Deprived of right

Is a foreign judgment, particularly a divorce decree, recognized in this jurisdiction? This is the question raised in this case between Mely and Arthur.

Arthur, a German citizen and resident of Germany, married Mely, a Filipina, on Dec. 11, 1980 in Hamburg, Germany. Their marriage was subsequently ratified on Feb. 14, 1981 in Mely’s hometown. Out of their union were born Lina and Tina on Nov. 18, 1981 and Oct. 25, 1987, respectively.

After 16 years of marriage, or on Aug. 28, 1996, Mely filed a petition for declaration of nullity of their marriage before the Regional Trial Court (RTC). Arthur asked that the petition be dismissed but the RTC denied it. Then he filed a series of legal moves questioning the denial of his motion to dismiss up to the Court of Appeals (CA), where he filed a petition for certiorari on Sept. 5, 1997.

Meanwhile, in a summary proceeding held on Nov. 4, 1997 in a German regional trial court where Mely was not present or represented by counsel nor did she comment during the proceeding, Arthur was able to obtain a decree of divorce on Dec. 16, 1997 under the German Civil Code, to the effect that when a couple lived separately for three years, the marriage is deemed irrefutably dissolved. By virtue of said decree, the parental custody of their two children was granted to Arthur.

Back here, when the CA denied his petition and remanded the case to the RTC on Nov. 27, 1998, Arthur filed a Second Motion to Dismiss before the RTC on May 20, 1999, alleging 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 on July 14, 1999 and recognized the legal effects of the divorce decree obtained in Germany as far as Arthur is concerned, under the nationality principle in our civil law on the status of persons. In fact, under Article 26 of the Family Code, Arthur and Mely can both remarry.

But upon Motion for Partial Reconsideration filed by Mely, the RTC partially set aside the order of July 14, 1999 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 Arthur by the German court, can be recognized and be effective here provided the parties opposed to the judgment have been given ample opportunity to do so.

A foreign judgment against a person or action in personam as distinguished from action in rem (upon a specific thing) is only presumptive evidence of a right 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 Mely was given the opportunity to challenge the judgment of the German court with regard to the right of Arthur to have custody of their two children. The proceeding was summary, Mely’s participation is unclear and she had 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 Mely 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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