Unsettled issue

As a general rule, a divorce decree obtained in other countries by an alien married to a Filipino may be recognized here as far as endowing on the Filipino spouse the capacity to remarry. But as to other legal effects on support and custody of children or on the distribution of the properties, the foreign divorce decree may still be challenged. This is explained in this case of Anna and Herrman.

Herrman is a German citizen and a resident of Hamburg, Germany. On Dec. 11, 1980, he married Anna in Germany before the Civil Registrar of Hamburg-Altona. To fortify that bond, they subsequently held another wedding ceremony in Anna’s hometown of Tayasan, Negros Oriental on Valentine’s day of 1981. Their loving union was apparently fruitful as it produced two lovely daughters in a span of six years.

But after that, the marriage skidded on rocky grounds. Herrman spent more time in Germany than with his family. Finally after almost fifteen years of marriage, Anna could not bear such kind of relationship anymore. She filed a petition for declaration of nullity of their marriage on Aug. 28, 1996. In her petition she claimed that they acquired no conjugal or community property nor incurred any debt. So she only prayed that their marriage be declared void. Herrman tried to fend off such action through his lawyers here by filing a motion to dismiss Anna’s petition, to the extent of elevating the matter up to the appellate court on Sept. 5, 1997 when his motion was denied by the lower court. Apparently, Herrman was also busy making his moves in Germany to dissolve their marriage in a summary proceedings where Anna’s comment or opinion was not even asked or given.

Hence, even as the case here was still pending in the appellate court, Herrman already obtained a divorce decree from the Court of First Instance of Hamburg-Blankenese on Dec. 16, 1997. The decree dissolved his marriage to Anna before the Civil Registrar of Hamburg-Altona on Dec. 11, 1980 by virtue of the German Civil Code provision to the effect that when a couple lived separately for three years, the marriage is deemed irrefutably dissolved.It also granted parental cutody of their two daughters to Herrman.

When the Appellate Court here finally resolved to deny his motion to dismiss Anna’s petition on Nov. 27,1998 and remanded it back to the lower court, Herrman again asked the lower court to dismiss Anna’s petition on the ground that it has no jurisdiction over the subject matter of the action as a decree of divorce had already been promulgated in Germany dissolving their marriage. But Anna still opposed this motion only in so far as custody of children and distribution of the properties between them are concerned. The lower court recognized Anna’s opposition and set the case for hearing on those two issues.

Was the lower court correct?

Yes.

As a general rule, a divorce obtained abroad by an alien may be recognized in our jurisdiction provided such decree is valid according to the national law of the foreigner in view of the nationality principle in our civil law on the status of persons. But the legal effects thereof, e.g. on the care, custody and support of the children must still be determined by our courts.Before our courts can give the effect of res judicata to a foreign judgment, such as the award of custody to Herrman, it must be shown that the parties opposed to the judgment are given ample opportunity to do so, on grounds among others, of want of notice to the party, collusion, fraud, or clear mistake of law or fact (Rule 39, Section 48 [b], Revised Rules of Court).

It is essential that there should be an opportunity to challenge the foreign judgment, inorder for the court to properly determine its efficacy.In this jurisdiction, our Rules of Court clearly provide that with respect to actions in personam (like action for divorce), as distinguished from actions in rem, a foreign judgment merely constitutes prima facie evidence of the justness of the claim of a party and, as such, is subject to proof to the contrary.

In this case, Anna was not given the opportunity to challenge the judgment with regards to the right of Herrman to have parental custody of their two children. The proceedings in German Court were summary. It is not clear what was the extent of Anna’s participation therein. Only Herrman was represented by two lawyers. Anna has not commented on the proceedings nor given opinion to the Social Services Office in Germany. More importantly, the divorce judgment was given by virtue of the German Civil Code provision deeming the marriage of couple living separately for three years as irrefutably dissolved. It did not even touch on the issue as to who the offending spouse was. Absent any finding that Anna is unfit to obtain custody of the children, the lower court is correct in setting the case for hearing to determine the issue of parental custody, care, support and education, mindful of the best interests of the children.

On the matter of property relations however, the same is no longer an issue because Anna herself has alleged in her Petition that they have not acquired any conjugal or community property nor incurred any debt. So the lower court has no longer any jurisdiction to decide that issue (Roehr vs. Rodriguez et. al G.R. 142820, June 20, 2003).

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