The firm recently assisted a client who intends to judicially recognize the foreign divorce decree obtained by her former spouse, a Japanese national. The case gave us an opportunity to examine the rulings in Nullada vs. Civil Registrar of Manila, Arreza vs. Toyo, Racha vs. Tanako, and Republic vs. Kikuchi, including the peculiar amendment introduced in our rules on evidence.
We write this article to share what we have learned and perhaps spark a meaningful discussion on the issue of what constitutes as sufficient proof in petitions for judicial recognition of foreign divorce.
Requisites
The Supreme Court consistently teaches that for a petition for judicial recognition of foreign divorce to prosper, the party must prove the fact of divorce and the national law of the foreign spouse allowing the divorce.[1]
Since these requisites are official acts of a sovereign authority, they must be proven by the official publications or copies attested by the officers having legal custody thereof, pursuant to Section 24, Rule 132 of the Rules of Court.[2]
I. Fact of Divorce
In Nullada vs. Civil Registrar of Manila and Arreza vs. Toyo, the Court deemed the fact of divorce sufficiently proven through the Divorce Certificate coupled with the Acceptance Certificate by the parties. The Acceptance Certificate served as the parties’ acceptance of the notification of divorce.[3] In Nullada, the Divorce Certificate was issued by the Embassy of Japan in the Philippines based on the Official Family Register issued by the Head of Katsushika-ku, Tokyo, Japan, while the Acceptance Certificate was issued by the Head of Katsushika-ku in Japan.[4]
The subsequent case of Republic vs. Kikuchi somehow amended Nullada. In this case, the Office of the Solicitor General (OSG) contended that the fact of divorce was not sufficiently established by mere submission of the Acceptance Certificate, arguing that the Divorce Decree itself must be presented in evidence. The Court overruled the OSG, declaring that the Acceptance Certificate is sufficient in proving the fact of divorce.
Also in Kikuchi, the Court interestingly addressed the issue of proper authentication. According to the Court, authentication can be made by other proper officers and not solely by the Embassy of the Philippines in Japan. Citing its ruling in Racho vs. Tanaka, the Court held:
The Certificate of Acceptance of the Report of Divorce was accompanied by an Authentication issued by Consul Bryan Dexter B. Lao of the Embassy of the Philippines in Tokyo, Japan, certifying that Kazutoyo Oyabe, Consular Service Division, Ministry of Foreign Affairs, Japan was an official in and for Japan. The Authentication further certified that he was authorized to sign the Certificate of Acceptance of the Report of Divorce and that his signature in it was genuine. Applying Rule 132, Section 24, the Certificate of Acceptance of the Report of Divorce is admissible as evidence of the fact of divorce between petitioner and respondent.[5]
Thus, under prevailing jurisprudence, the fact of divorce may be proven by presenting either or both the Divorce Certificate or the Acceptance Certificate duly issued by the authorities in Japan, coupled with the authentication from the embassy, consul, or any officer mentioned in the second sentence of Section 24, Rule 132 of the Rules of Court.
II. Foreign Law Allowing The Divorce
The next evidentiary requirement is proof of the foreign law allowing divorce. A survey of relevant cases demonstrates the Court’s adoption of a stringent evidentiary standard. In fact, some cases were either dismissed or remanded to the court a quo for failure to comply with this evidentiary requisite.
