Unsettled issue

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

Adolph, a German citizen and resident of Germany married Menchie, a Filipina, on December 11, 1980 in Hamburg, Germany. Their marriage was subsequently ratified on February 14, 1981 in Menchie’s hometown. Out of their union were born Lynne and Kristen on November 18, 1981 and October 25, 1987 respectively.

After 16 years of marriage, or on August 28, 1996, Menchie already filed a petition for declaration of nullity of their marriage before the Regional Trial Court (RTC). Adolph 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 September 5, 1997.

Meanwhile in a summary proceeding held on November 4, 1997 in a German Regional Trial Court where Menchie was not present or represented by counsel nor has she commented during the proceeding, Adolph was able to obtain a decree of divorce on December 16, 1997 under the German Civil Code provision 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 Adolph also.

So back here, when the CA denied his petition and remanded the case to the RTC on November 27, 1998, Adolph 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 Adolph is concerned under the nationality principle in our civil law on the status of persons. In fact under Article 26 of the Family Code Adolph and Menchie can both remarry.

But upon Motion for Partial Reconsideration filed by Menchie, 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 Adolph by the German Court can be recognized and be effective here provided the parties opposed to the judgment has 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 a presumptive evidence of a right as 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 Menchie was given the opportunity to challenge the judgment of the German Court with regard to the right of Adolph to have custody of their two children. The proceeding was summary, Menchie’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 Menchie 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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