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SUPREME COURT REPORTS ANNOTATED VOLUME 744

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Case Title:
NORMA A. DEL SOCORRO, for and in
behalf of her minor child RODERIGO
NORJO VAN WILSEM, petitioner, vs. G.R. No. 193707. December 10, 2014.*
ERNST JOHAN BRINKMAN VAN
WILSEM, respondent. NORMA A. DEL SOCORRO, for and in behalf of her minor child
Citation: 744 SCRA 516 RODERIGO NORJO VAN WILSEM, petitioner, vs. ERNST JOHAN
More... BRINKMAN VAN WILSEM, respondent.

Search Result Remedial Law; Civil Procedure; Appeals; Hierarchy of Courts;

Republic v. Sunvar Realty Development Corporation, 674 SCRA 320
(2012), lays down the instances when a ruling of the trial court may be
brought on appeal directly to the Supreme Court (SC) without violating the
doctrine of hierarchy of courts.·At the outset, let it be emphasized that
We are taking cognizance of the instant petition despite the fact that the
same was directly lodged with the Supreme Court, consistent with the
ruling in Republic v. Sunvar Realty Development Corporation, 674 SCRA
320 (2012), which lays down the instances when a ruling of the trial court
may be brought on appeal directly to the Supreme Court without violating
the doctrine of hierarchy of courts.
Civil Law; Conflict of Law; Nationality Theory; Support; Since the
respondent is a citizen of Holland or the Netherlands, the Supreme Court
(SC) agrees with the Regional Trial Court (RTC)-Cebu that he is subject to
the laws of his country, not to Philippine law, as to whether he is obliged to
give support to his child, as well as the consequences of his failure to do so.
·We agree with respondent that petitioner cannot rely on Article 195 of
the New Civil Code in demanding support from respondent, who is a
foreign citizen, since

_______________

* THIRD DIVISION.

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Del Socorro vs. Van Wilsen

Article 15 of the New Civil Code stresses the principle of nationality.

In other words, insofar as Philippine laws are concerned, specifically the
provisions of the Family Code on support, the same only applies to Filipino
citizens. By analogy, the same principle applies to foreigners such that
they are governed by their national law with respect to family rights and
duties. The obligation to give support to a child is a matter that falls under
family rights and duties. Since the respondent is a citizen of Holland or
the Netherlands, we agree with the RTC-Cebu that he is subject to the
laws of his country, not to Philippine law, as to whether he is obliged to
give support to his child, as well as the consequences of his failure to do so.
Conflict of Laws; Evidence; Burden of Proof; Foreign Laws;
International Law; In international law, the party who wants to have a
foreign law applied to a dispute or case has the burden of proving the
foreign law.·In international law, the party who wants to have a foreign
law applied to a dispute or case has the burden of proving the foreign law.
In the present case, respondent hastily concludes that being a national of
the Netherlands, he is governed by such laws on the matter of provision of
and capacity to support. While respondent pleaded the laws of the
Netherlands in advancing his position that he is not obliged to support his
son, he never proved the same. It is incumbent upon respondent to plead
and prove that the national law of the Netherlands does not impose upon
the parents the obligation to support their child (either before, during or
after the issuance of a divorce decree), because Llorente v. Court of
Appeals, 345 SCRA 592 (2000), has already enunciated that: True, foreign
laws do not prove themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them. Like any other fact, they must
be alleged and proved.
Same; Doctrine of Processual Presumption; Foreign Laws; If the
foreign law involved is not properly pleaded and proved, our courts will
presume that the foreign law is the same as our local or domestic or
internal law.·In view of respondentÊs failure to prove the national law of
the Netherlands in his favor, the doctrine of processual presumption shall
govern. Under this doctrine, if the foreign law involved is not properly
pleaded and proved, our courts will presume that the foreign law is the
same as our local or domestic or internal law. Thus, since the law of the
Netherlands as regards the obligation to support has not been properly
pleaded and proved in the instant

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case, it is presumed to be the same with Philippine law, which

enforces the obligation of parents to support their children and penalizing
the noncompliance therewith.
Criminal Law; Violence Against Women and Their Children; The
deprivation or denial of financial support to the child is considered an act
of violence aga inst women and children.·The deprivation or denial of
financial support to the child is considered an act of violence against
women and children. In addition, considering that respondent is currently
living in the Philippines, we find strength in petitionerÊs claim that the
Territoriality Principle in criminal law, in relation to Article 14 of the New
Civil Code, applies to the instant case, which provides that: „[p]enal laws
and those of public security and safety shall be obligatory upon all who live
and sojourn in Philippine territory, subject to the principle of public
international law and to treaty stipulations.‰ On this score, it is
indisputable that the alleged continuing acts of respondent in refusing to
support his child with petitioner is committed here in the Philippines as
all of the parties herein are residents of the Province of Cebu City. As such,
our courts have territorial jurisdiction over the offense charged against
respondent. It is likewise irrefutable that jurisdiction over the respondent
was acquired upon his arrest.
Same; Same; Continuing Offenses; The act of denying support to a
child under Section 5(e)(2) and (i) of Republic Act (RA) No. 9262 is a
continuing offense, which started in 1995 but is still ongoing at present.·
The act of denying support to a child under Section 5(e)(2) and (i) of R.A.
No. 9262 is a continuing offense, which started in 1995 but is still ongoing
at present. Accordingly, the crime charged in the instant case has clearly
not prescribed. Given, however, that the issue on whether respondent has
provided support to petitionerÊs child calls for an examination of the
probative value of the evidence presented, and the truth and falsehood of
facts being admitted, we hereby remand the determination of this issue to
the RTC-Cebu which has jurisdiction over the case.

PETITION for review on certiorari of the orders of the Regional

Trial Court of Cebu City.
The facts are stated in the opinion of the Court.

