G.R. No. 125932 April 21, 1999 REPUBLIC OF vs. CLAUDE A. MILLER and JUMRUS S. MILLER, respondents.

THE PHILIPPINES, petitioners

PARDO, J The Republic of the Philippines, through the Solicitor General, appealed originally to the Court of Appeals from a decision of the Regional Trial Court, Branch 59, Angeles City, granting the petition of respondent spouses to adopt the minor Michael Magno Madayag. In its decision promulgated on April 17, 1996, the Court of Appeals certified the case to the Supreme Court because the petition raised only questions of law. By resolution adopted on September 23, 1996, we accepted the appeal. We shall treat the appeal as one via certiorari from a decision of the regional trial court under Supreme Court Circular 2-90, dated March 9, 1990, on pure questions of law. The facts are undisputed and may be related as follows: On July 29, 1988, the spouses Claude A. Miller and Jumrus S. Miller, filed with the Regional Trial Court, Branch 59, Angeles City, a verified petition to adopt the minor Michael Magno Madayag. The trial court scheduled the petition for hearing on September 9, 1988, at 9:00 in the morning. At the hearing, with the attendance of an assistant city fiscal of Angeles City, in representation of the Solicitor General, respondents adduced evidence showing that: Claude A. Miller, 38 years old and Jumrus S. Miller, 40 years of age, both American citizens, are husband and wife, having been married on June 21, 1982. They were childless and "do not expect to have sibling out of their union on account of a medical problem of the wife." Claude A. Miller was a member of the United States Air Force, as airman first class, assigned at Clark Air Base since January 26, 1985. The family maintains their residence at Don Bonifacio Subdivision, Balibago, Angeles City, since 1985. 1 The minor Michael Magno Madayag is the legitimate son of Marcelo S. Madayag, Jr. and Zenaida Magno. Born on July 14, 1987, at San Fernando, La Union, the minor has been in the custody of respondents since the first week of August 1987. Poverty and deep concern for the future of their son prompted the natural parents who have no visible means of livelihood to have their child adopted by respondents. They executed affidavits giving their irrevocable consent to the adoption by respondents. The Department of Social Welfare and Development, through its Regional office at San Fernando, Pampanga, recommended approval of the petition on the basis of its evaluation that respondents were morally, emotionally and financially fit to be adoptive parents and that the adoption would be to the minor's best interest and welfare. 2 On May 12, 1989, the trial court rendered decision granting the petition for adoption, the dispositive portion of which reads as follows: WHEREFORE, finding that petitioners possess all the qualifications and none of the disqualifications for adoption, the instant petition is hereby Granted, and this Court decrees the minor MICHAEL MAGNO MADAYAG freed from all obligation of obedience and support with respect to natural parents and is hereby declared the child of the herein petitioners by adoption. The minor's surname shall be changed from "MADAYAG" to "MILLER", which is the surname of the herein petitioners. 3 In due time, the Solicitor General, in behalf of the Republic, interposed an appeal to the Court of Appeals. As heretofore stated, the Court of Appeals certified the case to this Court. The issue raised is whether the court may allow aliens to adopt a Filipino child despite the prohibition under the Family Code, 4 effective on August 3, 1988 5 when the petition for adoption was filed on July 29, 1988, under the provision of the Child and Youth Welfare Code 6 which allowed aliens to adopt. The issue is not new. This Court has ruled that an alien qualified to adopt under the Child and Youth Welfare Code, which was in force at the time of the filing of the petition, acquired a vested right which could not be affected by the subsequent enactment of a new law disqualifying him. 7 Consequently, the enactment of the Family Code, effective August 3, 1988, will not impair the right of respondents who are aliens to adopt a Filipino child because the right has become vested at the time of filing of the petition for adoption and shall be governed by the law then in force. "A vested right is one whose existence, effectivity and extent does not depend upon events foreign to the will of the holder. The term expresses the concept of present fixed interest which in right reason and natural justice should be protected against arbitrary State action, or an innately just and imperative right which enlightened free society, sensitive to inherent and irrefragable individual rights, cannot deny." 8 "Vested rights include not only legal or equitable title to the enforcement of a demand, but also an

exemption from new obligations created after the right has vested. 9 As long as the petition for adoption was sufficient in form and substance in accordance with the law in governance at the time it was filed, the court acquires jurisdiction and retains it until it fully disposes of the case. To repeat, the jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. Such jurisdiction of a court, whether in criminal or civil cases, once it attaches cannot be ousted by a subsequent happenings or events, although of a character which would have prevented jurisdiction from attaching in the first instance. 10 Therefore, an alien who filed a petition for adoption before the effective of the Family Code, although denied the right to adopt under Art. 184 of said Code, may continue with his petition under the law prevailing before the Family Code. 11 Adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter, as well as childless couples or persons to experience the joy of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parent instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objective of the law. 12 WHEREFORE, we hereby AFFIRM the appealed decision of the Regional Trial Court, Branch 59, Angeles City, in SP. Proc. No. 3562.1wphi1.nt A.M. No. MTJ-92-706 March 29, 1995 LUPO ALMODIEL ATIENZA, complainant, vs. JUDGE FRANCISCO F. BRILLANTES, JR., Metropolitan Trial Court, Branch 28, Manila, respondent.

