Whether the Divorce of a Filipino Citizen Obtained Abroad is Valid in the Philippines

Absolute divorce has long been something that the Filipino public have vied for when it
comes to the harsh reality of the status quo through the scope of some Filipino families. These
realities that necessitate divorce may be for reason of violence, infidelity, or abandonment.
Some advocates for social justice would even argue that instead of providing comfort, religion
brings only oppression when often a romanticized image of the family is used against even the
most dysfunctional relationships. Although the Family Code provides for legal separation and
annulment, most find them expensive and tedious, with their respective limitations.

Executive Order No. 209, also known as the Family Code of the Philippines was signed
into law by President Corazon C. Aquino on July 6, 1987, with one of the reasons and objectives
of which being pervasive changes and developments and the need to bring them closer to
Filipino customs, values and ideals and reflect contemporary trends and conditions.

The Family Code recognizes only two types of defective marriages void [1]and voidable [2]
marriages. In both cases, the basis for the judicial declaration of absolute nullity or annulment
of the marriage exists before or at the time of the marriage. Divorce, on the other hand,
contemplates the dissolution of the lawful union for cause arising after the marriage. [3] Our
family laws do not recognize absolute divorce between Filipino citizens. [4]

However, since other countries have different laws regarding marriage, with most
having a legal absolute divorce system, which in turn would make divorce between a Filipino
and an alien possible, President Corazon C. Aquino, in the exercise of her legislative powers,
enacted Executive Order No. (EO) 227, amending Article 26 of the Family Code to its present
wording, as follows:

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.

Essentially, the second paragraph of Article 26 of the Family Coed provided the Filipino
spouse a substantive right to have his or her marriage to an alien spouse considered as
dissolved, capacitating him or her to remarry. The Philippine Statistics Authority reports that
3.6% (15, 072) of marriages in 2016 were between Filipinos and foreign nationals. [5] Through
the second paragraph of Article 26 of the Family Code, EO 227 effectively incorporated into the
law this Courts holding in Van Dorn v. Romillo, Jr. [6]and Pilapil v. Ibay-Somera. [7] In both cases,
the Court refused to acknowledge the alien spouse’s assertion of marital rights after a foreign
courts divorce decree between the alien and the Filipino. The Court, thus, recognized that the
foreign divorce had already severed the marital bond between the spouses. Article 17 of the
Civil Code provides that the policy against absolute divorces cannot be subverted by judgments
promulgated in a foreign country. The inclusion of the second paragraph in Article 26 of the
Family Code provides the direct exception to this rule and serves as basis for recognizing the
dissolution of the marriage between the Filipino spouse and his or her alien spouse.

Originally, the Court has applied the second paragraph of Article 26 for the divorce
decree to be obtained exclusively by the alien spouse, as followed in the cases of Van Dorn v.
Romillo, Jr., Pilapil v. Ibay-Somera, Garcia-Recio v Recio[8], and Tenchavez v Escaño[9]. The same
is present in the 1998 case of Quita v. Court of Appeals [10]. 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.

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 In recent cases however, in has been implied that a validly obtained foreign divorce
initiated by the Filipino spouse can be recognized and given legal effects in the Philippines from
the rulings of the Court in Fukiji v Marinay, et al. [11] and Medina v. Koike. [12]

A Filipino who is married to another Filipino is not similarly situated with a Filipino who
is married to a foreign citizen, there being real, material, and substantial differences between
them. As such, these marriages should not be treated alike. There are social, cultural, economic,
religious and political dissimilarities as well as varying legal systems and procedures, most of
which are unfamiliar to a Filipino spouse.

In Fujiki, the Filipino spouse, with the help of her alien first husband, who is a citizen of
Japan, was able to obtain a judgement from the Family Court of Japan which subsequently
declared the marriage between her and her second husband, who was also a Japanese national,
void on the ground of bigamy.

In Medina, the Filipino wife and her Japanese husband jointly filed for divorce, which
was granted. She filed a petition before the Regional Trial Court for judicial recognition of
foreign divorce and declaration of capacity to remarry pursuant to the second paragraph of
Article 26 of the Family Code. However, the case was referred to the Court of Appeals for the
appropriate reception of evidence to determine and resolve the pertinent factual issues,
consistent with their ruling in Corpus v. Sto. Tomas, et al. [13] and Garcia-Recio v. Recio.

On April 24, 2018, the Supreme Court ruled that a divorce obtained by a Filipino against
a foreign spouse I considered valid in the Philippines even if it is the Filipino spouse who sued
for divorce. The case referred to herein is the case of Republic v. Manalo. [14] Where, on appeal,
the Court of Appeals held that “Article 26 of the Family Code is applicable even if it was Manalo
who filed for divorce against her Japanese husband because the decree they obtained makes
the latter no longer married to the former, capacitating him to remarry.” [15] The appellate court
further stated that “It would be the height of injustice to consider Manalo as still married to
the Japanese national, who, in turn, is no longer married to her.” [16] For the Court of Appeals,
the fact that it was Manalo who filed the divorce case is inconsequential.

