RECTO VS HARDEN

facts of the case

-
Sometime in July 1941, Mrs. Esperanza Harden (Mrs. Harden) and Claro Recto executed a contract of
professional services (Contract of Service), the contents of which are summarized below:
She engaged the services of Atty. Recto for the purpose of securing an increase in the amount of
her support from her husband Mr. (James) Harden and for the purpose of protecting and
preserving her right in the properties of the conjugal partnership, in contemplation of a divorce
suit which she intended to file in the Court of California
Since she isn’t currently able to pay Recto’s retainer fee she agrees to pay Atty. Recto
25% of whatever increase in support she will get from Mr. (James) Harden
Attorney’s fees charged as expenses of litigation 20% of her share and participation which he may receive in the
funds and properties of the
conjugal partnership
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In compliance with the contract, Atty. Recto commenced a case in the CFI Manila entitled “Esperanza
Harden v Fred Harden and Jose Salumbides” wherein he prayed that
Mrs. Harden be given the exclusive administration of all businesses and property of the
conjugal partnership OR that defendants inform Mrs. Harden of everything pertaining to the
businesses and property of the conjugal partnership
That Mr. Harden account and return to the PH sums of money he withdrew and sent to HK
oThat transfers of shares of stock in the name of 3rd persons and the administrator Salumbides be
cancelled and returned to the conjugal partnership
That a writ of preliminary injunction be issued against the defendant to prevent them from
disposing of the property and businesses of the conjugal partnership
A writ of preliminary injunction was thus issued by the CFI. Such injunction was modified upon an
agreement of the parties to put up a separate bank account in the Chartered Bank of India, Australia
and China. The funds of the conjugal partnership, as well as those that will be ordered returned to the
conjugal partnership will then be transferred to such bank account.

The Japs invaded the PH. After the liberation, records of the case were destroyed. Atty. Recto then
asked that the records be reconstituted. On October 31 1949, the CFI rendered a decision
Declaring the value of the conjugal partnership at around P4Million.
Ordering that a conjugal lien be annotated in the TCT of a parcel of land in QC, of certain shares
of stock, which will say that any alienation of Mr. Harden will be invalid for lack of consent of Mrs.
Harden
Increasing the allowance of both Mr. and Mrs. Harden to P2500 from the previous P1500/month
Ordering Mr. (James) Harden to inform Mrs. Harden of all property and businesses belonging to
the conjugal partnership
That a receiver be appointed to prevent Mr. Harden and Salumbides from disposing of the
property despite the writ of preliminary injunction
-Of course Mr. Harden and Salumbides appealed the case. While the appeal was pending, Atty.
Recto filed a manifestation and motion stating that Mrs. Harden suddenly
instructed him to discontinue all proceedings relative to the case above as well
as all judgment obtained, since she executed certain instruments with Mr.
Harden:
oA settlement agreement between Mister and Missus for the sum of P5,000
oThat a trust fund was created by Mr. Harden from which a monthly pension of P500/month would
be taken
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According to Atty. Recto, such documents were executed merely to defeat his claim as attorney’s
fees.
Thus he prayed in his motion that:
oThe receiver appointed continue his functions
oHe be declared entitled to the sum of P400,000 a his fees for services rendered
oThat the cases above continue since the receivership is based on these cases, and that such cases are
important to safeguard his attorney’ fees
-
A commissioner was appointed who reported that Atty. Recto was entitled to 20% of Mrs. Harden’s
share of the conjugal partnership considering the time and effort the Attorney has given to her case.
CFI adopted the finding of the commissioner and found Atty. Recto entitled to the sum of P384,110.
Thus both Mr. and Mrs. Harden appealed such order to the SC.
-Their arguments are
That Mrs. Harden cannot bind the conjugal partnership by the said Contract of Service without Mr.
Harden’s consent
o
That Article 1491 of the CC prohibits contingent fees
[TOPIC FOR PRIL] That the Contract of Service has for its purpose securing a decree of divorce
allegedly in violation of Articles 1305, 1352, and 1409 of CC.
Terms of the said Contract of Service are harsh, inequitable and oppressive
issue
Whether Atty. Recto was entitled to P386K YES
ratio
1st Contention: The Contract of Service does not seek to bind the conjugal partnership
By virtue of the Contract of Service, Mrs. Harden merely bound herself to pay, by way of contingent fees,
20% of her share in said partnership. The contract neither gives nor purports to give to Atty. Recto any
right (personal or real) to her aforesaid share in the partnership. The amount of her share is simply
made the basis of computation of Atty. Recto’s fees

2nd Contention: It has already been held that contingent fees are not prohibited in the Philippines and are impliedly
sanctioned by the Philippines’ Cannon of Professional Ethics

Moreover, no proof was presented that Atty. Recto wanted to take unfair or unreasonable advantage of Mrs. Harden

3rd Contention: They are both US citizens, so divorce is allowed-1st off, the contract didn’t say that Atty. Recto will
procure a divorce or facilitate the procurement of a divorce. The Contract of Service merely sought to protect Mrs.
Harden’s interest in the conjugal partnership, during the pendency of a divorce suit she intends to file in the US.-
Moreover, since both Mr. and Mrs. Harden are admittedly US citizens, their status and dissolution of their marriage
by the laws of the US which sanctions divorce. [pursuant to Article 9 of the civil code of Spain (which was in force in
the PH at the time the contract of service was executed) and Article 15 CC)-Thus the contract was not contrary to
law, morals, good customs, public order or public policy

4th Contention: One who ask for equity must come with clean hands as well-In this case, Atty. Recto has won for Mr.
Harden P2Million since the conjugal partnership was found to value around P4M-After securing such a judgment, it
was inconceivable then for Mrs. Harden to waive such judgment for only $5,000 and $20,000 to be paid in
installments. Records also show that the situation between Mr. and Mrs. Harden has worsened since Mr. Harden
already filed a divorce suit in Joysi (New Jersey) allegedly for repeated acts of infidelity by Mrs. Harden-Considering
the services rendered and judgment obtained by Atty. Recto for Mrs. Harden, it isn’t fair to award to him 20% of
her share in the conjugal partnership-Appellants then argue that it was impossible for the lower court to determine
an amount of P386K since the amount of Mr. Harden’s share can only be effected until the dissolution of the
marriagebetween Mr. and Mrs. Harden. The SC countered that considering the agreements entered into between
Mr.and Mrs. Harden after the judgment in the CFI (which were made to defeat Atty. Recto’s claim for attorney’s
fees), Mrs. Harden cannot now avail of such conditions.
ANTONIO GELUZ, petitioner,
vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.

G.R. No. L-16439

July 20, 1961

FACTS:

In 1950, before Nita Villanueva and Oscar Lazo were married, Villanueva became pregnant. To conceal her
pregnancy from her parents and upon her aunt’s advice, she had an abortion by Antonio Geluz, a physician. After
Villanueva and Lazo got married, she became pregnant for the second time. As she was an employee of the
Commission on Elections and found it inconvenient, she had her second abortion by Geluz in October 1953. In less
than two years, she again became pregnant. On 21 February 1955, Villanueva went to the clinic of Geluz in Manila
accompanied by her sister and her niece. Unknown to Lazo and without his consent, his wife had an abortion for the
third time, an abortion of a two-month old fetus. Villanueva paid Geluz fifty pesos. At that time, Lazo was in Cagayan
campaigning for his election to the provincial board.

On the basis of the last abortion, Lazo instituted an action in the Court of First Instance of Manila against Geluz. The
trial court ordered Geluz to pay Lazo damages, attorney’s fees and costs of the suit. On appeal, the Court of Appeals
sustained the decision of the trial court. Hence, Geluz filed a petition for certiorari to the Supreme Court.

ISSUE:

Did the unborn child acquire civil personality?

HELD:

No, the unborn child did not acquire civil personality.

Article 40 of the Civil Code expressly limits the provisional personality by imposing the condition that the child should
be subsequently born alive: “provided it be born later with the condition specified in the following article.” In this
case, there is no dispute that the child was dead when separated from its mother’s womb.

Since an action for pecuniary damages on account of personal injury of death pertains primarily to the one injured, it
is easy to see that if no action for such damages could be instituted on behalf of the unborn child on account of the
injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact, even if a cause of
action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death since no
transmission to anyone can take place from on that lacked juridical personality (or juridical capacity as distinguished
from capacity to act).

This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those
inflicted directly upon them, as distinguished from the injury or violation of the rights of the deceased child, his right
to life and physical integrity. Because the parents cannot expect either help, support or services from an unborn
child, they would normally be limited to moral damages for the illegal arrest of the normal development of the spes
hominis that was the foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of
their parental expectations as well as to exemplary damages, if the circumstances should warrant them.

In this case, however, both the trial court and the Court of Appeals have not found any basis for an award of moral
damages, evidently because the appellee’s indifference to the previous abortions of his wife, also caused by the
appellant herein, clearly indicates that he was unconcerned with the frustration of his parental hopes and affections.
Even after learning of the third abortion, the appellee does not seem to have taken interest in the administrative and
criminal cases against the appellant. His only concern appears to have been directed at obtaining from the doctor a
large money payment.

Hence, the decision appealed from is reversed, and the complaint ordered dismissed.

ANGEL T. LIMJOCO, petitioner,

vs.

INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent.

G.R. No. L-770

April 27, 1948

FACTS:

Pedro O. Fragante applied for a certificate of public convenience to install, maintain and operate an ice plant in San
Juan, Rizal. The Public Service Commission approved the application and held that evidence showed that the public
interest and convenience will be promoted in a proper and suitable manner by the authorization of the operation of
another ice-plant, that Pedro Fragante was a Filipino Citizen at the time of his death and that his intestate estate is
financially capable of maintaining the proposed service. The commission ordered that a certificate of public
convenience be issued to the Intestate Estate of the deceased Pedro Fragante.