QUIASON, J.: This is a complaint by Lupo A. Atienza for Gross Immorality and Appearance of Impropriety against Judge Francisco Brillantes, Jr., Presiding Judge of the Metropolitan Trial Court, Branch 20, Manila. Complainant alleges that he has two children with Yolanda De Castro, who are living together at No. 34 Galaxy Street, Bel-Air Subdivision, Makati, Metro Manila. He stays in said house, which he purchased in 1987, whenever he is in Manila. In December 1991, upon opening the door to his bedroom, he saw respondent sleeping on his (complainant's) bed. Upon inquiry, he was told by the houseboy that respondent had been cohabiting with De Castro. Complainant did not bother to wake up respondent and instead left the house after giving instructions to his houseboy to take care of his children. Thereafter, respondent prevented him from visiting his children and even alienated the affection of his children for him. Complainant claims that respondent is married to one Zenaida Ongkiko with whom he has five children, as appearing in his 1986 and 1991 sworn statements of assets and liabilities. Furthermore, he alleges that respondent caused his arrest on January 13, 1992, after he had a heated argument with De Castro inside the latter's office. For his part, respondent alleges that complainant was not married to De Castro and that the filing of the administrative action was related to complainant's claim on the Bel-Air residence, which was disputed by De Castro. Respondent denies that he caused complainant's arrest and claims that he was even a witness to the withdrawal of the complaint for Grave Slander filed by De Castro against complainant. According to him, it was the sister of De Castro who called the police to arrest complainant. Respondent also denies having been married to Ongkiko, although he admits having five children with her. He alleges that while he and Ongkiko went through a marriage ceremony before a Nueva Ecija town mayor on April 25, 1965, the same was not a valid marriage for lack of a marriage license. Upon the request of the parents of Ongkiko, respondent went through another marriage ceremony with her in Manila on June 5, 1965. Again, neither party applied for a marriage license. Ongkiko abandoned respondent 17 years ago, leaving their children to his care and custody as a single parent. Respondent claims that when he married De Castro in civil rites in Los Angeles, California on December 4, 1991, he believed, in all good faith and for all legal intents and purposes, that he was single because his first marriage was solemnized without a license. Under the Family Code, there must be a judicial declaration of the nullity of a previous marriage before a party thereto can enter into a second marriage. Article 40 of said Code provides: The absolute nullity of a previous marriage may be invoked for the purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Respondent argues that the provision of Article 40 of the Family Code does not apply to him considering that his first marriage took place in 1965 and was governed by the Civil Code of the Philippines; while the second marriage took place in 1991 and governed by the Family Code. Article 40 is applicable to remarriages entered into after the effectivity of the Family Code on August 3, 1988 regardless of the date of the first marriage. Besides, under Article 256 of the Family Code, said Article is given "retroactive effect insofar as it does not prejudice or

impair vested or acquired rights in accordance with the Civil Code or other laws." This is particularly true with Article 40, which is a rule of procedure. Respondent has not shown any vested right that was impaired by the application of Article 40 to his case. The fact that procedural statutes may somehow affect the litigants' rights may not preclude their retroactive application to pending actions. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected (Gregorio v. Court of Appeals, 26 SCRA 229 [1968]). The reason is that as a general rule no vested right may attach to, nor arise from, procedural laws (Billones v. Court of Industrial Relations, 14 SCRA 674 [1965]). Respondent is the last person allowed to invoke good faith. He made a mockery of the institution of marriage and employed deceit to be able to cohabit with a woman, who beget him five children. Respondent passed the Bar examinations in 1962 and was admitted to the practice of law in 1963. At the time he went through the two marriage ceremonies with Ongkiko, he was already a lawyer. Yet, he never secured any marriage license. Any law student would know that a marriage license is necessary before one can get married. Respondent was given an opportunity to correct the flaw in his first marriage when he and Ongkiko were married for the second time. His failure to secure a marriage license on these two occasions betrays his sinister motives and bad faith. It is evident that respondent failed to meet the standard of moral fitness for membership in the legal profession. While the deceit employed by respondent existed prior to his appointment as a Metropolitan Trial Judge, his immoral and illegal act of cohabiting with De Castro began and continued when he was already in the judiciary. The Code of Judicial Ethics mandates that the conduct of a judge must be free of a whiff of impropriety, not only with respect to his performance of his judicial duties but also as to his behavior as a private individual. There is no duality of morality. A public figure is also judged by his private life. A judge, in order to promote public confidence in the integrity and impartiality of the judiciary, must behave with propriety at all times, in the performance of his judicial duties and in his everyday life. These are judicial guideposts too self-evident to be overlooked. No position exacts a greater demand on moral righteousness and uprightness of an individual than a seat in the judiciary (Imbing v. Tiongzon, 229 SCRA 690 [1994]). WHEREFORE, respondent is DISMISSED from the service with forfeiture of all leave and retirement benefits and with prejudice to reappointment in any branch, instrumentality, or agency of the government, including government-owned and controlled corporations. This decision is immediately executory. SO ORDERED. Atienza vs Brillantes 243 SCRA 32 Topic: Retroactive effects of law SF: An administrative case was filed by herein complainant against Judge Brilliantes of MTC, Manila. Complainant alleges that he has two children with De Castro who stays in Makati, Manila in the house he bought and stayed while he is in Manila. Sometime in 1991 he saw Respondent Judge sleeping on his bed, upon inquiry, he was told by the houseboy that respondent was cohabiting with De Castro. Complainant further alleged that respondent was married to a certain Zenaida Ongkiko and begot five children. In reply respondent alleged that the complainant was not married to De Castro, he also denied having been married to Zenaida ongkiko, however admitted having five children with her. He stated that the marriage between him and Ongkiko was not valid since there was no marriage license and further claimed that when he married De Castro he believed in all good faith of its intent and purpose. Issue: Whether or not Article 40 of the Family Code that required nullity of previous marriage for purpose of remarriage shall apply? Held: As a general rule provided in Article 4 of the NCC: Laws shall have no retroactive effect, unless the contrary is provided. Ratio Dicidendi: Article 40 of the Family Code provides that a Judicial Declaration of Nullity is required before a party can enter into second marriage however the said Code took effect only on August 3, 1988 and the marriages that respondent contracted was 1965 and 1991 however the provisions of this code shall apply regardless of the date of the marriage, besides under Article 256 of the Family Code, said Article is given retroactive effects in so far as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws this is particularly true with Article 40 which is a rule of Procedure, herein respondent has not shown any vested rights that was impaired by the application of Article 40 ti his case. *The ratio decidendi is "the point in a case which determines the judgment"[1] or "the principle which the case establishes" An ex post facto law (Latin for "from after the action" or "after the fact"), also called a retroactive law, is a law that retroactively changes

