3. Mixed Marriages and Foreign Divorce

G. Mixed Marriages (Family Code, art. 26)

> Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38. (17a) 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)

Updated: A valid foreign divorce capacitating the foreign spouse to remarry may give the Filipino spouse capacity to remarry regardless of which spouse obtained it, and citizenship is reckoned at the time of divorce (Nevada v. Ruthe, G.R. No. 218008, 26 June 2023).

3. Mixed Marriages and Foreign Divorce

a. See Republic v. Manalo, 831 Phil. 33 (2018)

EFFECT OF MARRIAGE CELEBRATED ABROAD AND FOREIGN DIVORCE

Requirements for the application of Art. 26(2) of the Family Code

• It must be a case of mixed marriage;
• The divorce must be obtained by either the alien or Filipino spouse; and NOTE: Whether the Filipino spouse initiated the foreign divorce proceeding or not, a favorable decree dissolving the marriage bond and capacitating his or her alien spouse to remarry will have the same result: the Filipino spouse will effectively be without a husband or wife. Divorces obtained abroad by Filipino citizens may now be validly recognized in the Philippines but only in cases of mixed marriages involving a Filipino and a Foreigner.; (Republic v. Manalo, G.R. No. 221029, 24 Apr. 2018)
• The foreign divorce, whether obtained by the Filipino or alien spouse, must capacitate the alien spouse to remarry. (Rabuya, 2018)

Q: Jocelyn filed before the trial court a petition for judicial recognition of foreign divorce. She alleged that she was married to Fumio in 1993, and in 2007, they jointly filed for divorce before the City Hall of Sakado City, Saitama Prefecture. As the divorce was accepted, Jocelyn sought the recognition thereof here in the Philippines.

During the presentation of evidence, the following documents, among others, were presented: (1) the Acceptance Certificate issued by the Mayor of Sakado City, Japan; (2) an Authentication from the Vice Consul of Philippine Embassy in Tokyo; and (3) a photocopy of the Civil Code of Japan in English Text. However, the translation of the Civil Code of Japan was not an official translation. Should the court grant the petition?

A: Not on the evidence presented. The divorce was proved, but Japanese divorce law was not; the case should be remanded for reception of evidence on that law. Under Art. 26 of the FC, a divorce between a foreigner and a Filipino may be recognized in the Philippines as long as it was validly obtained according to the foreign spouse’s national law. However, before a foreign divorce decree can be recognized by the court, the party pleading it must first prove the fact of divorce and its conformity to the foreign law allowing it.

In the present case, Jocelyn was able to establish the fact of divorce but was unable to establish the law of Japan on divorce. The Acceptance Certificate, accompanied by an Authentication from the Philippine Embassy in Tokyo, suffices as proof of the fact of divorce.

However, the photocopy of the English translation of the Civil Code of Japan is devoid of any probative value. In Nullada v. Civil Registrar of Manila (G.R. No. 224548, 23 Jan. 2019) and Arreza v. Toyo (G.R. No. 213198, 5 October 2020), the Court held that the submission of the same document does not constitute sufficient compliance with the rules on proof of Japan’s law on divorce and that the translations by the publisher of that document are not advertised as a source of official translations of Japanese laws. Not being an official translation, the document submitted does not prove the existing law on divorce in Japan. Without such, there is nothing in the record to establish that the divorce was validly obtained and is consistent with the Japanese law on divorce. (Republic of the Philippines vs. Jocelyn Asusano Kikuchi, G.R. No. 243646, 22 June 2022, as penned by J. Hernando)

Q: Suppose in a valid mixed marriage the foreign spouse obtained a divorce decree abroad and was capacitated to remarry.

Updated: The parties’ citizenship when the valid foreign divorce is obtained, rather than at marriage, determines whether Article 26(2) applies (Nevada v. Ruthe, G.R. No. 218008, 26 June 2023).

a. May the Filipino spouse remarry despite the fact that divorce is not valid in the Philippines?

A: YES. The Filipino spouse may remarry. Divorce validly obtained abroad by the alien spouse capacitating him/her to remarry will likewise allow the Filipino spouse to remarry. (Art. 26 (2), FC)

NOTE: Under the nationality principle embodied in Art. 15 of the NCC, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. Nevertheless, aliens may obtain divorces abroad which may be recognized in the Philippines, provided they are valid according to their national law. (Van Dorn v. Romillo, Jr., G.R. No. L- 68470, 08 Oct. 1985)

Updated: A Filipino spouse may remarry under Article 26(2) even if the Filipino initiated the valid foreign divorce that capacitated the alien spouse to remarry; citizenship is assessed when the divorce was obtained (Nevada v. Ruthe, G.R. No. 218008, 26 June 2023).

b. Will your answer be the same if it was a valid marriage between Filipinos?

