University of San
Agustin
School of Law
General Luna Street,
Iloilo City
Pre-Lim Examination in Civil Law Review
Law 4-A
1st Semester, SY 2017-2018
PART II
By:
Atty. Eduardo T. Reyes, III
Lecturer
(Answers to Obligations and Contracts found
in Older Posts)
NOTE:
Each Roman numeral number is assigned 10 points for a total of 100 points.
1) X, an
American; and Y, a Filipino, got married. If X obtains a divorce decree abroad
which capacities him to remarry. May X file a petition to dissolve his marriage
in the Philippine courts?
3) In
question No. 1, if it is Y, the Filipino spouse, who will file the petition,
what legal provision should she invoke? In which court should she file her
petition?
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:
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.
4) In
question No. 2, where will A file his petition? And what procedure will be
applied by the court once such petition is filed?
Anent
the second issue, petitioner claims that respondent judge committed
grave abuse of discretion when she partially set aside her order dated July 14,
1999, despite the fact that petitioner has already obtained a divorce decree
from the Court of First Instance of Hamburg, Germany.
In Garcia
v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente
v. Court of Appeals,21 we consistently held that a divorce
obtained abroad by an alien may be recognized in our jurisdiction, provided such
decree is valid according to the national law of the foreigner. Relevant to the
present case is Pilapil v. Ibay-Somera,22 where
this Court specifically recognized the validity of a divorce obtained by a
German citizen in his country, the Federal Republic of Germany. We held
in Pilapil that a foreign divorce and its legal effects may be
recognized in the Philippines insofar as respondent is concerned in view of the
nationality principle in our civil law on the status of persons.
In
this case, the divorce decree issued by the German court dated December 16,
1997 has not been challenged by either of the parties. In fact, save for the
issue of parental custody, even the trial court recognized said decree to be
valid and binding, thereby endowing private respondent the capacity to remarry.
Thus, the present controversy mainly relates to the award of the custody of
their two children, Carolynne and Alexandra Kristine, to petitioner.
As
a general rule, divorce decrees obtained by foreigners in other countries are
recognizable in our jurisdiction, but the legal effects thereof, e.g. on
custody, care and support of the children, must still be determined by our
courts.23Before 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 proceedings25 nor has she given her opinion to
the Social Services Office.26 Unlike petitioner who was
represented by two lawyers, private respondent had no counsel to assist her in
said proceedings.27 More importantly, the divorce judgment was
issued to petitioner by virtue of the German Civil Code provision to the effect
that when a couple lived separately for three years, the marriage is deemed
irrefutably dissolved. The decree did not touch on the issue as to who the
offending spouse was. Absent any finding that private respondent is unfit to
obtain custody of the children, the trial court was correct in setting the
issue for hearing to determine the issue of parental custody, care, support and
education mindful of the best interests of the children. This is in consonance
with the provision in the Child and Youth Welfare Code that the 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.30Given 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.
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Fujiki v Marinay-
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G.R. No. 196049
June 26, 2013
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MINORU FUJIKI, PETITIONER,
vs.
MARIA PAZ GALELA MARINAY, SHINICHI MAEKARA, LOCAL CIVIL REGISTRAR OF QUEZON CITY, AND THE ADMINISTRATOR AND CIVIL REGISTRAR GENERAL OF THE NATIONAL STATISTICS OFFICE,RESPONDENTS.
vs.
MARIA PAZ GALELA MARINAY, SHINICHI MAEKARA, LOCAL CIVIL REGISTRAR OF QUEZON CITY, AND THE ADMINISTRATOR AND CIVIL REGISTRAR GENERAL OF THE NATIONAL STATISTICS OFFICE,RESPONDENTS.
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-
-
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The
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-SC) does not apply in a petition to
recognize a foreign judgment relating to the status of a marriage where one of
the parties is a citizen of a foreign country. Moreover, in Juliano-Llave
v. Republic,47 this
Court held that the rule in A.M. No. 02-11-10-SC that only the husband or wife
can file a declaration of nullity or annulment of marriage "does not apply
if the reason behind the petition is bigamy."48
-
I.
