On 17 July 1987, shortly after the signing of Executive Order No. 209 (Family Code of the Philippines), Executive Order No. 227 was also signed into law, amending, inter alia, Article 26 of the Family Code. As so amended, it now states:
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 have capacity to remarry under Philippine law. (Italics supplied)
Article 26, par. 2, is an important innovation belatedly introduced by the Aquino Government, which is intended to extricate the Filipino spouse from an absurd and unjust situation in which he or she is married to someone who is not married to him or her. This provision applies only to cases where at the time of celebration of marriage, the parties are a Filipino citizen and a foreigner. In effect, this provision introduces divorce in our country, much less extends some degree of recognition to foreign divorce, although in exceptional cases.
Significantly, Article 26, par.2 now includes cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree capacitating him or her to remarry. The Filipino spouse should likewise be permitted to remarry as if the other party were an alien at the time of solemnization of the marriage (Republic vs. Orbecido, GR 154380, 5 October 2005).
Article 26, par.2 may have raised some problems than it solves. A number of questions can be raised with respect to the operation of this provision, to wit:
1. Is there a need for a judicial decree in Philippine courts to declare the Filipino spouse qualified to remarry? The Family Code has no explicit provision to that effect, unlike in cases of void marriages and of a remarriage in case of absence of one of the spouses amounting to presumptive death (Art. 40 and 41, Family Code) where a court decree is required.
2. Is Art. 26, par. 2 applicable to foreign divorces obtained before the effectivity of the Family Code in view of Art. 256?
3. What if the Filipino spouse does not intend to remarry, what is the status of any children they may have after the divorce decree? Does the Filipino spouse have a right to demand support from his/her former alien spouse? What is his/her status with respect to his/her former foreign spouse? Can he/she claim share of property or income acquired by the former foreign spouse.
Moreover, I am of the moral view that the Orbecido doctrine is open to constitutional questions, viz:
1. Is the Orbecido ruling violative of the equal protection of the law clause of the Constitution as it favors only the rich, who may use or abuse the remedy of naturalization as foreign citizen and obtaining a valid foreign divorce and having it recognized in the Philippines in order to terminate his or her marriage with the Filipino spouse given the great difficulty in having a declaration of nullity and annulment of marriage granted at the appellate level of the court?
2. Is the Orbecido ruling tantamount to judicial legislation considering the fact that the Supreme Court has in effect amended Art 26, par. 2 of the Family Code, a substantive law? The OSG had posited that the issue was a matter of legislation and not of judicial legislation, a contention which was not addressed by the Supreme Court in its ruling. Would it not be much more orderly and customary if the Orbecido doctrine be cast in statutory form like the conflicting SC rulings namely People vs. Aragon, Wiegel vs. Sempio-Diy, and Yap vs. Paras, which were set in stone by Art. 40 of the Family Code?
hello!got married in phils. year 1998, we were both filipino citizen.I filed divorce 2002 and got it done 2004.Now im in the process of getting my US citizenship.How can i clear my marriage there in philippines once i finished with my citizenship??, cuz that’s what my understanding when i read the article above, or correct me if im wrong.. Do I have to hire or go to lawyer to get it done? pls. help.. thanks alot.
Manang, you would probably need a lawyer to get it done. Please read this related article - https://jlp-law.com/blog/divorce-annulment-philippines/
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if a non-muslim wife files for a divorce against her foreigner muslim spouse in our shariah court (they got married under the muslim rites)…can she re-marry after obtaining the muslim divorce?
g69g, I think so.
thanks for the reply, atty. fred. so she could remarry even if we have this law that if your spouse is a foreigner, the foreigner-spouse should be the one to file for the divorce so that the filipino citizen wife/husband can remarry? so that law doesn’t apply to a muslim divorce? forgive me for being makulit. just want to make sure. god bless.
I would like to ask on regarding Abandonment by wife for almost 5 years. My brother got married in the Philippines in 1996. His wife went to the United States in 2001 after a year (2002) she filed a divorce in the US against my brother and got married to a foreigner. My brother not knowing that she is not coming back again for him.
My brother’s questions are:
a. Is the divorced filed by his ex-wife valid here in the philippines and/or will it be a great help when filing an annulment?
b. He was abandoned by his wife for almost, 5 or 6 years, we heard in a news from a radio and most of his friends also told him that there is already a law that if husband/wife was abandoned by his/her spouse for 7 years… he/she can re-marry again without annulment due to abandonement. Is this true?
I hope to hear from you the soonest. My brother has a gf for two years and wanted to get marry soon… I would like to help him because i think its so unfair for him if his ex wife now is happily married while my brother cant marry his gf here due to his case.
Thanks and more power.
our muslim brothers and foreigners have more rights than the christian citizens of this country. there’s a divorce law in the muslim world and divorced foreigners are legally recognized. this makes the rest of the citizens of the republic of the philippines a bunch second class citizens of their very own country. this is really very distressing. why in the world there’s not a single lawyer who will petition the supreme court on the inequality of the situation? the constitution has guaranteed that all citizen of the republic of the philippines should be treated equally and yet what we have now is a clear violation of the said provision. why can our muslim brothers have a divorce law and the rest have none? does this mean that the rest of the citizens of this country are all dumb? this is the only country on this planet who gives more better treatment to foreigners than its own citizens. recognizing their divorce while the rest of the citizens have to go through hell just to get an annulment. no wonder this country is going nowhere.
Hi, i need some clarifications, an instance is if the foreign husband and a filipina got married and were granted a divorced outside the Philippines, but it’s the Filipina who petitioned for the said divorced. And later the Filipina had remarried again another foreign husband outside the Philippines. Is the second marriage then invalid? Since it is the Filipina who initiated the divorce in the first marriage and the said Filipina then also did disregard this permit of Capacity to Marriage. please do help us to enlighten some questions. Thank you very much
Sir, I got married in the Philippines back in 1991 and we got divorce here in US back in 1996. We been separeted since then and we had our own family now from different marriage. We both willing to file annullment in the Philippines to disregard our marriage back in manila. My question is, do we have any chance of getting this annullment done and can we remarry again from different person in manila? If so, can you help us how and who should we talk too. Can you also tell me how long will be the process will take if incase there is chance.. Thank you with all you help..
Atty.i faced a big problem about getting married.i decided to get married this sept’2009 but got shocked when i request a CENOMAR i have record for marriage.what will i do?what kind of case should i file to solve this problem?my name,my mother’s name,and my father’s name it is in the CRS Form.but the place of marriage,i have’nt there since ever and the date of marriage i was still studying on that date.i am confused regarding this,pls HELP ME..honest to goodness I HAVE’NT INVOLVE ANY MARRIAGE YET IN PHILIPPINE