The Philippines has become infamous in recent years, for being one of only two states in all the world that does not have a Divorce law. That the other state is the Vatican lends itself to the legal curiosity. As a consequence of which, not only are Filipinos not allowed to get a divorce in the Philippines but they cannot obtain one abroad which will be legal in the Philippines. The only exception is the judicial recognition of divorce premised under the International Law principle of comity among nations.
Before discussing the steps to obtain a judicial recognition of divorce in the Philippines, we address the fundamental question :
WHAT IS A JUDICIAL RECOGNITION OF DIVORCE IN THE PHILIPPINES?
It is the recognition by a Philippine court of a divorce granted by a court in another country between a Filipino citizen and a foreign national, regardless of the place of marriage or the party which filed to obtain the divorce.
The operational provision under Philippine law is Article 26 of the Family Code which states, to wit:
“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 have capacity to remarry under Philippine law. (As amended by Executive Order 227).”
The apparent requirement that the divorce should be obtained by the foreign spouse abroad has since been clarified by the Supreme Court of the Philippines in Republic vs. Manalo (G.R. No. 221029, April 24, 2018), saying:
“ Assuming, for the sake of argument, that the word “obtained” should be interpreted to mean that the divorce proceeding must actually be initiated by the alien spouse, still, the Court , will not follow the letter of the statute when to do so would depart from the true intent of the legislature or would otherwise yield conclusions inconsistent with the general purpose of the act.
The purpose of par. 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 the 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) DETERMINE IF YOU QUALIFY FOR A RECOGNITION OF DIVORCE.
Since you can find Filipino immigrants practically anywhere in the world, a common situation is a Filipino couple, whether married in the Philippines or not, obtaining a divorce where they are residing and later on desiring to marry again in the Philippines to other parties. They both find out that they cannot validly remarry under Philippine law for two reasons. First, under the Nationality principle which is adopted in the Civil Code of the Philippines (Art. 15 New Civil Code) which makes laws on marriage and family relations applicable to Filipinos wherever they may be and second, because divorce is not allowed in the Philippines they will not be allowed to circumvent this by simply getting the divorce from another state. This illustrates the fundamental legal requirement to qualify for a judicial recognition of divorce, that at least one spouse is a foreigner. It will not apply in a situation where both spouses are Filipinos. Also, the reckoning point is not the citizenship of the parties at the time of the celebration of the marriage but the citizenship of the parties at the time of the divorce abroad. Thus, when one of two Filipino spouses become naturalized abroad before the divorce, a judicial recognition thereof will be allowed. This was the ruling of the Supreme Court in Republic vs. Orbecido (G.R. No. 154380 October 5, 2005, ). An interesting twist, however, is the situation where the “naturalized” foreign spouse is a dual citizen of the Philippines under Republic Act No. 9225, otherwise known as Citizenship Retention and Re-acquisition Act of 2003, . There is as yet no guidance on this point by the Supreme Court. Another gray area is the situation where both spouses are foreigners and one or both of them migrated to the Philippines and obtained properties in the Philippines while married and thereafter obtained a divorce from their home states. To this writer’s mind, the judicial recognition should not be allowed in the case of the dual citizen spouse but should be available to the foreign spouses in the second situation.
The other qualification to be able to file a Petition for Recognition of Divorce is obviously a VALID divorce. It is very easy to disregard this requisite but it occurs often in very real situations like fraud in the disclosure of information as to the whereabouts of the other spouse for purposes of serving judicial summons or lack of jurisdiction of the divorce court where the petitioner has not truly established residence or domicile. The 2019 Rules on Evidence has enumerated the following grounds to impeach a divorce decree: 1) lack of jurisdiction of the court or the judicial officer; 2) collusion between the parties; and 3) fraud in the party offering the record, in respect to the proceedings. (Section 29 Rule 132, 2019 Revised Rules on Evidence).
2) CHOOSE AN ATTORNEY.
The choice of an attorney or lawyer is the most important part of the recognition process. Your choice will determine your probable success and whether or not the legal services you are seeking would match your financial budget and your timetable.