-
For
Philippine courts to recognize a foreign judgment relating to the status of a
marriage where one of the parties is a citizen of a foreign country, the
petitioner only needs to prove the foreign judgment as a fact under the Rules
of Court. To be more specific, a copy of the foreign judgment may be admitted
in evidence and proven as a fact under Rule 132, Sections 24 and 25, in
relation to Rule 39, Section 48(b) of the Rules of Court.49 Petitioner
may prove the Japanese Family Court judgment through (1) an official
publication or (2) a certification or copy attested by the officer who has
custody of the judgment. If the office which has custody is in a foreign
country such as Japan, the certification may be made by the proper diplomatic
or consular officer of the Philippine foreign service in Japan and
authenticated by the seal of office.50
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To
hold that A.M. No. 02-11-10-SC applies to a petition for recognition of foreign
judgment would mean that the trial court and the parties should follow its
provisions, including the form and contents of the petition,51 the
service of summons,52 the
investigation of the public prosecutor,53 the
setting of pre-trial,54 the
trial55 and
the judgment of the trial court.56 This
is absurd because it will litigate the case anew. It will defeat the purpose of
recognizing foreign judgments, which is "to limit repetitive litigation on
claims and issues."57 The
interpretation of the RTC is tantamount to relitigating the case on the merits.
In Mijares v. Rañada,58 this
Court explained that "[i]f every judgment of a foreign court were
reviewable on the merits, the plaintiff would be forced back on his/her
original cause of action, rendering immaterial the previously concluded
litigation."59
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A
foreign judgment relating to the status of a marriage affects the civil status,
condition and legal capacity of its parties. However, the effect of a foreign
judgment is not automatic. To extend the effect of a foreign judgment in the
Philippines, Philippine courts must determine if the foreign judgment is
consistent with domestic public policy and other mandatory laws.60 Article
15 of the Civil Code provides that "[l]aws relating to family rights and
duties, or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad." This is the
rule of lex nationalii in private international law. Thus, the
Philippine State may require, for effectivity in the Philippines, recognition
by Philippine courts of a foreign judgment affecting its citizen, over whom it
exercises personal jurisdiction relating to the status, condition and legal
capacity of such citizen.
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A
petition to recognize a foreign judgment declaring a marriage void does not
require relitigation under a Philippine court of the case as if it were a new
petition for declaration of nullity of marriage. Philippine courts cannot
presume to know the foreign laws under which the foreign judgment was rendered.
They cannot substitute their judgment on the status, condition and legal
capacity of the foreign citizen who is under the jurisdiction of another state.
Thus, Philippine courts can only recognize the foreign judgment as a
fact according to the rules of evidence.
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Section
48(b), Rule 39 of the Rules of Court provides that a foreign judgment or final
order against a person creates a "presumptive evidence of a right as
between the parties and their successors in interest by a subsequent
title." Moreover, Section 48 of the Rules of Court states that "the
judgment or final order may be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or clear mistake of law or
fact." Thus, Philippine courts exercise limited review on foreign
judgments. Courts are not allowed to delve into the merits of a foreign
judgment. Once a foreign judgment is admitted and proven in a Philippine court,
it can only be repelled on grounds external to its merits, i.e. ,
"want of jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact." The rule on limited review embodies the
policy of efficiency and the protection of party expectations,61 as
well as respecting the jurisdiction of other states.62
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Since
1922 in Adong v. Cheong Seng Gee,63 Philippine
courts have recognized foreign divorce decrees between a Filipino and a foreign
citizen if they are successfully proven under the rules of evidence.64 Divorce
involves the dissolution of a marriage, but the recognition of a foreign
divorce decree does not involve the extended procedure under A.M. No.
02-11-10-SC or the rules of ordinary trial. While the Philippines does not have
a divorce law, Philippine courts may, however, recognize a foreign divorce
decree under the second paragraph of Article 26 of the Family Code, to
capacitate a Filipino citizen to remarry when his or her foreign spouse
obtained a divorce decree abroad.65
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There
is therefore no reason to disallow Fujiki to simply prove as a fact the
Japanese Family Court judgment nullifying the marriage between Marinay and
Maekara on the ground of bigamy. While the Philippines has no divorce law, the
Japanese Family Court judgment is fully consistent with Philippine public
policy, as bigamous marriages are declared void from the beginning under
Article 35(4) of the Family Code. Bigamy is a crime under Article 349 of the
Revised Penal Code. Thus, Fujiki can prove the existence of the Japanese Family
Court judgment in accordance with Rule 132, Sections 24 and 25, in relation to
Rule 39, Section 48(b) of the Rules of Court.
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II.
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Since
the recognition of a foreign judgment only requires proof of fact of the
judgment, it may be made in a special proceeding for cancellation or correction
of entries in the civil registry under Rule 108 of the Rules of Court. Rule 1,
Section 3 of the Rules of Court provides that "[a] special proceeding is a
remedy by which a party seeks to establish a status, a right, or a particular
fact." Rule 108 creates a remedy to rectify facts of a person’s life which
are recorded by the State pursuant to the Civil Register Law or Act No. 3753.