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 Gica, Del Socorro, Espinoza, Villarmia, Fernandez & Tan for
petitioner.
Joyo, Labrado and Yapha Law Offices for respondent.

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule

45 of the Rules of Court seeking to reverse and set aside the
Orders1 dated February 19, 2010 and September 1, 2010,
respectively, of the Regional Trial Court of Cebu City (RTC-Cebu),
which dismissed the criminal case entitled People of the Philippines
v. Ernst Johan Brinkman Van Wilsem, docketed as Criminal Case
No. CBU-85503, for violation of Republic Act (R.A.) No. 9262,
otherwise known as the Anti-Violence Against Women and Their
Children Act of 2004.
The following facts are culled from the records:
Petitioner Norma A. Del Socorro and respondent Ernst Johan
Brinkman Van Wilsem contracted marriage in Holland on
September 25, 1990.2 On January 19, 1994, they were blessed with
a son named Roderigo Norjo Van Wilsem, who at the time of the
filing of the instant petition was sixteen (16) years of age.3
Unfortunately, their marriage bond ended on July 19, 1995 by
virtue of a Divorce Decree issued by the appropriate Court of
Holland.4 At that time, their son was only eighteen (18) months
old.5 Thereafter, petitioner and her son came home to the
Philippines.6

_______________

1 Penned by Judge Bienvenido R. Saniel, Jr.; Annexes „A‰ and „B‰ to Petition,
respectively, Rollo, pp. 22-26.
2 Rollo, p. 6.
3 Id.
4 Id., at p. 7.
5 Annex „F‰ to Petition, Rollo, p. 31.
6 Id., at p. 32.

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Del Socorro vs. Van Wilsen

According to petitioner, respondent made a promise to provide

monthly support to their son in the amount of Two Hundred Fifty
(250) Guildene (which is equivalent to Php17,500.00 more or less).7
However, since the arrival of petitioner and her son in the
Philippines, respondent never gave support to the son, Roderigo.8
Not long thereafter, respondent came to the Philippines and
remarried in Pinamungahan, Cebu, and since then, have been
residing thereat.9 Respondent and his new wife established a
business known as Paree Catering, located at Barangay Tajao,
Municipality of Pinamungahan, Cebu City.10 To date, all the
parties, including their son, Roderigo, are presently living in Cebu
City.11
On August 28, 2009, petitioner, through her counsel, sent a letter
demanding for support from respondent. However, respondent
refused to receive the letter.12
Because of the foregoing circumstances, petitioner filed a
complaint-affidavit with the Provincial Prosecutor of Cebu City
against respondent for violation of Section 5, paragraph E(2) of R.A.
No. 9262 for the latterÊs unjust refusal to support his minor child
with petitioner.13 Respondent submitted his counter-affidavit
thereto, to which petitioner also submitted her reply-affidavit.14
Thereafter, the Provincial Prosecutor of Cebu City issued a
Resolution recommending the filing of an information for the crime
charged against herein respondent.
The information, which was filed with the RTC-Cebu and raffled
to Branch 20 thereof, states that:

_______________

7 Annex „A‰ to Petition, Rollo, pp. 23-24.

8 Id., at p. 24.
9 Id., at p. 32.
10 Id.
11 Id., at pp. 23-24.
12 Supra note 5 at p. 32.
13 Rollo, p. 7.
14 Id.

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That sometime in the year 1995 and up to the present, more or less, in
the Municipality of Minglanilla, Province of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, the above named accused, did
then and there wilfully, unlawfully and deliberately deprive, refuse and
still continue to deprive his son RODERIGO NORJO VAN WILSEM, a
fourteen (14)-year-old minor, of financial support legally due him, resulting
in economic abuse to the victim.
CONTRARY TO LAW.15

Upon motion and after notice and hearing, the RTC-Cebu issued
a Hold Departure Order against respondent.16 Consequently,
respondent was arrested and, subsequently, posted bail.17
Petitioner also filed a Motion/Application of Permanent
Protection Order to which respondent filed his Opposition.18
Pending the resolution thereof, respondent was arraigned.19
Subsequently, without the RTC-Cebu having resolved the
application of the protection order, respondent filed a Motion to
Dismiss on the ground of: (1) lack of jurisdiction over the offense
charged; and (2) prescription of the crime charged.20
On February 19, 2010, the RTC-Cebu issued the herein assailed
Order,21 dismissing the instant criminal case against respondent on
the ground that the facts charged in the information do not
constitute an offense with respect to the respondent who is an alien,
the dispositive part of which states:

_______________

15 Id., at p. 22.
16 Id.
17 Id., at p. 24.
18 Id., at p. 8.
19 Id.
20 Id.
21 Supra note 7.

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Del Socorro vs. Van Wilsen

WHEREFORE, the Court finds that the facts charged in the

information do not constitute an offense with respect to the accused, he
being an alien, and accordingly, orders this case DISMISSED.
 The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for
his provisional liberty is hereby cancelled (sic) and ordered released.
SO ORDERED.
Cebu City, Philippines, February 19, 2010.22

Thereafter, petitioner filed her Motion for Reconsideration

thereto reiterating respondentÊs obligation to support their child
under Article 19523 of the Family Code, thus, failure to do so makes
him liable under R.A. No. 9262 which „equally applies to all persons
in the Philippines who are obliged to support their minor children
regardless of the obligorÊs nationality.‰24
On September 1, 2010, the lower court issued an Order25 denying
petitionerÊs Motion for Reconsideration and reiterating its previous
ruling. Thus:

x x x The arguments therein presented are basically a rehash of those

advanced earlier in the memorandum of

_______________

22 Id., at p. 24.
23 Art. 195. Subject to the provisions of the succeeding articles, the following
are obliged to support each other to the whole extent set forth in the preceding
article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate
children of the latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate
children of the latter; and
(5) Legitimate brothers and sisters, whether of full or half-blood.
24 Annex „R‰ to Petition, Rollo, p. 102.
25 Annex „B‰ to Petition, id., at p. 25.