Petitioner contends that the commission erred in allowing the substitution of the legal representative of the estate
of Pedro O. Fragante for the latter as party applicant, and in subsequently granting to said estate the certificate
applied for, which is said to be in contravention of law.

ISSUE:

Whether the estate of Pedro O. Fragrante is a “person”.

HELD:
Yes. The SC cited the SC of Indiana which held that “The estate of the decedent is a person in legal contemplation.
The word “person” in its legal signification, is a generic term, and includes artificial as well as natural persons.” It said
in another work that ‘persons are of two kinds: natural and artificial. A natural person is a human being. Artificial
persons include (1) a collection or succession of natural persons forming a corporation;; (2) a collection of property
to which the law attributes the capacity of having rights and duties. The latter class of artificial persons is recognized
only to a limited extent in our law.”

Under the present legal system, such rights and obligations as survive after death have to be exercised and fulfilled
only by the estate of the deceased. And if the same legal fiction were not indulged, there would be no juridical basis
for the estate, represented by the executor or administrator, to exercise those rights and to fulfill those obligations
of the deceased.

The underlying reason for the legal fiction by which, for certain purposes, the estate of the deceased person is
considered a “person” is the avoidance of injustice or prejudice resulting from the impossibility of exercising such
legal rights and fulfilling such legal obligations of the decedent as survived after his death unless the fiction is
indulged.

Moreover, the citizenship of Fragrante is also extended. The fiction of such extension of his citizenship is grounded
upon the same principle, and motivated by the same reason, as the fiction of the extension of personality. The fiction
is made necessary to avoid the injustice of subjecting his estate, creditors and heirs, solely by reason of his death to
the loss of the investment amounting to P35,000, which he has already made in the ice plant, not counting the other
expenses occasioned by the instant proceeding, from the Public Service Commission of this Court.

GOVERNMENT VS. FRANK

MARCH 28, 2013 ~ VBDIAZ

THE GOVT OF THE PHILIPPINE ISLANDS vs. FRANK

G. R. No. 2935

March 23, 1909

FACTS: In 1903, in the city of Chicago, Illinois, Frank entered into a contract for a period of 2 years with the Plaintiff,
by which Frank was to receive a salary as a stenographer in the service of the said Plaintiff, and in addition thereto
was to be paid in advance the expenses incurred in traveling from the said city of Chicago to Manila, and one-half
salary during said period of travel.

Said contract contained a provision that in case of a violation of its terms on the part of Frank, he should become
liable to the Plaintiff for the amount expended by the Government by way of expenses incurred in traveling from
Chicago to Manila and the one-half salary paid during such period.

Frank entered upon the performance of his contract and was paid half-salary from the date until the date of his
arrival in the Philippine Islands.

Thereafter, Frank left the service of the Plaintiff and refused to make a further compliance with the terms of the
contract.
The Plaintiff commenced an action in the CFI-Manila to recover from Frank the sum of money, which amount the
Plaintiff claimed had been paid to Frank as expenses incurred in traveling from Chicago to Manila, and as half-salary
for the period consumed in travel.

It was expressly agreed between the parties to said contract that Laws No. 80 and No. 224 should constitute a part of
said contract.

The Defendant filed a general denial and a special defense, alleging in his special defense that

(1) the Government of the Philippine Islands had amended Laws No. 80 and No. 224 and had thereby materially
altered the said contract, and also that

(2) he was a minor at the time the contract was entered into and was therefore not responsible under the law.

the lower court rendered a judgment against Frank and in favor of the Plaintiff for the sum of 265. 90 dollars

ISSUE:

1. Did the amendment of the laws altered the tenor of the contract entered into between Plaintiff and Defendant?

2. Can the defendant allege minority/infancy?

HELD: the judgment of the lower court is affirmed

1. NO; It may be said that the mere fact that the legislative department of the Government of the Philippine Islands
had amended said Acts No. 80 and No. 224 by Acts No. 643 and No. 1040 did not have the effect of changing the
terms of the contract made between the Plaintiff and the Defendant. The legislative department of the Government
is expressly prohibited by section 5 of the Act of Congress of 1902 from altering or changing the terms of a contract.
The right which the Defendant had acquired by virtue of Acts No. 80 and No. 224 had not been changed in any
respect by the fact that said laws had been amended. These acts, constituting the terms of the contract, still
constituted a part of said contract and were enforceable in favor of the Defendant.

2. NO; The Defendant alleged in his special defense that he was a minor and therefore the contract could not be
enforced against him. The record discloses that, at the time the contract was entered into in the State of Illinois, he
was an adult under the laws of that State and had full authority to contract. Frank claims that, by reason of the fact
that, under that laws of the Philippine Islands at the time the contract was made, made persons in said Islands did
not reach their majority until they had attained the age of 23 years, he was not liable under said contract,
contending that the laws of the Philippine Islands governed.

It is not disputed — upon the contrary the fact is admitted — that at the time and place of the making of the
contract in question the Defendant had full capacity to make the same. No rule is better settled in law than that
matters bearing upon the execution, interpretation and validity of a contract are determined b the law of the place
where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place
of performance. Matters respecting a remedy, such as the bringing of suit, admissibility of evidence, and statutes of
limitations, depend upon the law of the place where the suit is brought.
Mora Adong vs Cheong Seng GeeG.R. No. 18081, March 3, 1922

FACTS:

Cheong Boo is a native of China who died intestate in Zamboanga and left property worth P100,000. The estate of
the deceased was claimed by herein petitioner, Mora Adong, alleging that she had been lawfully married to Cheong
Boo in 1896 in Basilan, and respondent, Cheong Seng Gee, alleging that he was a legitimate child by a marriage
contracted by Cheong Boo and Tan Dit in China in 1895. The conflicting claims were ventilated to CFI Zamboanga
where the trial judge ruled that Cheong Seng Gee failed to sufficiently prove and establish the Chinese marriage with
a matrimonial letter presented as evidence. However, because Cheong Seng Gee had been admitted to the
Philippines as the son of Cheong Boo, he should share in the estate as a natural child. With regards to the allegations
of Mora Adong, the trial court ruled that the marriage between Adong and Cheong Boo had been adequately proved
but it cannot be recognized under the Philippine laws, hence cannot be held valid, but the daughters
Payang and Rosalia would inherit as natural children

ISSUES:

1. Is a marriage contracted in China and proven mainly by an alleged matrimonial letter, valid in the Philippines?

2. Are the marriage performed in the Philippines according to the rites of the Mohammedan religion valid?
RULING:1. No. The Chinese marriage alleged by Cheong Seng Gee cannot be in the Philippines. Section IV of the
Marriage Law (General Order No. 68) provides that "All marriages contracted without these Islands, which would be
valid by the laws of the country in which the same were contracted, are valid in these Islands." To establish a valid
foreign marriage pursuant to this comity provision, it is first necessary to prove before the courts of the Islands the
existence of the foreign law as a question of fact, and it is then necessary to prove the alleged foreign marriage by
convincing evidence.

In the case of Sy Joc Lieng vs Encarnacion, the courts of the Philippines and the Supreme Courtof the United States
were called upon to decide, as to the conflicting claims to the estate of a Chinese merchant, between the
descendants of an alleged Chinese marriage and the descendants of an alleged Philippine marriage. The Supreme
Courts of the Philippine Islands and the United States united in holding that the Chinese marriage was not
adequately proved. The legal rule was stated by the United States Supreme Court to be this: A Philippine marriage,
followed by forty years of uninterrupted marital life, should not be impugned and discredited, after the death of the
husband and administration of his estate, though an alleged prior Chinese marriage, "save upon proof so clear,
strong, and unequivocal as to produce a moral conviction of the existence of such impediment."

In the case at bar there is no competent testimony as to what the laws of China in the Province of Amoy concerning
marriage were in 1895. As in the Encarnacion case, there is lacking proof so clear, strong, and unequivocal as to
produce a moral conviction of the existence of the alleged prior Chinese marriage. Hence, it cannot be valid under
the Philippine law and the Supreme Court, allowed CheongSeng Gee the testamentary rights of an acknowledged
natural child

2. Yes. The marriage contracted by Mora Adong and Cheong Boo according to the rites of Mohammedan religion is
valid.

Section V of the Marriage Law provides that "Marriage may be solemnized by either a judge of any court inferior to
the Supreme Court, justice of the peace, or priest or minister of the Gospel of any denomination . . .”.) A
Mohammedan Iman is a "priest or minister of the Gospel," and Mohammedanism isa "denomination," within the
meaning of the Marriage Law.
Marriage Law, No. VI, also provides that "No particular form for the ceremony of marriage isrequired, but the parties
must declare, in the presence of the person solemnizing the marriage, that they

take each other as husband and wife." The law is quite correct in affirming that no precise ceremonial is
indispensable requisite for the creation of the marriage contract. The two essentials of a valid marriage are capacity
and consent. The latter element may be inferred from the ceremony performed, the acts of the parties, and habit or
repute. In this instance, there is no question of capacity. Nor do we think there can exist any doubt as to consent.
While it is true that during the Mohammedan ceremony, the remarks of the priest were addressed more to the
elders than to the participants, it is likewise true that the China man and the Mora woman did in fact take each other
to be husband and wife and did thereafter live together as husband and wife

The retrospective provisions of the Philippine Marriage Law undoubtedly were inspired by the governmental policy
in the United States, with regard to the marriages of the Indians, the Quakers, and the Mormons. The basis of human
society throughout the civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but,
it is a new relation, an institution in the maintenance of which the public is deeply interested. Consequently, every
intendment of the law leans toward legalizing matrimony. The Court found that the Mohammedan marriage to be
proved and to be valid, thus giving to the widow and the legitimate children of this union the rights accruing to them
under the law. Judgment is reversed in part, and the case shall be returned to the lower court for a partition of the
property in accordance with this decision

People v Dumpo

Facts:

Moro Hassan and Mora Dumpo have been legally married according to the rites and practices of the Mohammedan
religion. Without the marriage being dissolved, it has been alleged that Dumpo contracted another marriage with
Moro Sabdapal after which they lived together as husband and wife.

