Friday, December 30, 2005

Divorce obtained abroad by a Filipino not recognized in the Philippines

Summary:

[1] The second paragraph of Article 26 of the Family Code is the primary law on the issue of divorce and Filipino citizens: “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.”

[2] If it’s the Filipino spouse who initiates or files the divorce action against the alien spouse, the subsequent divorce will not be recognized here in the Philippines. If that Filipino gets married here again, he or she will be liable for bigamy.

[3] But if it is the alien spouse who initiates or files the divorce action, Article 26 of the Family Code will apply. The divorce will be recognized here in the Philippines; if the divorce allows the former alien spouse to remarry, the Filipino will also have the right to remarry under Philippine law.

[4] A Filipino spouse divorced by a spouse who had acquired foreign citizenship can remarry under Article 26 FC (Republic of the Philippines v. Cipriano Orbecido III).

[5] Consensual or mutual agreement divorces like kyogi rikon are not recognized here in the Philippines.

[6] A Filipino who validly obtains a divorce decree abroad and wants to remarry must first file with the Family Court a petition for recognition of a foreign divorce decree.

[7] A petition for recognition of a foreign divorce decree is a difficult legal process. Most Filipino lawyers, therefore, advise people to file instead a petition for declaration of nullity under Article 36 of the Family Code.

(Note: Please read my post Is the Philippine embassy in Japan violating Article 26 of the Family Code and Supreme Court decisions?)

A divorce obtained by a Filipino in another country, like the USA or Japan for example, is not recognized here in the Philippines.
In several decisions, our Supreme Court has ruled that a Filipino who obtains a divorce abroad and gets married here again, is liable for bigamy.

[1] People v. Schneckenburger: The Supreme Court held that the accused, who secured a foreign divorce and later remarried in the Philippines (believing that the foreign divorce was valid), is liable for bigamy.

[2] People v. Bitdu: The Court carefully distinguished between a mistake of fact from a mistake of law. A mistake of fact could be a basis for the defense of good faith in a bigamy case. On the other hand, a mistake of law does not excuse a person, even a lay person, from liability. In this case, the accused had obtained a divorce under Mohammedan custom. The Court held that even if the accused honestly believed she was not committing any violation of the law in contracting her second marriage, and that she had no criminal intent, these did not justify her act.

The Court also ruled that everyone is presumed to know the law. The lack of knowledge that the act constitutes a violation of the law does not exempt a person from the consequences.

When the divorce is obtained by an alien spouse against a Filipino
The second paragraph of Article 26 of the Family Code states:
“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.”
We must make a clear distinction here.

[1] If it is the Filipino spouse who initiates or files the divorce action against the alien spouse, the subsequent divorce will not be recognized here in the Philippines.
If that Filipino gets married here again, he or she will be liable for bigamy.

[2] However, if it is the alien spouse who initiates or files the divorce action, Article 26 of the Family Code will apply. The divorce will be recognized here in the Philippines; if the said divorce allows the former alien spouse to remarry, the Filipino will also have the right to remarry under Philippine law. That is, after the foreign divorce decree is recognized by a Philippine court; more on this below.

How do you know who filed or initiated the divorce proceedings?

I have come across some forums where the question has been asked as to how do you know who filed or initiated the divorce proceedings? Well, if you look at the divorce papers, the term “complainant” or “petitioner” refers to the person who filed or initiated the case. The term “defendant” or respondent refers to the person against whom the petition was filed.

What about consensual or mutual agreement divorces?

I have been told that in some countries like Japan and Korea, the alien spouse and the Filipino spouse can simply go through an administrative process where they can get divorced in less than a day. According to a Wikipedia article, 90% of divorces in Japan are by mutual consent (the term is “kyogi rikon”).

This kind of mutual consent or agreement divorce is not recognized here in the Philippines.
Article 26 of the Family Code contemplates a situation where the divorce is filed by the alien spouse against the “unwilling” or “innocent” Filipino spouse. Please read my post Is the Philippine embassy in Japan violating Article 26 of the Family Code and Supreme Court decisions?

