G.R. No.

138322

October 2, 2001

GRACE J. GARCIA, a.k.a. GRACE J. GARCIARECIO, petitioner,

vs.
REDERICK A. RECIO, respondents.
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be
recognized in our jurisdiction, provided such decree is
valid according to the national law of the foreigner.
However, the divorce decree and the governing
personal law of the alien spouse who obtained the
divorce must be proven. Our courts do not take
judicial notice of foreign laws and judgment; hence,
like any other facts, both the divorce decree and the
national law of the alien must be alleged and proven
according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of
the Rules of Court, seeking to nullify the January 7,
1999 Decision1 and the March 24, 1999 Order2 of the
Regional Trial Court of Cabanatuan City, Branch 28,
in Civil Case No. 3026-AF. The assailed Decision
disposed as follows:
"WHEREFORE, this Court declares the
marriage between Grace J. Garcia and
Rederick A. Recio solemnized on January 12,
1994 at Cabanatuan City as dissolved and
both parties can now remarry under existing
and applicable laws to any and/or both
parties."3
The assailed Order denied reconsideration of the
above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha
Samson, an Australian citizen, in Malabon, Rizal, on
March 1, 1987.4 They lived together as husband and
wife in Australia. On May 18, 1989,5 a decree of
divorce, purportedly dissolving the marriage, was
issued by an Australian family court.
On June 26, 1992, respondent became an Australian
citizen, as shown by a "Certificate of Australian
Citizenship" issued by the Australian
government.6 Petitioner a Filipina and respondent
were married on January 12, 1994 in Our Lady of
Perpetual Help Church in Cabanatuan City.7 In

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their application for a marriage license, respondent

was declared as "single" and "Filipino."8
Starting October 22, 1995, petitioner and respondent
lived separately without prior judicial dissolution of
their marriage. While the two were still in Australia,
their conjugal assets were divided on May 16, 1996,
in accordance with their Statutory Declarations
secured in Australia.9
On March 3, 1998, petitioner filed a Complaint for
Declaration of Nullity of Marriage10 in the court a quo,
on the ground of bigamy respondent allegedly had a
prior subsisting marriage at the time he married her
on January 12, 1994. She claimed that she learned of
respondent's marriage to Editha Samson only in
November, 1997.
In his Answer, respondent averred that, as far back as
1993, he had revealed to petitioner his prior
marriage andits subsequent dissolution.11 He
contended that his first marriage to an Australian
citizen had been validly dissolved by a divorce decree
obtained in Australian in 1989;12 thus, he was legally
capacitated to marry petitioner in 1994.
1wphi1.nt

On July 7, 1998 or about five years after the

couple's wedding and while the suit for the declaration
of nullity was pending respondent was able to
secure a divorce decree from a family court in
Sydney, Australia because the "marriage ha[d]
irretrievably broken down."13
Respondent prayed in his Answer that the
Complained be dismissed on the ground that it stated
no cause of action.14 The Office of the Solicitor
General agreed with respondent.15 The court marked
and admitted the documentary evidence of both
parties.16 After they submitted their respective
memoranda, the case was submitted for resolution.17
Thereafter, the trial court rendered the assailed
Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the
ground that the divorce issued in Australia was valid
and recognized in the Philippines. It deemed the
marriage ended, but not on the basis of any defect in
an essential element of the marriage; that
is, respondent's alleged lack of legal capacity to
remarry. Rather, it based its Decision on the divorce
decree obtained by respondent. The Australian
divorce had ended the marriage; thus, there was no
more martial union to nullify or annual.

Hence, this Petition.18

The Petition is partly meritorious.

