EDELINA T. ANDO v.
DEPARTMENT OF FOREIGN AFFAIRS HELD:
G.R. No. 195432; August 27, 2014
FACTS:
Petitioner married Yuichiro Kobayashi, a Japanese National. After one year, Yuichiro
Kobayashi obtained and was granted a divorce in Japan. Said Divorce Certificate was
duly registered with the Office of the Civil Registry of Manila. Believing in good faith
that said divorce capacitated her to remarry and that by such she reverted to her
single status, petitioner married Masatomi Y. Ando. In the meantime, Yuichiro
Kobayashi married Ryo Miken.
Recently, petitioner applied for the renewal of her Philippine passport to indicate her
surname with her husband Masatomi Y. Ando but she was told at the Department of
Foreign Affairs that the same cannot be issued to her until she can prove by
competent court decision that her marriage with her said husband Masatomi Y. Ando
is valid until otherwise declared.
Prescinding from the foregoing, petitioner filed with the RTC a Petition for Declaratory
Relief praying that her marriage with her said husband Masatomi Y. Ando must be
honored, considered and declared valid, until otherwise declared by a competent
court. Consequently, and until then, petitioner therefore is and must be declared
entitled to the issuance of a Philippine passport under the name ‘Edelina Ando y
Tungol.’
RTC dismissed the Petition for want of cause and action for not complying with the
requirements set forth in Art. 13 of the Family Code – that is obtaining a judicial
recognition of the foreign decree of absolute divorce in our country, thus not entitled
to the reliefs prayed for. Petitioner’s allegation that since no judicial declaration of
nullity of her marriage with Ando was rendered does not make the same valid because
such declaration under Article 40 of the Family Code is applicable only in case of re-
marriage. Petitioner moved for Reconsideration but was denied. Hence, this Petition
for Review.
ISSUES:
1. Whether or not a Petition for Declaratory Relief is the proper remedy to compel
the DFA to issue a new passport to petitioner under her second husband’s name.
2. Whether or not petitioner’s second marriage is valid.
1. With respect to her prayer to compel the DFA to issue her passport, petitioner
incorrectly filed a petition for declaratory relief before the RTC. She should have
first appealed before the Secretary of Foreign Affairs, since her ultimate entreaty
was to question the DFA’s refusal to issue a passport to her under her second
husband’s name. The IRR of R.A. 8239 provides that before a married woman may
obtain a passport under the name of her spouse, she needed to present the
following: (1) the original or certified true copy of her marriage contract and one
photocopy thereof; (2) a Certificate of Attendance in a Guidance and Counseling
Seminar, if applicable; and (3) a certified true copy of the Divorce Decree duly
authenticated by the Philippine Embassy or consular post that has jurisdiction
over the place where the divorce is obtained or by the concerned foreign
diplomatic or consular mission in the Philippines.
In this case, petitioner was allegedly told that she would not be issued a Philippine
passport under her second husband’s name. Should her application for a passport
be denied, the remedies available to her are provided in Section 9 of R.A. 8239,
which reads thus: “Any person who feels aggrieved as a result of the application
of this Act of the implementing rules and regulations issued by the Secretary shall
have the right to appeal to the Secretary of Foreign Affairs from whose decision
judicial review may be had to the Courts in due course.” She should have filed an
appeal with the Secretary of the DFA in the event of the denial of her application
for a passport, after having complied with the provisions of R.A. 8239.
2. With respect to her prayer for the recognition of her second marriage as valid,
petitioner should have filed, instead, a petition for the judicial recognition of her
foreign divorce from her first husband.
While it has been ruled that a petition for the authority to remarry filed before a
trial court actually constitutes a petition for declaratory relief, we are still unable
to grant the prayer of petitioner. As held by the RTC, there appears to be
insufficient proof or evidence presented on record of both the national law of her
first husband, Kobayashi, and of the validity of the divorce decree under that
national law. Hence, any declaration as to the validity of the divorce can only be
made upon her complete submission of evidence proving the divorce decree and
the national law of her alien spouse, in an action instituted in the proper forum.
[G.R. No. 137110. August 1, 2000]
VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner, vs.
CONSUELO TAN, respondent.
FACTS:
Dr. Vincent Mercado and complainant Ma. Consuelo Tan got married on June 27,
1991 .a Marriage Contract was duly executed and signed by the parties. As entered
in said document, the status of accused was ‘single’. There is no dispute either that
at the time of the celebration of the wedding with complainant, accused was
actually a married man, having been in lawful wedlock with Ma. Thelma Oliva in a
marriage ceremony solemnized on April 10, 1976 by Judge Leonardo B. Cañares, CFI-
Br. XIV, Cebu City per Marriage Certificate issued in connection therewith, which
matrimony was further blessed by Rev. Father Arthur Baur on October 10, 1976 in
religious rites at the Sacred Heart Church, Cebu City. In the same manner, the civil
marriage between accused and complainant was confirmed in a church ceremony on
June 29, 1991 officiated by Msgr. Victorino A. Rivas, Judicial Vicar, Diocese of
Bacolod City. Both marriages were consummated when out of the first consortium,
Ma. Thelma Oliva bore accused two children, while a child, Vincent Paul, Jr. was
sired by accused with complainant Ma. Consuelo Tan. On October 5, 1992, a
complaint for bigamy was filed by the respondent. After more than a month after
the bigamy case was lodged, accused filed an action for Declaration of Nullity of
Marriage against Ma. Thelma V. Oliva. On May 6, 1993 the marriage between
Vincent G. Mercado and Ma. Thelma V. Oliva was declared null and void.
HELD:
what constitutes the crime of bigamy is the act of any person who shall contract a
second subsequent marriage ‘before’ the former marriage has been legally
dissolved.”[4]
When the Information was filed on January 22, 1993, all the elements of bigamy
were present. It is undisputed that petitioner married Thelma G. Oliva on April 10,
1976 in Cebu City. While that marriage was still subsisting, he contracted a second
marriage, this time with Respondent Ma. Consuelo Tan who subsequently filed the
Complaint for bigamy.
His contention is without merit. The subsequent judicial declaration of the nullity of
the first marriage he obtained was immaterial. To repeat, the crime had already
been consummated by then. Moreover, his view effectively encourages delay in the
prosecution of bigamy cases; an accused could simply file a petition to declare his
previous marriage void and invoke the pendency of that action as a prejudicial
question in the criminal case. We cannot allow that.

The accused raised the Prejudicail question. Petitioner contended that he obtained
a judicial declaration of nullity of his first marriage under Article 36 of the Family
Code, thereby rendering it void ab initio. Unlike voidable marriages which are
considered valid until set aside by a competent court, he argues that a void marriage
is deemed never to have taken place at all.[8] Thus, he concludes that there is no first
marriage to speak of.

ISSUE:

W/N there is Prejudicial question in the instant case given the fact that the first
marriage is null and void