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Divorce Obtained Abroad by A Filipino Not Recognized in The Philippines. Divorce Decree
Divorce Obtained Abroad by A Filipino Not Recognized in The Philippines. Divorce Decree
Summary:
[1] The second paragraph of Article 26 of the Family Code is the
primary law on the issue of divorce and Filipino citizens: 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.
[2] If its the Filipino spouse who initiates or files the divorce
action against the alien spouse, the subsequent divorce will not be
recognized here in the Philippines. If that Filipino gets married
here again, he or she will be liable for bigamy.
[3] But if it is the alien spouse who initiates or files the divorce
action, Article 26 of the Family Code will apply. The divorce will
be recognized here in the Philippines; if the divorce allows the
former alien spouse to remarry, the Filipino will also have the right
to remarry under Philippine law.
[4] A Filipino spouse divorced by a spouse who had acquired
foreign citizenship can remarry under Article 26 FC (Republic of
the Philippines v. Cipriano Orbecido III).
[5] Consensual or mutual agreement divorces like kyogi rikon are
not recognized here in the Philippines.
[6] A Filipino who validly obtains a divorce decree abroad and
wants to remarry must first file with the Family Court a petition for
recognition of a foreign divorce decree.
[7] A petition for recognition of a foreign divorce decree is a
difficult legal process. Most Filipino lawyers, therefore, advise
people to file instead a petition for declaration of nullity under
Article 36 of the Family Code.
(Note: Please read Is the Philippine embassy in Japan violating Article 26 of the Family Code and
Supreme Court decisions?)
A divorce obtained by a Filipino in another country, like the USA or Japan for example, is not
recognized here in the Philippines. In several decisions, our Supreme Court has ruled that a
Filipino who obtains a divorce abroad and gets married here again, is liable for bigamy.
[1] People v. Schneckenburger: The Supreme Court held that the accused, who secured a foreign
divorce and later remarried in the Philippines (believing that the foreign divorce was valid), is liable
for bigamy.
[2] People v. Bitdu: The Court carefully distinguished between a mistake of fact from a mistake of
law. A mistake of fact could be a basis for the defense of good faith in a bigamy case. On the other
hand, a mistake of law does not excuse a person, even a lay person, from liability. In this case, the
accused had obtained a divorce under Mohammedan custom. The Court held that even if the
accused honestly believed she was not committing any violation of the law in contracting her second
marriage, and that she had no criminal intent, these did not justify her act.
The Court also ruled that everyone is presumed to know the law. The lack of knowledge that the act
constitutes a violation of the law does not exempt a person from the consequences.
I have been told that in some countries like Japan and Korea, the alien spouse and the Filipino
spouse can simply go through an administrative process where they can get divorced in less than a
day. According to a Wikipedia article, 90% of divorces in Japan are by mutual consent (the term is
kyogi rikon).
This kind of mutual consent or agreement divorce is not recognized here in the
Philippines. Article 26 of the Family Code contemplates a situation where the divorce is filed
by the alien spouse against the unwilling or innocent Filipino spouse.Please read my
post Is the Philippine embassy in Japan violating Article 26 of the Family Code and Supreme Court
decisions?
for annulment or for declaration of nullity since such petitions are governed by the articles of
the Family Code I cited above.
Please read also The right of a divorced Filipino to remarry under Article 26 of the Family Code
where I discussed the 2005 Supreme Court ruling in Republic of the Philippines v. Cipriano Orbecido
III. In this case, the Court ruled that:
[1] Paragraph 2 of Article 26 of the Family Code 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;
and
[2] 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.
The Supreme Court ruling in Garcia-Recio vs. Recio (G.R. No. 138322, October 2, 2001) below
illustrates this provision of the Family Code:
"A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree
is valid according to the national law of the foreigner. However, the divorce decree and the governing
personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take
judicial notice of foreign laws and judgments; hence, like any other facts, both the divorce decree
and the national law of the alien must be alleged and proven according to our law on evidence.
"Philippine law does not provide for absolute divorce; hence, our courts cannot grant it. A marriage
between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles
15 and 17 of the Civil Code. In mixed marriages involving a Filipino and a foreigner, Article 26 of the
Family Code allows the former to contract a subsequent marriage in case the divorce is validly
obtained abroad by the alien spouse capacitating him or her to remarry. A 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.
"A comparison between marriage and divorce, as far as pleading and proof are concerned, can be
made. Van Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law. Therefore,
before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the
divorce as a fact and demonstrate its conformity to the foreign law allowing it. Presentation solely of
the divorce decree is insufficient.
"It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. Like any
other facts, they must be alleged and proved. Australian marital laws are not among those matters
that judges are supposed to know by reason of their judicial function. The power of judicial notice
must be exercised with caution, and every reasonable doubt upon the subject should be resolved in
the negative.
"Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was
not submitted together with the application for a marriage license. According to her, its absence is
proof that respondent did not have legal capacity to remarry.
"We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the
party concerned. The certificate mentioned in Article 21 of the Family Code would have been
sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly
authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part
of the alien applicant for a marriage license.
"We agree with petitioners contention that the court a quo erred in finding that the divorce decree
ipso facto clothed respondent with the legal capacity to remarry without requiring him to adduce
sufficient evidence to show the Australian personal law governing his status; or at the very least, to
prove his legal capacity to contract the second marriage.
"Neither can we grant petitioners prayer to declare her marriage to respondent null and void on the
ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to
marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious
course is to remand this case to the trial court to receive evidence, if any, which show petitioners
legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the
parties marriage on the ground of bigamy, there being already in evidence two existing marriage
certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March
1, 1987 and the other, in Cabanatuan City dated January 12, 1994."
For a discussion on divorce and Christians, please surf over to Salt and Light blog.
As 2006 comes in, please reflect on the words of Joshua in chapter 3, verse 4 of his book:
that ye may know the way by which ye must go: for ye have not passed this way heretofore.
Happy New Year!
Posted by Atty. Gerry T. Galacio at Friday, December 30, 2005
38 comments :
Anonymous said...
Dear Atty. Galacio
How is it that a Filipina cannot have her divorce recognised if she instigates the divorce
overseas. She was legally married overseas in a sovereign country, was mistreated by that
husband (adultery / alcoholism / fathering 2 children out side of the marriage by the
'husband') and because of this mistreatment sought a divorce in the same country of
marriage and was granted one without contest having these grounds accepted as a valid
Anonymous said...
I got married to a foreign national
overseas and got divorce in the same country. I got married for the second time overseas
and also to a foregn national without knowing that under our law, I am still bound to my first
marriage. If we decide to live in the Philippines (my second husband and me) will I be
liable for bigamy?
Someone told me that I won't be liable for bigamy but my marriage will not be recognized
in the Philippines, anywhere else in the world my second marriage is valid except in our
country. If we live in the Philippines, what would be my civil status? Will it be married
(to my first husband)?Married to my second husband? Or divorce? I am really so
confused.
January 25, 2008 5:30 PM
Anonymous said...
You have mentioned that in our criminal justice system,venue is jurisdictional. That means
that no one can file a bigamy case against me since I didn't get married here in the
Philippines. If anyone wants to file a case against me, they have to go to the foreign
country where I got married. And in that foreign country, divorce is legal and acceptable.
Am I liable for bigamy, just asking.When it comes to perjury,I am sure I am not the only
one in this case.It seems to me that our law applies only for ordinary citizens and not
applicable for the rich and famous.Why Ruffa Bektas can get away with bigamy,and
perjury and perhaps adultery as well? Just asking.
January 29, 2008 4:41 PM
Anonymous said...
Sir:
i am not sending comment but this relates to the discussions here. my question is...can a
foreigh national file divorce to a filipina in the philippines where marriage took place? In the
foreign country? Also, if filed here in the philippines, can a wife or husband file divorce in
the philippines or abroad? please help me understand. thanks a lot
October 10, 2008 6:44 PM
recognized here in the Philippines under Article 26 FC. What the Filipino should do is to file
a petition on court here not for annulment but for the recognition of the foreign divorce
decree.
Once the court grants the petition, it will order the NSO to make the proper annotation on
the marriage certificate concerned.
If the divorce is filed by the Filipino citizen against the foreigner, then the divorce will not be
recognized here in the Philippines. This is true even if for example the ground for the
divorce was spousal violence by the foreigner against the Filipino citizen. This may sound
harsh and unjustified BUT the problem really is that these Filipinos got married to
foreigners without knowing what Philippine law (especially Article 15 of the New Civil
Code) provides.
5. What about a divorce for example in Singapore or Korea or Taiwan or Japan? I am told
that in these countries, all the foreigner and the Filipino spouse have to do is go to the City
hall, file the divorce papers and then get the divorce decree within the same day. I have
not read a specific Supreme Court ruling on this situation, but my reading of Article 26 of
the Family Code is that such a consensual or mutually-agreed upon divorce will not be
recognized here. The idea behind Article 26 is that the Filipino citizen is the aggrieved
party, that is, the divorce action was filed against him or her by the foreigner-spouse. In a
consensual or mutually-agreed upon divorce, it cannot be said that the Filipino was the
aggrieved party.
6. What about if a Filipino becomes a naturalized citizen of another country and wants to
remarry here in the Philippines? Since he or she is no longer a Filipino, the Family Code
no longer applies to him or her. What should he or she do considering that the marriage
certificate of his previous marriage is still on file with the NSO? My personal view is that
once the former Filipino citizen is issued a Certificate of Legal Capacity to contract
marriage by his embassy or consulate under Article 21 of the FC, then he or she can
remarry here in the Philippines without fear of possible legal consequences. If ever a case
of bigamy is filed, the defense can be raised that a divorce had already been granted to
the naturalized citizen and that the second marriage was entered into not by a Filipino but
by a citizen of another country.