Issues

Petitioner submits the following issues for our

consideration:
"I
The trial court gravely erred in finding that the
divorce decree obtained in Australia by the
respondent ipso facto terminated his first
marriage to Editha Samson thereby
capacitating him to contract a second
marriage with the petitioner.
"2
The failure of the respondent, who is now a
naturalized Australian, to present a certificate
of legal capacity to marry constitutes absence
of a substantial requisite voiding the petitioner'
marriage to the respondent.
"3
The trial court seriously erred in the
application of Art. 26 of the Family Code in
this case.
"4
The trial court patently and grievously erred in
disregarding Arts. 11, 13, 21, 35, 40, 52 and
53 of the Family Code as the applicable
provisions in this case.
"5
The trial court gravely erred in pronouncing
that the divorce gravely erred in pronouncing
that the divorce decree obtained by the
respondent in Australia ipso facto capacitated
the parties to remarry, without first securing a
recognition of the judgment granting the
divorce decree before our courts."19
The Petition raises five issues, but for purposes of this
Decision, we shall concentrate on two pivotal ones:
(1) whether the divorce between respondent and
Editha Samson was proven, and (2) whether
respondent was proven to be legally capacitated to
marry petitioner. Because of our ruling on these two,
there is no more necessity to take up the rest.
The Court's Ruling

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First Issue:
Proving the Divorce Between Respondent and
Editha Samson
Petitioner assails the trial court's recognition of the
divorce between respondent and Editha Samson.
Citing Adong v. Cheong Seng Gee,20 petitioner argues
that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction
only upon proof of the existence of (1) the foreign law
allowing absolute divorce and (2) the alleged divorce
decree itself. She adds that respondent miserably
failed to establish these elements.
Petitioner adds that, based on the first paragraph of
Article 26 of the Family Code, marriages solemnized
abroad are governed by the law of the place where
they were celebrated (the lex loci celebrationist). In
effect, the Code requires the presentation of the
foreign law to show the conformity of the marriage in
question to the legal requirements of the place where
the marriage was performed.
At the outset, we lay the following basic legal
principles as the take-off points for our discussion.
Philippine law does not provide for absolute divorce;
hence, our courts cannot grant it.21 A marriage
between two Filipinos cannot be dissolved even by a
divorce obtained abroad, because of Articles 1522 and
1723 of the Civil Code.24 In mixed marriages involving a
Filipino and a foreigner, Article 2625 of the Family
Code allows the former to contract a subsequent
marriage in case the divorce is "validly obtained
abroad by the alien spouse capacitating him or her to
remarry."26 A divorce obtained abroad by a couple,
who are both aliens, may be recognized in the
Philippines, provided it is consistent with their
respective national laws.27
A comparison between marriage and divorce, as far
as pleading and proof are concerned, can be
made. Van Dorn v. Romillo Jr. decrees that "aliens
may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid
according to their national law."28 Therefore, before a
foreign divorce decree can be recognized by our
courts, the party pleading it must prove the divorce as
a fact and demonstrate its conformity to the foreign
law allowing it.29 Presentation solely of the divorce
decree is insufficient.
Divorce as a Question of Fact

Petitioner insists that before a divorce decree can be

admitted in evidence, it must first comply with the
registration requirements under Articles 11, 13 and 52
of the Family Code. These articles read as follows:
"ART. 11. Where a marriage license is
required, each of the contracting parties shall
file separately a sworn application for such
license with the proper local civil registrar
which shall specify the following:
xxx

xxx

xxx

"(5) If previously married, how, when and

where the previous marriage was dissolved or
annulled;
xxx

xxx

xxx

"ART. 13. In case either of the contracting

parties has been previously married, the
applicant shall be required to furnish, instead
of the birth of baptismal certificate required in
the last preceding article, the death certificate
of the deceased spouse or the judicial decree
of annulment or declaration of nullity of his or
her previous marriage. x x x.
"ART. 52. The judgment of annulment or of
absolute nullity of the marriage, the partition
and distribution of the properties of the
spouses, and the delivery of the children's
presumptive legitimes shall be recorded in the
appropriate civil registry and registries of
property; otherwise, the same shall not affect
their persons."
Respondent, on the other hand, argues that the
Australian divorce decree is a public document a
written official act of an Australian family court.
Therefore, it requires no further proof of its
authenticity and due execution.
Respondent is getting ahead of himself. Before a
foreign judgment is given presumptive evidentiary
value, the document must first be presented and
admitted in evidence.30 A divorce obtained abroad is
proven by the divorce decree itself. Indeed the best
evidence of a judgment is the judgment itself.31 The
decree purports to be a written act or record of an act
of an officially body or tribunal of a foreign country.32
Under Sections 24 and 25 of Rule 132, on the other
hand, a writing or document may be proven as a
public or official record of a foreign country by either
(1) an official publication or (2) a copy thereof
attested33 by the officer having legal custody of the
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document. If the record is not kept in the Philippines,

