Divorce is a process or action which affects a marital union between spouses. It may be an absolute divorce (a vinculo matrimonii) which permanently ends a marriage and allows the respective spouses to remarry. It may also be a relative divorce (a mensa et thoro) which only suspends marital relations, thereby not allowing the respective spouses to remarry. In the Philippines, absolute divorce is not yet legalized while relative divorce is similar to legal separation found under the Family Code of the Philippines.
Since divorce is not yet legalized in the Philippines, what will happen if a Filipino spouse, husband, or wife, is divorced by his or her foreigner spouse, husband or wife, and the divorce decree allows the latter spouse to remarry? How will the Filipino spouse be able to move forward? Will he or she remain married since divorce is not legalized in the Philippines?
Article 26 (2) of the Family Code of the Philippines directly answers these questions. It provides that “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.” In this situation, it is the foreigner spouse, husband, or wife who initiates or files for a divorce which is later on approved by a competent foreign court. The foreign court then issues a divorce decree or judgment that allows the foreigner spouse, husband, or wife to remarry. In other words, the divorce decree or judgment issued pertains to an absolute one.
In the aforesaid situation also, the Filipino spouse, husband, or wife is capacitated to remarry under Philippine Law. To do so, he or she may file a Petition for Recognition of Foreign Decree or Judgment before a court of competent jurisdiction with the assistance of a lawyer.
May the Filipino spouse, husband, or wife also file for Petition for Recognition of Foreign Decree or Judgment if he or she is the one who initiated or filed for a divorce before a competent foreign court against his or her foreigner spouse, husband, or wife? Yes, the Filipino spouse may do so, provided that the divorce decree or judgment allows the foreigner spouse to remarry. Article 26 (2) of the Family Code of the Philippines is also applicable in such a situation.
The Supreme Court En Banc of the Philippines in the 2018 case of Republic of the Philippines v. Manalo (G.R. No. 221029) said that “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 to address an anomaly where the Filipino spouse is tied to the marriage while the foreign spouse is free to marry under the laws of his or her country [citing Fujiki v. Marinay, 712 Phil. 524, 555 (2013).] 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. XXX”
To reiterate, in either of the given situations, the Filipino spouse may file for a Petition for Recognition of Foreign Decree or Judgment before Regional Trial Court of competent jurisdiction in the Philippines. The Petition should include a prayer for cancellation of entry of marriage.
In the Petition for Recognition of Foreign Decree or Judgment, the following are the minimum documentary requirements:
- Philippine Certificate of Marriage if the marriage was celebrated in the Philippines; or
- Authenticated Certificate of Marriage from the foreign country if the marriage was celebrated abroad;
- Report of Marriage of a Filipino married abroad, if one was filed with the Department of Foreign Affairs;
- Authenticated Foreign Divorce Decree or Judgment and other pertinent Foreign Divorce documents;
- Authenticated copy of the Foreign Divorce Law; and
- Proof of citizenship of the foreigner spouse.
The lawyers at Sanchez and Cunanan Law Offices are here to assist in the preparation and filing of Petition for Recognition of Foreign Decree or Judgment. Schedule an in-person or online consultation through email@example.com, or at (+63)927 423-1703 or (+63)949 717-9229, to speak with Pampanga or Tarlac lawyers.