What kind of petition to file - declaration of nullity or recognition of a foreign divorce decree?

As I said above,
before remarrying, the Filipino divorced by the foreign spouse must first file a petition in a Philippine court for the recognition of the foreign divorce decree. Only when the court has recognized the foreign divorce decree can the Filipino remarry.

A lot of Filipinos mistakenly think that if the Philippine embassy or consulate in the country where they are in accepts their divorce papers, then their divorce is automatically recognized here in the Philippines. They then get married again after submitting their divorce papers, and here is when the legal problems arise as I discussed at the top of this post.

The recognition of a foreign divorce decree is a judicial process and not an administrative process. The petition is filed with the courts and not with the Local Civil Registrar or with the National Statistics Office. If officials of the LCR or the NSO by themselves annotate the divorce decree on the marriage contract or certificate without any court order, they can be charged administratively.

Please take note also that the proper legal remedy is filing a petition for the recognition of the foreign divorce decree and not for annulment of the marriage. Legally speaking, “annulment ” refers to voidable marriages under Articles 45, 46 and 47 of the Family Code while “declaration of nullity” refers to void marriages under Articles 35, 36, 37, 38 and 41 of the Family Code. But Filipinos commonly use “annulment” as a generic term.

A petition for recognition of a foreign divorce decree is not specifically provided for under the 1997 Rules of Civil Procedure or by a specific Supreme Court rule. But Article 26 already provides that if the divorce was obtained by the alien spouse against the Filipino spouse, then the Filipino shall have the right to remarry. Thus, filing a petition for annulment or for declaration of nullity is pointless. Moreover, the foreign divorce decree cannot be used as the basis for the petition for annulment or for declaration of nullity since such petitions are governed by the articles of the Family Code I cited above.

Petition for recognition of a foreign divorce decree is a difficult legal process

Most Filipino lawyers, however, prefer the filing of a petition for declaration of nullity under Article 36 of the Family Code rather than a petition for recognition of a foreign divorce decree. Why? In a petition for recognition, the court will require the presentation of expert witnesses who can
(1) translate the divorce decree if it is written in a language other than English, or

(2) testify on the law of the country where the divorce was granted. 
The translator must either come from the embassy concerned or from the Department of Foreign Affairs; getting their services is costly or difficult. As to the expert witness on the law on marriage and divorce of the country which granted the decree, this is an even more difficult thing to do.

In the case of Republic of the Philippines v. Cipriano Orbecido III which I discussed in “The right of a divorced Filipino to remarry under Article 26 of the Family Code”, Orbecido (a Filipino) was divorced by his wife (a former Filipino who became a naturalized US citizen). Orbecido, invoking Paragraph 2 of Article 26 of the Family Code, later on filed a “petition for authority to remarry” with the Regional Trial Court in Zamboanga del Sur.

The Supreme Court clarified that instead of a “petition for authority to remarry” Orbecido should have filed a petition for declaratory relief under Rule 63 of the 1997 Rules of Civil Procedure. But the Court also expressly mentions “recognition of a foreign divorce decree which is why most lawyers file this kind of petition instead of a petition for declaratory relief. Perhaps it is time for the Supreme Court to issue a clarificatory rule of procedure dealing with situations falling under the second paragraph of Article 26.

How long will the petition for recognition of a foreign divorce decree take? Our Family Courts, which have jurisdiction over this kind of petition, are overloaded with cases especially those located in Metro Manila and major urban centers The court process can take more than a year or two.

What about a Filipino couple where one spouse becomes a foreign citizen and then obtains a divorce against the other?

Free PDF newsletter on divorce and remarriage under the Family Code(Note: Click the picture to download a free PDF newsletter on this topic.)

