Divorce and others

“Is my divorce valid in the Philippines?” In reply to this common query,

we usually point to the previous articles in this Forum or politely state
that we can only give legal information, as legal advice is for clients
only. However, given the changing jurisprudence on the matter, we find
it helpful to summarize the evolution of the rules regarding the
recognition of a foreign divorce decree in the Philippines.

1. No divorce in the Philippines

There is currently no Philippine law which grants divorce for Filipinos in

the Philippines, which means that there is no court or administrative
body in the Philippines that can grant divorce in the Philippines. There
are pending bills in Congress to allow divorce in the Philippines, but we
don’t expect a divorce law anytime soon.

2. Both Spouses are Filipinos

The rule in Paragraph (1) above applies when BOTH spouses are
Filipinos. As discussed in previous articles in this Forum, it doesn’t
matter whether the marriage was celebrated (or the divorce was
secured) in the Philippines or abroad. On the other hand, if one spouse
acquires a foreign citizenship, Paragraph (4) below applies; if both
Filipino spouses become foreign citizens, Paragraph (3) applies.

3. Both Spouses are non-Filipinos

An absolute 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

4. Mixed Marriage

In a mixed marriage, one spouse is a Filipino and the other spouse is a

non-Filipino. This is governed by Article 26 of the Family Code, which
reads in full:

Art. 26. All marriages solemnized outside the Philippines, in accordance

with the laws in force in the where 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 Filipino citizen and a foreigner is validly

celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him her to remarry under Philippine law.
The previous understanding of the second paragraph is this: the divorce
decree must be secured by the non-Filipino spouse. This is the reason
why in Republic vs. Iyoy (2005), the court disallowed the recognition of
a foreign divorce decree obtained in the United States by the Filipino
wife PRIOR to her naturalization as an American citizen.
Compare this to the case involving a former Filipino citizen who
secured the divorce in the United States AFTER becoming an American
citizen. In Republic vs. Orbecido (2005), the court stated that the
reckoning point is not the citizenship of the parties at the time of the
celebration of marriage, but their citizenship at the time the divorce is
validly secured abroad.
This distinction is no longer material at this point. A divorce decree
validly secured abroad — even if initiated or secured by the Filipino
spouse — will be recognized in the Philippines. The reason is discussed
in Republic vs. Manalo (2018): “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 instance, 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.”

Still, the proper remedy must be filed in court for the recognition of the
foreign divorce decree.

Divorce is not allowed in the Philippines and divorce secured anywhere

by a Filipino is not recognized in this jurisdiction.We already have a
number of discussions on this (read more hereand here). In certain
instances, however, a divorce validly secured abroad by a non-Filipino
may be recognized here in the Philippines.
What are circumstances that would make Article (Family Code)
applicable?
We have a basic discussion on Article 26 of the Family Code
(click here: Divorce and Annulment in the Philippines). Included in that
discussion 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.

Is this provision applicable to former Filipinos?

Yes. See the discussion here. See also the update, here.
This law provides that the divorce must be secured by the foreigner-
spouse. What if the foreigner-spouse continually maltreats the
Filipino/Filipina spouse, isn’t it unfair that the Filipino/Filipina can’t
initiate divorce?

It may be unfair, but that’s the law, consistent with the State’s policy of
not allowing divorce for Filipinos. This doesn’t mean, however, that the
Filipino/Filipina has no other recourse. If the circumstances fall under
the grounds for annulment/declaration of nullity, then the marriage
could still be annulled or declared null and void from the beginning.

If there’s already a divorce 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.

Isn’t it enough that I already forwarded the divorce decree to the

Philippine Embassy (or the Department of Foreign Affairs) and the
National Statistics Office (NSO)?
No. The foreign divorce decree must be recognized here in the
Philippines; a process which may only be done through the courts.
Why should we waste money in filing a petition in court for the
recognition of the divorce decree?

This is the requirement of law, unfortunately. The divorce decree must

be proven, just like any fact, in court. The presentation of the divorce
decree is insufficient. Proof of its authenticity and due execution must
be presented. This necessarily entails proving the applicable laws of
the jurisdiction where the foreigner-spouse (who could be a former
Filipino) is a national. One of the requirements under Article 26 is that
the decree of divorce must be valid according to the national law of the
foreigner.

