MORTEN v MORTEN & ANOR 2013 (2) ZLR 379 (H)

Flynote

Evidence — foreign law — finding or decision of court of foreign country — when such finding or decision may be accepted as stating what law of such country is

Headnote

The plaintiff, a Philippine national resident in Zimbabwe, married her first husband, also a Philippine national, in the Philippines in 1984. In February 2000, in Zimbabwe, she married her second husband (since deceased), an American who was resident in Zimbabwe. She presented herself as a divorcee, presenting a divorce order apparently granted in the Dominican Republic. The first defendant is the daughter of the plaintiff's second husband. She had been appointed the executrix dative of her late father's estate. She challenged the validity of the plaintiff's Zimbabwean marriage, to her late father.

It was argued that the first defendant had established that, according to the Constitution of the Philippines, Philippine nationals are not allowed to divorce. Counsel relied on the evidence of the first defendant and on a judgment of the Philippines Supreme Court. Further, according to the certified records held by the Administrator and Civil Registrar General National Statistics' Office of the Republic of the Philippines, the plaintiff was still married to her first husband. The first defendant admitted that she was not an expert in Philippine law.

Held, with regard to what the law of the Philippines is, under s 25(3)(a) of the Civil Evidence Act [Chapter 8:01], the court, in considering any issue as to the law of any foreign country or territory, may have regard to any finding or decision purportedly made or given in any court of record in that country or territory, where the finding or decision is reported or recorded in citable form. In terms of subs (5), a finding or decision shall be taken to be reported or recorded in citable form only if it is reportedor recorded in writing in a report, transcript or other document which, if the report, transcript or document had been prepared in connection with legal proceedings in Zimbabwe, could be cited as an authority in legal proceedings in Zimbabwe. The judgment produced was a finding or decision in terms of s 25(3)(a) and could be accepted in considering the Philippines law on divorce and how it would affect the plaintiff's purported divorce in the Dominican Republic. The official records from the Administrator and Civil Registrar General also presented a serious challenge to the validity of the plaintiff's marriage to the first defendant's father.