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G.R. No. 154380


October 5, 2005
Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and
obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under
Philippine law?
Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently
novel question, presented as a pure question of law.
In this petition for review, the Solicitor General assails theDecision[1] dated May 15, 2002, of the Regional
Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution[2] dated July 4, 2002 denying the motion
for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to
remarry. The fallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and
by reason of the divorce decree obtained against him by his American wife, the petitioner is given
the capacity to remarry under the Philippine Law.
The factual antecedents, as narrated by the trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the
Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V.
Orbecido and Lady Kimberly V. Orbecido.
In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later,
Cipriano discovered that his wife had been naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then
married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove
Avenue, San Gabriel, California.
Cipriano thereafter 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.
In this petition, the OSG raises a pure question of law:
The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case
because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen
and an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for legal
separation.[5] Furthermore, the OSG argues there is no law that governs respondents situation. The OSG
posits that this is a matter of legislation and not of judicial determination. [6]
For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his
naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by
operation of law pursuant to Section 12, Article II of the Constitution. [7]
At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a
petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides:

Section 1. Who may file petitionAny person interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or
other governmental regulation may, before breach or violation thereof, bring an action in the
appropriate Regional Trial Court to determine any question of construction or validity arising, and
for a declaration of his rights or duties, thereunder.

The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the
controversy must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal
interest in the controversy; and (4) that the issue is ripe for judicial determination. [8]
This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens
where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The
interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the
institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry.
Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial
determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of his
second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of
respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the
intent of the legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known
as the Family Code, which took effect on August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No.
227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second
paragraph was added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in
force in the country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
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 . (Emphasis

On its face, the foregoing provision does not appear to govern the situation presented by the case at hand.
It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino
citizen and a foreigner. The instant case is 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 U.S.A.
Noteworthy, in the Report of the Public Hearings [9] on the Family Code, the Catholic Bishops Conference of
the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26:
The rule is discriminatory. It discriminates against those whose spouses are Filipinos
who divorce them abroad. These spouses who are divorced will not be able to re-marry,
while the spouses of foreigners who validly divorce them abroad can.

This is the beginning of the recognition of the validity of divorce even for Filipino
citizens. For those whose foreign spouses validly divorce them abroad will also be

considered to be validly divorced here and can re-marry. We propose that this be deleted
and made into law only after more widespread consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article
26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd
situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer
married to the Filipino spouse.
Interestingly, 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.

Does the same principle apply to a case where at the time of the celebration of the marriage, the parties
were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals. [11] In Quita, the parties
were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in
1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino
divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that
Paragraph 2 of Article 26 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 becomes naturalized as a foreign citizen and
obtains a divorce decree. 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. To rule otherwise would be to sanction absurdity and
injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous
results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason,
disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the
literal meaning of its terms, so long as they come within its spirit or intent. [12]
If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then
the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26.


In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as



There is a valid marriage that has been celebrated between a Filipino citizen and a
foreigner; and
A valid divorce is obtained abroad by the alien spouse capacitating him or her to

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but
their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.
In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage
that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently
obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2
of Article 26 are both present in this case. Thus Cipriano, the divorced Filipino spouse, should be allowed to
We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file either
a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in
this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges
of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage
tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse.

However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the
divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has the
burden of proving it and mere allegation is not evidence. [13]
Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an
American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading
it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. [14] Such foreign
law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws
must be alleged and proved.[15] Furthermore, respondent must also show that the divorce decree allows his former
wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare
that he is capacitated to enter into another marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as
amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse
who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present
petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondents
bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had
remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made
properly upon respondents submission of the aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines isGRANTED. The assailed Decision dated May 15,
2002, and Resolutiondated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are
hereby SET ASIDE. No pronouncement as to costs. SO ORDERED.
EN BANC A.M. No. MTJ-92-706 March 29, 1995
Court, Branch 28, Manila, respondent.
This is a complaint by Lupo A. Atienza for Gross Immorality and Appearance of Impropriety against Judge Francisco
Brillantes, Jr., Presiding Judge of the Metropolitan Trial Court, Branch 20, Manila.
Complainant alleges that he has two children with Yolanda De Castro, who are living together at No. 34 Galaxy
Street, Bel-Air Subdivision, Makati, Metro Manila. He stays in said house, which he purchased in 1987, whenever he
is in Manila.
In December 1991, upon opening the door to his bedroom, he saw respondent sleeping on his (complainant's) bed.
Upon inquiry, he was told by the houseboy that respondent had been cohabiting with De Castro. Complainant did
not bother to wake up respondent and instead left the house after giving instructions to his houseboy to take care
of his children.
Thereafter, respondent prevented him from visiting his children and even alienated the affection of his children for
Complainant claims that respondent is married to one Zenaida Ongkiko with whom he has five children, as
appearing in his 1986 and 1991 sworn statements of assets and liabilities. Furthermore, he alleges that respondent
caused his arrest on January 13, 1992, after he had a heated argument with De Castro inside the latter's office.
For his part, respondent alleges that complainant was not married to De Castro and that the filing of the
administrative action was related to complainant's claim on the Bel-Air residence, which was disputed by De Castro.