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the prosecution. Thus, the court hereby reiterates its ruling that since
the accused is a foreign national he is not subject to our national law (The
Family Code) in regard to a parentÊs duty and obligation to give support to
his child. Consequently, he cannot be charged of violating R.A. 9262 for his
alleged failure to support his child. Unless it is conclusively established
that R.A. 9262 applies to a foreigner who fails to give support to his child,
notwithstanding that he is not bound by our domestic law which mandates
a parent to give such support, it is the considered opinion of the court that
no prima facie case exists against the accused herein, hence, the case
should be dismissed.
WHEREFORE, the motion for reconsideration is hereby DENIED for
lack of merit.
SO ORDERED.
Cebu City, Philippines, September 1, 2010.26

Hence, the present Petition for Review on Certiorari raising the

following issues:

1. Whether or not a foreign national has an obligation to support his

minor child under Philippine law; and
2. Whether or not a foreign national can be held criminally liable under
R.A. No. 9262 for his unjustified failure to support his minor child.27

At the outset, let it be emphasized that We are taking cognizance

of the instant petition despite the fact that the same was directly
lodged with the Supreme Court, consistent with the ruling in
Republic v. Sunvar Realty Development Corporation,28 which lays
down the instances when a ruling of the trial court may be brought
on appeal directly to the Supreme

_______________

26 Id.
27 Rollo, p. 10.
28 G.R. No. 194880, June 20, 2012, 674 SCRA 320.

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Del Socorro vs. Van Wilsen

Court without violating the doctrine of hierarchy of courts, to

wit:

x x x Nevertheless, the Rules do not prohibit any of the parties from

filing a Rule 45 Petition with this Court, in case only questions of law
are raised or involved. This latter situation was one that petitioners
found themselves in when they filed the instant Petition to raise only
questions of law.
In Republic v. Malabanan, the Court clarified the three modes of appeal
from decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ
of error under Rule 41, whereby judgment was rendered in a civil or
criminal action by the RTC in the exercise of its original jurisdiction; (2) by
a petition for review under Rule 42, whereby judgment was rendered by
the RTC in the exercise of its appellate jurisdiction; and (3) by a petition
for review on certiorari before the Supreme Court under Rule 45. „The first
mode of appeal is taken to the [Court of Appeals] on questions of fact or
mixed questions of fact and law. The second mode of appeal is brought to
the CA on questions of fact, of law, or mixed questions of fact and law. The
third mode of appeal is elevated to the Supreme Court only on
questions of law.‰ (Emphasis supplied)
There is a question of law when the issue does not call for an
examination of the probative value of the evidence presented or of the
truth or falsehood of the facts being admitted, and the doubt concerns the
correct application of law and jurisprudence on the matter. The resolution
of the issue must rest solely on what the law provides on the given set of
circumstances.29

Indeed, the issues submitted to us for resolution involve

questions of law · the response thereto concerns the correct
application of law and jurisprudence on a given set of facts, i.e.,
whether or not a foreign national has an obligation to

_______________

29 Id., at pp. 332-333.

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support his minor child under Philippine law; and whether or not
he can be held criminally liable under R.A. No. 9262 for his
unjustified failure to do so.
It cannot be negated, moreover, that the instant petition
highlights a novel question of law concerning the liability of a
foreign national who allegedly commits acts and omissions
punishable under special criminal laws, specifically in relation to
family rights and duties. The inimitability of the factual milieu of
the present case, therefore, deserves a definitive ruling by this
Court, which will eventually serve as a guidepost for future cases.
Furthermore, dismissing the instant petition and remanding the
same to the CA would only waste the time, effort and resources of
the courts. Thus, in the present case, considerations of efficiency
and economy in the administration of justice should prevail over the
observance of the hierarchy of courts.
Now, on the matter of the substantive issues, We find the
petition meritorious. Nonetheless, we do not fully agree with
petitionerÊs contentions.
To determine whether or not a person is criminally liable under
R.A. No. 9262, it is imperative that the legal obligation to support
exists.
Petitioner invokes Article 19530 of the Family Code, which
provides the parentÊs obligation to support his child. Petitioner
contends that notwithstanding the existence of a divorce decree
issued in relation to Article 26 of the Family Code,31 respondent is
not excused from complying with his obligation to support his minor
child with petitioner.

_______________

30 Supra note 23.

31 Art. 26. All marriages solemnized outside the Philippines, in accordance
with the laws in force in the country where they were solemnized, and valid there
as such, shall also be valid in this country, except those prohibited under Articles
35(1), (4), (5) and (6), 36, 37 and 38.

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Del Socorro vs. Van Wilsen

Where a marriage between a Filipino citizen and a foreigner is

validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under Philippine
law. (As amended by Executive Order 227)
On the other hand, respondent contends that there is no
sufficient and clear basis presented by petitioner that she, as well
as her minor son, are entitled to financial support.32 Respondent
also added that by reason of the Divorce Decree, he is not obligated
to petitioner for any financial support.33
On this point, we agree with respondent that petitioner cannot
rely on Article 19534 of the New Civil Code in demanding support
from respondent, who is a foreign citizen, since Article 1535 of the
New Civil Code stresses the principle of nationality. In other words,
insofar as Philippine laws are concerned, specifically the provisions
of the Family Code on support, the same only applies to Filipino
citizens. By analogy, the same principle applies to foreigners such
that they are governed by their national law with respect to family
rights and duties.36
The obligation to give support to a child is a matter that falls
under family rights and duties. Since the respondent is a citizen of
Holland or the Netherlands, we agree with the RTC-Cebu that he is
subject to the laws of his country, not to Philippine law, as to
whether he is obliged to give support to his child, as well as the
consequences of his failure to do so.37

_______________

32 Comment on the Petition for Review on Certiorari, Rollo,

p. 123.
33 Id., at p. 122.
34 Supra note 23.
35 Art. 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens of the Philippines,
even though living abroad.
 36 Supra note 7 at p. 24.
37 Id.