the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed; it may aggravate a crime by bringing it into a more severe category than it was in when it was committed; it may change the punishment prescribed for a crime, as by adding new penalties or extending sentences; or it may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed. Conversely, a form of ex post facto law commonly called an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with lifelong imprisonment) retroactively. Such laws are also known by the Latin term in mitius. A law may have an ex post facto effect without being technically ex post facto. For example, when a law repeals a previous law, the repealed legislation is no longer applicable to situations to which it previously was, even if such situations arose before the law was repealed. The principle of prohibiting the continued application of such laws is called Nullum crimen, nulla poena sine praevia lege poenali, especially in European Continental systems. Some common-law jurisdictions do not permit retroactive criminal legislation, though new precedent generally applies to events that occurred before the judicial decision. Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3. In some nations that follow the Westminster system of government, such as the United Kingdom,ex post facto laws are technically possible, because the doctrine of parliamentary supremacy allows Parliament to pass any law it wishes. In a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited. Supreme Court Reports Annotated (SCRA) G.R. No. 158298 August 11, 2010

ISIDRO ABLAZA, Petitioner, vs. REPUBLIC OF THE PHILIPPINES, Respondent. DECISION BERSAMIN, J.: Whether a person may bring an action for the declaration of the absolute nullity of the marriage of his deceased brother solemnized under the regime of the old Civil Code is the legal issue to be determined in this appeal brought by the petitioner whose action for that purpose has been dismissed by the lower courts on the ground that he, not being a party in the assailed marriage, had no right to bring the action. Antecedents On October 17, 2000, the petitioner filed in the Regional Trial Court (RTC) in Cataingan, Masbate a petition for the declaration of the absolute nullity of the marriage contracted on December 26, 1949 between his late brother Cresenciano Ablaza and Leonila Honato. 1 The case was docketed as Special Case No. 117 entitled In Re: Petition for Nullification of Marriage Contract between Cresenciano Ablaza and Leonila Honato; Isidro Ablaza, petitioner. The petitioner alleged that the marriage between Cresenciano and Leonila had been celebrated without a marriage license, due to such license being issued only on January 9, 1950, thereby rendering the marriage void ab initio for having been solemnized without a marriage license. He insisted that his being the surviving brother of Cresenciano who had died without any issue entitled him to one-half of the real properties acquired by Cresenciano before his death, thereby making him a real party in interest; and that any person, himself included, could impugn the validity of the marriage between Cresenciano and Leonila at any time, even after the death of Cresenciano, due to the marriage being void ab initio.2 Ruling of the RTC On October 18, 2000, 3 the RTC dismissed the petition, stating: Considering the petition for annulment of marriage filed, the Court hereby resolved to DISMISS the petition for the following reasons: 1) petition is filed out of time (action had long prescribed) and 2) petitioner is not a party to the marriage (contracted between Cresenciano Ablaza and Leonila Nonato on December 26, 1949 and solemnized by Rev. Fr. Eusebio B. Calolot). SO ORDERED. The petitioner seasonably filed a motion for reconsideration, but the RTC denied the motion for reconsideration on November 14, 2000. Ruling of the Court of Appeals

The petitioner appealed to the Court of Appeals (CA), assigning the lone error that: The trial court erred in dismissing the petition for being filed out of time and that the petitioner is not a party to the marriage. In its decision dated January 30, 2003,4 however, the CA affirmed the dismissal order of the RTC, thus: While an action to declare the nullity of a marriage considered void from the beginning does not prescribe, the law nonetheless requires that the same action must be filed by the proper party, which in this case should be filed by any of the parties to the marriage. In the instant case, the petition was filed by Isidro Ablaza, a brother of the deceased-spouse, who is not a party to the marriage contracted by Cresenciano Ablaza and Leonila Honato. The contention of petitioner-appellant that he is considered a real party in interest under Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as he stands to be benefited or injured by the judgment in the suit, is simply misplaced. Actions for annulment of marriage will not prosper if persons other than those specified in the law file the case. Certainly, a surviving brother of the deceased spouse is not the proper party to file the subject petition. More so that the surviving wife, who stands to be prejudiced, was not even impleaded as a party to said case. WHEREFORE, finding no reversible error therefrom, the Orders now on appeal are hereby AFFIRMED. Costs against the petitionerappellant. SO ORDERED.5 Hence, this appeal. Issues The petitioner raises the following issues: I. WHETHER OR NOT THE DECISION OF THIS HONORABLE COURT OF APPEALS IN CA-G.R. CV. NO. 69684 AFFIRMING THE ORDER OF DISMISSAL OF THE REGIONAL TRIAL COURT, BRANCH 49 AT CATAINGAN, MASBATE IN SPECIAL PROCEEDING NO. 117 IS IN ACCORDANCE WITH APPLICABLE LAWS AND JURISPRUDENCE; II. WHETHER OR NOT THE DECISION OF THE HONORABLE COURT OF APPEALS IN CA-G.R. CV NO. 69684 (SHOULD) BE REVERSED BASED ON EXECUTIVE ORDER NO. 209 AND EXISTING JURISPRUDENCE. The issues, rephrased, boil down to whether the petitioner is a real party in interest in the action to seek the declaration of nullity of the marriage of his deceased brother. Ruling The petition is meritorious. A valid marriage is essential in order to create the relation of husband and wife and to give rise to the mutual rights, duties, and liabilities arising out of such relation. The law prescribes the requisites of a valid marriage. Hence, the validity of a marriage is tested according to the law in force at the time the marriage is contracted. 6 As a general rule, the nature of the marriage already celebrated cannot be changed by a subsequent amendment of the governing law. 7 To illustrate, a marriage between a stepbrother and a stepsister was void under the Civil Code, but is not anymore prohibited under the Family Code; yet, the intervening effectivity of the Family Code does not affect the void nature of a marriage between a stepbrother and a stepsister solemnized under the regime of the Civil Code. The Civil Code marriage remains void, considering that the validity of a marriage is governed by the law in force at the time of the marriage ceremony. 8 Before anything more, the Court has to clarify the impact to the issue posed herein of Administrative Matter (A.M.) No. 02-11-10-SC (Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages), which took effect on March 15, 2003. Section 2, paragraph (a), of A.M. No. 02-11-10-SC explicitly provides the limitation that a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or wife. Such limitation demarcates a line to distinguish between marriages covered by the Family Code and those solemnized under the regime of the Civil Code. 9 Specifically, A.M. No. 02-11-10-SC extends only to marriages covered by the Family Code, which took effect on August 3, 1988, but, being a procedural rule that is prospective in application, is confined only to proceedings commenced after March 15, 2003. 10 Based on Carlos v. Sandoval,11 the following actions for declaration of absolute nullity of a marriage are excepted from the limitation, to wit: 1. Those commenced before March 15, 2003, the effectivity date of A.M. No. 02-11-10-SC; and 2. Those filed vis--vis marriages celebrated during the effectivity of the Civil Code and, those celebrated under the regime of the Family Code prior to March 15, 2003. Considering that the marriage between Cresenciano and Leonila was contracted on December 26, 1949, the applicable law was the old