Please read also my post “The right of a divorced Filipino to remarry under Article 26 of the Family Code” where I discussed the 2005 Supreme Court ruling in Republic of the Philippines v. Cipriano Orbecido III. In this case, the Court ruled that:
[1] Paragraph 2 of Article 26 of the Family Code 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; and

[2] 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.
The Supreme Court ruling in Garcia-Recio vs. Recio (G.R. No. 138322, October 2, 2001) below illustrates this provision of the Family Code:
"A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence.

"Philippine law does not provide for absolute divorce; hence, our 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. In mixed marriages involving a Filipino and a foreigner, Article 26 of the Family Code allows the former to contract a subsequent marriage in case the divorce is “validly obtained abroad by the alien spouse capacitating him or her to remarry.” A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws.

"A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that “aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law.” Therefore, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Presentation solely of the divorce decree is insufficient.

"It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function. The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.

"Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry.

"We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.

"We agree with petitioner’s contention that the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very least, to prove his legal capacity to contract the second marriage.

"Neither can we grant petitioner’s prayer to declare her marriage to respondent null and void on the ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive evidence, if any, which show petitioner’s legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties’ marriage on the ground of bigamy, there being already in evidence two existing marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994."

For a discussion on divorce and Christians, please surf over to my Salt and Light weblog at http://www.-salt-and-light-.blogspot.com/.

As 2006 comes in, please reflect on the words of Joshua in chapter 3, verse 4 of his book: “that ye may know the way by which ye must go: for ye have not passed this way heretofore.”

Happy New Year!

38 comments :

Anonymous said...

Dear Atty. Galacio
How is it that a Filipina cannot have her divorce recognised if she instigates the divorce overseas. She was legally married overseas in a sovereign country, was mistreated by that husband (adultery / alcoholism / fathering 2 children out side of the marriage by the 'husband') and because of this mistreatment sought a divorce in the same country of marriage and was granted one without contest having these grounds accepted as a valid reason for divorce.
If I read your post and some articles elsewhere it seems that if she had been adulterous and a bad wife and he had instigated a divorce then she could now remarry legally in the Philippines.
If I am right then does the law, in effect, say that the Filipina should have suffered for the rest of her life? or pay huge fees to have the marriage annuled? I realise laws are made to protect us and to differentiate between right and wrong but this does seem somewhat onesided.
Thanks for reading this

Atty. Gerry T. Galacio said...

1. Thanks for your insightful comments. I fully empathize with the situation of the woman you described.

2. Article 26, 2nd paragraph (concerning divorce and remarriage by Filipino citizens) actually is an improvement over the previous legal provision on the same issue. Before the Family Code took effect in August 1988, the New Civil Code of the Philippines provision on this issue left Filipinos in a dilemma. While their foreigner-spouses are already divorced and able to (and may have actually remarried), these Filipino citizens were still considered under the NCC as married to these foreigners. Law students in the 1960s up to the 1988 remember this legal situation as renvoi and what the late Se, Arturo Tolentino described as a me of football.

3. What a lot of Filipinos do not realize as they live in foreign countries or get married to foreigners is that Article 15 of the New Civil Code cannot be swept aside. Please read my article entitled Ylmaz, Ruffa, TV Patrol … on what Article 15 is all about. Essentially, Article 15 states that Philippine laws on marriage for example apply to Filipinos wherever they may be in this world.

4. There is a legal principle which states Dura lex, sed lex. In English, this translates to “The law may be harsh, but it is the law.” Our lawmakers have intended to bring about the greatest good for the greatest number of people, balancing various beliefs, opinions and views. Our laws on marriage, divorce, remarriage (for example) are meant for the greatest good for the greatest number, but as so often happens in an imperfect world, certain groups or individuals (like the woman you described) end up as casualties.

Anonymous said...

I got married to a foreign national
overseas and got divorce in the same country. I got married for the second time overseas and also to a foregn national without knowing that under our law, I am still bound to my first marriage. If we decide to live in the Philippines (my second husband and me) will I be liable for bigamy?
Someone told me that I won't be liable for bigamy but my marriage will not be recognized in the Philippines, anywhere else in the world my second marriage is valid except in our country. If we live in the Philippines, what would be my civil status? Will it be married
(to my first husband)?Married to my second husband? Or divorce? I am really so confused.

