Conflicts of Law Marriage Cases

8/12/2019 Conflicts of Law Marriage Cases

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2. MARRIAGE; MARRIAGE OF ONE MAN TO TWO WOMEN. When two women innocently and in good faith are legallyunited in holy matrimony to the same man, they and theirchildren, born of said wedlock, will be regarded as legitimatechildren, and each family will be entitled to one-half of theestate of the husband upon distribution of his estate. Thatprovision of the Leyes de Partidas is a very humane and wiselaw. It justly protects those who innocently have entered intothe solemn relation of marriage and their descendants. Thegood faith of all parties will be presumed until the contrary ispositively proved. A woman who is deceived by a man, whorepresents himself as a single man, and who marries him, sheand her children are entitled to all the rights of legitimate wifeand children.G.R. No. L-42581 October 2, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, vs. MORA DUMPO, Defendant-Appellant

Nature of the Case: Appeal from the judgment of CFI of

Zamboanga

Facts:

Moro Hassan &Mora Dupo were legally married according to the

rites and practice of the Mohammedan religion. Without thismarriage being dissolved, it is alleged that Dumpo contracted

another marriage with Moro Sabdapal after which the two lived

together as husband and wife. Dumpo was prosecuted for and

convicted of the crime of bigamy in the CFI Zamboanga and

sentenced to prison.

The accused interposed an appeal. Defenseestablished that the

2ndmarriage is null and void accdg to Mohammedan rites on

the ground that her father had not given his consent. The

prosecution did not present any objection nor evidence to the

contrary.

Issue: WON the 2ndmarriage is valid or not

HELD: No.We formulate no general statement regarding the

requisites necessary for the validity of a marriage between

Moros according to Mohammedan rites. This is a fact of which

no judicial notice may be taken and must be subject to proof in

every particular case. In this case, there is anuncontradicted

testimony of Tahari, an Iman or Mohammedan priest who said

that the consent of the bride's father or in the absence thereof,

that of the chief of the tribe to which she belongs in an

indispensable requisite for the validity of marriage. It iscontended that, granting the absolute necessity of the requisite

in question, tacit compliance therewith may be presumed

because it does not appear that Dumpo's father has signified

his opposition to this alleged marriage after he had been

informed of its celebration. But this presumption should not be

established over the categorical affirmation of Moro Jalmani,

Dumpo's father, that he did not give his consent to hisdaughter's alleged second marriage for the reason thathe was not informed thereof and that, at all events, hewould not have given it, knowing that Dumpo's first marriage

was not dissolved.

It is an essential element of the crime of bigamy that the

alleged second marriage, having all the essential requisites,

would be valid were it not for the subsistence of the first

marriage. Wherefore, reversing the appealed judgment, the

accused is acquittedof the charges and if she should be indetention her immediate release is ordered, with the costs of

both instances de oficio. So ordered.

THIRD DIVISION

[G.R. No. L-55960. November 24, 1988.]

YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUNYEN, Petitioners, v. AIDA SY-GONZALES, MANUEL SY,

TERESITA SY-BERNABE, RODOLFO SY, and HONORABLECOURT OF APPEALS,Respondents.

SYLLABUS

1. CIVIL LAW; CUSTOM, DEFINED. Custom is defined as "arule of conduct formed by repetition of acts, uniformly observed(practiced) as a social rule, legally binding and obligatory" [Inthe Matter of the Petition for Authority to Continue Use of theFirm Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes",July 30, 1979, 92 SCRA 3, 12].

2. ID.; ID.; MUST BE PROVED ACCORDING TO THE RULES ONEVIDENCE. The law requires that "a custom must be provedas a fact, according to the rules of evidence" [Article 12, CivilCode.] On this score the Court had occasion to state that "alocal custom as a source of right can not be considered by acourt of justice unless such custom is properly established bycompetent evidence like any other fact" [Patriarca v. Orate, 7Phil. 390, 395 (1907).] The same evidence, if not one of ahigher degree, should be required of a foreign custom.

3. ID.; FOREIGN MARRIAGE; HOW PROVED. To establish avalid foreign marriage two things must be proven, namely: (1)the existence of the foreign law as a question of fact; and (2)the alleged foreign marriage by convincing evidence [Adong v.Cheong Seng Gee, 43 Phil. 43, 49 (1922)].

4. REMEDIAL LAE; EVIDENCE; PROOF OF WRITTEN FOREIGNLAW; TESTIMONY OF COMPETENT WITNESS, INCLUDED. Inproving a foreign law the procedure is provided in the Rules ofCourt. Proof of a written foreign law, on the other hand, is

provided for under Rule 132 Section 25. The Court hasinterpreted section 25 to include competent evidence like thetestimony of a witness to prove the existence of a writtenforeign law [Collector of Internal Revenue v. Fisher 110 Phil.686, 700-701 (1961) citing Willamette Iron and Steel Works v.Muzzal, 61 Phil. 471 (1935).]

5. ID.; ID.; ID.; MARRIAGE CONTRACTED PURSUANT TO AFOREIGN LAW MUST BE PROVED TO BE RECOGNIZED; CASEAT BAR. Accordingly, in the absence of proof of the Chineselaw on marriage, it should be presumed that it is the same asours . . . [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31,1965, 13 SCRA 552, 555.] Since Yao Kee admitted in hertestimony that there was no solemnizing officer as is knownhere in the Philippines [See Article 56, Civil Code] when heralleged marriage to SyKiat was celebrated it therefore follows

that her marriage to SyKiat, even if true, cannot be recognizedin this jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]

6. ID.; PHILIPPINE COURTS CANNOT TAKE JUDICIAL NOTICEOF FOREIGN LAWS. Philippine courts cannot take judicialnotice of foreign laws. They must be alleged and proved as anyother fact [Yam Ka Lim v. Collector of Customs, 30 Phil. 46, 48(1915); Fluemer v. Hix, 54 Phil. 610 (1930).]

7. ID.; EVIDENCE; PROOF OF WRITTEN FOREIGN LAW; RULINGIN MEMORACION CASE, NOT APPLICABLE TOP CASE AT BAR. The Memoracion case however is not applicable to the case atbar as said case did not concern a foreign marriage and theissue posed was whether or not the oral testimony of a spouseis competent evidence to prove the fact of marriage in acomplaint for adultery.

8. CIVIL LAW; PERSONS; PATERNITY AND FILIATION; FAILURETO ESTABLISH CELEBRATION OF MARRIAGE ACCORDING TOTHE LAWS OF CHINA; EFFECT ON STATUS OF CHILDREN. Failure to establish the marriage of Yao Kee with SyKiataccording to the laws of China, they cannot be accorded thestatus of legitimate children but only that of acknowledgednatural children. Petitioners are natural children, it appearingthat at the time of their conception Yao Kee and SyKiat werenot disqualified by any impediment to marry one another [SeeArt. 269, Civil Code.] And they are acknowledged children ofthe deceased because of SyKiats recognition of SzeSookWah.

9. ID.; ID.; ID.; RECOGNITION OF NATURAL CHILDREN;

ACKNOWLEDGMENT OF ONE NATURAL CHILD BENEFITS HERSISTERS AND BROTHERS OF THE FULL BLOOD. Theacknowledgment of SzeSookWah extends to Sze Lai Cho and SyChun yen who are her sisters of the full blood [See Art. 271,Civil Code].

10. ID.; ID.; ID.; COMPROMISE AGREEMENT ACKNOWLEDGINGTHEIR NATURAL CHILDREN AND PROVIDING FOR THEIRSUPPORT CONSTITUTES A STATEMENT BEFORE A COURT OFRECORD. Compromise agreement entered into by theirparents acknowledging their five (5) natural children andproviding for their support approved by the by the Court of FirstInstance constitutes a statement before a court of record bywhich a child may be voluntarily acknowledged [See Art. 278,


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Civil Code].

11. REMEDIAL LAW; BATAS PAMBANSA BLG. 129; FUNCTIONSAND JURISDICTION OF THE JUVENILE AND DOMESTICRELATIONS COURTS, VESTED NOW WITH THE REGIONALTRIAL COURT. With the enactment of Batas PambansaBlg.129, otherwise known as the Judiciary Reorganization Act of1980, the Juvenile and Domestic Relations Courts wereabolished. Their functions and jurisdiction are now vested withthe Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 andDivinagracia v. Belosillo, G.R. No. L-47407, August 12, 1986,143 SCRA 356, 360]

12. ID.; ACTIONS; ISSUE ON PATERNITY AND FILIATION MAYBE PASSED UPON IN A TESTATE OF INTESTATE PROCEEDING;REASON. A case involving paternity and acknowledgmentmay be ventilated as an incident in the intestate or testateproceeding (See Baluyot v. Ines Luciano, L-42215, July 13,1976). But that legal provision presupposes that such anadministration proceeding is pending or existing and has notbeen terminated. The reason for this rule is not only "to obviatethe rendition of conflicting rulings on the same issue by theCourt of First Instance and the Juvenile and Domestic RelationsCourt" [Vda. de Baluyut v. Luciano, G.R. No. L-42215, July 13,1976, 72 SCRA 52, 63] but more importantly to preventmultiplicity of suits.