Dumpo was prosecuted for bigamy in the CFI Zamboanga. Dumpo appealed.

It has been established by the defense, without the prosecution having presented objection or evidence to the
contrary, that the alleged second marriage was null and void according to Mohammedan rites on the ground that
her father (Moro Jalmani) had not given his consent.

Issue: Whether or not Dumpo was guilty of bigamy.

Held: No. Dumpo was acquitted.

The court formulated that there is no general statement regarding the requisites necessary for the validity of a
marriage between Moros according to Mohammedan rites. This is a fact which must be subject to proof in every
particular case.

In the case, the uncontradicted testimony of Tahari (Iman or Mohammedans priest authorized to solemnize
marriages between Mohammedans) was that the effect of the consent of the father's bride is an indispensable
requirement for the validity of such contracts.
It was easy for the prosecution to show that the marriage was void by refuting Tahari's testimony because there
were 2 other Imans among the State witnesses in the case, but it failed to do so.

Granting the absolute necessity of the father's consent, tacit compliance may be presumed because it does not
appear that Dumpo's father has signified his opposition to the 2nd marriage after he had been informed of its
celebration. But this presumption should not be established over the affirmation of Dumpo's father saying that he
did not give his consent to the 2nd marriage.

It is an essential element in bigamy that the 2nd marriage have all the essential requisites of a valid marriage. It
appearing that the 2nd marriage cannot be considered as such, there is no justification to hold her guilty of bigamy.

Dissent:

There is no quotation from the Koran regarding the essentials of a marriage ceremony. Justice Hull agrees that the
evidence relied upon is not worthy of serious consideration. If consent were in fact necessary, it can well be
presumed from the subsequent actions of the girl.

WONG WOO YIU V VIVO

Doctrine:

Laws relating to family rights or to the status of persons are binding upon citizens of the Philippines, even though
living abroad.

Facts:

The Board of Special Inquiry No. 3 rendered a decision finding petitioner to be legally married to Perfecto Blas and
admitting her into the country as a non-quota immigrant, which was later on affirmed by the Board of
Commissioners.

However, the same Board, composed of a new set of members, reversed BSI No. 3 and ordered petitioner to be
excluded from the country.

Petitioner filed a motion for new trial but the same was denied for lack of merit. She then filed the instant petition
for mandamus with preliminary injunction (considered as certiorari) before the Manila CFI.

After the respondents filed their answer and the parties submitted a written stipulation of facts, the court a quo
declared valid the original decision and restrained respondents from excluding petitioner from the country.
Respondents interposed the present appeal.
It appears from the BSI proceeding that petitioner declared that she came to the Philippines in 1961 for the first time
to join her husband Perfecto Blas to whom she was married in Chingkang, China on January 15, 1929; that their
marriage was celebrated by one Chua Tio, a village leader; that the new set of Board of Commissioners found that
petitioner’s claim was without basis, it appearing that in the entry proceedings of Perfecto Blas had on January 23,
1947 he declared that he first visited China in 1935 and married petitioner in 1936, it could not possibly sustain her
claim that she married Perfecto Blas in 1929; that in an affidavit dated August 9, 1962 Perfecto Blas claimed that he
went to China in 1929, 1935 and 1941, although in his re-entry declaration he admitted that he first went to China in
1935, then in 1937, then in 1939, and lastly in 1941; and that Perfecto Blas in the same affidavit likewise claimed that
he first went to China when he was merely four years old so that computed from his date of birth in 1908 it must
have been in 1912.

Issue:

W/N petitioner presented sufficient proof to support fact of her marriage and can thus be admitted as non-quota
immigrant in the country?

Held:

No. A lot of discrepancies were found in the statements made by petitioner and her alleged husband in the
investigations conducted by the immigration authorities. Also, the only basis in support of petitioner’s claim that she
is Blas’ wife is a mass of oral and documentary evidence bereft of substantial proof of husband-wife relationship.

Article 15 of our new Civil Code also provides that laws relating to family rights or to the status of persons are
binding upon citizens of the Philippines, even though living abroad, and it is well-known that in 1929 in order that a
marriage celebrated in the Philippines may be valid it must be solemnized either by a judge of any court inferior to
the Supreme Court, a justice of the peace, or a priest or minister of the gospel of any denomination duly registered
in the Philippine Library and Museum (Public Act 3412, Section 2). Even if we assume, therefore, that the marriage of
petitioner to Perfecto Blas before a village leader is valid in China, the same is not one of those authorized in our
country.

But it may be contended that under Section 4 of General orders No. 68, as reproduced in Section 19 of Act No. 3613,
which is now Article 71 of our new Civil Code, a marriage contracted outside of the Philippines which is valid under
the law of the country in which it was celebrated is also valid in the Philippines. But no validity can be given to this
contention because no proof was presented relative to the law of marriage in China. Such being the case, we should
apply the general rule that in the absence of proof of the law of a foreign country it should be presumed that it is the
same as our own.

Since our law only recognizes a marriage celebrated before any of the officers mentioned therein, and a village
leader is not one of them, it is clear that petitioner’s marriage, even if true, cannot be recognized in this jurisdiction.

Decision appealed from reversed.

APT V APT

FACTS:
Both parties were German nationals of Jewish origin. They were acquainted with each other when they
were both living in Germany, but there was at that time no suggestion of marriage. In 1936 the husband
emigrated to the Argentine as a refugee from the Nazi regime. In July, 1937, the wife and other members
of her family came to England for the same reason. As regards the wife, it was admitted by the King’s
Procter that she was at all material times domiciled in this country. The evidence on this point seems to me
to be quite clear, and I so find. As regards the husband, whose domicile of origin was unquestionably
Germany, it is quite clear from the evidence of the wife that his intention was to leave Germany for good,
but I have no conclusive evidence that he had acquired a domicile of choice in the Argentine. There is no
doubt, however, that he was still resident there, not only at the time of the ceremony of marriage, but also
when the wife’s petition, dated Dec. 4, 1945, was served on him there. It is also clear from the wife’s
evidence that at the time of the celebration their mutual intention was to make the matrimonial home in
the Argentine when circumstances permitted. That being so, it is conceded by counsel on both sides that
for the purposes of my decision I can safely ignore any question of the husband retaining his domicile of
origin and can proceed on the footing that he is domiciled in the Argentine. He has certainly lived there
consistently since his flight from Germany, and he is not only described in the wife’s power of attorney as
domiciled in the Argentine, but he is also so described in the marriage certificate. I do not ignore the
possibility that the use of the word “domiciled” in these documents may not be conclusive, but I think that
there is sufficient evidence to justify me in holding, as I do, that the husband at all material times had
acquired a domicile of choice in the Argentine.
In 1940 the husband wrote to the wife proposing marriage. At the time it was impossible for her to travel
to the Argentine owing to wartime restrictions. Eventually, on the advice of Dr. F. M. Palacios, a doctor of
laws in the Argentine, who gave evidence before me, she executed before a notary public the power of
attorney dated Nov. 8, 1940. The original, of course, has been filed in the marriage registry in Buenos Aires,
and no copy was kept in this country, but I have a translation of a similar power of attorney executed four
days earlier before another notary public, which for some reason (I think a misdescription of the proxy) it
was impossible to use. I am assured that otherwise there is no material difference between the two
documents. The power of attorney recites that before the notary public and the subscribing witness the
wife, described as having been born in Berlin, on Aug. 12, 1917, of named parents, domiciled at 71, Lindsay
Drive, Kenton, of full age, single, capable, and known to the notary, appeared before him and said that she
was engaged to be married to the husband, described as having been born in Berlin on June 7, 1916, the
son of named parents, domiciled in Buenos Aires, Argentine Republic, at Sucre Street, No. 2923, single,
whom she had known for many years, and that in order to contract that marrfiage she gave a special
power to Mrs. Senta Goldglanz, nee Gundermann, of a certain address, so that in her name and as her
representative she should contract the marriage in Buenos Aires with the husband, and empowering her to
sign in the wife’s name the respective act of marriage and any other document that might be necessary. As
the marriage certificate shows, the proxy presented this power of attorney, and it is admitted that the
marriage was thereupon duly celebrated in accordance with Argentine law
If there is one question better settled than any other in international law, it is that as regards marriage —
putting aside the question of capacity — locus regit actum. If a marriage is good by the laws of the country
where it is effected, it is good all the world over, no matter whether the proceeding or ceremony which
constituted marriage according to the law of the place would or would not constitute marriage in the
country of the domicil of one or other of the spouses. If the so-called marriage is no marriage in the palce
where it is celebrated, there is no marriage anywhere, although the ceremony or proceeding if conducted
in the place of the parties’ domicil would be considered a good marriage. These propositions are too well
fixed to need much quotation.

ISSUE:
Into which category, form or essence, do proxy marriages fall?

