Divorce is not recognized in the Philippines. It is the only country in the world that bans divorce [except for Muslims] aside from the Vatican City headed by the Pope of the Roman Catholic church.
Due to mixed marriages [marriage between a Filipino citizen and foreigner], which have become common, Article 26 of the Family Code [FC] was amended by adding a second paragraph that 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.”
The reason of the law is to avoid the absurd and unjust situation of a Filipino citizen still being married to his or her foreigner spouse, even if the latter is free to remarry because of the foreign divorce decree. It will be unfair if the Filipino citizen will still be considered married when her foreigner spouse has divorced her.
The issue of the validity of the divorce decree in mixed marriages has reached the Supreme Court in 2018 – Republic v. Manalo, GR 221029 and in 2022 August 12th – Basa-Egami v. Bersales, GR 249410.
The facts are: In 1994, Maria Teresa Basa married Hiroshi Egami, a Japanese. In 2006, they separated. After Hiroshi begot a child with another woman, he asked for divorce. Basa agreed and signed the divorce papers. In 2008, a divorce decree was issued in Japan. Basa filed a petition for recognition of foreign judgment to be able to remarry.
The Office of the Solicitor General [OSG] moved for its dismissal and argued that a consensual or mutual divorce cannot be recognized because it is not allowed by Article 26 [2] of the Family Code. The Regional Trial Court [RTC] granted the petition. The OSG appealed. The Court of Appeals [CA] reversed the RTC decision. Basa brought her case to the Supreme Court [SC] on the issue of whether or not the divorce by mutual consent may be validly recognized in the Philippines.
The SC ruled that Basa made a wrong remedy when she filed Rule 65 petition for certiorari instead of Rule 45 petition for review. But, in the interest of justice, it will decide the case on the merits.
Under Article 26 second paragraph of the Family Code, a Philippine court may extend the effect of a foreign divorce decree to a Filipino spouse without trial to determine the validity of the dissolution of the marriage.
The noble objective of Article 26 is to avoid the absurd situation where a Filipino remains married to his or her alien spouse while the latter is no longer married to the former because he or she had obtained a divorce abroad that is recognized by his or her national law. The aim was to solve the problem of many Filipinos who, under the Civil Code, are still considered married to their alien spouses even after the latter have already validly divorced them under their national laws. This is exactly the misery confronting Basa, whose divorce from her foreign spouse was not recognized by the appellate court [CA].
To date, she remains married under Philippine laws even though her Japanese husband has long been freed from the shackles of a failed marriage. To see the unjustness of her situation, it only needs to point out that she cannot remarry under Philippine laws even after the lapse of 12 years from the time of her divorce abroad in 2008.
This is the compelling reason to set aside technicalities and give due course to the petition. Contrary to the OSG’s position, the divorce by mutual consent between Basa and her foreigner spouse may be recognized in this jurisdiction. The OSG’s myopic understanding of Article 26 [2] would have been successful in the past as the Court repeatedly upheld this ultra-conservative view by relying on the letter of the law that killeth instead of choosing that spirit of the law which giveth life.
Fortunately, a landmark ruling by the Court en banc in 2018, Republic v. Manalo, finally put an end to this iniquitous interpretation of the law. A prohibitive view would do more harm than good. This court should not turn a blind eye to the realities of the present time. It is hypocritical to safeguard the quantity of existing marriages and, at the same time, brush aside the truth that some of them are of rotten quality.
The Manalo ruling was a big win for our kababayans [when it declared paragraph 2 of Article 26 of the Family Code violates the equal protection clause, particularly, the limitation of the provision only to a foreign divorce decree initiated by the alien spouse is unreasonable]. The law only requires that there be a divorce validly obtained abroad, without regard as to who initiated it. Thus, though divorce is not allowed in our country under nationality principle [Article 15, Civil Code], yet Article 26 [2] FC is the exception, that in mixed marriages, Filipino may file a divorce abroad against his/her foreign spouse and the Court is duty bound to recognize that divorce.