D E C I S I O N

SyKiat, a Chinese national, died on January 17, 1977 inCaloocan City where he was then residing, leaving behind realand personal properties here in the Philippines worthP300,000.00 more or less.

Thereafter, Aida Sy-Gonzales, Manuel Sy, TeresitaSy-Bernabeand Rodolfo Sy filed a petition for the grant of letters ofadministration docketed as Special Proceedings Case No. C-699of the then Court of First Instance of Rizal Branch XXXIII,Caloocan City. In said petition they alleged among others that(a) they are the children of the deceased with Asuncion Gillego;(b) to their knowledge SyKiat died intestate; (c) they do notrecognize SyKiats marriage to Yao Kee nor the filiation of herchildren to him; and, (d) they nominate Aida Sy-Gonzales for

appointment as administratrix of the intestate estate of thedeceased [Record on Appeal, pp. 4-9; Rollo, p. 107.]

The petition was opposed by Yao Kee, SzeSookWah, Sze LaiCho and Sy Yun Chen who alleged that: (a) Yao Kee is thelawful wife of SyKiat whom he married on January 19, 1931 inChina; (b) the other oppositors are the legitimate children ofthe deceased with Yao Kee; and, (c) SzeSookWah is the eldestamong them and is competent, willing and desirous to becomethe administratrix of the estate of SyKiat [Record on Appeal, pp.12-13; Rollo, p. 107.]

After hearing, the probate court, finding among othersthat:chanrob1es virtual 1aw library

(1) SyKiat was legally married to Yao Kee [CFI decision, pp. 12-27; Rollo, pp. 49-64;]

(2) SzeSookWah, Sze Lai Cho and Sze Chum Yen are thelegitimate children of Yao Kee with SyKiat [CFI decision, pp.28-31; Rollo. pp. 65-68;] and,

(3) Aida Sy-Gonzales, Manuel Sy, TeresitaSy-Bernabe andRodolfo Sy are the acknowledged illegitimate offsprings ofSyKiat with Asuncion Gillego [CFI decision, pp. 27-28; Rollo, pp.64-65.]

held if favor of the oppositors (petitioners herein) andappointed SzeSookWah as the administratrix of the intestateestate of the deceased [CFI decision, pp. 68-69; Rollo, pp.106.]

On appeal the Court of Appeals rendered a decision modifyingthat of the probate court, the dispositive portion of whichreads:chanrob1es virtual 1aw library

IN VIEW OF THE FOREGOING, the decision of the lower Court ishereby MODIFIED and SET ASIDE and a new judgmentrendered as follows:chanrob1es virtual 1aw library

(1) Declaring petitioners Aida Sy-Gonzales, Manuel Sy,TeresitaSy-Bernabe and Rodolfo Sy acknowledged naturalchildren of the deceased SyKiat with Asuncion Gillego, anunmarried woman with whom he lived as husband and wifewithout benefit of marriage for many years:chanrob1es virtual

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(2) Declaring oppositorsSzeSookWah, Sze Lai Chu and SzeChun Yen, the acknowledged natural children of the deceasedSyKiat with his Chinese wife Yao Kee, also known as Yui Yip,since the legality of the alleged marriage of SyKiat to Yao Keein China had not been proven to be valid to the laws of theChinese Peoples Republic of China (sic);

(3) Declaring the deed of sale executed by SyKiat on December7, 1976 in favor of Tomas Sy (Exhibit "G-1", English translationof Exhibit "G") of the Avenue Tractor and Diesel Parts Supply tobe valid and accordingly, said property should be excluded fromthe estate of the deceased SyKiat; and

(4) Affirming the appointment by the lower court ofSzeSookWah as judicial administratrix of the estate of thedeceased. [CA decision, pp. 11-12; Rollo, pp. 36-37.]

From said decision both parties moved for partialreconsideration, which was however denied by respondentcourt. They thus interposed their respective appeals to thisCourt.

Private respondents filed a petition with this Court docketed asG.R. No. 56045 entitled "Aida Sy-Gonzales, Manuel Sy,TeresitaSy-Bernabe and Rodolfo Sy v. Court of Appeals, Yao

Kee, SzeSookWah, Sze Lai Cho and Sy Chun Yen" questioningparagraphs (3) and (4) of the dispositive portion of the Court ofAppeals decision. The Supreme Court however resolved todeny the petition and the motion for reconsideration. Thus onMarch 8, 1982 entry of judgment was made in G.R. No. 56045.**

The instant petition, on the other hand, questions paragraphs(1) and (2) of the dispositive portion of the decision of theCourt of Appeals. This petition was initially denied by theSupreme Court on June 22, 1981. Upon motion of thepetitioners the Court in a resolution dated September 16, 1981reconsidered the denial and decided to give due course to thispetition.

Herein petitioners assign the following as errors:chanrob1es

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I. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED INDECLARING THE MARRIAGE OF SY KIAT TO YAO YEE AS NOTHAVE (sic) BEEN PROVEN VALID IN ACCORDANCE WITH LAWSOF THE PEOPLES REPUBLIC OF CHINA.

II. RESPONDENT COURT OF APPEALS GRAVELY ERRED INDECLARING AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE AND RODOLFO SY AS NATURAL CHILDREN OF SYKIAT WITH ASUNCION GILLEGO. [Petition, p. 2; Rollo, p. 6.]

I. Petitioners argue that the marriage of SyKiat to Yao Kee inaccordance with Chinese law and custom was conclusivelyproven. To buttress this argument they rely on the followingtestimonial and documentary evidence.

First, the testimony of Yao Kee summarized by the trial court asfollows:chanrob1es virtual 1aw library

Yao Kee testified that she was married to SyKiat on January 19,1931 in Fookien, China; that she does not have a marriagecertificate because the practice during that time was for eldersto agree upon the betrothal of their children, and in her case,her elder brother was the one who contracted or entered into[an] agreement with the parents of her husband;

that the agreement was that she and SyKiat would be married,the wedding date was set, and invitations were sent out; thatthe said agreement was complied with; that she has fivechildren with SyKiat, but two of them died; that those who are

alive are SzeSookWah, Sze Lai Cho, and Sze Chun Yen, theeldest being SzeSookWah who is already 38 years old; thatSzeSookWah was born on November 7, 1939; that she and herhusband, SyKiat, have been living in Fookien, China before hewent to the Philippines on several occasions;

that the practice during the time of her marriage was a writtendocument [is exchanged] just between the parents of the brideand the parents of the groom, or any elder for that matter; thatin China, the custom is that there is a go-between, a sort ofmarriage broker who is known to both parties who would talk tothe parents of the bride-to-be; that if the parents of the bride-to-be agree to have the groom-to-be their son-in-law, thenthey agree on a date as an engagement day;


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that on engagement day, the parents of the groom would bringsome pieces of jewelry to the parents of the bride-to-be, andthen one month after that, a date would be set for the wedding,which in her case, the wedding date to SyKiat was set onJanuary 19, 1931; that during the wedding the bridegroombrings with him a couch (sic) where the bride would ride and onthat same day, the parents of the bride would give the dowryfor her daughter and then the document would be signed bythe parties but there is no solemnizing officer as is known in thePhilippines;

that during the wedding day, the document is signed only bythe parents of the bridegroom as well as by the parents of thebride; that the parties themselves do not sign the document;that the bride would then be placed in a carriage where shewould be brought to the town of the bridegroom and beforedeparture the bride would be covered with a sort of a veil; thatupon reaching the town of the bridegroom, the bridegroomtakes away the veil; that during her wedding to SyKiat(according to said Chinese custom), there were many personspresent; that after SyKiat opened the door of the carriage, twoold ladies helped her go down the carriage and brought herinside the house of SyKiat; that during her wedding, SyChiok,the eldest brother of SyKiat, signed the document with hermother;

that as to the whereabouts of that document, she and SyKiat

were married for 46 years already and the document was left inChina and she doubt if that document can still be found now;that it was left in the possession of SyKiats family; that rightnow, she does not know the whereabouts of that documentbecause of the lapse of many years and because they left it in acertain place and it was already eaten by the termites;

that after her wedding with SyKiat, they lived immediatelytogether as husband and wife, and from then on, they livedtogether; that SyKiat went to the Philippines sometime in Marchor April in the same year they were married; that she went tothe Philippines in 1970, and then came back to China; thatagain she went back to the Philippines and lived with SyKiat ashusband and wife; that she begot her children with SyKiatduring the several trips by SyKiat made back to China. [CFI

decision, pp. 13-15; Rollo, pp. 50-52.]

Second, the testimony of GanChing, a younger brother of YaoKee who stated that he was among the many people whoattended the wedding of his sister with SyKiat and that nomarriage certificate is issued by the Chinese government, adocument signed by the parents or elders of the parties beingsufficient [CFI decision, pp. 15-16; Rollo, pp. 52-53.]

