THIRD DIVISION "WHEREFORE, this Court declares the marriage Starting October 22, 1995, petitioner and

between Grace J. Garcia and Rederick A. Recio respondent lived separately without prior
G.R. No. 138322 October 2, 2001
solemnized on January 12, 1994 at Cabanatuan judicial dissolution of their marriage. While the
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA- City as dissolved and both parties can now two were still in Australia, their conjugal assets
RECIO, petitioner, vs. remarry under existing and applicable laws to were divided on May 16, 1996, in accordance
any and/or both parties."3 with their Statutory Declarations secured in
REDERICK A. RECIO, respondents. Australia.9

The assailed Order denied reconsideration of

PANGANIBAN, J.: the above-quoted Decision. On March 3, 1998, petitioner filed a Complaint
for Declaration of Nullity of Marriage10 in the
court a quo, on the ground of bigamy –
A divorce obtained abroad by an alien may be The Facts respondent allegedly had a prior subsisting
recognized in our jurisdiction, provided such marriage at the time he married her on January
decree is valid according to the national law of 12, 1994. She claimed that she learned of
the foreigner. However, the divorce decree and respondent's marriage to Editha Samson only in
Rederick A. Recio, a Filipino, was married to
the governing personal law of the alien spouse November, 1997.
Editha Samson, an Australian citizen, in
who obtained the divorce must be proven. Our
Malabon, Rizal, on March 1, 1987.4 They lived
courts do not take judicial notice of foreign laws
together as husband and wife in Australia. On
and judgment; hence, like any other facts, both In his Answer, respondent averred that, as far
May 18, 1989,5 a decree of divorce, purportedly
the divorce decree and the national law of the back as 1993, he had revealed to petitioner his
dissolving the marriage, was issued by an
alien must be alleged and proven according to prior marriage and its subsequent
Australian family court.
our law on evidence. dissolution.11 He contended that his first
marriage to an Australian citizen had been
On June 26, 1992, respondent became an validly dissolved by a divorce decree obtained in
The Case Australian in 1989;12 thus, he was legally
Australian citizen, as shown by a "Certificate of
Australian Citizenship" issued by the Australian capacitated to marry petitioner in
government.6 Petitioner – a Filipina – and 1994.1âwphi1.nêt
Before us is a Petition for Review under Rule 45 respondent were married on January 12, 1994
of the Rules of Court, seeking to nullify the in Our Lady of Perpetual Help Church in
January 7, 1999 Decision1 and the March 24, Cabanatuan City.7 In their application for a On July 7, 1998 – or about five years after the
1999 Order2 of the Regional Trial Court of marriage license, respondent was declared as couple's wedding and while the suit for the
Cabanatuan City, Branch 28, in Civil Case No. "single" and "Filipino."8 declaration of nullity was pending – respondent
3026-AF. The assailed Decision disposed as was able to secure a divorce decree from a
follows: family court in Sydney, Australia because the
"marriage ha[d] irretrievably broken down."13
 "I remarry, without first securing a recognition of
the judgment granting the divorce decree
Respondent prayed in his Answer that the The trial court gravely erred in finding that the
before our courts."19
Complained be dismissed on the ground that it divorce decree obtained in Australia by the
stated no cause of action.14 The Office of the respondent ipso facto terminated his first
Solicitor General agreed with respondent.15 marriage to Editha Samson thereby capacitating
The Petition raises five issues, but for purposes
The court marked and admitted the him to contract a second marriage with the
of this Decision, we shall concentrate on two
documentary evidence of both parties.16 After petitioner.
pivotal ones: (1) whether the divorce between
they submitted their respective memoranda,
respondent and Editha Samson was proven, and
the case was submitted for resolution.17
(2) whether respondent was proven to be
"2
legally capacitated to marry petitioner. Because
The failure of the respondent, who is now a of our ruling on these two, there is no more
Thereafter, the trial court rendered the assailed
naturalized Australian, to present a certificate necessity to take up the rest.
Decision and Order.
of legal capacity to marry constitutes absence
Ruling of the Trial Court of a substantial requisite voiding the petitioner'
marriage to the respondent. The Court's Ruling

The Petition is partly meritorious.

