can thus remarry.

Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of
Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage
were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce
decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time
of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the
interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene
the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as
necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its
terms, so long as they come within its spirit or intent. 12

If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains
married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the
instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26.

In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their
citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.

30
In this case, when Cipriano’s wife was naturalized as an American citizen, there was still a valid marriage that has
been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a
valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26
are both present in this case. Thus Cipriano, the "divorced" Filipino spouse, should be allowed to remarry.

We are also unable to sustain the OSG’s theory that the proper remedy of the Filipino spouse is to file either a
petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this
particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of
validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie;
hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse.

However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the
divorce decree and the naturalization of respondent’s wife. It is settled rule that one who alleges a fact has the
burden of proving it and mere allegation is not evidence.13

Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an
American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading
it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. 14 Such foreign law
must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be
alleged and proved.15 Furthermore, respondent must also show that the divorce decree allows his former wife to
remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is
capacitated to enter into another marriage.

Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as
amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who
had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition
there is no sufficient evidence submitted and on record, we are unable to declare, based on respondent’s bare
allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had
remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made
properly upon respondent’s submission of the aforecited evidence in his favor.

ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May
15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23,
are hereby SET ASIDE.

No pronouncement as to costs.

SO ORDERED.

LEONARDO A. QUISUMBING

G.R. No. 186571               August 11, 2010

GERBERT R. CORPUZ, Petitioner,
vs.
DAISYLYN TIROL STO. TOMAS and The SOLICITOR GENERAL, Respondents.

DECISION

BRION, J.:

Before the Court is a direct appeal from the decision1 of the Regional Trial Court (RTC) of Laoag City, Branch 11,
elevated via a petition for review on certiorari2 under Rule 45 of the Rules of Court (present petition).

Petitioner Gerbert R. Corpuz was a former Filipino citizen who acquired Canadian citizenship through naturalization
on November 29, 2000.3 On January 18, 2005, Gerbert married respondent Daisylyn T. Sto. Tomas, a Filipina, in
Pasig City.4 Due to work and other professional commitments, Gerbert left for Canada soon after the wedding. He
returned to the Philippines sometime in April 2005 to surprise Daisylyn, but was shocked to discover that his wife
was having an affair with another man. Hurt and disappointed, Gerbert returned to Canada and filed a petition for
divorce. The Superior Court of Justice, Windsor, Ontario, Canada granted Gerbert’s petition for divorce on
December 8, 2005. The divorce decree took effect a month later, on January 8, 2006.5

Two years after the divorce, Gerbert has moved on and has found another Filipina to love. Desirous of marrying his
new Filipina fiancée in the Philippines, Gerbert went to the Pasig City Civil Registry Office and registered the
Canadian divorce decree on his and Daisylyn’s marriage certificate. Despite the registration of the divorce decree,

31
an official of the National Statistics Office (NSO) informed Gerbert that the marriage between him and Daisylyn
still subsists under Philippine law; to be enforceable, the foreign divorce decree must first be judicially recognized
by a competent Philippine court, pursuant to NSO Circular No. 4, series of 1982.6

Accordingly, Gerbert filed a petition for judicial recognition of foreign divorce and/or declaration of marriage as
dissolved (petition) with the RTC. Although summoned, Daisylyn did not file any responsive pleading but submitted
instead a notarized letter/manifestation to the trial court. She offered no opposition to Gerbert’s petition and, in fact,
alleged her desire to file a similar case herself but was prevented by financial and personal circumstances. She, thus,
requested that she be considered as a party-in-interest with a similar prayer to Gerbert’s.

In its October 30, 2008 decision,7 the RTC denied Gerbert’s petition. The RTC concluded that Gerbert was not the
proper party to institute the action for judicial recognition of the foreign divorce decree as he is a naturalized
Canadian citizen. It ruled that only the Filipino spouse can avail of the remedy, under the second paragraph of
Article 26 of the Family Code,8 in order for him or her to be able to remarry under Philippine law.9 Article 26 of the
Family Code reads:

Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where
they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under
Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have
capacity to remarry under Philippine law.

This conclusion, the RTC stated, is consistent with the legislative intent behind the enactment of the second
paragraph of Article 26 of the Family Code, as determined by the Court in Republic v. Orbecido III; 10 the provision
was enacted to "avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse."11

THE PETITION

From the RTC’s ruling,12 Gerbert filed the present petition.13

Gerbert asserts that his petition before the RTC is essentially for declaratory relief, similar to that filed in Orbecido;
he, thus, similarly asks for a determination of his rights under the second paragraph of Article 26 of the Family
Code. Taking into account the rationale behind the second paragraph of Article 26 of the Family Code, he contends
that the provision applies as well to the benefit of the alien spouse. He claims that the RTC ruling unduly stretched
the doctrine in Orbecido by limiting the standing to file the petition only to the Filipino spouse – an interpretation he
claims to be contrary to the essence of the second paragraph of Article 26 of the Family Code. He considers himself
as a proper party, vested with sufficient legal interest, to institute the case, as there is a possibility that he might be
prosecuted for bigamy if he marries his Filipina fiancée in the Philippines since two marriage certificates, involving
him, would be on file with the Civil Registry Office. The Office of the Solicitor General and Daisylyn, in their
respective Comments,14 both support Gerbert’s position.

Essentially, the petition raises the issue of whether the second paragraph of Article 26 of the Family Code extends to
aliens the right to petition a court of this jurisdiction for the recognition of a foreign divorce decree.

THE COURT’S RULING

The alien spouse can claim no right under the second paragraph of Article 26 of the Family Code as the substantive
right it establishes is in favor of the Filipino spouse

The resolution of the issue requires a review of the legislative history and intent behind the second paragraph of
Article 26 of the Family Code.

The Family Code recognizes only two types of defective marriages – void15 and voidable16 marriages. In both cases,
the basis for the judicial declaration of absolute nullity or annulment of the marriage exists before or at the time of
the marriage. Divorce, on the other hand, contemplates the dissolution of the lawful union for cause arising after the
marriage.17 Our family laws do not recognize absolute divorce between Filipino citizens. 18

Recognizing the reality that divorce is a possibility in marriages between a Filipino and an alien, President Corazon
C. Aquino, in the exercise of her legislative powers under the Freedom Constitution,19 enacted Executive Order No.
(EO) 227, amending Article 26 of the Family Code to its present wording, as follows:

32
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where
they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under
Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have
capacity to remarry under Philippine law.

Through the second paragraph of Article 26 of the Family Code, EO 227 effectively incorporated into the law this
Court’s holding in Van Dorn v. Romillo, Jr.20 and Pilapil v. Ibay-Somera.21 In both cases, the Court refused to
acknowledge the alien spouse’s assertion of marital rights after a foreign court’s divorce decree between the alien
and the Filipino. The Court, thus, recognized that the foreign divorce had already severed the marital bond between
the spouses. The Court reasoned in Van Dorn v. Romillo that:

To maintain x x x that, under our laws, [the Filipino spouse] has to be considered still married to [the alien spouse]
and still subject to a wife's obligations x x x cannot be just. [The Filipino spouse] should not be obliged to live
together with, observe respect and fidelity, and render support to [the alien spouse]. The latter should not continue to
be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own
country if the ends of justice are to be served.22

As the RTC correctly stated, the provision was included in the law "to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino
spouse."23 The legislative intent is for the benefit of the Filipino spouse, by clarifying his or her marital status,
settling the doubts created by the divorce decree. Essentially, the second paragraph of Article 26 of the Family Code
provided the Filipino spouse a substantive right to have his or her marriage to the alien spouse considered as
dissolved, capacitating him or her to remarry.24 Without the second paragraph of Article 26 of the Family Code, the
judicial recognition of the foreign decree of divorce, whether in a proceeding instituted precisely for that purpose or
as a related issue in another proceeding, would be of no significance to the Filipino spouse since our laws do not
recognize divorce as a mode of severing the marital bond;25 Article 17 of the Civil Code provides that the policy
against absolute divorces cannot be subverted by judgments promulgated in a foreign country. The inclusion of the
second paragraph in Article 26 of the Family Code provides the direct exception to this rule and serves as basis for
recognizing the dissolution of the marriage between the Filipino spouse and his or her alien spouse.

Additionally, an action based on the second paragraph of Article 26 of the Family Code is not limited to the
recognition of the foreign divorce decree. If the court finds that the decree capacitated the alien spouse to remarry,
the courts can declare that the Filipino spouse is likewise capacitated to contract another marriage. No court in this
jurisdiction, however, can make a similar declaration for the alien spouse (other than that already established by the
decree), whose status and legal capacity are generally governed by his national law.26

Given the rationale and intent behind the enactment, and the purpose of the second paragraph of Article 26 of the
Family Code, the RTC was correct in limiting the applicability of the provision for the benefit of the Filipino spouse.
In other words, only the Filipino spouse can invoke the second paragraph of Article 26 of the Family Code; the alien
spouse can claim no right under this provision.

The foreign divorce decree is presumptive evidence of a right that clothes the party with legal interest to petition for
its recognition in this jurisdiction

We qualify our above conclusion – i.e., that the second paragraph of Article 26 of the Family Code bestows no
rights in favor of aliens – with the complementary statement that this conclusion is not sufficient basis to dismiss
Gerbert’s petition before the RTC. In other words, the unavailability of the second paragraph of Article 26 of the
Family Code to aliens does not necessarily strip Gerbert of legal interest to petition the RTC for the recognition of
his foreign divorce decree. The foreign divorce decree itself, after its authenticity and conformity with the alien’s
national law have been duly proven according to our rules of evidence, serves as a presumptive evidence of right in
favor of Gerbert, pursuant to Section 48, Rule 39 of the Rules of Court which provides for the effect of foreign
judgments. This Section states:

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:

(a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon
the title of the thing; and

(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.

33
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.

To our mind, direct involvement or being the subject of the foreign judgment is sufficient to clothe a party with the
requisite interest to institute an action before our courts for the recognition of the foreign judgment. In a divorce
situation, we have declared, no less, that the divorce obtained by an alien abroad may be recognized in the
Philippines, provided the divorce is valid according to his or her national law. 27

The starting point in any recognition of a foreign divorce judgment is the acknowledgment that our courts do not
take judicial notice of foreign judgments and laws. Justice Herrera explained that, as a rule, "no sovereign is bound
to give effect within its dominion to a judgment rendered by a tribunal of another country." 28 This means that the
foreign judgment and its authenticity must be proven as facts under our rules on evidence, together with the alien’s
applicable national law to show the effect of the judgment on the alien himself or herself. 29 The recognition may be
made in an action instituted specifically for the purpose or in another action where a party invokes the foreign decree
as an integral aspect of his claim or defense.

In Gerbert’s case, since both the foreign divorce decree and the national law of the alien, recognizing his or her
capacity to obtain a divorce, purport to be official acts of a sovereign authority, Section 24, Rule 132 of the Rules of
Court comes into play. This Section requires proof, either by (1) official publications or (2) copies attested by the
officer having legal custody of the documents. If the copies of official records are not kept in the Philippines, these
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.

The records show that Gerbert attached to his petition a copy of the divorce decree, as well as the required
certificates proving its authenticity,30 but failed to include a copy of the Canadian law on divorce.31 Under this
situation, we can, at this point, simply dismiss the petition for insufficiency of supporting evidence, unless we deem
it more appropriate to remand the case to the RTC to determine whether the divorce decree is consistent with the
Canadian divorce law.