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In the case of Vivo v. Cloribel,38 the Court held that ·

Furthermore, being still aliens, they are not in position to invoke

the provisions of the Civil Code of the Philippines, for that Code
cleaves to the principle that family rights and duties are governed
by their personal law, i.e., the laws of the nation to which they belong
even when staying in a foreign country. (cf. Civil Code, Article 15)39

It cannot be gainsaid, therefore, that the respondent is not

obliged to support petitionerÊs son under Article 195 of the Family
Code as a consequence of the Divorce Covenant obtained in
Holland. This does not, however, mean that respondent is not
obliged to support petitionerÊs son altogether.
In international law, the party who wants to have a foreign law
applied to a dispute or case has the burden of proving the foreign
law.40 In the present case, respondent hastily concludes that being a
national of the Netherlands, he is governed by such laws on the
matter of provision of and capacity to support.41 While respondent
pleaded the laws of the Netherlands in advancing his position that
he is not obliged to support his son, he never proved the same.
It is incumbent upon respondent to plead and prove that the
national law of the Netherlands does not impose upon the parents
the obligation to support their child (either before, during or after
the issuance of a divorce decree), because Llorente v. Court of
Appeals,42 has already enunciated that:

_______________

38 No. L-25441, October 26, 1968, 25 SCRA 616.

39 Id., at pp. 625-626. (Emphasis supplied)
40 EDI-Staffbuilders International, Inc. v. NLRC, 563 Phil. 1, 22; 537 SCRA
409, 430 (2007).
41 Annex „N‰ to Petition, Rollo, p. 84.
42 399 Phil. 342; 345 SCRA 592 (2000).

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Del Socorro vs. Van Wilsen

True, foreign laws do not prove themselves in our jurisdiction and our
courts are not authorized to take judicial notice of them. Like any other
fact, they must be alleged and proved.43

In view of respondentÊs failure to prove the national law of the

Netherlands in his favor, the doctrine of processual presumption
shall govern. Under this doctrine, if the foreign law involved is not
properly pleaded and proved, our courts will presume that the
foreign law is the same as our local or domestic or internal law.44
Thus, since the law of the Netherlands as regards the obligation to
support has not been properly pleaded and proved in the instant
case, it is presumed to be the same with Philippine law, which
enforces the obligation of parents to support their children and
penalizing the noncompliance therewith.
Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that
a divorce obtained in a foreign land as well as its legal effects may
be recognized in the Philippines in view of the nationality principle
on the matter of status of persons, the Divorce Covenant presented
by respondent does not completely show that he is not liable to give
support to his son after the divorce decree was issued. Emphasis is
placed on petitionerÊs allegation that under the second page of the
aforesaid covenant, respondentÊs obligation to support his child is
specifically stated,46 which was not disputed by respondent.
We likewise agree with petitioner that notwithstanding that the
national law of respondent states that parents have no obligation to
support their children or that such obligation is not punishable by
law, said law would still not find appli

_______________

43 Id., at p. 354; p. 600. (Emphasis supplied)

44 Bank of America NT & SA v. American Realty Corporation, 378 Phil. 1279,
1296; 321 SCRA 659, 674 (1999).
45 G.R. No. 80116, June 30, 1989, 174 SCRA 653.
46 Rollo, p. 18.

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cability, in light of the ruling in Bank of America, NT and SA v.

American Realty Corporation,47 to wit:

In the instant case, assuming arguendo that the English Law on the
matter were properly pleaded and proved in accordance with Section 24,
Rule 132 of the Rules of Court and the jurisprudence laid down in Yao Kee,
et al. v. Sy-Gonzales, said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to
a sound and established public policy of the forum, the said foreign
law, judgment or order shall not be applied.
Additionally, prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, public policy and good
customs shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign
country.
The public policy sought to be protected in the instant case is the
principle imbedded in our jurisdiction proscribing the splitting up of a
single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent ·
If two or more suits are instituted on the basis of the same cause of
action, the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others.
Moreover, foreign law should not be applied when its application
would work undeniable injustice to the citizens or residents of the
forum. To give justice is the most important function of law; hence, a law,
or judgment or contract that is obviously unjust negates the fundamental
principles of Conflict of Laws.48

_______________

47 Supra note 44.

48 Id., at pp. 1296-1297; pp. 674-675. (Emphasis supplied)

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Del Socorro vs. Van Wilsen

Applying the foregoing, even if the laws of the Netherlands

neither enforce a parentÊs obligation to support his child nor
penalize the noncompliance therewith, such obligation is still duly
enforceable in the Philippines because it would be of great injustice
to the child to be denied of financial support when the latter is
entitled thereto.
We emphasize, however, that as to petitioner herself, respondent
is no longer liable to support his former wife, in consonance with
the ruling in San Luis v. San Luis,49 to wit:

As to the effect of the divorce on the Filipino wife, the Court ruled that
she should no longer be considered married to the alien spouse. Further,
she should not be required to perform her marital duties and obligations.
It held:
To maintain, as private respondent does, that, under our laws,
petitioner has to be considered still married to private respondent
and still subject to a wifeÊs obligations under Article 109, et. seq. of
the Civil Code cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with
possible rights to conjugal property. She should not be discriminated
against in her own country if the ends of justice are to be served.
(Emphasis added)50

Based on the foregoing legal precepts, we find that respondent

may be made liable under Section 5(e) and (i) of R.A. No. 9262 for
unjustly refusing or failing to give support to petitionerÊs son, to
wit:

_______________

49 543 Phil. 275; 514 SCRA 294 (2007).