These are facts of public consequence such as birth, death or marriage,66 which
the State has an interest in recording. As noted by the Solicitor General,
in Corpuz v. Sto. Tomas this Court declared that "[t]he
recognition of the foreign divorce decree may be made in a Rule 108 proceeding
itself, as the object of special proceedings (such as that in Rule 108 of the
Rules of Court) is precisely to establish the status or right of a party or a
particular fact."67
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Rule
108, Section 1 of the Rules of Court states:
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Sec.
1. Who may file petition. — Any person interested in
any act, event, order or decree concerning the civil
status of persons which has been recorded in the civil register, may
file a verified petition for the cancellation or correction of any entry
relating thereto, with the Regional Trial Court of the province where the
corresponding civil registry is located. (Emphasis supplied)
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Fujiki
has the personality to file a petition to recognize the Japanese Family Court
judgment nullifying the marriage between Marinay and Maekara on the ground of
bigamy because the judgment concerns his civil status as married to Marinay.
For the same reason he has the personality to file a petition under Rule 108 to
cancel the entry of marriage between Marinay and Maekara in the civil registry
on the basis of the decree of the Japanese Family Court.
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There
is no doubt that the prior spouse has a personal and material interest in
maintaining the integrity of the marriage he contracted and the property
relations arising from it. There is also no doubt that he is interested in the
cancellation of an entry of a bigamous marriage in the civil registry, which
compromises the public record of his marriage. The interest derives from the
substantive right of the spouse not only to preserve (or dissolve, in limited
instances68)
his most intimate human relation, but also to protect his property interests
that arise by operation of law the moment he contracts marriage.69 These
property interests in marriage include the right to be supported "in
keeping with the financial capacity of the family"70 and
preserving the property regime of the marriage.71
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Property
rights are already substantive rights protected by the Constitution,72 but
a spouse’s right in a marriage extends further to relational rights recognized
under Title III ("Rights and Obligations between Husband and Wife")
of the Family Code.73 A.M.
No. 02-11-10-SC cannot "diminish, increase, or modify" the
substantive right of the spouse to maintain the integrity of his marriage.74 In
any case, Section 2(a) of A.M. No. 02-11-10-SC preserves this substantive right
by limiting the personality to sue to the husband or the wife of the union
recognized by law.
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Section
2(a) of A.M. No. 02-11-10-SC does not preclude a spouse of a subsisting
marriage to question the validity of a subsequent marriage on the ground of
bigamy. On the contrary, when Section 2(a) states that "[a] petition for
declaration of absolute nullity of void marriage may be filed solely by
the husband or the wife"75—it
refers to the husband or the wife of the subsisting marriage. Under Article
35(4) of the Family Code, bigamous marriages are void from the beginning. Thus,
the parties in a bigamous marriage are neither the husband nor the wife under
the law. The husband or the wife of the prior subsisting marriage is the one
who has the personality to file a petition for declaration of absolute nullity
of void marriage under Section 2(a) of A.M. No. 02-11-10-SC.
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Article
35(4) of the Family Code, which declares bigamous marriages void from the
beginning, is the civil aspect of Article 349 of the Revised Penal Code,76 which
penalizes bigamy. Bigamy is a public crime. Thus, anyone can initiate
prosecution for bigamy because any citizen has an interest in the prosecution
and prevention of crimes.77 If
anyone can file a criminal action which leads to the declaration of nullity of
a bigamous marriage,78 there
is more reason to confer personality to sue on the husband or the wife of a
subsisting marriage. The prior spouse does not only share in the public
interest of prosecuting and preventing crimes, he is also personally interested
in the purely civil aspect of protecting his marriage.
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When
the right of the spouse to protect his marriage is violated, the spouse is
clearly an injured party and is therefore interested in the judgment of the
suit.79 Juliano-Llave ruled
that the prior spouse "is clearly the aggrieved party as the bigamous
marriage not only threatens the financial and the property ownership aspect of
the prior marriage but most of all, it causes an emotional burden to the prior
spouse."80 Being
a real party in interest, the prior spouse is entitled to sue in order to
declare a bigamous marriage void. For this purpose, he can petition a court to
recognize a foreign judgment nullifying the bigamous marriage and judicially
declare as a fact that such judgment is effective in the Philippines. Once
established, there should be no more impediment to cancel the entry of the
bigamous marriage in the civil registry.
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III.
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In Braza
v. The City Civil Registrar of Himamaylan City, Negros Occidental, this
Court held that a "trial court has no jurisdiction to nullify
marriages" in a special proceeding for cancellation or correction of entry
under Rule 108 of the Rules of Court.81 Thus,
the "validity of marriage[] x x x can be questioned only in a direct
action" to nullify the marriage.82 The
RTC relied on Braza in dismissing the petition for recognition
of foreign judgment as a collateral attack on the marriage between Marinay and
Maekara.
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Braza is not applicable because Braza does
not involve a recognition of a foreign judgment nullifying a bigamous marriage
where one of the parties is a citizen of the foreign country.
