1. Divorce obtained abroad by a Filipino citizen against his or her Filipino spouse is not recognized here in the Philippines because of Articles 15 and 17 of the New Civil Code of the Philippines. 2. Paragraph 2 of Article 26 of the Family Code is the primary law on the issue of divorce between a Filipino citizen and an alien spouse: “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.” 3. Contrary to previous interpretations by lawyers and judges of paragraph 2 of Article 26 of the Family Code, the Supreme Court ruled in “Republic of the Philippines v. Marilyn Tanedo Manalo, April 24, 2018” that a divorce that is initiated and obtained abroad by a Filipino citizen against his or her alien spouse is valid and recognized in the Philippines. After obtaining the divorce decree, the Filipino spouse must file with the Family Court a petition for recognition of the divorce decree, either for record purposes or in case of a possible remarriage. Mere filing of the divorce decree with the Philippine embassy or consulate is not sufficient. If the divorced Filipino gets married again in the Philippines, he or she can be charged with bigamy. The petitioner must prove two things: (1) the existence of the divorce decree as a fact and (2) the foreign law that allows the alien spouse to remarry. 4. Related discussion: Divorce obtained abroad by a former Filipino citizen against his or her Filipino spouse is recognized in the Philippines. (Republic of the Philippines v. Cipriano Orbecido III) 5. Related discussion: “Is the Philippine embassy in Japan violating Article 26 of the Family Code and Supreme Court decisions?” 6. A petition for judicial recognition of a foreign divorce decree is a difficult and expensive legal process. Most Filipino lawyers, therefore, advise people to file instead a petition for declaration of nullity under Article 36 of the Family Code. 7. House Bill 7185, authored by Taguig City-Pateros Rep. Pia Cayetano, seeks to eliminate the need for judicial recognition of a foreign divorce decree. |
Marriage between spouses who are both Filipino citizens
A marriage between two Filipinos cannot be dissolved by a divorce obtained abroad because of Articles 15 and 17 of the New Civil Code of the Philippines. (Garcia-Recio vs. Recio, G.R. No. 138322, October 2, 2001)
Mixed marriage (between a Filipino citizen and an alien spouse)
Paragraph 2 of Article 26 of the Family Code is the primary law on the issue of divorce between a Filipino citizen and an alien spouse:
“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.”
Contrary to previous interpretations by lawyers and judges of paragraph 2 of Article 26, the Supreme Court ruled in the case of Republic of the Philippines v. Marilyn Tanedo Manalo, (April 24, 2018) that a divorce initiated and obtained abroad by a Filipino citizen against his or her alien spouse is now recognized in the Philippines . The Court said:
Based on a clear and plain reading of the provision, it only requires that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien spouse should be the one who initiated the proceedings wherein the divorce decree was granted. It does not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding.
Pertinent sections of the Supreme Court ruling in “Republic of the Philippines v. Marilyn Tanedo Manalo”
Paragraph 2 of Article 26 confers jurisdiction on Philippine courts to extend the effect of a foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage. It authorizes our courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow divorce. Philippine courts cannot try the case on the merits because it is tantamount to trying a divorce case. Under the principles of comity, our jurisdiction recognizes recognizes a valid divorce obtained by a spouse of foreign nationality, but the legal effects thereof, e.g., on custody, care and support of the children or property relations of the spouses, must still be determined by our courts.
In 2005, this Court concluded that Paragraph 2 of Article 26 applies to a case where, at the time of them marriage, the parties were Filipino citizens, but later on, one of them acquired foreign citizenship by naturalization, initiated a divorce proceeedings, and obtained a favorable decree. (Republic of the Phils. v. Orbecido III)
... a Flipino citizen has the capacity to remarry under Philippine law after initiating a divorce proceeding abroad and obtaining a favorable judgment against his or her alien spouse who is capacitated to remarry.
... a validly obtained foreign divorce decree initiated by the Filipino spouse can be recognized and given legal effects in the Philippines is implied from Our rulings in Fujiki v. Marinay. et al. and Medina v. Koike.
There is no compelling reason to deviate from the above-mentioned rulings. When this Court recognized a foreign divorce decree that was initiated and obtained by the Filipino spouse and extended its legal effects on the issues of child custody and property relations, it should not stop short in likewise acknowledging that one of the usual and necessary consequences of absolute divorce is the right to remarry. Indeed, there is no longer a mutual obligation to live together and observe fidelity. When the marriage tie is severed and ceased to exist, the civil status and the domestic relation of the former spouses change as both of them are freed from the marital bond.