We deem it more appropriate to take this latter course of action, given the Article 26 interests that will be served and
the Filipina wife’s (Daisylyn’s) obvious conformity with the petition. A remand, at the same time, will allow other
interested parties to oppose the foreign judgment and overcome a petitioner’s presumptive evidence of a right by
proving want of jurisdiction, want of notice to a party, collusion, fraud, or clear mistake of law or fact. Needless to
state, every precaution must be taken to ensure conformity with our laws before a recognition is made, as the foreign
judgment, once recognized, shall have the effect of res judicata32 between the parties, as provided in Section 48,
Rule 39 of the Rules of Court.33

In fact, more than the principle of comity that is served by the practice of reciprocal recognition of foreign
judgments between nations, the res judicata effect of the foreign judgments of divorce serves as the deeper basis for
extending judicial recognition and for considering the alien spouse bound by its terms. This same effect, as
discussed above, will not obtain for the Filipino spouse were it not for the substantive rule that the second paragraph
of Article 26 of the Family Code provides.

Considerations beyond the recognition of the foreign divorce decree

As a matter of "housekeeping" concern, we note that the Pasig City Civil Registry Office has already recorded the
divorce decree on Gerbert and Daisylyn’s marriage certificate based on the mere presentation of the decree. 34 We
consider the recording to be legally improper; hence, the need to draw attention of the bench and the bar to what had
been done.

Article 407 of the Civil Code states that "[a]cts, events and judicial decrees concerning the civil status of persons
shall be recorded in the civil register." The law requires the entry in the civil registry of judicial decrees that produce
legal consequences touching upon a person’s legal capacity and status, i.e., those affecting "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."35

A judgment of divorce is a judicial decree, although a foreign one, affecting a person’s legal capacity and status that
must be recorded. In fact, Act No. 3753 or the Law on Registry of Civil Status specifically requires the registration
of divorce decrees in the civil registry:

Sec. 1. Civil Register. – A civil register is established for recording the civil status of persons, in which shall be
entered:

(a) births;

34
 (b) deaths;

(c) marriages;

(d) annulments of marriages;

(e) divorces;

(f) legitimations;

(g) adoptions;

(h) acknowledgment of natural children;

(i) naturalization; and

(j) changes of name.

xxxx

Sec. 4. Civil Register Books. — The local registrars shall keep and preserve in their offices the following books, in
which they shall, respectively make the proper entries concerning the civil status of persons:

(1) Birth and death register;

(2) Marriage register, in which shall be entered not only the marriages solemnized but also divorces and
dissolved marriages.

(3) Legitimation, acknowledgment, adoption, change of name and naturalization register.

But while the law requires the entry of the divorce decree in the civil registry, the law and the submission of the
decree by themselves do not ipso facto authorize the decree’s registration. The law should be read in relation with
the requirement of a judicial recognition of the foreign judgment before it can be given res judicata effect. In the
context of the present case, no judicial order as yet exists recognizing the foreign divorce decree. Thus, the Pasig
City Civil Registry Office acted totally out of turn and without authority of law when it annotated the Canadian
divorce decree on Gerbert and Daisylyn’s marriage certificate, on the strength alone of the foreign decree presented
by Gerbert.

Evidently, the Pasig City Civil Registry Office was aware of the requirement of a court recognition, as it cited NSO
Circular No. 4, series of 1982,36 and Department of Justice Opinion No. 181, series of 198237 – both of which
required a final order from a competent Philippine court before a foreign judgment, dissolving a marriage, can be
registered in the civil registry, but it, nonetheless, allowed the registration of the decree. For being contrary to law,
the registration of the foreign divorce decree without the requisite judicial recognition is patently void and cannot
produce any legal effect.1avvphi1

Another point we wish to draw attention to is that the recognition that the RTC may extend to the Canadian divorce
decree does not, by itself, authorize the cancellation of the entry in the civil registry. A petition for recognition of a
foreign judgment is not the proper proceeding, contemplated under the Rules of Court, for the cancellation of entries
in the civil registry.

Article 412 of the Civil Code declares that "no entry in a civil register shall be changed or corrected, without judicial
order." The Rules of Court supplements Article 412 of the Civil Code by specifically providing for a special
remedial proceeding by which entries in the civil registry may be judicially cancelled or corrected. Rule 108 of the
Rules of Court sets in detail the jurisdictional and procedural requirements that must be complied with before a
judgment, authorizing the cancellation or correction, may be annotated in the civil registry. It also requires, among
others, that the verified petition must be filed with the RTC of the province where the corresponding civil registry is
located;38 that the civil registrar and all persons who have or claim any interest must be made parties to the
proceedings;39 and that the time and place for hearing must be published in a newspaper of general circulation.40 As
these basic jurisdictional requirements have not been met in the present case, we cannot consider the petition
Gerbert filed with the RTC as one filed under Rule 108 of the Rules of Court.

We hasten to point out, however, that this ruling should not be construed as requiring two separate proceedings for
the registration of a foreign divorce decree in the civil registry – one for recognition of the foreign decree and
another specifically for cancellation of the entry under Rule 108 of the Rules of Court. The recognition of the

35
foreign divorce decree may be made in a Rule 108 proceeding itself, as the object of special proceedings (such as
that in Rule 108 of the Rules of Court) is precisely to establish the status or right of a party or a particular fact.
Moreover, Rule 108 of the Rules of Court can serve as the appropriate adversarial proceeding 41 by which the
applicability of the foreign judgment can be measured and tested in terms of jurisdictional infirmities, want of notice
to the party, collusion, fraud, or clear mistake of law or fact.

WHEREFORE, we GRANT the petition for review on certiorari, and REVERSE the October 30, 2008 decision of
the Regional Trial Court of Laoag City, Branch 11, as well as its February 17, 2009 order. We order the REMAND
of the case to the trial court for further proceedings in accordance with our ruling above. Let a copy of this Decision
be furnished the Civil Registrar General. No costs.

SO ORDERED.

ARTURO D. BRION
Associate Justice

G.R. No. 138322           October 2, 2001

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

vs.
REDERICK A. RECIO, respondents.

PANGANIBAN, J.:

A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid
according to the national law of the foreigner. However, the divorce decree and the governing personal law of the
alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and
judgment; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and
proven according to our law on evidence.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999
Decision1 and the March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case
No. 3026-AF. The assailed Decision disposed as follows:

"WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio
solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now remarry under
existing and applicable laws to any and/or both parties."3

The assailed Order denied reconsideration of the above-quoted Decision.

The Facts

Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1,
1987.4 They lived together as husband and wife in Australia. On May 18, 1989,5 a decree of divorce, purportedly
dissolving the marriage, was issued by an Australian family court.

On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian Citizenship"
issued by the Australian government.6 Petitioner – a Filipina – and respondent were married on January 12, 1994 in
Our Lady of Perpetual Help Church in Cabanatuan City.7 In their application for a marriage license, respondent was
declared as "single" and "Filipino."8

Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their
marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance
with their Statutory Declarations secured in Australia.9

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage 10 in the court a quo, on the
ground of bigamy – respondent allegedly had a prior subsisting marriage at the time he married her on January 12,
1994. She claimed that she learned of respondent's marriage to Editha Samson only in November, 1997.

36
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 Australian in 1989;12 thus, he was legally capacitated to marry petitioner in
1994.1âwphi1.nêt

On July 7, 1998 – or about five years after the couple's wedding and while the suit for the declaration of nullity was
pending – respondent was able to secure a divorce decree from a family court in Sydney, Australia because the
"marriage ha[d] irretrievably broken down."13

Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no cause of
action.14 The Office of the Solicitor General agreed with respondent.15 The court marked and admitted the
documentary evidence of both parties.16 After they submitted their respective memoranda, the case was submitted
for resolution.17

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, respondent's alleged lack of legal capacity to remarry. Rather, it based its Decision
on the divorce decree obtained by respondent. The Australian divorce had ended the marriage; thus, there was no
more martial union to nullify or annual.

Hence, this Petition.18

Issues

Petitioner submits the following issues for our consideration:

"I

The trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso
facto terminated his first marriage to Editha Samson thereby capacitating him to contract a second marriage
with the petitioner.

"2

The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity
to marry constitutes absence of a substantial requisite voiding the petitioner' marriage to the respondent.

"3

The trial court seriously erred in the application of Art. 26 of the Family Code in this case.

"4

The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the
Family Code as the applicable provisions in this case.

"5

The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that the divorce
decree obtained by the respondent in Australia ipso facto capacitated the parties to remarry, without first
securing a recognition of the judgment granting the divorce decree before our courts." 19

The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1)
whether the divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to
be legally capacitated to marry petitioner. Because of our ruling on these two, there is no more necessity to take up
the rest.

The Court's Ruling

The Petition is partly meritorious.

37
 First Issue:

Proving the Divorce Between Respondent and Editha Samson

Petitioner assails the trial court's recognition of the divorce between respondent and Editha Samson. Citing Adong v.
Cheong Seng Gee,20 petitioner argues that the divorce decree, like any other foreign judgment, may be given
recognition in this jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute divorce and
(2) the alleged divorce decree itself. She adds that respondent miserably failed to establish these elements.

Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized abroad are
governed by the law of the place where they were celebrated (the lex loci celebrationist). In effect, the Code requires
the presentation of the foreign law to show the conformity of the marriage in question to the legal requirements of
the place where the marriage was performed.

At the outset, we lay the following basic legal principles as the take-off points for our discussion. Philippine law
does not provide for absolute divorce; hence, our courts cannot grant it.21 A marriage between two Filipinos cannot
be dissolved even by a divorce obtained abroad, because of Articles 1522 and 1723 of the Civil Code.24 In mixed
marriages involving a Filipino and a foreigner, Article 2625 of the Family Code allows the former to contract a
subsequent marriage in case the divorce is "validly obtained abroad by the alien spouse capacitating him or her to
remarry."26 A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines,
provided it is consistent with their respective national laws. 27

A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van Dorn v.
Romillo Jr. decrees that "aliens may obtain divorces abroad, which may be recognized in the Philippines, provided
they are valid according to their national law."28 Therefore, before a foreign divorce decree can be recognized by our
courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law
allowing it.29 Presentation solely of the divorce decree is insufficient.

Divorce as a Question of Fact

Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the registration
requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows:

"ART. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn
application for such license with the proper local civil registrar which shall specify the following:

x x x     x x x     x x x

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

x x x      x x x      x x x

"ART. 13. In case either of the contracting parties has been previously married, the applicant shall be
required to furnish, instead of the birth of baptismal certificate required in the last preceding article, the
death certificate of the deceased spouse or the judicial decree of annulment or declaration of nullity of his
or her previous marriage. x x x.

"ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution
of the properties of the spouses, and the delivery of the children's presumptive legitimes shall be recorded
in the appropriate civil registry and registries of property; otherwise, the same shall not affect their
persons."

Respondent, on the other hand, argues that the Australian divorce decree is a public document – a written official act
of an Australian family court. Therefore, it requires no further proof of its authenticity and due execution.

Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the
document must first be presented and admitted in evidence.30 A divorce obtained abroad is proven by the divorce
decree itself. Indeed the best evidence of a judgment is the judgment itself. 31 The decree purports to be a written act
or record of an act of an officially body or tribunal of a foreign country.32

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or
official record of a foreign country by either (1) an official publication or (2) a copy thereof attested33 by the officer
having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a)
accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service
stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. 34

38
The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian
family court.35 However, appearance is not sufficient; compliance with the aforemetioned rules on evidence must be
demonstrated.

Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel for
petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil
Registry of Cabanatuan City.36 The trial court ruled that it was admissible, subject to petitioner's
qualification.37 Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to
object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia. 38

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer
bound by Philippine personal laws after he acquired Australian citizenship in 1992.39 Naturalization is the legal act
of adopting an alien and clothing him with the political and civil rights belonging to a citizen. 40 Naturalized citizens,
freed from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an
Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to
Philippine personal laws.

Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party
challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of the
divorce decree and was cognizant of the marital laws of Australia, because she had lived and worked in that country
for quite a long time. Besides, the Australian divorce law is allegedly known by Philippine courts: thus, judges may
take judicial notice of foreign laws in the exercise of sound discretion.

We are not persuaded. The burden of proof lies with "the party who alleges the existence of a fact or thing necessary
in the prosecution or defense of an action."41 In civil cases, plaintiffs have the burden of proving the material
allegations of the complaint when those are denied by the answer; and defendants have the burden of proving the
material allegations in their answer when they introduce new matters. 42 Since the divorce was a defense raised by
respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him.

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. 43 Like any other facts,
they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to
know by reason of their judicial function.44 The power of judicial notice must be exercised with caution, and every
reasonable doubt upon the subject should be resolved in the negative.

Second Issue:

Respondent's Legal Capacity to Remarry

Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to
marry her in 1994.

Hence, she concludes that their marriage was void ab initio.

Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately
established his legal capacity to marry under Australian law.

Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful union
for a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce
or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the
second suspends it and leaves the bond in full force.45 There is no showing in the case at bar which type of divorce
was procured by respondent.

Respondent presented a decree nisi or an interlocutory decree – a conditional or provisional judgment of divorce. It
is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of
the prescribed period during which no reconciliation is effected. 46

Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict
remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a divorce
which was granted on the ground of adultery may be prohibited from remarrying again. The court may allow a
remarriage only after proof of good behavior.47

On its face, the herein Australian divorce decree contains a restriction that reads:

39
 "1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has
died) commits the offence of bigamy."48

This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did not
absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for the
ruling of the trial court, which erroneously assumed that the Australian divorce ipso facto restored respondent's
capacity to remarry despite the paucity of evidence on this matter.

We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive
evidence as to his civil status based on Section 48, Rule 3949 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. 50

As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry petitioner. A
review of the records before this Court shows that only the following exhibits were presented before the lower court:
(1) for petitioner: (a) Exhibit "A" – Complaint;51 (b) Exhibit "B" – Certificate of Marriage Between Rederick A.
Recto (Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva
Ecija;52 (c) Exhibit "C" – Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson
(Australian) on March 1, 1987 in Malabon, Metro Manila;53 (d) Exhibit "D" – Office of the City Registrar of
Cabanatuan City Certification that no information of annulment between Rederick A. Recto and Editha D. Samson
was in its records;54 and (e) Exhibit "E" – Certificate of Australian Citizenship of Rederick A. Recto; 55 (2) for
respondent: (Exhibit "1" – Amended Answer;56 (b) Exhibit "S" – Family Law Act 1975 Decree Nisi of Dissolution
of Marriage in the Family Court of Australia;57 (c) Exhibit "3" – Certificate of Australian Citizenship of Rederick A.
Recto;58 (d) Exhibit "4" – Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate; 59 and
Exhibit "5" – Statutory Declaration of the Legal Separation Between Rederick A. Recto and Grace J. Garcia Recio
since October 22, 1995.60

Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian citizen, was
legally capacitated to marry petitioner on January 12, 1994. We agree with petitioner's contention that the court a
quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without
requiring him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very
least, to prove his legal capacity to contract the second marriage.

Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the ground of
bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a direct
result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court
to receive evidence, if any, which show petitioner's legal capacity to marry petitioner. Failing in that, then the
court a quo may declare a nullity of the parties' marriage on the ground of bigamy, there being already in evidence
two existing marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated
March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.

WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the court a
quo for the purpose of receiving evidence which conclusively show respondent's legal capacity to marry petitioner;
and failing in that, of declaring the parties' marriage void on the ground of bigamy, as above discussed. No costs.

SO ORDERED.

G.R. No. 18081             March 3, 1922

IN THE MATTER OF THE ESTATE OF CHEONG BOO, deceased.

MORA ADONG, petitioner-appellant,
vs.
CHEONG SENG GEE, opponent-appellant.

40
Kincaid, Perkins & Kincaid and P. J. Moore for petitioner-appellant.
Carlos A. Sobral for opponent-appellant.

MALCOLM, J.:

The two question presented for determination by these appeals may be framed as follows: Is a marriage contracted
in China and proven mainly by an alleged matrimonial letter, valid in the Philippines? Are the marriage performed
in the Philippines according to the rites of the Mohammedan religion valid? As the decision of the Supreme Court
on the last point will affect marriages consummated by not less than one hundred and fifty thousand Moros who
profess the Mohammedan faith, the transcendental importance of the cause can be realized. We proposed to give to
the subject the serious consideration which it deserves.

Cheong Boo, a native of China, died intestate in Zamboanga, Philippine Islands, on August 5, 1919. He left property
worth nearly P100,000. The estate of the deceased was claimed, on the one hand, by Cheong Seng Gee, who alleged
that he was a legitimate child by a marriage contracted by Cheong Boo with Tan Dit in China in 1895. The estate
was claimed, on the other hand, by the Mora Adong who alleged that she had been lawfully married to Cheong Boo
in 1896 in Basilan, Philippine Islands, and her daughters, Payang, married to Cheng Bian Chay, and Rosalia Cheong
Boo, unmarried.

The conflicting claims to the estate of Cheong Boo were ventilated in the Court of First Instance of Zamboanga. The
trial judge, the Honorable Quirico Abeto, after hearing the evidence presented by both sides, reached the conclusion,
with reference to the allegations of Cheong Seng Gee, that the proof did not sufficiently establish the Chinese
marriage, but that because Cheong Seng Gee had been admitted to the Philippine Islands as the son of the deceased,
he should share in the estate as a natural child. With reference to the allegations of the Mora Adong and her
daughters Payang and Rosalia, the trial judge reached the conclusion that the marriage between the Mora Adong and
the deceased had been adequately proved but that under the laws of the Philippine Islands it could not be held to be a
lawful marriage; accordingly, the daughters Payang and Rosalia would inherit as natural children. The order of the
trial judge, following these conclusions, was that there should be a partition of the property of the deceased Cheong
Boo between the natural children, Cheong Seng Gee, Payang, and Rosalia.

From the judgment of the Judge of First Instance both parties perfected appeals. As to the facts, we can say that we
agree in substance with the findings of the trial court. As to the legal issues submitted for decision by the numerous
assignments of error, these can best be resolved under two heads, namely: (1) The validity of the Chinese marriage;
and (2) the validity of the Mohammedan marriage.

1. Validity of the Chinese Marriage

The theory advanced on behalf of the claimant Cheong Seng Gee was that Cheong Boo was married in the city of
Amoy, China, during the second moon of the twenty-first year of the Emperor Quang Su, or, according to the
modern count, on February 16, 1985, to a young lady named Tan Dit. Witnesses were presented who testified to
having been present at the marriage ceremony. There was also introduced in evidence a document in Chinese which
in translation reads as follows:

One hundred years Your nephew, Tan Chao, respecfully answers

of life and health the venerable Chiong Ing, father of the
for both. bridegroom, accepting his offer of marriage,
and let this document serve as proof of the
acceptance of said marriage which is to be
celebrated during the merry season of the
flowers.

I take advantage of this occasion to wish for

your and the spouses much happiness, a long
life, and prolific issue, as noble and great as that
which you brought forth. I consider the
marriage of your son Boo with my sister Lit
Chia as a mandate of God and I hope that they
treat each other with great love and mutual
courtesy and that both they and their parents be
very happy.

Given during the second moon of the twenty-

first year of the reign of the Emperor Quang Su.

41
Cheong Boo is said to have remained in China for one year and four months after his marriage during which time
there was born to him and his wife a child named Cheong Seng Gee. Cheong Boo then left China for the Philippine
Islands and sometime thereafter took to himself a concubine Mora by whom he had two children. In 1910, Cheong
Boo was followed to the Philippines by Cheong Seng Gee who, as appears from documents presented in evidence,
was permitted to land in the Philippine Islands as the son of Cheong Boo. The deceased, however, never returned to
his native hearth and seems never to have corresponded with his Chinese wife or to have had any further relations
with her except once when he sent her P10.

The trial judge found, as we have said, that the proof did not sustain the allegation of the claimant Cheong Seng
Gee, that Cheong Boo had married in China. His Honor noted a strong inclination on the part of the Chinese
witnesses, especially the brother of Cheong Boo, to protect the interests of the alleged son, Cheong Seng Gee, by
overstepping the limits of truthfulness. His Honor also noted that reliable witnesses stated that in the year 1895,
when Cheong Boo was supposed to have been in China, he was in reality in Jolo, in the Philippine Islands. We are
not disposed to disturb this appreciation of fact by the trial court. The immigration documents only go to show the
relation of parent and child existing between the deceased Cheong Boo and his son Cheong Seng Gee and do not
establish the marriage between the deceased and the mother of Cheong Seng Gee.

Section IV of the Marriage Law (General Order No. 68) provides that "All marriages contracted without these
Islands, which would be valid by the laws of the country in which the same were contracted, are valid in these
Islands." To establish a valid foreign marriage pursuant to this comity provision, it is first necessary to prove before
the courts of the Islands the existence of the foreign law as a question of fact, and it is then necessary to prove the
alleged foreign marriage by convincing evidence.

As a case directly in point is the leading one of Sy Joc Lieng vs. Encarnacion ([1910]), 16 Phil., 137; [1913], 228
U.S., 335). Here, the courts of the Philippines and the Supreme Court of the United States were called upon to
decide, as to the conflicting claims to the estate of a Chinese merchant, between the descendants of an alleged
Chinese marriage and the descendants of an alleged Philippine marriage. The Supreme Courts of the Philippine
Islands and the United States united in holding that the Chinese marriage was not adequately proved. The legal rule
was stated by the United States Supreme Court to be this: A Philippine marriage, followed by forty years of
uninterrupted marital life, should not be impugned and discredited, after the death of the husband and administration
of his estate, though an alleged prior Chinese marriage, "save upon proof so clear, strong, and unequivocal as to
produce a moral conviction of the existence of such impediment." Another case in the same category is that of Son
Cui vs. Guepangco ([1912], 22 Phil., 216).

In the case at bar there is no competent testimony as to what the laws of China in the Province of Amoy concerning
marriage were in 1895. As in the Encarnacion case, there is lacking proof so clear, strong, and unequivocal as to
produce a moral conviction of the existence of the alleged prior Chinese marriage. Substitute twenty-three years for
forty years and the two cases are the same.

The lower court allowed the claimant, Cheong Seng Gee, the testamentary rights of an acknowledged natural child.
This finding finds some support in Exhibit 3, the affidavit of Cheong Boo before the American Vice-Consul at
Sandakan, British North Borneo. But we are not called upon to make a pronouncement on the question, because the
oppositor-appellant indicates silent acquiescence by assigning no error.