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To
be sure, a petition for correction or cancellation of an entry in the civil
registry cannot substitute for an action to invalidate a marriage. A direct
action is necessary to prevent circumvention of the substantive and procedural
safeguards of marriage under the Family Code, A.M. No. 02-11-10-SC and other
related laws. Among these safeguards are the requirement of proving the limited
grounds for the dissolution of marriage,83 support pendente
lite of the spouses and children,84 the
liquidation, partition and distribution of the properties of the spouses,85 and
the investigation of the public prosecutor to determine collusion.86 A
direct action for declaration of nullity or annulment of marriage is also
necessary to prevent circumvention of the jurisdiction of the Family Courts
under the Family Courts Act of 1997 (Republic Act No. 8369), as a petition for
cancellation or correction of entries in the civil registry may be filed in the
Regional Trial Court "where the corresponding civil registry is
located."87 In
other words, a Filipino citizen cannot dissolve his marriage by the mere
expedient of changing his entry of marriage in the civil registry.
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However,
this does not apply in a petition for correction or cancellation of a civil
registry entry based on the recognition of a foreign judgment annulling a
marriage where one of the parties is a citizen of the foreign country. There is
neither circumvention of the substantive and procedural safeguards of marriage
under Philippine law, nor of the jurisdiction of Family Courts under R.A. No.
8369. A recognition of a foreign judgment is not an action to nullify a
marriage. It is an action for Philippine courts to recognize the effectivity of
a foreign judgment, which presupposes a case which was already tried
and decided under foreign law. The procedure in A.M. No. 02-11-10-SC does
not apply in a petition to recognize a foreign judgment annulling a bigamous
marriage where one of the parties is a citizen of the foreign country. Neither
can R.A. No. 8369 define the jurisdiction of the foreign court.
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Article
26 of the Family Code confers jurisdiction on Philippine courts to extend the
effect of a foreign divorce decree to a Filipino spouse without undergoing
trial to determine the validity of the dissolution of the marriage. The second
paragraph of Article 26 of the Family Code provides that "[w]here a
marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall have capacity to remarry under
Philippine law." In Republic v. Orbecido,88 this
Court recognized the legislative intent of the second paragraph of Article 26
which is "to avoid the absurd situation where the Filipino spouse remains
married to the alien spouse who, after obtaining a divorce, is no longer
married to the Filipino spouse"89 under
the laws of his or her country. The second paragraph of Article 26 of the
Family Code only authorizes Philippine courts to adopt the effects of a foreign
divorce decree precisely because the Philippines does not allow divorce.
Philippine courts cannot try the case on the merits because it is tantamount to
trying a case for divorce.
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The
second paragraph of Article 26 is only a corrective measure to address the
anomaly that results from a marriage between a Filipino, whose laws do not
allow divorce, and a foreign citizen, whose laws allow divorce. The anomaly
consists in the Filipino spouse being tied to the marriage while the foreign
spouse is free to marry under the laws of his or her country. The correction is
made by extending in the Philippines the effect of the foreign divorce decree,
which is already effective in the country where it was rendered. The second
paragraph of Article 26 of the Family Code is based on this Court’s decision
in Van Dorn v. Romillo90 which
declared that the Filipino spouse "should not be discriminated against in
her own country if the ends of justice are to be served."91
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The
principle in Article 26 of the Family Code applies in a marriage between a
Filipino and a foreign citizen who obtains a foreign judgment nullifying the
marriage on the ground of bigamy. The Filipino spouse may file a petition
abroad to declare the marriage void on the ground of bigamy. The principle in
the second paragraph of Article 26 of the Family Code applies because the
foreign spouse, after the foreign judgment nullifying the marriage, is
capacitated to remarry under the laws of his or her country. If the foreign
judgment is not recognized in the Philippines, the Filipino spouse will be
discriminated—the foreign spouse can remarry while the Filipino spouse cannot
remarry.
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Under
the second paragraph of Article 26 of the Family Code, Philippine courts are
empowered to correct a situation where the Filipino spouse is still tied to the
marriage while the foreign spouse is free to marry. Moreover, notwithstanding
Article 26 of the Family Code, Philippine courts already have jurisdiction to
extend the effect of a foreign judgment in the Philippines to the extent that
the foreign judgment does not contravene domestic public policy. A critical
difference between the case of a foreign divorce decree and a foreign judgment
nullifying a bigamous marriage is that bigamy, as a ground for the nullity of
marriage, is fully consistent with Philippine public policy as expressed in
Article 35(4) of the Family Code and Article 349 of the Revised Penal Code. The
Filipino spouse has the option to undergo full trial by filing a petition for
declaration of nullity of marriage under A.M. No. 02-11-10-SC, but this is not
the only remedy available to him or her. Philippine courts have jurisdiction to
recognize a foreign judgment nullifying a bigamous marriage, without prejudice
to a criminal prosecution for bigamy.