The trial court declared the marriage dissolved
on the ground that the divorce issued in "3
Australia was valid and recognized in the
The trial court seriously erred in the application First Issue:
Philippines. It deemed the marriage ended, but
of Art. 26 of the Family Code in this case.
not on the basis of any defect in an essential Proving the Divorce Between Respondent and
element of the marriage; that is, respondent's Editha Samson
alleged lack of legal capacity to remarry. Rather,
it based its Decision on the divorce decree "4
obtained by respondent. The Australian divorce The trial court patently and grievously erred in Petitioner assails the trial court's recognition of
had ended the marriage; thus, there was no disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 the divorce between respondent and Editha
more martial union to nullify or annual. of the Family Code as the applicable provisions Samson. Citing Adong v. Cheong Seng Gee,20
Hence, this Petition.18 in this case. petitioner argues that the divorce decree, like
any other foreign judgment, may be given
recognition in this jurisdiction only upon proof
"5 of the existence of (1) the foreign law allowing
Issues
absolute divorce and (2) the alleged divorce
Petitioner submits the following issues for our The trial court gravely erred in pronouncing that decree itself. She adds that respondent
consideration: the divorce gravely erred in pronouncing that miserably failed to establish these elements.
the divorce decree obtained by the respondent
in Australia ipso facto capacitated the parties to
Petitioner adds that, based on the first Therefore, before a foreign divorce decree can "ART. 13. In case either of the contracting
paragraph of Article 26 of the Family Code, be recognized by our courts, the party pleading parties has been previously married, the
marriages solemnized abroad are governed by it must prove the divorce as a fact and applicant shall be required to furnish, instead of
the law of the place where they were demonstrate its conformity to the foreign law the birth of baptismal certificate required in the
celebrated (the lex loci celebrationist). In effect, allowing it.29 Presentation solely of the divorce last preceding article, the death certificate of
the Code requires the presentation of the decree is insufficient. the deceased spouse or the judicial decree of
foreign law to show the conformity of the annulment or declaration of nullity of his or her
marriage in question to the legal requirements previous marriage. x x x.
of the place where the marriage was Divorce as a Question of Fact
performed.
"ART. 52. The judgment of annulment or of
Petitioner insists that before a divorce decree absolute nullity of the marriage, the partition
At the outset, we lay the following basic legal can be admitted in evidence, it must first and distribution of the properties of the
principles as the take-off points for our comply with the registration requirements spouses, and the delivery of the children's
discussion. Philippine law does not provide for under Articles 11, 13 and 52 of the Family Code. presumptive legitimes shall be recorded in the
absolute divorce; hence, our courts cannot These articles read as follows: appropriate civil registry and registries of
grant it.21 A marriage between two Filipinos property; otherwise, the same shall not affect
cannot be dissolved even by a divorce obtained their persons."
abroad, because of Articles 1522 and 1723 of "ART. 11. Where a marriage license is required,
the Civil Code.24 In mixed marriages involving a each of the contracting parties shall file
Filipino and a foreigner, Article 2625 of the separately a sworn application for such license Respondent, on the other hand, argues that the
Family Code allows the former to contract a with the proper local civil registrar which shall Australian divorce decree is a public document
subsequent marriage in case the divorce is specify the following: – a written official act of an Australian family
"validly obtained abroad by the alien spouse court. Therefore, it requires no further proof of
capacitating him or her to remarry."26 A its authenticity and due execution.
divorce obtained abroad by a couple, who are xxx xxx xxx
both aliens, may be recognized in the
Philippines, provided it is consistent with their Respondent is getting ahead of himself. Before
respective national laws.27 a foreign judgment is given presumptive
"(5) If previously married, how, when and
where the previous marriage was dissolved or evidentiary value, the document must first be
annulled; presented and admitted in evidence.30 A
A comparison between marriage and divorce, as divorce obtained abroad is proven by the
