If a Filipino mutually agrees with his/her foreigner spouse to obtain a divorce abroad, will that be recognized by our courts to capacitate him/her to remarry?
Paragraph 2, Article 26 of the Family Code explicitly provides that “(w)here a marriage between a Filipino spouse 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.”
Note that the provision specifies that the divorce must have been initiated by the alien spouse. Conversely, if filed by the Filipino spouse, the divorce decree will not allow him or her to remarry. This view however has been abandoned in Republic of the Philippines vs Marelyn Tanedo-Manalo (GR 221029, 24 April 2018).
“(T)he purpose of Paragraph 2 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 law of his or her country. Whether the Filipino spouse initiated the foregoing divorce proceeding or not, a favorable decree dissolving the marriage bond and capacitating him or her alien spouse to remarry will have the same result; the Filipino spouse will effectively be without a husband or wife. A Filipino who initiated a foreign divorce proceeding is in the same place and on like circumstance as a Filipino who is at the receiving end of an alien-initiated proceeding. There, the subject provision should not make a distinction. In both instances, it is extended as a means to recognize the residual effect of the foreign divorce decree on Filipinos whose marital ties to their alien spouses are severed by operation of the latter’s national law…
To our mind, the State cannot effectively enforce these obligations if We limit the application of Paragraph 2 of Article 26 only to those foreign divorce initiated by the alien spouse.”
Long and short, whether initiated by the alien or Filipino spouse, the latter is capacitated to remarry.
Back to my question above. What if it is a divorce mutually agreed upon? Can the Filipino spouse, who consented to the divorce remarry too?
The Office of the Solicitor-General objected to the recognition of the mutually-agreed upon foreign divorce in Maria Teresa Dino Basa-Egami vs Dr. Lisa Grace Bersales, in her capacity as the Administrator and Civil Register of San Miguel Bilacan, et. al. (GR 249410, 6 July 2022).
“The OSG is adamant that petitioner’s case does not fall under Article 26(2) of the Family Code. It postulates that the foreign divorce by mutual agreement between petitioner and Egami cannot be given recognition here because only a divorce obtained through a court judgment or adversarial proceeding could be recognized by Philippine courts, insisting that the only divorce contemplated under Article 26(2) is the one validly obtained by the alien spouse, without the consent or acquiescence of the Filipino spouse.…”
“The (Supreme) Court does not agree. If we are to follow the OSG’s interpretation of the law, petitioner would sadly remain in limbo — a divorcee who cannot legally remarry — as a result of the ambiguity of the law, particularly the phrase divorce is thereafter validly obtained abroad by the alien spouse. This perfectly manifests the dire situation of our kababayans in unsuccessful mixed marriages since, more often than not, their divorces abroad are obtained through mutual agreements… The myopic understanding of Article 26(2), as incessantly advocated by the OSG, would have been sound and successful in the past….”
“Fortunately, Republic v. Manalo, a landmark ruling by the Court en banc, finally put an end to this iniquitous interpretation of the law as it gave due regard to the sad consequences of a strict and literal construction of the law brings… Manalo was indeed a salutary paradigm shift in jurisprudence, eliminating a huge hurdle often faced by Filipino divorcees in their quest to obtain a recognition of their divorce from Philippine courts….”
“The OSG should now take note that Manalo is the prevailing jurisprudence on the matter. As it was clearly spelled out in Manalo, Article 26(2) only requires that there be a divorce decree validly obtained abroad, without regard as to initiated it…. Contrary to the posture taken by the OSG, therefore, the CA correctly held that the divorce obtained by petitioner abroad against her husband, whether at her behest or acquiescence, may be recognized as valid in this jurisdiction so long as it complies with the documentary requirements under the Rules of Court.”
We now clearly see the evolution of Article 26 (2) of the Family Code to a more liberal interpretation, mindful of the sad plight of our kababayans abroad. Indeed, if we were to go by the strict application of Article 26(2), our kababayans get the short end of the stick. They may have been divorced, and yet they still cannot remarry if they initiated it. Ironically, it is their own national law that prohibits them. The Manalo doctrine indubitably unshackled the Filipino. This by and large helped many Filipinos abroad have a better life with a new partner. And with the most recent Basa-Egami ruling, the more the plight of our kababayans abroad is getting better.
We all know that jurisprudence becomes part of the law of the land. Indeed, this ruling is in sync with the times. Reliance no more on Article 26(2) as worded. My hats off to the Supreme Court. Kudos to our kababayans.
Sources: Article 26 (2), Republic v. Manalo and Basa-Egami v. Bersales, et. al. as cited above.