2. Validity of the Mohammedan Marriage

The biographical data relating to the Philippine odyssey of the Chinaman Cheong Boo is fairly complete. He appears
to have first landed on Philippine soil sometime prior to the year 1896. At least, in the year las mentioned, we find
him in Basilan, Philippine Islands. There he was married to the Mora Adong according to the ceremonies prescribed
by the book on marriage of the Koran, by the Mohammedan Iman (priest) Habubakar. That a marriage ceremony
took place is established by one of the parties to the marriage, the Mora Adong, by the Iman who solemnized the
marriage, and by other eyewitnesses, one of whom was the father of the bride, and another, the chief of the
rancheria, now a municipal councilor. The groom complied with Quranic law by giving to the bride a dowry of P250
in money and P250 in goods.

The religious rites began with the bride and groom seating themselves in the house of the father of the bride,
Marahadja Sahibil. The Iman read from the Koran. Then the Iman asked the parents if they had any objection to the
marriage. The marital act was consummated by the groom entering the woman's mosquito net.

From the marriage day until the death of Cheong Boo, twenty-three years later, the Chinaman and the Mora Adong
cohabited as husband and wife. To them were born five children, two of whom, Payang and Rosalia, are living. Both
in his relations with Mora Adong and with third persons during his lifetime, Cheong Boo treated Adong as his
lawful wife. He admitted this relationship in several private and public documents. Thus, when different legal
documents were executed, including decrees of registration, Cheong Boo stated that he was married to the Mora
Adong while as late as 1918, he gave written consent to the marriage of his minor daughter, Payang.

42
Notwithstanding the insinuation of counsel for the Chinese appellant that the custom is prevalent among the Moros
to favor in their testimony, a relative or friend, especially when they do not swear on the Koran to tell the truth, it
seems to us that proof could not be more convincing of the fact that a marriage was contracted by the Chinaman
Cheong Boo and the Mora Adong, according to the ceremonies of the Mohammedan religion.

It is next incumbent upon us to approach the principal question which we announced in the very beginning of this
decision, namely, Are the marriages performed in the Philippines according to the rites of the Mohammedan religion
valid? Three sections of the Marriage Law (General Order No. 68) must be taken into consideration.

Section V of the Marriage Law provides that "Marriage may be solemnized by either a judge of any court inferior to
the Supreme Court, justice of the peace, or priest or minister of the Gospel of any denomination . . ." Counsel,
failing to take account of the word "priest," and only considering the phrase "minister of the Gospel of any
denomination" would limit the meaning of this clause to ministers of the Christian religion. We believe this is a
strained interpretation. "Priest," according to the lexicographers, means one especially consecrated to the service of
a divinity and considered as the medium through whom worship, prayer, sacrifice, or other service is to be offered to
the being worshipped, and pardon, blessing, deliverance, etc., obtained by the worshipper, as a priest of Baal or of
Jehovah; a Buddhist priest. "Minister of the Gospel" means all clergymen of every denomination and faith. A
"denomination" is a religious sect having a particular name. (Haggin vs. Haggin [1892], 35 Neb., 375; In
re Reinhart, 9 O. Dec., 441; Hale vs. Everett [1868], 53 N. H. 9.) A Mohammedan Iman is a "priest or minister of
the Gospel," and Mohammedanism is a "denomination," within the meaning of the Marriage Law.

The following section of the Marriage Law, No. VI, provides that "No particular form for the ceremony of marriage
is required, but the parties must declare, in the presence of the person solemnizing the marriage, that they take each
other as husband and wife." The law is quite correct in affirming that no precise ceremonial is indispensable
requisite for the creation of the marriage contract. The two essentials of a valid marriage are capacity and consent.
The latter element may be inferred from the ceremony performed, the acts of the parties, and habit or repute. In this
instance, there is no question of capacity. Nor do we think there can exist any doubt as to consent. While it is true
that during the Mohammedan ceremony, the remarks of the priest were addressed more to the elders than to the
participants, it is likewise true that the Chinaman and the Mora woman did in fact take each other to be husband and
wife and did thereafter live together as husband and wife. (Travers vs. Reinhardt [1907], 205 U.S., 423.

It would be possible to leave out of view altogether the two sections of the Marriage Law which have just been
quoted and discussed. The particular portion of the law which, in our opinion, is controlling, is section IX, reading
as follows: "No marriage heretofore solemnized before any person professing to have authority therefor shall be
invalid for want of such authority or on account of any informality, irregularity, or omission, if it was celebrated
with the belief of the parties, or either of them, that he had authority and that they have been lawfully married."

The trial judge in construing this provision of law said that he did not believe that the legislative intention in
promulgating it was to validate marriages celebrated between Mohammedans. To quote the judge:

This provisions relates to marriages contracted by virtue of the provisions of the Spanish law before
revolutionary authorized to solemnized marriages, and it is not to be presumed that the legislator intended
by this law to validate void marriages celebrated during the Spanish sovereignty contrary to the laws which
then governed.

What authority there is for this statement, we cannot conceive. To our mind, nothing could be clearer than the
language used in section IX. Note for a moment the all embracing words found in this section:

"No marriage" — Could more inclusive words be found? "Heretofore solemnized" — Could any other construction
than that of retrospective force be given to this phrase? "Before any person professing to have authority therefor
shall be invalid for want of such authority" — Could stronger language than this be invoked to announce legislative
intention? "Or on account of any informality, irregularity, or omission" — Could the legislative mind frame an idea
which would more effectively guard the marriage relation against technicality? "If it was celebrated with the belief
of the parties, or either of them, that he had authority and that they have been lawfully married" — What was the
purpose of the legislator here, if it was not to legalize the marriage, if it was celebrated by any person who thought
that he had authority to perform the same, and if either of the parties thought that they had been married? Is there
any word or hint of any word which would restrict the curative provisions of section IX of the Marriage Law to
Christian marriages? By what system of mental gymnastics would it be possible to evolve from such precise
language the curious idea that it was restricted to marriages performed under the Spanish law before the
revolutionary authorities?

In view of the importance of the question, we do not desire to stop here but would ascertain from other sources the
meaning and scope of Section IX of General Order No. 68.

The purpose of the government toward the Mohammedan population of the Philippines has, time and again, been
announced by treaty, organic law, statutory law, and executive proclamation. The Treaty of Paris in its article X,

43
provided that "The inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be
secured Instructions to the Philippine Commission imposed on every branch of the Government of the Philippine
Islands the inviolable rule "that no law shall be made respecting an establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed ... That no form of religion and no minister of religion shall be
forced upon any community or upon any citizen of the Islands; that, upon the other hand, no minister of religion
shall be interfered with or molested in following his calling, and that the separation between state and church shall
be real, entire, and absolute." The notable state paper of President McKinley also enjoined the Commission, "to bear
in mind that the Government which they are establishing is designed . . . for the happiness, peace, and prosperity of
the people of the Philippine Islands" and that, therefore, "the measures adopted should be made to conform to their
customs, their habits, and even their prejudices. . . . The Philippine Bill and the Jones Law reproduced the main
constitutional provisions establishing religious toleration and equality.

Executive and legislative policy both under Spain and the United States followed in the same path. For instance, in
the Treaty of April 30, 1851, entered into by the Captain General of the Philippines and the Sultan of Sulu, the
Spanish Government guaranteed "with all solemnity to the Sultan and other inhabitants of Sulu the free exercise of
their religion, with which it will not interfere in the slightest way, and it will also respect their customs." (See
further Decree of the Governor-General of January 14, 1881.) For instance, Act No. 2520 of the Philippine
Commission, section 3, provided that "Judges of the Court of First Instance and justices of the peace deciding civil
cases in which the parties are Mohammedans or pagans, when such action is deemed wise, may modify the
application of the law of the Philippine Islands, except laws of the United States applicable to the Philippine Islands,
taking into account local laws and customs. . . ." (See further Act No. 787, sec. 13 [ j]; Act No. 1283, sec. 6 [b]; Act
No. 114 of the Legislative Council amended and approved by the Philippine Commission; Cacho vs. Government of
the United States [1914], 28 Phil., 616.) Various responsible officials have so oft announced the purpose of the
Government not to interfere with the customs of the Moros, especially their religious customs, as to make quotation
of the same superfluous.

The retrospective provisions of the Philippine Marriage Law undoubtedly were inspired by the governmental policy
in the United States, with regard to the marriages of the Indians, the Quakers, and the Mormons. The rule as to
Indians marriages is, that a marriage between two Indians entered into according to the customs and laws of the
people at a place where such customs and laws are in force, must be recognized as a valid marriage. The rule as to
the Society of Quakers is, that they will be left to their own customs and that their marriages will be recognized
although they use no solemnization. The rule as to Mormon marriages is that the sealing ceremony entered into
before a proper official by members of that Church competent to contract marriage constitutes a valid marriage.

The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction is not
only a civil contract, but, it is a new relation, an institution in the maintenance of which the public is deeply
interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons dwelling together
in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to
be in fact married. The reason is that such is the common order of society, and if the parties were not what they thus
hold themselves out as being, they would be living in the constant violation of decency and of law. A presumption
established by our Code of Civil Procedure is "that a man and woman deporting themselves as husband and wife
have entered into a lawful contract of marriage.:" (Sec. 334, No. 28.) Semper praesumitur pro matrimonio —
Always presume marriage. (U. S. vs. Villafuerte and Rabano [1905], 4 Phil., 476; Son Cui vs. Guepangco, supra;
U.S. vs. Memoracion and Uri [1916], 34 Phil., 633; Teter vs. Teter [1884], 101 Ind., 129.)

Section IX of the Marriage Law is in the nature of a curative provision intended to safeguard society by legalizing
prior marriages. We can see no substantial reason for denying to the legislative power the right to remove
impediments to an effectual marriage. If the legislative power can declare what shall be valid marriages, it can
render valid, marriages which, when they took place, were against the law. Public policy should aid acts intended to
validate marriages and should retard acts intended to invalidate marriages. (Coghsen vs. Stonington [1822], 4 Conn,
209; Baity vs. Cranfill [1884], 91 N. C., 273.)

The courts can properly incline the scales of their decisions in favors of that solution which will mot effectively
promote the public policy. That is the true construction which will best carry legislative intention into effect. And
here the consequences, entailed in holding that the marriage of the Mora Adong and the deceased Cheong Boo, in
conformity with the Mohammedan religion and Moro customs, was void, would be far reaching in disastrous result.
The last census shows that there are at least one hundred fifty thousand Moros who have been married according to
local custom. We then have it within our power either to nullify or to validate all of these marriages; either to make
all of the children born of these unions bastards or to make them legitimate; either to proclaim immorality or to
sanction morality; either to block or to advance settled governmental policy. Our duty is a obvious as the law is
plain.

In moving toward our conclusion, we have not lost sight of the decisions of this court in the cases of United
States vs. Tubban ([1915]), 29 Phil., 434) and United States vs. Verzola ([1916, 33 Phil., 285). We do not, however,
believe these decisions to be controlling. In the first place, these were criminal actions and two Justice dissented.. In
the second place, in the Tubban case, the marriage in question was a tribal marriage of the Kalingas, while in the

44
Verzola case, the marriage had been performed during the Spanish regime by a lieutenant of the Guardia Civil. In
neither case, in deciding as to whether or not the accused should be given the benefit of the so-called unwritten law,
was any consideration given to the provisions of section IX of General Order No. 68. We are free to admit that, if
necessary, we would unhesitatingly revoke the doctrine announced in the two cases above mentioned.

