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Recognizing a Foreign Divorce in the Philippines PDF Print E-mail

 

Although divorce by Filipinos is not recognized in the Philippines; divorce by the foreign spouse of a Filipino is recognized here.

 

Ever since the landmark Supreme Court ruling on Republic vs. Orbecido (G.R. No. 154380, October 5, 2005), recognition of divorce in the Philippines has been defined more clearly.

Under Art. 26 of the Family Code, it is stated:

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

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."


It is this second paragraph of Art. 26 that enables a Filipino spouse to remarry once his/her foreigner spouse obtains a divorce.

 

Alicia V. Sempio-Dy, in her book Handbook on the Family Code of the Philippines, explained the background behind the second paragraph of Art. 26:

“Under the second paragraph of the above Article, where a Filipino is married to a foreigner and the latter thereafter obtains a valid divorce abroad capacitating him or her to remarry, the Filipino spouse shall likewise have the capacity to remarry under the Philippine law.

The provision was not originally approved by the Civil Code Revision Committee but it was presented and approved at a Cabinet meeting after Pres. (Corazon) Aquino had already signed the Family Code as Exec. Order No. 209.  Hence, the President promulgated another Executive Order No. 227-amending Art. 26 of the Code by including this provision as a second paragraph therein.

The idea of the amendment is to avoid the absurd situation of a Filipino as being still married to his or her alien spouse, although the latter is no longer married to the Filipino spouse because he or she had obtained a divorce abroad which is recognized by his or her national law.

The amendment will also solve the problem of many Filipino women  who, under the Civil Code, are still considered married to their alien husbands even after the latter have already validly divorced them under their (the husbands) national laws and perhaps have already married again."

 

Prior to the Orbecido case, there was some debate on whether Filipinos who after becoming a naturalized citizen to another country (for example, USA) could apply this provision.

 

But in Orbecido, the Supreme Court ruled that:

 

"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 other words, what is important is that if the Filipino had changed his citizenship at the time the valid divorce is obtained, then the other Filipino spouse should be allowed to remarry.

 

" Nevertheless, 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," said the Supreme Court.

 

There is a need for the Supreme Court to draft more specific rules on the recognition of a divorce decree. As it happens, a petition such as this is raffled among all the courts instead of to the Family Court only.  Also, in the absence of more specific rules, judges are following the rule on nullity of marriage. One judge called the proceeding as a "mestizo" case because it falls under special proceedings while others consider it a civil case.

 

This remedy has become an alternative to filing a petition for nullity of marriage on the ground of psychological incapacity but it does not resolve the issue of properties between the husband and wife.  The division of properties has to be subject to another proceeding, although joining this as an alternative cause of action is worth exploring.