But how do you choose your attorney. For most people, it would be the first time they would need to speak to a lawyer. To begin the process, you can look at law directories and websites of lawyers in the Philippines. You may CLICK HERE to start your search. A quick check with the list of lawyers on the website of the Supreme Court of the Philippines is another important step.
First and foremost, choose an attorney that you can trust. Avoid those who promise you the moon and the stars just to get your business. Beware of websites and attorneys who promise to get you a decision in a few months. These are telltale signs of a scam and that you are dealing with a fixer.
The next consideration in your choice of an attorney is the cost which can vary depending on the experience of the attorney.
Once you have narrowed your options to 3 or 4 lawyers, you are ready to schedule your appointment and then make your final choice.
Do not forget to ask your attorney for a written contract which should indicate in detail the terms and conditions of the handling of the case. Do not be afraid to ask your attorney questions on the contract, which tend to be very legalistic. If needed, ask him to translate the words for you. If an attorney refuses to reduce the agreement in writing or is not willing to explain the terms and conditions to your satisfaction, walk away while you can.
3) GATHER THE REQUIRED DOCUMENTS.
The following is a list of the possible documents that your chosen attorney will require before drafting the petition. Some of the items below may be optional (5, 10) . The important items are 1 to 4 below.
1) A brief marital history and how you ended up with the divorce.
2) A certified true copy of the marriage certificate registered in the Philippines or in another country and registered with a Philippine consulate.
3) A certified copy of the divorce decree, order, or decision duly translated to English if in another language, duly authenticated by Apostille. Please refer to the apostille requirements applicable in your place of residence. Guidance can usually be found with the Office of the Secretary of State or such equivalent office in your state of residence.
4) A certified copy of the specific law on divorce in the country where it was obtained duly translated to English if in another language, duly authenticated by Apostille, and should indicate that the parties to the divorce can remarry .Please refer to the apostille requirements applicable in your place of residence. Guidance can usually be found with the Office of the Secretary of State or such equivalent office in your state of residence.
5) Proof of residence ( if in the Philippines):
a) Notarized Certificate of Residency issued by the barangay
b) Notarized sketch of address, certified by the barangay
c) Any one of the following showing the name and address of petitioner:
i. government-issued ID
ii. lease contract or land title
iii. utility bills from the recent six months
iv. other proofs of residency
6) Proof of residence (if abroad)- Documents equivalent to the foregoing in the country of residence.
7) Birth Certificates of children, if any.
8) Residence of the spouse
9) Proof of Philippine citizenship ( Passport or Certificate of Naturalization) or proof of foreign citizenship.
10) Proof of citizenship of the spouse. ( Passport or authenticated proof of naturalization)
4) FILE THE PETITION.
Your lawyer will prepare a draft of the petition which should be finalized with your inputs and approval.
When the petition is finalized, you would need to sign the affidavit of non forum shopping which will be attached to the petition. If you are in the Philippines, the affidavit has to be sworn before a notary public. If you are abroad, it may be signed before the nearest Philippine consulate.
5) TESTIFY IN COURT.
The first hearing will most likely be for purposes of establishing the jurisdictional facts, that is the service of the summons to the other party or publication if the party’s whereabouts cannot be ascertained or unknown. After that, witnesses will be called to testify. Normally, the fist witness will be the Petitioner followed by a representative from the Office of the Civil Registrar where the marriage which is the subject of the divorce is registered. Other witnesses may be required by the court.
6) WAIT FOR THE DECISION OF THE COURT.
After the testimonies of all the witnesses, all the evidence in the case will be offered in evidence and the case submitted for decision by the court.
7) WAIT FOR THE FINALITY OF THE DECISION.
The Decision of the Court becomes final 15 days from receipt thereof by the Petitioner.
8) ANNOTATION OF THE DECISION OF THE COURT WITH THE CIVIL REGISTRAR WHERE THE MARRIAGE WAS REGISTERED.
After the finality of the decision, a Certificate of Finality will be issued by the court which rendered the decision and this will be endorsed to the Office of the Civil Registrar where the marriage is registered for annotation. The annotation will include information of the title of the case, the court, and the relevant dates.