Some Filipinos want and do get married outside the Philippines. There’s nothing really strange with this, except when they say that the reason is for convenience in getting a divorce abroad. This is strange for two main reasons:
1. Divorce is not recognized under Philippine laws. If you’re a Filipino, it doesn’t matter where you get a divorce: such divorce is invalid/void in the Philippines. This is because under the nationality principle (Art. 15, Civil Code), all Filipinos – where they may be in the world – are bound by Philippine laws on family rights and duties, status, condition, and legal capacity. Yes, folks, you can run, but you can’t hide.Nevertheless, divorce decrees secured outside the Philippines are recognized in certain instances. This is provided in Article 26 (Paragraph 2) of the Family Code, which reads in full:
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.
The twin elements for the application of this provision are:
1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.
After complying with the procedure in having the foreign decree of divorce judicially recognized (through a court action) here in the Philippines, the Filipino spouse may validly remarry.
At first glance, Article 26 seems to apply only to a marriage between a Filipino and a foreigner. This was raised by a respected commentator in family law, Justice Sempio-Diy, who noted that Art. 26 does not apply:
…to a divorce obtained by a former Filipino who had been naturalized in another country after his naturalization, as it might open the door to rich Filipinos’ obtaining naturalization abroad for no other reason than to be able to divorce their Filipino spouse (Handbook on the Family Code of the Philippines, 1995 Ed., p. 30).
However, this provision was later interpreted by the Supreme Court to include 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. The reckoning point is not the citizenship of the parties at the time of marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. (Philippines vs. Orbecido III, G.R. No. 154380, 5 October 2005).
2. Marriage is supposed to be forever. From an idealistic non-legal standpoint, the sole reason for marriage should be love; the kind of love that transcends time and withstands any impediments that life throws our way. From a legal perspective, on the other hand, no less than the Philippine Constitution (Art. XV, Sec. 2) and the Family Code (Art. 1) expressly characterize marriage as the foundation of the family and an inviolable social institution. The law states that it is a special contract of a permanent union between a man and a woman (sorry, same sex marriage is not yet recognized in the Philippines). It is inviolable. It is permanent. In short, you don’t think of divorce when you get married.
History of Article 26, Family Code:
6 July 1987: President Corazon Aquino signed Executive Order No. 209, otherwise known as the “Family Code.” The law, which took effect on 3 August 1988, reads:
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, 37, and 38.
17 July 1987: Executive Order No. 227 was signed into law, amending Article 26 of the Family Code, among others. Article 26 now reads:
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.
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Ian Boy/Venus,
Please read the “Terms” – no legal advice is given in this site.
Nevertheless, the fact of separation or abandonment – no matter how long – is not a gound for annulment. At most, abandonment may only be a ground for legal separation. When you talk to your lawyer, he/she will be better able to discuss the grounds for annulment and decide on the ground/s to invoke based on the facts you tell him/her (or if there’s no basis).
As to presumtive death, this topic will be discussed in a new post.
hi,
im a filipina, and but separated for more than 8 yrs now.but with no communication eventhough we have a daughter, 13 yrs old now. we didn’t get any financial support from the day he left..in short, it’s life he has abandoned us. we never change address and telephone no.i have a bf now, a us citizen but filipino . we want to make our relationship legal. is it possible for me to declare my ex husband as dead or presumed dead? so that i won’t be needing to file an annulment and get married soon?? pls give me an advice..thanks in advance..
how can i file an annulment to my wife? we have no kids and we are separated almost a year now. i need some answers and i need your advice.she always reminds me to file an annulment,we usually argue on financial matters. thanx
thank you so much for the fast reply.
Cbuana,
Kindly revisit the Orbecido case (click the link provided in the article above). In said case, the Supreme Court noted that before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove, among others, 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. Otherwise, according to the Supreme Court, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage.
The Supreme Court also noted that the petition for authority to remarry filed before the trial court actually constituted a petition for declaratory relief.
I hope this helps.
hi,
I’m filipina married to a french national and we are living in HK. My husband wants to file a divorce..his reason is incompatibility. We were married both in France(civil) and in Phils(church). My question is if my husband initiate the divorce will it be recognized in Phils.? As soon as we have the final decision, do i need to send copy to NSO or to Phil. Consulate here in HK so the divorce will take effect? Please enlighten me on this. Thank you.
Jennifer,
There are further questions that must be asked before your query can be properly answered, and it is strongly suggested that you secure this from a retained counsel, as legal advice is not dispensed here.
That being said, in general, a previous marriage, even if null and void, must be declared as such by the courts BEFORE either parties could validly contract a subsequent marriage. You may find the following articles relevant to your concerns:
1. Citizenship and Divorce (click here).
2. Steps for annulment (click here).
3. Effect of Annulment in a Criminal Case for Bigamy (click here).
Hope the foregoing helps.
i want to ask about marriage and annilment and this is the case:
A man who is previously married to a woman in the Phils but their marriage seems to be void because the woman was also married before but then filed and was granted a divorse in US. The man was denied in the US embassy and cannot be petition by his wife and so after sometime they parted ways.
Now the man wants to marry his current girl but is confused if he was legally married in the Phils. Does he still have to file an annulment first to the former marriage before contracting second marriage? If yes, what are the procedures and how long will it take?
You’re welcome, Jean.
thank you very much for giving time to make a reply sir fred… God bless.
Jean,
There’s a prohibition (sub judice rule) against making comments on the merits of pending cases. I assume that the case you are referring to is pending, so it’s better to take the safer side and refrain from discussing its finer details. There’s really a fine distinction, but, as mentioned, it’s better to be safe.
Nevertheless, I’d like to refer you the article “Effect of Annulment in a Criminal Case for Bigamy”.
your question is quite vague. kindly provide more details.
i’d like to ask if filing for an annulment case will be of help after a couple has been charged of bigamy? what will be the sentence or decision of the ombudsman and the sandigan bayan if the one accused of bigamy is a public official?