The possible mess will be of two marriage certificates then being on file with the NSO. Can
the naturalized citizen just send to the NSO a copy of the divorce decree? Possibly, but the
NSO generally requires a court order for it to do anything like annotating the records on its
files. Solution? Any party in this kind of situation can, before getting married, ask for the
opinion of the NSO or the DOJ just to avoid potential problems later on. As far as I know,
the NSO does not have internal rules or guidelines on this issue.
Anonymous said...
hi,
i am a filippina i am married to a brasililen guy in japan ( we got married in japan) but i am
going to divorce here in japan and i wanna get married again to an europian guy, my
question is it possible? and how long do i need to wait before i can get married again? i am
waiting for yor answer!
November 15, 2008 12:25 PM
Anonymous said...
Hello Atty.,
I hope for a wonderful day. I have a question concerning your reply one questioner:
" 4. A Filipino citizen married to a foreigner : If the divorce is filed by the foreigner against
the Filipino citizen and such a divorce allows the foreigner to remarry, then the divorce will
be recognized here in the Philippines under Article 26 FC. What the Filipino should do is to
file a petition on court here not for annulment but for the recognition of the foreign divorce
decree."
Once the court grants the petition, it will order the NSO to make the proper annotation on
the marriage certificate concerned."
My question is, does one need a lawyer to facilitate the petition in court or could it be done
by the petitioner itself?
Thank you and more power!
November 18, 2008 6:02 PM
James said...
Atty. Galacio:
My question is... Is it possible for an American citizen to divorce his filipina wife with a
child? And how long would the process be? They have been married for two years and
only seen each other phisically for a total of maybe 45 days... They have reached their
point I guess? I have a friend who is a bit lost... And have been helping him out to find bits
of information about this. Thank you! For your time
December 21, 2008 1:37 PM
Adie said...
Hi Atty. Galacio, my bf in the US is a former filipino. he is a US citizen now. He got married
in the Phil. in 1998.But hes a divorcee now, and it was his ex-wife who filed for a divorce
but during that time my bf is already a US citizen.The ex-wife is still on an immigrant
status.My question is: Does my bf still need to file for petition for annulment here in the
Phil. before he can marry me?Thank you very much Atty.
January 12, 2009 3:14 PM
Adie said...
The potential problem is that once you get married here, the NSO will have two marriage
certificates on file under your boyfriends name. <<< atty., what can you suggest to do if
this problem arises?thank you very much for taking time to answer our questions. more
power to you.
January 13, 2009 5:55 PM
Anonymous said...
greetings atty galacio, first oof all i want to thank you and say for the wonderful job of
putting this up and clearing up some of our problems.
my inquiries is a bout my marriage, i was married in 2003 while me being 21 and wife
turning 19 a month before. within the same year i migrated here in the states. after 2 yrs of
thinking of a wonderful marriage i heard news of her cheating with another man. i went
home and confirmed it, and it was true and then decided to just let here be. but we still
remained good friends. now she had a baby last year with another man and having
another one this month. what advice can you give us so both of us can go our separate
lives. and also my girlfriend here is preassuring me bout this...thank you and god bless
January 15, 2009 7:08 AM
Anonymous said...
Hi Atty. Galacio, i filed petition for recognition of divorce and granted..got certificate of
finality order .registered at LCR then submitted to NSO but why i get a Notice of
Exemption when i tried to get a marriage license ?
February 06, 2009 1:16 AM
Anonymous said...
Good day Atty.
I have situations that needs your intelectual advice.
I have a friend who is a german and maried in germany with a filipina. They've been
together for 21years but the relationship is not working.
Now they are both here in philippines in thesame house. My friend the german is not
happy anymore for there is always trouble and quarrel everyday in their life together..He
wanted to go out and get away from their marriege. I wanted to ask what is the best he can
do legally to leave the filipina wife?
What if he file a divorce there in germany and still in process can he leave the house and
live together to another girl? Is the wife still have the rights to go to the court to file case to
her husband and the girl because they are still married? even though the divorce is being
filed already?
Is there a need that the wife will agree to the divorce?
And if she will not agree what are the possible ways that my friend the german can go out
legally from the marriage?
Hanzo said...
Dear Atty.
I wish you a good day, and if it is not too much to ask, I have a question regarding
international divorce and re-marriage. I would greatly appreciate any input you can give
based on the situation.
My Philippine girlfriend is currently living and working in Japan under a visa. She is
married to a Japanese National. The Japanese National will be filing for a divorce against
his Philippine wife soon. Based on what I have read, because it will be filed by the foreign
husband against the Philippine National in his host country, than the divorce should be
recognized in the Philippines.
