US & CANADA-IMMIGRATION: Divorced Filipino should file petition for recognition of divorce before he can marry anew
DEAR PAO
BY PERSIDA ACOSTA
Persida A
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Dear PAO,
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My boyfriend was married to a Canadian citizen. Their marriage did not work out and eventually his wife obtained a divorce in Canada. She sent him a copy of the divorce decree and he later learned that she married a US citizen. Since their divorce, my boyfriend remained single. My boyfriend and I have been in a relationship for three years now and we are planning to get married by the end of this year. Can we pursue this without any legal glitch? Someone told us that there might be a problem since my boyfriend and I are both Filipino citizens, so the rules on divorce do not apply to us. But there are also others who told us that we can just present the divorce papers that were given to my boyfriend and “we’re good to go.” I hope you can enlighten us. Thank you and more power.
Faustina
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Dear Faustina,
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Filipino citizens may only have their marriage dissolved through a petition for absolute declaration of nullity of marriage or a petition for annulment of marriage. The bases for these petitions are particularly mentioned under Articles 35, 36, 37, 38 and 45 of Executive Order No. 209, otherwise known as the Family Code of the Philippines.
It is worthy to note that the provisions mentioned above do not exclude the possibility of the application of absolute foreign divorce, but only when it is the foreign spouse who obtains a divorce decree abroad against their Filipino spouse. In fact, Article 26 (2) of the Family Code recognizes divorce insofar as it states that:
“x x x 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.”
Nonetheless, it must be emphasized that, in our jurisdiction, the decree of divorce alone does not automatically capacitate the Filipino spouse to remarry. It is essential for the Filipino spouse to file first before the court a petition for the recognition of such foreign decree of divorce. In the case of Ando vs. Department of Foreign Affairs (G.R. No. 195432, August 27, 2014, Ponente: Honorable Chief Justice Maria Lourdes P.A. Serreno), which cited a portion of the decision of the Supreme Court in Garcia vs. Recio (G.R. No. 138322, October 2, 2001, Ponente: Honorable former Chief JusticeArtemio V. Panganiban) and Corpuz vs. Sta. Tomas (G.R. No. 186571, August 11, 2010, Ponente: Honorable former Associate Justice Arturo D. Brion), explained the rationale of such petition:
“In Garcia v. Recio, we ruled that a divorce obtained abroad by an alien may be recognized in our jurisdiction, provided the decree is valid according to the national law of the foreigner. The presentation solely of the divorce decree is insufficient; both the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Because our courts do not take judicial notice of foreign laws and judgment, our law on evidence requires that both the divorce decree and the national law of the alien must be alleged and proven and like any other fact.
x x x
x x x Hence, any declaration as to the validity of the divorce can only be made upon her complete submission of evidence proving the divorce decree and the national law of her alien spouse, in an action instituted in the proper forum.” (Emphasis supplied)
Accordingly, your boyfriend must first file before the court a petition for the recognition of foreign decree of divorce. He must be able to establish both the divorce decree as well as the governing national law of his alien spouse so that the court may decide in his favor. Only when his petition is granted by the court can he validly enter anew into a contract of marriage.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected].
ON APRIL 4, 2018 / All photographs, news, editorials, opinions, information, data, others have been taken from the Internet ..aseanews.net | [email protected] | For comments, Email to : Icarus d’ Greek | [email protected] | – Contributor