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In
the recognition of foreign judgments, Philippine courts are incompetent to
substitute their judgment on how a case was decided under foreign law. They
cannot decide on the "family rights and duties, or on the status,
condition and legal capacity" of the foreign citizen who is a party to the
foreign judgment. Thus, Philippine courts are limited to the question of
whether to extend the effect of a foreign judgment in the Philippines. In a
foreign judgment relating to the status of a marriage involving a citizen of a
foreign country, Philippine courts only decide whether to extend its effect to
the Filipino party, under the rule of lex nationalii expressed
in Article 15 of the Civil Code.
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For
this purpose, Philippine courts will only determine (1) whether the foreign
judgment is inconsistent with an overriding public policy in the Philippines;
and (2) whether any alleging party is able to prove an extrinsic ground to
repel the foreign judgment, i.e. want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact. If there is neither
inconsistency with public policy nor adequate proof to repel the judgment,
Philippine courts should, by default, recognize the foreign judgment as part of
the comity of nations. Section 48(b), Rule 39 of the Rules of Court states that
the foreign judgment is already "presumptive evidence of a right between
the parties." Upon recognition of the foreign judgment, this right becomes
conclusive and the judgment serves as the basis for the correction or
cancellation of entry in the civil registry. The recognition of the foreign
judgment nullifying a bigamous marriage is a subsequent event that establishes
a new status, right and fact92 that
needs to be reflected in the civil registry. Otherwise, there will be an
inconsistency between the recognition of the effectivity of the foreign
judgment and the public records in the Philippines.1âwphi1
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However,
the recognition of a foreign judgment nullifying a bigamous marriage is without
prejudice to prosecution for bigamy under Article 349 of the Revised Penal
Code.93 The
recognition of a foreign judgment nullifying a bigamous marriage is not a
ground for extinction of criminal liability under Articles 89 and 94 of the
Revised Penal Code. Moreover, under Article 91 of the Revised Penal Code,
"[t]he term of prescription [of the crime of bigamy] shall not run when
the offender is absent from the Philippine archipelago."
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Since
A.M. No. 02-11-10-SC is inapplicable, the Court no longer sees the need to
address the questions on venue and the contents and form of the petition under
Sections 4 and 5, respectively, of A.M. No. 02-11-10-SC.
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WHEREFORE, we GRANT the petition. The
Order dated 31 January 2011 and the Resolution dated 2 March 2011 of the
Regional Trial Court, Branch 107, Quezon City, in Civil Case No. Q-11-68582
are REVERSED and SET ASIDE. The Regional Trial
Court is ORDERED to REINSTATE the petition
for further proceedings in accordance with this Decision.
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SO ORDERED.
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Brion, Del Castillo, Perez, and Perlas-Bernabe, JJ.,
concur.
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[1] Prof.
Sta. Maria, pp. 99-100 PERSONS AND FAMILY RELATIONS 2015 citing Bove v.
Pinciotti, 46 Pa D & C [C.P. 1942])
[7] P.
181, Prof. Sta Maria, Id. , citing Republic v. Orbecido III,
G.R. No. 154380, October 5, 2005
I.
A married
B without a valid marriage license. B, believing that since anyway her marriage
with A is void ab initio, she married
C without any judicial declaration of nullity of her previous marriage with A. When
C learned that B was previously married to A, C filed a petition for nullity of
marriage on the ground of Bigamy. [a] Do you agree with C that his marriage
with B is bigamous? Discuss. [b] Distinguish as to how the liquidation of the
common properties of A and B on one hand, and those of B and C on the other, be
proceeded under the law? Explain. [c] Given that B failed to liquidate her
properties in her marriage with A, how would it affect her property regime in
respect to her marriage with C? Explain. [d] Who among A, B or C, may file a
petition for nullity of marriage? Discuss.
Answer:
(Note: There is a distinction between a strictly BIGAMOUS marriage which
is void for being bigamous and a void marriage under Article 40 of the Family
Code for failure to obtain a decree of nullity involving a previous void
marriage. The legal ramifications are also different between the two kinds of
void marriage.)
Art. 40. The absolute nullity of a previous
marriage may be invoked for purposes of remarriage on the basis solely of a
final judgment declaring such previous marriage void. (n).
- For purposes of remarriage
-Bigamy
-Scenario 1. 1st marriage is
Void between A & B. B marries C, without obtaining a judicial declaration
of nullity of marriage.
Scenario 2. Ist marriage is Valid between A
& B. B marries C without obtaining a judicial declaration of nullity of
marriage.