Civil Code, the law in effect at the time of the celebration of the marriage. Hence, the rule on the exclusivity of the parties to the marriage as having the right to initiate the action for declaration of nullity of the marriage under A.M. No. 02-11-10-SC had absolutely no application to the petitioner. The old and new Civil Codes contain no provision on who can file a petition to declare the nullity of a marriage, and when. Accordingly, in Nial v. Bayadog,12 the children were allowed to file after the death of their father a petition for the declaration of the nullity of their fathers marriage to their stepmother contracted on December 11, 1986 due to lack of a marriage license. There, the Court distinguished between a void marriage and a voidable one, and explained how and when each might be impugned, thuswise: Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the nullity of a marriage. "A void marriage does not require a judicial decree to restore the parties to their original rights or to make the marriage void but though no sentence of avoidance be absolutely necessary, yet as well for the sake of good order of society as for the peace of mind of all concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction." "Under ordinary circumstances, the effect of a void marriage, so far as concerns the conferring of legal rights upon the parties, is as though no marriage had ever taken place. And therefore, being good for no legal purpose, its invalidity can be maintained in any proceeding in which the fact of marriage may be material, either direct or collateral, in any civil court between any parties at any time, whether before or after the death of either or both the husband and the wife, and upon mere proof of the facts rendering such marriage void, it will be disregarded or treated as non-existent by the courts." It is not like a voidable marriage which cannot be collaterally attacked except in direct proceeding instituted during the lifetime of the parties so that on the death of either, the marriage cannot be impeached, and is made good ab initio. But Article 40 of the Family Code expressly provides that there must be a judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage and such absolute nullity can be based only on a final judgment to that effect. For the same reason, the law makes either the action or defense for the declaration of absolute nullity of marriage imprescriptible. Corollarily, if the death of either party would extinguish the cause of action or the ground for defense, then the same cannot be considered imprescriptible. However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause "on the basis of a final judgment declaring such previous marriage void" in Article 40 of the Family Code connotes that such final judgment need not be obtained only for purpose of remarriage. 13 It is clarified, however, that the absence of a provision in the old and new Civil Codes cannot be construed as giving a license to just any person to bring an action to declare the absolute nullity of a marriage. According toCarlos v. Sandoval, 14 the plaintiff must still be the party who stands to be benefited by the suit, or the party entitled to the avails of the suit, for it is basic in procedural law that every action must be prosecuted and defended in the name of the real party in interest. 15 Thus, only the party who can demonstrate a "proper interest" can file the action. 16 Interest within the meaning of the rule means material interest, or an interest in issue to be affected by the decree or judgment of the case, as distinguished from mere curiosity about the question involved or a mere incidental interest. One having no material interest to protect cannot invoke the jurisdiction of the court as plaintiff in an action. When the plaintiff is not the real party in interest, the case is dismissible on the ground of lack of cause of action. 17 Here, the petitioner alleged himself to be the late Cresencianos brother and surviving heir. Assuming that the petitioner was as he claimed himself to be, then he has a material interest in the estate of Cresenciano that will be adversely affected by any judgment in the suit. Indeed, a brother like the petitioner, albeit not a compulsory heir under the laws of succession, has the right to succeed to the estate of a deceased brother under the conditions stated in Article 1001 and Article 1003 of the Civil Code, as follows: Article 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one half of the inheritance and the brothers and sisters or their children to the other half. Article 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. Pursuant to these provisions, the presence of descendants, ascendants, or illegitimate children of the deceased excludes collateral relatives like the petitioner from succeeding to the deceaseds estate. 18 Necessarily, therefore, the right of the petitioner to bring the action hinges upon a prior determination of whether Cresenciano had any descendants, ascendants, or children (legitimate or illegitimate), and of whether the petitioner was the late Cresencianos surviving heir. Such prior determination must be made by the trial court, for the inquiry thereon involves questions of fact. As can be seen, both the RTC and the CA erroneously resolved the issue presented in this case. We reverse their error, in order that the substantial right of the petitioner, if any, may not be prejudiced. Nevertheless, we note that the petitioner did not implead Leonila, who, as the late Cresencianos surviving wife, 19stood to be benefited or prejudiced by the nullification of her own marriage. It is relevant to observe, moreover, that not all marriages celebrated under the old Civil Code required a marriage license for their validity; 20 hence, her participation in this action is made all the more necessary in order to shed light on