In Nullada, the Court held that petitioner failed to satisfy the evidentiary requirement as she only presented a photocopy of excerpts of The Civil Code of Japan, stamped LIBRARY, Japan Information and Culture Center, Embassy of Japan, 2627 Roxas Boulevard, Pasay City 1300.[6] The Court remanded the case to the trial court for further proceedings and reception of evidence on Japan’s divorce laws.[7]
On the other hand, the Court, in Arreza, sustained the trial court’s denial of the petition as “the copy of the Civil Code of Japan and its English translation submitted by Genevieve were not duly authenticated by the Philippine Consul in Japan, the Japanese Consul in Manila, or the Department of Foreign Affairs.”[8] The Court ratiocinated in Arreza:
The English translation submitted by petitioner was published by Eibun-Horei-Sha, Inc., a private company in Japan engaged in publishing English translation of Japanese laws, which came to be known as the EHS Law Bulletin Series. However, these translations are "not advertised as a source of official translations of Japanese laws;" rather, it is in the KANPO or the Official Gazette where all official laws and regulations are published, albeit in Japanese. Accordingly, the English translation submitted by petitioner is not an official publication exempted from the requirement of authentication.[9]
Finally, in Kikuchi, the Court agreed with the OSG, holding that petitioner failed to sufficiently prove the foreign law. Similar in Nullada, the petitioner in Kikuchi presented a photocopy of the English translation of the Civil Code of Japan, published by Eibun-Horei-Sha, Inc. and stamped with "LIBRARY,” Japan Information and Culture Center, Embassy of Japan, 2627 Roxas Boulevard, Pasay City.[10] The Court then ruled that the document is devoid of any probative value.[11]. The Court thus remanded the case to the court of origin for further proceedings and reception of evidence.
Nevertheless, in Racho vs. Tanaka, the Court deemed sufficient the proof of foreign law evidenced by a copy of the English Version of the Civil Code of Japan translated under the authorization of the Ministry of Justice and the Code of Translation Committee [12] (citations omitted). The Court cited the pertinent provision on the Japanese divorce law:
Article 728(1) of the Civil Code of Japan reads:
Article 728. 1. The matrimonial relationship is terminated by divorce.
Changes on the Rule in Proving Foreign Laws
At this juncture, it is important to note that the aforementioned cases were decided before the enactment of the Revised Rules on Evidence, which took effect on 1 May 2020 and amending, among others, Section 24, Rule 132 in this wise:
Section 24. Proof of official record. - The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his or her deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody.
If the office in which the record is kept is in a foreign country, which is a contracting party to a treaty or convention to which the Philippines is also a party, or considered a public document under such treaty or convention pursuant to paragraph (c) of Section 19 hereof, the certificate or its equivalent shall be in the form prescribed by such treaty or convention subject to reciprocity granted to public documents originating from the Philippines.
For documents originating from a foreign country which is not a contracting party to a treaty or convention referred to in the next preceding sentence, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his or her office.
A document that is accompanied by a certificate or its equivalent may be presented in evidence without further proof, the certificate or its equivalent being prima facie evidence of the due execution and genuineness of the document involved. The certificate shall not be required when a treaty or convention between a foreign country and the Philippines has abolished the requirement, or has exempted the document itself from this formality. (Emphasis supplied).
Worth noting is Section 19(c) of Rule 132 referred to in the second paragraph of Section 24, also a new rule from the amendments. Under said provision, public documents for evidentiary purposes include documents that are considered public documents under treaties and conventions which are in force between the Philippines and the country of source.[13]
In their work entitled “Insights on Evidence,” Former Chief Justice Diosdado Peralta, who was also the Vice/Working Chairperson of the Committee on the Revision of the Rules of Court, and Court of Appeals Associate Justice Eduardo Peralta, Jr. shed light on the legal implications of the changes in Section 24, Rule 132. The authors discussed that the amendment was put in place to reflect the Apostille Convention or the “Convention Abolishing the Requirement of Legalisation for Foreign Public Documents.”[14] The Philippines assented to the Convention on 12 September 2018, which took effect on 14 May 2019.[15] Article 2 of the Apostille Convention provides:
Article 2
Each Contracting State shall exempt from legalization documents to which the present Convention applies and which have to be produced in its territory. For the purposes of the present Convention, legalisation means only the formality by which the diplomatic or consular agents of the country in which the document has to be produced certify the authenticity of the signature, the capacity in which the person signing the document has acted, and where appropriate, the identity of the seal or stamp which it bears.[16]
Hence, taking together the exemption under the Apostille Convention and the amendment to Section 24, Rule 132, the authors opined that a foreign public document or official record from a State-signatory to the Apostille Convention is admissible in the Philippines as prima facie evidence of the authenticity of the foreign document, based on a certificate or its equivalent prescribed by the treaty or convention, subject to reciprocity, and without prejudice to subsequent abolition of the requirement or exemption therefrom.[17]
On the other hand, if the State is not a signatory to the Apostille Convention, a certificate for the foreign public record can suffice if made by the proper Philippine officer stationed in the foreign country and authenticated by the seal of his or her office.[18]
We therefore surmised that the prevailing case laws on proving the foreign law has been modified by the exemption under the Apostille Convention as integrated by the changes in Section 24, Rule 132. As far as we know, this new rule is yet to be applied by the Supreme Court in an actual case, but we deem that the intention of the amendment is to somehow loosen the stringent requirements on proving foreign laws.