We regard the evidence as producing a moral conviction of the existence of the Mohammedan marriage. We regard
the provisions of section IX of the Marriage law as validating marriages performed according to the rites of the
Mohammedan religion.

There are other questions presented in the various assignments of error which it is unnecessary to decide. In resume,
we find the Chinese marriage not to be proved and that the Chinaman Cheong Seng Gee has only the rights of a
natural child, and we find the Mohammedan marriage to be proved and to be valid, thus giving to the widow and the
legitimate children of this union the rights accruing to them under the law.

Judgment is reversed in part, and the case shall be returned to the lower court for a partition of the property in
accordance with this decision, and for further proceedings in accordance with law. Without special findings as to
costs in this instance, it is so ordered.

Araullo, C.J., Johnson, Street, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

G.R. No. L-19671           November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant,
vs.
VICENTA F. ESCAÑO, ET AL., defendants-appellees.

I. V. Binamira & F. B. Barria for plaintiff-appellant.

Jalandoni & Jarnir for defendants-appellees.

REYES, J.B.L., J.:

Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu, in its Civil
Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal separation and one
million pesos in damages against his wife and parents-in-law, the defendants-appellees, Vicente, Mamerto and
Mena,1 all surnamed "Escaño," respectively.2

The facts, supported by the evidence of record, are the following:

Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where she was
then enrolled as a second year student of commerce, Vicenta Escaño, 27 years of age (scion of a well-to-do and
socially prominent Filipino family of Spanish ancestry and a "sheltered colegiala"), exchanged marriage vows with
Pastor Tenchavez, 32 years of age, an engineer, ex-army officer and of undistinguished stock, without the
knowledge of her parents, before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the
said city. The marriage was the culmination of a previous love affair and was duly registered with the local civil
register.

Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in love. Together
with a friend, Pacita Noel, their matchmaker and go-between, they had planned out their marital future whereby
Pacita would be the governess of their first-born; they started saving money in a piggy bank. A few weeks before
their secret marriage, their engagement was broken; Vicenta returned the engagement ring and accepted another
suitor, Joseling Lao. Her love for Pastor beckoned; she pleaded for his return, and they reconciled. This time they
planned to get married and then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the
room of Pacita Noel in St. Mary's Hall, which was their usual trysting place.

Although planned for the midnight following their marriage, the elopement did not, however, materialize because
when Vicente went back to her classes after the marriage, her mother, who got wind of the intended nuptials, was
already waiting for her at the college. Vicenta was taken home where she admitted that she had already married
Pastor. Mamerto and Mena Escaño were surprised, because Pastor never asked for the hand of Vicente, and were
disgusted because of the great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The
following morning, the Escaño spouses sought priestly advice. Father Reynes suggested a recelebration to validate
what he believed to be an invalid marriage, from the standpoint of the Church, due to the lack of authority from the
Archbishop or the parish priest for the officiating chaplain to celebrate the marriage. The recelebration did not take
place, because on 26 February 1948 Mamerto Escaño was handed by a maid, whose name he claims he does not

45
remember, a letter purportedly coming from San Carlos college students and disclosing an amorous relationship
between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter to her father, and thereafter would not agree
to a new marriage. Vicenta and Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta
continued living with her parents while Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh.
"M"), while still solicitous of her husband's welfare, was not as endearing as her previous letters when their love was
aflame.

Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly accepted her
being called a "jellyfish." She was not prevented by her parents from communicating with Pastor (Exh. "1-Escaño"),
but her letters became less frequent as the days passed. As of June, 1948 the newlyweds were already estranged
(Exh. "2-Escaño"). Vicenta had gone to Jimenez, Misamis Occidental, to escape from the scandal that her marriage
stirred in Cebu society. There, a lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul
her marriage. She did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her
non-appearance at the hearing (Exh. "B-4").

On 24 June 1950, without informing her husband, she applied for a passport, indicating in her application that she
was single, that her purpose was to study, and she was domiciled in Cebu City, and that she intended to return after
two years. The application was approved, and she left for the United States. On 22 August 1950, she filed a verified
complaint for divorce against the herein plaintiff in the Second Judicial District Court of the State of Nevada in and
for the County of Washoe, on the ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a
decree of divorce, "final and absolute", was issued in open court by the said tribunal.

In 1951 Mamerto and Mena Escaño filed a petition with the Archbishop of Cebu to annul their daughter's marriage
to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation of her marriage (Exh. "D"-2).

On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with him in
California, and, by him, has begotten children. She acquired American citizenship on 8 August 1958.

But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First Instance of
Cebu, and amended on 31 May 1956, against Vicenta F. Escaño, her parents, Mamerto and Mena Escaño, whom he
charged with having dissuaded and discouraged Vicenta from joining her husband, and alienating her affections, and
against the Roman Catholic Church, for having, through its Diocesan Tribunal, decreed the annulment of the
marriage, and asked for legal separation and one million pesos in damages. Vicenta claimed a valid divorce from
plaintiff and an equally valid marriage to her present husband, Russell Leo Moran; while her parents denied that
they had in any way influenced their daughter's acts, and counterclaimed for moral damages.

The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife and to
acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto Escaño and Mena Escaño for
moral and exemplary damages and attorney's fees against the plaintiff-appellant, to the extent of P45,000.00, and
plaintiff resorted directly to this Court.

The appellant ascribes, as errors of the trial court, the following:

1. In not declaring legal separation; in not holding defendant Vicenta F. Escaño liable for damages and in
dismissing the complaint;.

2. In not holding the defendant parents Mamerto Escano and the heirs of Doña Mena Escaño liable for
damages;.

3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on their
counterclaims; and.

4. In dismissing the complaint and in denying the relief sought by the plaintiff.

That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta Escaño,
were validly married to each other, from the standpoint of our civil law, is clearly established by the record before
us. Both parties were then above the age of majority, and otherwise qualified; and both consented to the marriage,
which was performed by a Catholic priest (army chaplain Lavares) in the presence of competent witnesses. It is
nowhere shown that said priest was not duly authorized under civil law to solemnize marriages.

The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as required by
Canon law, is irrelevant in our civil law, not only because of the separation of Church and State but also because Act
3613 of the Philippine Legislature (which was the marriage law in force at the time) expressly provided that —

46
 SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the contracting
parties and consent. (Emphasis supplied)

The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not essential to
give the marriage civil effects,3 and this is emphasized by section 27 of said marriage act, which provided the
following:

SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid because of the
absence of one or several of the formal requirements of this Act if, when it was performed, the spouses or
one of them believed in good faith that the person who solemnized the marriage was actually empowered to
do so, and that the marriage was perfectly legal.

The good faith of all the parties to the marriage (and hence the validity of their marriage) will be presumed until the
contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well
to note here that in the case at bar, doubts as to the authority of the solemnizing priest arose only after the marriage,
when Vicenta's parents consulted Father Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in
abandoning her original action for annulment and subsequently suing for divorce implies an admission that her
marriage to plaintiff was valid and binding.

Defendant Vicenta Escaño argues that when she contracted the marriage she was under the undue influence of Pacita
Noel, whom she charges to have been in conspiracy with appellant Tenchavez. Even granting, for argument's sake,
the truth of that contention, and assuming that Vicenta's consent was vitiated by fraud and undue influence, such
vices did not render her marriage ab initio void, but merely voidable, and the marriage remained valid until annulled
by a competent civil court. This was never done, and admittedly, Vicenta's suit for annulment in the Court of First
Instance of Misamis was dismissed for non-prosecution.

It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escaño remained
subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that the wife sought
and obtained on 21 October 1950 from the Second Judicial District Court of Washoe County, State of Nevada, on
grounds of "extreme cruelty, entirely mental in character." At the time the divorce decree was issued, Vicenta
Escaño, like her husband, was still a Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the
Civil Code of the Philippines (Rep. Act No. 386), already in force at the time, expressly provided:

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

The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo matrimonii; and in
fact does not even use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding
legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act
2710). Instead of divorce, the present Civil Code only provides for legal separation (Title IV, Book 1, Arts. 97 to
108), and, even in that case, it expressly prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar.
1).

For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce betiveen
Filipino citizens could be a patent violation of the declared public policy of the state, specially in view of the third
paragraph of Article 17 of the Civil Code that prescribes the following:

Prohibitive laws concerning persons, their acts or property, and those which have for their object public
order, 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.

Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give rise to an
irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those members of our polity
whose means do not permit them to sojourn abroad and obtain absolute divorces outside the Philippines.

From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the Nevada divorce
court. Primarily because the policy of our law cannot be nullified by acts of private parties (Civil Code,Art. 17, jam
quot.); and additionally, because the mere appearance of a non-resident consort cannot confer jurisdiction where the
court originally had none (Area vs. Javier, 95 Phil. 579).

From the preceding facts and considerations, there flows as a necessary consequence that in this jurisdiction Vicenta
Escaño's divorce and second marriage are not entitled to recognition as valid; for her previous union to plaintiff
Tenchavez must be declared to be existent and undissolved. It follows, likewise, that her refusal to perform her
wifely duties, and her denial of consortium and her desertion of her husband constitute in law a wrong caused
through her fault, for which the husband is entitled to the corresponding indemnity (Civil Code, Art. 2176). Neither
an unsubstantiated charge of deceit nor an anonymous letter charging immorality against the husband constitute,

47
contrary to her claim, adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is
technically "intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-
appellant Tenchavez to a decree of "legal separation under our law, on the basis of adultery" (Revised Penal Code,
Art. 333).

The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord with the
previous doctrines and rulings of this court on the subject, particularly those that were rendered under our laws prior
to the approval of the absolute divorce act (Act 2710 of the Philippine Legislature). As a matter of legal history, our
statutes did not recognize divorces a vinculo before 1917, when Act 2710 became effective; and the present Civil
Code of the Philippines, in disregarding absolute divorces, in effect merely reverted to the policies on the subject
prevailing before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act above-mentioned,
are now, fully applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this
Court in that case:

As the divorce granted by the French Court must be ignored, it results that the marriage of Dr. Mory and
Leona Castro, celebrated in London in 1905, could not legalize their relations; and the circumstance that
they afterwards passed for husband and wife in Switzerland until her death is wholly without legal
significance. The claims of the very children to participate in the estate of Samuel Bishop must therefore be
rejected. The right to inherit is limited to legitimate, legitimated and acknowledged natural children. The
children of adulterous relations are wholly excluded. The word "descendants" as used in Article 941 of the
Civil Code cannot be interpreted to include illegitimates born of adulterous relations. (Emphasis supplied)

Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo Moran after
the invalid divorce, are not involved in the case at bar, the Gmur case is authority for the proposition that such union
is adulterous in this jurisdiction, and, therefore, justifies an action for legal separation on the part of the innocent
consort of the first marriage, that stands undissolved in Philippine law. In not so declaring, the trial court committed
error.

True it is that our ruling gives rise to anomalous situations where the status of a person (whether divorced or not)
would depend on the territory where the question arises. Anomalies of this kind are not new in the Philippines, and
the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667:

The hardship of the existing divorce laws in the Philippine Islands are well known to the members of the
Legislature. It is the duty of the Courts to enforce the laws of divorce as written by Legislature if they are
constitutional. Courts have no right to say that such laws are too strict or too liberal. (p. 72)

The appellant's first assignment of error is, therefore, sustained.