far as pleading and proof are concerned, can be divorce decree itself. Indeed the best evidence
made. Van Dorn v. Romillo Jr. decrees that of a judgment is the judgment itself.31 The
xxx xxx xxx
"aliens may obtain divorces abroad, which may decree purports to be a written act or record of
be recognized in the Philippines, provided they an act of an officially body or tribunal of a
are valid according to their national law."28 foreign country.32
 defense of an action."41 In civil cases, plaintiffs
have the burden of proving the material
Under Sections 24 and 25 of Rule 132, on the Compliance with the quoted articles (11, 13 and
allegations of the complaint when those are
other hand, a writing or document may be 52) of the Family Code is not necessary;
denied by the answer; and defendants have the
proven as a public or official record of a foreign respondent was no longer bound by Philippine
burden of proving the material allegations in
country by either (1) an official publication or personal laws after he acquired Australian
their answer when they introduce new
(2) a copy thereof attested33 by the officer citizenship in 1992.39 Naturalization is the legal
matters.42 Since the divorce was a defense
having legal custody of the document. If the act of adopting an alien and clothing him with
raised by respondent, the burden of proving the
record is not kept in the Philippines, such copy the political and civil rights belonging to a
pertinent Australian law validating it falls
must be (a) accompanied by a certificate issued citizen.40 Naturalized citizens, freed from the
squarely upon him.
by the proper diplomatic or consular officer in protective cloak of their former states, don the
the Philippine foreign service stationed in the attires of their adoptive countries. By becoming
foreign country in which the record is kept and an Australian, respondent severed his allegiance
It is well-settled in our jurisdiction that our
(b) authenticated by the seal of his office.34 to the Philippines and the vinculum juris that
courts cannot take judicial notice of foreign
had tied him to Philippine personal laws.
laws.43 Like any other facts, they must be
alleged and proved. Australian marital laws are
The divorce decree between respondent and
not among those matters that judges are
Editha Samson appears to be an authentic one Burden of Proving Australian Law
supposed to know by reason of their judicial
issued by an Australian family court.35
function.44 The power of judicial notice must
However, appearance is not sufficient;
be exercised with caution, and every reasonable
compliance with the aforemetioned rules on Respondent contends that the burden to prove doubt upon the subject should be resolved in
evidence must be demonstrated. Australian divorce law falls upon petitioner, the negative.
because she is the party challenging the validity
of a foreign judgment. He contends that
Fortunately for respondent's cause, when the petitioner was satisfied with the original of the
Second Issue:
divorce decree of May 18, 1989 was submitted divorce decree and was cognizant of the marital
in evidence, counsel for petitioner objected, not laws of Australia, because she had lived and Respondent's Legal Capacity to Remarry
to its admissibility, but only to the fact that it worked in that country for quite a long time.
had not been registered in the Local Civil Besides, the Australian divorce law is allegedly
Registry of Cabanatuan City.36 The trial court known by Philippine courts: thus, judges may Petitioner contends that, in view of the
ruled that it was admissible, subject to take judicial notice of foreign laws in the insufficient proof of the divorce, respondent
petitioner's qualification.37 Hence, it was exercise of sound discretion. was legally incapacitated to marry her in 1994.
admitted in evidence and accorded weight by
the judge. Indeed, petitioner's failure to object
properly rendered the divorce decree We are not persuaded. The burden of proof lies Hence, she concludes that their marriage was
admissible as a written act of the Family Court with "the party who alleges the existence of a void ab initio.
of Sydney, Australia.38 fact or thing necessary in the prosecution or
 court may allow a remarriage only after proof of Petitioner argues that the certificate of legal
good behavior.47 capacity required by Article 21 of the Family
Respondent replies that the Australian divorce
Code was not submitted together with the
decree, which was validly admitted in evidence,
application for a marriage license. According to
adequately established his legal capacity to
On its face, the herein Australian divorce decree her, its absence is proof that respondent did not
marry under Australian law.
contains a restriction that reads: have legal capacity to remarry.