50 Id., at p. 290; p. 309.

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SECTION 5. Acts of Violence Against Women and Their Children.·

The crime of violence against women and their children is committed
through any of the following acts:
xxxx
(e) Attempting to compel or compelling the woman or her child to
engage in conduct which the woman or her child has the right to desist
from or desist from conduct which the woman or her child has the right to
engage in, or attempting to restrict or restricting the womanÊs or her
childÊs freedom of movement or conduct by force or threat of force, physical
or other harm or threat of physical or other harm, or intimidation directed
against the woman or child. This shall include, but not limited to, the
following acts committed with the purpose or effect of controlling or
restricting the womanÊs or her childÊs movement or conduct:
xxxx
(2) Depriving or threatening to deprive the woman or her
children of financial support legally due her or her family, or
deliberately providing the womanÊs children insufficient financial support;
xxxx
(i) Causing mental or emotional anguish, public ridicule or
humiliation to the woman or her child, including, but not limited to,
repeated verbal and emotional abuse, and denial of financial support
or custody of minor children of access to the womanÊs child/children.51

_______________

51 Section 5(e) and (i) of R.A. No. 9262. (Emphasis supplied)

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 Del Socorro vs. Van Wilsen

Under the aforesaid special law, the deprivation or denial of

financial support to the child is considered an act of violence
against women and children.
In addition, considering that respondent is currently living in the
Philippines, we find strength in petitionerÊs claim that the
Territoriality Principle in criminal law, in relation to Article 14 of
the New Civil Code, applies to the instant case, which provides
that: „[p]enal laws and those of public security and safety shall be
obligatory upon all who live and sojourn in Philippine territory,
subject to the principle of public international law and to treaty
stipulations.‰ On this score, it is indisputable that the alleged
continuing acts of respondent in refusing to support his child with
petitioner is committed here in the Philippines as all of the parties
herein are residents of the Province of Cebu City. As such, our
courts have territorial jurisdiction over the offense charged against
respondent. It is likewise irrefutable that jurisdiction over the
respondent was acquired upon his arrest.
Finally, we do not agree with respondentÊs argument that
granting, but not admitting, that there is a legal basis for charging
violation of R.A. No. 9262 in the instant case, the criminal liability
has been extinguished on the ground of prescription of crime52
under Section 24 of R.A. No. 9262, which provides that:

SECTION 24. Prescriptive Period.·Acts falling under Sections 5(a) to

5(f) shall prescribe in twenty (20) years. Acts falling under Sections 5(g) to
5(i) shall prescribe in ten (10) years.

The act of denying support to a child under Section 5(e)(2) and (i)
of R.A. No. 9262 is a continuing offense,53 which

_______________

52 Rollo, p. 15.
53 In People v. De Leon, 608 Phil. 701, 722; 591 SCRA 178, 198 (2009), it was
held that:

533

VOL. 744, DECEMBER 10, 2014 533

Del Socorro vs. Van Wilsen

started in 1995 but is still ongoing at present. Accordingly, the

crime charged in the instant case has clearly not prescribed.
Given, however, that the issue on whether respondent has
provided support to petitionerÊs child calls for an examination of the
probative value of the evidence presented, and the truth and
falsehood of facts being admitted, we hereby remand the
determination of this issue to the RTC-Cebu which has jurisdiction
over the case.
WHEREFORE, the petition is GRANTED. The Orders dated
February 19, 2010 and September 1, 2010, respectively, of the
Regional Trial Court of the City of Cebu are hereby REVERSED
and SET ASIDE. The case is REMANDED to the same court to
conduct further proceedings based on the merits of the case.
SO ORDERED.

Velasco, Jr. (Chairperson), Villarama, Jr., Mendoza** and Reyes,

JJ., concur.

Petition granted, orders dated February 19, 2010 and September

1, 2010 reversed and set aside.

Notes.·While the principle of hierarchy of courts does indeed

require that recourses should be made to the lower courts before
 they are made to the higher courts, this principle is not an absolute
rule and admits of exceptions under well-defined circumstances.
(Republic vs. Caguioa, 691 SCRA 306 [2013])

_______________

A continued (continuous or continuing) crime is defined as a single crime,

consisting of a series of acts but all arising from one criminal resolution. Although
there is a series of acts, there is only one crime committed; hence, only one penalty
shall be imposed.
* * Designated acting member, in lieu of Associate Justice Francis H. Jardeleza,
per Special Order No. 1896 dated November 28, 2014.

534

534 SUPREME COURT REPORTS ANNOTATED

Del Socorro vs. Van Wilsen

It must be stressed that Family Courts are special courts, of the

same level as Regional Trial Courts. Under R.A. 8369, otherwise
known as the „Family Courts Act of 1997,‰ family courts have
exclusive original jurisdiction to hear and decide cases of domestic
violence against women and children. (Garcia vs. Drilon, 699 SCRA
352 [2013])
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 Close Reader

SUPREME COURT REPORTS ANNOTATED VOLUME 472

Information | Reference

Case Title:
REPUBLIC OF THE PHILIPPINES,
petitioner, vs. CIPRIANO ORBECIDO
III, respondent. 114 SUPREME COURT REPORTS ANNOTATED
Citation: 472 SCRA 114
Republic vs. Orbecido III
More...
*
G.R. No. 154380. October 5, 2005.
Search Result
REPUBLIC OF THE PHILIPPINES, petitioner, vs. CIPRIANO
ORBECIDO III, respondent.