You thought you’ve found your perfect match. You thought your marriage
is bound to last forever, or, at the very least, until the last breath. You’ve
thought wrong, you say, and you now think of seeking legal remedy to
end your marriage. Here are “steps” or suggestions in deciding whether
to step out of the ring or not:
1. Make sure it is the last resort. As stated in a previous post, love and
marriage are supposed to be forever. Try all options, like counseling, to
make it work. If there’s no progress, weigh your options. On the other
side of the scale is the reality that getting into another relationship or
marriage, while the first marital bond is still existing, is a sure way of
courting criminal liability (adultery, concubinage, bigamy). A
subsequent petition for declaration of nullity/annulment of marriage
is not a defense in the criminal action.
2. Realize that it will cost you. Getting out of marriage is sometimes
more expensive than getting into one. Expenses include the fees for
your lawyer or counsel, filing fees, professional fees for the psychiatrist
or psychologist (if the ground is psychological incapacity), etc.
3. Discuss the custody of children, visitation rights, property
arrangements and support. Custody over children and separation of
properties in annulment are among the most bitter issues in annulment.
As much as possible, discuss and agree on these matters beforehand.
4. Make sure to invoke a valid ground. Marriage is an inviolable social
institution and any doubt is resolved in its favor. Hence, make sure
there’s sufficient basis to go through the procedure discussed below.
The procedure provided under the Rules on Declaration of Absolute
Nullity of Void Marriages and Annulment of Voidable Marriages is
discussed below. Please note that a petition for “annulment” refers to
voidable marriages, which are valid until annulled by the court, while a
petition for “declaration of nullity” refers to marriages that are
considered void or inexistent from the very beginning. There are other
differences (e.g., legitimate status of children, property relations
between the spouses, prescription and ratification), but let’s leave
those for another day. For convenience, we shall refer to both petitions
as “annulment”.
1. Preparation and filing of the petition. The petition may be filed, at the
option of the spouse who filed it (called the “petitioner”), in the Family
Court of the province or city where the petitioner or the other spouse
(called the “respondent”) resides for the last 6 months prior to the date
of filing, or in the case of a non-resident respondent, 7where he/she may
be found in the Philippines. An Overseas Filipino Worker (OFW) may file
the petition even while abroad. Incidentally, upon filing of the petition or
anytime thereafter, the court may issue provisional and protective
orders.
2. Service of Summons. In simplest terms, this is giving notice to the
respondent. Where the respondent cannot be located at the given
address or the whereabouts are unknown and cannot be ascertained by
diligent inquiry, service of summons may be done by publication. This is
crucial because the court cannot validly proceed without service of
summons.
3. Answer. The respondent must answer within 15 days from service of
summons (or within 30 days from the last issue of publication in case of
service of summons by publication). Unlike in civil cases, the
respondent in annulment proceedings is not declared in default if no
answer is filed, but the public prosecutor shall be ordered to investigate
whether collusion exists between the parties.
4. Investigation report of public prosecutor. The public prosecutor
prepares a report on whether there is collusion between the parties. If
the court is convinced that collusion exists, it shall dismiss the petition;
otherwise, the court shall set the case for pre-trial conference.
The Rules dispensed with the requirement, as provided in Molina, that
the Solicitor General issue a certification stating his reasons for his
agreement or opposition to the petition.
5. Pre-trial conference. During the mandatory pre-trial conference, the
court and the parties deal with certain matters, such as stipulation of
facts, for the purpose of expediting the proceedings. The petition may
be dismissed if the petitioner fails to appear during pre-trial. At this
stage, the court may also refer the issues to a mediator who shall
assist the parties in reaching an agreement on matters not prohibited
by law (no compromise allowed in civil status of persons, validity of
marriage or of legal separation, grounds for legal separation,
jurisdiction of courts, and future support and legitime). The court may
also require a social worker to conduct a case study and submit a
report at least 3 days before the pre-trial conference, or at any stage of
the case whenever necessary.
6. Trial. This is the stage where the ground for annulment is proved and
opposed. The court may order the exclusion from the courtroom of all
persons, including members of the press, who do not have a direct
interest in the case.
7. Decision. After the trial proper, the court renders its decision, which
is different from the Decree of annulment. A decision, whether granting
or dismissing the petition, becomes final upon the expiration of 15 days
from notice to the parties.
8. Appeal. The aggrieved party or the Solicitor General may appeal from
the decision within 15 days from notice of denial of the motion for
reconsideration or new trial.
9. Liquidation, partition and distribution, custody, support of common
children and delivery of their presumptive legitimes. These are done
upon entry of the judgment granting the petition.
10. Issuance of Decree of annulment. The court issues the Decree after:
(i) registration of the entry of judgment granting the annulment in the
Civil Registry where the marriage was celebrated and in the Civil
Registry of the place where the court is located; (ii) registration of the
approved partition and distribution of the properties of the spouses in
the proper Register of Deeds where the real properties are located; and
(iii) delivery of the children’s presumptive legitimes in cash, property, or
sound securities.
11. Registration of the Decree. The Decree must be registered in the
Civil Registry where the marriage was registered, the Civil Registry of
the place where the court is situated, and in the National Census and
Statistics Office.