However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escaño and his wife, the late Doña
Mena Escaño, alienated the affections of their daughter and influenced her conduct toward her husband are not
supported by credible evidence. The testimony of Pastor Tenchavez about the Escaño's animosity toward him strikes
us to be merely conjecture and exaggeration, and are belied by Pastor's own letters written before this suit was begun
(Exh. "2-Escaño" and "Vicenta," Rec. on App., pp. 270-274). In these letters he expressly apologized to the
defendants for "misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and "sinful
pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escaño house to visit and court Vicenta, and the
record shows nothing to prove that he would not have been accepted to marry Vicente had he openly asked for her
hand, as good manners and breeding demanded. Even after learning of the clandestine marriage, and despite their
shock at such unexpected event, the parents of Vicenta proposed and arranged that the marriage be recelebrated in
strict conformity with the canons of their religion upon advice that the previous one was canonically defective. If no
recelebration of the marriage ceremony was had it was not due to defendants Mamerto Escaño and his wife, but to
the refusal of Vicenta to proceed with it. That the spouses Escaño did not seek to compel or induce their daughter to
assent to the recelebration but respected her decision, or that they abided by her resolve, does not constitute in law
an alienation of affections. Neither does the fact that Vicenta's parents sent her money while she was in the United
States; for it was natural that they should not wish their daughter to live in penury even if they did not concur in her
decision to divorce Tenchavez (27 Am. Jur. 130-132).

There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original suit for
annulment, or her subsequent divorce; she appears to have acted independently, and being of age, she was entitled to
judge what was best for her and ask that her decisions be respected. Her parents, in so doing, certainly cannot be
charged with alienation of affections in the absence of malice or unworthy motives, which have not been shown,
good faith being always presumed until the contrary is proved.

SEC. 529. Liability of Parents, Guardians or Kin. — The law distinguishes between the right of a parent to
interest himself in the marital affairs of his child and the absence of rights in a stranger to intermeddle in
such affairs. However, such distinction between the liability of parents and that of strangers is only in
regard to what will justify interference. A parent isliable for alienation of affections resulting from his own

48
 malicious conduct, as where he wrongfully entices his son or daughter to leave his or her spouse, but he is
not liable unless he acts maliciously, without justification and from unworthy motives. He is not liable
where he acts and advises his child in good faith with respect to his child's marital relations in the interest
of his child as he sees it, the marriage of his child not terminating his right and liberty to interest himself in,
and be extremely solicitous for, his child's welfare and happiness, even where his conduct and advice
suggest or result in the separation of the spouses or the obtaining of a divorce or annulment, or where he
acts under mistake or misinformation, or where his advice or interference are indiscreet or unfortunate,
although it has been held that the parent is liable for consequences resulting from recklessness. He may in
good faith take his child into his home and afford him or her protection and support, so long as he has not
maliciously enticed his child away, or does not maliciously entice or cause him or her to stay away, from
his or her spouse. This rule has more frequently been applied in the case of advice given to a married
daughter, but it is equally applicable in the case of advice given to a son.

Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and with having
exerted efforts and pressured her to seek annulment and divorce, unquestionably caused them unrest and anxiety,
entitling them to recover damages. While this suit may not have been impelled by actual malice, the charges were
certainly reckless in the face of the proven facts and circumstances. Court actions are not established for parties to
give vent to their prejudices or spleen.

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant Vicente Escaño,
it is proper to take into account, against his patently unreasonable claim for a million pesos in damages, that (a) the
marriage was celebrated in secret, and its failure was not characterized by publicity or undue humiliation on
appellant's part; (b) that the parties never lived together; and (c) that there is evidence that appellant had originally
agreed to the annulment of the marriage, although such a promise was legally invalid, being against public policy
(cf. Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact is a consequence of the
indissoluble character of the union that appellant entered into voluntarily and with open eyes rather than of her
divorce and her second marriage. All told, we are of the opinion that appellant should recover P25,000 only by way
of moral damages and attorney's fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escaño and Mena Escaño, by the
court below, we opine that the same are excessive. While the filing of this unfounded suit must have wounded said
defendants' feelings and caused them anxiety, the same could in no way have seriously injured their reputation, or
otherwise prejudiced them, lawsuits having become a common occurrence in present society. What is important, and
has been correctly established in the decision of the court below, is that said defendants were not guilty of any
improper conduct in the whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000
only.

Summing up, the Court rules:

(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil
Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither is the marriage contracted
with another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in the
country;

(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful husband entitle
the latter to a decree of legal separation conformably to Philippine law;

(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to recover damages;

(4) That an action for alienation of affections against the parents of one consort does not lie in the absence of proof
of malice or unworthy motives on their part.

WHEREFORE, the decision under appeal is hereby modified as follows;

(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from defendant Vicenta F.
Escaño;

(2) Sentencing defendant-appellee Vicenta Escaño to pay plaintiff-appellant Tenchavez the amount of P25,000 for
damages and attorneys' fees;

(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escaño and the estate of his wife, the
deceased Mena Escaño, P5,000 by way of damages and attorneys' fees.

Neither party to recover costs.

49
Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.

G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, petitioner,

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

MELENCIO-HERRERA, J.:\

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

The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a citizen of
the United States; that they were married in Hongkong in 1972; that, after the marriage, they established their
residence in the Philippines; that they begot two children born on April 4, 1973 and December 18, 1975,
respectively; that the parties were divorced in Nevada, United States, in 1982; and that petitioner has re-married also
in Nevada, this time to Theodore Van Dorn.

Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional Trial
Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the Galleon Shop, for short),
is conjugal property of the parties, and asking that petitioner be ordered to render an accounting of that business, and
that private respondent be declared with right to manage the conjugal property. Petitioner moved to dismiss the case
on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada
Court wherein respondent had acknowledged that he and petitioner had "no community property" as of June 11,
1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground that the property involved
is located in the Philippines so that the Divorce Decree has no bearing in the case. The denial is now the subject of
this certiorari proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal. certiorari
and Prohibition are neither the remedies to question the propriety of an interlocutory order of the trial Court.
However, when a grave abuse of discretion was patently committed, or the lower Court acted capriciously and
whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its supervisory authority and to
correct the error committed which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie
since it would be useless and a waste of time to go ahead with the proceedings. 2 Weconsider the petition filed in this
case within the exception, and we have given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the
Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property because of the
representation he made in the divorce proceedings before the American Court that they had no community of
property; that the Galleon Shop was not established through conjugal funds, and that respondent's claim is barred by
prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the
prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a foreign Court
cannot, especially if the same is contrary to public policy, divest Philippine Courts of jurisdiction to entertain
matters within its jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property relations between petitioner and
private respondent, after their marriage, were upon absolute or relative community property, upon complete
separation of property, or upon any other regime. The pivotal fact in this case is the Nevada divorce of the parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who appeared in
person before the Court during the trial of the case. It also obtained jurisdiction over private respondent who, giving
his address as No. 381 Bush Street, San Francisco, California, authorized his attorneys in the divorce case, Karp &
Gradt Ltd., to agree to the divorce on the ground of incompatibility in the understanding that there were neither
community property nor community obligations. 3 As explicitly stated in the Power of Attorney he executed in favor

50
of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce
proceedings:

xxx xxx xxx

You are hereby authorized to accept service of Summons, to file an Answer, appear on my behalf
and do an things necessary and proper to represent me, without further contesting, subject to the
following:

1. That my spouse seeks a divorce on the ground of incompatibility.

2. That there is no community of property to be adjudicated by the Court.

3. 'I'hat there are no community obligations to be adjudicated by the court.

xxx xxx xxx 4

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The
decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue
petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not
valid and binding in this jurisdiction, the same being contrary to local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine nationals
are covered by the policy against absolute divorces the same being considered contrary to our concept of public
police and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines,
provided they are valid according to their national law. 6 In this case, the divorce in Nevada released private
respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As
stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent
jurisdiction are to change the existing status or domestic relation of husband and wife, and to free
them both from the bond. The marriage tie when thus severed as to one party, ceases to bind
either. A husband without a wife, or a wife without a husband, is unknown to the law. When the
law provides, in the nature of a penalty. that the guilty party shall not marry again, that party, as
well as the other, is still absolutely freed from the bond of the former marriage.

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no
standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is
bound by the Decision of his own country's Court, which validly exercised jurisdiction over him, and whose
decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right
over the alleged conjugal property.

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private
respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just.
Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She
should not be discriminated against in her own country if the ends of justice are to be served.

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

Without costs.

SO ORDERED.

G.R. No. 80965 June 6, 1990

SYLVIA LICHAUCO DE LEON, petitioner,

vs.
THE HON. COURT OF APPEALS, MACARIA DE LEON AND JOSE VICENTE DE LEON, respondents.

Angara, Abello, Concepcion, Regala & Cruz for petitioner.

51
De Jesus & Associates for Macaria de Leon.

Quisumbing, Torres & Evangelista for Jose Vicente de Leon.

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. CV No. 06649 dated
June 30, 1987 the decision of the Regional Trial Court of Pasig in SP Proc. No. 8492 dated December 29, 1983; and
its resolution dated November 24, 1987 denying the motion for reconsideration.

The antecedent facts are as follows:

On October 18, 1969, private respondent Jose Vicente De Leon and petitioner Sylvia Lichauco De Leon were united
in wedlock before the Municipal Mayor of Binangonan, Rizal. On August 28, 1971, a child named Susana L. De
Leon was born from this union.

Sometime in October, 1972, a de facto separation between the spouses occured due to irreconcilable marital
differences, with Sylvia leaving the conjugal home. Sometime in March, 1973, Sylvia went to the United States
where she obtained American citizenship.

On November 23, 1973, Sylvia filed with the Superior Court of California, County of San Francisco, a petition for
dissolution of marriage against Jose Vicente. In the said divorce proceedings, Sylvia also filed claims for support
and distribution of properties. It appears, however, that since Jose Vicente was then a Philippine resident and did not
have any assets in the United States, Sylvia chose to hold in abeyance the divorce proceedings, and in the meantime,
concentrated her efforts to obtain some sort of property settlements with Jose Vicente in the Philippines.

Thus, on March 16, 1977, Sylvia succeeded in entering into a Letter-Agreement with her mother-in-law, private
respondent Macaria De Leon, which We quote in full, as follows (pp. 40-42, Rollo):

March 16, 1977

Mrs. Macaria Madrigal de Leon

12 Jacaranda, North Forbes Park
Makati, Metro Manila

Dear Dora Macaria:

This letter represents a contractual undertaking among (A) the undersigned (B) your son, Mr. Jose
Vicente de Leon, represented by you, and (C) yourself in your personal capacity.

You hereby bind yourself jointly and severally to answer for the undertakings of Joe Vincent
under this contract.

In consideration for a peaceful and amicable termination of relations between the undersigned and
her lawfully wedded husband, Jose Vicente de Leon, your son, the following are agreed upon:

Obligations of Jose Vicente de Leon and/ or yourself in a joint and several capacity:

1. To deliver with clear title free from all liens and encumbrances and subject to no claims in any
form whatsoever the following properties to Sylvia Lichauco-de Leon hereinafter referred to as the
wife:

A. Suite 11-C, Avalon Condominium, Ortigas Ave., corner Xavier St., Mandaluyong, Rizal,
Philippines.

B. Apartment 702, Wack Wack Condominium, Mandaluyong, Rizal, Philippines.

C. The rights to assignment of 2 Ayala lots in Alabang, Rizal (Corner lots, 801 s q. meters each).
(Fully paid).

D. 2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18 Block 22 Westborough
Unit No. 2). (Fully paid).

52
 E. 1) The sum of One Hundred Thousand Pesos (P100,000)

2) $30,000

3) $5,000

2. To give monthly support payable six (6) months in advance every year to any designated
assignee of the wife for the care and upbringing of Susana Lichauco de Leon which is hereby
pegged at the exchange rate of 7.50 to the dollar subject to adjustments in the event of monetary
exchange fluctuations. Subsequent increase on actual need upon negotiation.