Atty. Gerry T. Galacio said...

In our criminal justice system, venue is jurisdictional. This means that the criminal case must be filed in the place where the crime took place. If the crime took place in Manila, it cannot be filed in Quezon City for lack of jurisdiction. Since you got married a second time outside of the Philippines, the question is where in the Philippines should the case for bigamy be filed?

It is true however that your divorce (which you initiated) and subsequent remarriage will not be recognized here in the Philippines.

The problem that could possibly arise is when you fill out certain documents and you indicate that you are married (to your 2nd husband. Any person who knows about your previous marriage and divorce, might report you. The possibility is there that you could be charged with perjury or lying under oath. There are no easy, clear cut answers to your problem.

Anonymous said...

You have mentioned that in our criminal justice system,venue is jurisdictional. That means that no one can file a bigamy case against me since I didn't get married here in the Philippines. If anyone wants to file a case against me, they have to go to the foreign country where I got married. And in that foreign country, divorce is legal and acceptable. Am I liable for bigamy, just asking.When it comes to perjury,I am sure I am not the only one in this case.It seems to me that our law applies only for ordinary citizens and not applicable for the rich and famous.Why Ruffa Bektas can get away with bigamy,and perjury and perhaps adultery as well? Just asking.

Anonymous said...

Sir:
i am not sending comment but this relates to the discussions here. my question is...can a foreigh national file divorce to a filipina in the philippines where marriage took place? In the foreign country? Also, if filed here in the philippines, can a wife or husband file divorce in the philippines or abroad? please help me understand. thanks a lot

Atty. Gerry T. Galacio said...

Let us discuss the issues one by one.

1. A divorce obtained by Filipino citizens abroad will NOT be recognized here in the Philippines.

2. Some Filipinos think that if they get married in a country which allows divorce (Singapore for example), then they will be allowed to divorce their spouses. This is not true because of Article 15 of the New Civil Code of the Philippines. (Please search this blog for my posts on Article 15.)

3. What if an American gets married here in the Philippines to a Filipino citizen? Does it mean that he or she cannot divorce the Filipino spouse since divorce is not allowed here in the Philippines? That American (or any foreigner for that matter) can file for divorce in his or her country (or any other place in the world) since his national law allows divorce for him or her.

4. A Filipino citizen married to a foreigner : If the divorce is filed by the foreigner against the Filipino citizen and such a divorce allows the foreigner to remarry, then the divorce will be recognized here in the Philippines under Article 26 FC. What the Filipino should do is to file a petition on court here not for annulment but for the recognition of the foreign divorce decree.

Once the court grants the petition, it will order the NSO to make the proper annotation on the marriage certificate concerned.

If the divorce is filed by the Filipino citizen against the foreigner, then the divorce will not be recognized here in the Philippines. This is true even if for example the ground for the divorce was spousal violence by the foreigner against the Filipino citizen. This may sound harsh and unjustified BUT the problem really is that these Filipinos got married to foreigners without knowing what Philippine law (especially Article 15 of the New Civil Code) provides.

5. What about a divorce for example in Singapore or Korea or Taiwan or Japan? I am told that in these countries, all the foreigner and the Filipino spouse have to do is go to the City hall, file the divorce papers and then get the divorce decree within the same day. I have not read a specific Supreme Court ruling on this situation, but my reading of Article 26 of the Family Code is that such a ”consensual” or “mutually-agreed upon divorce” will not be recognized here. The idea behind Article 26 is that the Filipino citizen is the aggrieved party, that is, the divorce action was filed against him or her by the foreigner-spouse. In a ”consensual” or “mutually-agreed upon divorce”, it cannot be said that the Filipino was the aggrieved party.