whether the marriage had been celebrated without a marriage license and whether the marriage might have been a marriage excepted from the requirement of a marriage license. She was truly an indispensable party who must be joined herein: xxx under any and all conditions, [her] presence being a sine qua non for the exercise of judicial power. 1avvphi1 It is precisely "when an indispensable party is not before the court [that] the action should be dismissed." The absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present. 21 We take note, too, that the petitioner and Leonila were parties in C.A.-G.R. CV No. 91025 entitled Heirs of Cresenciano Ablaza, namely: Leonila G. Ablaza and Leila Ablaza Jasul v. Spouses Isidro and Casilda Ablaza, an action to determine who between the parties were the legal owners of the property involved therein. Apparently, C.A.-G.R. CV No. 91025 was decided on November 26, 2009, and the petitioners motion for reconsideration was denied on June 23, 2010. As a defendant in that action, the petitioner is reasonably presumed to have knowledge that the therein plaintiffs, Leonila and Leila, were the wife and daughter, respectively, of the late Cresenciano. As such, Leila was another indispensable party whose substantial right any judgment in this action will definitely affect. The petitioner should likewise implead Leila. The omission to implead Leonila and Leila was not immediately fatal to the present action, however, considering that Section 11, 22 Rule 3, Rules of Court, states that neither misjoinder nor non-joinder of parties is a ground for the dismissal of an action. The petitioner can still amend his initiatory pleading in order to implead her, for under the same rule, such amendment to implead an indispensable party may be made "on motion of any party or on (the trial courts) own initiative at any stage of the action and on such terms as are just." WHEREFORE, the petition for review on certiorari is granted. We reverse and set aside the decision dated January 30, 2003 rendered by the Court of Appeals. Special Case No. 117 entitled In Re: Petition for Nullification of Marriage Contract between Cresenciano Ablaza and Leonila Honato; Isidro Ablaza, petitioner, is reinstated, and its records are returned to the Regional Trial Court, Branch 49, in Cataingan, Masbate, for further proceedings, with instructions to first require the petitioner to amend his initiatory pleading in order to implead Leonila Honato and her daughter Leila Ablaza Jasul as parties-defendants; then to determine whether the late Cresenciano Ablaza had any ascendants, descendants, or children (legitimate or illegitimate) at the time of his death as well as whether the petitioner was the brother and surviving heir of the late Cresenciano Ablaza entitled to succeed to the estate of said deceased; and thereafter to proceed accordingly. No costs of suit. SO ORDERED. ISIDROABLAZA vs. REPUBLIC OF THE PHILIPPINESG.R. No. 158298 August 11, 2010BERSAMIN, J. FACTS: On October 17, 2000, the petitioner, Isidro Ablaza filed in the Regional Trial Court (RTC) inCataingan, Masbate a petition for the declaration of the absolute nullity of the marriagecontracted on December 26, 1949 between his late brother Cresenciano Ablaza and LeonilaHonato. The petitioner alleged that the marriage between Cresenciano and Leonila had beencelebrated without a marriage license, due to such license being issued only on January 9, 1950,thereby rendering the marriage void ab initio for having been solemnized without a marriagelicense. He insisted that his being the surviving brother of Cresenciano who had died without anyissue entitled him to one-half of the real properties acquired by Cresenciano before his death,thereby making him a real party in interest; and that any person, himself included, could impugnthe validity of the marriage between Cresenciano and Leonila at any time, even after the death of Cresenciano, due to the marriage being void ab initio . ISSUE: Whether the petitioner is a real party in interest in the action to seek the declaration of nullity of the marriage of his deceased brother. HELD: The Court Ruled that, being good for no legal purpose other than remarriage, a void marriageinvalidity can be maintained in any proceeding in which the fact of marriage may be material,either direct or collateral, in any civil court between any parties at any time, whether before or after the death of either or both the husband and the wife, and upon mere proof of the factsrendering such marriage void, it will be disregarded or treated as non-existent by the courts." It isnot like a voidable marriage which cannot be collaterally attacked except in direct proceedinginstituted during the lifetime of the parties so that on the death of either, the marriage cannot beimpeached, and is made good ab initio BENJAMIN G. TING vs. CARMEN M. VELEZ-TING G.R. No. 166562, March 31, 2009 FACTS: Benjamin Ting (Benjamin) and respondent Carmen Velez-Ting (Carmen) first met in 1972 while they were classmates in medical school.