HELD:
If they are to be likened to polygamous or incestuous marriages or those positively prohibited by the public
law of the country from motives of policy, the recent case of Baindail (otherwise Lawson) v. Baindail (3)
establishes that the wife may obtain relief by a decree of nullity, although polygamous marriages are not
otherwise recognised. But, as neither polygamy nor incest is in question, I am driven back to the question
whether proxy marriages are positively prohibited by law for motives of policy. Counsel for the wife
concedes that the Marriage Acts have a territorial effect only, and that there is no express statutory
provision against a domiciled British subject contracting a marriage by proxy out of this country, but he
argues that, at least as concerns a British subject domiciled and actually present in this country at the time
of the ceremony, there is one matter as to which public policy points in the same direction as do the
Marriage Acts, that is to say, the personal presence of both parties. This, he argues, is an essential,
whatever form the ceremony itself may take. The argument may be summarised as saying that the
distinction between form and essence is not absolute, but that public policy requires certain essential
ingredients in the ceremony or proceeding itself. Put another way, the classification of the ceremony,
celebration, proceeding, or whatever word one may choose to describe the formality of the marriage
contract, must be determined by the law of this country. For this he relies on the section on the problem of
classification in DR. CHESHIRE’s PRIVATE INTERNATIONAL LAW (2nd edn., pp. 24 to 45). Manifestly, he
argues, there may be certain primitive tribal marriage rites which could not possibly be classified in this
country as being a marriage ceremony at all, because they would offend our conception of propriety.
Likewise he suggests that the question whether the presence of both parties is essential to the
classification of this ceremony as a ceremony of marriage must, at any rate in the case where one at least
of the parties is domiciled and resident in this country at the time of the ceremony, be determined as a
matter of public policy by English law. He enumerated the respects in which a proxy marriage offended
public policy under the following heads:

PROBATE, DIVORCE AND ADMIRALTY DIVISION

APT (otherwise MAGNUS) v. APT

[1947] P 127, [1947] 1 All ER 620, [1947] WN 123

COUNSEL: John Foster for the wife. Colin Duncan for the King’s Proctor.
SOLICITORS: Hardman, Phillips & Mann (for the wife); Treasury Solicitor (for the King’s Proctor).

JUDGE: Lord Merriman, P.

Divorce — Nullity — Marriage by proxy — Validity.

HEADNOTE: The celebration of marriage by proxy is a matter of the form of the ceremony or proceeding
and is not an essential of the marriage, and there is no doctrine of public policy which invalidates in this
country a proxy marriage celebrated in a foreign country between a person domiciled in England and a
person domiciled in that county, provided that the form of the ceremony or proceeding is valid in that
country and is performed strictly in accordance with the laws of that country and contains nothing
abhorrent to Christian ideas.

INTRODUCTION: Petition by wife for nullity of marriage on the ground that the ceremony of marriage
having been performed by proxy in Argentina was invalid as being against public policy.

Cur. adv. vult. Mar. 18.

JUDGMENT

LORD MERRIMAN, P., read the following judgment: This is a wife’s petition for nullity. On Jan. 15, 1941,
while the wife was in this country, she being not only resident but domiciled, here, a ceremony of marriage
was celebrated in Buenos Aires between the husband and the wife. She was represented by a person who,
by power of attorney executed on Nov. 8, 1940, in London, before a notary public, she had named as her
representative to contract the marriage. It is proved that the ceremony was valid and effectual by the law
of the Argentine, which recognises proxy marriages, but the wife contends that it is not a marriage
recognised by the law of this country. The question whether in these circumstances English law will
recognise the celebration of a marriage by proxy as creating the status of marriage in this country is
manifestly one of considerable public importance. There is, so far as I am aware, no English authority
directly on the point. In these circumstances I invoked the assistance of the King’s Proctor in the
elucidation both of the facts and the law.

The facts are as follows. Both parties were German nationals of Jewish origin. They were acquainted with
each other when they were both living in Germany, but there was at that time no suggestion of marriage.
In 1936 the husband emigrated to the Argentine as a refugee from the Nazi regime. In July, 1937, the wife
and other members of her family came to England for the same reason. As regards the wife, it was
admitted by the King’s Procter that she was at all material times domiciled in this country. The evidence on
this point seems to me to be quite clear, and I so find. As regards the husband, whose domicile of origin
was unquestionably Germany, it is quite clear from the evidence of the wife that his intention was to leave
Germany for good, but I have no conclusive evidence that he had acquired a domicile of choice in the
Argentine. There is no doubt, however, that he was still resident there, not only at the time of the
ceremony of marriage, but also when the wife’s petition, dated Dec. 4, 1945, was served on him there. It is
also clear from the wife’s evidence that at the time of the celebration their mutual intention was to make
the matrimonial home in the Argentine when circumstances permitted. That being so, it is conceded by
counsel on both sides that for the purposes of my decision I can safely ignore any question of the husband
retaining his domicile of origin and can proceed on the footing that he is domiciled in the Argentine. He has
certainly lived there consistently since his flight from Germany, and he is not only described in the wife’s
power of attorney as domiciled in the Argentine, but he is also so described in the marriage certificate. I do
not ignore the possibility that the use of the word “domiciled” in these documents may not be conclusive,
but I think that there is sufficient evidence to justify me in holding, as I do, that the husband at all material
times had acquired a domicile of choice in the Argentine.

In 1940 the husband wrote to the wife proposing marriage. At the time it was impossible for her to travel
to the Argentine owing to wartime restrictions. Eventually, on the advice of Dr. F. M. Palacios, a doctor of
laws in the Argentine, who gave evidence before me, she executed before a notary public the power of
attorney dated Nov. 8, 1940. The original, of course, has been filed in the marriage registry in Buenos Aires,
and no copy was kept in this country, but I have a translation of a similar power of attorney executed four
days earlier before another notary public, which for some reason (I think a misdescription of the proxy) it
was impossible to use. I am assured that otherwise there is no material difference between the two
documents. The power of attorney recites that before the notary public and the subscribing witness the
wife, described as having been born in Berlin, on Aug. 12, 1917, of named parents, domiciled at 71, Lindsay
Drive, Kenton, of full age, single, capable, and known to the notary, appeared before him and said that she
was engaged to be married to the husband, described as having been born in Berlin on June 7, 1916, the
son of named parents, domiciled in Buenos Aires, Argentine Republic, at Sucre Street, No. 2923, single,
whom she had known for many years, and that in order to contract that marrfiage she gave a special
power to Mrs. Senta Goldglanz, nee Gundermann, of a certain address, so that in her name and as her
representative she should contract the marriage in Buenos Aires with the husband, and empowering her to
sign in the wife’s name the respective act of marriage and any other document that might be necessary. As
the marriage certificate shows, the proxy presented this power of attorney, and it is admitted that the
marriage was thereupon duly celebrated in accordance with Argentine law.

The wife gave evidence, which I accept, that she had no intention of revoking the power of attorney, that
she was informed in due course of the performance of the ceremony, that she was not merely ready and
willing but eager to join the husband in Buenos Aires, and that she made repeated efforts to that end
during the war, but that she was not allowed to leave England in spite of the marriage. Dr. Palacios proved
that the husband had obtained a permit for her to enter the Argentine, but that this permit was not
effective without the consent of the Argentine ambassador in London. He told me that he himself had
applied to the ambassador personally for his consent, but that permission was refused on the ground that
it was not convenient to allow a wife of German origin to enter the Argentine. After the war, the wife made
further attempts to join her husband, but by the autumn of 1945, as the husband was no longer replying to
her letters, and took no steps, in spite of her requests, to obtain or enable her to obtain a fresh permit, as
was then required, she came to the conclusion that he had ceased to wish her to join him. She suggested a
meeting in the United States, but this suggestion was also ignored. In these circumstances she decided to
bring this petition.
I must now deal with the Argentine law on the subject as this was elucidated by Dr. Palacios. He proved
that the power of attorney used in this case was valid in Argentine law to enable the proxy to contract the
marriage, and that the certificate of marriage based thereon was evidence of a valid marriage. As regards
the Argentine law covering proxy marriages generally, he told me that it was permissible to insert
conditions, for example, that the marriage should be celebrated within a certain time limit, and, that if, as
here, no such time limit is expressed, the registrar might ask for confirmation if the power of attorney was
of old standing. Again, the power of attorney might contain conditions defining the town where the
celebration should take place, as is the case here, or even defining the particular registry office and the day
and hour at which the celebration should take place, or stipulating that certain relatives should be present.
He expressed the opinion that if any such conditions were not fulfilled the registrar would be obliged to
refuse to perform the ceremony, but he seemed to me to be somewhat uncertain about conditions which
he described as trivial, about which he thought that the registrar would have a discretion. By this I
understood him to mean that, although the registrar might decide to allow the ceremony to go on, his
decision about the essentiality of a particular condition would not be final, but would be subject to review
by the court. He gave some very important evidence on the subject of revocation. Here, again, there
appeared at first to be some confusion in his evidence, but in the result it came to this, that the intending
spouse could revoke the power of attorney at any time before the ceremony, but that, if the power of
attorney had been acted on before either the other spouse or the proxy had notice of the revocation, the
marriage would be valid. If, however, the spouse giving the power of attorney had meanwhile lost the
capacity to contract the marriage, for example, by an intervening marriage or by becoming of unsound
mind, although the marriage certificate would be prima facie evidence of the ceremony having been
performed, the court would declare the marriage null and void. The witness drew a clear distinction
between revocation by operation of law through loss of capacity to contract the marriage and revocation
by the party. In the latter case he expressed, and maintained, the definite opinion that, unless either the
other spouse or the proxy had notice of the revocation before the ceremony, the marriage in Argentine
law would be held to be valid. He put the case of the loss or miscarriage of a letter of revocation in the
following words: “If the proxy is revoked without any change of capacity and the revocation is not known
to the attorney or the husband because the letter is lost in transit, a court would hold the marriage valid,
but if the revocation is due to a change of capacity (for example, marriage or insanity), then the court will
hold that the marriage is void.” I will revert to this point later in the judgment, as it is one on which counsel
for the petitioner laid great stress.