6. What about if a Filipino becomes a naturalized citizen of another country and wants to remarry here in the Philippines? Since he or she is no longer a Filipino, the Family Code no longer applies to him or her. What should he or she do considering that the marriage certificate of his previous marriage is still on file with the NSO? My personal view is that once the former Filipino citizen is issued a Certificate of Legal Capacity to contract marriage by his embassy or consulate under Article 21 of the FC, then he or she can remarry here in the Philippines without fear of possible legal consequences. If ever a case of bigamy is filed, the defense can be raised that a divorce had already been granted to the naturalized citizen and that the second marriage was entered into not by a Filipino but by a citizen of another country.

The possible mess will be of two marriage certificates then being on file with the NSO. Can the naturalized citizen just send to the NSO a copy of the divorce decree? Possibly, but the NSO generally requires a court order for it to do anything like annotating the records on its files. Solution? Any party in this kind of situation can, before getting married, ask for the opinion of the NSO or the DOJ just to avoid potential problems later on. As far as I know, the NSO does not have internal rules or guidelines on this issue.

Anonymous said...

hi,
i am a filippina i am married to a brasililen guy in japan ( we got married in japan) but i am going to divorce here in japan and i wanna get married again to an europian guy, my question is it possible? and how long do i need to wait before i can get married again? i am waiting for yor answer!

Atty. Gerry T. Galacio said...

It is quite clear in my discussion that you as a Filipino citizen CANNOT get a divorce abroad becase it will NOT be recognized here in the Philippines. Even if you and your Brazilian husband mutually agree to a divorce, that will NOT be recognized here in the Philippines.

Please read my other posts on divorce and Filipino citizens also in this blog (look for the links in the sidebar).

Anonymous said...

Hello Atty.,

I hope for a wonderful day. I have a question concerning your reply one questioner:

" 4. A Filipino citizen married to a foreigner : If the divorce is filed by the foreigner against the Filipino citizen and such a divorce allows the foreigner to remarry, then the divorce will be recognized here in the Philippines under Article 26 FC. What the Filipino should do is to file a petition on court here not for annulment but for the recognition of the foreign divorce decree."



Once the court grants the petition, it will order the NSO to make the proper annotation on the marriage certificate concerned."

My question is, does one need a lawyer to facilitate the petition in court or could it be done by the petitioner itself?

Thank you and more power!

Atty. Gerry T. Galacio said...

A lawyer is needed to file the petition in court. The petitioner (or any person for that matter) is not allowed to do it himself or herself because that will constitute an “illegal practice of law.”

James said...

Atty. Galacio:

My question is... Is it possible for an American citizen to divorce his filipina wife with a child? And how long would the process be? They have been married for two years and only seen each other phisically for a total of maybe 45 days... They have reached their point I guess? I have a friend who is a bit lost... And have been helping him out to find bits of information about this. Thank you! For your time

Atty. Gerry T. Galacio said...

James,

In terms of divorce, an American citizen is not governed by the provisions of the Family Code. This means that he can file for divorce not here in the Philippines but in the US.

Adie said...

Hi Atty. Galacio, my bf in the US is a former filipino. he is a US citizen now. He got married in the Phil. in 1998.But hes a divorcee now, and it was his ex-wife who filed for a divorce but during that time my bf is already a US citizen.The ex-wife is still on an immigrant status.My question is: Does my bf still need to file for petition for annulment here in the Phil. before he can marry me?Thank you very much Atty.

Atty. Gerry T. Galacio said...

Your boyfriend is no longer a Filipino citizen and so the Family Code no longer applies to him. What he needs if he wants to get married here is a Certificate of Legal Capacity to contract marriage from the US Embassy.

The potential problem is that once you get married here, the NSO will have two marriage certificates on file under your boyfriend’s name.

Adie said...

The potential problem is that once you get married here, the NSO will have two marriage certificates on file under your boyfriend’s name. <<< atty., what can you suggest to do if this problem arises?thank you very much for taking time to answer our questions. more power to you.