Respondent denies that he caused complainant's arrest and claims that he was even a witness to the withdrawal of
the complaint for Grave Slander filed by De Castro against complainant. According to him, it was the sister of De
Castro who called the police to arrest complainant.
Respondent also denies having been married to Ongkiko, although he admits having five children with her. He
alleges that while he and Ongkiko went through a marriage ceremony before a Nueva Ecija town mayor on April
25, 1965, the same was not a valid marriage for lack of a marriage license. Upon the request of the parents of
Ongkiko, respondent went through another marriage ceremony with her in Manila on June 5, 1965. Again, neither
party applied for a marriage license. Ongkiko abandoned respondent 17 years ago, leaving their children to his care
and custody as a single parent.
Respondent claims that when he married De Castro in civil rites in Los Angeles, California on December 4, 1991, he
believed, in all good faith and for all legal intents and purposes, that he was single because his first marriage was
solemnized without a license.
Under the Family Code, there must be a judicial declaration of the nullity of a previous marriage before a party
thereto can enter into a second marriage. Article 40 of said Code provides:
The absolute nullity of a previous marriage may be invoked for the purposes of remarriage on the
basis solely of a final judgment declaring such previous marriage void.
Respondent argues that the provision of Article 40 of the Family Code does not apply to him considering that his
first marriage took place in 1965 and was governed by the Civil Code of the Philippines; while the second marriage
took place in 1991 and governed by the Family Code.
Article 40 is applicable to remarriages entered into after the effectivity of the Family Code on August 3, 1988
regardless of the date of the first marriage. Besides, under Article 256 of the Family Code, said Article is given
"retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil
Code or other laws." This is particularly true with Article 40, which is a rule of procedure. Respondent has not
shown any vested right that was impaired by the application of Article 40 to his case.
The fact that procedural statutes may somehow affect the litigants' rights may not preclude their retroactive
application to pending actions. The retroactive application of procedural laws is not violative of any right of a
person who may feel that he is adversely affected (Gregorio v. Court of Appeals, 26 SCRA 229 [1968]). The reason
is that as a general rule no vested right may attach to, nor arise from, procedural laws (Billones v. Court of
Industrial Relations, 14 SCRA 674 [1965]).
Respondent is the last person allowed to invoke good faith. He made a mockery of the institution of marriage and
employed deceit to be able to cohabit with a woman, who beget him five children.
Respondent passed the Bar examinations in 1962 and was admitted to the practice of law in 1963. At the time he
went through the two marriage ceremonies with Ongkiko, he was already a lawyer. Yet, he never secured any
marriage license. Any law student would know that a marriage license is necessary before one can get married.
Respondent was given an opportunity to correct the flaw in his first marriage when he and Ongkiko were married
for the second time. His failure to secure a marriage license on these two occasions betrays his sinister motives
and bad faith.
It is evident that respondent failed to meet the standard of moral fitness for membership in the legal profession.
While the deceit employed by respondent existed prior to his appointment as a Metropolitan Trial Judge, his
immoral and illegal act of cohabiting with De Castro began and continued when he was already in the judiciary.

The Code of Judicial Ethics mandates that the conduct of a judge must be free of a whiff of impropriety, not only
with respect to his performance of his judicial duties but also as to his behavior as a private individual. There is no
duality of morality. A public figure is also judged by his private life. A judge, in order to promote public confidence
in the integrity and impartiality of the judiciary, must behave with propriety at all times, in the performance of his
judicial duties and in his everyday life. These are judicial guideposts too self-evident to be overlooked. No position
exacts a greater demand on moral righteousness and uprightness of an individual than a seat in the judiciary
(Imbing v. Tiongzon, 229 SCRA 690 [1994]).
WHEREFORE, respondent is DISMISSED from the service with forfeiture of all leave and retirement benefits and
with prejudice to reappointment in any branch, instrumentality, or agency of the government, including
government-owned and controlled corporations. This decision is immediately executory. SO ORDERED.
FIRST DIVISION [A.M. No. MTJ-00-1329. March 8, 2001]
BORJA-MANZANO, petitioner,
Pangasinan, respondent.