Third, the statements made by Asuncion Gillego when shetestified before the trial court to the effect that (a) SyKiat wasmarried to Yao Kee according to Chinese custom; and, (b)SyKiats admission to her that he has a Chinese wife whom hemarried according to Chinese custom [CFI decision, p. 17; Rollo,

p. 54.]

Fourth, SyKiats Master Card of Registered Alien issued inCaloocan City on October 3, 1972 where the following entriesare found: "Marital status Married" ; "If married give nameof spouse Yao Kee" ; "Address China" ; "Date of marriage1931" ; and "Place of marriage China" [Exhibit "SS-1." ]

Fifth, SyKiats Alien Certificate of Registration issued in Manilaon January 12, 1968 where the following entries are likewisefound: "Civil status Married" ; and, "If married, state nameand address of spouse Yao KeeChingkang, China" [Exhibit"4." ]

And lastly, the certification issued in Manila on October 28,

1977 by the Embassy of the Peoples Republic of China to theeffect that "according to the information available at theEmbassy Mr. SyKiat a Chinese national and Mrs. Yao Kee aliasYui Yip also Chinese were married on January 19, 1931 inFukien, the Peoples Republic of China" [Exhibit "5." ]

These evidence may very well prove the fact of marriagebetween Yao Kee and SyKiat. However, the same do not sufficeto establish the validity of said marriage in accordance withChinese law or custom.

Custom is defined as "a rule of conduct formed by repetition ofacts, uniformly observed (practiced) as a social rule, legallybinding and obligatory" [In the Matter of the Petition for

Authority to Continue Use of the Firm Name "Ozaeta, Romulo,de Leon, Mabanta and Reyes", July 30, 1979, SCRA 3, 12 citingJBL Reyes & RC Puno, Outline of Phil. Civil Law, Fourth Ed. Vol.1, p. 7.] The law requires that "a custom must be proved as afact, according to the rules of evidence" [Article 12, Civil Code.]On this score the Court had occasion to state that "a localcustom as a source of right can not be considered by a court ofjustice unless such custom is properly established by competentevidence like any other fact" [Patriarca v. Orate, 7 Phil. 390,395 (1907).] The same evidence, if not one of a higher degree,should be required of a foreign custom.

The law on foreign marriages is provided by Article 71 of theCivil Code which states that:chanrob1es virtual 1aw library

Art. 71. All marriages performed outside the Philippines inaccordance with the laws in force in the country where theywere performed, and valid there as such, shall also be valid inthis country, except bigamous, polygamous, or incestuousmarriages, as determined by Philippine law. (Emphasissupplied.) ***

Construing this provision of law the Court has held that toestablish a valid foreign marriage two things must be proven,namely: (1) the existence of the foreign law as a question offact; and (2) the alleged foreign marriage by convincingevidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49 (1922).]

In proving a foreign law the procedure is provided in the Rulesof Court. With respect to an unwritten foreign law, Rule 130section 45 states that:chanrob1es virtual 1aw library

SEC. 45. Unwritten law. The oral testimony of witnesses,skilled therein, is admissible as evidence of the unwritten law ofa foreign country, as are also printed and published books ofreports of decisions of the courts of the foreign country, ifproved to be commonly admitted in such courts.

Proof of a written foreign law, on the other hand, is provided forunder Rule 132 section 25, thus:chanrob1es virtual 1aw library

SEC. 25. Proof of public or official record. An official record oran entry therein, when admissible for any purpose, may be

evidenced by an official publication thereof or by a copyattested by the officer having the legal custody of the record, orby his deputy, and accompanied, if the record is not kept in thePhilippines, with a certificate that such officer has the custody.If the office in which the record is kept is in a foreign country,the certificate may be made by a secretary of embassy orlegation, consul general, consul, vice consul, or consular agentor by any officer in the foreign service of the Philippinesstationed in the foreign country in which the record is kept andauthenticated by the seal of his office.

The Court has interpreted section 25 to include competentevidence like the testimony of a witness to prove the existenceof a written foreign law [Collector of Internal Revenue v. Fisher110 Phil. 686, 700-701 (1961) citing Willamette Iron and SteelWorks v. Muzzal, 61 Phil. 471 (1935).]

In the case at bar petitioners did not present any competentevidence relative to the law and custom of China on marriage.The testimonies of Yao and GanChing cannot be considered asproof of Chinas law or custom on marriage not only becausethey are self-serving evidence, but more importantly, there isno showing that they are competent to testify on the subjectmatter. For failure to prove the foreign law or custom, andconsequently, the validity of the marriage in accordance withsaid law or custom, the marriage between Yao Kee and SyKiatcannot be recognized in this jurisdiction.

Petitioners contend that contrary to the Court of Appeals rulingthey are not duty bound to prove the Chinese law on marriageas judicial notice thereof had been taken by this Court in the

case of SyJocLieng v. SyQuia [16 Phil. 137 (1910).]

This contention is erroneous. Well-established in thisjurisdiction is the principle that Philippine courts cannot takejudicial notice of foreign laws. They must be alleged and provedas any other fact [Yam Ka Lim v. Collector of Customs, 30 Phil.46, 48 (1915); Fluemer v. Hix, 54 Phil. 610 (1930).]

Moreover a reading of said case would show that the partyalleging the foreign marriage presented a witness, one LiUngBieng, to prove that matrimonial letters mutuallyexchanged by the contracting parties constitute the essentialrequisite for a marriage to be considered duly solemnized inChina. Based on his testimony, which as found by the Court is


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uniformly corroborated by authors on the subject of Chinesemarriage, what was left to be decided was the issue of whetheror not the fact of marriage in accordance with Chinese law wasduly proven [SyJocLieng v. SyQuia, supra., at p. 160.]

Further, even assuming for the sake of argument that the Courthas indeed taken judicial notice of the law of China on marriagein the aforecited case, petitioners however have not shown anyproof that the Chinese law or custom obtaining at the time theSyJocLieng marriage was celebrated in 1847 was still the lawwhen the alleged marriage of SyKiat to Yao Kee took place in1931 or eighty-four (84) years later.

Petitioners moreover cite the case of U.S. v. Memoracion [34Phil. 633 (1916)] as being applicable to the instant case. Theyaver that the judicial pronouncement in the Memoracion case,that the testimony of one of the contracting parties iscompetent evidence to show the fact of marriage, holds true inthis case.

The Memoracion case however is not applicable to the case atbar as said case did not concern a foreign marriage and theissue posed was whether or not the oral testimony of a spouseis competent evidence to prove the fact of marriage in acomplaint for adultery.

Accordingly, in the absence of proof of the Chinese law on

marriage, it should be presumed that it is the same as ours**** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31,1965, 13 SCRA 552, 555.] Since Yao Kee admitted in hertestimony that there was no solemnizing officer as i6 knownhere in the Philippines [See Article 56, Civil Code] when heralleged marriage to SyKiat was celebrated [CFI decision, p. 14;Rollo, p. 51], it therefore follows that her marriage to SyKiat,even if true, cannot be recognized in this jurisdiction [WongWoo Yiu v. Vivo, supra., pp. 555-556.]

II. The second issue raised by petitioners concerns the status ofprivate respondents.

Respondent court found the following evidence of petitionersfiliation:chanrob1es virtual 1aw library

(1) SyKiats Master Card of Registered Alien where the followingare entered: "Children if any: give number of children Four" ;and, "Name All living in China" [Exhibit "SS-1" ;]

(2) the testimony of their mother Yao Kee who stated that shehad five children with SyKiat, only three of whom are alivenamely, SzeSookWahSze Lai Chu and Sze Chin Yan [TSN,December 12, 1977, pp. 9-11;] and,

(3) an affidavit executed on March 22, 1961 by SyKiat forpresentation to the Local Civil Registrar of Manila to supportSzeSookWahs application for a marriage license, whereinSyKiat expressly stated that she is his daughter [Exhibit "3." ]

Likewise on the record is the testimony of Asuncion Gillego thatSyKiat told her he has three daughters with his Chinese wife,two of whom SookWah and Sze Kai Cho she knows, andone adopted son [TSN, December 6, 1977, pp. 87-88.]

However, as petitioners failed to establish the marriage of YaoKee with SyKiat according to the laws of China, they cannot beaccorded the status of legitimate children but only that ofacknowledged natural children. Petitioners are natural children,it appearing that at the time of their conception Yao Kee andSyKiat were not disqualified by any impediment to marry oneanother [See Art. 269, Civil Code.] And they are acknowledgedchildren of the deceased because of SyKiats recognition ofSzeSookWah [Exhibit "3" ] and its extension to Sze Lai Cho andSy Chun Yen who are her sisters of the full blood [See Art. 271,Civil Code.]

