Disputable

Since we consider marriage as an inviolable social institution, absolute divorce is not allowed here. But how about a foreign divorce decree, is this recognized in this jurisdiction? This is the question raised and answered in this case of Conrad and Carmen.

Conrad was a German citizen who married Carmen, a Filipina, in Hamburg, Germany. Their marriage was subsequently ratified here in Carmen’s hometown. Out of their union were born Gina and Karla.

Later on however, Carmen separated from Conrad. And after 16 years of rocky marriage, Carmen already filed a petition for declaration of nullity of their marriage before the Regional Trial Court (RTC). Conrad asked that the petition be dismissed but the RTC denied it. Then he took a series of legal moves questioning the denial of his motion to dismiss all the way up to the Court of Appeals (CA) where he filed a petition for Certiorari questioning the RTC ruling.

Meanwhile in a summary proceeding held in a German Regional Trial Court where Carmen was not present or represented by counsel or given the chance to comment, Conrad was able to obtain a decree of divorce pursuant to the German Civil Code provision declaring 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 also granted to Conrad.

So back here, when the CA denied his petition and remanded the case to the RTC, Conrad 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 Conrad was concerned under the nationality principle in our civil law on the status of persons. In fact the RTC said that under Article 26 of the Family Code Conrad and Carmen can both remarry.

But upon Motion for Partial Reconsideration filed by Carmen, the RTC, partially set aside the order of dismissal 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, like the custody, care and support of the children must still be determined by our courts. A foreign judgment, such as the award of custody to Conrad by the German Court can be recognized and be effective here only if the other party involved in the judgment like Carmen in this case, has been given ample opportunity to be heard. A foreign judgment in cases of actions in personam (against a person) as distinguished from actions in rem (upon a specific thing) is only a presumptive evidence of a right as between the parties and their successors in interest. It may be rejected 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 Conrad 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 aside the order of dismissal for further hearing to resolve the issue of parental custody (Roehr vs. Rodriguez et. al. G.R. 142820, June 20, 2003)

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