Paragraph 2 of Article 26 speaks of “a divorce xxxx validly obtained abroad by the alien spouse capacitating him or her to remarry.” Based on a clear and plain reading of the provision, it only requires that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien spouse should be the one who initiated the proceedings wherein the divorce decree was granted. It does not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding.
Petition for judicial recognition of a divorce decree
After obtaining the divorce decree, the Filipino spouse must file with the Family Court a petition for recognition of the divorce decree, either for record purposes or in case of a possible remarriage. Mere filing of the divorce decree with the Philippine embassy or consulate is not sufficient; if the divorced Filipino gets married again in the Philippines, he or she can be charged with bigamy.
The recognition of a foreign divorce decree is a judicial process and not an administrative process. The petition is filed with the Family Court 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 certificate without any court order, they can be charged administratively.
In “Republic of the Philippines v. Marilyn Tanedo Manalo,” the petitioner (Manalo) submitted to the Family Court the following:
- Decision of the Japanese Court allowing the divorce
- “Authentication/Certificate” issued by the Philippine Consulate General in Osaka, Japan of the “Decree of Divorce”
- “Acceptance of Certificate of Divorce” by the Petitioner and the Japanese national
The Supreme Court in the Manalo ruling stated the requirements that the Family Court must follow:
Jurisprudence has set guidelines before Philippine courts recognize a foreign judgment relating to the status of a marriage where one of the parties is a citizen of a foreign country. Presentation solely of the divorce decree will not suffice. The fact of divorce must still first be proven. 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.
If the opposing party fails to properly object, as in this case, the divorce decree is rendered admissible as a written act of the foreign court. As it appears, the existence of the divorce decree was not denied by the OSG; neither was the jurisdiction of the divorce court impeached nor the validity of its proceedings challenged on the ground of collusion, fraud, or clear mistake of fact or law, albeit an opportunity to do so.
Nonetheless, the Japanese law on divorce must still be proved.
Since the divorce was raised by Manalo, the burden of proving the pertinent Japanese law validating it, as well as her former husband’s capacity to remarry, falls squarely upon her. Japanese laws on persons and family relations are not among those matters that Filipino judges are supposed to know by reason of their judicial function.
Summing up, the Filipino citizen must prove (1) the existence of the divorce decree as a fact and (2) the Japanese law that allows the alien spouse to remarry.
Difference between petition for declaration of nullity and petition for judicial recognition of a foreign divorce decree
| “Petition for authority to remarry” versus petition for declaratory relief 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. |
The proper legal remedy is filing a petition for the recognition of the foreign divorce decree and not for declaration of nullity 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 divorce decree is not specifically provided for under the 1997 Rules of Civil Procedure or by a specific Supreme Court rule. But paragraph 2 of Article 26 (as clarified in the Manalo ruling) already provides that the Filipino spouse has the right to remarry. Thus, filing a petition for declaration of nullity is pointless. Moreover, the divorce decree cannot be used as the basis for declaration of nullity since this petition is governed by the articles of the Family Code that I cited above.
Petition for judicial recognition of a foreign divorce decree, however, is an expensive and difficult legal process
Most Filipino lawyers, however, advise their clients to file 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, orThe translator must either come from the embassy concerned or from the Department of Foreign Affairs; getting their services can be costly or difficult. As to the expert witness on the law on marriage and divorce of the country that granted the decree, this is an even more difficult thing to do.
(2) testify on the law of the country where the divorce was granted to prove that the alien spouse is allowed to remarry.
House Bill 7185 seeks to eliminate the need for judicial recognition of a foreign divorce decree
House Bill 7815, if it becomes law, will eliminate the need for judicial recognition of a foreign divorce decree. After the divorce decree is duly authenticated by the Philippine Embassy or Consular Office in the country where the decree was obtained, its registration with the Philippine civil registry (NSO) will be sufficient proof of the capacity to remarry.
Principal author of House Bill 7815 is Taguig City-Pateros 2nd District Rep. Pia Cayetano. The bill was approved 203-3 with no abstentions by the House of Representatives. The Senate must also have its equivalent bill, and the Bicameral Conference Committee will then iron out the final bill. Finally, it must be signed into law by President Duterte.
| The Supreme Court ruling in Garcia-Recio vs. Recio (G.R. No. 138322, October 2, 2001) illustrates paragraph 2, Article 26 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.” |
