Published 18 February 2019, The Daily Tribune

There are only two states that do not recognize divorce: the Vatican and the Philippines.

Under our family laws, there are limited ways to sever marital ties. The most common way is to obtain an annulment. In certain instances, however, a marriage can be declared void from the very beginning; in which case, the marriage conducted could not produce any legal effect since it is as if no marriage has occurred. Legal separation is a different path because it does not actually dissolve the union. Hence, being legally separated would not entitle either spouse to marry anew.

Annulment, declaration of nullity, and legal separation cases filed in Philippine courts require the participation of the assigned prosecutor to appear on behalf of the State to take steps to prevent collusion between the parties and to ensure that evidence is not fabricated or suppressed (Articles 48 and 60, Family Code). This is because the State values the sanctity of marriage and therefore has an interest to preserve the union and guard against unwarranted dissolution. The legislators crafted the Family Code to limit the grounds for dissolution to the most compelling justifications.

While divorce is not allowed in the Philippines, there are instances where it is actually possible to have a foreign divorce decree recognized by a Philippine court. This can be done in cases of mixed marriages. Section 26 (2) of the Family Code 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.

The legislative intent behind the said provision is to avoid the absurd situation of a Filipino 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. The law also addressed the plight of some Filipino women who, under the New Civil Code, are still considered married to their alien husbands even after the latter have validly obtained a divorce under their national laws and, perhaps, have already contracted a second marriage.

The Family Code is not limited to mixed marriages or one between a Filipino spouse and an alien spouse, but also covers cases where, at the time of celebration of the marriage, the parties were Filipino citizens but, eventually, one of them acquired foreign citizenship by naturalization, initiated a divorce proceeding and obtained a favorable decree. This is because a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry. This was the Court’s pronouncement in the 2005 case of Republic v. Orbecido III. Take note that what is to be considered in such instances is not the citizenship of the parties at the time of their marriage but rather their citizenship at the time the divorce is obtained.

Does this mean that the abovementioned provision only applies where it is the alien spouse who initiated and validly obtained a foreign divorce decree? In the recent case of Republic v. Manalo (G.R. 221029, 24 April 2018), it was Manalo, the Filipino spouse and not the alien spouse who initiated the divorce petition in Japan which was subsequently granted. Manalo thereafter filed before a Philippine court a petition for recognition and enforcement of foreign judgment by virtue of a judgment of divorce rendered by a Japanese court. Her petition was denied by the trial court which ruled that based on Article 15 of the New Civil Code, the Philippine law “does not afford Filipinos the right to file for a divorce, whether they are in the country or living abroad, if they are married to Filipinos or to foreigners, or if they celebrated their marriage in the Philippines or in another country.”

Nevertheless, the Supreme Court upheld Manalo declaring that a foreign divorce decree initiated and obtained by the Filipino spouse (in a mixed marriage) may also be recognized and given legal effect in the Philippines. It cited its previous decisions which extended the legal effects of a divorce obtained by a Filipino spouse abroad on the issues of child custody and property relation. Hence, it should not stop short in likewise acknowledging that one of the usual and necessary consequences of absolute divorce is the right to remarry since when the marriage tie ceases to exist, the civil status and the domestic relation of the former spouses change as both of them are freed from the marital bond.

Furthermore, the Family Code speaks of “a divorce… validly obtained abroad by the alien spouse capacitating him or her to remarry,” which for the Court, only requires that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien spouse be the one to initiate the proceeding which resulted in the divorce decree.

By reason of the Court’s ruling in Republic v. Manalo, it may seem that the Filipino spouse in a mixed marriage can avail himself/herself of an expedient way to untie the knot by simply obtaining a divorce abroad when the marriage falls apart. Or, perhaps, the spouses can opt for a more practical solution — work on the marriage and don’t let it fall apart.

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