Atty. Gerry T. Galacio said...

Adie,

Before getting married, you should inquire with the Legal Department of the NSO or its Public Information desk as to how you can avoid this kind of a potential problem.

Anonymous said...

greetings atty galacio, first oof all i want to thank you and say for the wonderful job of putting this up and clearing up some of our problems.
my inquiries is a bout my marriage, i was married in 2003 while me being 21 and wife turning 19 a month before. within the same year i migrated here in the states. after 2 yrs of thinking of a wonderful marriage i heard news of her cheating with another man. i went home and confirmed it, and it was true and then decided to just let here be. but we still remained good friends. now she had a baby last year with another man and having another one this month. what advice can you give us so both of us can go our separate lives. and also my girlfriend here is preassuring me bout this...thank you and god bless

Atty. Gerry T. Galacio said...

1. First of all, please read my Salt and Light blog (look for the graphic link in the sidebar) post titled “Biblical grounds for divorce and remarriage.”

2. Common ground for declaring a marriage null and void here in the Philippines is Article 36 Family Code or “psychological incapacity.” Please read the FAQ section of my Family Matters website (look for the link top of the sidebar) on what psychological incapacity is all about.

Please take note that the Supreme Court has ruled that marital infidelity by itself (or even promiscuity) does not constitute psychological incapacity. Please read my current post on the Dedel case.

Anonymous said...

Hi Atty. Galacio, i filed petition for recognition of divorce and granted..got certificate of finality order .registered at LCR then submitted to NSO but why i get a Notice of Exemption when i tried to get a marriage license ?

Atty. Gerry T. Galacio said...

1. What does the Notice of Exemption say?

2. The lawyer who handled your petition for recognition of your divorce decree is the best person you can ask with regards this matter.

Atty. Gerry T. Galacio said...
This comment has been removed by the author.
Anonymous said...

Good day Atty.

I have situations that needs your intelectual advice.

I have a friend who is a german and maried in germany with a filipina. They've been together for 21years but the relationship is not working.

Now they are both here in philippines in thesame house. My friend the german is not happy anymore for there is always trouble and quarrel everyday in their life together..He wanted to go out and get away from their marriege. I wanted to ask what is the best he can do legally to leave the filipina wife?

What if he file a divorce there in germany and still in process can he leave the house and live together to another girl? Is the wife still have the rights to go to the court to file case to her husband and the girl because they are still married? even though the divorce is being filed already?

Is there a need that the wife will agree to the divorce?

And if she will not agree what are the possible ways that my friend the german can go out legally from the marriage?

Please we need your answer from our querry..

thank you verry much God bless

waiting for the response..

Shirly

Atty. Gerry T. Galacio said...

Shirly,

Your German friend, if his national law allows it, can file a petition for divorce against the Filipino spouse. But as long as he is married and the petition for divorce has not been granted, his Filipino wife can file RA 9262 “Anti-Violence Against Women and Their Children Act of 2004” cases against him.

As to what German law provides about divorce, its procedures and effects, you have to inquire from a lawyer in Germany.

Hanzo said...

Dear Atty.

I wish you a good day, and if it is not too much to ask, I have a question regarding international divorce and re-marriage. I would greatly appreciate any input you can give based on the situation.

My Philippine girlfriend is currently living and working in Japan under a visa. She is married to a Japanese National. The Japanese National will be filing for a divorce against his Philippine wife soon. Based on what I have read, because it will be filed by the foreign husband against the Philippine National in his host country, than the divorce should be recognized in the Philippines.

With this being said, is there an amount of time that she will have to wait before re-marrying?

I would greatly appreciate any input you have in my situation.

Very Respectfully,
Hanzo

Atty. Gerry T. Galacio said...

