Divorce obtained abroad by a Filipino not recognized here

A divorce obtained by a Filipino in another country, like the USA 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.

In People v. Schneckenburger, the Court held that the accused who secured a foreign divorce, and later remarried in the Philippines, in the belief that the foreign divorce was valid, is liable for bigamy.

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

The Supreme Court further stated therein that with respect to the contention that the accused acted in good faith in contracting the second marriage, believing that she had been validly divorced from her first husband, it is sufficient to say that everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.

When the divorce is obtained by an alien spouse against a Filipino

The second paragraph of Article 26 of the Family Code states, to wit, “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. (As amended by Executive Order 227”)

We must make a distinction here. In the case of a Filipino married to an alien spouse, if he or she initiates or files the divorce action, the subsequent divorce will not be recognized here in the Philippines. If he or she gets married here again, he or she will be liable for bigamy.

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

What about a Filipino couple where one later on becomes a foreign citizen and he/she obtains a divorce against the other?

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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!