Respondent's contention is untenable. In its

"1. A party to a marriage who marries again We clarify. To repeat, the legal capacity to
strict legal sense, divorce means the legal
before this decree becomes absolute (unless contract marriage is determined by the national
dissolution of a lawful union for a cause arising
the other party has died) commits the offence law of the party concerned. The certificate
after marriage. But divorces are of different
of bigamy."48 mentioned in Article 21 of the Family Code
types. The two basic ones are (1) absolute
would have been sufficient to establish the legal
divorce or a vinculo matrimonii and (2) limited
capacity of respondent, had he duly presented
divorce or a mensa et thoro. The first kind
This quotation bolsters our contention that the it in court. A duly authenticated and admitted
terminates the marriage, while the second
divorce obtained by respondent may have been certificate is prima facie evidence of legal
suspends it and leaves the bond in full force.45
restricted. It did not absolutely establish his capacity to marry on the part of the alien
There is no showing in the case at bar which
legal capacity to remarry according to his applicant for a marriage license.50
type of divorce was procured by respondent.
national law. Hence, we find no basis for the
ruling of the trial court, which erroneously
assumed that the Australian divorce ipso facto As it is, however, there is absolutely no
Respondent presented a decree nisi or an
restored respondent's capacity to remarry evidence that proves respondent's legal
interlocutory decree – a conditional or
despite the paucity of evidence on this matter. capacity to marry petitioner. A review of the
provisional judgment of divorce. It is in effect
records before this Court shows that only the
the same as a separation from bed and board,
following exhibits were presented before the
although an absolute divorce may follow after
We also reject the claim of respondent that the lower court: (1) for petitioner: (a) Exhibit "A" –
the lapse of the prescribed period during which
divorce decree raises a disputable presumption Complaint;51 (b) Exhibit "B" – Certificate of
no reconciliation is effected.46
or presumptive evidence as to his civil status Marriage Between Rederick A. Recto (Filipino-
based on Section 48, Rule 3949 of the Rules of Australian) and Grace J. Garcia (Filipino) on
Court, for the simple reason that no proof has January 12, 1994 in Cabanatuan City, Nueva
Even after the divorce becomes absolute, the Ecija;52 (c) Exhibit "C" – Certificate of Marriage
been presented on the legal effects of the
court may under some foreign statutes and Between Rederick A. Recio (Filipino) and Editha
divorce decree obtained under Australian laws.
practices, still restrict remarriage. Under some D. Samson (Australian) on March 1, 1987 in
other jurisdictions, remarriage may be limited Malabon, Metro Manila;53 (d) Exhibit "D" –
by statute; thus, the guilty party in a divorce Office of the City Registrar of Cabanatuan City
which was granted on the ground of adultery Significance of the Certificate of Legal Capacity
Certification that no information of annulment
may be prohibited from remarrying again. The between Rederick A. Recto and Editha D.
Samson was in its records;54 and (e) Exhibit "E" case to the trial court to receive evidence, if 2 Rollo, p. 10.
– Certificate of Australian Citizenship of any, which show petitioner's legal capacity to
Rederick A. Recto;55 (2) for respondent: marry petitioner. Failing in that, then the court
(Exhibit "1" – Amended Answer;56 (b) Exhibit a quo may declare a nullity of the parties' 3 Ibid, p. 9.
"S" – Family Law Act 1975 Decree Nisi of marriage on the ground of bigamy, there being
Dissolution of Marriage in the Family Court of already in evidence two existing marriage
Australia;57 (c) Exhibit "3" – Certificate of certificates, which were both obtained in the 4 Rollo, p. 37.
Australian Citizenship of Rederick A. Recto;58 Philippines, one in Malabon, Metro Manila
(d) Exhibit "4" – Decree Nisi of Dissolution of dated March 1, 1987 and the other, in
Marriage in the Family Court of Australia Cabanatuan City dated January 12, 1994. 5 Ibid., p. 47.
Certificate;59 and Exhibit "5" – Statutory
Declaration of the Legal Separation Between
Rederick A. Recto and Grace J. Garcia Recio WHEREFORE, in the interest of orderly 6 Id., p. 44.
since October 22, 1995.60 procedure and substantial justice, we REMAND
the case to the court a quo for the purpose of
receiving evidence which conclusively show
7 Id., p. 36.
Based on the above records, we cannot respondent's legal capacity to marry petitioner;
conclude that respondent, who was then a and failing in that, of declaring the parties'
naturalized Australian citizen, was legally marriage void on the ground of bigamy, as
8 Annex "I"; temporary rollo, p. 9.
capacitated to marry petitioner on January 12, above discussed. No costs.
1994. We agree with petitioner's contention
that the court a quo erred in finding that the
divorce decree ipso facto clothed respondent 9 The couple secured an Australian "Statutory
SO ORDERED.
with the legal capacity to remarry without Declaration" of their legal separation and
division of conjugal assets. See Annexes "3" and
requiring him to adduce sufficient evidence to
show the Australian personal law governing his "4" of Respondent's Comment; rollo, p. 48.
Melo, Puno, Vitug, and Sandoval-Gutierrez, JJ.,
status; or at the very least, to prove his legal concur.
capacity to contract the second marriage.
10 Id., pp. 33-35.