Hanzo,

I have been informed by some parties with basically the same problem as yours that divorces in Japan are done by simply filing a document signed by both husband and wife with the office of the mayor. I have been told that in less than a day, the divorce is finalized once the mayor signs it. This kind of divorce where there is active participation or implied consent on the part of the Filipino citizen is NOT recognized here. The divorce recognized by Article 26 of the Family Code is one where it is clear that it is the foreigner-spouse who filed the divorce against the unwilling Filipino.

When the divorce decree is granted, then the Filipino spouse must file here a petition for recognition of the foreign divorce decree. A subsequent marriage is legally possible only AFTER the Philippine court has granted the petition to recognize the foreign divorce decree. Technically speaking, the subsequent marriage is possible only after the court decision has become final and executory. In practical terms, the branch clerk of court will issue what is called the “order of finality” or an “entry of judgment.” You can get married only after you get this certificate of finality from the court.

(Note: The Revised Penal Code of the Philippines provides that a woman cannot get married within 300 days after the death of her husband. This is to prevent confusion in paternity in case the woman is pregnant.)

Anonymous said...

Hi. I am still a Filipino citizen and married a Filipino citizen in 2000 in the US. I divorced my Filipino husband in 2009. We have reported this marriage to the Phillipine Embassy. I am in the process of getting my US citizenship. Will I be able to legally marry my Filipino fiance in the Philippines after i change my citizenship?
Miley

Anonymous said...

good day atty,
my question is,how long it will take to process the petition for recognition of foreign judgement?and how much it is usually cost?tahnks for the time atty....

Atty. Gerry T. Galacio said...

Miley,

You have a very interesting situation. Usually the situation involves a Filipino citizen who obtained a divorce as a Filipino citizen and while still a Filipino, wants to remarry. As you have read in this post, such is not allowed under the Family Code. In the Orbecido case (which I discussed in the related post “The right of a divorced Filipino to remarry under Article 26”; look for the link in the sidebar), the Supreme Court ruled that the “divorced Filipino” (strictly referring to the Filipino citizen whose spouse, an ex-Filipino, filed or initiated the divorce) can remarry.

In your situation, you obtained your divorce while you are still a Filipino citizen. After you become a US citizen, you are no longer bound by Philippine laws. Can you now remarry here in the Philippines? The requirement in the Family Code for foreigners wanting to get married here in the Philippines is to obtain a “certificate of legal capacity to contract marriage”. But if anyone who knows that you obtained your divorce while still a Filipino can file the proper complaint in court asking it to restrain the Local Civil Registrar from issuing a marriage license.

Your situation is interesting and open ended as of now. I am not aware of any decision by the Philippine Supreme Court on this kind of situation. If and when you do obtain your US citizenship and want to get married here, then the legal remedy for you is to file a petition for declaratory relief. In this kind of petition, you will be asking the Regional Trial Court to issue a ruling as to whether you can remarry here. You can also even now ask the Department of Justice to issue an opinion as to your situation.

Atty. Gerry T. Galacio said...

I already answered your e-mail.

Anonymous said...

Atty. Galacio,

Thank you very much for your response. It was very helpful. More power to you and God bless.

Miley

Mary said...

Hi Atty. Galacio,

I'm a Filipina citizen who got married to a Canadian citizen last 2004. We then migrated to Korea. We divorced last 2008 there and now I have sent the translated & notarized divorce decree to Philippine embassy which forwarded it to DFA and now on its way to NSO.

My questions are the following:
1) Is it needed for the divorce decree to be recognized by the Canadian Embassy too, so as to prove that it binds him as well?
(We resided in Korea for 4 years and he is still there.)
2) After NSO receives the document from DFA, what do I need to do? Can I obtain what I sent them for legal purposes or will they just issue me a receipt saying they received it?
3) From I what I read, I need to hire a lawyer to have this divorce recognition filed at the RTC. I got conflicting reports as to how long this legal process will last. Some said 3-6 months since it is not annulment.
4) My ex-husband was the complainant and I am the petitioner. On the divorce decree it says complainant and petitioner can no longer live together. This is a standard divorce message on Korean divorces. Am I qualified to file for foreign judgment of recognition or shall it be annulment.

