Partially effective

A LAW EACH DAY (KEEPS TROUBLE AWAY) - Jose C. Sison - The Philippine Star

Is a foreign divorce decree recognized in this jurisdiction? This is the question raised in this case between Carmen, a Filipina and Rudolph, a German.

Carmen and Rudolph first got married in Hamburg, Germany and then subsequently ratified here in Carmen’s hometown.  After 16 years of marriage and with two daughters, Liza and Cristy age 15 and 16 years respectively, Carmen already filed a petition for declaration of nullity of their marriage before the Regional Trial Court (RTC) of her province.

In a series of legal moves, Rudolph first asked the RTC to dismiss the petition then elevated the case to the Court of Appeals (CA) on a petition for certiorari after his motion to dismiss was denied by the RTC. And then pending the resolution of his petition in the CA, Rudolph also obtained a decree of divorce in Germany in a summary proceeding where Carmen was not present or represented by counsel and did not file any comment or answer. The decree was based on the German Civil Code provision to the effect that when a couple has lived separately for three years, their marriage is deemed irrefutably dissolved. By virtue of said decree, the parental custody of their two children was likewise given to Rudolph.

So back here, when the CA denied his petition and remanded the case to the RTC Rudolph filed a Second Motion to Dismiss before the RTC on the ground that the trial court had no jurisdiction over the subject matter of the suit as a decree of divorce had already been promulgated in Germany dissolving their marriage and granting the custody of the children to him.

Initially the RTC granted his motion and recognized the legal effects of the divorce decree obtained in Germany as far as Rudolph is concerned under the nationality principle in our civil law on the status of persons. In fact under Article 26 of the Family Code, both Rudolph and Carmen can re-marry.

But upon Motion for Partial Reconsideration filed by Carmen, the RTC partially set aside the order for the purpose of tackling among others the issue of the support and custody of their children. Was the RTC correct?

Yes. As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in our jurisdiction, but the legal effects thereof, e.g. on custody, care and support of the children must still be determined by our courts. A foreign judgment, such as the award of custody to Rudolph by the German Court can be recognized and be effective here provided the parties opposed to the judgment has been given ample opportunity to be heard. A foreign divorce decree is judgment against a person (in personam) as distinguished from action upon a specific thing (in rem). It is only a presumptive evidence of a right as between the parties and their successors in interest. It may be repelled by evidence of a want of jurisdiction, want of notice to a party, collusion, fraud, or clear mistake of law or fact (Rule 39, Section 48, 1997 Rules of Civil Procedure).

In this case, it cannot be said that Carmen was given the opportunity to challenge the judgment of the German Court with regard to the right of Rudolph to have custody of their two children. The proceeding was summary, Carmen’s participation is unclear and she has not been represented by counsel. It did not touch on who was the offending spouse that caused the dissolution of the marriage. Absent any finding that Carmen is unfit to have custody of the children, the RTC was correct in setting the case for hearing to determine the issue of parental custody (Roehr vs. Rodriguez et. al. G.R. 142820, June 20, 2003).

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E-mail: [email protected].

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