such copy must be (a) accompanied by a certificate
issued by the proper diplomatic or consular officer in
the Philippine foreign service stationed in the foreign
country in which the record is kept and (b)
authenticated by the seal of his office.34
The divorce decree between respondent and Editha
Samson appears to be an authentic one issued by an
Australian family court.35 However, appearance is not
sufficient; compliance with the aforemetioned rules on
evidence must be demonstrated.
Fortunately for respondent's cause, when the divorce
decree of May 18, 1989 was submitted in evidence,
counsel for petitioner objected, not to its admissibility,
but only to the fact that it had not been registered in
the Local Civil Registry of Cabanatuan City.36 The trial
court ruled that it was admissible, subject to
petitioner's qualification.37Hence, it was admitted in
evidence and accorded weight by the judge. Indeed,
petitioner's failure to object properly rendered the
divorce decree admissible as a written act of the
Family Court of Sydney, Australia.38
Compliance with the quoted articles (11, 13 and 52) of
the Family Code is not necessary; respondent was no
longer bound by Philippine personal laws after he
acquired Australian citizenship in
1992.39 Naturalization is the legal act of adopting an
alien and clothing him with the political and civil rights
belonging to a citizen.40 Naturalized citizens, freed
from the protective cloak of their former states, don
the attires of their adoptive countries. By becoming an
Australian, respondent severed his allegiance to the
Philippines and the vinculum juris that had tied him to
Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove
Australian divorce law falls upon petitioner, because
she is the party challenging the validity of a foreign
judgment. He contends that petitioner was satisfied
with the original of the divorce decree and was
cognizant of the marital laws of Australia, because
she had lived and worked in that country for quite a
long time. Besides, the Australian divorce law is
allegedly known by Philippine courts: thus, judges
may take judicial notice of foreign laws in the exercise
of sound discretion.
We are not persuaded. The burden of proof lies with
"the party who alleges the existence of a fact or thing
necessary in the prosecution or defense of an
action."41 In civil cases, plaintiffs have the burden of
proving the material allegations of the complaint when

those are denied by the answer; and defendants have

the burden of proving the material allegations in their
answer when they introduce new matters.42 Since the
divorce was a defense raised by respondent, the
burden of proving the pertinent Australian law
validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts
cannot take judicial notice of foreign laws.43 Like any
other facts, they must be alleged and proved.
Australian marital laws are not among those matters
that judges are supposed to know by reason of their
judicial function.44 The power of judicial notice must be
exercised with caution, and every reasonable doubt
upon the subject should be resolved in the negative.
Second Issue:
Respondent's Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient
proof of the divorce, respondent was legally
incapacitated to marry her in 1994.
Hence, she concludes that their marriage was void ab
initio.
Respondent replies that the Australian divorce
decree, which was validly admitted in evidence,
adequately established his legal capacity to marry
under Australian law.
Respondent's contention is untenable. In its strict
legal sense, divorce means the legal dissolution of a
lawful union for a cause arising after marriage. But
divorces are of different types. The two basic ones are
(1) absolute divorce or a vinculo matrimonii and (2)
limited divorce or a mensa et thoro. The first kind
terminates the marriage, while the second suspends it
and leaves the bond in full force.45 There is no
showing in the case at bar which type of divorce was
procured by respondent.
Respondent presented a decree nisi or an
interlocutory decree a conditional or provisional
judgment of divorce. It is in effect the same as a
separation from bed and board, although an absolute
divorce may follow after the lapse of the prescribed
period during which no reconciliation is effected.46
Even after the divorce becomes absolute, the court
may under some foreign statutes and practices, still
restrict remarriage. Under some other jurisdictions,
remarriage may be limited by statute; thus, the guilty
party in a divorce which was granted on the ground of
adultery may be prohibited from remarrying again.

