Divorce obtained abroad by a Filipino is not recognized here
Several days ago, while surfing between 24 Oras and TV Patrol, I saw a news report by Ted Failon on divorce and remarriage by Filipinos, with special emphasis on the ongoing soap opera (sorry, I meant "situation") between Ruffa Gutierrez and Yilmaz Bektas. Failon's report concentrated on an interview with a former Family Court judge in Manila who said that Ruffa's marriage to Ylmaz was null and void for being bigamous. It appears Ruffa got married when she was 19 in the US, and has not since then been divorced.
While Failon's news report was factual at its core, what was wrong was the report's item and graphics on Article 15 (concerning divorce and remarriage) which Failon said came from the Family Code. The Family Code's Article 15 deals with the necessity of parental advice for men and women getting married between the ages 21 to 25. The Article 15 referred to in Failon's report actually comes from the New Civil Code of the Philippines. More on Article 15 later on in this article ...
A divorce obtained by a Filipino in another country, like the USA 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. But what if the divorce is obtained by an alien spouse against a Filipino?
The 2nd 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. (As amended by Executive Order 227”)
When the divorce is obtained by an alien spouse against a Filipino
We must make a distinction here. In the case of a Filipino married to an alien spouse, if he or she initiates or files the divorce action, the subsequent divorce will not be recognized here in the Philippines. If he or she gets married here again, he or she will be liable for bigamy.
However, if it is the alien spouse who initiates or files the divorce action, Article 26 of the Family Code will apply. The divorce is recognized here in the Philippines, and if the said divorce allows the former alien spouse to remarry, the Filipino will also have the right to remarry under Philippine law.
What about a Filipino couple where one later on becomes a foreign citizen and he/she obtains a divorce against the other?
Please read 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; andSupreme Court rulings on divorce, remarriage, and bigamy
[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.
In People v. Schneckenburger, the Court held that the accused who secured a foreign divorce, and later remarried in the Philippines, in the belief that the foreign divorce was valid, is liable for bigamy.
The Court, in People v. Bitdu, carefully distinguished between a mistake of fact, which could be a basis for the defense of good faith in a bigamy case, from a mistake of law, which does not excuse a person, even a lay person, from liability. The Court held that even if the accused, who had obtained a divorce under the Mohammedan custom, honestly believed that in contracting her second marriage she was not committing any violation of the law, and that she had no criminal intent, the same does not justify her act.
The Supreme Court further stated therein that with respect to the contention that the accused acted in good faith in contracting the second marriage, believing that she had been validly divorced from her first husband, it is sufficient to say that everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.
The Supreme Court ruling in Garcia-Recio vs. Recio (G.R. No. 138322, October 2, 2001) below cites Article 26 of the Family Code, and Articles 15 and 17 of the New Civil Code:
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.The real Article 15
Ted Failon's news report started off with the stories of Filipinos who get married in foreign countries where divorce is legal and readily available. The reasoning of these Filipinos is that if the marriage doesn't work out, they can legally get a divorce in that country where they got married.
As correctly pointed in that report, this reasoning is a mistake in view of Article 15. The mistake in Failon's report was in saying (and in the graphic shown on-screen) that Article 15 came from the Family Code. The truth is, the Article 15 that is applicable to divorce and remarriage of Filipinos is that Article 15 from the New Civil Code of the Philippines.
The reasoning of these Filipinos who get married abroad sounds good, but, sad to say, it’s legally flawed. Before telling you why this is so, please take note of the provisions of the New Civil Code of the Philippines cited below:
Art. 14. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations.Filipinos bound by our laws, wherever they may be in the world
Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.
Art. 16. Real property as well as personal property is subject to the law of the country where it is stipulated.
However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.
Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
What these provisions of the New Civil Code say, especially Article 15, is that wherever Filipinos may be in, whether in the Philippines or anywhere else in the world, they have to follow our laws on marriage, as provided for in the Family Code. Our general legal principle is “lex loci celebrationis” which means that if a marriage by a Filipino is valid in the country where it is celebrated, then it is considered as valid here in the Philippines.
But this principle does not apply in cases or situations where the Family Code has declared certain “marriages” as incestuous, bigamous or null and void for reasons of morality or public policy. Thus, a marriage between Filipinos who are first cousins may be validly solemnized in some countries but such a marriage will not be recognized as valid here in the Philippines. Thus also, a divorce obtained by a Filipino abroad will not be recognized here in the Philippines.
Well, well, well, Ruffa, Yilmaz, TV Patrol, divorce and remarriage by Filipinos ... One good thing about this Ruffa -Ylmaz soap opera (sorry, I meant "situation") is that through radio-TV-print reports, Filipinos are learning a lot of legal things about marriage and the family. Hmm, I wonder, what can we learn from John and Gretchen?
Isn´t it unfair for a filipina who filed a divorce outside the Philippines and still binded by the philippine law,whereas the divorced foreign husband can remarry without any hassle in his own country?
ReplyDeletethe philippine government should be more lenient about this topic. We are already in the 21st century!!Why is the divorce outside the Philippines not recognized when a filipino citizen initiated the divorce,where the foreign ex-husband agreed for it and doesn´t want to be together with the filipina ex-wife anymore? Isn´t that law unfair to a filipino citizen? I don´t see any compassion and help to the fellow citizens in this regulation.In fact,it only give misery to the people involved.Is that a good christian way to do? And religion and politics should be separated.
ReplyDeleteSince you were the one who initiated the filing of a divorce action against your foreigner-husband, the divorce will not be recognized here in the Philippines. As the maxim puts it, Dura lex, sed lex.The law may be hard but it is the law.
ReplyDeleteThus if you get married again here in the Philippines, you can be charged with bigamy. In the first place, you will not be issued a marriage license. If you list your status as single, you can possibly be charged with perjury (lying under oath).
Please read my Legal Updates blog (www.famli.blogspot.com) posts on this issue of divorce and Filipino citizens:
Divorce obtained abroad by a Filipino not recognized here
The right of a divorced Filipino spouse to remarry under Article 26 of the Family Code