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 In Manalo’s case, she was able to submit before the trial court sufficient evidence to
warrant the approval of recognition of the divorce decree she had obtained, the documents
being 1) the Decision of the Japanese Court allowing the divorce; 2) the Authentication/
Certificate issued by the Philippine Consulate General in Osaka, Japan of the Decree of Divorce;
and 3) the Acceptance of Certificate of Divorce by Petitioner and the Japanese national. [17]

Paragraph 2 of Article 26 speaks of “a divorce x x x validly obtained abroad by the alien

spouse capacitating him or her to remarry.” The Court, in Republic v. Manalo, states that:

“Based on a clear and plain reading of the provision, it only requires that
there be a divorce validly obtained abroad. The letter of the law does not
demand that the alien spouse should be the one who initiated the proceeding
wherein the divorce decree was granted. It does not distinguish whether the
Filipino spouse is the petitioner of the respondent in the foreign divorce
proceeding.” [18]

Moreover, Justice Marivic Leonen stated in her concurring opinion that to disallow the
Filipina wife from being able to do the same may be unconstitutional, citing Article II, Section 14
of the 1987 Constitution. The section provides:

Section 14: The State recognizes the role of women in nation-building,

and shall ensure the fundamental equality before the law of women and men.[19]

Her concurring opinion is further supported by Section 5 of Republic Act No. 7192 or the
Women in Development and Nation Building Act. [20] Providing that:

Section 5: Equality in Capacity to Act. – Women of legal age, regardless of

civil status, shall have the capacity to act and enter into contracts which shall in
every respect be equal to that of men under similar circumstances.

Divorce may be more consistent with the constitutionally entrenched fundamental

freedoms inherent in individual citizens as human beings, as well as being consistent with the
constitutional command for the state to ensure human dignity. Through reifying the concept of

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a family, the restrictive nature of Philippine marriage laws tends to move far from the living
realities of many couples and children. A good example is the orthodox insistence on
heteronormativity which, in this day and age, may not compare with the various non-traditional
arrangements present in a number of households.

Every time absolute divorce is brought up in legislation, there are always a good number
of religious groups that have prepared protests against it, owing to the fact that the Philippines
is a country with majority of the population practicing Christianity. For the record, Chapter 4 of
Presidential Decree 1083, otherwise known as the Code of Muslim Personal Laws in the
Philippines allows absolute divorce (talaq), or, as stated in Article 49 of PD 1083, “perpetual
divorce” [21]. The present construction of the marriage laws in the Philippines are constricting
when it comes to absolute divorce. As Justice Leonen writes: “In love, there are no guarantees.
In choosing our most intimate partners, we can commit mistakes. It is but part of being
human.” [22]

The difficulty with legality is that it often overlooks the commitment of love, with each
commitment being unique, born out of experience, history, intimacy, and sacrifice, defined by
the willpower of both parties. Intimacies that form the core of our beings should be as free as
possible and bound not by social expectations but by the care and love each spouse can bring
into the relationship.

Submitted by: Reno Dave N. Alkonga

Juris Doctor 1- A

College of Law

Central Philippine University

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Endnotes:

1. The void marriages are those enumerated under Articles 35, 36, 37, 38, 40, 41, 44, and 53
in relation to Article 52 of the
Family Code.
2. The voidable marriages are those enumerated under Article 45 of the Family Code.
3. Garcia v. Recio, G.R. No. 138322, October 2, 2001, 366 SCRA 437, 452. Retrieved on
August 22, 2018
4. A. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines,
Volume One, with the Family Code of the Philippines (2004 ed.), p. 262.
5. Statistics available at http://psa.gov.ph/content/marriage-philippines-2016, visited on
August 24, 2018
6. Van Dorn v. Romillo, G.R. No. L-68470, October 8, 1985, available at
https://www.lawphil.net/judjuris/juri1985/oct1985/gr_l68470_1985.html , visited on
August 25, 2018
7. Pilapil v. Ibay-Somera, G.R. No. 80116, June 30, 1989, available at
https://www.lawphil.net/judjuris/juri1989/jun1989/gr_80116_1989.html , visited on
August 25, 2018
8. Garcia v. Recio, G.R. No. 138322, October 2, 2001, available at,
http://sc.judiciary.gov.ph/jurisprudence/2001/oct2001/138322.html , visited on August
25, 2018
9. Tenchavez v Escaño, G.R. No. L-19671, November 29, 1965, avalaible at,
https://www.lawphil.net/judjuris/juri1965/nov1965/gr_l-19671_1965.html , visited on
August 25, 2018
10. Quita v. Court of Appeals, G.R. No. 124862, December 22, 1998, available at
http://sc.judiciary.gov.ph/jurisprudence/1998/dec1998/124862.htm , visited on August
25, 2018

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 11. Fujiki v. Marinay, G.R. No. 196049, June 26, 2013, available at
https://www.lawphil.net/judjuris/juri2013/jun2013/gr_196049_2013.html , visited on
August 25, 2018
12. Medina v Koike, G.R. No. 215723, July 27, 2016, available at,
https://www.lawphil.net/judjuris/juri2016/jul2016/pdf/gr_215723_2016.pdf, visited on
August, visited on August 25, 2018
13. Corpus v. Sto. Tomas, G.R. No. 186571, August 11, 2010, available at
http://sc.judiciary.gov.ph/jurisprudence/2010/august2010/186571.htm , visited on
August 25, 2018
14. Republic v. Manalo, G.R. No. 221029, April 24, 2018, available at
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2018/april2018/2210
29.pdf , visited on August 26, 2018
15. Id., Republic v. Manalo, at 4
16. Id., Republic v. Manalo, at 4
17. Rule 132 Sections 24 and 25, in relation to rule 39, section 48 (b) of the Rules of Court
18. Id., Republic v. Manalo, at 11
19. Article 2, Section 14, 1987 constitution
20. Republic Act 7192, “Women in Development and Nation Building Act”, available at
http://pcw.gov.ph/law/republic-act-7192, visited on August 26, 2018
21. Presidential Decree 1083, “Code of Muslim Personal Laws of the Philippines”
22. Id., Republic v. Manalo, Concurring Opinion, Leonen, J.