Under
existing Philippine laws, there are no provisions allowing DIVORCE. It may take
some time or may not even come into realization where the legislators will
create a new law allowing divorce in the Philippines considering the very
influential Christian orientation of Filipinos.
Divorce
secured anywhere abroad by a FILIPINO spouse is not recognized. However, a
divorce initiated by a NON-FILIPINO spouse, validly acquired abroad, may be recognized
in the Philippines.
What
Article 26 of the Family Code provide?
ART. 26. All marriages solemnized outside the
Philippines in accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5) and (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.
There are the two elements that must be shown
before the second paragraph of Article 26 is applied:
1
There is a valid marriage that has been
celebrated between a Filipino citizen and a foreigner; and
2
A valid divorce is obtained abroad by the
alien spouse capacitating him or her to remarry.
What
about Filipinos celebrating marriage abroad, are they covered by Philippine
laws?
Yes.
Under the nationality principle (Art. 15, Civil Code), all Filipinos – where
they may be in the world – are bound by Philippine laws on family rights and
duties, status, condition, and legal capacity.
It is now very common for Filipinos to marry abroad.
Some may think that marrying abroad would make it easier for them to secure a
divorce in the future. This however is NOT
TRUE. Because again, we are governed by the nationality principle.
What
about a Filipino spouse who became a foreign citizen, losing his/her Filipino
citizenship in the process, is he/she still considered married in the
Philippines if he secured a foreign divorce?
Yes. The
main reason for marriage is Love and once celebrated, it is supposed to be
forever.
Under the Philippine constitution, and the
Family code of the Philippines, marriage has been characterized as the
foundation of the Family and an inviolable social institution. The law states
that it is a special contract of a permanent union between a MAN and a WOMAN
(same sex marriage is not recognized in the Philippines - HOPEFULLY IT WILL
NEVER BE). It is inviolable. It is permanent. In short, you don’t think of divorce
when you get married, but some people do.
What
if the foreign-spouse continually abuse emotionally, financially, physically or
maltreats the Filipino spouse, isn’t it unfair that he/she can not initiate the
divorce somewhere?
If that situation happens, it is clearly
unfair. However, that is THE LAW, consistent with the State’s policy of not
allowing divorce for Filipinos.
This doesn’t mean, however, that the Filipino
spouse has no other remedy. If the circumstances fall under the grounds for
annulment under Article 36 (Psychological Incapacity) of the Family Code, then
the marriage could still be annulled. New Supreme Court decision has paved way
for granting annulment under this provision.
What
will happen if the a divorce is validly secured abroad by the foreigner-spouse or the Filipino
spouse who became a foreign citizen, losing his/her Filipino citizenship in the
process, can the Filipino spouse immediately remarry?
No. The existence of a valid divorce decree,
however, does not automatically entitle the Filipino to remarry in the
Philippines. The foreign divorce decree must be judicially recognized in the
Philippines. This means that the proper action or petition must be filed in a
Philippine court. For purposes of re-marriage, the divorce validly secured
abroad is not automatically recognized here in the Philippines.
What
if the foreign divorce decree has been forwarded to the Philippine Embassy, the
Department of Foreign Affairs and the National Statistics Office (NSO), is it
sufficient?
No. In order for the foreign divorce may be
validly recognized in the Philippines, the only recognized process is a
verified Court process.
Knowing
that court process takes time and money, is there any other easier way?
NONE. Unfortunately this is the requirement
of law. The divorce decree must be proven, just like any other fact, in court.
Proof of its authenticity and due execution must be clearly established. This
means that the law allowing divorce in the foreign country must be proven and
that the divorce was done in accordance with that law. The foreign divorce must
be valid according to the national law of the foreigner.
What
will the Filipino spouse or the foreign spouse do next for them to cancel their
marriage in the Philippines and eventually be able to remarry, or simply just
cut the sting that ties them together in the Philippines?
The Philippine
Supreme Court has decided in the case CORPUZ vs. STO. TOMAS G.R. No. 186571, August 11, 2010
that “To maintain x x x that, under our laws, [the Filipino spouse] has
to be considered still married to [the alien spouse] and still subject to a
wife's obligations x x x cannot be just. [The Filipino spouse] should not be
obliged to live together with, observe respect and fidelity, and render support
to [the alien spouse]. The latter should not continue to be one of her heirs
with possible rights to conjugal property. She should not be discriminated
against in her own country if the ends of justice are to be served.”
“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 likewise have capacity to remarry under Philippine law.”
It is the spouse’s right to obtain a
Philippine judicial recognition of a foreign divorce. The parties may also
deiced to file a petition for cancellation or correction of entry under Rule
108 which is a ‘special remedial
proceeding by which entries in the civil registry may be judicially cancelled
or corrected.’ Under Rule 108 ‘the
verified petition must be filed with the Regional Trial Court of the province
where the corresponding civil registry is located.
Is that the end?
No.
Under Article 52 and 53 of the family code provides:
Art. 52. The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the spouses and
the delivery of the children's presumptive legitimes shall be recorded in the
appropriate civil registry and registries of property; otherwise, the same
shall not affect third persons.
Art. 53. Either of the former spouses may marry again after compliance
with the requirements of the immediately preceding Article; otherwise, the
subsequent marriage shall be null and void.
If
either of the spouses had previous marriages, the law mandates them to complete
other necessities before remarrying. These requirements include the
recording of the judgment of nullity of marriage, the distribution of the
marital properties, and the distribution of presumptive legitimes of the
children.
If
any of the parties remarry without complying with the requirements, any
subsequent marriage by either parties shall be null and void.
Practicing Trial Lawyer
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