They fell in love, and they were wed on July 26, 1975 in Cebu City when respondent was already pregnant with their first child. On October 21, 1993, after being married for more than 18 years to petitioner and while their youngest child was only two years old, Carmen filed a verified petition before the RTC of Cebu City praying for the declaration of nullity of their marriage based on Article 36 of the Family Code. She claimed that Benjamin suffered from psychological incapacity even at the time of the celebration of their marriage, which, however, only became manifest thereafter. In her complaint, Carmen stated that prior to their marriage, she was already aware that Benjamin used to drink and gamble occasionally with his friends. But after they were married, petitioner continued to drink regularly and would go home at about midnight or sometimes in the wee hours of the morning drunk and violent. He would confront and insult respondent, physically assault her and force her to have sex with him. There were also instances when Benjamin used his gun and shot the gate of their house. Because of his drinking habit, Benjamins job as anesthesiologist was affected to the point that he often had to refuse to answer the call of his fellow doctors and to pass the task to other anesthesiologists. Some surgeons even stopped calling him for his services because they perceived petitioner to be unreliable. Respondent tried to talk to her husband about the latters drinking problem, but Benjamin refused to acknowledge the same. In his answer, Benjamin denied being psychologically incapacitated. He maintained that he is a respectable person, as his peers would confirm. He said that he is an active member of social and athletic clubs and would drink and gamble only for social reasons and for leisure. He also denied being a violent person, except when provoked by circumstances. On January 9, 1998, the lower court rendered its Decision declaring the marriage between petitioner and respondent null and void. The RTC gave credence to Dr. Oates findings and the admissions made by Benjamin in the course of his deposition, and found him to be psychologically incapacitated to comply with the essential obligations of marriage. petitioner appealed to the CA. On October 19, 2000, the CA rendered a Decision reversing the trial courts ruling. It faulted the trial courts finding, stating that no proof was adduced to support the conclusion that Benjamin was psychologically incapacitated at the time he married Carmen since Dr. Oates conclusion was based only on theories and not on established fact, contrary to the guidelines set forth in Santos v. Court of Appeals and in Rep. of the Phils. v. Court of Appeals and Molina. Carmen filed a MR, it was denied then she filed a petition for certiorari with the SC, SC directed CA to decide on Carmens case. On review, CA reversed its earlier ruling. ISSUE: Whether the CA violated the rule on stare decisis when it refused to follow the guidelines set forth under the Santos and Molina cases. HELD: The principle of stare decisis enjoins adherence by lower courts to doctrinal rules established by this Court in its final decisions. It is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument. Basically, it is a bar to any attempt to relitigate the same issues, necessary for two simple reasons: economy and stability. In our jurisdiction, the principle is entrenched in Article 8 of the Civil Code. This doctrine of adherence to precedents or stare decisis was applied by the English courts and was later adopted by the United States. Associate Justice (now Chief Justice) Reynato S. Punos discussion on the historical development of this legal principle in his dissenting opinion in Lambino v. Commission on Elections is enlightening: The latin phrase stare decisis et non quieta movere means stand by the thing and do not disturb the calm. The doctrine started with the English Courts. Blackstone observed that at the beginning of the 18th century, it is an established rule to abide by former precedents where the same points come again in litigation. As the rule evolved, early limits to its application were recognized: (1) it would not be followed if it were plainly unreasonable; (2) where courts of equal authority developed conflicting decisions; and, (3) the binding force

of the decision was the actual principle or principles necessary for the decision; not the words or reasoning used to reach the decision. The doctrine migrated to the United States. It was recognized by the framers of the U.S. Constitution. According to Hamilton, strict rules and precedents are necessary to prevent arbitrary discretion in the courts. Madison agreed but stressed that x x x once the precedent ventures into the realm of altering or repealing the law, it should be rejected. Prof. Consovoy well noted that Hamilton and Madison disagree about the countervailing policy considerations that would allow a judge to abandon a precedent. He added that their ideas reveal a deep internal conflict between the concreteness required by the rule of law and the flexibility demanded in error correction. It is this internal conflict that the Supreme Court has attempted to deal with for over two centuries. Indeed, two centuries of American case law will confirm Prof. Consovoy's observation although stare decisis developed its own life in the United States. Two strains of stare decisis have been isolated by legal scholars. The first, known as vertical stare decisis deals with the duty of lower courts to apply the decisions of the higher courts to cases involving the same facts. The second, known as horizontal stare decisis requires that high courts must follow its own precedents. Prof. Consovoy correctly observes that vertical stare decisis has been viewed as an obligation, while horizontal stare decisis, has been viewed as a policy, imposing choice but not a command. Indeed, stare decisis is not one of the precepts set in stone in our Constitution. It is also instructive to distinguish the two kinds of horizontal stare decisis constitutional stare decisisand statutory stare decisis. Constitutional stare decisis involves judicial interpretations of the Constitution while statutory stare decisis involves interpretations of statutes. The distinction is important for courts enjoy more flexibility in refusing to apply stare decisis in constitutional litigations. Justice Brandeis' view on the binding effect of the doctrine in constitutional litigations still holds sway today. In soothing prose, Brandeis stated: Stare decisis is not . . . a universal and inexorable command. The rule of stare decisis is not inflexible. Whether it shall be followed or departed from, is a question entirely within the discretion of the court, which is again called upon to consider a question once decided. In the same vein, the venerable Justice Frankfurter opined: the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it. In contrast, the application of stare decisis on judicial interpretation of statutes is more inflexible. As Justice Stevens explains: after a statute has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself. This stance reflects both respect for Congress' role and the need to preserve the courts' limited resources. In general, courts follow the stare decisis rule for an ensemble of reasons, viz.: (1) it legitimizes judicial institutions; (2) it promotes judicial economy; and, (3) it allows for predictability. Contrariwise, courts refuse to be bound by the stare decisis rule where (1) its application perpetuates illegitimate and unconstitutional holdings; (2) it cannot accommodate changing social and political understandings; (3) it leaves the power to overturn bad constitutional law solely in the hands of Congress; and, (4) activist judges can dictate the policy for future courts while judges that respect stare decisis are stuck agreeing with them. In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and reversed its decisions in 192 cases. The most famous of these reversals is Brown v. Board of Education which junkedPlessy v. Ferguson's separate but equal doctrine. Plessy upheld as constitutional a state law requirement that races be segregated on public transportation. In Brown, the U.S. Supreme Court, unanimously held that separate . . . is inherently unequal. Thus, by freeing itself from the shackles of stare decisis, the U.S. Supreme Court freed the colored Americans from the chains of inequality. In the Philippine setting, this Court has likewise refused to be straitjacketed by the stare decisis rule in order to promote public welfare. In La Bugal- B'laan Tribal Association, Inc. v. Ramos, we reversed our original ruling that certain provisions of the Mining Law are unconstitutional. Similarly, in Secretary of Justice v. Lantion, we overturned our first ruling and held, on motion for reconsideration, that a private respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition process. An examination of decisions on stare decisis in major countries will show that courts are agreed on the factors that should be considered before overturning prior rulings. These are workability, reliance, intervening developments in the law and changes in fact. In addition,

