MOOT COURT COMPETITION 2023

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DISCUSSION FOR THE APPELLANT

Atty. Trixie: We will now hear the arguments in ______________________.

ROLLY: Thank you, your honor, and may it please the Court. I am ROLLY C. AROT, and, I, together
with co-counsel, CECILLE FULACHE, HANNAH MICCAH A. HATAYNA, and JOMMY R. APIAG,
represent KYLIE DELA TORRE-CONTIS, the appellant.

1. Firstly, Your Honor, it is clear from the facts of the case that this is inapplicable within the ambit
of the provision of Article 26 of the Family Code. The lower court’s reliance of this provision is
erroneous. The provision of which the lower court’s decision is based provides that: “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 likewise have capacity to remarry under Philippine law”, It is clear and in
equivocal terms that only a foreign or an alien spouse can initiate a divorce proceeding which is
plainly inapplicable in the case at bar. In our present case, it is undisputed that appellee is a
Filipino at the time he obtained the divorce decree in San Francisco, California, USA on
February 14, 2017. Likewise, the parties in this case are both Filipinos during the celebration of
their marriage on February 14, 2010 which plainly contradicts the situation envisioned by the
law that is: marriage between Filipino citizen and foreigner. Thus, we reiterated that this case is
not within the ambit of the application of Article 26 of the Family Code.

2. In the case of Republic v. Iyoy,, the Court categorically said “As it is worded, Article 26, paragraph
2, refers to a special situation wherein one of the parties in the marriage is a foreigner who
divorces his or her Filipino spouse. By its plain and literal interpretation, the said provision
cannot be applied to the case of respondent Crasus and his wife Fely because . x x x At the
time she filed for divorce, Fely was still a Filipino citizen, and pursuant to the nationality
principle embodied in Article 15 of the Civil Code of the Philippines, she was still bound by
Philippine laws on family rights and duties, status, condition, and legal capacity, even when she
was already living abroad. Philippine laws, then and even until now, do not allow and recognize
divorce between Filipino spouses. Thus, Fely could not have validly obtained a divorce from
respondent Crasus”.
 The fact that divorce is not a legal option for Filipino nationals was not lost to the Court when it
acknowledged that under the law, Philippine nationals are covered by the prohibition on
absolute divorce, “the same being considered contrary to [the country’s] concept of public
policy and morality.” Put it simply, Aljur who is a Filipino National is clearly covered on this
prohibition.

3. The case of Bayot v. CA is illustrative of the legal premises under which a foreign divorce is
recognized in Philippine jurisdiction:

First, a divorce obtained abroad by an alien married to a Philippine national

may be recognized in the Philippines, provided the decree of divorce is valid
according to the national law of the foreigner;

Second, the reckoning point is not the citizenship of the divorcing parties at
birth or at the time of marriage, but their citizenship at the time a valid divorce
is obtained abroad; and

Third, an absolute divorce secured by a Filipino married to another Filipino is

contrary to our concept of public policy and morality and shall not be
recognized in this jurisdiction.

4. Furthermore, this Court has ruled in Tenchavez v. Escaño, that a divorce obtained by Filipino
citizens after the effectivity of the Civil Code is not recognized in this jurisdiction as it is contrary
to State policy.

5. The provision of Art. 10 of Hague Convention on the Recognition of Divorces and Legal
Separations which took effect on June 1970 is enlightening. Two wit:

Article 10. Contracting States may refuse to recognize a divorce or legal separation if
such recognition is manifestly incompatible with their public policy ("ordre public").

6. As mentioned in Republic v. Orbecido, according to Judge Sempio-Diy, the purpose of adding

Paragraph 2 in Article 26 is to remedy a situation “where the Filipino spouse remains married to
the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.” It is
quite clear that this is the only scenario that the said Article was envisioned to cure.
7. As Justice Alfredo Benjamin S. Caguioa pointed out in his dissent in Republic vs Manalo — “it
bears to emphasize that the public policy against absolute divorce remains in force. At present,
there exists no legal mechanism under Philippine law through which a Filipino may secure a
divorce decree upon his or her own initiative. Accordingly, it is the Court’s duty to uphold such
policy and apply the law as it currently stands until the passage of an amendatory law on the
subject. As members of the Court, ours is the duty to interpret the law; this duty does not carry
with it the power to determine what the law should be in the face of changing times, which
power, in turn, lies solely within the province of Congress”.

8. There is a substantial distinction between a Filipino whose marriage was severed through a
divorce filed by his or her foreign spouse and who was subsequently successful in securing a
divorce decree; and a Filipino who initiated the proceeding himself or herself, even though he
or she does not have the capacity to do so. If the divorce decree is consequently issued in the
latter case, said Filipino should take responsibility for the consequence of being in an absurd
and unfair situation. To address the injustice in the above scenario, it is obvious that the law
needs to be changed, but it is not within the power of the Judiciary to do so.