Private respondents on the other hand are also the deceasedsacknowledged natural children with Asuncion Gillego, a Filipinawith whom he lived for twenty-five (25) years with out thebenefit of marriage. They have in their favor their fathersacknowledgment, evidenced by a compromise agreemententered into by and between their parents and approved by theCourt of First Instance on February 12, 1974 wherein SyKiatnot only acknowledged them as his children by Asuncion Gillegobut likewise made provisions for their support and futureinheritance, thus:chanrob1es virtual 1aw library

x x x2. The parties also acknowledge that they are common-lawhusband and wife and that out of such relationship, which they

have likewise decided to definitely and finally terminateeffective immediately, they begot five children, namely: AidaSy, born on May 30, 1950; Manuel Sy, born on July 1, 1953;TeresitaSy, born on January 28, 1955; Ricardo Sy nowdeceased, born on December 14, 1956; and Rodolfo Sy, bornon May 7, 1958.

3. With respect to the AVENUE TRACTOR AND DIESEL PARTSSUPPLY . . ., the parties mutually agree and convenant that

(a) The stocks and merchandise and the furniture andequipments . . ., shall be divided into two equal shares between,and distributed to, SyKiat who shall own one-half of the totaland the other half to Asuncion Gillego who shall transfer thesame to their children, namely, Aida Sy, Manuel Sy, TeresitaSy,and Rodolfo Sy.

(b) the business name and premises . . . shall be retained bySyKiat. However, it shall be his obligation to give to theaforenamed children an amount of One Thousand Pesos(P1,000;00) monthly out of the rental of the two doors of thesame building now occupied by Everett Construction.

x x x(5) With respect to the acquisition, during the existence of thecommon-law husband-and-wife relationship between theparties, of the real estates and properties registered and/or

appearing in the name of Asuncion Gillego . . ., the partiesmutually agree and convenant that the said real estates andproperties shall be transferred in equal shares to their children,namely, Aida Sy, Manuel Sy, TeresitaSy, and Rodolfo Sy, but tobe administered by Asuncion Gillego during her lifetime. . . .[Exhibit "D." ] (Emphasis supplied.)

x x xThis compromise agreement constitutes a statement before acourt of record by which a child may be voluntarilyacknowledged [See Art. 278, Civil Code.]

Petitioners further argue that the questions on the validity ofSyKiats marriage to Yao Kee and the paternity and filiation ofthe parties should have been ventilated in the Juvenile and

Domestic Relations Court.

Specifically, petitioners rely on the following provision ofRepublic Act No. 5502, entitled "An Act Revising Rep. Act No.3278, otherwise known as the Charter of the City of Caloocan" ;with regard to the Juvenile and Domestic RelationsCourt:chanrob1es virtual 1aw library

SEC. 91-A. Creation and Jurisdiction of the Court.

x x xThe provisions of the Judiciary Act to the contrarynotwithstanding, the court shall have exclusive originaljurisdiction to hear and decide the following cases;

x x x

(2) Cases involving custody, guardianship, adoption, revocationof adoption, paternity and acknowledgment;

(3) Annulment of marriages, relief from marital obligations legalseparation of spouses, and actions for support;

(4) Proceedings brought under the provisions of title six andtitle seven, chapters one to three of the civil code;

x x xand the ruling in the case of Bartolome v. Bartolome [G.R. No.L-23661, 21 SCRA 1324] reiterated in Divinagracia v. Rovira[G.R. No. L-42615, 72 SCRA 307.]

With the enactment of Batas PambansaBlg. 129, otherwise

known as the Judiciary Reorganization Act of 1980, the Juvenileand Domestic Relations Courts were abolished. Their functionsand jurisdiction are now vested with the Regional Trial Courts[See Section 19 (7), B.P. Blg. 129 and Divinagracia v. Belosillo,G.R. No. L-47407, August 12, 1986, 143 SCRA 356, 360] henceit is no longer necessary to pass upon the issue of jurisdictionraised by petitioners.

Moreover, even without the enactment of Batas PambansaBlg.129 we find in Rep. Act No. 5502 sec. 91-A last paragraphthat:chanrob1es virtual 1aw library

x x x


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If any question involving any of the above matters should ariseas an incident in any case pending in the ordinary court, saidincident shall be determined in the main case.

x x xAs held in the case of Divinagracia v. Rovira [G.R. No. L-42615.August 10, 1976, 72 SCRA 307]:chanrob1es virtual 1aw library

x x xIt is true that under the aforequoted section 1 of Republic Act

No. 4834 ***** a case involving paternity and

acknowledgment may be ventilated as an incident in theintestate or testate proceeding (See Baluyot v. Ines Luciano, L-

42215, July 13, 1976). But that legal provision presupposesthat such an administration proceeding is pending or existingand has not been terminated. [at pp. 313-314.] (Emphasis

supplied.)

x x xThe reason for this rule is not only "to obviate the rendition ofconflicting rulings on the same issue by the Court of FirstInstance and the Juvenile and Domestic Relations Court" [Vda.de Baluyut v. Luciano, G.R. No. L-42215, July 13, 1976, 72SCRA 52, 63] but more importantly to prevent multiplicity ofsuits.

Accordingly, this Court finds no reversible error committed by

respondent court. WHEREFORE, the decision of the Court ofAppeals is hereby AFFIRMED. SO ORDERED.

REPUBLIC OF THE PHILIPPINES v. CIPRIANO ORBECIDO III GR.No. 154380, 5 October 2005, First Division (Quisumbing, J.)

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

FACTS: On 24 May 1981, CiprianoOrbecido III married

LadyMyros M. Villanueva and their marriage was blessed with ason and a daughter, KristofferSimbortriz V. Orbecido and LadyKimberly V. Orbecido.

In 1986, his wife left for the United States bringing along theirson Kristoffer. A few years later, Cipriano discovered that hiswife had been naturalized as an American citizen and sometimein 2000, learned from his son that his wife had obtained adivorce decree. His wife then married Innocent Stanley and isnow currently living in San Gabriel, California with her child byhim.

Cipriano thereafter filed with the trial court a petition forauthority to remarry invoking Paragraph 2 of Article 26 of theFamily Code (FC). No opposition was filed. Finding merit in the

petition, the court granted the same. The Republic, hereinpetitioner, through the Office of the Solicitor General (OSG),sought reconsideration but it was denied. Hence, this petition.

ISSUE: Whether or not respondent can remarry under Art. 26of the Family Code

HELD: The petition is granted.

The OSG contends that par. 2 Art. 26 of FC is notapplicable to the instant case because it only applies to a validmixed marriage; that is, a marriage celebrated between aFilipino citizen and an alien. Furthermore, the OSG argues thereis no law that governs the respondents situation. The OSG

posits that this is a matter of legislation and not of judicialdetermination.

The respondent admits that Art. 26 is not directlyapplicable to his case, but insists that since his naturalized alienwife obtained a divorce decree which capacitated her toremarry, he is likewise capacitated by operation of law pursuantto Section 12, Article II of the Constitution.

The Court noted that the petition for authority toremarry filed before the trial court actually constituted apetition for declaratory relief. The requisites of a petition fordeclaratory relief are: (1) there must be a justiciablecontroversy; (2) the controversy must be between persons

whose interests are adverse; (3) that the party seeking therelief has a legal interest in the controversy; and (4) that theissue is ripe for judicial determination. This case satisfies all therequisites for the grant of a petition for declaratory relief.

Article 26 does not appear to govern the situationpresented by the case at hand. It seems to apply only to caseswhere at the time of the celebration of the marriage, theparties are a Filipino citizen and a foreigner. The instant case isone where at the time the marriage was solemnized, the partieswere two Filipino citizens, but later on, the wife was naturalized

as an American citizen and subsequently obtained a divorcegranting her capacity to remarry, and indeed she remarried anAmerican citizen while residing in the USA.

EN BANC [G.R. No. L-19671. November 29, 1965.]

PASTOR B. TENCHAVEZ, Plaintiff-Appellant, v. VICENTAF. ESCAO, ET AL., Defendants-Appellees.

SYLLABUS

1. HUSBAND AND WIFE; FOREIGN DIVORCE BETWEENFILIPINO CITIZENS DECREED AFTER THE EFFECTIVITY OF THENEW CIVIL CODE; REMARRIAGE OF DIVORCED CONSORT. Aforeign divorce between Filipino citizens, sought and decreed

after the effectivity of the new Civil Code (Republic Act No.386), is not entitled to recognition as valid in the Philippines;and neither is the marriage contracted with another party bythe divorced consort, subsequently to the foreign decree ofdivorce entitled to validity in this country.

2. ID.; ID.; ID.; INNOCENT CONSORT ENTITLED TO LEGALSEPARATION. The remarriage of the divorced wife and hercohabitation with a person other than the lawful husbandentitles the latter to a decree of legal separation conformably toPhilippine law.

3. ID.; ID,; ID.; INVALID DIVORCE ENTITLES INNOCENTCONSORT TO RECOVER DAMAGES. The desertion andsecuring of an invalid divorce decree by one consort entitles theother to recover damages.

