Foreign divorce and a former Filipino citizen
Consider a case where a former Filipino citizen who was divorced abroad wants to remarry in the Philippines. This brings up peculiar problems because no divorce yet exists in the Philippines (outside of Sharia law). The foreign divorce will first need to be judicially recognized by a Philippine court.
Such a procedure makes reference to the second paragraph of Article 26 of the Family Code of the Philippines:
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.
How is the case filed?
A petition for the recognition of the foreign divorce should be filed with the Regional Trial Court. This was recently affirmed in ANDO vs. DEPARTMENT OF FOREIGN AFFAIRS, G.R. No. 195432, August 27, 2014 which states:
… petitioner should have filed, instead, a petition for the judicial recognition of her foreign divorce from her first husband.
In Garcia V. Recio [418 Phil. 723 (2001)], we ruled that a divorce obtained abroad by an alien may be recognized in our jurisdiction, provided the decree is valid according to the national law of the foreigner. The presentation solely of the divorce decree is insufficient; both the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Because our courts do not take judicial notice of foreign laws and judgment, our law on evidence requires that both the divorce decree and the national law of the alien must be alleged and proven and like any other fact. [Corpuz v. Sta. Tomas, G.R. No. 186571, 11 August 2010, 628 SCRA 266]
See: Recognizing foreign divorce in the Philippines (Process) for a full discussion of the court process.
What evidence should be presented before the Philippine Courts to prove foreign divorce?
This was answered by the Supreme Court in REPUBLIC vs. OBRECIDO, G.R. No. 154380 October 5, 2005.
The Petitioner must prove that the spouse is a foreign citizen. He must prove the foreign divorce as a fact and demonstrate its conformity to the foreign law allowing it. That foreign law must also be proved before our courts. Like any other fact, such laws must be alleged and proved. Furthermore, the Petitioner must also show that the divorce decree allows his former spouse to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that the Petitioner is capacitated to enter into another marriage.
Republic vs. Obrecido discusses the law this way: In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:
- There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and
- 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.
In this case, when Cipriano’s wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the “divorced” Filipino spouse, should be allowed to remarry.
We are also unable to sustain the OSG’s theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse.
However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondent’s wife. It is a settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence.
Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved. Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondent’s bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made properly upon respondent’s submission of the aforecited evidence in his favor.
To prove all these, the Petitioner will need to present evidence of the divorce decree and laws through the presentation of either (1) official publications or (2) copies attested by the officer having legal custody of the documents.
If the copies of official records are not kept in the Philippines, these must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.
Can the foreigner / former Filipino citizen avail of this law?
Paragraph 2 of Article 26 specifically speaks of a Filipino citizen’s right to remarry. A practical question is whether a foreigner’s or former Filipino citizen’s right to remarry can be recognized.
Can a foreigner or former Filipino citizen seek recognition of the divorce obtained abroad and have Philippine records updated to reflect the divorce?
Yes. This was resolved in CORPUZ vs. TIROL STO. TOMAS, G.R. No. 186571, August 11, 2010. The Supreme Court upheld the right of a foreigner or former Filipino citizen to institute a Petition in our Courts for the recognition of the divorce obtained abroad:
To our mind, direct involvement or being the subject of the foreign judgment is sufficient to clothe a party with the requisite interest to institute an action before our courts for the recognition of the foreign judgment. In a divorce situation, we have declared, no less, that the divorce obtained by an alien abroad may be recognized in the Philippines, provided the divorce is valid according to his or her national law.
The starting point in any recognition of a foreign divorce judgment is the acknowledgment that our courts do not take judicial notice of foreign judgments and laws. Justice Herrera explained that, as a rule, no sovereign is bound to give effect within its dominion to a judgment rendered by a tribunal of another country. This means that the foreign judgment and its authenticity must be proven as facts under our rules on evidence, together with the aliens applicable national law to show the effect of the judgment on the alien himself or herself. The recognition may be made in an action instituted specifically for the purpose or in another action where a party invokes the foreign decree as an integral aspect of his claim or defense.
Judicial recognition of the foreign divorce can be obtained through a special court process by which entries in the civil registry may be judicially cancelled or corrected:
Article 412 of the Civil Code declares that no entry in a civil register shall be changed or corrected, without judicial order. The Rules of Court supplements Article 412 of the Civil Code by specifically providing for a special remedial proceeding by which entries in the civil registry may be judicially cancelled or corrected. Rule 108 of the Rules of Court sets in detail the jurisdictional and procedural requirements that must be complied with before a judgment, authorizing the cancellation or correction, may be annotated in the civil registry. It also requires, among others, that the verified petition must be filed with the RTC of the province where the corresponding civil registry is located; that the civil registrar and all persons who have or claim any interest must be made parties to the proceedings; and that the time and place for hearing must be published in a newspaper of general circulation.
All that being said, the Supreme Court has stressed three important points to remember while preparing the case:
Three legal premises need to be underscored at the outset. First, a divorce obtained abroad by an alien married to a Philippine national may be recognized in the Philippines, provided the decree of divorce is valid according to the national law of the foreigner. Second, the reckoning point is not the citizenship of the divorcing parties at birth or at the time of marriage, but their citizenship at the time a valid divorce is obtained abroad. And third, an absolute divorce secured by a Filipino married to another Filipino is contrary to our concept of public policy and morality and shall not be recognized in this jurisdiction.
BAYOT vs. COURT OF APPEALS, G.R. No. 155635, November 7, 2008
These can present stumbling blocks surprising to former Filipino citizens.
Consider the case of a married Filipino who immigrates to the United States and secures a divorce while still a Filipino citizen. He later acquires American citizenship. Then he decides he wants to remarry someone else in the Philippines.
To his surprise, he will find that his divorce is not recognized in the Philippines, and that the Philippines still considers him married to his first wife. This is because he was a Filipino citizen at the time he secured this divorce. Despite subsequently becoming an American citizen, Philippine law’s reckoning point is not the citizenship of the divorcing parties at birth or at the time of marriage, but their citizenship at the time a valid divorce is obtained abroad.
For the divorce to be valid where he was the one who filed for divorce, that divorce should have been obtained when he was already an American citizen.
There may yet be remedies in such a case. To avail of these will often require careful coordination with legal counsel both in the Philippines and in the foreign country.
Related reading: Recognition of foreign divorce in the Philippines (Process)