With this being said, is there an amount of time that she will have to wait before re-
marrying?
I would greatly appreciate any input you have in my situation.
Very Respectfully,
Hanzo
September 13, 2009 11:08 AM
Anonymous said...
Hi. I am still a Filipino citizen and married a Filipino citizen in 2000 in the US. I divorced my
Filipino husband in 2009. We have reported this marriage to the Phillipine Embassy. I am
Anonymous said...
good day atty,
my question is,how long it will take to process the petition for recognition of foreign
judgement?and how much it is usually cost?tahnks for the time atty....
December 23, 2009 5:20 AM
issue a ruling as to whether you can remarry here. You can also even now ask the
Department of Justice to issue an opinion as to your situation.
December 23, 2009 9:49 AM
Anonymous said...
Atty. Galacio,
Thank you very much for your response. It was very helpful. More power to you and God
bless.
Miley
January 03, 2010 9:51 AM
Mary said...
Hi Atty. Galacio,
I'm a Filipina citizen who got married to a Canadian citizen last 2004. We then migrated to
Korea. We divorced last 2008 there and now I have sent the translated & notarized divorce
decree to Philippine embassy which forwarded it to DFA and now on its way to NSO.
My questions are the following:
1) Is it needed for the divorce decree to be recognized by the Canadian Embassy too, so
as to prove that it binds him as well?
(We resided in Korea for 4 years and he is still there.)
2) After NSO receives the document from DFA, what do I need to do? Can I obtain what I
sent them for legal purposes or will they just issue me a receipt saying they received it?
3) From I what I read, I need to hire a lawyer to have this divorce recognition filed at the
RTC. I got conflicting reports as to how long this legal process will last. Some said 3-6
1. Your lawyer is correct. Please read Section 23 of Rule on Declaration of Absolute Nullity
of Void Marriages and Annulment of Voidable Marriages in my website
www.familymatters.org.ph under the Legal Procedures section.
If you get married again without that decree being annotated on the NSO files, you can be
charged with bigamy. (Your marriage will also be void.) Please take note that bigamy is a
public crime which means that ANYONE can file the case against you.
What about your husband since he has already gotten married? He has committed bigamy
but the problem is that he cannot be charged here in the Philippines since the bigamous
marriage took place outside the country. There is a problem with what lawyers call
jurisdiction. (He can however be charged there in the US.)
2. Even if your marriage has been declared null and void, your children with your former
husband are still considered legitimate. This is provided for by Article 54 of the Family
Code which states:
Children conceived or born before the judgment of annulment or absolute nullity of the
marriage under Article 36 has become final and executory shall be considered legitimate.
Children conceived or born of the subsequent marriage under Article 53 shall likewise be
legitimate.
Your legitimated child has the right to bear his/her fathers surname. You will find it very
difficult if not impossible to ask our courts to change your legitimated childs surname.
January 12, 2010 7:48 PM
Anonymous said...
Attny: Gerry T. Galacio
Attorney just want to know the fee for the applying A court order for the divorce decree.
Because my agent asking me for the price of 120Taiwan dollar...
February 22, 2010 4:42 PM
Anonymous said...
I'm Catholic and I dislike divorce, but divorce is a human right, it's not up the government
to decide, nor for the Catholic Church to impose their view upon all.
March 14, 2010 3:55 AM
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I took these pictures when I was a journalism teacher and yearbook adviser in Rizal High School in
Pasig City, Metro Manila, Philippines from 1984 to 1995. Rizal High School was once credited in the
Guinness Book of World Records as the worlds largest high school. Hello to all Rizalians!
Campus Connection blog
Marriage is a covenant between a man and a woman who agree to live together
as husband and wife for as long as they both live. We have chosen each other carefully and have
received premarital counseling on the nature, purposes and responsibilities of marriage. We
understand that acovenant marriage is for life.
Marriage, Parenting and Singleness - Crosswalk.com
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Underwater Archaeology
Underwater archaeology, a branch of
maritime archaeology, is the study of past
human life, behaviors, and cultures using the
physical remains found in bodies of water or
buried beneath water-logged sediment.
Researchers in this field generally examine
the sites of shipwrecks, submerged airplanes,
structures created by humans in water bodies,
and places where people once lived that have
since been flooded or covered by water. How
do divers record their findings
underwater? More... Discuss
Article of the Day provided by The Free Dictionary
Today's Birthday
In the News
Ambition is like
choler, which is a humor that maketh men
active, earnest, full of alacrity, and stirring, if it
be not stopped; but if it be stopped, and
cannot have its way, it becometh adust, and
thereby malign and venomous.
Francis Bacon
(1561-1626) Discuss
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sequester
backfire
disjoint
flagellate
scourge
seclude
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locomote
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Hangman
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