Now, as to the English law, VISCOUNT DUNEDIN in Berthiaume v. Dastous (1) ([1930] A.C. 83) said:

If there is one question better settled than any other in international law, it is that as regards marriage —
putting aside the question of capacity — locus regit actum. If a marriage is good by the laws of the country
where it is effected, it is good all the world over, no matter whether the proceeding or ceremony which
constituted marriage according to the law of the place would or would not constitute marriage in the
country of the domicil of one or other of the spouses. If the so-called marriage is no marriage in the palce
where it is celebrated, there is no marriage anywhere, although the ceremony or proceeding if conducted
in the place of the parties’ domicil would be considered a good marriage. These propositions are too well
fixed to need much quotation.

This absolves me from any examination of the authorities for this proposition, but the crux of the argument
put forward by counsel for the wife is that it is vital to determine what in relation to any marriage is
merely, in VISCOUNT DUNEDIN’s words “proceeding or ceremony.” In Brook v. Brook (2) the distinction
between what are described as forms and essentials is fully discussed. That was a case in which the
husband, a domiciled British subject, after the death of his wife went through a ceremony of marriage with
her sister, also a domiciled British subject, in Denmark, where the marriage of a man with his deceased
wife’s sister was valid. LORD CAMPBELL, L.C., said (9 H.L. Cas. 207):

There can be no doubt of the general rule, that “a foreign marriage valid according to the law of a country
where it is celebrated is good everywhere.”But while the forms of entering into the contract of marriage
are to be regulated by the lex loci contractus, the law of the country in which it is celebrated, the essentials
of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at
the time of the marriage, and in which the matrimonial residence is contemplated. Although the forms of
celebrating the foreign marriage may be different from those required by the law of the country of
domicile, the marriage may be good everywhere. But if the contract of marriage is such, in essentials, as to
be contrary to the law of the country of domicile, and it is declared void by that law, it is to be regarded as
void in the country of domicile, though not contrary to the law of the country in which it was celebrated.

It was held the relationship between the spouses, being domiciled British subjects, was not a mere matter
of form but was of the essence of the marriage, and that, marriage with a deceased wife’s sister then being
forbidden in this country, not because it was contrary to God’s law, but because Parliament had declared it
to be contrary to God’s law — (ibid: see LORD CAMPBELL, L.C., at p. 215, LORD CRANWORTH at p. 226,
LORD ST. LEONARDS at p. 233, and LORD WENSLEYDALE at p. 245) — the relationship between the spouses
was fatal to the validity of the marriage, notwithstanding the fact that in the country where the ceremony
was performed the marriage was valid. In arriving at this conclusion the noble Lords examined several
examples of the distinction between form and essence. For example, in discussing Gretna Green marriages
(at p. 214 and i15) LORD CAMPBELL, L.J., said of Lord Hardwicke’s Act:

But I do lay very great stress on the consideration that LORD Hardwick’s Act only regulated banns and
licences, and the formalities by which the ceremony of marriage shall be celebrated. It does not touch the
essentials of the contract or prohibit any marriage which was before lawful, or render any marriage lawful
which was before prohibited. The formalities which it requires could only be observed in England, and the
whole frame of it shows it was only territorial. The nullifying clauses about banns and licences can only
apply to marriage celebrated in England.

Again, referring to the case of marriage of a minor in Scotland, where the marriage was valid by the law of
Scotland though declared by an Irish statute, [see Irish Statutes, 9 Geo. 2, 611] to be absolutely null and
void to all intents and purposes for lack of consent, LORD CAMPBELL, L.C., in the same case (at p. 216)
clearly regarded the lack of consent as being a matter of form and not of essence, but this class of case is
contrasted (on p. 219) with incestuous marriages, and LORD CAMPBELL, L.C., was plainly of opinion that a
marriage between a mulatto and a white woman prohibited by the law of Massachusetts, in which State
the parties lived, ought to have been held to be invalid although the spouses went for the ceremony to the
neighbouring province of Rhode Island, where such a marriage was valid. LORD CRANWORTH (in the same
case at p. 224) put the question thus:
… that though in the case of marriages celebrated abroad the lex loci contractus must quoad solemnitate
determine the validity of the contract, yet no law but our own can decide whether the contract is or is not
one which the parties to it, being subjects of Her Majesty domiciled in this country, might lawfully make.
Moreover, the passage in the treatise of STORY, J., on the CONFLICT OF LAWS (8th ed., pp. 188, 189), in
which he specifies the exceptions to the rule that a marriage valid where celebrated is good everywhere
(ibid, pp. 208 and 209) was referred to with approval: see Brook v. Brook (9 H.L. Cas. 208, 209). He excepts
marriages involving polygamy and incest, those positively prohibited by the public law of a country from
motives of policy, and those celebrated in foreign countries by subjects entitling themselves, in special
circumstances, to the benefit of the laws of their own country. There was some criticism, however, of the
sentence in which he lays down that in speaking of incestuous marriages care must be taken to confine the
doctrine to such cases as by the general consent of all Christendom are deemed incestuous. As has already
appeared, all the noble Lords took the view that they were not so much concerned with the general
consent of all Christendom, but rather with the fact that Parliament had declared what God’s law on the
subject was deemed to be in this country, and it was suggested that the particular case would most
properly fall within the exception of a positive prohibition by the public law of this country from motives of
policy — in other works, not as being incestuous in fact, but as being declared to be so by Parliament.

The question therefore is: Into which category, form or essence, do proxy marriages fall? If they are to be
likened to polygamous or incestuous marriages or those positively prohibited by the public law of the
country from motives of policy, the recent case of Baindail (otherwise Lawson) v. Baindail (3) establishes
that the wife may obtain relief by a decree of nullity, although polygamous marriages are not otherwise
recognised. But, as neither polygamy nor incest is in question, I am driven back to the question whether
proxy marriages are positively prohibited by law for motives of policy. Counsel for the wife concedes that
the Marriage Acts have a territorial effect only, and that there is no express statutory provision against a
domiciled British subject contracting a marriage by proxy out of this country, but he argues that, at least as
concerns a British subject domiciled and actually present in this country at the time of the ceremony, there
is one matter as to which public policy points in the same direction as do the Marriage Acts, that is to say,
the personal presence of both parties. This, he argues, is an essential, whatever form the ceremony itself
may take. The argument may be summarised as saying that the distinction between form and essence is
not absolute, but that public policy requires certain essential ingredients in the ceremony or proceeding
itself. Put another way, the classification of the ceremony, celebration, proceeding, or whatever word one
may choose to describe the formality of the marriage contract, must be determined by the law of this
country. For this he relies on the section on the problem of classification in DR. CHESHIRE’s PRIVATE
INTERNATIONAL LAW (2nd edn., pp. 24 to 45). Manifestly, he argues, there may be certain primitive tribal
marriage rites which could not possibly be classified in this country as being a marriage ceremony at all,
because they would offend our conception of propriety. Likewise he suggests that the question whether
the presence of both parties is essential to the classification of this ceremony as a ceremony of marriage
must, at any rate in the case where one at least of the parties is domiciled and resident in this country at
the time of the ceremony, be determined as a matter of public policy by English law. He enumerated the
respects in which a proxy marriage offended public policy under the following heads: —

First: The wife is entitled to change her mind up to the very last moment before the conclusion of the
marriage contract, and, therefore, it is contrary to public policy that when the power of attorney has
actually been revoked before the ceremony the parties should be compelled to conclude the contract of
marriage because the accident of delay by post, telegram or telephone prevents the communication of the
revocation from reaching either the other party or the proxy in time.
Secondly: If the wife can do everything necessary to effect a valid marriage in the Argentine merely by
signing a document in this country, her marriage, with all the attendant changes of domicile, nationality
and status generally, is, so far as concerns this country, a clandestine marriage and, therefore, contrary to
public policy. This point was emphasised by pointing to the possibility that both parties, being resident in
this country, might contract a marriage by proxy in some country, the law of which entitled both parties to
be represented by proxy at the ceremony. It was suggested that this is the case in Mexico (see RINGROSE,
MARRIAGE AND DIVORCE LAWS OF THE WORLD, p. 202) and it appears also to be the case in Portugal (p.
95). But although this appears to be so as regards the actual ceremony or celebration, I gather from the
work in question that the date and place of the celebration are only fixed after certain preliminary
formalities have been completed, which seem to me to involve the presence in the country of at least one
of the parties. However this may be, and I have no evidence on the subject, it only affords an extreme
instance of the same point.

Thirdly: Since it is well settled that in the case of a conflict of laws governing consent to the marriage of
minors the question is one of form and the lex loci contractus is, therefore, decisive (Brook v. Brook, 9 H.L.
Cas. 216), it would follow that minors, either or both of whom were living in England, could evade parental
control by marrying by proxy in a country where either the consent of the parents is unnecessary or where
the age of majority is lower. It was admitted that it is open to English minors, if they were personally
present in the country in question, though with the express intention of evading English law, to effect a
valid marriage, but it was suggested that it was contrary to public policy that they should be able to do so
by proxy without the necessity of travelling.

Fourthly: The admission of a proxy marriage such as this would open the door much wider to the invard
traffic in prostitution, since the husband in what are colloquially known as “five-pound marriages,” instead
of being shipped abroad go through the ceremony and bringing the wife into the country on his passport,
could effect his purpose by simply signing a power of attorney here.

Fifthly: There is, in truth, no locus contractus in this case, seeing that the husband was present in the
Argentine and the wife in England, and, therefore, that the public policy which, by the universal comity of
nations, compels the recognition of a celebration valid by the lex loci contractus, does not apply.

