Recognition of Foreign Divorce in the Philippines

Recognition Divorce Image Article Nicolas and de Vega law

There is no divorce in the Philippines.  However, in certain instances, a divorce secured abroad may be given judicial recognition in the Philippines pursuant to Art. 26 of the Family Code.

Art. 26 of the Family Code allows recognition of a foreign divorce obtained by the foreigner spouse abroad.

Even before the advent of the Family Code, the Supreme Court, in the case of Van Dorn vs. Romillo [G.R. No. L-68470, 08 October 1995], affirmed that a foreigner who divorced his Filipina spouse, cannot later on sue as her husband in the erroneous claim that divorce is not recognized in the Philippines. In the said case, it was held that the foreigner “is bound by the Decision of his own country’s Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property.” The Supreme Court added that the Filipina “should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. 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”.

On 03 August 1988, the Family Code of the Philippines was enacted. To remedy an anomalous situation wherein a Filipino spouse cannot remarry despite the divorce decree secured by the alien spouse, a provision in the Family Code, specifically the second paragraph of Article 26 of the Family Code, was inserted, 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 likewise have capacity to remarry under Philippine law.”

This provision authorizes Philippine courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow divorce [Fujiki vs. Marinay, G.R. No. 196049, 26 June 2013]. In any case involving recognition of a foreign divorce judgment, both the Divorce Decree and the applicable national law of the alien spouse must be proven as facts under our rules on evidence [In Re: Petition for Judicial Recognition of Divorce between Minuro Takahashi and Juliet Rendora, G.R. No. 227605, 05 December 2019].

If a foreigner and a Filipina got married but the foreigner subsequently procured a divorce abroad, what is the remedy of the Filipina?

The remedy in such situation is to file a petition for recognition of foreign divorce invoking Article 26 of the Family Code. It was held in Koike vs. Koike [G.R. No. 215723, 27 July 2016] that “in order for a divorce obtained abroad by the alien spouse to be recognized in our jurisdiction, it must be shown that the divorce decree is valid according to the national law of the foreigner. Both the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Since our courts do not take judicial notice of foreign laws and judgment, our law on evidence requires that both the divorce decree and the national law of the alien must be alleged and proven like any other fact.

If both Filipinos went abroad and secured a divorce, will it be recognized in the Philippines?

Such divorce secured by Filipinos abroad will not be recognized in the Philippines. A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 15 and 17 of the Civil Code [Garcia vs. Recio, G.R. No. 138322, 02 October 2001].  Under Article 15 of the Civil Code, 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. The nationality principle enunciates that Philippine laws, insofar as family rights and duties are concerned, follow the Filipinos, wherever they may be.

If the parties were Filipinos when they got married but one of them subsequently acquired foreign citizenship and secured a divorce, will it be recognized in the Philippines?

In a situation wherein both were Filipinos when they got married but one of them acquired foreign citizenship and thereafter secured a divorce, such foreign divorce will be recognized in the Philippines.  This was the doctrine articulated in the case of Republic vs. Orbecido [G.R. No. 154380, 05 October 2005].  In such case, the Supreme Court ruled that “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”.  Hence, if the Filipino already acquired foreign citizenship when he filed for divorce, then such divorce can be given cognizance by our local courts.

If a foreigner and a Filipina got married but the Filipina subsequently procured a divorce abroad, will the divorce be recognized in the Philippines?

Article 26 is explicit in stating that it should be the alien spouse who should have procured the divorce.  However, such provision of law was expanded by the Supreme Court in the case of Republic vs. Manalo [G.R. No. 221029, 24 April 2018] where it was held that even if it was the Filipino spouse who initiated and obtained the divorce decree, the same may be recognized in the Philippines. The Supreme Court ratiocinated:

“Paragraph 2 of Article 26 speaks of “a divorce x x x 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 proceeding 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. x x x

Assuming, for the sake of argument, that the word “obtained” should be interpreted to mean that the divorce proceeding must be actually initiated by the alien spouse, still, the Court will not follow the letter of the statute when to do so would depart from the true intent of the legislature or would otherwise yield conclusions inconsistent with the general purpose of the act. x x x

To reiterate, the purpose of Paragraph 2 of Article 26 is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after a foreign divorce decree that is effective in the country where it was rendered, is no longer married to the Filipino spouse. The provision is a corrective measure is free to marry under the laws of his or her country. Whether the Filipino spouse initiated the foreign divorce proceeding or not, a favorable decree dissolving the marriage bond and capacitating his or her alien spouse to remarry will have the same result: the Filipino spouse will effectively be without a husband or wife. A Filipino who initiated a foreign divorce proceeding is in the same place and in like circumstances as a Filipino who is at the receiving end of an alien initiated proceeding. Therefore, the subject provision should not make a distinction. In both instances, it is extended as a means to recognize the residual effect of the foreign divorce decree on a Filipinos whose marital ties to their alien spouses are severed by operations of their alien spouses are severed by operation on the latter’s national law.”

Thus, even if it was the Filipin spouse who secured a divorce abroad against the foreign spouse, such divorce can be recognized in the Philippines.

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