I would greatly appreciate your enlightenment.

I've been losing weight and sleep thinking about everything.

Thank you.

Donna Lou said...

Hi sir,

I just got my annulment granted by a court dated December 2, 2009. My ex-husband and I has been separated for years upon filing the annulment and also we have 2 kids. We both have our own partners and just wanted to move on with our lives. But my lawyer said that the said annulment decision by the court must be annotated first by the National Statistics Office before I can actually have an annulment date. I have learned that my ex husband got married in the US recently even before we can have the annulment annotated here in the Philippines. My question is, is he legally allowed to do that or is he liable for a bigamy case. My boyfriend is a US citizen by the way and wants to marry me also, can he file for my petition (fiance visa application) already using the courts decision alone or do we still have to wait for the decision to be finalize by the National Statistics Office. One of my 2 children had his birth certificate legitimated by our previous marriage and since the court already granted the annulment, can i change his surname back to my surname?

Please enlighten me Sir. Thank you.

Atty. Gerry T. Galacio said...

Donna Lou,

1. Your lawyer is correct. Please read Section 23 of Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages in my website www.familymatters.org.ph under the Legal Procedures section.

If you get married again without that decree being annotated on the NSO files, you can be charged with bigamy. (Your marriage will also be void.) Please take note that bigamy is a public crime which means that ANYONE can file the case against you.

What about your husband since he has already gotten married? He has committed bigamy but the problem is that he cannot be charged here in the Philippines since the bigamous marriage took place outside the country. There is a problem with what lawyers call jurisdiction. (He can however be charged there in the US.)

2. Even if your marriage has been declared null and void, your children with your former husband are still considered legitimate. This is provided for by Article 54 of the Family Code which states:

Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.

Your legitimated child has the right to bear his/her father’s surname. You will find it very difficult if not impossible to ask our courts to change your legitimated child’s surname.

Atty. Gerry T. Galacio said...

Mary,

I already answered your e-mail but I am posting my answer here for the the benefit of other readers who might have the a=same problem.

Please clarify: “My ex-husband was the complainant and I am the petitioner”. In the Philippine judicial system, the terms “complainant” and “petitioner” refer to the same person. In a case, the person who files the complaint is the “complainant” while the person against whom the case is filed is called the “defendant”. In a petition, the person who files the petition is the “petitioner” while the person against whom the petition is filed is called the “respondent”.

Are you referring to a divorce filed in a Korean court or to a divorce filed in an administrative proceeding only?

Anyway, the principle is that if it is the foreign spouse who files or initiates the divorce against the “innocent” or “unwilling” Filipino spouse, then such will be recognized here in the Philippines. If the divorce you got was an administrative divorce where you and your foreign spouse mutually agreed to the divorce, then such will not be recognized here in the Philippines. This is true even if the NSO accepts your documents. Your remedy would then have to be to file for declaration of nullity, instead of filing a petition for recognition of a foreign divorce decree.

“I got conflicting reports as to how long this legal process will last. Some said 3-6 months since it is not annulment.”

You probably talked to non-lawyers. This kind of cases are handled by our Family Courts which handle numerous are usually overloaded with cases, especially those in Metro Manila and major urban areas. 3 to 4 months would just be spent for the filing of the case, issuance of the order, service of summons, etc. You can expect to spend at least a year or two for the case to be finished.

You need to sit down with a lawyer who can look at the divorce decree you have. The lawyer can then suggest what your legal remedies may be.

Anonymous said...

Attny: Gerry T. Galacio

Attorney just want to know the fee for the applying A court order for the divorce decree. Because my agent asking me for the price of 120Taiwan dollar...

Atty. Gerry T. Galacio said...

I already answered your e-mail.

Anonymous said...

I'm Catholic and I dislike divorce, but divorce is a human right, it's not up the government to decide, nor for the Catholic Church to impose their view upon all.