Sixthly: The Marriage Acts of this country, including the Foreign Marriage Act, 1892, all require the
presence of both parties at the ceremony, and, therefore, that this must be taken to be a declaration of
the public policy of this country.
Undoubtedly, proxy marriages are liable to abuse, but, as I have already said, if these abuses occur or are
apprehended they can be prevented or cured by legislation. The objection that clandestine marriages may
be promoted appears to me to go too far, in view of the fact that Gretna Green marriages were tolerated
for years in spite of their notorious abuse for the very purpose of evading the mischief of Lord Hardwicke’s
Act, which was expressly directed to the preventing of clandestine marriages, and, incidentally, of evading
the restrictions on the marriage of minors. It is true that after 1856 the condition of residence for 21 days
was imposed by 19 and 20 Vict., c. 96 [an Act for amending the Law of Marriage in Scotland], and and that,
by the recent Marriage [Scotland] Act, 1939, s. 5, irregular marriages in Scottland are abolished. So slow a
process of legislation to deal with abuses not less glaring than anything that is likely to result from the
recognition of a proxy marriage such as this seems to call for caution in invoking the doctrine of public
policy in this connection, and emphasises the point that the matter is one to be dealt with by legislation.
But the question is not the same as is raised in this case. The wife did not purport to constitute the
marriage by the power of attorney signed here. She merely authorised her proxy to constitution it on her
behalf in the Argentine.

This brings me to a consideration of head No. 1. The objection based on the Argentine law regarding
revocation of the power of attorney seems to me to be the most formidable argument against the validity
of the marriage. In s. 13, entitled “Of Contracting Spousals either betwixt parties present or absent,”
SWINBURNE, in para. 22, p. 165, says:

Furthermore, it is not only necessary that the proxy be sufficient, and that the contract be made in due
form, as aforesaid; but it is requisite also that the party which did constitute the proctor, do persevere and
continue in the same mind and purpose, until the contract be finished; for if he repent in the meantime, or
revoke his proctor (which thing is lawful for him to do though he has covenanted, yes and sworn not to
revoke him) the contract is utterly void, which conclusion hath place, albeit the proctor were ignorant of
the parties repentance or revocation of the proxy, seeing the perseverance and continuance of the parties
consent, which did constitute, is so necessary, as without the which the contract is not of any force.

My conclusions, therefore, are (i) that the contract of marriage in this case was celebrated in Buenos Aires;
(ii) that the ceremony was performed strictly in accordance with the law of that country; (iii) that the
celebration of marriage by proxy is a matter of the form of the ceremony or proceeding and not an
essential of the marriage; (iv) that there is nothing abhorrent to Christian ideas in the adoption of that
form; and (v) that, in the absence of legislation to the contrary, there is no doctrine of public policy which
entitles me to hold that the ceremony, valid where it was performed, is not effective in this country to
constitute a valid marriage. For these reasons, whatever may be the petitioner’s remedies as a wife, I am
obliged to hold that this petition must be dismissed

In re Estate of MAY - 305 N.Y. 486, 114 N.E.2d 4 (1953)

RULE:
The general principle is that the rights dependent upon nuptial contracts are to be determined by the lex
loci. The general rule recognizes as valid a marriage considered valid in the place where celebrated. There
are two exceptions to that rule - viz., cases within the prohibition of positive law; and cases involving
polygamy or incest in a degree regarded generally as within the prohibition of natural law.

FACTS:
Decedent, who was the husband's niece by half-blood, and the husband were married in Rhode Island
where their marriage was valid. The decedent died in New York where the marriage was invalid. The
husband objected to the issuance of letters of administration to the daughter on the ground that, as
surviving spouse, he had the paramount right to administer the decedent's estate. The Ulster County
Surrogate's Court (New York) reversed the order granting letters of administration to the daughter and
remanded the case with instructions that the husband be granted the letters of administration.

ISSUE:
Did the husband have the paramount right to administer the decedent’s estate, notwithstanding the fact
that the parties’ marriage was invalid in New York?

ANSWER:
Yes.

CONCLUSION:
The court upheld the order reversing the order issuing the letters of administration to the daughter. The
court held that the legality of the marriage had to be determined by the law of the state where it was
celebrated. The marriage was valid because it was valid under Rhode Island law. N.Y. Dom. Rel. Law § 5 did
not regulate marriages of New York domiciliaries that were solemnized in another state and did not void
the husband's marriage even though the marriage would have been void if performed in New York. As the
marriage was not offensive to the public sense of morality to a degree regarded with abhorrence, it was
not prohibited by natural law.

TENCHAVEZ V. ESCAÑO

FACTS:

Pastor and Vicenta entered into a secret marriage before a Catholic chaplain. Upon discovery of their daughter’s
marriage, spouses Mamerto and Mena sought priestly advice where it was suggested that the marriage be
recelebrated. However, the recelebration did not take place and the newlyweds eventually became estranged.
Later, unknown to Pastor, Vicenta left for the United States. There, she filed a complaint for divorce on the ground
of extreme mental cruelty, and an absolute divorce was granted by the Court of Nevada. She later sought for the
annulment of her marriage from the Archbishop of Cebu. Vicenta eventually married an American in Nevada and
acquired American citizenship.

PROCEDURAL HISTORY:

Tenchavez filed a complaint in the Court of First Instance of Cebu against Vicenta and her parents whom he
charged with having dissuaded and discouraged their daughter from joining him and alienating her affections, and
against the Roman Catholic Church for having decreed the annulment of the marriage. He asked for legal
separation and one million pesos in damages.
Vicenta claims a valid divorce from Tenchavez and an equally valid marriage to her American husband; while her
parents filed a counterclaim for moral damages, denying that they had in any way influenced their daughter’s
acts.

The trial court did not decree a legal separation but freed Tenchavez from supporting his wife and to acquire
property to her exclusion. It granted the counterclaim of the Españo spouses for moral and exemplary damages
and attorney’s fees against Tenchavez, to the extent of P45,000.00. Thus, he filed a direct appeal to the Supreme
Court.

ISSUES:

1.) Whether or not the divorce obtained by Vicenta abroad was valid and binding in the Philippines;

2.) Whether or not Tenchavez is entitled to legal separation and to moral damages.

RULING:

1.) No. The Court held that under Philippine law, the valid marriage between Tenchavez and Escaño remained
subsisting and undissolved notwithstanding the decree of absolute divorce that the wife sought and obtained in
Nevada. Article 15 of the Civil Code of the Philippines which was already in force at the time expressly provided
that “Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding
upon the citizens of the Philippines, even though living abroad.” Here, at the time the divorce decree was issued,
Vicenta, like her husband, was still a Filipino citizen. She was then still subject to Philippine law, which does not
admit absolute divorce. Thus, under Philippine law, the divorce was invalid.

2.) Yes. The Court ruled that it can be gleaned from the facts and considerations that Tenchavez is entitled to a
decree of legal separation on the basis of adultery as provided under Art. 333 of the Revised Penal Code. Since our
jurisdiction does not recognize Vicenta’s divorce and second marriage as valid, her marriage and cohabitation with
the American is technically “intercourse with a person not her husband” from the standpoint of Philippine Law.
Her refusal to perform her wifely duties, and her denial of consortium and her desertion of her husband also
constitute in law a wrong for which the husband is entitled to the corresponding indemnity. Thus, the latter is
entitled to a decree of legal separation conformably to Philippine law.

As to moral damages the Court assessed Tenchavez’s claim for a million pesos as unreasonable, taking into
account some considerations. First, the marriage was celebrated in secret, and its failure was not characterized by
publicity or undue humiliation on his part. Second, the parties never lived together. Third, there is evidence that
Tenchavez had originally agreed to the annulment of the marriage, although such a promise was legally invalid,
being against public policy. Fourth, the fact that Tenchavez is unable to remarry under our law is a consequence of
the indissoluble character of the union that he entered into voluntarily and with open eyes. Therefore, he should
recover P25,000 only by way of moral damages and attorney’s fees.

Van Dorn v. Romillo (G.R. No. L-68470 )

FACTS:

Alice Reyes, a Filipino, and Richard Upton, an American, married in Hong Kong in 1972. Following their marriage,
they moved to the Philippines where they had two children. In 1982, the spouses were divorced in Nevada, US.
Subsequently, Alice remarried to Theodore Van Dorn.

In 1983, Richard filed a case against Alice before RTC Pasay, claiming that Alice's business in Ermita, Manila (the
Galleon Shop), is conjugal property of the parties. In other words, he wanted the RTC to declare that he has a right
to manage the conjugal property.

Alice filed a Motion to Dismiss, contending that Richard's cause of action is barred by previous judgment in the
divorce proceedings in Nevada, where Richard acknowledged that he and Alice had "no community property" as
of 1982.

RTC Pasay: Denied the Motion to Dismiss on the ground that the property involved (Galeon Shop) is located in the
Philippines so that the Divorce Decree has no bearing in the case.

Hence, the instant petition.

ISSUE:

Whether a divorce decree validly issued by a competent court overseas is also valid in the Philippines? -- YES.

HELD:

1. Richard cannot have his cake and eat it, too. His claim that the divorce decree applies only in the US and not in
the Philippines due to the standing policy in the Philippines that divorce is not allowed, creates an absurd
situation where Alice is validly divorced from Richard in the US but remains married to him in the Philippines. This
cannot be countenanced as this would result in Alice being discriminated against in her own country.

2. The divorce decree issued in Nevada released Richard from the marriage from the standards of American law,
under which divorce dissolves the marriage. Thus, pursuant to his national law, Richard is no longer the husband
of Alice. Therefore, he would have no standing to sue in the instant case and claim that he is still the husband.