courts put in the balance the following determinants: closeness of the voting, age of the prior decision and its merits. The leading case in deciding whether a court should follow the stare decisis rule in constitutional litigations is Planned Parenthood v. Casey. It established a 4-pronged test. The court should (1) determine whether the rule has proved to be intolerable simply in defying practical workability; (2) consider whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; (3) determine whether related principles of law have so far developed as to have the old rule no more than a remnant of an abandoned doctrine; and, (4) find out whether facts have so changed or come to be seen differently, as to have robbed the old rule of significant application or justification. To be forthright, respondents argument that the doctrinal guidelines prescribed in Santos and Molinashould not be applied retroactively for being contrary to the principle of stare decisis is no longer new. The same argument was also raised but was struck down in Pesca v. Pesca, and again in Antonio v. Reyes. In these cases, we explained that the interpretation or construction of a law by courts constitutes a part of the law as of the date the statute is enacted. It is only when a prior ruling of this Court is overruled, and a different view is adopted, that the new doctrine may have to be applied prospectively in favor of parties who have relied on the old doctrine and have acted in good faith, in accordance therewith under the familiar rule of lex prospicit, non respicit. II. On liberalizing the required proof for the declaration of nullity of marriage under Article 36. Now, petitioner wants to know if we have abandoned the Molina doctrine. We have not. By the very nature of cases involving the application of Article 36, it is logical and understandable to give weight to the expert opinions furnished by psychologists regarding the psychological temperament of parties in order to determine the root cause, juridical antecedence, gravity and incurability of the psychological incapacity. However, such opinions, while highly advisable, are not conditions sine qua non in granting petitions for declaration of nullity of marriage. At best, courts must treat such opinions as decisive but not indispensable evidence in determining the merits of a given case. In fact, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical or psychological examination of the person concerned need not be resorted to. It was for this reason that we found it necessary to emphasize in Ngo Te that each case involving the application of Article 36 must be treated distinctly and judged not on the basis of a priori assumptions, predilections or generalizations but according to its own attendant facts. Courts should interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals. III. On petitioners psychological incapacity. respondent failed to prove that petitioners defects were present at the time of the celebration of their marriage. She merely cited that prior to their marriage, she already knew that petitioner would occasionally drink and gamble with his friends; but such statement, by itself, is insufficient to prove any pre-existing psychological defect on the part of her husband. Neither did the evidence adduced prove such defects to be incurable. *** The intendment of the law has been to confine the application of Article 36 to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. The psychological illness that must have afflicted a party at the inception of the marriage should be a malady so grave and permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond he or she is about to assume The evaluation of the two psychiatrists should have been the decisive evidence in determining whether to declare the marriage between the parties null and void. Sadly, however, we are not convinced that the opinions provided by these experts strengthened respondents allegation of psychological incapacity. The two experts provided diametrically contradicting psychological evaluations: Dr. Oate testified that petitioners behavior is a positive indication of a personality disorder, while Dr. Obra maintained that there is nothing wrong with petitioners personality. Moreover, there appears to be greater weight in Dr. Obras opinion because, aside from analyzing the transcript of

Benjamins deposition similar to what Dr. Oate did, Dr. Obra also took into consideration the psychological evaluation report furnished by another psychiatrist in South Africa who personally examined Benjamin, as well as his (Dr. Obras) personal interview with Benjamins brothers. G.R. No. L-68470 October 8, 1985 ALICE REYES VAN DORN, petitioner, vs. HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\ In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied her Motion to Dismiss said case, and her Motion for Reconsideration of the Dismissal Order, respectively. The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage, they established their residence in the Philippines; that they begot two children born on April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn. Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered to render an accounting of that business, and that private respondent be declared with right to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no community property" as of June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground that the property involved is located in the Philippines so that the Divorce Decree has no bearing in the case. The denial is now the subject of this certiorari proceeding. Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal. certiorari and Prohibition are neither the remedies to question the propriety of an interlocutory order of the trial Court. However, when a grave abuse of discretion was patently committed, or the lower Court acted capriciously and whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its supervisory authority and to correct the error committed which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie since it would be useless and a waste of time to go ahead with the proceedings. 2 Weconsider the petition filed in this case within the exception, and we have given it due course. For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the Philippines. Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property because of the representation he made in the divorce proceedings before the American Court that they had no community of property; that the Galleon Shop was not established through conjugal funds, and that respondent's claim is barred by prior judgment. For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a foreign Court cannot, especially if the same is contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction. For the resolution of this case, it is not necessary to determine whether the property relations between petitioner and private respondent, after their marriage, were upon absolute or relative community property, upon complete separation of property, or upon any other regime. The pivotal fact in this case is the Nevada divorce of the parties. The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who appeared in person before the Court during the trial of the case. It also obtained jurisdiction over private respondent who, giving his address as No. 381 Bush Street, San Francisco, California, authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground of incompatibility in the understanding that there were neither community property nor community obligations. 3 As explicitly stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings: xxx xxx xxx You are hereby authorized to accept service of Summons, to file an Answer, appear on my behalf and do an things necessary and proper to represent me, without further contesting, subject to the following: 1. That my spouse seeks a divorce on the ground of incompatibility. 2. That there is no community of property to be adjudicated by the Court. 3. 'I'hat there are no community obligations to be adjudicated by the court.

xxx xxx xxx 4 There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy. It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public police and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. 6 In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799: The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty. that the guilty party shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage. Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country's Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served. WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint filed in Civil Case No. 1075-P of his Court. Without costs. SO ORDERED. G.R. No. 138322 October 2, 2001

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A. RECIO, respondents. PANGANIBAN, J.: A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgment; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence. The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999 Decision1 and the March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026-AF. The assailed Decision disposed as follows: "WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now remarry under existing and applicable laws to any and/or both parties."3 The assailed Order denied reconsideration of the above-quoted Decision. The Facts Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1, 1987.4 They lived together as husband and wife in Australia. On May 18, 1989,5 a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court. On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian Citizenship" issued by the Australian government.6 Petitioner a Filipina and respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.7 In their application for a marriage license, respondent was declared as "single" and "Filipino."8 Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their Statutory Declarations secured in

Australia.9 On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage10 in the court a quo, on the ground of bigamy respondent allegedly had a prior subsisting marriage at the time he married her onG.R. No. 138322 October 2, 2001

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

vs.