A: What is material in this case is the citizenship of the spouse who obtained a divorce decree abroad at the time the decree was obtained and not their citizenship at the time the marriage was celebrated. If one spouse was naturalized as a citizen of a foreign country before he/she obtains a divorce decree and was thereafter capacitated to remarry, the spouse who remained Filipino will be capacitated to remarry. (Republic v. Orbecido, G.R. No. 154380, 13 Nov 2006)

Q: A Filipina was married to an American who obtained a divorce decree in the US. When the Filipina came back to the Philippines and started her business, the American followed suit and wanted to enforce his rights over the Filipina to the extent of claiming his rights to administer the properties of the woman, contending that they are still married. He also claimed hereditary rights. Is he correct? Why?

A. NO. The divorce they obtained in the US released the Filipina from the marriage. Thus, pursuant to American law, he is no longer the husband of the Filipina. He would therefore have no standing to sue the Filipina. (Van Dorn v. Romillo, Jr., G.R. No. L- 68470, 08 Oct. 1985)

Requirements to prove a foreign marriage

• The existence of the pertinent provision of the foreign marriage law.
• The celebration or performance of the marriage in accordance of said law.

As a requirements for the application of par. 2 of Art. 26 of the Family Code, it must be a mixed marriage (where one party is a Filipino and the other is an alien) and the foreign divorce, regardless of which spouse initiated or obtained it, must capacitate the alien spouse to remarry. (Rabuya, 2018)

Note: In the case of Republic v. Manalo, it is no longer necessary that the divorce was initiated by the alien spouse.

Whether the Filipino spouse initiated the foreign divorce proceeding or not, a favorable decree dissolving the marriage bond and capacitating his or her alien spouse to remarry will have the same result: the Filipino spouse will effectively be without a husband or wife.

Divorces obtained abroad by Filipino citizens may now be validly recognized in the Philippines but only in cases of mixed marriages involving a Filipino and a Foreigner. (Republic of the Philippines V. Marelyn Tanedo Manalo, G.R. No. 221029, April 24, 2018)

Burden of proof in recognition of foreign divorce

The naturalization of one of the parties, as well as the divorce decree obtained by him or her, must be proven as a fact under our rules on evidence. The foreign law under which the divorce was obtained must likewise be proven as our courts cannot take judicial notice of foreign laws and judgments; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence. (Garcia v. Recio, G.R. No. 138322, October 2, 2001)

However, if the Filipino spouse remained to be a citizen of the Philippines when he/she obtained a divorce decree abroad, such decree will not be recognized in the Philippines even if that spouse is subsequently naturalized as a citizen of a foreign country because at the time the spouse obtained the divorce decree, he/she was still a citizen of the Philippines and being naturalized afterwards does not cure this defect. (Republic v. Iyoy, G.R. No. 152577, September 21, 2005)

Under the latest jurisprudence, when the marriage is mixed, it is no longer necessary that it’s the alien spouse who obtained a divorce decree, the Filipino spouse may ask for divorce and the decree will be recognized in the Philippines capacitating him/her to marry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. (Republic v. Orbecido, G.R. NO. 154380, November 13, 2006)

As enunciated in the case of Republic vs. Manalo where the Supreme Court laid down a landmark ruling that allows Filipino Citizens to obtain a foreign divorce as long as such marriage is a mixed marriage involving a Filipino and a Foreigner.

Q: A Filipino citizen was married to a Japanese national. She divorced her husband in Japan and was able to obtain a divorce decree from the Japanese Court. Will the Filipino spouse be capacitated to remarry under Philippine law?

A: YES. Divorces obtained abroad by Filipino citizens may now be validly recognized in the Philippines but only in cases of mixed marriages involving a Filipino and a Foreigner.

Provided, of course, that the party petitioning for the recognition of such foreign divorce decree – presumably the Filipino citizen – must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. (Republic of the Philippines V. Marelyn Tanedo Manalo, G.R. No. 221029, April 24, 2018)

Q: If a foreigner who was divorced seeks to obtain a marriage license in the Philippines, what should he do?

A: The applicant for marriage license has to prove his legal capacity. If the marriage was dissolved by reason of divorce, he has to file a sworn statement as to how the marriage was dissolved (FC, Art. 11) and furnish the local civil registrar with the judgment (FC, Art. 13).