Family Code; Marriages; Divorce; The Supreme Court holds that

paragraph 2 of Article 26 should be interpreted to include cases involving
parties who, at the time of the celebration of the marriage were Filipino
citizens, but later on, one of them becomes naturalized as a foreign citizen
and obtains a divorce decree.·This case concerns the applicability of
Paragraph 2 of Article 26 to a marriage between two Filipino citizens
where one later acquired alien citizenship, obtained a divorce decree, and
remarried while in the U.S.A. The interests of the parties are also adverse,
as petitioner representing the State asserts its duty to protect the
institution of marriage while respondent, a private citizen, insists on a
declaration of his capacity to remarry. Respondent, praying for relief, has
legal interest in the controversy. The issue raised is also ripe for judicial
determination inasmuch as when respondent remarries, litigation ensues
and puts into question the validity of his second marriage. x x x We hold
that Paragraph 2 of Article 26 should be interpreted to include cases
involving parties who, at the time of the celebration of the marriage were
Filipino citizens, but later on, one of them becomes naturalized as a
foreign citizen and obtains a divorce decree. The Filipino spouse should
likewise be allowed to remarry as if the other party were a foreigner at the
time of the solemnization of the marriage. To rule otherwise would be to
sanction absurdity and injustice. Where the interpretation of a statute
according to its exact and literal import would lead to mischievous results
or contravene the clear purpose of the legislature, it should be construed
according to its spirit and reason, disregarding as far as necessary the
letter of the law. A statute may therefore be extended to cases not within
the literal meaning of its terms, so long as they come within its spirit or
intent.
Same; Same; Same; The Supreme Court is unanimous in holding that
paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by
E.O. No. 227), should be interpreted to allow a Filipino citizen, who has
been divorced by a spouse who had acquired

_______________

* FIRST DIVISION.

115

VOL. 472, OCTOBER 5, 2005 115

Republic vs. Orbecido III

foreign citizenship and remarried, also to remarry.·We are unanimous in

our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No.
209, as amended by E.O. No. 227), should be interpreted to allow a Filipino
citizen, who has been divorced by a spouse who had acquired foreign
citizenship and remarried, also to remarry.
Same; Same; Same; The reckoning point is not the citizenship of the
parties at the time of the celebration of the marriage, but their citizenship
at the time a valid divorce is obtained abroad by the alien spouse
capacitating the latter to remarry.·We state the twin elements for the
application of Paragraph 2 of Article 26 as follows: 1. There is a valid
marriage that has been celebrated between a Filipino citizen and a
foreigner; and 2. A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry. The reckoning point is not the
citizenship of the parties at the time of the celebration of the marriage, but
their citizenship at the time a valid divorce is obtained abroad by the alien
spouse capacitating the latter to remarry. In this case, when CiprianoÊs
wife was naturalized as an American citizen, there was still a valid
marriage that has been celebrated between her and Cipriano. As fate
would have it, the naturalized alien wife subsequently obtained a valid
divorce capacitating her to remarry. Clearly, the twin requisites for the
application of Paragraph 2 of Article 26 are both present in this case. Thus
Cipriano, the „divorced‰ Filipino spouse, should be allowed to remarry.
Civil Procedure; Declaratory Relief; Requisites of a Petition for
Declaratory Relief.·The requisites of a petition for declaratory relief are:
(1) there must be a justiciable controversy; (2) the controversy must be
between persons whose interests are adverse; (3) that the party seeking
the relief has a legal interest in the controversy; and (4) that the issue is
ripe for judicial determination.

PETITION for review on certiorari of the decision and resolution of

the Regional Trial Court of Molave, Zamboanga del Sur, Br. 23.

The facts are stated in the opinion of the Court.

The Solicitor General for respondent.
Public AttorneyÊs Office for respondent.

116

116 SUPREME COURT REPORTS ANNOTATED

Republic vs. Orbecido III

QUISUMBING, J.:

Given a valid marriage between two Filipino citizens, where one

party is later naturalized as a foreign citizen and obtains a valid
divorce decree capacitating him or her to remarry, can the Filipino
spouse likewise remarry under Philippine law?
Before us is a case of first impression that behooves the Court to
make a definite ruling on this apparently novel question, presented
as a pure question of law.
In this
1
petition for review, the Solicitor General assails the
Decision dated May 15, 2002, of the Regional Trial Court of Molave,
2
Zamboanga del Sur, Branch 23 and its Resolution dated July 4,
2002 denying the motion for reconsideration. The court a quo had
declared that herein respondent Cipriano Orbecido III is
capacitated to remarry. The fallo of the impugned Decision reads:

„WHEREFORE, by virtue of the provision of the second paragraph of Art.

26 of the Family Code and by reason of the divorce decree obtained against
him by his American wife, the petitioner is given the capacity to remarry
under the Philippine Law.
3
IT IS SO ORDERED.‰

The factual antecedents, as narrated by the trial court, are as

follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M.
Villanueva at the United Church of Christ in the Philippines in
Lam-an, Ozamis City. Their marriage was blessed with a son and a
daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V.
Orbecido.
In 1986, CiprianoÊs wife left for the United States bringing along
their son Kristoffer. A few years later, Cipriano discov-

_______________

1 Rollo, pp. 20-22.

2 Id., at pp. 27-29.
3 Id., at pp. 21-22.

117

VOL. 472, OCTOBER 5, 2005 117

Republic vs. Orbecido III

ered that his wife had been naturalized as an American citizen.

