GARCIA-RECIO - v - RECIO

(THIRD DIVISION, G.R. No. 138322, October 2, 2001, PANGANIBAN, J.)

Doctrine: 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.
Facts:
1.       Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, in 1987. They lived together as husband and wife in Australia.
2.       In 1989, a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court. [1st Marriage]
3.       In 1992, respondent became an Australian citizen.
4.       Petitioner – a Filipina – and respondent were married in 1994 in Cabanatuan City. In their application for a marriage license, respondent was declared as "single" and "Filipino."
5.       Starting 1995, petitioner and respondent lived separately without prior judicial dissolution of their marriage.
6.       In 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage in the court a quo, on the ground of bigamy – respondent allegedly had a prior subsisting marriage at the time he married her in 1994; that she learned of respondent's marriage to Editha Samson only in 1997.
7.       In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage and its subsequent dissolution. He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree obtained in Australian in 1989; thus, he was legally capacitated to marry petitioner in 1994.
8.       In 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. [2nd Marriage]
9.       Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no cause of action.
10.    The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and recognized in the Philippines.

TWO MAIN ISSUE:
(1)     whether the divorce between respondent and Editha Samson was proven.
(2)     whether respondent was proven to be legally capacitated to marry petitioner.

Held: REMANDED 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.

Sub-Issue No. 1: WON 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. Held: NO.
-          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. 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.
-          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." 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.

Sub-Issue No. 2: WON 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. Held: Yes.
-          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. There is absolutely no evidence that proves respondent's legal capacity to marry petitioner. We cannot conclude that respondent, who was then a naturalized Australian citizen, was legally capacitated to marry petitioner in 1994.

Sub-Issue No. 3: WON the trial court seriously erred in the application of Art. 26 (the lex loci celebrationist) of the Family Code in this case. Held: Yes.
-          Philippine law does not provide for absolute divorce; hence, our courts cannot grant it. A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 1522 and 1723 of the Civil Code. 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." 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. 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. Presentation solely of the divorce decree is insufficient.
-          Under Sections 24 and 25 of Rule 132, 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 attested 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. The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian family court. However, appearance is not sufficient; compliance with the aforemetioned rules on evidence must be demonstrated.
-          When the divorce decree of 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. Petitioner's failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia.

Sub-Issue no. 4: WON 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. Held: No.
-          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.
-          Naturalization is the legal act of adopting an alien and clothing him with the political and civil rights belonging to a citizen. 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.

Sub-Issue no. 5: WON 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." Held: Yes.
-          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." It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. 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. The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.
-          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 1987 and the other, in Cabanatuan City dated 1994.

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