REDERICK A. RECIO, respondents.

PANGANIBAN, J.:

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

The Case

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

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

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

The Facts

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

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

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

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of 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 and its subsequent dissolution.11 He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree obtained in Australian in 1989;12 thus, he was legally capacitated to marry petitioner in 1994.1wphi1.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

Issues

Petitioner submits the following issues for our consideration:

"I

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

"2

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

"3

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

"4

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

"5

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

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

The Court's Ruling

The Petition is partly meritorious.

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 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.37 Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia.38

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

Burden of Proving Australian Law

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

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

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

Second Issue:

Respondent's Legal Capacity to Remarry

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

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

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

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

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

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

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

"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 RederiG.R. No. 138322 October 2, 2001

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

vs.

REDERICK A. RECIO, respondents.

PANGANIBAN, J.:

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

The Case

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

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

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

The Facts

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

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

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

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of 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 and its subsequent dissolution.11 He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree obtained in Australian in 1989;12 thus, he was legally capacitated to marry petitioner in 1994.1wphi1.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

Issues

Petitioner submits the following issues for our consideration:

"I

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

"2

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

"3

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

"4

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

"5

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

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

The Court's Ruling

The Petition is partly meritorious.

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 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.37 Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia.38

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

Burden of Proving Australian Law

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

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

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

Second Issue:

Respondent's Legal Capacity to Remarry

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

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

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

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

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

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

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

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

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

We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive evidence as to his civil status based on Section 48, Rule 3949 of the Rules of Court, for the simple reason that no proof has been presented on the legal effects of

the divorce decree obtained under Australian laws.

Significance of the Certificate of Legal Capacity

Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry.

We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.50

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

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

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

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

SO ORDERED.ck A. Recto;55 (2) for respondent: (Exhibit "1" Amended Answer;56 (b) Exhibit "S" Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia;57 (c) Exhibit "3" Certificate of Australian Citizenship of Rederick A. Recto;58 (d) Exhibit "4" Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate;59 and Exhibit "5" Statutory Declaration of the Legal Separation Between Rederick A. Recto and Grace J. Garcia Recio since October 22, 1995.60

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

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

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

SO ORDERED. 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 Issues Petitioner submits the following issues for our consideration: "I The trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him to contract a second marriage with the petitioner. "2 The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity to marry constitutes absence of a substantial requisite voiding the petitioner' marriage to the respondent. "3 The trial court seriously erred in the application of Art. 26 of the Family Code in this case. "4 The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in this case. "5 The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to remarry, without first securing a recognition of the judgment granting the divorce decree before our courts."19 The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these two, there is no more necessity to take up the rest. The Court's Ruling The Petition is partly meritorious. 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 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. G.R. No. 138322 October 2, 2001

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

vs.

REDERICK A. RECIO, respondents.

PANGANIBAN, J.:

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

The Case

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

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

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

The Facts

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

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

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

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of 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 and its subsequent dissolution.11 He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree obtained in Australian in 1989;12 thus, he was legally capacitated to marry petitioner in 1994.1wphi1.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

Issues

Petitioner submits the following issues for our consideration:

"I

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

"2

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

"3

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

"4

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

"5

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

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

The Court's Ruling

The Petition is partly meritorious.

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 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.37 Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia.38

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

Burden of Proving Australian Law

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

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

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

Second Issue:

Respondent's Legal Capacity to Remarry

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

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

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

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

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

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

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

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

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

We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive evidence as to his civil status based on Section 48, Rule 3949 of the Rules of Court, for the simple reason that no proof has been presented on the legal effects of the divorce decree obtained under Australian laws.

Significance of the Certificate of Legal Capacity

Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry.

We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.50

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

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

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

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

SO ORDERED.Second Issue: Respondent's Legal Capacity to Remarry Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to marry her in 1994. Hence, she concludes that their marriage was void ab initio. Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately established his legal capacity to marry under Australian law. Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves the bond in full force.45 There is no showing in the case at bar which type of divorce was procured by respondent. Respondent presented a decree nisi or an interlocutory decree a conditional or provisional judgment of divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of the prescribed period during which no reconciliation is effected.46 Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be prohibited from remarrying again. The court may allow a remarriage only after proof of good behavior.47 On its face, the herein Australian divorce decree contains a restriction that reads: "1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has died) commits the offence of bigamy."48 This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did not absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian divorce ipso facto restored respondent's capacity to remarry despite the paucity of evidence on this matter. We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive evidence as to his civil status based on Section 48, Rule 3949 of the Rules of Court, for the simple reason that no proof has been presented on the legal effects of the divorce decree obtained under Australian laws. Significance of the Certificate of Legal Capacity Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry. We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.50 As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry petitioner. A review of the records before this Court shows that only the following exhibits were presented before the lower court: (1) for petitioner: (a) Exhibit "A" Complaint;51 (b) Exhibit "B" Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;52(c) Exhibit "C" Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila;53 (d) Exhibit "D" Office of the City Registrar of Cabanatuan City Certification that no information of annulment between Rederick A. Recto and Editha D. Samson was in its records;54 and (e) Exhibit "E" Certificate of Australian Citizenship of Rederick A. Recto;55 (2) for respondent: (Exhibit "1" Amended Answer;56 (b) Exhibit "S" Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia;57 (c) Exhibit "3" Certificate of Australian Citizenship of Rederick A. Recto;58 (d) Exhibit "4" Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate;59 and Exhibit "5" Statutory Declaration of the Legal Separation Between Rederick A. Recto and Grace J. Garcia Recio since October 22, 1995.60 Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioner's contention that the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very least, to prove his legal capacity to contract the second marriage. Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive evidence, if any, which show petitioner's legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties' marriage on the ground of bigamy, there being already in evidence two existing marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.

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