Footnotes
Neither can we grant petitioner's prayer to
declare her marriage to respondent null and 11 Id., p. 39.
void on the ground of bigamy. After all, it may 1 Penned by Judge Feliciano V. Buenaventura;
turn out that under Australian law, he was rollo, pp. 7-9.
really capacitated to marry petitioner as a direct 12 Amended Answer, p. 2; rollo, p. 39.
result of the divorce decree. Hence, we believe
that the most judicious course is to remand this
13 Id., pp. 77-78. 1st & 2nd Quarters, 2001, Vol. XXVII, No. 1, p. and valid there as such, shall also be valid in this
25. country, except those prohibited under Articles
35(1), (4), (5), and (6), 36, 37, and 38. (71a).
14 Id., p. 43.
22 "ART. 15. Laws relating to family rights and
duties, or to the status, condition and legal "Where a marriage between a Filipino citizen
15 Rollo, pp. 48-51. capacity of persons are binding upon citizens of and a foreigner is validly celebrated and a
the Philippines, even though living abroad." divorce is thereafter validly obtained abroad by
the alien spouse capacitating him or her to
16 TSN, December 16, 1998, pp. 1-8; records, remarry, the Filipino spouse shall have capacity
pp. 172-179. 23 "ART. 17. The forms and solemnities of to remarry under Philippine law." (As amended
contracts, wills, and other public instruments by EO 227, prom. July 27, 1987).
shall be governed by the laws of the country in
17 RTC Order of December 16, 1998; ibid., p. which they are executed.
203. 26 Cf. Van Dorn v. Romillo Jr., 139 SCRA 139,
143-144, October 8, 1985; and Pilapil v. Ibay-
xxx xxx xxx Somera, 174 SCRA 653, 663, June 30,
18 The case was deemed submitted for decision 1989.1âwphi1.nêt
on January 11, 2000, upon this Court's receipt
of the Memorandum for petitioner, signed by "Prohibitive laws concerning persons, their acts
Atty. Olivia Velasco-Jacoba. The Memorandum or property, and those which have for their 27 Van Dorn v. Romillo Jr., supra.
for respondent, signed by Atty. Gloria V. Gomez object public order, public policy and good
of Gomez and Associates, had been filed on customs shall not be rendered ineffective by
December 10, 1999. laws or judgments promulgated, or by 28 Ibid., p. 143.
determinations or conventions agreed upon in a
foreign country."
19 Petitioner's Memorandum, pp. 8-9; rollo, pp. 29 For a detailed discussion of Van Dorn, see
242-243. Salonga, Private International Law, 1995 ed. pp.
25 Tenchaves v. Escano 15 SCRA 355, 362, 295-300. See also Jose C. Vitug, Compendium of
November 29, 1965; Barretto Gonzalez v. Civil Law and Jurisprudence, 1993 ed., p. 16;
20 43 Phil. 43, 49, March 3, 1922. Gonzales, 58 Phil. 67, 71-72, March 7, 1933.

30 "SEC. 19. Classes of documents. – For the

21 Ruben F. Balane, "Family Courts and "Art. 26. All marriages solemnized outside the purpose of their presentation in evidence,
Significant Jurisprudence in Family Law," Philippines in accordance with the laws in force documents are either public or private.
Journal of the Integrated Bar of the Philippines, in the country where they were solemnized,
"Public documents are: xxx xxx x x x." Relations Commission, 161 SCRA 122, 133-134,
May 6, 1988.

