Easing up on the rule on proving a foreign law

By Atty. Eduardo T. Reyes III

“No man is an island” as an aphorism does not apply to the Philippines when speaking of divorce. Our country is the only one in the world (save for the Vatican that is mostly comprised of men) without a divorce law up to today. We stand in isolation as no divorce decree can be handed down by our courts because no Philippine law allows it.

The closest thing that we have to a divorce is Article 36 of the Family Code which envisages an affliction of a psychological malady by either or both spouses to the marriage. Yet despite Tan-Andal, where the Supreme Court relaxed the guidelines in ascertaining the presence of psychological incapacity and the more recent Maria Vicia Carullo-Padua v. Joselito Padua (April 27, 2022) ruling which reinforced the guidelines on psychological incapacity, still,  obtaining a nullity of marriage on account of psychological incapacity is expensive and arduous.

But there is one instance when Philippine courts can recognize a foreign divorce. This is found under the second paragraph of Article 26 of the Family Code which states:

Art 26. x x x

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 amended by E.O. 227)

In Republic v. Orbecido III, the twin elements for the applicability of the second paragraph of Art. 26, was laid down, thus:

  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.

Yet still, the binary requisites demand from the Filipino spouse, proof of the foreign law. This is because the foreign divorce decree will only be recognized in the Philippines if the foreign spouse is allowed to obtain a divorce and to remarry under his/ her foreign law.


Thus, many a petition for judicial recognition of foreign divorce had foundered because of the sheer difficulty of obtaining an authenticated copy of the foreign law, let alone one with an official English translation thereof when the original text is in any other language.

In Genevieve Rosal Arreza, a.k.a. “Genevieve Arreza Toyo” v. Tetsushi Toyo, Local Civil Registrar of Quezon City and The Administrator and Civil Registrar General of the National Statistics Office (G.R. No. 213198. July 1, 2019), a Filipina petitioner for judicial recognition of foreign divorce relative to her marriage with a Japanese national, was instructed by the Philippine Supreme Court to obtain “authenticated copies of the divorce decree, the Japanese law on divorce, and official translations of the same in English” as these are stringent requirements which must be complied with because Philippine courts do not take judicial notice (ie., accept the foreign documents at face value) of foreign laws and documents. Thus:

“The starting point in any recognition of a foreign divorce judgment is the acknowledgment that our courts do not take judicial notice of foreign judgments and laws. Justice Herrera explained that, as a rule, “no sovereign is bound to give effect within its dominion to a judgment rendered by a tribunal of another country”. This means that the foreign judgment and its authenticity must be proven as facts under our rules on evidence, together with the alien’s applicable national law to show the effect of the judgment on the alien himself or herself. The recognition may be made in an action instituted specifically for the purpose or in another action where a party invokes the foreign decree as an integral aspect of his [ or her] claim or defense. Both the foreign divorce decree and the foreign spouse’s national law, purported to be official acts of a sovereign authority, can be established by complying with the mandate of Rule 132, Sections 24 and 25 of the Rules of Court:

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.  (Citations omitted) Here, the Regional Trial Court ruled that the documents petitioner submitted to prove the divorce decree have complied with the demands of Rule 132, Sections 24 and 25. However, it found the copy of the Japan Civil Code and its English translation insufficient to prove Japan’s law on divorce. It noted that these documents were not duly authenticated by the Philippine Consul in Japan, the Japanese Consul in Manila, or the Department of Foreign Affairs”.

Sanguinely, the ruling in Genevieve Rosal Arreza, a.k.a. “Genevieve Arreza Toyo” v. Tetsushi Toyo which demands so much from the petitioner in a petition for judicial recognition of foreign divorce may have finally been abandoned or superseded by OCA Circular No. 157-2022 (23 June 2022) entitled “Compilation of The Laws of Foreign Countries on Marriage and Divorce”.

Here, the Office of the Court Administrator had exhorted all Family Courts to be “advised to take judicial notice of the compilation of laws of foreign countries on marriage and divorce in the resolution of cases requiring the presentation of the laws of foreign countries on marriage and divorce which could be accessed at https://sc.judiciary.gov.ph/foreign-divorce-laws/.”

In other words, the Supreme Court through the Court Administrator had made it a lot easier for petitioners to prove the foreign law of his/ her spouse by advising Family Courts to look up the foreign law in the web address provided by the Supreme Court instead of requiring the petitioner to procure the paper-based authenticated copies of the foreign law and the English translation thereof from the foreign country and have them attested before the Philippine consular office or be Apostilled.

This is a laudable initiative which will surely help many Filipino spouses whose husbands or wives had long divorced them but in the eyes of Philippine law, they are still “married” to their foreign spouses simply because they could not obtain a decree from Philippine courts that recognizes the foreign divorce on account of sheer difficulty or the steep price that is entailed to obtain the same.

(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 book author. His website is etriiilaw.com).