Supreme Court
Supreme Court
Supreme Court
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 195432
Affairs that the same cannot be issued to her until she can prove bycompetent court decision
that her marriage with her said husband Masatomi Y. Ando is valid until otherwise declared.
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12. Prescinding from the foregoing, petitioners marriage with her said husband Masatomi Y.
Ando musttherefore be honored, considered and declared valid, until otherwise declared by
a competent court. Consequently, and until then, petitioner therefore is and must be declared
entitled to the issuance of a Philippine passport under the name Edelina Ando y Tungol.
Hence, this petitioner pursuant to Rule 63 of the Rules of Court.
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On 29 October 2010, petitioner filed with the RTC a Petition for Declaratory Relief, which was later
raffled off to Branch 46. She impleaded the Department of Foreign Affairs (DFA) as respondent and
prayed for the following reliefs before the lower court:
WHEREFORE, petitioner most respectfully prays of this Honorable Court that after proper
proceedings, judgment be rendered, as follows:
(a) declaring as valid and subsisting the marriage between petitioner Edelina T. Ando and her
husband Masatomi Y. Ando until otherwise declared by a competent court;
(b) declaring petitioner entitled to the issuance of a Philippine Passport under the name
"Edelina Ando y Tungol"; and
(c) directing the Department ofForeign Affairs to honor petitioners marriage to her husband
Masatomi Y. Ando and to issue a Philippine Passport to petitioner under the name "Edelina
Ando y Tungol".
Petitioner prays for such other just and equitable reliefs.
On 15 November 2010, in an Order dismissing the Petition for want of cause and action, as well as
jurisdiction, the RTC held thus:
Records of the case would reveal that prior to petitioners marriage to Masatomi Y. Ando, herein
petitioner was married to Yuichiro Kobayashi, a Japanese National, in Candaba, Pampanga, on
September 16, 2001, and that though a divorce was obtained and granted in Japan, with respect to
the their (sic) marriage, there is no showing that petitioner herein complied with the requirements set
forth in Art. 13 of the Family Code that is obtaining a judicial recognition of the foreign decree of
absolute divorce in our country.
It is therefore evident, under the foregoing circumstances, that herein petitioner does not have any
causeof action and/or is entitled to the reliefs prayed for under Rule 63 of the Rules of Court. In the
same vein, though there is other adequate remedy available to the petitioner, such remedy is
however beyond the authority and jurisdiction of this court to act upon and grant, as it isonly the
family court which is vested with such authority and jurisdiction.
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On 3 December 2010, petitioner filed an Ex ParteMotion for Reconsideration of the Order dated 15
November 2010. In anOrder dated 14 December 2010, the RTC granted the motion in this wise:
WHEREFORE, considering that the allegations and reliefs prayed for by the petitioner in her petition
and the instant Motion for Reconsideration falls within the jurisdiction of the Special Family Court of
this jurisdiction and for the interest ofsubstantial justice, the Order of the Court dated November 15,
2010 is hereby reconsidered.
Let the record of this case be therefore referred back to the Office of the Clerk of Court for proper
endorsement to the Family Court of this jurisdiction for appropriateaction and/or
disposition. Thereafter, the case was raffled to Branch 45 of the RTC. On 14 January 2011, the trial
court dismissed the Petition anew on the ground that petitioner had no cause of action. The Order
reads thus:
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The petition specifically admits that the marriage she seeks to be declared as valid is already her
second marriage, a bigamous marriage under Article 35(4) of the Family Codeconsidering that the
first one, though allegedly terminated by virtue of the divorce obtained by Kobayashi, was never
recognized by a Philippine court, hence, petitioner is considered as still married to Kobayashi.
Accordingly, the second marriage with Ando cannot be honored and considered asvalid at this time.
Petitioners allegation of Sec. 2 (a) of A.M. No. 02-11-10-SC is misplaced. The fact that no judicial
declaration of nullity of her marriage with Ando was rendered does not make the same valid because
such declaration under Article 40 ofthe Family Code is applicable onlyin case of re-marriage. More
importantly, the absence of a judicial declaration of nullity of marriage is not even a requisite to make
a marriage valid.
In view of the foregoing, the dismissal of this case is imperative.
only stated that the affiant had exhibited "her currentand valid proof of identity," which proof was not
properly indicated, however; (2) prior judicial recognition by a Philippine court of a divorce decree
obtained by the alien spouse is required before a Filipino spouse can remarry and be entitled to the
legal effects of remarriage; (3) petitioner failed to show that she had first exhausted all available
administrative remedies, such as appealing to the Secretary of the DFA under Republic Act No.
(R.A.) 8239, or the Philippine Passport Act of 1996, before resorting to the special civil action of
declaratory relief; and (4) petitioners Motion for Reconsideration before the RTC was a mere scrap
of paper and did not toll the running of the period to appeal. Hence, the RTC Order dated 14 January
2011 is now final.
On 29 November 2011, petitioner filed her Reply to the Comment, addressing the issues raised
therein.