Is the second marriage valid? No in both
cases. But on which ground?
Are B & C guilty of criminal Bigamy?
Mercado v. Mercado[3]. Justice Vitug dissenting: While the accused
may have violated Article 40, such violation is not a bar in invoking the
nullity of the first marriage because Article 40 merely aims to put certainty
as to the void status of the subsequent marriage and is not aimed as a
provision to define bigamy under the Family Code or criminal bigamy under the
Revised Penal Code.
Very
interestingly, in MORIGO v. PEOPLE[1],
the Supreme Court acquitted an accused of the charge of Bigamy on account of
the first marriage being void ab initio notwithstanding the absence of a
judicial declaration of nullity. Thus:
“To our mind, the primordial issue should
be whether or not petitioner committed bigamy and if so, whether his defense of
good faith is valid.
The petitioner submits that he should
not be faulted for relying in good faith upon the divorce decree of the Ontario
court. He highlights the fact that he contracted the second marriage openly and
publicly, which a person intent upon bigamy would not be doing. The petitioner
further argues that his lack of criminal intent is material to a conviction or
acquittal in the instant case. The crime of bigamy, just like other felonies
punished under the Revised Penal Code, is mala in se, and hence,
good faith and lack of criminal intent are allowed as a complete defense. He
stresses that there is a difference between the intent to commit the crime and
the intent to perpetrate the act. Hence, it does not necessarily follow that
his intention to contract a second marriage is tantamount to an intent to
commit bigamy.
For the respondent, the Office of the
Solicitor General (OSG) submits that good faith in the instant case is a
convenient but flimsy excuse. The Solicitor General relies upon our ruling
in Marbella-Bobis v. Bobis,[18] which held that bigamy
can be successfully prosecuted provided all the elements concur, stressing that
under Article 40[19] of the Family Code, a
judicial declaration of nullity is a must before a party may re-marry. Whether
or not the petitioner was aware of said Article 40 is of no account as everyone
is presumed to know the law. The OSG counters that petitioners contention that
he was in good faith because he relied on the divorce decree of the Ontario
court is negated by his act of filing Civil Case No. 6020, seeking a judicial
declaration of nullity of his marriage to Lucia.
Before we delve into petitioners defense
of good faith and lack of criminal intent, we must first determine whether all
the elements of bigamy are present in this case. In Marbella-Bobis v.
Bobis,[20] we laid down the
elements of bigamy thus:
(1) the offender has been legally
married;
(2) the first marriage has not been
legally dissolved, or in case his or her spouse is absent, the absent spouse
has not been judicially declared presumptively dead;
(3) he contracts a subsequent marriage;
and
(4) the subsequent marriage would have
been valid had it not been for the existence of the first.
Applying the foregoing test to the
instant case, we note that during the pendency of CA-G.R. CR No. 20700, the RTC
of Bohol Branch 1, handed down the following decision in Civil Case No. 6020,
to wit:
WHEREFORE,
premises considered, judgment is hereby rendered decreeing the annulment of the
marriage entered into by petitioner Lucio Morigo and Lucia Barrete on August
23, 1990 in Pilar, Bohol and further directing the Local Civil Registrar of
Pilar, Bohol to effect the cancellation of the marriage contract.
The trial court found that there was no
actual marriage ceremony performed between Lucio and Lucia by a solemnizing
officer. Instead, what transpired was a mere signing of the marriage contract
by the two, without the presence of a solemnizing officer. The trial court thus
held that the marriage is void ab initio, in accordance with
Articles 3[22] and 4[23] of the Family Code. As
the dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, This simply
means that there was no marriage to begin with; and that such declaration of
nullity retroacts to the date of the first marriage. In other words, for all
intents and purposes, reckoned from the date of the declaration of the first
marriage as void ab initio to the date of the celebration of
the first marriage, the accused was, under the eyes of the law, never married.[24] The records show that
no appeal was taken from the decision of the trial court in Civil Case No.
6020, hence, the decision had long become final and executory.
The first element of bigamy as a crime
requires that the accused must have been legally married. But in this case,
legally speaking, the petitioner was never married to Lucia Barrete. Thus,
there is no first marriage to speak of. Under the principle of retroactivity of
a marriage being declared void ab initio, the two were never
married from the beginning. The contract of marriage is null; it bears no legal
effect. Taking this argument to its logical conclusion, for legal purposes,
petitioner was not married to Lucia at the time he contracted the marriage with
Maria Jececha. The existence and the validity of the first marriage being an
essential element of the crime of bigamy, it is but logical that a conviction
for said offense cannot be sustained where there is no first marriage to speak
of. The petitioner, must, perforce be acquitted of the instant charge.