NOTE: Without the divorce decree and foreign law as part of the evidence, the Court cannot rule on the issue of whether petitioner has the personality to file the petition for declaration of nullity of marriage. After all, petitioner may have the personality to file the petition, but the divorce decree obtained was a limited divorce or a mensa et thoro or the foreign law may restrict remarriage even after the divorce decree becomes absolute. (Garcia v. Recio, G.R. No. 138322, October 2, 2001)

Q: Luzviminda was married to Ryoji Morisono in Quezon City on December 8, 2009. Thereafter, they lived together in Japan for 1 year and 3 months but were not blessed with a child. During their married life, they would quarrel mainly due to Ryoji’s philandering ways, in addition to the fact that he was much older than Luzviminda. As such, the two of them submitted a “Divorce by Agreement” before the City Hall of Mizuho-ku in Nagoya, Japan, which was approved and duly recorded. In view of this, Luzviminda filed a petition for recognition of foreign divorce decree obtained by her and Ryoji before the RTC so that she could cancel the surname of her husband and be able to marry again.

The RTC denied Luzviminda’s petition, holding that while a divorce obtained abroad by an alien spouse may be recognized in the Philippines – provided that such decree is valid according to the national law of the alien – the same does not find application when it was the Filipino spouse, i.e., petitioner, who procured the same. Invoking the nationality principle provided under Article 15 of the Civil Code, in relation to Article 26 (2) of the Family Code, the RTC opined that since petitioner is a Filipino citizen whose national laws do not allow divorce, the foreign divorce decree she herself obtained in Japan is not binding in the Philippines. Did the RTC correctly deny Luzviminda’s petition for recognition of divorce decree she procured?

A: NO. It had been ruled in Republic vs. Manalo that foreign divorce decrees obtained to nullify marriages between a Filipino and an alien citizen may already be recognized in this jurisdiction, regardless of who between the spouses initiated the divorce; provided, of course, that the party petitioning for the recognition of such foreign divorce decree – presumably the Filipino citizen – must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. A plain reading of the RTC ruling shows that the denial of Luzviminda's petition to have her foreign divorce decree recognized in this jurisdiction was anchored on the sole ground that she admittedly initiated the divorce proceedings which she, as a Filipino citizen, was not allowed to do.

In light of the doctrine laid down in Manalo, such ground relied upon by the RTC had been rendered nugatory. However, the Court cannot just order the grant of Luzviminda's petition for recognition of the foreign divorce decree, as Luzviminda has yet to prove the fact of her “Divorce by Agreement” obtained in Nagoya City, Japan and its conformity with prevailing Japanese laws on divorce. Notably, the RTC did not rule on such issues. Since these are questions which require an examination of various factual matters, a remand to the court a quo is warranted. (Morisono v. Morisono, G.R. No. 226013, July 2, 2018)

Q: Cynthia, a Filipina, and Park, a South Korean national, got married in the City of Manila in 2012. Unfortunately, their relationship turned sour and ended in a divorce by mutual agreement in South Korea. After the divorce was confirmed in 2012 by the Cheongju Local Court, Cynthia filed before the RTC a Petition for the Judicial Recognition of a Foreign Divorce, which was granted in 2015. On appeal, the CA held that the divorce decree in question cannot be recognized in this jurisdiction insofar as Cynthia is concerned since it was obtained by mutual agreement. Is the CA correct?

A: NO, the CA is incorrect. Pursuant to the majority ruling in Manalo (G.R. No. 221029, 24 Apr. 2018), Art. 26(2) applies to mixed marriages where the divorce decree is: (i) obtained by the foreign spouse; (ii) obtained jointly by the Filipino and foreign spouse; and (iii) obtained solely by the Filipino spouse. As confirmed by Manalo, the divorce decree obtained by Park, with or without Cynthia's conformity, falls within the scope of Art. 26(2) and merits recognition in this jurisdiction (Galapon v. Republic, G.R. No. 243722, 22 Jan. 2020)

Special cases when subsequent marriage is allowed

• Marriage between a Filipino and a foreigner and procurement by the alien spouse of a valid divorce decree abroad, capacitating him/her to remarry;
• Subsequent marriage after a judicial declaration of presumptive death of the absent spouse, where the prior spouse has been absent for four consecutive years, or two years in case of disappearance involving danger of death, and the spouse present has a well-founded belief that the absentee is dead. (FC, Art. 41)

SUBSEQUENT MARRIAGE

Updated: A Filipino spouse may invoke a valid foreign divorce capacitating the foreign spouse to remarry even if the Filipino initiated the divorce proceeding (Nevada v. Ruthe, G.R. No. 218008, 26 June 2023).