Friday, December 30, 2005

Divorce obtained abroad by a Filipino not recognized in the Philippines

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 it’s 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 my post 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.

When the divorce is obtained by an alien spouse against a Filipino
The second paragraph of Article 26 of the Family Code states:
“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.”
We must make a clear distinction here.

[1] If it is 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.

[2] 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 said divorce allows the former alien spouse to remarry, the Filipino will also have the right to remarry under Philippine law. That is, after the foreign divorce decree is recognized by a Philippine court; more on this below.

How do you know who filed or initiated the divorce proceedings?

I have come across some forums where the question has been asked as to how do you know who filed or initiated the divorce proceedings? Well, if you look at the divorce papers, the term “complainant” or “petitioner” refers to the person who filed or initiated the case. The term “defendant” or “respondent” refers to the person against whom the petition was filed.

What about consensual or mutual agreement divorces?

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?

What kind of petition to file - declaration of nullity or recognition of a foreign divorce decree?

As I said above,
before remarrying, the Filipino divorced by the foreign spouse must first file a petition in a Philippine court for the recognition of the foreign divorce decree. Only when the court has recognized the foreign divorce decree can the Filipino remarry.

A lot of Filipinos mistakenly think that if the Philippine embassy or consulate in the country where they are in accepts their divorce papers, then their divorce is automatically recognized here in the Philippines. They then get married again after submitting their divorce papers, and here is when the legal problems arise as I discussed at the top of this post.

The recognition of a foreign divorce decree is a judicial process and not an administrative process. The petition is filed with the courts and not with the Local Civil Registrar or with the National Statistics Office. If officials of the LCR or the NSO by themselves annotate the divorce decree on the marriage contract or certificate without any court order, they can be charged administratively.

The proper legal remedy is filing a petition for the recognition of the foreign divorce decree and not for annulment of the marriage. Legally speaking, “annulment ” refers to voidable marriages under Articles 45, 46 and 47 of the Family Code while “declaration of nullity” refers to void marriages under Articles 35, 36, 37, 38 and 41 of the Family Code. But Filipinos commonly use “annulment” as a generic term.

A petition for recognition of a foreign divorce decree is not specifically provided for under the 1997 Rules of Civil Procedure or by a specific Supreme Court rule. But Article 26 already provides that if the divorce was obtained by the alien spouse against the Filipino spouse, then the Filipino shall have the right to remarry. Thus, filing a petition for annulment or for declaration of nullity is pointless. Moreover, the foreign divorce decree cannot be used as the basis for the petition for annulment or for declaration of nullity since such petitions are governed by the articles of the Family Code I cited above.

Petition for recognition of a foreign divorce decree is a difficult legal process

Most Filipino lawyers, however, prefer the filing of a petition for declaration of nullity under Article 36 of the Family Code rather than a petition for recognition of a foreign divorce decree. Why? In a petition for recognition, the court will require the presentation of expert witnesses who can
(1) translate the divorce decree if it is written in a language other than English, or

(2) testify on the law of the country where the divorce was granted. 
The translator must either come from the embassy concerned or from the Department of Foreign Affairs; getting their services is costly or difficult. As to the expert witness on the law on marriage and divorce of the country which granted the decree, this is an even more difficult thing to do.

In the case of Republic of the Philippines v. Cipriano Orbecido III which I discussed in “The right of a divorced Filipino to remarry under Article 26 of the Family Code,” Orbecido (a Filipino) was divorced by his wife (a former Filipino who became a naturalized US citizen). Orbecido, invoking Paragraph 2 of Article 26 of the Family Code, later on filed a “petition for authority to remarry” with the Regional Trial Court in Zamboanga del Sur.

The Supreme Court clarified that instead of a “petition for authority to remarry” Orbecido should have filed a petition for declaratory relief under Rule 63 of the 1997 Rules of Civil Procedure. But the Court also expressly mentions “recognition of a foreign divorce decree” which is why most lawyers file this kind of petition instead of a petition for declaratory relief. Perhaps it is time for the Supreme Court to issue a clarificatory rule of procedure dealing with situations falling under the second paragraph of Article 26.

How long will the petition for recognition of a foreign divorce decree take? Our Family Courts, which have jurisdiction over this kind of petition, are overloaded with cases especially those located in Metro Manila and major urban centers The court process can take more than a year or two.

What about a Filipino couple where one spouse becomes a foreign citizen and then obtains a divorce against the other?

Free PDF newsletter on divorce and remarriage under the Family Code(Note: Click the picture to download a free PDF newsletter on this topic.)

Please read also my post “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 petitioner’s 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 petitioner’s 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 petitioner’s 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 my 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!