Divorce in the Philippines

Divorce, the legal dissolution of a lawful union for a cause arising after marriage, are of two types: (1) absolute divorce or a vinculo matrimonii, which terminates the marriage, and (2) limited divorce or a mensa et thoro, which suspends it and leaves the bond in full force.[1] In this jurisdiction, the following rules exist:
1. Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.[2]

2. Consistent with Articles 15[3] and 17[4] of the New Civil Code, the marital bond between two Filipinos cannot be dissolved even by an absolute divorce obtained abroad.[5]

3. 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.[6]

4. In mixed marriages involving a Filipino and a foreigner, the former is allowed to contract a subsequent marriage in case the absolute divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry.[7]
On July 6, 1987, then President Corazon C. Aquino signed into law Executive Order (E.O.) No. 209, otherwise known as The Family Code of the Philippines, which took effect on August 3, 1988.[8] Shortly thereafter, E.O. No. 227 was issued on July 17, 1987.[9] Aside from amending Articles 36 and 39 of the Family Code, a second paragraph was added to Article 26.[10] This provision was originally deleted by the Civil Code Revision Committee (Committee), but it was presented and approved at a Cabinet meeting after Pres. Aquino signed E.O. No. 209.[11] As modified, Article 26 now states:
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the 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 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.
Paragraph 2 of Article 26 confers jurisdiction on Philippine courts to extend the effect of a foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage.[12] It authorizes our courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow divorce.[13] Philippine courts cannot try the case on the merits because it is tantamount to trying a divorce case.[14] Under the principles of comity, our jurisdiction recognizes a valid divorce obtained by a spouse of foreign nationality, but the legal effects thereof, e.g., on custody, care and support of the children or property relations of the spouses, must still be determined by our courts.[15]

According to Judge Alicia Sempio-Diy, a member of the Committee, the idea of the amendment is to avoid the absurd situation of a Filipino as still being married to his or her alien spouse, although the latter is no longer married to the former because he or she had obtained a divorce abroad that is recognized by his or her national law.[16] The aim was that it would solve the problem of many Filipino women who, under the New Civil Code, are still considered married to their alien husbands even after the latter have already validly divorced them under their (the husbands') national laws and perhaps have already married again.[17]

In 2005, the Supreme Court concluded that Paragraph 2 of Article 26 applies to a case where, at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them acquired foreign citizenship by naturalization, initiated a divorce proceeding, and obtained a favorable decree. It was held in Republic of the Phils. v. Orbecido III:[18]
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals. In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry.

Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. xxx

If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26.

In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:
  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.
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.[19]
Please note that the doctrine under the Orbecido III case has been modified and improved by the Supreme Court in the case of Republic v. Manalo (G.R. No. 221029, April 24, 2018).

[1] Amor-Catalan v. Court of Appeals, 543 Phil. 568, 575 (2007), citing Garcia v. Recio, 418 Phil. 723, 735-736 (2001).

[2] Garcia v. Redo, supra, at 730 and Medina v. Koike, G.R. No. 215723, July 27, 2016, 798 SCRA 733, 739.

[3] Art. 15. 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. (9a)

[4] Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution.

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.(11a)

[5] Tenchavez v. Escano, et al., 22 Phil. 752, 759-760 (1965), as cited in Cang v. Court of Appeals, 357 Phil. 129, 162 (1998); Llorente v. Court of Appeals, 399 Phil. 342, 356 (2000); and Perez v. Court of Appeals, 516 Phil. 204, 211 (2006). See also Garcia v. Recio, supra note 1, at 730; Republic v. Iyoy, 507 Phil. 485, 504 (2005); and Lavadia v. Heirs of Juan Luces Luna, 739 Phil. 331, 341-342 (2014).

[6] Garcia v. Recio, supra note 1, at 730-731.

[7] FAMILY CODE, Article 26 Paragraph 2. See also Garcia v. Recio, supra note 1, at 730 and Medina v. Koike, supra note 2.

[8] Republic of the Phils. v. Orbecido III, 509 Phil. 108, 112 (2005), as cited in San Luis v. San Luis, 543 Phil. 275, 291 (2007).

[9] Id. at 112-113, as cited in San Luis v. San Luis, supra.

[10] Id. at 113, as cited in San Luis v. San Luis, supra.

[11] Sempio-Diy, Alicia V., HANDBOOK ON THE FAMILY CODE OF THE PHILIPPINES, 1988, pp. 26-27.

[12] Medina v. Koike, supra note 2 and Fujiki v. Marinay, 712 Phil. 524, 555 (2013).

[13] Fujiki v. Marinay, supra.

[14] Id.

[15] See Vda. de Catalan v. Catalan-Lee, 681 Phil. 493, 498 (2012); Roehr v. Rodriguez, 452 Phil. 608, 617-618 (2003); and Llorente v. Court of Appeals, supra note 13.

[16] Supra note 11, at 27. See also Republic of the Phils. v. Orbecido III, supra note 8, at 114, as cited in Fujiki v. Marinay, supra note 12, at 555 and San Luis v. San Luis, supra note 8, at 292.

[17] Supra note 11, at 27.

[18] Supra note 8.

[19] Id. at 114-115. (Citations omitted).

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