4. ID.; ACTION FOR ALIENATION OF AFFECTIONS AGAINSTPARENTS OF ONE CONSORT; ABSENCE OF PROOF OF MALICE.An action for alienation of affection against the parents ofone consort does not lie in the absence of proof of malice orunworthy motives on their part.

Nature of the Case: Direct appeal, from the judgment of theCFI of CebuFACTS:VicentaEscao, (27 yrs old, "sheltered colegiala"), exchangedmarriage vows with Pastor Tenchavez (32 yo), an engineer, ex-army officer , without the knowledge of her parents, before a

Catholic chaplain, and that marriage was duly registered withthe local civil register.However, the two were unable to live together after the

marriage and as of June 1948, they were already estranged.Vicenta left for the United Stated in 1950. On the same yearshe filed a verified complaint for divorce against Tenchavez inthe State of Nevada on the ground of Extreme cruelty, entirelymental in character. Adecree of divorce, final and absolutewas issued in open court by the said tribunal. She married an

American, lived with him in California, had several children withhim and, on 1958, acquired American Citizenship.

On 30 July 1955, Tenchavez filed a complaint in the Court ofFirst Instance of Cebu, and amended on 31 May 1956, againstVicenta F. Escao, her parents, Mamerto and Mena Escaowhom he charged with having dissuaded and discouragedVicenta from joining her husband, and alienating her affections,and against the Roman Catholic Church, for having, through itsDiocesan 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 equallyvalid marriage to her present husband, Russell Leo Moran;while her parents denied that they had in any way influencedtheir daughter's acts, and counterclaimed for moral damages.ISSUE:1. Whether or not the divorce sought by VicentaEscao isvalid and binding upon courts of the Philippines.2. Whether or not the charges against VicentaEscaosparents were sufficient in form.RULING:1. No. VicentaEscao and Pastor Tenchavez marriageremain existent and undissolved under the Philippine Law. Theywere validly married to each other, from the standpoint of our


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civil law, in whuich both parties were then above the age ofmajority, and qualified; and both consented to the marriage,which was performed by a Catholic priest(army chaplain Lavares) in the presence of competent

witnesses. Escaos divorce and second marriage cannot bedeemed valid under the Philippine Law to which Escao wasbound since in the time the divorce decree was issued, Escao,like her husband, was still a Filipino citizen.Article 15 of theCivil Code of the Philippines (Rep. Act No. 386), already in forceat the time, expressly provided:Laws relating to family rights and duties or to the status,condition and legal capacity of persons are binding upon thecitizens of the Philippines, even though living abroad.The Civil Code of the Phil does not admit absolute divorce, quoad vinculomatrimonii. The present Code only provides forlegalseparation, and that "the marriage bonds shall not be severed".For our courts to recognize foreign decree of absolute divorcebetween Filipino citizens could be a patent violation of thedeclared public policy of the state, specially in view of thethird paragraph of Article 17 of the Civil Code that prescribesthe following:Prohibitive laws concerning persons, their acts or property, andthose which have for their object public order, policy and goodcustoms, shall not be rendered ineffective by laws or judgmentspromulgated, or by determinations or conventions agreed uponin a foreign country.The grant of effectivity in this jurisdiction to foreign divorce

decrees would give rise to an irritating and scandalousdiscrimination in favor of wealthy citizens, to the detriment ofthose members of our polity whose means do not permit themto sojourn abroad and obtain absolute divorces outside thePhilippines.It is irrelevant that appellant Pastor Tenchavez should haveappeared in the Nevada divorce court because the policy of ourlaw cannot be nullified by acts of private parties; and mereappearance of a non-resident consort cannot confer jurisdictionwhere the court originally had none.The acts of the wife in not complying with her wifely duties,deserting her husband without any justifiable cause, leaving forthe United States in order to secure a decree of absolutedivorce, and finally getting married again are acts whichconstitute a willful infliction of injury upon the husbandsfeelings in a manner contrary to morals, good customs or public

policy, thus entitling Tenchavez to a decree of legal separationunder our law on the basis of adultery.The ruling gives rise to anomalous situations where the statusof a person (whether divorced or not) would depend on theterritory where the question arises. Anomalies of this kind arenot new in the Philippines, and the answer to them was givenin Barretto vs. Gonzales, 58 Phil. 667:The hardship of the existing divorce laws in the PhilippineIslands are well known to the members of the Legislature. It isthe duty of the Courts to enforce the laws of divorce as writtenby Legislature if they are constitutional. Courts have no right tosay that such laws are too strict or too liberal.2. No. Tenchavez charge against Vicentas parents are notsupported by credible evidence. The testimony of Tenchavezabout the Escaos animosity toward him strikes the court to bemerely conjecture and exaggeration, and were belied byTenchavez own letters written before the suit had begun. Anaction for alienation of affections against the parents of oneconsort does not lie in the absence of proof of malice orunworthy motives on their part.Plaintiff Tenchavez, in falsely charging Vicenta's aged parentswith racial or social discrimination and with having exertedefforts and pressured her to seek annulment and divorce,unquestionably caused them unrest and anxiety, entitling themto recover damages.

EN BANC [G.R. No. 45152. April 10, 1939.]

HILARIA SIKAT, Plaintiff-Appellant, v. JOHNCANSON, Defendant-Appellee.

SYLLABUS

1. DIVORCE AND SEPARATION; JURISDICTION; CITIZENSHIPAND LEGAL RESIDENCE OF PLAINTIFF. Counsel for plaintiff-appellant contends that twelve days prior to the issuance of thedecree of divorce, defendant-appellee became a naturalizedAmerican citizen and argues that the Nevada court had therebyacquired jurisdiction over him to issue a divorce decree. It isnot, however, the citizenship of the plaintiff for divorce whichconfers jurisdiction upon a court, but his legal residence withinthe state.

2. ID.; ID.; ID.; VALIDITY OF DECREE OF NEVADA COURT IN

THIS JURISDICTION. Assuming that J. C. acquired legalresidence in the State of Nevada through the approval of hiscitizenship papers, this did not confer jurisdiction on theNevada court to grant a divorce that would be valid in thisjurisdiction nor jurisdiction that could determine theirmatrimonial status, because the wife was still domiciled in thePhilippines. The Nevada court never acquired jurisdiction overher person. This was not a proceeding in rem to justify a courtin entering a decree as to the res or marriage relation entitledto be enforced outside of the territorial jurisdiction of thecourt.

3. ID.; ID.; DIVORCE IN THE PHILIPPINES. The courts in thePhilippines can grant a divorce only on the ground of "adulteryon the part of the wife or concubinage on the part of thehusband" as provided for under section 1 of Act No. 2710. Thedivorce decree in question was granted on the ground ofdesertion, clearly not a cause for divorce under our laws. Thatour divorce law, Act No. 2710, is too strict or too liberal i8 notfor this court to decide.

4. ID.; ID.; LEGISLATIVE POLICY ON THE MATTER OF DIVORCEIN THIS JURISDICTION. The allotment of powers betweenthe different governmental agencies restricts the judiciarywithin the confines of interpretation, not of legislation. Thelegislative policy in the matter of divorce in this jurisdiction isclearly set forth in Act No. 2710 and has been upheld by this

court.

5. ID.; ID.; CHOICE OF TWO INCONSISTENT REMEDIES BYPLAINTIFF. Plaintiff-appellant had made her choice of twoinconsistent remedies afforded her by law: (1) to impugn thedivorce and file an action for support, or (2) uphold the validityof the divorce and sue for a liquidation of conjugal partnership.She chose the first remedy when she filed her action forsupport. She lost the case and should take the consequences.

EN BANCG.R. No. L-6768 July 31, 1954

SALUD R. ARCA and ALFREDO JAVIER JR.,Plaintiffs-Appellees, v.ALFREDO JAVIER,Defendant-Appellant.

Dissatisfied with the decision of the Court of First Instance ofCavite ordering him to give a monthly allowance of P60 toplaintiffs beginning March 31, 1953, and to pay them attorney'sfees in the amount of P150 defendant took the case directly tothis Court attributing five errors to the court below. This impliesthat the facts are not disputed.

The important facts which need to be considered in relation tothe errors assigned appear well narrated in the decision of thecourt below which, for purposes of this appeal, are quoted

hereunder:

On November 19, 1937, plaintiff Salud R. Arca and defendantAlfredo Javier had their marriage solemnized by Judge MarianoNable of the Municipal Court of Manila.At the time of theirmarriage, they had already begotten a son named AlfredoJavier, Junior who was born on December 2, 1931.

Sometime in 1938, defendant Alfredo Javier left for the UnitedStates on board a ship of the United States Navy, for it appearsthat he had joined the United States Navy since 1927, suchthat at time of his marriage with plaintiff Salud R. Arca,defendant Alfredo Javier was already an enlisted man in theUnited States Navy.