Sometime in 2000, Cipriano learned from his son that his wife
had obtained a divorce decree and then married a certain Innocent
Stanley. She, Stanley and her child by him currently live at 5566 A.
Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for
authority to remarry invoking Paragraph 2 of Article 26 of the
Family Code. No opposition was filed. Finding merit in the petition,
the court granted the same. The Republic, herein petitioner,
through the Office of the Solicitor General (OSG), sought
reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE

4
26 OF THE FAMILY CODE

The OSG contends that Paragraph 2 of Article 26 of the Family

Code is not applicable to the instant case because it only applies to
a valid mixed marriage; that is, a marriage celebrated between a
Filipino citizen and an alien. The proper remedy, according to the5
OSG, is to file a petition for annulment or for legal separation.
Furthermore, the OSG argues there is no law that governs
respondentÊs situation. The OSG posits that 6
this is a matter of
legislation and not of judicial determination.
For his part, respondent admits that Article 26 is not directly
applicable to his case but insists that when his naturalized alien
wife obtained a divorce decree which capacitated

_______________

4 Id., at p. 105.
5 Id., at pp. 106-110.
6 Id., at p. 110.

118

118 SUPREME COURT REPORTS ANNOTATED

Republic vs. Orbecido III

her to remarry, he is likewise capacitated by operation 7

of law
pursuant to Section 12, Article II of the Constitution.
At the outset, we note that the petition for authority to remarry
filed before the trial court actually constituted a petition for
declaratory relief. In this connection, Section 1, Rule 63 of the Rules
of Court provides:

RULE 63 DECLARATORY RELIEF AND SIMILAR

REMEDIES
Section 1. Who may file petition·Any person interested under a deed, will,
contract or other written instrument, or whose rights are affected by a
statute, executive order or regulation, ordinance, or other governmental
regulation may, before breach or violation thereof, bring an action in the
appropriate Regional Trial Court to determine any question of construction
or validity arising, and for a declaration of his rights or duties, thereunder.
...

The requisites of a petition for declaratory relief are: (1) there must
be a justiciable controversy; (2) the controversy must be between
persons whose interests are adverse; (3) that the party seeking the
relief has a legal interest in the 8controversy; and (4) that the issue
is ripe for judicial determination.
This case concerns the applicability of Paragraph 2 of Article 26
to a marriage between two Filipino citizens where one later
acquired alien citizenship, obtained a divorce decree,

_______________

7 Sec. 12. The State recognizes the sanctity of family life and shall protect and

strengthen the family as a basic autonomous social institution. It shall equally

protect the life of the mother and the life of the unborn from conception. The
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of the
Government.
8 Office of the Ombudsman v. Ibay, G.R. No. 137538, 3 September 2001, 364

SCRA 281, 286, citing Galarosa v. Valencia, G.R. No. 109455, 11 November 1993,
227 SCRA 729, 737.

119

VOL. 472, OCTOBER 5, 2005 119

Republic vs. Orbecido III

and remarried while in the U.S.A. The interests of the parties are
also adverse, as petitioner representing the State asserts its duty to
protect the institution of marriage while respondent, a private
citizen, insists on a declaration of his capacity to remarry.
Respondent, praying for relief, has legal interest in the controversy.
The issue raised is also ripe for judicial determination inasmuch as
when respondent remarries, litigation ensues and puts into
question the validity of his second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article
26 of the Family Code apply to the case of respondent? Necessarily,
we must dwell on how this provision had come about in the first
place, and what was the intent of the legislators in its enactment?

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law

Executive Order No. 209, otherwise known as the „Family Code,‰
which took effect on August 3, 1988. Article 26 thereof states:

All marriages solemnized outside the Philippines in accordance with the

laws in force in the country where they were solemnized, and valid there
as such, shall also be valid in this country, except those prohibited under
Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family
Code, Executive Order No. 227 was likewise signed into law,
amending Articles 26, 36, and 39 of the Family Code. A second
paragraph was added to Article 26. As so amended, it now provides:

ART. 26. All marriages solemnized outside the Philippines in accordance

with the laws in force in the country where they were solemnized, and
valid there as such, shall also be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
 120

120 SUPREME COURT REPORTS ANNOTATED

Republic vs. Orbecido III

Where a marriage between a Filipino citizen and a foreigner is validly

celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (Emphasis supplied)

On its face, the foregoing provision does not appear to govern the
situation presented by the case at hand. It seems to apply only to
cases where at the time of the celebration of the marriage, the
parties are a Filipino citizen and a foreigner. The instant case is one
where at the time the marriage was solemnized, the parties were
two Filipino citizens, but later on, the wife was naturalized as an
American citizen and subsequently obtained a divorce granting her
capacity to remarry, and indeed she remarried an American citizen
while residing in the U.S.A. 9
Noteworthy, in the Report of the Public Hearings on the Family
Code, the Catholic BishopsÊ Conference of the Philippines (CBCP)
registered the following objections to Paragraph 2 of Article 26:

1. The rule is discriminatory. It discriminates against those

whose spouses are Filipinos who divorce them abroad. These
spouses who are divorced will not be able to re-marry, while
the spouses of foreigners who validly divorce them abroad
can.
2. This is the beginning of the recognition of the validity of
divorce even for Filipino citizens. For those whose foreign
spouses validly divorce them abroad will also be considered
to be validly divorced here and can re-marry. We propose
that this be deleted and made into law only after more
widespread consultation. (Emphasis supplied.)