3. To respect the custody of said minor daughter as pertaining exclusively to the wife except as
herein provided.

Obligations of the wife:

1. To agree to a judicial separation of property in accordance with Philippine law and in this
connection to do all that may be necessary to secure said separation of property including her
approval in writing of a joint petition or consent decree.

2. To amend her complaint in the United States before the Federal Court of California, U.S.A.
entitled "Sylvia Lichauco de Leon vs. Jose V. de Leon" in a manner compatible with the objectives
of this herein agreement. It is the stated objective of this agreement that said divorce proceedings
will continue.

3. All the properties herein described for assignment to the wife must be assigned to Sylvia
Lichauco de Leon upon the decree of the Court of First Instance in the Joint Petition for
Separation of Property; except for the P100,000, $30,000 and $5,000 which will be paid
immediately.

4. This contract is intended to be applicable both in the Republic of the Philippines and in the
United States of America. It is agreed that this will constitute an actionable document in both
jurisdictions and the parties herein waive their right to object to the use of this document in the
event a legal issue should arise relating to the validity of this document. In the event of a dispute,
this letter is subject to interpretation under the laws of California, U.S.A.

5. To allow her daughter to spend two to three months each year with the father upon mutual
convenience.

Very truly yours,

(Sgd.) Sylvia de Leon t/ SYLVIA L. DE LEON

CONFORME:
s/t/MACARIA M. DE LEON
with my marital consent:
s/t/JUAN L. DE LEON

On the same date, Macaria made cash payments to Sylvia in the amount of P100,000 and US$35,000.00 or
P280,000.00, in compliance with her obligations as stipulated in the aforestated Letter-Agreement.

On March 30, 1977, Sylvia and Jose Vicente filed before the then Court of First Instance of Rizal a joint petition for
judicial approval of dissolution of their conjugal partnership, the main part of which reads as follows (pp. 37-
38, Rollo):

5. For the best interest of each of them and of their minor child, petitioners have agreed to dissolve
their conjugal partnership and to partition the assets thereof, under the following terms and
conditions-this document, a pleading being intended by them to embody and evidence their
agreement:

xxx xxx xxx

(c) The following properties shall be adjudicated to petitioner Sylvia Lichauco De Leon. These
properties will be free of any and all liens and encumbrances, with clear title and subject to no

53
 claims by third parties. Petitioner Jose Vicente De Leon fully assumes all responsibility and
liability in the event these properties shall not be as described in the previous sentence:

Sedan (1972 model)

Suite 11-C, Avalon Condominium,

Ortigas Ave., comer Xavier St.,
Mandaluyong, Rizal, Philippines

Apt. 702, Wack-Wack Condominium,

Mandaluyong, Rizal, Philippines

The rights to assignment of 2 Ayala lots in Alabang Rizal (corner lots, 801 sq. meters each) (Fully
paid)

2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18, Block 22 Westborough Unit
2) (Fully paid)

The sum of One Hundred Thousand Pesos (P100,000.00)

$30,000.00 at current exchange rate

$5,000.00 at current exchange rate

After ex-parte hearings, the trial court issued an Order dated February 19, 1980 approving the petition, the
dispositive portion of which reads (p. 143, Rollo):

WHEREFORE, it is hereby declared that the conjugal partnership of the Spouses is DISSOLVED
henceforth, without prejudice to the terms of their agreement that each spouse shall own, dispose
of, possess, administer and enjoy his or her separate estate, without the consent of the other, and
all earnings from any profession, business or industries shall likewise belong to each spouse.

On March 17, 1980, Sylvia moved for the execution of the above-mentioned order. However, Jose Vicente moved
for a reconsideration of the order alleging that Sylvia made a verbal reformation of the petition as there was no such
agreement for the payment of P4,500.00 monthly support to commence from the alleged date of separation in April,
1973 and that there was no notice given to him that Sylvia would attempt verbal reformation of the agreement
contained in the joint petition

While the said motion for reconsideration was pending resolution, on April 20, 1980, Macaria filed with the trial
court a motion for leave to intervene alleging that she is the owner of the properties involved in the case. The motion
was granted. On October 29, 1980, Macaria, assisted by her husband Juan De Leon, filed her complaint in
intervention. She assailed the validity and legality of the Letter-Agreement which had for its purpose, according to
her, the termination of marital relationship between Sylvia and Jose Vicente. However, before any hearing could be
had, the judicial reorganization took place and the case was transferred to the-Regional Trial Court of Pasig. On
December 29, 1983, the trial court rendered judgment, the dispositive portion of which reads (pp. 35-36, Rollo):

WHEREFORE, judgment is hereby rendered on the complaint in intervention in favor of the

intervenor, declaring null and void the letter agreement dated March 16, 1977 (Exhibits 'E' to 'E-
2'), and ordering petitioner Sylvia Lichauco De Leon to restore to intervenor the amount of
P380,000.00 plus legal interest from date of complaint, and to pay intervenor the amount of
P100,000.00 as and for attorney's fees, and to pay the costs of suit.

Judgment is likewise rendered affirming the order of the Court dated February 19, 1980 declaring
the conjugal partnership of the spouses Jose Vicente De Leon and Sylvia Lichauco De Leon
DISSOLVED; and adjudicating to each of them his or her share of the properties and assets of said
conjugal partnership in accordance with the agreement embodied in paragraph 5 of the petition,
except insofar as the adjudication to petitioner Sylvia L. De Leon of the properties belonging to
and owned by Intervenor Macaria De Leon is concerned.

Henceforth, (a) each spouse shall own, dispose of, possess, administer and enjoy his or her
separate estate, present and future without the consent of the other; (b) an earnings from any
profession, business or industry shall likewise belong to each of them separately; (c) the minor
child Susana De Leon shall stay with petitioner Sylvia Lichauco De Leon for two to three months
every year-the transportation both ways of the child for the trip to the Philippines to be at the
expense of the petitioner Jose Vicente De Leon; and (d) petitioner Jose Vicente De Leon shall give

54
 petitioner Sylvia Lichauco De Leon the sum of P4,500.00 as monthly support for the minor child
Susana to commence from February 19, 1980.

Sylvia appealed to the respondent Court of Appeals raising the following errors:

1) The trial court erred in finding that the cause or consideration of the Letter- Agreement is the termination of
marital relations;

2) The trial court failed to appreciate testimonial and documentary evidence proving that Macaria de Leon's claims
of threat, intimidation and mistake are baseless; and

3) The trial court erred in finding that Sylvia Lichauco de Leon committed breach of the Letter-Agreement; and
further, failed to appreciate evidence proving Macaria de Leon's material breach thereof.

The respondent court affirmed the decision in toto. The motion for reconsideration was denied. Hence, the present
petition.

The only basis by which Sylvia may lay claim to the properties which are the subject matter of the Letter-
Agreement, is the Letter-Agreement itself. The main issue, therefore, is whether or not the Letter-Agreement is
valid. The third paragraph of the Letter-Agreement, supra, reads:

In consideration for a peaceful and amicable termination of relations between the undersigned and
her lawfully wedded husband, Jose Vicente De Leon, your son, the following are agreed upon:
(emphasis supplied)

It is readily apparent that the use of the word "relations" is ambiguous, perforce, it is subject to interpretation. There
being a doubt as to the meaning of this word taken by itself, a consideration of the general scope and purpose of the
instrument in which it occurs (see Germann and Co. v. Donaldson, Sim and Co., 1 Phil. 63) and Article 1374 of the
Civil Code which provides that the various stipulations of a contract shall be interpreted together, attributing to the
doubtful ones that sense which may result from all of them taken jointly, is necessary.

Sylvia insists that the consideration for her execution of the Letter-Agreement was the termination of property
relations with her husband. Indeed, Sylvia and Jose Vicente subsequently filed a joint petition for judicial approval
of the dissolution of their conjugal partnership, sanctioned by Article 191 of the Civil Code. On the other hand,
Macaria and Jose Vicente assert that the consideration was the termination of marital relationship.

We sustain the observations and conclusion made by the trial court, to wit (pp. 44- 46, Rollo):

On page two of the letter agreement (Exhibit' E'), the parties contemplated not only to agree to a
judicial separation of property of the spouses but likewise to continue with divorce proceedings
(paragraphs 1 and 2, Obligations of the Wife, Exhibit 'E-1'). If taken with the apparently
ambiguous provisions in Exhibit E' regarding termination of 'relations', the parties clearly
contemplated not only the termination of property relationship but likewise of marital relationship
in its entirety. Furthermore, it would be safe to assume that the parties in Exhibit 'E' not having
specified the particular relationship which they wanted to peacefully and amicably terminate had
intended to terminate all kinds of relations, both marital and property. While there could be
inherent benefits to a termination of conjugal property relationship between the spouses, the court
could not clearly perceive the underlying benefit for the intervenor insofar as termination of
property relationship between petitioners is concerned, unless the underlying consideration for
intervenor is the termination of marital relationship by divorce proceedings between her son Jose
Vicente and his wife petitioner Sylvia. The last sentence of paragraph 2 under "Obligations of the
Wife" unequivocally states: "It is the stated objective of this agreement that said divorce
proceedings (in the United States) will continue. "There is merit in concluding that the
consideration by which Intervenor executed Exhibit 'E' to 'E-2' was to secure freedom for her son
petitioner Jose Vicente De Leon, especially if Exhibit 'R'-Intervenor, which is (sic) agreement
signed by petitioner Sylvia to consent to and pardon Jose Vicente De Leon for adultery and
concubinage (among others) would be considered. In the light, therefore, of the foregoing
circumstances, this Court finds credible the testimony of intervenor as follows:

Q Will you please go over the Exhibit 'E' to 'E-2'- intervenor consisting of three
pages and inform us whether or not this is the letter of March 16, 1977 which
you just referred to?

A Yes, this is the letter.

55
 Why did you affix your signature to this Exh. 'E'-intervenor (sic)?

A Because at that time when I signed it I want to buy peace for myself and for
the whole family.

Q From whom did you want to buy peace and/or what kind of peace?

A I wanted to buy peace from Sylvia Lichauco whom I knew was kind of
'matapang;' so I want peace for me and primarily for the peaceful and amicable
termination of marital relationship between my son, Joe Vincent and Sylvia.
(Deposition dated September 6, 1983-Macaria de Leon, p. 6-7)

This Court, therefore, finds and holds that the cause or consideration for the intervenor Macaria
De Leon in having executed Exhibits 'E' to 'E-2' was the termination of the marital relationship
between her son Jose Vicente De Leon and Sylvia Lichauco de Leon.

Article 1306 of the New Civil Code provides:

Art. 1306. The contracting parties may establish such stipulations, clauses, terms, and conditions
as they may deem convenient, provided they are not contrary to law, morals, good customs, public
order or public policy.

If the stipulation is contrary to law, morals or public policy, the contract is void and inexistent
from the beginning.

Art. 1409. The following contracts are inexistent and void from the beginning:

Those whose cause, object or purpose is contrary to law, morals, good customs, public order or
public policy;

xxx xxx xxx

(7) Those expressly prohibited or declared void by law.

