In mixed marriages between a Filipino and foreigner, their respective national laws govern the marital relationship. The foreign law applies to the alien spouse and Philippine laws continue to apply to Filipinos even if they reside abroad. Under the nationality principle [Article 15, new Civil Code], laws relating to family rights and duties, or status, condition and legal capacity of persons, are binding upon Filipino citizens, even though living abroad. Our 1987 Constitution protects the sanctity of marriage being the foundation of the family and an inviolable social institution [Section 2, Article XV]. Thus, while divorce is allowed worldwide, it is strictly prohibited only in the Philippines.
The divorce obtained by the alien spouse created an absurd situation to Filipino spouse as he/she is still considered married, although the alien spouse is no longer married because he/she had obtained a divorce abroad. To solve the problem of many Filipino women who, under the new Civil Code, are still considered married to their alien husbands even after the latter have already validly divorced them under their husbands’ national laws and have already married again, a second paragraph was added to Article 26 of the Family Code that reads – where 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/her to remarry, the Filipino spouse shall also have capacity to remarry under Philippine law. This confers jurisdiction on Philippine courts to extend the effect of foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage. It authorizes our courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow divorce. The process is allowed by Section 48, Rule 39 of the Rules on Civil Procedure entitled “effects of foreign judgment”.
May a divorce agreement in mixed marriage be recognized when the rule speaks of judgment and Article 2035, new Civil Code states that there can be no compromise on the validity of marriage?
Our Supreme Court sitting en ban, c ruled the issue in Republic v. Ng, G.R. 249238 that was uploaded in its website on September 20, 2024. In this case, a Filipina, Ruby C. Ng and Japanese, Akihiro Sono got married in Quezon City in 2004. They moved to Japan after their union bore a child. As their relationship turned sour, they agreed to divorce by signing a mutual agreement in 2007. Ng filed a Petition for judicial recognition of foreign divorce in 2018. The Regional Trial Court granted it in 2019. The Republic challenged the RTC decision arguing that only foreign divorce decrees issued by a court can be recognized in the Philippines, not foreign divorce by agreement.
It was ruled that Philippine laws do not provide for absolute divorce thus, our courts cannot grant it. Nevertheless, jurisdiction is conferred on Philippine courts to extend the effect of a foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage. Article 26 of the Family Code – which addresses mixed marriages involving Filipino and foreigner – allows a Filipino spouse to contract a subsequent marriage in case the divorce is validly obtained abroad.
In the landmark case of Manalo, the Court declared that Article 26 [2] only requires a divorce validly obtained abroad capacitating the foreigner spouse to remarry, without regard as to who initiated it. Manalo instructs that there must be a confluence of two elements for the second paragraph of the quoted provision to be validly applied, to wit: [i] there is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and [ii] a valid divorce is obtained capacitating the parties to remarry, regardless of the spouse who initiated the divorce proceedings.
In Basa-Egami v. Bersales case, the Japanese husband and his Filipino wife obtained a divorce decree by mutual agreement in Japan. The Court ruled that Article 26(2) Family Code does not limit recognition of foreign divorce decrees to those issued in judicial proceedings only. It only requires that the divorce be “validly obtained abroad.” The law does not make any distinction. To rule otherwise is tantamount to judicial legislation, which is not allowed. A divorce by mutual agreement is not a form of collusion because it is allowed under the Japanese laws as a mode of terminating a marriage, and hence, is covered by Article 26(2). The agreement is not for the purpose of circumventing a law.