DIVORCE: A
QUICK ESCAPE TO MARRIAGE…NOT AT ALL!
Ideally, a vow to live and die with your wife or husband will always
be a vow. Love should not be as fragile as a glass that when it drops, it
breaks. But why do some couples still think of heading themselves to a quick
escape out of their hopeful marriages? One of these “escapes” I’m talking about
is divorce.
The first thing that comes in my mind when I hear about divorce is termination
of marital union. This applies to married couples which take it as a way to get
out of theirexisting marriages for any other reason, be it well-grounded or not.
Divorce is typically a painful process but ironically, a lot of people, even Filipinos
invite the idea of divorce, allowing this to take over Filipino values and
culture. Luckily, it is not recognized under Philippine laws. Perhaps, this is
one of the very reasons why some Filipinos desire and get married outside the
Philippines and later if they decide to, end the marriage as easy as 1, 2, 3.
Let’s try to take a look on how far will this divorce go.
In questions involving the validity of divorce obtained outside the
Philippines, we usually apply Article 15of the Civil Code because the matter of
validity of divorce affects family rights and duties, status and condition of a
person.
Art 15 of the Civil Code says:
“ 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.”
Here, if citizens of the Philippines obtained the foreign decree of
divorce, the same will not be recognized as valid here in the Philippines even
if the said divorce was valid in the place where it was obtained. Two reasons
are, it is against public policy and against morality according to the Supreme
Court.
But on the other hand, if decree of absolute divorce was obtained by
foreigner ina foreign court, Philippine courts may still recognize the validity
of the divorce if the same was obtained pursuant to the national law of the
foreigner following the nationality principle stated in Art.15 of the Civil Code.
There isonly one situation where a foreign decree of divorce can be recognized
as valid even to the citizen of the Philippines. This avers the exception provided
for in the second paragraph of Article 26 of the Family Code.
Art. 26 2nd Paragraph provides:
“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.”
Clearly, this is the only situation under our law where a foreign
decree of divorce is recognized as valid even to the citizen of the Philippines.
Things to consider for Article 26, 2nd par.
of the Family Code 26 to apply:
1.
Firstly, existence of a
valid mixed marriage
A citizen of the Philippines must be married to a foreigner. This is
commonly known as mixed marriage.But when do you determine if it is a case of
mixed marriage? Is it necessary that it must be a mixed marriage from the very
start? What if the two parties involved were previously both citizens of the Philippines
at the time of the celebration of marriage but later on one of them applied for
a change of citizenship and become a foreign national and that foreign national
obtained a foreign decreeof absolute divorce capacitating him or her to
remarry, will Article26 of the FC apply so that the other party who remained a
citizen of the Philippines will now regain his capacity to remarry? The answer
is YES.
Let us relate the case of Republic vs. Obrecido III. In this case,
the Supreme Court ruled that in determining whether it is a case of mixed
marriagethe reckoning point is the citizenship of the parties at the time where
the foreign absolute decree of divorce was obtained and not at the time of the
celebration of marriage. Simply put, in determining the validity of divorce
obtained abroad, the basis is the citizenship of the divorcee at the time the
divorce of marriage was obtained and not the time of the celebration of
marriage. Thus, even if thetwo parties are originally Filipinos but later on one
of them becomes a foreign national and it is only after becoming a foreign
national that he or she has obtained the divorce, this is where the exception
under Art 26 applies.
2.
Alien spouse obtained the
valid divorce decree
The second requirement is that it must be the foreigner who shall
obtain thedecreeof absolute divorce in order for Article 26 to apply. If it is the citizen of the Philippineswho
obtained the decree of absolute divorce, it is not Art 26 of the Family Code
which will apply. Instead,it is Art 15 in relation to art 17 of the Civil Code
in which case under our law, divorces obtained by the citizen of the
Philippines are not recognized as valid being contrary to public policy and
morality.
3.
Divorce decree must
be absolute
The third requirement is that the nature of foreign decree obtained must
be an absolute one. Meaning, it must capacitate the divorcee to remarry.
We have to note that even in foreign jurisdictionsthere are two
types of divorces: a divorce may either be absolute, capacitating the divorcee
to remarry, or restricting, which restricts the divorcee’s capacity to remarry.
So if the foreign divorce obtained by the divorcee restricted his capacity to
remarry the Filipino citizen will not likewise regain his capacity to remarry.
With these said,
one cannot conclude that simply having a foreign spouse who obtained a divorce
decree abroad, automatically capacitates a Filipino to remarry.
Otherwise, he or she might be misled of contracting a subsequent marriageat the
risk of committing the crime of bigamy.
What then should the Filipino spouse do in order to make the divorce
obtained abroad be recognized and made valid in the Philippines, thus allowing
her to legally remarry?
Firstly, the citizen of the Philippines must file a petition before
the Family Courts to authorize him or her to remarry pursuant to the provision
of the 2nd par. of Art 26 of the Family Code. In that petition the petitioner must able to
prove the following:
1.
Existence of the foreign divorce decree
Well settled is the rule that before the Court can take cognizance
of the existence of a foreign judgment, it must be established as a matter of
fact.
2.
Divorce decree based on national law
It must also be proven that decree of absolute divorce must be
obtained pursuant to the national law of the divorcee which allows foreigndivorces,
following the nationality principle embodied in Art 15.
3.
Existence of foreign law
In the process, petitioner must prove the existence of the foreign
law. The rule in jurisdiction asserts thatbefore foreign law canbe taken cognizance
by Philippine courts,it must be specially alleged and proven. If not, our court
will presume that foreign law is the same as our domestic or internal law.
In conclusion, divorce is never that easy as others would think.
Simply because marriage, being an inviolable social institution, is governed by
law and not subject to any stipulation or human ill-will. Divorce therefore
should not be taken as a quick escape out of marriage. This cannot be forced to
anyone though. This makes divorce a neutral thing. It only gets bad when people
take advantage of it but it serves a fine purpose when people use it the way it
should be.
(The author, Beverly Caboteja, is a graduating law student at the University of Mindanao in Davao City, Philippines. She is a faculty lecturer at ACLC, a top computer school in Davao City)
