Sunday, January 1, 2012


Ideally, a vow to live and die with your wife or husband will always be a vow. Love should not be as fragile as a glass that when it drops, it breaks. But why do some couples still think of heading themselves to a quick escape out of their hopeful marriages? One of these “escapes” I’m talking about is divorce.

The first thing that comes in my mind when I hear about divorce is termination of marital union. This applies to married couples which take it as a way to get out of theirexisting marriages for any other reason, be it well-grounded or not. Divorce is typically a painful process but ironically, a lot of people, even Filipinos invite the idea of divorce, allowing this to take over Filipino values and culture. Luckily, it is not recognized under Philippine laws. Perhaps, this is one of the very reasons why some Filipinos desire and get married outside the Philippines and later if they decide to, end the marriage as easy as 1, 2, 3.

Let’s try to take a look on how far will this divorce go.

In questions involving the validity of divorce obtained outside the Philippines, we usually apply Article 15of the Civil Code because the matter of validity of divorce affects family rights and duties, status and condition of a person.

Art 15 of the Civil Code says:
“ Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.”

Here, if citizens of the Philippines obtained the foreign decree of divorce, the same will not be recognized as valid here in the Philippines even if the said divorce was valid in the place where it was obtained. Two reasons are, it is against public policy and against morality according to the Supreme Court.

But on the other hand, if decree of absolute divorce was obtained by foreigner ina foreign court, Philippine courts may still recognize the validity of the divorce if the same was obtained pursuant to the national law of the foreigner following the nationality principle stated in Art.15 of the Civil Code. There isonly one situation where a foreign decree of divorce can be recognized as valid even to the citizen of the Philippines. This avers the exception provided for in the second paragraph of Article 26 of the Family Code.

Art. 26 2nd Paragraph provides:
“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.”

Clearly, this is the only situation under our law where a foreign decree of divorce is recognized as valid even to the citizen of the Philippines.

Things to consider for Article 26, 2nd par. of the Family Code 26 to apply:

1.      Firstly, existence of a valid mixed marriage

A citizen of the Philippines must be married to a foreigner. This is commonly known as mixed marriage.But when do you determine if it is a case of mixed marriage? Is it necessary that it must be a mixed marriage from the very start? What if the two parties involved were previously both citizens of the Philippines at the time of the celebration of marriage but later on one of them applied for a change of citizenship and become a foreign national and that foreign national obtained a foreign decreeof absolute divorce capacitating him or her to remarry, will Article26 of the FC apply so that the other party who remained a citizen of the Philippines will now regain his capacity to remarry? The answer is YES.

Let us relate the case of Republic vs. Obrecido III. In this case, the Supreme Court ruled that in determining whether it is a case of mixed marriagethe reckoning point is the citizenship of the parties at the time where the foreign absolute decree of divorce was obtained and not at the time of the celebration of marriage. Simply put, in determining the validity of divorce obtained abroad, the basis is the citizenship of the divorcee at the time the divorce of marriage was obtained and not the time of the celebration of marriage. Thus, even if thetwo parties are originally Filipinos but later on one of them becomes a foreign national and it is only after becoming a foreign national that he or she has obtained the divorce, this is where the exception under Art 26 applies.

2.      Alien spouse obtained the valid divorce decree

The second requirement is that it must be the foreigner who shall obtain thedecreeof absolute divorce in order for Article 26 to apply.  If it is the citizen of the Philippineswho obtained the decree of absolute divorce, it is not Art 26 of the Family Code which will apply. Instead,it is Art 15 in relation to art 17 of the Civil Code in which case under our law, divorces obtained by the citizen of the Philippines are not recognized as valid being contrary to public policy and morality.

3.      Divorce decree must be absolute

The third requirement is that the nature of foreign decree obtained must be an absolute one. Meaning, it must capacitate the divorcee to remarry.

We have to note that even in foreign jurisdictionsthere are two types of divorces: a divorce may either be absolute, capacitating the divorcee to remarry, or restricting, which restricts the divorcee’s capacity to remarry. So if the foreign divorce obtained by the divorcee restricted his capacity to remarry the Filipino citizen will not likewise regain his capacity to remarry.

With these said, one cannot conclude that simply having a foreign spouse who obtained a divorce decree abroad, automatically capacitates a Filipino to remarry. Otherwise, he or she might be misled of contracting a subsequent marriageat the risk of committing the crime of bigamy.

What then should the Filipino spouse do in order to make the divorce obtained abroad be recognized and made valid in the Philippines, thus allowing her to legally remarry?

Firstly, the citizen of the Philippines must file a petition before the Family Courts to authorize him or her to remarry pursuant to the provision of the 2nd par. of Art 26 of the Family Code.  In that petition the petitioner must able to prove the following:

1.      Existence of the foreign divorce decree

Well settled is the rule that before the Court can take cognizance of the existence of a foreign judgment, it must be established as a matter of fact.

2.      Divorce decree based on national law

It must also be proven that decree of absolute divorce must be obtained pursuant to the national law of the divorcee which allows foreigndivorces, following the nationality principle embodied in Art 15.

3.      Existence of foreign law

In the process, petitioner must prove the existence of the foreign law. The rule in jurisdiction asserts thatbefore foreign law canbe taken cognizance by Philippine courts,it must be specially alleged and proven. If not, our court will presume that foreign law is the same as our domestic or internal law.

In conclusion, divorce is never that easy as others would think. Simply because marriage, being an inviolable social institution, is governed by law and not subject to any stipulation or human ill-will. Divorce therefore should not be taken as a quick escape out of marriage. This cannot be forced to anyone though. This makes divorce a neutral thing. It only gets bad when people take advantage of it but it serves a fine purpose when people use it the way it should be.

(The author, Beverly Caboteja, is a graduating law student at the University of Mindanao in Davao City, Philippines. She is a faculty lecturer at ACLC, a top computer school in Davao City)

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