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Article 26 of The Family Code of the Philippines provides that, “Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have the capacity to remarry under Philippine law.”
“The Filipino spouse must obtain a Judicial Recognition of Foreign Divorce Decree from a Philippine court.”
This means that a Filipino spouse can remarry after being divorced abroad by his or her alien spouse. (Note: alien spouse can mean a Filipino who has acquired foreign citizenship.) As long as the alien spouse can remarry after the divorce, the Filipino spouse can also remarry. However, a Filipino spouse may benefit from the law only when certain requirements are satisfied.
WHAT ARE THESE REQUIREMENTS?
First, there must have been a valid mixed marriage at the time the foreign divorce is obtained. By definition, a mixed marriage is one between an alien spouse and a Filipino spouse. The alien spouse must be a citizen of a country that allows its citizens to divorce and remarry. The mixed marriage must be valid where the marriage was solemnized, under Philippine law and under the laws of the country of the alien spouse. A non-Filipino spouse who is a citizen of a country that does not allow its citizens to divorce and remarry would not be an alien spouse in this context, and so the law would not apply.
The key here is whether the marriage is a mixed marriage on the date of the foreign divorce decree. Consider spouses who were both Philippine citizens at the time of marriage. Later, one of them acquired U.S. citizenship thereby becoming an alien spouse. The marriage would have converted into a mixed marriage. If the now alien spouse (who was formerly Filipino) were to obtain a foreign divorce decree in the United States at this time, the law would apply, and the Filipino spouse would also be entitled to remarry.
Inversely, if the divorce decree was finalized before one of the spouses changed citizenship, the Philippine law of no divorce would continue to apply to them.
Article 26 of the Family Code of the Philippines
Second, the foreign divorce must have been instigated or petitioned by the alien spouse. With the exception of Filipino Muslims who are allowed to divorce under the Muslim Code of the Philippines, a Filipino spouse cannot petition for divorce whether in the Philippines or abroad. Such a divorce would be void as to the Filipino spouse. It seems unfair to deny a Filipino spouse who is suffering through a bad marriage the legal opportunity to opt out while granting to the alien spouse the legal prerogative to choose whether to be freed or held hostage to it. But, so goes the legal maxim dura lex sed lex, the law may be harsh, but it is the law.
Third, the foreign divorce decree must be valid and obtained after August 3, 1988 regardless of the date of the marriage. It must enable the alien spouse to remarry. The Filipino spouse cannot remarry if the decree does not allow the alien spouse to remarry. The foreign divorce decree must be legally valid under the laws of the country where it is obtained and rendered after that date when the law came into effect. All foreign divorce decrees prior to August 3, 1988 are not covered.
It should be noted that a foreign divorce decree does not automatically entitle a Filipino spouse to remarry. Even the submission of a foreign divorce decree to a Philippine consulate or embassy, National Statistics Office or Local Civil Registry is not sufficient.
The Filipino spouse must obtain a Judicial Recognition of Foreign Divorce Decree from a Philippine court. As soon as a court grants such recognition, the foreign divorce decree shall have the effect of res judicata between the spouses in the Philippines. This means that their marriage bond would be severed. The Filipino spouse would no longer be obliged to live with, observe respect and fidelity, or render support to the alien spouse. The alien spouse would no longer be a legal heir of the Filipino spouse with possible rights to conjugal property.
A judicial process is definitely required for the recognition of foreign divorce decree. Philippine courts do not take judicial notice of foreign laws and judgments. Hence, both the foreign divorce decree and the national law of the alien spouse must be alleged and proved in a Philippine court in accordance with Philippine law on evidence.
Atty. Elmer L. Resurreccion is a Philippine lawyer affiliated with the Law Offices of Villamor and Giongco, LLP. For more information about this issue, email attyres@yahoo.com or call (323) 939-8200. He wrote this article at the request ofPositively Filipino.
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