Written by DSLaw Family Law Series
CAN I FILE FOR DIVORCE ABROAD IF I AM A FILIPINO CITIZEN? [Understanding Article 26 of the Family Code of the Philippines]
It is of common knowledge that there is no divorce in the Philippines just yet. In fact, the Philippines is the only country in the world without divorce law other than the Vatican. However, a party from a mixed marriage can validly wonder, “Can I file for divorce abroad if I am a Filipino citizen?”
The pertinent provision of the Family Code is found in Paragraph 2 of Article 26, which provides that:
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 the capacity to remarry under Philippine law.
The purpose of Paragraph 2 of Article 26 is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after a foreign divorce decree that is effective in the country where it was rendered, is no longer married to the Filipino spouse. The provision is a corrective measure to address an anomaly where the Filipino spouse is tied to the marriage while the foreign spouse is free to marry under the laws of his or her country.[1]
Nevertheless, a plain reading of the law suggests that the one who must initiate the divorce proceeding is the alien spouse and not the Filipino spouse. So, can a Filipino spouse validly file a divorce proceeding and obtain a divorce decree abroad?
In the fairly recent case of Republic vs. Manalo,[2] the Supreme Court has ruled in the affirmative explaining that: “A prohibitive view of Paragraph 2 of Article 26 would do more harm than good. If We disallow a Filipino citizen who initiated and obtained a foreign divorce from the coverage of Paragraph 2 of Article 26 and still require him or her to first avail of the existing “mechanisms” under the Family Code, any subsequent relationship that he or she would enter in the meantime shall be considered as illicit in the eyes of the Philippine law.”
It must be emphasized that this scenario applies only to a mixed marriage which presupposes that a Filipino spouse is married to a foreign national. Nevertheless, you still need to file for a Petition for Recognition of Foreign Divorce Decree before the Philippine Court of Law in order for your foreign divorce decree to have a legal effect in the Philippine jurisdiction.
[1] Fujiki v. Marinay, supra note 20, at 555.
[2] Republic v. Manalo, G.R. No. 221029, [April 24, 2018])
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