Because of defendant Alfredo Javier's departure for the UnitedStates in 1938, his wife, Salud R. Arca, who is from(Maragondon), Cavite, chose to live with defendant's parents atNaic, Cavite. But for certain incompatibility of character(frictions having occurred between plaintiff Salud R. Arca's anddefendant's folks) plaintiff Salud R. Arca had found it necessaryto leave defendant's parents' abode and transfer her residenceto (Maragondon), Cavite - her native place.

Since then the relation between plaintiff Salud R. Arca anddefendant Alfredo Javier became strained such that on August13, 1940 defendant Alfredo Javier brought an action for divorceagainst Salud R. Arca before the Circuit Court of Mobile County,


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State of Alabama, USA, docketed as civil case No. 14313 of thatcourt and marked as Exhibit 2(c) in this case. Having received acopy of the complaint for divorce on September 23, 1940,plaintiff Salud R. Arca - answering the complaint - alleged inher answer that she received copy of the complaint onSeptember 23, 1940 although she was directed to file heranswer thereto on or before September 13, 1940.

In that answer she filed, plaintiff Salud R. Arca averred amongother things that defendant Alfredo Javier was not a resident ofMobile County, State of Alabama, for the period of twelve

months preceding the institution of the complaint, but that hewas a resident of Naic, Cavite, Philippines. Another averment ofinterest, which is essential to relate here, is that underparagraph 5 of her answer to the complaint for divorce, Salud R.Arca alleged that it was not true that the cause of theirseparation was desertion on her part but that if defendantAlfredo Javier was in the United States at that time and shewas not with him then it was because he was in active duty asan enlisted man of the United States Navy, as a consequence ofwhich he had to leave for the United States without her. Shefurther alleged that since his departure from the Philippines forthe United States, he had always supported her and her co-plaintiff Alfredo Javier Junior through allotments made by theNavy Department of the United States Government. She denied,furthermore, the allegation that she had abandoned defendant'shome at Naic, Cavite, and their separation was due to physical

impossibility for they were separated by about 10,000 milesfrom each other.

At this juncture, under the old Civil Code the wife is not boundto live with her husband if the latter has gone to ultra-marinecolonies. Plaintiff Salud R. Arca, in her answer to the complaintfor divorce by defendant Alfredo Javier, prayed that thecomplaint for divorce be dismissed. However, notwithstandingSalud R. Arca's averments in her answer, contesting thejurisdiction of the Circuit Court of Mobile County, State ofAlabama, to take cognizance of the divorce proceeding filed bydefendant Alfredo Javier, as shown by her answer markedExhibit 2(d), nevertheless the Circuit Court of Mobile Countyrendered judgment decreeing dissolution of the marriage ofSalud R. Arca and Alfredo Javier, and granting the latter a

decree of divorce dated April 9, 1941, a certified copy of whichis marked Exhibit 2(f). Thereupon, the evidence discloses thatsome time in 1946 defendant Alfredo Javier returned to thePhilippines but went back to the United States.

In July, 1941 - that is after securing a divorce from plaintiffSalud R. Arca on April 9, 1941 - defendant Alfredo Javiermarried Thelma Francis, an American citizen, and bought ahouse and lot at 248 Brooklyn, New York City. In 1949, ThelmaFrancis, defendant's American wife, obtained a divorce fromhim for reasons not disclosed by the evidence, and, later on,having retired from the United States Navy, defendant AlfredoJavier returned to the Philippines, arriving here on February 13,1950. After his arrival in the Philippines, armed with twodecrees of divorce - one against his first wife Salud R. Arca and

the other against him by his second wife Thelma Francis -issued by the Circuit Court of Mobile County, State of Alabama,USA, defendant Alfredo Javier married Maria Odvina beforeJudge NatividadAlmeda-Lopez of the Municipal Court of Manilaon April 19, 1950, marked Exhibit 2(b).

At the instance of plaintiff Salud R. Arcaan information forbigamy was filed by the City Fiscal of Manila on July 25, 1950against defendant Alfredo Javier with the Court of First Instanceof Manila, docketed as Criminal Case No. 13310 and markedExhibit 2(a). However, defendant Alfredo Javier was acquittedof the charge of Bigamy in a decision rendered by the Court ofFirst Instance of Manila through Judge Alejandro J. Panlilio,dated August 10, 1951, predicated on the proposition that themarriage of defendant Alfredo Javier with Maria Odvina wasmade in all good faith and in the honest belief that his marriagewith plaintiff Salud R. Arca had been legally dissolved by thedecree of divorce obtained by him from the Circuit Court ofMobile County, State of Alabama, USA which had the legaleffect of dissolving the marital ties between defendant AlfredoJavier and plaintiff Salud R. Arca. At this juncture, again, it isthis court's opinion that defendant Alfredo Javier's acquittal inthat Criminal Case No. 13310 of the Court of First Instance ofManila by Judge Panlilio was due to the fact that the accusedhad no criminal intent in contracting a second or subsequentmarriage while his first marriage was still subsisting.

Appellant was a native born citizen of the Philippines who, in1937, married Salud R. Arca, another Filipino citizen. Before

their marriage they had already a child, Alfredo Javier, Jr., whothereby became legitimated. In 1927 appellant enlisted in theU.S. Navy and in 1938 sailed for the United States aboard anavy ship in connection with his service leaving behind his wifeand child, and on August 13, 1940, he filed an action fordivorce in the Circuit Court of Mobile County, Alabama, U.S.A.,alleging as ground abandonment by his wife. Having received acopy of the complaint, Salud R. Arca filed an answer alleging,among other things, that appellant was not a resident of MobileCounty, but of Naic, Cavite, Philippines, and that it was not truethat the cause of their separation was abandonment on her partbut that appellant was in the United States, without her,because he was then enlisted in the U.S. Navy. Nevertheless,the Circuit Court of Mobile County rendered judgment grantingappellant a decree of divorce on April 9, 1941.

The issue now to be determined is: Does this decree have avalid effect in this jurisdiction?

The issue is not new. This court has had already occasion topass upon questions of similar nature in a number of cases andits ruling has invariably been to deny validity to the decree. Inessence, it was held that one of the essential conditions for thevalidity of a decree of divorce is that the court must havejurisdiction over the subject matter and in order that this maybe acquired, plaintiff must be domiciled in good faith in the

State in which it is granted (Cousins Hix vs. Fluemer, 55 Phil.,851, 856). Most recent of such cases is Sikat vs. Canson, 67Phil., 207, which involves a case of divorce also based on theground of desertion. In that case, John Canson claimed not onlythat he had legal residence in the State of Nevada, where theaction was brought, but he was an American citizen, although itwas proven that his wife never accompanied him there but hasalways remained in the Philippines, and so it has been held that"it is not ... the citizenship of the plaintiff for divorce whichconfers jurisdiction upon a court, but his legal residence withinthe State." The court further said: "And assuming that JohnCanson acquired legal residence in the State of Nevada throughthe approval of his citizenship papers, this would not conferjurisdiction on the Nevada court to grant divorce that would bevalid in this jurisdiction, nor jurisdiction that could determinetheir matrimonial status, because the wife was still domiciled in

the Philippines. The Nevada court never acquired jurisdictionover her person."

It is true that Salud R. Arca filed an answer in the divorce caseinstituted at the Mobile County in view of the summons servedupon her in this jurisdiction, but this action cannot beinterpreted as placing her under the jurisdiction of the courtbecause its only purpose was to impugn the claim of appellantthat his domicile or legal residence at that time was MobileCounty, and to show that the ground of desertion imputed toher was baseless and false. Such answer should be consideredas a special appearance the purpose of which is to impugn thejurisdiction of the court over the case.

In deciding the Canson case, this court did not overlook the

other cases previously decided on the matter, but preciselytook good note of them. Among the cases invoked are Ramirezvs. Gmur, 42 Phil. 855; Cousins Hix vs. Fluemer, 55 Phil., 851,and Barretto Gonzales vs. Gonzales, 58 Phil., 67. In the casesjust mentioned, this court laid down the following doctrines:

It is established by the great weight of authority that the courtof a country in which neither of the spouses is domiciled and towhich one or both of them may resort merely for the purpose ofobtaining a divorce has no jurisdiction to determine theirmatrimonial status; and a divorce granted by such a court isnot entitled to recognition elsewhere. (See Note to Successionof Benton, 59 L. R. A., 143) The voluntary appearance of thedefendant before such a tribunal does not invest the court withjurisdiction. (Andrews vs. Andrews, 188 U. S., 14; 47 L. ed.,

366.)

It follows that, to give a court jurisdiction on the ground of theplaintiff's residence in the State or country of the judicial forum,his residence must bebona fide. If a spouse leaves the familydomicile and goes to another State for the sole purpose ofobtaining a divorce, and with no intention of remaining, hisresidence there is not sufficient to confer jurisdiction on thecourts of the State. This is especially true where the cause ofdivorce is one not recognized by the laws of the State of hisown domicile. (14 Cyc. 817, 181.)" (Ramirez vs. Gmur, 82 Phil.,855.)