The present case is analogous to, but
must be distinguished from Mercado v. Tan.[25] In the latter case, the
judicial declaration of nullity of the first marriage was likewise
obtained after the second marriage was already celebrated. We
held therein that:
A
judicial declaration of nullity of a previous marriage is necessary before a
subsequent one can be legally contracted. One who enters into a subsequent
marriage without first obtaining such judicial declaration is guilty of bigamy.
This principle applies even if the earlier union is characterized by statutes
as void.[26]
It bears stressing though that in Mercado,
the first marriage was actually solemnized not just once, but twice: first
before a judge where a marriage certificate was duly issued and then again six
months later before a priest in religious rites. Ostensibly, at least, the
first marriage appeared to have transpired, although later declared void ab
initio.
In the instant case, however, no
marriage ceremony at all was performed by a duly authorized solemnizing
officer. Petitioner and Lucia Barrete merely signed a marriage contract on
their own. The mere private act of signing a marriage contract bears no
semblance to a valid marriage and thus, needs no judicial declaration of
nullity. Such act alone, without more, cannot be deemed to constitute an
ostensibly valid marriage for which petitioner might be held liable for bigamy
unless he first secures a judicial declaration of nullity before he contracts a
subsequent marriage.
The law abhors an injustice and the
Court is mandated to liberally construe a penal statute in favor of an accused
and weigh every circumstance in favor of the presumption of innocence to ensure
that justice is done. Under the circumstances of the present case, we held that
petitioner has not committed bigamy. Further, we also find that we need not
tarry on the issue of the validity of his defense of good faith or lack of
criminal intent, which is now moot and academic.
WHEREFORE, the instant petition is GRANTED. The
assailed decision, dated October 21, 1999 of the Court of Appeals in CA-G.R. CR
No. 20700, as well as the resolution of the appellate court dated September 25,
2000, denying herein petitioners motion for reconsideration, is REVERSED and
SET ASIDE. The petitioner Lucio Morigo y Cacho is ACQUITTED from the charge of
BIGAMY on the ground that his guilt has not been proven with moral certainty.”
Summary of Rules on Status of children under
a Void Marriage:
Rule- Children born during the subsistence of
a void marriage are illegitimate.
Exceptions: a. Article 36; b. Article 41; c.
Void Marriage solely because of non-observance of Articles 52 and 53.
Note: A void marriage under Article 40 produces illegitimate
progeny.
-Sec. 22 (b), Rule On Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (Supreme
Court En Banc Resolution A.M. No. 02-11-10-SC)
x xx
“Except in the case of children under
Articles 36 and 53 of the Family Code, the court shall order the Local Civil
Registrar to issue an amended birth certificate indicating the new status of
the children affected”.
Different kinds of VOID marriages:
Special Kind of Void Marriage Pursuant to
Article 40 of FC
Versus
All other Kinds of Void Marriages under the
Family Code
“Insofar as void marriages are concerned,
paragraphs (2), (3), (4), and (5) of Article 43 exceptionally apply only to
void subsequent marriages that occur as a result of the non-observance of
Article 40.Specifically, they apply to the subsequent void marriage contracted
by a spouse of a prior void marriage before the latter is judicially declared
void.”
“This is the clear mandate of Article 50. In
this case, though the subsequent marriage is void, the property shall be
liquidated as if there is a conjugal partnership of gains or absolute community
property.”
“In all other cases of a void marriage,
other than the void subsequent marriage that occurs as a result of the
non-observance of Article 40, the property regime shall be governed by the rule
on co-ownership provided for in Articles 147 and 148, as the case may be, and
not the conjugal partnership of gains or the absolute community of property.
Hence, in these cases where Article 147 or 148 will apply, the property regime
shall be liquidated pursuant to the ordinary rules on co-ownership
pursuant to the Civil Code provided they are not contrary to the Family
Code”.
-Questions: 1.If a marriage is declared void
under Article 36 (Psychological Incapacity) and it becomes final, should the
liquidation of the of the Property Regime be done in the same family court
which rendered the decision?
2. May the ENTRY OF JUDGMENT be issued
without a. registration of the partition and distribution of the properties of
the spouses in the Civil registry where the marriage was celebrated and in the
Civil registry of the place where the Family Court is located? b.And the
delivery of children’s presumptive legitimes in cash, property, or sound
securities?
-See Articles 102 (6) for liquidation of
Absolute Community Property and 129 (9) for Conjugal Partnership of Gains
-Sec. 21. Rule On Declaration of Absolute
Nullity of Void Marriages and Annulment of Voidable Marriages (Supreme Court En
Banc Resolution A.M. No. 02-11-10-SC)
“Sec. 21. Liquidation, partition and
distribution, custody, support of common children.