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The court may allow a remarriage only after proof of

good behavior.47
On its face, the herein Australian divorce decree
contains a restriction that reads:
"1. A party to a marriage who marries again
before this decree becomes absolute (unless
the other party has died) commits the offence
of bigamy."48
This quotation bolsters our contention that the divorce
obtained by respondent may have been restricted. It
did not absolutely establish his legal capacity to
remarry according to his national law. Hence, we find
no basis for the ruling of the trial court, which
erroneously assumed that the Australian divorce ipso
facto restored respondent's capacity to remarry
despite the paucity of evidence on this matter.
We also reject the claim of respondent that the
divorce decree raises a disputable presumption or
presumptive evidence as to his civil status based on
Section 48, Rule 3949 of the Rules of Court, for the
simple reason that no proof has been presented on
the legal effects of the divorce decree obtained under
Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity
required by Article 21 of the Family Code was not
submitted together with the application for a marriage
license. According to her, its absence is proof that
respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract
marriage is determined by the national law of the
party concerned. The certificate mentioned in Article
21 of the Family Code would have been sufficient to
establish the legal capacity of respondent, had he
duly presented it in court. A duly authenticated and
admitted certificate is prima facie evidence of legal
capacity to marry on the part of the alien applicant for
a marriage license.50
As it is, however, there is absolutely no evidence that
proves respondent's legal capacity to marry petitioner.
A review of the records before this Court shows that
only the following exhibits were presented before the
lower court: (1) for petitioner: (a) Exhibit "A"
Complaint;51 (b) Exhibit "B" Certificate of Marriage
Between Rederick A. Recto (Filipino-Australian) and
Grace J. Garcia (Filipino) on January 12, 1994 in
Cabanatuan City, Nueva Ecija;52(c) Exhibit "C"
Certificate of Marriage Between Rederick A. Recio
(Filipino) and Editha D. Samson (Australian) on March

1, 1987 in Malabon, Metro Manila;53 (d) Exhibit "D"

Office of the City Registrar of Cabanatuan City
Certification that no information of annulment between
Rederick A. Recto and Editha D. Samson was in its
records;54 and (e) Exhibit "E" Certificate of Australian
Citizenship of Rederick A. Recto;55 (2) for respondent:
(Exhibit "1" Amended Answer;56 (b) Exhibit "S"
Family Law Act 1975 Decree Nisi of Dissolution of
Marriage in the Family Court of Australia;57 (c) Exhibit
"3" Certificate of Australian Citizenship of Rederick
A. Recto;58 (d) Exhibit "4" Decree Nisi of Dissolution
of Marriage in the Family Court of Australia
Certificate;59 and Exhibit "5" Statutory Declaration of
the Legal Separation Between Rederick A. Recto and
Grace J. Garcia Recio since October 22, 1995.60

Neither can we grant petitioner's prayer to declare her

marriage to respondent null and void on the ground of
bigamy. After all, it may turn out that under Australian
law, he was really capacitated to marry petitioner as a
direct result of the divorce decree. Hence, we believe
that the most judicious course is to remand this case
to the trial court to receive evidence, if any, which
show petitioner's legal capacity to marry petitioner.
Failing in that, then the court a quo may declare a
nullity of the parties' marriage on the ground of
bigamy, there being already in evidence two existing
marriage certificates, which were both obtained in the
Philippines, one in Malabon, Metro Manila dated
March 1, 1987 and the other, in Cabanatuan City
dated January 12, 1994.

Based on the above records, we cannot conclude that

respondent, who was then a naturalized Australian
citizen, was legally capacitated to marry petitioner on
January 12, 1994. We agree with petitioner's
contention that the court a quo erred in finding that
the divorce decree ipso facto clothed respondent with
the legal capacity to remarry without requiring him to
adduce sufficient evidence to show the Australian
personal law governing his status; or at the very least,
to prove his legal capacity to contract the second
marriage.

WHEREFORE, in the interest of orderly procedure

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

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SO ORDERED.