3. The SC held that the RTC's denial of the Motion to Dismiss is overturned. As such, the Supreme Court ordered
RTC Pasay to dismiss the case filed by Richard against Alice.
Pilapil v Ibay-Somera
G.R. No. 80116. June 30, 1989

Art. 15 - Laws relating to family rights and duties, or to the status, condition and legal capacity of persons

Facts:

On September 7, 1979, Imelda Manalaysay Pilapil, a Filipina and the respondent to the case, and Erich Geiling, a
German national, were married at Friedenweiler in the Federal Republic of Germany. After about three and a half
years of marriage, Geiling initiated a divorce proceeding against Pilapil in Germany in January 1983 while Pilapil
filed an action for legal separation, support and separation of property before RTC of Manila in January 23, 1983
where it is still pending as a civil case. On January 15, 1986, the local Court of Germany promulgated a divorce
decree on the ground of failure of marriage of the spouses. The custody of the child, Isabella Pilapil Geiling, was
granted to petitioner. On June 27, 1986, private respondent filed two complaints for adultery alleging that, while
still married to respondent, petitioner had an affair with a certain William Chia and Jesus Chua sometime in 1982
and 1983 respectively. The respondent city fiscal approved a resolution directing the filing of two complaints for
adultery against petitioner. Thereafter, petitioner filed a motion in both criminal cases to defer her arraignment
and to suspend further proceedings thereon. Respondent judge merely reset the date of the arraignment but
before such scheduled date, petitioner moved for the suspension of proceedings. On September 8, 1987,
respondent judge denied the motion to quash and also directed the arraignment of both accused. Petitioner
refused to be arraigned and thus charged with direct contempt and fined.

Issue:

WoN the private respondent’s adultery charges against the petitioner is still valid given the fact that both had
been divorced prior to the filing of charges.

Held:

The law provides that in prosecutions for adultery and concubinage the person who can legally file the
complaint should only be the offended spouse. The fact that private respondent obtained a valid divorce in his
country in 1983, is admitted.

According to Article 15 of the Civil Code, with relation to the status of Filipino citizens both here and abroad, since
the legal separation of the petitioner and respondent has been finalized through the courts in Germany and the
RTC in Manila, the marriage of the couple were already finished, thus giving no merit to the charges the
respondent filed against the petitioner. Private respondent, being no longer married to petitioner holds no legal
merit to commence the adultery case as the offended spouse at the time he filed suit in 1986. The temporary
restraining order issued in this case was made permanent.

FE D. QUITA, petitioner, VS. COURT OF APPEALS and BLANDINA DANDAN, respondents

December 22, 1998

FACTS:
Fe D. Quita and Arturo T. Padlan, both Filipinos, were married in the Philippines on May 18, 1941. No children
were born out of their marriage. On July 23, 1954, petitioner obtained a final judgment of divorce in San Francisco,
California, U.S.A. On April 16, 1972, Arturo died leaving no will. On August 31, 1972, Lino Javier Inciong filed a
petition with the RTC for issuance of letters of administration concerning the estate of Arturo in favor of the
Philippine Trust Company. Respondent Blandina Dandan, claiming to be the surviving spouse of Arturo Dandan
and the surviving children, all surnamed Padlan, opposed the petition. The RTC expressed that the marriage
between Antonio and petitioner subsisted until the death of Arturo in 1972, that the marriage existed between
private respondent and Arturo was clearly void since it was celebrated during the existence of his previous
marriage to petitioner. The Court of Appeals remanded the case to the trial court for further proceedings.

Issues:

1. Should the case be remanded to the lower court?

2. Who between the petitioner and private respondent is the proper heir of the decedent?

Held:

If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as
in ordinary cases.

No dispute exists as to the right of the six Padlan children to inherit from the decedent because there are proofs
that they have been duly acknowledged by him and petitioner herself even recognizes them as heirs of Arturo
Padlan, nor as to their respective hereditary shares.

Private respondent is not a surviving spouse that can inherit from him as this status presupposes a legitimate
relationship. Her marriage to Arturo being a bigamous marriage considered void ab inito under Articles 80 and 83
of the Civil Code renders her not a surviving spouse.

The decision of the Court of Appeals ordering the remand of the case is affirmed.

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.

CIPRIANO ORBECIDO III, Respondent.

Facts:
Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-
an, Ozamis City, on May 24, 1981. Related imageThey were blessed with a with a son and a daughter, Kristoffer
Simbortriz V. Orbecido and Lady Kimberly V. Orbecid Lady Myros left for the United States bringing along their
son Kristoffer in 1986. After few years, Cipriano discovered that his wife had been naturalized as an American
citizen.

Cipriano learned from his son that his wife had obtained a divorce decree sometime in 2000 and then married a
certain Innocent Stanley and lived in California.

He then filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the
Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic,
herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied.
Orbecido filed a petition for review of certiorari on the Decision of the RTC.

Issue:

Whether or not respondent Orbecido can remarry under Article 26 of the Family Code.

Held:

Yes. The Court’s unanimous decision in holding Article 26, paragraph 2 of the Family Code be interpreted as
allowing a Filipino citizen who has been divorced by a spouse who had acquired a citizenship and remarried, also
to remarry under Philippine law.

The article should be interpreted to include cases involving parties who, at the time of the celebration of the
marriage were Filipino citizens, but later on,one of them became naturalized as a foreign citizen and obtained a
divorce decree.

The instant case was one where at the time the marriage was solemnized, the parties were two Filipino citizens,
but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting her
capacity to remarry, and indeed, she remarried an American citizen while residing in the US. The Filipino spouse
should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of
the marriage.

However, since Orbecido was not able to prove as fact his wife’s naturalization, he was still barred from
remarrying.

RODOLFO SAN LUIS, Petitioner,vs.FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent.

FACTS:
During his lifetime, Felicisimo contracted three marriages. His first marriage was with Virginia Sulit on March 17,
1942 out of which were born six children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and Manuel. On August 11,
1963, Virginia predeceased Felicisimo.

Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a son, Tobias. However,
on October 15, 1971, Merry Lee, an American citizen, filed a Complaint for Divorce before the Family Court of the
First Circuit, State of Hawaii, United States of America (U.S.A.), which issued a Decree Granting Absolute Divorce
and Awarding Child Custody on December 14, 1973. On June 20, 1974, Felicisimo married respondent Felicidad
San Luis, then surnamed Sagalongos, before Rev. Fr.

William Meyer, Minister of the United Presbyterian at Wilshire Boulevard, Los Angeles, California, U.S.A. He had
no children with respondent but lived with her for 18 years from the time of their marriage up to his death on
December 18, 1992.

Thereafter, respondent sought the dissolution of their conjugal partnership assets and the settlement of
Felicisimo’s estate. On December 17, 1993, she filed a petition for letters of administration before the Regional
Trial Court

On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his first marriage, filed a
motion to dismiss on the grounds of improper venue and failure to state a cause of action. Rodolfo claimed that
the petition for letters of administration should have been filed in the Province of Laguna because this was
Felicisimo’s place of residence prior to his death. He further claimed that respondent has no legal personality to
file the petition because she was only a mistress of Felicisimo since the latter, at the time of his death, was still
legally married to Merry Lee.

DECISION OF LOWER COURTS:

(1) Trial Court: denied the motion to dismiss, ruled that respondent, as widow of the decedent, possessed the
legal standing to file the petition and that venue was properly laid. Mila filed a motion for inhibition against Judge
Tensuan on November 16, 1994. Thus, a new trial ensued.

(2) Trial Court (new): dismissed the petition for letters of administration. It held that, at the time of his death,
Felicisimo was the duly elected governor and a resident of the Province of Laguna. Hence, the petition should have
been filed in Sta. Cruz, Laguna and not in Makati City. It found that the decree of absolute divorce dissolving
Felicisimo’s marriage to Merry Lee was not valid in the Philippines and did not bind Felicisimo who was a Filipino
citizen. It also ruled that paragraph 2, Article 26 of the Family Code cannot be retroactively applied because it
would impair the vested rights of Felicisimo’s legitimate children.

(3) CA: reversed and set aside the orders of the trial court

ISSUES:

(1) Whether venue was properly laid, and

(2) Whether a Filipino who is divorced by his alien spouse abroad may validly remarry under the Civil Code,
considering that Felicidad’s marriage to Felicisimo was solemnized on June 20, 1974, or before the Family Code
took effect on August 3, 1988.

(3) Whether respondent has legal capacity to file the subject petition for letters of administration.

RULING:

(1) Yes, the venue was proper. Section 1, Rule 73 of the Rules of Court, the petition for letters of administration of
the estate of Felicisimo should be filed in the Regional Trial Court of the province "in which he resides at the time
of his death."

For purposes of fixing venue under the Rules of Court, the "residence" of a person is his personal, actual or
physical habitation, or actual residence or place of abode, which may not necessarily be his legal residence or
domicile provided he resides therein with continuity and consistency. While petitioners established that Felicisimo
was domiciled in Sta. Cruz, Laguna, respondent proved that he also maintained a residence in Alabang,
Muntinlupa from 1982 up to the time of his death. From the foregoing, we find that Felicisimo was a resident of
Alabang, Muntinlupa for purposes of fixing the venue of the settlement of his estate.

(2) Yes. Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr. The Van Dorn case
involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly
obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to
remarry under Philippine law. As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce
is validly obtained abroad by the alien spouse. With the enactment of the Family Code and paragraph 2, Article 26
thereof, our lawmakers codified the law already established through judicial precedent.

The divorce decree allegedly obtained by Merry Lee which absolutely allowed Felicisimo to remarry, would have
vested Felicidad with the legal personality to file the present petition as Felicisimo’s surviving spouse. However,
the records show that there is insufficient evidence to prove the validity of the divorce obtained by Merry Lee as
well as the marriage of respondent and Felicisimo under the laws of the U.S.A.

With regard to respondent’s marriage to Felicisimo allegedly solemnized in California, U.S.A., she submitted
photocopies of the Marriage Certificate and the annotated text of the Family Law Act of California which
purportedly show that their marriage was done in accordance with the said law. As stated in Garcia, however, the
Court cannot take judicial notice of foreign laws as they must be alleged and proved.Therefore, this case should be
remanded to the trial court for further reception of evidence on the divorce decree obtained by Merry Lee and the
marriage of respondent and Felicisimo.