When proof is sufficient
Based on the above discussions, the following guidelines can be deduced in sufficiently establishing the fact of divorce and the foreign law allowing the divorce:
To prove the fact of divorce, the petitioner shall present the Divorce Decree, if the divorce was coursed through the courts, and/or the Acceptance Certificate, if the divorce was not coursed through the courts.
To prove the foreign law allowing the divorce, petitioner must present a copy of the Japanese Civil Code, which, according to Arreza, is officially published in Japan’s KANPO or the Official Gazette [19] in the Japanese language.
Thus, for the proof of foreign law, a copy of the Japanese Civil Code, although obtained electronically, may be secured from official sources such as KANPO or the Official Gazette of Japan. It must be noted, however, that the Court in Arreza pointed out that the English translation of the Japanese Civil Code must be obtained from a source of official translations of Japanese laws. On the other hand, the Court in Racho recognized as sufficient proof an English version of the Civil Code of Japan translated with the authorization of the Ministry of Justice and the Code of Translation Committee.
In both requirements, what is crucial is the accompanying Apostille Certification as provided by the amended provision of Section 24, Rule 132.
As it stands, since Japan is a signatory to the Apostille Convention,[20] the Divorce Decree and/or Divorce Certificate, as well as the official copies and/or English translations of the Japanese Civil Code, both accompanied by an Apostille Certification, may be presented in evidence without further proof, the certificate or its equivalent being prima facie evidence of the due execution and genuineness of the document involved.[21]
We believe that the certification and authentication by the seal of office of the secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, alluded to as a crucial requirement under existing jurisprudence, may now be dispensed with.
Note: An English translation of the Japanese divorce law may also be accessed on the website of the Supreme Court of the Philippines:
However, while this copy may be certified by the Philippines’ Department of Foreign Affairs (DFA) Office of Legal Affairs, the copy is from the EHS Law Bulletin Series, which was the same publication rejected in Arreza for not being advertised as a source of official translations of Japanese laws. Thus, it would be safer to follow the rulings both in Arreza and Racho, which instruct that official publications from the KANPO or the Official Gazette of Japan shall be translated with the authorization of the Ministry of Justice and the Code of Translation Committee.
[1] Republic vs. Kikuchi, G.R. No. 243646, 22 June 2022
[2] Id.
[3] Nullada vs. Civil Registrar of Manila, G.R. No. 224548, 23 January 2019
[4] Id.
[5] Supra note 1, citing Racho vs Tanaka (2018)
[6] Supra note 3.
[7] Id.
[8] Arreza vs. Toyo, G.R. No. 213198, 01 July 2019
[9] Id.
[10] Supra note 1.
[11] Id.
[12] Racho vs. Tanaka, G.R. No. 199515, 25 June 2018
[13] Section 19(c), Rule 132, A.M. No. 19-08-15-SC (2020).
[14] Chief Justice Diosdado Peralta and Justice Eduardo Peralta Jr., “Insights on Evidence,” REX Book Store Inc., (2020).
[15] Id.
[16]Apostille Convention or the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, accessed at https://assets.hcch.net/docs/b12ad529-5f75-411b-b523-8eebe86613c0.pdf last 11November 2022.
[17] Supra note 14
[18] Id.
[19] Supra note 10
[20] Hague Conference on Private International Law, “Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents,” accessed at https://www.hcch.net/en/instruments/conventions/status-table/?cid=41 last 11 November 2022, see also Embassy of the Republic of the Philippines in Tokyo Japan, “What is an Apostille?” accessed at https://tokyo.philembassy.net/consular-section/services/notarial-services/apostille-formerly-authentication/ last 11 November 2022.
[21] Section 24, Rule 132, A.M. No. 19-08-15-SC (2020).
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