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But even if his residence had been taken up is good faith, andthe court had acquired jurisdiction to take cognizance of thedivorce suit, the decree issued in his favor is not binding uponthe appellant; for the matrimonial domicile of the spouses beingthe City of Manila, and no new domicile having been acquired inWest Virginia, the summons made by publication, she nothaving entered an appearance in the case, either personally orby counsel, did not confer jurisdiction upon said court over herperson. (Cousins Hix vs.Fluemer, 55 Phil., 851.)

At all times the matrimonial domicile of this couple has been

within the Philippine Islands and the residence acquired in theState of Nevada by the husband for the purpose of securing adivorce was not a bona fide residence and did not conferjurisdiction upon the court of the State to dissolve the bonds ofmatrimony in which he had entered in 1919. (BarrettoGonzales vs. Gonzales, 58 Phil., 67.)

In the light of the foregoing authorities, it cannot therefore besaid that the Mobile County Court of Alabama had acquiredjurisdiction over the case for the simple reason that at the timeit was filed appellant's legal residence was then in thePhilippines. He could not have acquired legal residence ordomicile at Mobile County when he moved to that place in 1938because at that time he was still in the service of the U.S. Navyand merely rented a room where he used to stay during his

occasional shore leave for shift duty. That he never intended tolive there permanently is shown by the fact that after hismarriage to Thelma Francis in 1941, he moved to New Yorkwhere he bought a house and a lot, and after his divorce fromThelma in 1949 and his retirement from the U.S. Navy, hereturned to the Philippines and married Maria Odvina of Naic,Cavite, where he lived ever since. It may therefore be said thatappellant went to Mobile County, not with the intention ofpermanently residing there, or of considering that place as hispermanent abode, but for the sole purpose of obtaining divorcefrom his wife. Such residence is not sufficient to conferjurisdiction on the court.

It is claimed that the Canson case cannot be invoked asauthority or precedent in the present case for the reason thatthe Haddeck case which was cited by the court in the course ofthe decision was reversed by the Supreme Court of the UnitedStates in the case of Williams vs. North Carolina, 317 U.S. 287.This claim is not quite correct, for the Haddeck case was merelycited as authority for the statement that a divorce case is not aproceeding in rem, and the reversal did not necessarily overrulethe ruling laid down therein that before a court may acquirejurisdiction over a divorce case, it is necessary that plaintiff bedomiciled in the State in which it is filed. (Cousins Hix vs.Fluemer,supra.) At any rate, the applicability of the ruling in theCanson case may be justified on another ground: The courts inthe Philippines can grant divorce only on the ground of adulteryon the part of the wife or concubinage on the part of thehusband, and if the decree is predicated on another ground,that decree cannot be enforced in this jurisdiction. Said theCourt in the Canson case:

. . . In Barretto Gonzales vs. Gonzales (55 Phil., 67), weobserved:

. . . While the decisions of this court heretofore in refusing torecognize the validity of foreign divorce has usually beenexpressed in the negative and have been based upon lack ofmatrimonial domicile or fraud or collusion, we have notoverlooked the provisions of the Civil Code now enforced inthese Islands. Article 9 thereof reads as follows:

"The laws relating to family rights and duties, or to the status,condition, and legal capacity of persons, are binding uponSpaniards even though they reside in a foreign country."

"And Article 11, the last part of which reads

". . . prohibitive laws concerning persons, their acts and theirproperty, and those intended to promote public order and goodmorals shall not be rendered without effect by any foreign lawsor judgments or by anything done or any agreements enteredinto a foreign country.""It is therefore a serious questionwhether any foreign divorce, relating to citizens of thePhilippine Islands, will be recognized in this jurisdiction, exceptit be for a cause, and under conditions for which the courts ofthe Philippine Islands would grant a divorce."

The courts in the Philippines can grant a divorce only on theground of "adultery on the part of the wife or concubinage onthe part of the husband" as provided for under section 1 of ActNo. 2710. The divorce decree in question was granted on theground of desertion, clearly not a cause for divorce under ourlaws. That our divorce law, Act No. 2710, is too strict or tooliberal is not for this court decide. (Barretto Gonzales vs.Gonzales, supra). The allotment of powers between thedifferent governmental agencies restricts the judiciary withinthe confines of interpretation, not of legislation. The legislativepolicy on the matter of divorce in this jurisdiction is clearly setforth in Act No. 2710 and has been upheld by this court(Goitiavs. Campos Rueda, 35 Phil., 252; Garcia Valdez vs.SoteranaTuazon, 40 Phil., 943-952; Ramirezvs. Gmur, 42 Phil.,855; Chereau vs. Fuentebella, 43 Phil., 216; Fernandez vs. DeCastro, 48 Phil., 123; Gorayeb vs. Hashim, supra;Francisco vs.Tayao, 50 Phil., 42; Alkuino Lim Pangvs. UyPianNg Shun and Lim Tingco, 52 Phil., 571; Cousins Hix vs.Fluemer,supra; and Barretto Gonzales vs. Gonzales, supra).

The above pronouncement is sound as it is in keeping with thewell known principle of Private International Law whichprohibits the extension of a foreign judgment, or the lawaffecting the same, if it is contrary to the law or fundamentalpolicy of the State of theforum.(Minor, Conflict of Laws, pp. 8-14). It is also in keeping with our concept or moral valueswhich has always looked upon marriage as an institution. And

such concept has actually crystallized in a more tangiblemanner when in the new Civil Code our people, throughCongress, decided to eliminate altogether our law relative todivorce. Because of such concept we cannot but react adverselyto any attempt to extend here the effect of a decree which isnot in consonance with our customs, morals, and traditions.(Article 11, old Civil Code; Articles 15 and 17, new Civil Code;Gonzales vs. Gonzales, 58 Phil., 67.)law library

With regard to the plea of appellant that Salud R. Arca hadaccused him of the crime of bigamy and consequently sheforfeited her right to support, and that her child Alfredo Javier,Jr. is not also entitled to support because he has alreadyreached his age of majority, we do not need to consider it here,it appearing that these questions have already been passed

upon in G. R. No. L-6706.1These questions were resolvedagainst the pretense of appellant.

Wherefore, the decision appealed from is affirmed, with costs.

FIRST DIVISION [G.R. No. 11796. August 5, 1918. ]

In the matter of the estate of Samuel BischoffWerthmuller. ANA M. RAMIREZ, executrix-appellant, v.OTTO GMUR, as guardian of the minors Esther RenateMory, Carmen Maria Mory, and Leontina Elizabeth,claimant-appellant.

SYLLABUS

1. PARENT AND CHILD; ILLEGITIMACY; PRESUMPTION AS TOCAPACITY OF PARENTS TO MARRY. Where an illegitimatechild is in fact recognized by the father, the presumption is thatthe parents had the capacity to marry at the time the child wasborn or begotten, and that the child is a natural child andtherefore capable of recognition. The burden of proof to showthe contrary is upon the party impugning the legality of the actof recognition.

2. SUCCESSIONS; RECOGNIZED CHILD AS FORCED HER. Where a person dies testate but without legitimate descendantsor ascendants a recognized natural child for whom no provisionis made in the will is a forced heir and as such entitled to one-third of the estate. (Art. 842, Civil Code.)

3. DIVORCE; DOMICILE OF PARTIES; JURISDICTION OFFOREIGN COURT The court of a country in which neither ofthe spouses is domiciled and to which one or both of them mayresort merely for the purpose of obtaining a divorce has nojurisdiction to determine their matrimonial status; and adivorce granted by such a court is not entitled to recognitionelsewhere. The voluntary appearance of the defendant beforesuch a tribunal does not invest the court with jurisdiction.

4. SUCCESSIONS; ADULTEROUS CHILDREN INCAPABLE OFINHERITING. The right to inherit is limited to legitimate,legitimated, and acknowledged natural children, the offspring ofadulterous relations being excluded. The word "descendants,"as used in article 941 of the Civil Code, cannot be interpreted toinclude illegitimates born of adulterous relations.


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5. WILLS AND ADMINISTRATION; LEGITIME OF FORCED HEIR;EFFECT OF DECREE OF PROBATE. The right of a forced heirto his legitime is not divested b~ a decree admitting a will toprobate in which no provision is made for him. The decree ofprobate is conclusive only as regards the due execution of thewill. The question of the intrinsic validity of its provisions is inno wise determined thereby.

6. EXECUTORS AND ADMINISTRATORS; DISTRIBUTION OFESTATE RIGHT OF HEIR TO PARTICIPATE IN FINAL DIVISION.An heir who is not a party to the proceedings for the probateof a will and the distribution of the testators estate mayintervene at any time while the court yet retains jurisdictionover the estate and establish his right to participate in the finaldivision thereof.

EN BANC [G.R. No. L-20530. June 29, 1967.]

MANILA SURETY & FIDELITY COMPANY, INC., Petitioner,v. TRINIDAD TEODORO and THE COURT OF

APPEALS, Respondents.