These contracts cannot be ratified. Neither can the right to set up the defense of illegality be
waived.

But marriage is not a mere contract but a sacred social institution. Thus, Art. 52 of the Civil Code
provides:

Art. 52. Marriage is not a mere contract but an inviolable social institution. Its nature,
consequences and incidents are governed by law and not subject to stipulations...

From the foregoing provisions of the New Civil Code, this court is of the considered opinion and
so holds that intervenor's undertaking under Exhibit 'E' premised on the termination of marital
relationship is not only contrary to law but contrary to Filipino morals and public Policy. As such,
any agreement or obligations based on such unlawful consideration and which is contrary to
public policy should be deemed null and void. (emphasis supplied)

Additionally, Article 191 of the Civil Case contemplates properties belonging to the spouses and not those belonging
to a third party, who, in the case at bar., is Macaria. In the petition for the dissolution of the conjugal partnership, it
was made to appear that the said properties are conjugal in nature. However, Macaria was able to prove that the
questioned properties are owned by her. Neither Sylvia nor Jose Vicente adduced any contrary evidence.

Granting, in gratia argumenti, that the consideration of the Letter-Agreement was the termination of property
relations, We agree with the respondent court that (pp. 46-47, Rollo):

... the agreement nevertheless is void because it contravenes the following provisions of the Civil
Code:

Art. 221. The following shall be void and of no effect:

(1) Any contract for personal separation between husband and wife;

56
 (2) Every extra-judicial agreement, during marriage, for the dissolution of the conjugal partnership
of gains or of the absolute community of property between husband and wife;

Besides, the Letter-Agreement shows on its face that it was prepared by Sylvia, and in this regard, the ambiguity in a
contract is to be taken contra proferentem, i.e., construed against the party who caused the ambiguity and could have
also avoided it by the exercise of a little more care. Thus, Article 1377 of the Civil Code provides: "The
interpretation of obscure words of stipulations in a contract shall not favor the party who caused the obscurity" (see
Equitable Banking Corp. vs. IAC, G.R. No. 74451, May 25, 1988, 161 SCRA 518).

Sylvia alleges further that since the nullity of the Letter-Agreement proceeds from the unlawful consideration solely
of Macaria, applying the pari delicto rule, it is clear that she cannot recover what she has given by reason of the
Letter-Agreement nor ask for the fulfillment of what has been promised her. On her part, Macaria raises the defenses
of intimidation and mistake which led her to execute the Letter-Agreement. In resolving this issue, the trial court
said (pp. 148-151, Rollo):

In her second cause of action, intervenor claims that her signing of Exhibits 'E' to 'E- 2' was due to
a fear of an unpeaceful and troublesome separation other son with petitioner Sylvia Lichauco de
Leon. In support of her claim, intervenor testified as follows:

Q Will you please inform us how did Sylvia Lichauco disturb or threaten your
son or yourself?

A Despite the fact that Sylvia Lichauco voluntarily left my son Joe Vincent and
abandoned him, she unashamedly nagged Joe and me to get money and when
her demands were not met she resorted to threats like, she threatened to bring
Joe to court for support. Sylvia threatened to scandalize our family by these
baseless suits; in fact she caused the service of summons to Joe when he went to
the United States. (Intervenor's deposition dated Sept. 6, 1983, p. 8).

On the other hand, petitioner Sylvia claims that it was intervenor and petitioner Jose Vicente who
initiated the move to convince her to agree to a dissolution of their conjugal partnership due to the
alleged extra-marital activities of petitioner Jose Vicente de Leon. She testified as follows:

Q Now in her testimony, Macaria Madrigal de Leon also said that you
threatened her by demanding money and nagged her until she agreed to the letter
agreement of March 1977, what can you say about that?

A I think with all the people sitting around with Atty. Quisumbing, Atty.
Chuidian, my father-in-law, my sister-in-law and I, you know, it can be shown
that this was a friendly amicable settlement that they were much really interested
in settling down as I was. I think there were certain reasons that they wanted to
get done or planned, being at that time Jose was already remarried and had a
child. That since she then found out that since she was worried about what might
be, you know, involved in any future matters. She just wanted to do what she
could. She just want me out of the picture. So in no way, it cannot be said that I
nagged and threatened her. (TSN dated December 8, 1983, p. 137-138)

In resolving this issue, this Court leans heavily on Exhibit 'R'-intervenor, which was not
controverted by petitioner Sylvia. A reading of Exhibit 'R' would show that petitioner Sylvia
would consent to and pardon petitioner Jose Vicente, son of intervenor, for possible crimes of
adultery and/or concubinage, with a sizing attached; that is, the transfer of the properties subject
herein to her. There appears some truth to the apprehensions of intervenor for in petitioner Sylvia's
testimony she confirms the worry of intervenor as follows:'... being at that time Jose (De Leon)
was already remarried and had a child. That since she (intervenor) found out that, she was worried
about what might be, you know, involved in any future matters. She just want me out of the
picture." The aforesaid fear of intervenor was further corroborated by her witness Concepcion
Tagudin who testified as follows:

Q Now, you mentioned that you were present when Mrs. Macaria De Leon
signed this Exhibit 'E-2, ' will you inform us whether there was anything unusual
which you noticed when Mrs. Macaria M. De Leon signed this Exhibit 'E-2'?

A Mrs. Macaria M. De Leon was in a state of tension and anger. She was so mad
that she remarked: 'Punetang Sylvia ito bakit ba niya ako ginugulo. Ipakukulong
daw niya si Joe Vincent kung hindi ko pipirmahan ito. Sana matapos na itong

57
 problemang ito pagkapirmang ito,' sabi niya.' (Deposition-Concepcion Tagudin,
Oct. 21, 1983, pp. 10-11)

In her third cause of action, intervenor claims mistake or error in having signed Exhibits '1' to 'E-2'
alleging in her testimony as follows:

Q Before you were told such by your lawyers what if any were your basis to
believe that Sylvia would no longer have inheritance rights from your son, Joe
Vincent?

A Well, that was what Sylvia told me. That she will eliminate any inheritance
rights from me or my son Joe Vincent's properties if I sign the document
amicably. ... (Intervenor's deposition-Sept. 6, 1983, pp. 9-10).

On the other hand, petitioner Sylvia claims that intervenor could not have been mistaken in her
having signed the document as she was under advice of counsel during the time that Exhibits 'E' to
'E-2' was negotiated. To support such claims by Sylvia Lichauco De Leon, the deposition
testimony of Atty. Vicente Chuidian was presented before this Court:

Atty. Herbosa: Now you mentioned Atty. Norberto Quisumbing, would you be
able to tell us in what capacity he was present in that negotiation?

Atty. Chuidian: He was counsel for Dona Macaria and for Joe Vincent, the
spouse of Sylvia. (Deposition of V. Chuidian, December 16, 1983, p. 8)

The New Civil Code provides:

Art. 1330. A contract where consent is given through mistake, violence, intimidation, undue
influence or fraud is voidable.

Art. 1331. In order that mistake may invalidate consent, it should refer to the substance of the
thing which is the object of the contract, or to those conditions which have principally moved one
or both parties to enter into a contract. ...

The preponderance of evidence leans in favor of intervenor who even utilized the statement of the
divorce lawyer of petitioner Sylvia (Mr. Penrod) in support of the fact that intervenor was
mistaken in having signed Exhibits 'E' to 'E-2' because when she signed said Exhibits she believed
that fact that petitioner Sylvia would eliminate her inheritance rights and there is no showing that
said intervenor was properly advised by any American lawyer on the fact whether petitioner
Sylvia, being an American citizen, could rightfully do the same. Transcending, however, the issue
of whether there was mistake of fact on the part of intervenor or not, this Court could not. see a
valid cause or consideration in favor of intervenor Macaria De Leon having signed Exhibits 'E' to
'E-2.' For even if petitioner Sylvia had confirmed Mr. Penrod's statement during the divorce
proceedings in the United States that she would undertake to eliminate her hereditary rights in the
event of the property settlement, under Philippine laws, such contract would likewise be voidable,
for under Art. 1347 of the New Civil Code 'no contract may be entered into upon future
inheritance.

We do not subscribe to the aforestated view of the trial court. Article 1335 of the Civil Code provides:

xxx xxx xxx

There is intimidation when one of the contracting parties is compelled by a reasonable and well-
grounded fear of an imminent and grave evil upon his person or property, or upon the person or
property of his spouse, descendants or ascendants, to give his consent.

To determine the degree of the intimidation, the age, sex and condition of the person shall be
borne in mind.

A threat to enforce one's claim through competent authority, if the claim is just or legal, does not
vitiate consent.

In order that intimidation may vitiate consent and render the contract invalid, the following requisites must concur:
(1) that the intimidation must be the determining cause of the contract, or must have caused the consent to be given;
(2) that the threatened act be unjust or unlawful; (3) that the threat be real and serious, there being an evident

58
disproportion between the evil and the resistance which all men can offer, leading to the choice of the contract as the
lesser evil; and (4) that it produces a reasonable and well-grounded fear from the fact that the person from whom it
comes has the necessary means or ability to inflict the threatened injury. Applying the foregoing to the present case,
the claim of Macaria that Sylvia threatened her to bring Jose Vicente to court for support, to scandalize their family
by baseless suits and that Sylvia would pardon Jose Vicente for possible crimes of adultery and/or concubinage
subject to the transfer of certain properties to her, is obviously not the intimidation referred to by law. With respect
to mistake as a vice of consent, neither is Macaria's alleged mistake in having signed the Letter-Agreement because
of her belief that Sylvia will thereby eliminate inheritance rights from her and Jose Vicente, the mistake referred to
in Article 1331 of the Civil Code, supra. It does not appear that the condition that Sylvia "will eliminate her
inheritance rights" principally moved Macaria to enter into the contract. Rather, such condition was but an incident
of the consideration thereof which, as discussed earlier, is the termination of marital relations.

In the ultimate analysis, therefore, both parties acted in violation of the laws. However, the pari delicto rule,
expressed in the maxims "Ex dolo malo non oritur actio" and "In pari delicto potior est conditio defendentis," which
refuses remedy to either party to an illegal agreement and leaves them where they are, does not apply in this case.
Contrary to the ruling of the respondent Court that (pp. 47-48, Rollo):

... [C]onsequently, intervenor appellees' obligation under the said agreement having been annulled,
the contracting parties shall restore to each other that things which have been subject matter of the
contract, their fruits and the price or its interest, except as provided by law (Art. 1398, Civil
Code).

Article 1414 of the Civil Code, which is an exception to the pari delicto rule, is the proper law to be applied. It
provides:

When money is paid or property delivered for an illegal purpose, the contract may be repudiated
by one of the parties before the purpose has been accomplished, or before any damage has been
caused to a third person. In such case, the courts may, if the public interest wig thus be subserved,
allow the party repudiating the contract to recover the money or property.

Since the Letter-Agreement was repudiated before the purpose has been accomplished and to adhere to the pari
delicto rule in this case is to put a premium to the circumvention of the laws, positive relief should be granted to
Macaria. Justice would be served by allowing her to be placed in the position in which she was before the
transaction was entered into.

With the conclusions thus reached, We find it unnecessary to discuss the other issues raised.

ACCORDINGLY, the petition is hereby DENIED. The decision of the respondent Court of Appeals dated June 30,
1987 and its resolution dated November 24, 1987 are AFFIRMED.

SO ORDERED.

59