By Atty. Eduardo T. Reyes III
APART from the Vatican (which is mostly comprised of men of the cloth), the Philippines seems to be the only other nation in the globe that has no absolute divorce law.
It could be surmised that perhaps Filipinos are punctiliously ruled by social conventions or heavily influenced by their deep religious piety that their lawmakers had still not seen it compelling to enact a divorce law to deal with the plight of the scores of Filipinos whose marriages had failed.
Under existing Philippine law (ie, The Family Code of the Philippines), if the requisites to make a marriage valid are absent, or the marriage is void because it is considered incestuous, contrary to public policy, or because one or both spouses is/ are psychologically incapacitated, which grounds must be in existence prior to, or at the time of marriage, the same may be declared void. But a great gulf segregates a “void marriage” from “divorce”. This is because in a “void marriage”, the foregoing grounds just mentioned, must “exist prior to, or at the time of marriage”. While in divorce, the marriage may be ended on such looser grounds like “irreconcilable differences” or “mutual agreement” which may occur much later after the marriage had been celebrated.
This explains the reason why it is tougher to prove a void marriage than to obtain a divorce because in the former, it is indispensable that the grounds must have existed prior to, or at least at the time of, the marriage.
There is however one instance under the Family Code of the Philippines where our law recognizes absolute divorce. This is in cases of mixed or interracial marriages where one spouse is a Filipino/ Filipina in accordance with Article 26, which states that:
“Article 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.”
As originally intended, this provision of law was introduced as an innovation by the New Family Code when it took effect in 1988, in order to address the injustice in an “originally mixed-marriage” where the foreigner spouse, being allowed to extricate himself/ herself out of the marriage through a divorce which is sanctioned by his/ her own country, leaves the Filipino spouse ‘helpless’ as we do not recognize divorce in Philippine jurisdiction. Therefore, in order to provide a remedy to what would otherwise be a legal and factual absurdity whereby the Filipino spouse remains ‘married’ to a foreigner spouse who was already emancipated through divorce by his own national law, and in such peculiar situation only, the Filipino spouse will also be allowed to get out of the marriage, and the dissolution is through a DIVORCE which will be recognized in our country, but only, again, for emphasis, is being allowed as an exception.
Thus, as originally intended, Article 26 presupposes that the marriage must be an “originally mixed-marriage between a foreigner spouse and a Filipino spouse” and it is the foreigner spouse who seeks divorce abroad. It is also evident that the original intendment was only for divorce to be the ground for dissolution of the marriage and it should be the foreigner spouse who should be proactive in terms of securing it abroad while the Filipino spouse can only wait in passivity.
As recent jurisprudence has evolved, Article 26 was made to apply as well to: a. a marriage between two (2) Filipinos one of whom later on embraces foreign citizenship which allows him/ her to divorce his/ her Filipino spouse; b. A Filipina who sought for dissolution of her marriage on account of BIGAMY in Japan; c. A Filipina who filed for Divorce abroad.
In Republic v. Orbecido III (G.R. No. 154380, October 5, 2005), a case that involved two (2) Filipinos who married in the Philippines and then the husband emigrated to the United States and there obtained a divorce decree, the Supreme Court ruled that Article 26 applies and our courts must recognize the divorce and adjudge the Filipina spouse capacitated to remarry even if at the time of marriage, both of them were Filipinos.
However, in Corpus v. Sto. Tomas (G.R. No. 186571, August 11, 2010) and BAYOT v. THE HONORABLE COURT OF APPEALS and VICENTE MADRIGAL BAYOT (G.R. Nos. 155635 and 163979, November 7, 2008) the Supreme Court cautioned that the benefits of Article 26 are intended only for the Filipino spouse and not the foreigner spouse. This is not to say however that the foreigner spouse cannot file a petition for his/ her divorce to be recognized in the Philippines; but that in which case, the Philippine courts would only be confined to recognizing the divorce but not so much as to declare the alien spouse as capacitated to remarry as such capacity depends on his own national law.
In Roehr v. Rodriguez (G.R. No. 142820, June 20, 2003), a foreigner husband was able to obtain a divorce decree in Germany against his Filipina wife as well as a judgment award of custody of their two (2) minor children in his favor. Here, the Philippine Supreme Court handed down a meaningful ruling in the sense that while the divorce decree should be given full effect in the Philippines, the custodial award of the children cannot just simply be enforced unless the Filipina spouse is found unfit. In other words, the Philippine courts cannot simply renege on their duty to protect minor children from hasty foreign judgments when it affects the minor children’s best interest.
The next case involving divorce under Article 26, is Fujiki v Marinay (G.R. No. 196049 June 26, 2013). Here, the Filipina spouse with the assistance of her first Japanese husband collaborated with her in obtaining a decree of dissolution of her marriage with her second Japanese husband on the ground of Bigamy in a Japanese family court. This is another milestone in Philippine case law which allows recognition of a foreign dissolution of marriage on account of “bigamy”, and not only “divorce”.
Another recent significant development is that the Filipina spouse herself may file for divorce abroad as taught by the Supreme Court in Republic v. Manalo (24 April 2018). In this case, the Supreme Court applied the concept of “sociological jurisprudence” which means that our courts are both of “law and equity”.
And then there is the case of Racho v. Tanaka (G.R. No. 199515, June 25, 2018) where the Supreme Court held that the national law of Japan does not prohibit the Filipino spouse from initiating or participating in the divorce proceedings. It would be inherently unjust for a Filipina woman to be prohibited by her own national laws from something that a foreign law may allow. Parenthetically, the prohibition on Filipinos from participating in divorce proceedings will not be protecting our own nationals.
While the most recent decision of the Supreme Court is Edna S. Kondo, represented by Attorney-in-fact, Luzviminda S. Pineda v. Civil Registrar General (G.R. No. 223628. March 4, 2020), where the act of both the alien husband and the Filipina wife of obtaining a divorce “by mutual agreement” was ruled to be within the ambit of Article 26 of the Family Code.
Absolute divorce had long been recognized around the world and these rulings of the Supreme Court endeavor to keep in step with this reality. But the Court can only work within the law. For the time being, absolute divorce only covers mixed or interracial marriages. While as for Filipino spouses, divorce is not an available option.
But then again, there could be nothing nostalgic about loveless and irremediable marriages regardless of race or nationality. The corrosive effects of factual separation by couples who are still shackled by their meaningless marriage could be irreversible to them; or worse, their children.
Perhaps it is high time for the lawmakers to rethink the enactment of a divorce law in the Philippines just to give Filipinos an option. For this right of choice is surely embraced within their constitutional rights to privacy and freedom of religion.
(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).
