Marriage is a special contract of permanent union [Article 1, Executive Order No 209 otherwise known as the Family Code]. The highest law of our land provides that “marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State” [Section 2, Article XV, Section, 1987 Constitution]. As such, no divorce law has been passed.
Divorce is not legally available to Filipino citizens. There are only two countries in the world where divorce is still not legal – the Vatican and the Philippines. On June 12, 2024, the House of Representatives has unanimously approved House Bill No. 9349 for absolute divorce based on marital infidelity and domestic violence. It also listed as basis for divorce the grounds for legal separation, annulment and declaration of nullity of marriage under the Family Code. The bill was transmitted to the House of Senate. Until it becomes a law, divorce is not legal.
While divorce is not allowed, its effect may be judicially recognized in the Philippines only with respect to mixed marriages involving Filipino and foreign nationals. Article 26 of the Family Code, particularly the second paragraph reads: “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 likewise have capacity to remarry under Philippine law.”
Notably, while divorce must be obtained by the foreign spouse, can a Filipino seek divorce abroad and be recognized in our country? This was the issue in the recent case of Octaviano v. Ruthe uploaded on August 20, 2024 in the website of our Honorable Supreme Court. In this case, Maria, a Filipina married Karl, a German in 1990 in Germany. They begot two children. In 2006, Maria sought the dissolution of their marriage in Nevada, United States of America, which restored their status as single and unmarried. Maria returned to the Philippines. In 2015, she filed a petition for judicial recognition of a foreign divorce decree. The RTC [Regional Trial Court] dismissed it for lack of jurisdiction since the divorce decree had been obtained abroad by Maria, a Filipino, who is precluded in the application of Article 26 (2) of the Family Code because the language of the law requires that the divorce decree be obtained solely by the foreign spouse. Maria appealed directly to the highest court raising pure question of law – whether a divorce decree dissolving a marriage between a Filipino and a foreign national, which the Filipino obtained, can be judicially recognized in the Philippines.
Our Honorable Supreme Court ruled that the RTC based its ruling on the absence of the second element as set forth in the 2008 case of Republic v. Orbecido III, that the twin elements for the application of the paragraph 2 of Article 26: are [1] a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and [2] a valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. However, in the 2018 case of Republic v. Manalo, the Court En Banc, extended the application of the law and emphasized that a Filipino spouse could initiate a foreign divorce proceeding that will capacitate him or her to remarry: paragraph 2 of Article 26 speaks of ” divorce validly obtained abroad by the alien spouse capacitating him or her to remarry.”
Based on a clear and plain reading of the law, it only requires that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien spouse should be the one who initiated the proceeding wherein the divorce decree was granted. It does not distinguish whether the Filipino is the petitioner or respondent in the foreign divorce proceeding. The Court is bound by the words of the statute; neither can We put words in the mouths of the lawmakers. The purpose of the law 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 is tied to the marriage while the foreign spouse is free to marry under the laws of his or her country. Therefore, the subject provision should not make a distinction; otherwise there will be a violation of the equal protection clause of our Constitution. The 2020 case of Galapon v. Republic, reiterated the ruling that the scope of Article 26 [2] cover instances where divorce decree is obtained solely by Filipino spouse.
