Divorce and the Filipino

Filipinos, much like the Chinese, are probably among the most ubiquitous nationalities in world. They are scattered around the globe and are found practically every where, even in such unlikely places as Maputo in Africa, where a friend of mine, a Filipino lawyer, lives; Somalia and Afghanistan. Once, while I was in the washroom of a hotel in the little-known state of Fribourg in Switzerland, I was delighted to meet a Filipina who was there to audit the hotel. It turned out she was a middle-range management employee of the chain of hotels where I was staying.

Filipinos leave the country by droves daily to work abroad. Their remittances have been the lifeline of Philippine economy and they are the envy of every person who thinks that working abroad means living the good life. But the truth is quite something else. Overseas Filipinos are victims of social ills peculiar to their territory. Many of them end up with broken families because physical separation exposes them to temptations of infidelity. Children grow up without parents and thus advance in age without maturing as adults. Many of these children—when they grow up—end up with broken marriages themselves as they never quite learned how it is to be committed to one life partner.

Many Filipinos working abroad marry foreign nationals, sometimes for convenience; sometimes out of loneliness and the longing to have a family where they work. But many of these marriages do not always work. Often they end up in divorce. There is a question frequently asked of us: Is a divorce, when obtained abroad, valid in the Philippines? The answer, however, is not a simple yes or no.

Generally, divorce is not valid and is not recognized in the Philippines. This is true even when the divorce is obtained by a Filipino residing abroad. Our country follows the nationality principle. This means that our laws follow us wherever we may be and only stop to apply to us when we change our nationality by being naturalized as a citizen of another country. However, there are instances when our laws effectively recognize the validity of a divorce obtained abroad to allow the Filipino spouse to also be free of the marital bond.

When the framers of the Family Code of the Philippines were doing their work, they recognized the dilemma that occurs when a Filipino citizen marries a foreigner who later divorces the Filipino spouse. In that absurd situation, the foreigner becomes free to re-marry because the marital bond has been cut off with respect to him. Yet, the Filipino spouse remains married to him and cannot re-marry. So, as a solution, the framers of the law added a paragraph in Article 26 of the Family Code which says: “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.”

Thus, under this provision of law, a Filipino who marries a foreign national who, later on, divorces him or her may be freed of the marital bond as well and be allowed to re-marry. A variation to this question which has often arisen involves a situation where a Filipino man and woman marry. Then one of them leaves for abroad; gets naturalized as a citizen of another country; and then divorces his or her Filipino spouse. Will the Filipino spouse be entitled to re-marry under Article 26 of the Family Code even if he or she did not marry a foreigner but a Filipino who later acquired a foreign citizenship? The answer is yes. In a decision rendered by the Supreme Court in 2005, in the case of Republic of the Philippines vs. Orbecido III (GR no.154380), the Court held that “taking into consideration the legislative intent and applying the rule of reason, the second paragraph of Article 26 should be interpreted to include cases involving parties who, at the time of the marriage were Filipino citizens but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree.” In such a situation, the Supreme Court said, that the Filipino spouse should likewise be allowed to remarry because to rule otherwise would be to sanction absurdity and injustice. In the case cited, the Court required that the Filipino must prove that a divorce was indeed obtained; that the other spouse indeed had an alien citizenship at the time of divorce; and that the divorce conformed to the requirements of the foreign law to make it valid. If all these are successfully proven then a divorce obtained abroad may be recognized as valid under Philippine laws and the Filipino spouse may be allowed to re-marry.

Clearly then, the Supreme Court has interpreted the law to give it a wider meaning in order to prevent an injustice against a Filipino whose spouse has become a citizen of another country, then divorces him or her. The Court also stressed in this decision the intent of the law which is to put an end to an absurdity where a Filipino spouse remains married to his foreign spouse who has been freed from the marital bond.

Unfortunately, some trial court judges insist on interpreting the law in an unreasonably restrictive manner, rendering nugatory the intent of the law. One judge in a case of this nature required the Filipino wife to obtain a certification from the government of the country, where her husband was a national of, stating that they recognize the Philippine law on annulment or nullity of marriages. Yet, this requirement is neither found in the law nor in jurisprudence. When the Filipina could not obtain this, as her husband’s Embassy refused to issue one, the judge then went on to insist that the wife better just file a petition for declaration of nullity of marriage based on some other grounds. She also imputed bad faith on the Filipino wife by asking why she was in a hurry to be declared capacitated to remarry. This judge practically eradicated the usefulness and reason for existence of Article 26 of the Family Code which allows Filipinos, whose foreign spouses divorced them, to re-marry too.

This is a job for the Supreme Court. It has to ensure that what it declares as doctrines must be understood by trial court judges who are the ones on the ground, dealing directly with litigants. If judges do not have it in them to empathize with the peculiar problems overseas Filipinos face, they should, at least, not add to the burden these Filipinos carry. –ATTY. RITA LINDA V. JIMENO, Manila Standard Today

Email: ritalindaj@gmail.com Visit: www. jimenolaw.com.ph