Philippine law does not recognize absolute divorce between Filipino citizens. Philippine personal laws follow and remain applicable to all Filipinos wherever they go. This holds true with respect to marriage. Since divorce is not recognized in this country any divorce which may be obtained by a Filipino spouse in a foreign court, dissolving his or her marriage has no legal effect, no validity and cannot be recognized, since it is contrary to national policy. As far as Philippine law is concerned, he or she remains married to his or her spouse.
The Family Code, however, has a very interesting provision which provides, to a limited extent, an exception to the “non-recognition of divorce policy”. This is provided under Article 26.
Article 26 of the Family Code is unique in the sense that it envisions the inevitable situation of a Filipino being married to a foreigner, and the latter obtains a divorce decree in a foreign court dissolving the marriage. Under Philippine law, the Filipino spouse would still remain married to his or her alien spouse notwithstanding the dissolution of such marriage by a divorce decree obtained by the alien spouse. This is an absurd situation where a Filipino spouse still remains married to an alien spouse, who is no longer his or her spouse. Article 26 was crafted specifically to address this absurdity.
Article 26 of the Family Code, provides:
“All marriages solemnized outside the Philippines
Where a marriage 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)”
Article 26 of the Family Code is an interesting provision, and has undergone remarkable exegesis in the light of the prevailing rule which does not recognize divorce in our jurisdiction.
Under Article 26, all marriages solemnized outside the Philippine in accordance with the laws in force in the country where they are solemnized and valid there as such shall also be valid in this country, except the marriages which the Family Code prohibits.
The second paragraph of Article 26 has drawn significant controversy because of the impact of the divorce laws, prevailing in foreign jurisdictions, particularly in cases where a Filipino national is married to a foreign national and divorce is subsequently obtained in a foreign court.
Under Article 26 where the marriage is between a Filipino citizen and a foreigner 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 laws.
The only possible exception, by which divorce may be recognized, under our jurisdiction is envisioned in second paragraph of Article 26 of the Family Code, where a Filipino citizen is married to an alien or a foreigner.
In this situation, the law states that a divorce validly obtained in foreign country, by the alien spouse, capacitating him or her to remarry, grants the same capacity to the Filipino spouse to remarry under Philippine law. In effect this is the only situation which grants legal recognition of divorce obtained in foreign forum.
The reason behind the uniqueness of second paragraph of Article 26, has been well articulated in the legislative intent, which is to avoid the absurd situation where a Filipino spouse remains married to the alien spouse, who is no longer his or her spouse, since the latter had already obtained a divorce, dissolving the marriage.
The provision, however, granting legal capacity to the Filipino spouse, to marry, does not appear to be self executing, since there is a need for the judicial recognition of the judgment of divorce, obtained in a foreign court.
The case of first impression which tested the applicable intent of Article 26, is the leading case of Republic vs. Orbecido lll<!--[if !supportFootnotes]-->[1]<!--[endif]-->.
In Orbecido, the parties to this marriage were Filipino citizens, who got married in the Philippines United States United States United States Philippines
The Solicitor General (Counsel of the State) in a petition for review to the High Court, challenged the order of the lower court, granting the husband’s petition, on the ground that Article 26, 2nd paragraph, is applicable only to mixed marriages, where a Filipina is married to an alien and not the marriage between Filipino citizens.
True enough, the language of Article 26 clearly refers to a marriage between a Filipino and a foreigner. In this case the Solicitor General argues that the parties to this marriage were both originally Filipino nationals, so Article 26 does not apply.
The Supreme Court in addressing the issue of whether the divorced Filipino husband could invoke 2nd paragraph of Article 26 held:
“This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U. S. A.
“Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn vs. Romillo, Jr. The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines
Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were Filipino citizens but later on, one of them obtains a foreign citizenship by naturalization’
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals. In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted 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 Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed According to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent.
If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:
There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and a valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.
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 this case, when Cipriano’s wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the “divorced” Filipino spouse, should be allowed to remarry.”
“However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondent’s wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence.
Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove 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. Like any other fact, such laws must be alleged and proved. Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E. O. No. 209, as amended by E. O. No. 227), 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. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondent’s bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made properly upon respondent’s submission of the aforecited evidence in his favor.”
In this case the court sustained the stand of the divorced Filipino husband, that he could invoke the 2nd paragraph of Article 26. The court explained that when the wife became a naturalized American, her marriage to her husband was still valid and subsisting. When his wife who became a naturalized American divorced him, as the “divorced” Filipino spouse the husband has the capacity to remarry under Article 26. The court pointed out that 2nd paragraph of Article 26, should be interpreted to include cases involving parties who at the time of the celebration of marriage were Filipino citizens but later on one of them becomes naturalized as a foreign citizen and obtaining a divorce decree. The Filipino spouse should be allowed to remarry as if the other party was a foreigner at the time of solemnization of the marriage.
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<!--[if !supportFootnotes]-->[1]<!--[endif]--> G. R. No. 154380, October 5, 2005
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