(3) Yes. Respondent’s legal capacity to file the subject petition for letters of administration may arise from her
status as the surviving wife of Felicisimo or as his co-owner under Article 144 of the Civil Code or Article 148 of the
Family Code.

Even assuming that Felicisimo was not capacitated to marry respondent in 1974, nevertheless, we find that the
latter has the legal personality to file the subject petition for letters of administration, as she may be considered
the co-owner of Felicisimo as regards the properties that were acquired through their joint efforts during their
cohabitation.

REPUBLIC OF THE PHILIPPINES v. MARELYN TANEDO MANALO (G.R. No.

221029)

FACTS

Marelyn Tanedo Manalo was married to a Japanese national. She later filed for divorce against her husband, and a
divorce decree was issued by a Japanese court.

In 2012, she sought the cancellation of the entry of marriage in the Civil Registry of San Juan, Metro Manila by
virtue of the said divorce decree. She later amended her petition for the judicial recognition of the divorce decree .

RTC denied Marelyn's petition, arguing that the divorce obtained by Marelyn in Japan should not be recognized.
The RTC held that based on Article 15 of the New Civil Code, the Philippine law "does not afford Filipinos the right
to file for a divorce whether they are in the country or living abroad, if they are married to Filipinos or to
foreigners, or if they celebrated their marriage in the Philippines or in another country" and that unless Filipinos
"are naturalized as citizens of another country, Philippine laws shall have control over issues related to Filipinos'
family rights and duties, together with the determination of their condition and legal capacity to enter into
contracts and civil relations, inclusing marriages."

Upon appeal, the CA overturned RTC's ruling. CA held that Article 26 of the Family Code of the Philippines (Family
Code) is applicable even if it was Manalo who filed for divorce against her Japanese husband because the decree
may obtained makes the latter no longer married to the former, capacitating him to remarry. As such, it would be
height of injustice to consider Manelyn as still married to the Japanese national, who, in turn, is no longer married
to her and can legally have another wife.

OSG's motion for recommendation was denied by CA. Hence, the instant petition.

RULING

Does a Filipino citizen have the capacity to remarry under Philippine law after initiating a divorce proceeding
abroad and obtaining a favorable judgment against his or her alien spouse who is capacitated to remarry? -- YES.

Paragraph 2 of Article 26 of the Family Code speaksof "a divorce x x x validly obtained abroad by the alien spouse
capacitating him or her to remarry." Based on a clear and plain reading of the provision, it only requires that there
be a divorce validly obtained abroad. The letter of the law does not demand that the alien spouse should be the
one who initiated the proceeding wherein the divorce decree was granted. It does not distinguish whether the
Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding.

The purpose of Paragraph 2 of Article 26 is to avoid the absurd situation where the Filipino spouse remains
married to the alien spouse who, after a foreign divorce decree that is effective in the country where it was
rendered, is no longer married to the Filipino spouse.

A Filipino who initiated a foreign divorce proceeding is in the same place and in like circumstances as a Filipino
who is at the receiving end of an alien initiated proceeding. Therefore, the subject provision should not make a
distinction. In both instance, it is extended as a means to recognize the residual effect of the foreign divorce
decree on a Filipinos whose marital ties to their alien spouses are severed by operations of their alien spouses are
severed by operation on the latter's national law.

In fact, there is no real and substantial difference between a Filipino who initiated a foreign divorce proceedings
and a Filipino who obtained a divorce decree upon the instance of his or her alien spouse. In the eyes of the
Philippine and foreign laws, both are considered as Filipinos who have the same rights and obligations in a alien
land. The circumstances surrounding them are alike.

Finally, a prohibitive view of Paragraph 2 of Article 26 would do more harm than good. If We disallow a Filipino
citizen who initiated and obtained a foreign divorce from the coverage of Paragraph 2 Article 26 and still require
him or her to first avail of the existing "mechanisms" under the Family Code, any subsequent relationship that he
or she would enter in the meantime shall be considered as illicit in the eyes of the Philippine law.

Worse, any child born out such "extra-marital" affair has to suffer the stigma of being branded as illegitimate.
Surely, these are just but a few of the adverse consequences, not only to the parent but also to the child, if We are
to hold a restrictive interpretation of the subject provision. The irony is that the principle of inviolability of
marriage under Section 2, Article XV of the Constitution is meant to be tilted in favor of marriage and against
unions not formalized by marriage, but without denying State protection and assistance to live-in arrangements or
to families formed according to indigenous customs.

Although the SC held that a Filipino may initiate divorce against a foreign spouse, Marelyn's case was still
remanded to the RTC to allow Marelyn to present evidence as proof of the relevant Japanese law on divorce.

RANCHO V SEIICHO TANAKA

Civil Law | Persons and Family Relations | Marriage | Marriages Solemnized Abroad and Foreign Divorce

Statutory Construction | Interpretation of Article 26 of the Family Code

FACTS:

Racho and Seiichi Tanaka were married on April 20, 2001 in Las Piñas City, Metro Manila. They lived together for
nine years in Japan and did not have any children. Racho alleged that on December 16, 2009, Tanaka filed for
divorce and the divorce was granted. She secured a Divorce Certificate issued by Consul Kenichiro Takayama of
the Japanese Consulate in the Philippines and had it authenticated by the DFA. She was informed that by reason
of certain administrative changes, she was required to return to the Philippines to report the documents for
registration and to file the appropriate case for judicial recognition of divorce.

She tried to have the Divorce Certificate registered with the Civil Registry of Manila but was refused since there
was no court order recognizing it. When she went to the Department of Foreign Affairs to renew her passport, she
was likewise told that she needed the proper court order. She was also informed by the National Statistics Office
that her divorce could only be annotated in the Certificate of Marriage if there was a court order capacitating her
to remarry.

She filed a Petition for Judicial Determination and Declaration of Capacity to Marry before the RTC but the latter
held that failed to prove that Tanaka legally obtained a divorce. Racho filed a Motion for Reconsideration which
was denied. Racho filed a Petition for Review on Certiorari with the SC but the latter deferred action on her
Petition pending her submission of a duly authenticated acceptance certificate of the notification of divorce. On
March 16, 2012, petitioner submitted her Compliance, attaching a duly authenticated Certificate of Acceptance of
the Report of Divorce that she obtained in Japan.

Petitioner argues that under the Civil Code of Japan, a divorce by agreement becomes effective upon notification,
whether oral or written, by both parties and by two or more witnesses. She contends that the Divorce Certificate
stating “Acceptance Certification of Notification of Divorce issued by the Mayor of Fukaya City, Saitama Pref.,
Japan” is sufficient to prove that she and her husband have divorced by agreement and have already effected
notification of the divorce. She avers further that under Japanese law, the manner of proving a divorce by
agreement is by record of its notification and by the fact of its acceptance, both of which were stated in the
Divorce Certificate. She insists that she is now legally capacitated to marry since Article 728 of the Civil Code of
Japan states that a matrimonial relationship is terminated by divorce.

ISSUE:

Whether the Certificate of Acceptance of the Report of Divorce is sufficient to prove the fact that a divorce was
validly obtained by Tanaka according to his national law.

RULING:

Yes. Under Article 26 of the Family Code, a divorce between a foreigner and a Filipino may be recognized in the
Philippines as long as it was validly obtained according to the foreign spouse’s national law. The second paragraph
provides that where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall
have capacity to remarry under Philippine law.

Mere presentation of the divorce decree before a trial court is insufficient. In Garcia v. Recio, the court established
the principle that before a foreign divorce decree is recognized in this jurisdiction, a separate action must be
instituted for that purpose. Courts do not take judicial notice of foreign laws and foreign judgments; thus, our
laws require that the divorce decree and the national law of the foreign spouse must be pleaded and proved like
any other fact before trial courts.

To prove the fact of divorce, petitioner presented the Divorce Certificate issued by Consul Takayama. This
Certificate only certified that the divorce decree, or the Acceptance Certification of Notification of Divorce, exists.
It is not the divorce decree itself. Upon appeal to this Court, however, petitioner submitted a Certificate of
Acceptance of the Report of Divorce, certifying that the divorce has been accepted.

The probative value of the Certificate of Acceptance of the Report of Divorce is a question of fact that would not
ordinarily be within this Court’s ambit to resolve. The court records, however, are already sufficient to fully
resolve the factual issues.

Additionally, the Office of the Solicitor General neither posed any objection to the admission of the Certificate of
Acceptance of the Report of Divorce nor argued that the Petition presented questions of fact. In the interest of
judicial economy and efficiency, this Court shall resolve this case on its merits.

The Office of the Solicitor General, however, posits that divorce by agreement is not the divorce contemplated in
Article 26 of the Family Code. In this particular instance, it is the Filipina spouse who bears the burden of this
narrow interpretation, which may be unconstitutional. Article II, Section 14 of our Constitution provides that State
recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of
women and men. Thus, Article 26 should be interpreted to mean that it is irrelevant for courts to determine if it is
the foreign spouse that procures the divorce abroad. Once a divorce decree is issued, the divorce becomes “validly
obtained” and capacitates the foreign spouse to marry. The same status should be given to the Filipino spouse.

The national law of Japan does not prohibit the Filipino spouse from initiating or participating in the divorce
proceedings. It would be inherently unjust for a Filipino woman to be prohibited by her own national laws from
something that a foreign law may allow. The question in this case, therefore, is not who among the spouses
initiated the proceedings but rather if the divorce obtained by petitioner and respondent was valid.

Here, the national law of the foreign spouse states that the matrimonial relationship is terminated by divorce. The
Certificate of Acceptance of the Report of Divorce does not state any qualifications that would restrict the
remarriage of any of the parties. There can be no other interpretation than that the divorce procured by petitioner
and respondent is absolute and completely terminates their marital tie. Even under our laws, the effect of the
absolute dissolution of the marital tie is to grant both parties the legal capacity to remarry.