You had a falling out with your spouse who is a foreigner and the next time you know, he divorced you, and subsequently, a Decree of Divorce was issued. You wanted to remarry after the Divorce but you cannot obtain a Certificate of No Marital Record (CENOMAR) because your ex-marriage is still recorded in the Philippine Statistics Authority (PSA). What should you do? In the same case, you are a former Filipino citizen and now living in the United States. Many years back, you migrated to the United States to escape your battered life and troubled relationship with your Filipino spouse. You wasted no time divorcing your spouse right after you became a naturalized American citizen. Now that your love life gets exciting, you wanted to take it to the next level by marrying your Filipino soulmate and you planned a beach wedding in the beautiful white sand beaches in Boracay. But just the same, you cannot marry him because your ex-marriage is still recorded in the PSA. What should you do?
You may have been advised that the legal remedy is to file a Nullity of Marriage Petition or in layman’s commonly abused term – Annulment. Though Annulment is not completely an improbable legal remedy here, the process can be tedious or cumbersome and the results are not always certain that the Court will grant your Petition. My good friend Atty. Godwin Manginsay, the Dean of the College of Law of Southwestern University, may declare me persona non grata in Cebu if I were to approve the legal remedy of Annulment.
Well, in my opinion, the easiest way out in this situation is to file a Petition for the Recognition and Enforcement of a Foreign Judgment of Divorce. In the first case, the Filipino spouse who was divorced by her foreign husband may file a Petition on basis of the Divorce which was initiated by the foreign spouse. This will entitle her to remarry under Article 26 of the Family Code. The foreign husband, if he wishes to do so, may also file a Petition for Recognition of Divorce based on the Rules of Court on Recognition and Enforcement of Foreign Judgments and Cancellation of Record in the Local Civil Registrar. In the second case, the former Filipino spouse may only file a Petition for Recognition of Foreign Judgment of Divorce based on the provisions of the Rules of Court allowing recognition of foreign judgments and cancellation of record in the Local Civil Registrar.
As you may have observed, the grounds for Recognition of Divorce by the foreign husband and former Filipino spouse are the same. Whereas, the ground in the Petition by the divorced Filipino spouse is Article 26 of the Family Code allowing her to remarry only when the Divorced was initiated by the foreign spouse.
In Japan, the most common Divorced entered into by a Japanese national and a Filipino spouse is Divorced by mutual consent. If we strictly follow Article 26 of the Family Code, the Filipino spouse cannot remarry because the Japanese national did not initiate the Divorce. The Divorce was not initiated by anyone but by both parties. My two cents is that this type of Japanese Divorce could not be recognized in the Philippines if the basis for its Recognition is Article 26 of the Family Code. All hopes not lost because this Japanese Divorce could still be recognized in our jurisdiction if the ground would be the Rules of Court allowing Recognition and Enforcement of Foreign Judgements (Section 48 Rule 49) and Cancellation of Record in the Local Civil Registrar (Rule 108) – so long as the Divorce allows the parties to remarry – the Divorce can be recognized in the Philippines.
Updates: I first wrote this article way back in 2014 when the jurisprudence on the matter regarding a case of the Filipino spouse was initiating the Divorce is not yet available. But in the 2018 case of Republic of the Philippines v. Marelyn Tanedo Manalo and Nullada vs. The Hon. Civil Registrar of Manila, a 2019 case, the Supreme Court made it clear that a Filipino spouse can Petition the Court for the Recognition of a Foreign Judgement of Divorce based on Article 26 of the Family Code, regardless whether he or she initiated the Divorce.
Paragraph 2 of Article 26 of the Family Code speaks of a Divorce validly obtained abroad by the alien capacitating him or her to remarry. Based on a clear and plain reading of the provision, it only requires that there be a divorce validly obtained abroad. The letter of the law does not demand that the alien spouse should be the one who initiated the proceeding wherein the divorce decree was granted. It does not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding.
The purpose of Paragraph 2 of Article 26 of the Family Code is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after a foreign divorce decree that is effective in the country where it was rendered, is no longer married to the Filipino spouse.
I can just scream…..FINALLY!
If you have some questions about filing a Petition for Recognition of Divorce in the Philippines, please contact us.
Alex Acain, Esquire (+63 9175002878)
Viber (+63 9175002878)