THE COURTS RULING
The Court finds the Petition to be without merit.
First, with respect to her prayer tocompel the DFA to issue her passport, petitioner incorrectly filed a
petition for declaratory relief before the RTC. She should have first appealed before the Secretary of
Foreign Affairs, since her ultimate entreaty was toquestion the DFAs refusal to issue a passport to
her under her second husbands name.
Under the Implementing Rules and Regulations (IRR) of R.A. 8239, which was adopted on 25
February 1997, the following are the additional documentary requirements before a married woman
may obtain a passport under the name of her spouse:
SECTION 2. The issuance of passports to married, divorced or widowed women shall be made
inaccordance with the following provisions:
a) In case of a woman who is married and who decides to adopt the surname of her husband
pursuant to Art. 370 of Republic Act No. 386, she must present the original or certifiedtrue
copy of her marriage contract, and one photocopy thereof.
In addition thereto, a Filipino who contracts marriage in the Philippines to a foreigner, shall
be required to present a Certificate of Attendance in a Guidance and Counselling Seminar
conducted by the CFO when applying for a passport for the first time.
b) In case of annulment of marriage, the applicant must present a certified true copy of her
annotated Marriage Contract or Certificate of Registration and the Court Order effecting the
annulment.
c) In case of a woman who was divorced by her alien husband, she must present a certified
true copy of the Divorce Decree duly authenticated by the Philippine Embassy or consular
post which has jurisdiction over the place where the divorce is obtained or by the concerned
foreign diplomatic or consular mission in the Philippines.
When the divorcee is a Filipino Muslim, she must present a certified true copy of the Divorce Decree
or a certified true copy of the Certificate of Divorce from the Shariah Court or the OCRG. d) In the
event that marriage is dissolved by the death of the husband, the applicant must present the original
or certified true copy of the Death Certificate of the husband or the Declaration of Presumptive Death
by a Civil or Shariah Court, in which case the applicant may choose to continue to use her
husbands surname or resume the use of her maiden surname. From the above provisions, it is clear
that for petitioner to obtain a copy of her passport under her married name, all she needed to
present were the following: (1) the original or certified true copyof her marriage contract and one
photocopy thereof; (2) a Certificate of Attendance in a Guidance and Counseling Seminar, if
applicable; and (3) a certified true copy of the Divorce Decree duly authenticated by the Philippine
Embassy or consular post that has jurisdiction over the place where the divorce is obtained or by the
concerned foreign diplomatic or consular mission in the Philippines.
In this case, petitioner was allegedly told that she would not be issued a Philippine passport under
her second husbands name. Should her application for a passport be denied, the remedies
available to her are provided in Section 9 of R.A. 8239, which reads thus:
1wphi1
Sec. 9. Appeal. Any person who feels aggrieved as a result of the application of this Act of the
implementing rules and regulations issued by the Secretary shall have the right to appeal to the
Secretary of Foreign Affairs from whose decision judicial review may be had to the Courts in due
course.
The IRR further provides in detail:
ARTICLE 10
Appeal
In the event that an application for a passport is denied, or an existing one cancelled or restricted,
the applicant or holder thereof shall have the right to appeal in writing to the Secretary within fifteen
(15) days from notice of denial, cancellation or restriction.
Clearly, she should have filed anappeal with the Secretary of the DFA in the event of the denial of
her application for a passport, after having complied with the provisions of R.A. 8239. Petitioners
argument that her application "cannot be said to havebeen either denied, cancelled or restricted by
[the DFA ], so as to make her an aggrieved party entitled to appeal", as instead she "was merely
told" that her passport cannot be issued, does not persuade. The law provides a direct recourse for
petitioner in the event of the denial of her application.
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Second, with respect to her prayer for the recognition of her second marriage as valid, petitioner
should have filed, instead, a petition for the judicial recognition of her foreign divorce from her first
husband.
In Garcia v. Recio, we ruled that a divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided the decree is valid according to the national law of the foreigner. The
presentation solely of the divorce decree is insufficient; both the divorce decree and the governing
personal law of the alien spouse who obtained the divorce must be proven. Because our courts do
not take judicial notice of foreign laws and judgment, our law on evidence requires that both the
divorce decree and the national law of the alien must be alleged and proven and like any other fact.
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While it has been ruled that a petition for the authority to remarry filed before a trial court actually
constitutes a petition for declaratory relief, we are still unable to grant the prayer of petitioner. As
held by the RTC, there appears to be insufficient proof or evidence presented on record of both the
national law of her first husband, Kobayashi, and of the validity of the divorce decree under that
national law. Hence, any declaration as to the validity of the divorce can only be made upon her
complete submission of evidence proving the divorce decree and the national law of her alien
spouse, in an action instituted in the proper forum.
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WHEREFORE, the instant Petition is DENIED without prejudice to petitioner's recourse to the proper
remedies available.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Chief Justice, Chairperson
WE CONCUR:
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
C E R TI F I C ATI O N
Pursuant to Section 13 Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
Footnotes