Section 21. Liquidation, partition and distribution, custody,
support of common children and delivery of their presumptive legitimes. -
Upon entry of the judgment granting the petition, or, in case of appeal, upon
receipt of the entry of judgment of the appellate court granting the petition,
the Family Court, on motion of either party, shall proceed with the
liquidation, partition and distribution of the properties of the spouses,
including custody, support of common children and delivery of their presumptive
legitimes pursuant to Articles 50 and 51 of the Family
Code unless such matters had been adjudicated in previous judicial proceedings.
Section 22. Issuance of Decree of Declaration of Absolute
Nullity or Annulment of Marriage." (a) The court shall issue the
Decree after;
(1) Registration of the entry of judgment
granting the petition for declaration of nullity or annulment of marriage in
the Civil Registry where the marriage was celebrated and in the Civil Registry
of the place where the Family Court is located;
(2) Registration of the approved partition
and distribution of the properties of the spouses, in the proper Register of
Deeds where the real properties are located; and
(3) The delivery of the children's
presumptive legitimes in cash, property, or sound securities.
(b) The court shall quote in the Decree the
dispositive portion of the judgment entered and attach to the Decree the
approved deed of partition.
Except in
the case of children under Articles 36 and 53 of the Family Code, the court
shall order the Local Civil Registrar to issue an amended birth certificate
indicating the new civil status of the children affected.
SUMMARY
OF LEGAL RAMIFICATIONS OF
DIFFERENT
VOID MARRIAGES UNDER THE FAMILY CODE
ARTICLE 40 (Failure to Obtain
Judicial Declaration of Nullity of Void Ab
Initio Marriage)
|
ARTICLE 52 IN
TANDEM WITH ARTICLE 53 (Failure to Record in Local Civil Registry the
Judicial Declaration of Nullity, Liquidation and Partition and Delivery of
Presumptive Legitimes)
|
ANY OTHER REASON
UNDER THE FAMILY CODE (Articles 35, 36 , 37 and 38 Including the real bigamous marriages)
|
Children are illegitimate
|
Children are legitimate pursuant to Article 53
|
Children are illegitimate EXCEPT those born under
Article 36 pursuant to Article 53
|
Liquidation of ACP or CPG required (Also same in annulment
under Art. 45)
|
Governed by co-ownership (Valdez v. RTC)
|
Governed by Co-ownership(Valdes v RTC)
|
Decree of Nullity will only issue after compliance
with Article 52 (Also same in annulment under Art. 45)
|
Decree of Nullity issues without need of compliance
with Art. 53 (see Dino v. Dino)
|
Decree of Nullity issues without need of compliance
with Art. 53 (see Dino v. Dino)
|
Partition and Liquidation must be
done in accordance with Articles
102 (6) for liquidation of Absolute Community Property and 129 (9) for
Conjugal Partnership of Gains
|
Partition and Liquidation may be done
extra-judicially pursuant to Rule 69 Rules of Court
|
Partition and Liquidation may be done
extra-judicially pursuant to Rule 69 Rules of Court
|
Family Home goes to spouse with whom majority of
children choose to remain
|
Family home is divided 50-50
|
Family home is divided 50-50
|
X. In 1999, Delia and Jose, were married.
Coming from middle-class families, they constituted their family home on a
piece of land that adjoins a riverbank. The aggregate value of the land and the
family home is P150,000.00. In 2009, the riverbank which is adjacent to their
Family home was subject of a massive government project that exponentially
increased the value of all lands surrounding the river including the family
home of Delia and Jose. Per current market value, the Family home of Delia and
Jose can now fetch up to P15,000,000.00. Creditors of Delia and Jose now start
suing the couple and after obtaining favourable money judgments, seek to
enforce on the couple’s family home. [a] Can the Sheriff execute on the Family
home of Delia and Jose? Explain. [b] If you were the lawyer for one of the
creditors, how would you advise your client? [c] What if the money judgment
arose only out of an obligation which was obtained solely by Delia, and without
the knowledge, let alone the consent, of Jose, will your answer in [a] and [b]
be the same? Discuss. [d] How soon should Delia or Jose invoke the insulation
of their Family home from forced sales and execution? Explain.
Answer:
[a] No. The incremental increase in
value was not due to VOLUNTARY acts of improvement.
[b] I will file a motion in court
for a hearing to determine the true value of the property to find ways to show
the court that the property is not exempt as a family home for being more than
the value allowed, or the improvements were caused by voluntary acts of the
spouses.
[c] The law provides that the
common properties can only be made liable when the obligation was incurred by
BOTH spouses or by one spouse but has redounded to the benefit of the family.
Here, there is no showing that the either is present. Hence, the common
property cannot be made liable for a unilateral obligation incurred by Delia.
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