The solemnization of a marriage between two contracting parties who were both bound by a prior existing
marriage is the bone of contention of the instant complaint against respondent Judge Roque R. Sanchez, Municipal
Trial Court, Infanta, Pangasinan. For this act, complainant Herminia Borja-Manzano charges respondent Judge with
gross ignorance of the law in a sworn Complaint-Affidavit filed with the Office of the Court Administrator on 12 May
Complainant avers that she was the lawful wife of the late David Manzano, having been married to him on 21
May 1966 in San Gabriel Archangel Parish, Araneta Avenue, Caloocan City. [1] Four children were born out of that
marriage.[2] On 22 March 1993, however, her husband contracted another marriage with one Luzviminda Payao
before respondent Judge. [3] When respondent Judge solemnized said marriage, he knew or ought to know that the
same was void and bigamous, as the marriage contract clearly stated that both contracting parties were separated.
Respondent Judge, on the other hand, claims in his Comment that when he officiated the marriage between
Manzano and Payao he did not know that Manzano was legally married.What he knew was that the two had been
living together as husband and wife for seven years already without the benefit of marriage, as manifested in their
joint affidavit.[4] According to him, had he known that the late Manzano was married, he would have advised the
latter not to marry again; otherwise, he (Manzano) could be charged with bigamy. He then prayed that the
complaint be dismissed for lack of merit and for being designed merely to harass him.
After an evaluation of the Complaint and the Comment, the Court Administrator recommended that
respondent Judge be found guilty of gross ignorance of the law and be ordered to pay a fine of P2,000, with a
warning that a repetition of the same or similar act would be dealt with more severely.
On 25 October 2000, this Court required the parties to manifest whether they were willing to submit the case
for resolution on the basis of the pleadings thus filed. Complainant answered in the affirmative.
For his part, respondent Judge filed a Manifestation reiterating his plea for the dismissal of the complaint and
setting aside his earlier Comment. He therein invites the attention of the Court to two separate affidavits [5] of the
late Manzano and of Payao, which were allegedly unearthed by a member of his staff upon his instruction. In those
affidavits, both David Manzano and Luzviminda Payao expressly stated that they were married to Herminia Borja
and Domingo Relos, respectively; and that since their respective marriages had been marked by constant quarrels,
they had both left their families and had never cohabited or communicated with their spouses

anymore. Respondent Judge alleges that on the basis of those affidavits, he agreed to solemnize the marriage in
question in accordance with Article 34 of the Family Code.
We find merit in the complaint.
Article 34 of the Family Code provides:
No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife
for at least five years and without any legal impediment to marry each other. The contracting parties shall state the
foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer
shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal
impediment to the marriage.
For this provision on legal ratification of marital cohabitation to apply, the following requisites must concur:
1. The man and woman must have been living together as husband and wife for at least five years before
the marriage;
2. The parties must have no legal impediment to marry each other;
3. The fact of absence of legal impediment between the parties must be present at the time of marriage;
4. The parties must execute an affidavit stating that they have lived together for at least five years [and
are without legal impediment to marry each other]; and
5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of
the parties and that he had found no legal impediment to their marriage. [6]
Not all of these requirements are present in the case at bar. It is significant to note that in their separate
affidavits executed on 22 March 1993 and sworn to before respondent Judge himself, David Manzano and
Luzviminda Payao expressly stated the fact of their prior existing marriage. Also, in their marriage contract, it was
indicated that both were separated.
Respondent Judge knew or ought to know that a subsisting previous marriage is a diriment impediment, which
would make the subsequent marriage null and void. [7] In fact, in his Comment, he stated that had he known that
the late Manzano was married he would have discouraged him from contracting another marriage. And respondent
Judge cannot deny knowledge of Manzanos and Payaos subsisting previous marriage, as the same was clearly
stated in their separate affidavits which were subscribed and sworn to before him.
The fact that Manzano and Payao had been living apart from their respective spouses for a long time already is
immaterial. Article 63(1) of the Family Code allows spouses who have obtained a decree of legal separation to live
separately from each other, but in such a case the marriage bonds are not severed. Elsewise stated, legal
separation does not dissolve the marriage tie, much less authorize the parties to remarry. This holds true all the
more when the separation is merely de facto, as in the case at bar.
Neither can respondent Judge take refuge on the Joint Affidavit of David Manzano and Luzviminda Payao
stating that they had been cohabiting as husband and wife for seven years.Just like separation, free and voluntary
cohabitation with another person for at least five years does not severe the tie of a subsisting previous
marriage. Marital cohabitation for a long period of time between two individuals who are legally capacitated to
marry each other is merely a ground for exemption from marriage license. It could not serve as a justification for
respondent Judge to solemnize a subsequent marriage vitiated by the impediment of a prior existing marriage.

Clearly, respondent Judge demonstrated gross ignorance of the law when he solemnized a void and bigamous
marriage. The maxim ignorance of the law excuses no one has special application to judges, [8] who, under Rule
1.01 of the Code of Judicial Conduct, should be the embodiment of competence, integrity, and independence. It is
highly imperative that judges be conversant with the law and basic legal principles. [9] And when the law
transgressed is simple and elementary, the failure to know it constitutes gross ignorance of the law. [10]
ACCORDINGLY, the recommendation of the Court Administrator is hereby ADOPTED, with
the MODIFICATION that the amount of fine to be imposed upon respondent Judge Roque Sanchez is increased to