9. Furthermore, it is an elementary rule in statutory construction that the Court is bound to apply
the plain language of a statute to accomplish the intent of the General Assembly. If the
language is clear and unambiguous, the court will not look to rules of construction or to
legislative history; it will simply apply the language. This is consistent with the legal maxim:
Dura lex, sed lex (the law is hard, but it is the law). It is a maxim of Roman civil law meaning
that, however regrettable the outcome of the legal decision may be, the law must be
proclaimed and enforced.

Secondly, Your Honor, we noticed that the lower court disregard the Nationality Rule embodied in
Article 15 of the New Civil Code of which the appellee is bound.

1. It is unbelievable for the lower court to grant the petition of the appellee notwithstanding the
controlling provision of Article 15 of the Civil Code which wholly referred as the Nationality Rule.
The said article provides that: “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”. The appellee cannot feign ignorance to the application of this rule that
regardless of where he is, as a citizen of the Philippines might be, he will be governed by
Philippine laws with respect to his family rights and duties, or to his status, condition and legal
capacity. In the present case, considering that our country has not yet passed a divorce decree,
Aljur as a Filipino is bound to it. Put it simply, the divorce decree he obtained in San Francisco,
California cannot be recognized under our laws.

2. The second paragraph of Article 26 is a window afforded to Filipino nationals who find
themselves trapped in a marriage where their foreign spouses have exercised the right to sever
the same through a divorce proceeding. It is necessarily limited because Philippine law does
not afford its own citizens, like Aljur, that same right. His own national law restricts him. In this
case, Aljur is basically restricted to institute a divorce proceeding because our law itself does
not provide for such judicial action.

3. Within the purview of the Nationality Rule, in the eyes of Philippine law in so far as the Filipino
is concerned and in cases where he or she is the one who procures the absolute divorce
abroad, his or her status is still married and therefore should he or she marry again, he or she
can be considered to have committed either concubinage in case of the husband or adultery in
case of the wife. With this, it can be categorically said that Aljur is still married to Kyrie
notwithstanding the divorce decree he validly obtained abroad.

4. The nationality rule does not provide for an exemption, nor the provision of Article 26 of the
Family Code can be considered as an exemption to it. The latter provision only sought to
supplement it by further bringing the process to a fair conclusion that when a foreign spouse
divorces a Filipino citizen, and that such divorce is recognized within the Philippine jurisdiction
under the nationality rule, fairness dictates that the Filipino concerned should also be allowed
to remarry. It is not enough merely to declare him or her as no longer married to his or her
foreign spouse. In Garcia v. Recio, the Court reiterated the requisite conditions before the
second paragraph of Article 26 of the Family Code can apply. Thus — “ At the outset, the Court
lays the following basic legal principles as the take-off points for the Court’s discussion.
Philippine law does not provide for absolute divorce; hence, Philippine courts cannot grant it. A
 marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad,
because of Articles 15 and 17 of the Civil Code”.

5. The basic problem with the decision of the lower court is that it wanted to provide a remedy for
a situation that is not within the scope of Article 26, Paragraph 2 to address. This provision was
never intended to carve an exception to the restriction imposed by Article 15.

6. In Philippine Intl. Trading Corporation v. Commission on Audit, the Court with regards to the
rules on statutory construction said that “there is an implicit mandate that its construction and
interpretation must be consistent, as much as possible, with other existing provisions of the
law”. In this case, the provisions of Article 26 must be interpreted in harmony with Article 15.
There is no conflict between the two mentioned provisions and the Court must not go beyond to
its plain meaning, making the two provisions contradictory to each other.

7. Since the Court is only granted judicial power, it should not attempt to assume or be compelled
to perform non-judicial functions. In interpreting the law, the judiciary should not go beyond its
well-established parameters, not even if the court believes that by doing so, a just and
equitable resolution of the case would be achieved. This is especially true if the desired remedy
lies elsewhere, within the power of another co-equal body, the Legislature.

8. Your Honor, under Article 2, Section XV of our 1987 Constitution which provides that:
““Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State”. In the case at bar, it is undoubtedly clear that Kylie, the appellant seeks
this protection from our State, whose marital bond is in the peril of dissolution. It is then the
position of the appellant that this Court shall uphold this constitutional safeguard for marriage
and the family as a whole, pursuant to applicable laws.

9. Allow us to remind this Court that “no union is more profound than marriage for it embodies the
highest ordeals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two
people become something, greater than once they were. Here, appellant Kylie wants to show
 to this Court that she valued the sanctity of her marriage with the appellee and believes that our
State shall be its prime protector in preserving it.

10. With the extensive discussion of the our arguments, Your Honor, in behalf of the appellant, we
earnestly hope and pray unto this Honorable Court to adjudge and declare that the decision of
the Regional Trial Court (RTC) of Quezon City that grants the appellee’s Petition for Judicial
Recognition of Divorce Decree dated May 31, 2023, be REVERSED AND SET ASIDE.

Thank you, Your Honor.