Legislative Intent

Records of the proceedings of the Family Code deliberations showed

that the intent of Paragraph 2 of Article 26, according to Judge
Alicia Sempio-Diy, a member of the Civil

_______________

9 Held on January 27 and 28, 1988 and February 3, 1988.

121

VOL. 472, OCTOBER 5, 2005 121

Republic vs. Orbecido III

Code Revision Committee, is to avoid the absurd situation where the

Filipino spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article
10
26 traces its origin to the
1985 case of Van Dorn v. Romillo, Jr. The Van Dorn case involved a
marriage between a Filipino citizen and a foreigner. The Court held
therein that a divorce decree validly obtained by the alien spouse is
valid in the Philippines, and consequently, the Filipino spouse is
capacitated to remarry under Philippine law.
Does the same principle apply to a case where at the time of the
celebration of the marriage, the parties were Filipino citizens, but
later on, one of them obtains a foreign citizenship by
naturalization?
 The jurisprudential answer lies latent in the 1998 case of Quita
11
v. Court of Appeals. In Quita, the parties were, as in this case,
Filipino citizens when they got married. The wife became a
naturalized American citizen in 1954 and obtained a divorce in the
same year. The Court therein hinted, by way of obiter dictum, that a
Filipino divorced by his naturalized foreign spouse is no longer
married under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and
applying the rule of reason, we hold that Paragraph 2 of Article 26
should be interpreted to include cases involving parties who, at the
time of the celebration of the marriage were Filipino citizens, but
later on, one of them becomes naturalized as a foreign citizen and
obtains a divorce decree. The Filipino spouse should likewise be
allowed to remarry as if the other party were a foreigner at the time
of the solemnization of the marriage. To rule otherwise would be to
sanction absurdity and injustice. Where the interpretation of a
statute according

_______________

10 No. L-68470, 8 October 1985, 139 SCRA 139.

11 G.R. No. 124862, 22 December 1998, 300 SCRA 406.

122

122 SUPREME COURT REPORTS ANNOTATED

Republic vs. Orbecido III

to its exact and literal import would lead to mischievous results or

contravene the clear purpose of the legislature, it should be
construed according to its spirit and reason, disregarding as far as
necessary the letter of the law. A statute may therefore be extended
to cases not within the literal meaning
12
of its terms, so long as they
come within its spirit or intent.
If we are to give meaning to the legislative intent to avoid the
absurd situation where the Filipino spouse remains married to the
alien spouse who, after obtaining a divorce is no longer married to
the Filipino spouse, then the instant case must be deemed as
coming within the contemplation of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the
application of Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between

a Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time
of the celebration of the marriage, but their citizenship at the time a
valid divorce is obtained abroad by the alien spouse capacitating
the latter to remarry.
In this case, when CiprianoÊs wife was naturalized as an
American citizen, there was still a valid marriage that has been
celebrated between her and Cipriano. As fate would have it, the
naturalized alien wife subsequently obtained a valid divorce
capacitating her to remarry. Clearly, the twin requisites for the
application of Paragraph 2 of Article 26 are both present in this
case. Thus Cipriano, the „divorced‰ Filipino spouse, should be
allowed to remarry.

_______________

12 Lopez & Sons, Inc. v. Court of Tax Appeals, No. L-9274, 1 February 1957, 100

Phil. 850, 855.

123
 VOL. 472, OCTOBER 5, 2005 123
Republic vs. Orbecido III

We are also unable to sustain the OSGÊs theory that the proper
remedy of the Filipino spouse is to file either a petition for
annulment or a petition for legal separation. Annulment would be a
long and tedious process, and in this particular case, not even
feasible, considering that the marriage of the parties appears to
have all the badges of validity. On the other hand, legal separation
would not be a sufficient remedy for it would not sever the marriage
tie; hence, the legally separated Filipino spouse would still remain
married to the naturalized alien spouse.
However, we note that the records are bereft of competent
evidence duly submitted by respondent concerning the divorce
decree and the naturalization of respondentÊs wife. It is settled rule
that one who alleges a fact 13
has the burden of proving it and mere
allegation is not evidence.
Accordingly, for his plea to prosper, respondent herein must
prove his allegation that his wife was naturalized as an American
citizen. Likewise, before a foreign divorce decree can be recognized
by our own courts, the party pleading it must prove the divorce as a 14
fact and demonstrate its conformity to the foreign law allowing it.
Such foreign law must also be proved as our courts cannot take
judicial notice of foreign
15
laws. Like any other fact, such laws must
be alleged and proved. Furthermore, respondent must also show
that the divorce decree allows his former wife to remarry as
specifically required in Article 26. Otherwise, there would be no
evidence sufficient to declare that he is capacitated to enter into
another marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2
of Article 26 of the Family Code (E.O. No. 209, as

_______________

13 Cortes v. Court of Appeals, G.R. No. 121772, 13 January 2003, 395 SCRA 33,
38.
14 Garcia v. Recio, G.R. No. 138322, 2 October 2001, 366 SCRA 437, 447.
15 Id., at p. 451.

124

124 SUPREME COURT REPORTS ANNOTATED

Republic vs. Orbecido III

amended by E.O. No. 227), should be interpreted to allow a Filipino

citizen, who has been divorced by a spouse who had acquired
foreign citizenship and remarried, also to remarry. However,
considering that in the present petition there is no sufficient
evidence submitted and on record, we are unable to declare, based
on respondentÊs bare allegations that his wife, who was naturalized
as an American citizen, had obtained a divorce decree and had
remarried an American, that respondent is now capacitated to
remarry. Such declaration could only be made properly upon
respondentÊs submission of the aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines
is GRANTED. The assailed Decision dated May 15, 2002, and
Resolution dated July 4, 2002, of the Regional Trial Court of
Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.

Davide, Jr. (C.J., Chairman), Ynares-Santiago, Carpio and

Azcuna, JJ., concur.

Petition granted, assailed decision and resolution set aside.

 Note.·The accused who secured a foreign divorce, and later
remarried in the Philippines, in the belief that the foreign divorce
was valid, is liable for bigamy. (Diego vs. Castillo, 436 SCRA 67
[2004]).

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125

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