"(a) The written official acts, or records of the 33 "Sec. 25. What attestation of copy must
official acts of the sovereign authority, official state. – Whenever a copy of a document or 35 The transcript of stenographic notes states
bodies and tribunals, and public officers, record is attested for the purpose of evidence, that the original copies of the divorce decrees
whether in the Philippines, or of a foreign the attestation must state, in substance, that were presented in court (TSN, December 16,
country. the copy is a correct copy of the original, or a 1998, p. 5; records, p. 176), but only
specific part thereof, as the case may be. The photocopies of the same documents were
attestation must be under the official seal of attached to the records (Records, Index of
xxx xxx x x x." the attesting officer, if there be any, or if he be Exhibit, p. 1.).
the clerk of a court having a seal, under the seal
of such court."
31 Burr W. Jones, Commentaries on the Law of 36 TSN, December 15, 1998, p. 7; records, p.
Evidence in Civil Cases, Vol. IV, 1926 ed., p. 178.
3511; §3, Rule 130 of the Rules on Evidence 34 "Sec. 24. Proof of official record. – The
provides that "when the subject of inquiry is the record of public documents referred to in
contents of a document, no evidence shall be paragraph (a) of Section 19, when admissible 37 TSN, December 16, 1998, p. 7; records, p.
admissible other than the original document for any purpose, may be evidenced by an 178.
itself." official publication thereof or by a copy attested
by the officer having the legal custody of the
record, or by his deputy, and accompanied, if 38 People v. Yatco, 97 Phil. 941, 945, November
32 "SEC. 19. Classes of documents. – For the the record is not kept in the Philippines, with a 28, 1955; Marella v. Reyes, 12 Phil. 1, 3,
purpose of their presentation in evidence, certificate that such officer has the custody. If November 10, 1908; People v. Diaz, 271 SCRA
documents are either public or private. the office in which the record is kept is in a 504, 516, April 18, 1997; De la Torre v. Court of
foreign country, the certificate may be made by Appeals, 294 SCRA 196, 203-204, August 14,
a secretary of the embassy or legation, consul 1998, Maunlad Savings & Loan Asso., Inc. v.
Public documents are: general, consul, vice-consul, or consular agent Court of Appeals, GR No. 114942, November 27,
or by any officer in the foreign service of the 2000, pp. 8-9.
Philippines stationed in the foreign country in
which the record is kept, and authenticated by
"(a) The written official acts, or records of the
the seal of his office." 39 Art. 15, Civil Code.
official acts of the sovereign authority, official
bodies and tribunals, and public officers,
whether in the Philippines, or of a foreign
country. See also Asiavest Ltd. v. Court of Appeals, 296
SCRA 539, 550-551, September 25, 1998; Pacific
Asia Overseas Shipping Corp. v. National Labor
40 Joaquin Bernas, The 1987 Constitution of the jurisdiction to render the judgment or final 51 Records, pp. 1-3.
Republic of the Philippines: A Commentary, order is as follows:
1996 ed., p. 566.
52 Ibid., p. 4.
xxx xxx xxx
41 Ricardo J. Francisco, Evidence: Rules of Court
in the Philippines, second edition, p. 382. 53 Id., p. 5.
"(b) In case of a judgment or final order against
a person, the judgment or final order is
42 Ibid., p. 384. presumptive evidence of a right as between the 54 Id., p. 180.
parties and their successors in interest by a
subsequent title.
43 Wildvalley Shipping Co., Ltd. v. Court of 55 Id., pp. 170-171.
Appeals, GR No. 119602, October 56, 2000, p. 7.
"In either case, the judgment or final order may
be repelled by evidence of a want of 26 Id., pp. 84-89.
44 Francisco, p. 29, citing De los Angeles v. jurisdiction, want of notice to the party,
Cabahug, 106 839, December 29, 1959. collusion, fraud, or clear mistake of law or fact."
57 Id., pp. 181-182.

45 274 CJS, 15-17, §1. 50 In passing, we note that the absence of the
said certificate is merely an irregularity in 58 Id., pp. 40-41.
complying with the formal requirement for
46 Ibid., p. 611-613, §161. procuring a marriage license. Under Article 4 of
the Family Code, an irregularity will not affect
59 Id., pp. 183.
the validity of a marriage celebrated on the
47 27A CJS, 625, §162. basis of a marriage license issued without that
certificate. (Vitug, Compendium, pp. 120-126);
60 Id., pp. 184-187.
Sempio-Diy, Handbook on the Family Code of
the Philippines, 197 reprint, p. 17; Rufus
48 Rollo, p. 36.
Rodriguez, The Family Code of the Philippines
Annotated, 1990 ed., p. 42; Melencio Sta. Maria
Jr., Persons and Family Relations Law, 1999 ed.,
49 "SEC. 48. Effect of foreign judgments or final
p. 146.).
orders. – The effect of a judgment or final order
of a tribunal of a foreign country, having