SYLLABUS

1. EXECUTION; EXCLUSIVE PROPERTIES OF ONE OF THE

PARTNERS IN A VOID MARRIAGE NOT ANSWERABLE FORJUDGMENT DEBT OF THE OTHER PARTNER. The propertiesthat can be the subject of co-ownership under Article 144 of theCivil Code are those acquired by either or both of the partnersin the void marriage through their work or industry or theirwages and salaries. Where the funds used in acquiring theproperties were fruits of one of the partners paraphernalinvestments which accrued before the "marriage the saidproperties remain exclusively those of that partner, and, assuch are beyond the reach of execution to satisfy the judgmentdebt of the other partner.

2. ID.; THIRD-PARTY CLAIM NOT AN EXCLUSIVE REMEDY. Athird-party claim is not an exclusive remedy. Section 16, Rule39 of the Rules of Court provides that nothing therein contained"shall prevent such third person from vindicating his claim to

the property by any proper action."cralaw virtua1aw library

3. INJUNCTION; ELEVATION OF APPEAL TO THE COURT OFAPPEALS WHEN AN INDEPENDENT PETITION FOR INJUNCTIONIS JUSTIFIED. An independent petition for injunction is notunjustified if under the circumstances it is impracticable to firstwait for the appeal to be elevated to and docketed in the Courtof Appeals and then secure the ancillary remedy of injunctiontherein.

SECOND DIVISION

[G.R. No. 80116. June 30, 1989.]

IMELDA MANALAYSAY PILAPIL, Petitioner, v. 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.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OFOFFENSES; ADULTERY AND CONCUBINAGE; SWORN WRITTENCOMPLAINT OF OFFENDED SPOUSE, JURISDICTIONAL. Under Article 344 of the Revised Penal Code, the crime ofadultery, as well as four other crimes against chastity, cannotbe prosecuted except upon a sworn written complaint filed bythe offended spouse. It has long since been established, withunwavering consistency, that compliance with this rule is a

jurisdictional, and not merely a formal, requirement. While inpoint of strict law the jurisdiction of the court over the offenseis vested in it by the Judiciary Law, the requirement for a swornwritten complaint is just as jurisdictional a mandate since it isthat complaint which starts the prosecutory proceeding andwithout which the court cannot exercise its jurisdiction to trythe case.

2. ID.; ID.; ID.; EXCLUSIVE AND SUCCESSIVE RULE IN THEPROSECUTION OF SEDUCTION, ABDUCTION, RAPE AND ACTSOF LASCIVIOUSNESS, NOT APPLICABLE TO CONCUBINAGEAND ADULTERY. Now, the law specifically provides that inprosecutions for adultery and concubinage the person who canlegally file the complaint should be the offended spouse, and

nobody else. Unlike the offenses of seduction, abduction, rapeand acts of lasciviousness, no provision is made for theprosecution of the crimes of adultery and concubinage by theparents, grandparents or guardian of the offended party. Theso-called exclusive and successive rule in the prosecution of thefirst four offenses above mentioned do not apply to adulteryand concubinage. It is significant that while the State, asparens partriae, was added and vested by the 1985 Rules ofCriminal Procedure with the power to initiate the criminal actionfor a deceased or incapacitated victim in the aforesaid offensesof seduction, abduction, rape and acts of lasciviousness, indefault of her parents, grandparents or guardian, suchamendment did not include the crimes of adultery andconcubinage. In other words, only the offended spouse, and noother, is authorized by law to initiate the action therefor.

3. ID.; ID.; ID.; LEGAL CAPACITY TO SUE IN CIVIL CASES,DETERMINED AS OF THE FILING OF THE COMPLAINT, APPLIEDTO PROSECUTION OF CRIMINAL CASES. Corollary to suchexclusive grant of power to the offended spouse to institute theaction, it necessarily follows that such initiator must have thestatus, capacity or legal representation to do so at the time ofthe filing of the criminal action. This is a familiar and expressrule in civil actions; in fact, lack of legal capacity to sue, as aground for a motion to dismiss in civil cases, is determined asof the filing of the complaint or petition. The absence of anequivalent explicit rule in the prosecution of criminal cases does

not mean that the same requirement and rationale would notapply. Understandably, it may not have been found necessarysince criminal actions are generally and fundamentallycommenced by the State, through the People of the Philippines,the offended party being merely the complaining witnesstherein. However, in the so-called "private crimes", or thosewhich cannot be prosecuted de oficio, and the presentprosecution for adultery is of such genre, the offended spouseassumes a more predominant role since the right to commencethe action, or to refrain therefrom, is a matter exclusivelywithin his power and option.

4. ID.; ID.; ID.; ID.; RATIONALE. This policy was adoptedout of consideration for the aggrieved party who might prefer tosuffer the outrage in silence rather than go through the scandalof a public trial. Hence, as cogently argued by petitioner, Article

344 of the Revised Penal Code thus presupposes that themarital relationship is still subsisting at the time of theinstitution of the criminal action for adultery. This is a logicalconsequence since the raison detre of said provision of lawwould be absent where the supposed offended party hadceased to be the spouse of the alleged offender at the time ofthe filing of the criminal case.

5. ID.; ID.; ID.; ADULTERY AND CONCUBINAGE; AFTER ADIVORCE HAS BEEN DECREED, THE INNOCENT SPOUSE NOLONGER HAS THE RIGHT TO INSTITUTE PROCEEDINGSAGAINST THE OFFENDERS. American jurisprudence, oncases involving statutes in that jurisdiction which are in parimateria with ours, yields the rule that after a divorce has beendecreed, the innocent spouse no longer has the right toinstitute proceedings against the offenders where the statuteprovides that the innocent spouse shall have the exclusive rightto institute a prosecution for adultery. Where, however,proceedings have been properly commenced, a divorcesubsequently granted can have no legal effect on theprosecution of the criminal proceedings to a conclusion.

6. ID.; ID.; ID.; ID.; U.S. RULE APPLIED IN THISJURISDICTION. We see no reason why the same doctrinalrule should not apply in this case and in our jurisdiction,considering our statutory law and jural policy on the matter. Weare convinced that in cases of such nature, the status of thecomplainant vis-a-vis the accused must be determined as of thetime the complaint was filed. Thus, the person who initiates theadultery case must be an offended spouse, and by this is meantthat he is still married to the accused spouse, at the time of the

filing of the complaint.

7. CIVIL LAW; PERSONS AND FAMILY RELATIONS; MARRIAGEIN THE FEDERAL REPUBLIC OF GERMANY BETWEEN A FILIPINAAND A GERMAN, RECOGNIZED IN THE PHILIPPINES. In thepresent case, the fact that private respondent obtained a validdivorce in his country, the Federal Republic of Germany, isadmitted. Said divorce and its legal effects may be recognizedin the Philippines insofar as private respondent is concerned inview of the nationality principle in our civil law on the matter ofstatus of persons.

8. ID.; ID.; ID.; SEVERANCE OF MATERIAL BOND HAD THEEFFECT OF DISSOCIATING THE FORMER SPOUSES FROM EACH


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OTHER. The allegation of private respondent that he couldnot have brought this case before the decree of divorce for lackof knowledge, even if true, is of no legal significance orconsequence in this case. When said respondent initiated thedivorce proceeding, he obviously knew that there would nolonger be a family nor marriage vows to protect once adissolution of the marriage is decreed. Neither would there be adanger of introducing spurious heirs into the family, which issaid to be one of the reasons for the particular formulation ofour law on adultery, since there would thenceforth be nospousal relationship to speak of. The severance of the maritalbond had the effect of dissociating the former spouses fromeach other, hence the actuations of one would not affect or castobloquy on the other.

9. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OFOFFENSES; RULE IN MATA CASE (18 PHIL. 4 90), NOTAPPLICABLE TO CASE AT BAR. The aforecited case of UnitedStates v. Mata cannot be successfully relied upon byprivate Respondent. In applying Article 433 of the old PenalCode, substantially the same as Article 333 of the RevisedPenal Code, which punished adultery "although the marriage beafterwards declared void", the Court merely stated that "thelawmakers intended to declare adulterous the infidelity of amarried woman to her marital vows, even though it should bemade to appear that she is entitled to have her marriagecontract declared null and void, until and unless she actually

secures a formal judicial declaration to that effect." Definitely, itcannot be logically inferred therefrom that the complaint canstill be filed after the declaration of nullity because suchdeclaration that the marriage is void ab initio is equivalent tostating that it never existed. There being no marriage from thebeginning, any complaint for adultery filed after said declarationof nullity would no longer have a leg to stand on. Moreover,what was consequently contemplated and within the purview ofthe decision in said case is the situation where the criminalaction for adultery was filed before the termination of themarriage by a judicial declaration of its nullity ab initio. Thesame rule and requisite would necessarily apply where thetermination of the marriage was effected, as in this case, by avalid foreign divorce.

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Conflicts of Law Marriage Cases