Divorce In the Philippines
In the current state of affairs, the Philippines has no explicit and definite Divorce Law. Hence, divorce in the Philippines, as a specific and categorical legal situation, is not yet allowed, albeit, directly and absolutely.
However, while there is a principle in law that what cannot be done directly is not also allowed to be done indirectly, the author believes that there may be situation where “indirect” divorce [or to be precise “relative divorce”] is possible and allowable, although with the Court’s imprimatur.
As we will be talking about it later, the same must also follow the rules of procedure and the requirements under existing law, authorizing and allowing such “relative” divorce.
Philippine Legislature on Absolute Divorce
While the Philippines has not yet enacted a statute legalizing absolute divorce, its legislature has a pending House Bill proposal for that matter. The latest of which was House Bill No. 7303. In the said bill, it instituted absolute divorce and dissolution of marriage, may be, as an alternative mode of terminating the same. It reaches the third reading in the Philippine’s House of Representatives, yet, the Senate failed to act on it.
In the year 2020, according to some source, 1 the technical working group in the Philippine Congress revived such proposal, and now, termed the same as “reinstitution”. Hence:
“Many bills have been filed proposing the recognition of absolute divorce. But it was only during the 17th Congress when House Bill 7303, entitled “An Act Instituting Absolute Divorce and Dissolution of Marriage in the Philippines,” was overwhelmingly approved on third and final reading by the House of Representatives on March 19, 2018. The Senate was unable to act on the bill. Three House bills on absolute divorce have been refiled in the 18th Congress. A technical working group approved a consolidated version on March 10, 2020, more than a year ago. The House committee on population and family relations has yet to report out the substitute bill. 2
“Absolute divorce is correctly being reinstituted because we had it before. Thus, the substitute House bill is entitled “An Act Reinstituting Absolute Divorce as an Alternative Mode for the Dissolution of Marriage.” This reinstitution is long overdue.” 3
Christian Faith | Catholic Influence
The Philippines has, for its pride, the primary belief of being the lone Christian country in South East Asia, among others. Moreover, the genealogy of the Philippine Legal System, especially in marriage law, takes into account, while not legally binding, certain principles in the Catholic Church’s Canon Laws.
The country, as a matter of moral principle, does follow, and does believe in, the sanctity of matrimonial bond. 4
In addition, in its Fundamental Law itself, 5 the Philippines has recognized the inviolability of the family as a social institution. Hence, there is an institutional need that it must exist in solidarity. Thus:
“Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.
“Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
“Section 3. The State shall defend:
- The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood;
- The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;
- The right of the family to a family living wage and income; and
- The right of families or family associations to participate in the planning and implementation of policies and programs that affect them.
“Section 4. The family has the duty to care for its elderly members but the State may also do so through just programs of social security.” 6
Is there really an “indirect” divorce in the Philippines, which is permitted by law? | Relative Divorce
While marriage is a contract, nonetheless a special one, termination thereof is not, and cannot be, left in the sole will of one or both parties, just like in ordinary contract.
Therefore, there is really no divorce in the Philippines, if we are to define the real and literal meaning of the word “divorce”, as in any other jurisdiction which allows such severance of marriage, that the termination of the latter may be left in the sole will and discretion of one or both of the spouses, even without grounds, except that their co-existence is not anymore conducive or there is already an irreconcilable conflict between them.
However, the marriage between Filipinos can still be validly ended. It must be done with the intervention of the Court, through a judicial decree.
In the Philippines, here are the possible legal basis, to wit:
- Marriage between Filipino and a Foreigner and Marriage between Filipinos, except that one of them becomes a naturalized alien of other country, and in that state, it allows divorce. 7
- Psychological Incapacity of one or both spouses 8
- Void Marriages [Declaration of Nullity of Marriage] 9
- Voidable Marriages [Annulment of Marriage] 10
Philippine Laws do not provide for Absolute Divorce
“The rules on divorce prevailing in this jurisdiction can be summed up as follows: first, Philippine laws do not provide for absolute divorce, and hence, the courts cannot grant the same; second, consistent with Articles 15 and 17 of the Civil Code, the marital bond between two (2) Filipino citizens cannot be dissolved even by an absolute divorce obtained abroad; third, an absolute divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws; and fourth, in mixed marriages involving a Filipino and a foreigner, the former is allowed to contract a subsequent marriage in case the absolute divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry.” 11
Specie of Divorce | Foreign Judgment
In this discussion, we will center mainly on foreign judgment, which the author thinks, a specie of divorce in the Philippines.
Incidentally, you may notice that except Foreign Judgment contemplated under Article 26 of the Family Code, the other bases to sever the marriage hinge on specific grounds stated in the provisions of the law themselves.
Whereas, in Article 26 on Foreign Judgment, no valid grounds are needed, except the principle of reciprocity.
Article 26 of the Family Code [FC] specifically provides that:
“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.
“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.
We will focus on the second paragraph of the above provision. This refers to the foreign judgment or the divorce decree obtained by the alien spouse.
Article 26, FC, says “marriage between a Filipino citizen and a foreigner”. Does this provision apply to marriage between Filipinos? As mentioned earlier and according to the relevant Decision of the Philippine Supreme Court, 12 the provision will still apply, provided one of the spouses becomes a Naturalized Foreigner after the marriage.
“Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent.” 13
In order to secure the full benefit of the second paragraph of this Article 26, FC, the following requisites must concur or must be present, to wit:
- The marriage is between a Filipino and a Foreigner or even between Filipinos, provided that one of the spouses becomes a naturalized alien
- A Divorce Decree or Divorce Judgment has been obtained by the Alien Spouse [Former Filipino who is a Naturalized Alien is also included] or even if the Divorce Decree is mutually obtained 14 by both spouses acting as one, or by the Filipino spouse himself or herself.
“The facts in Manalo are similar to the circumstances in this case. A divorce decree between a Filipino and a Japanese national was obtained by the spouses upon a case that was filed in Japan by Manalo, the Filipino spouse. Initially, the recognition of the divorce decree in the Philippines was rejected by the RTC where the petition for recognition and enforcement of a foreign judgment was filed, as the trial court cited Article 15 of the New Civil Code and reasoned that as a rule, “the Philippine law ‘does not afford Filipinos the right to file for a divorce, whether they are in the country or living abroad, if they are married to Filipinos or to foreigners, or if they celebrated their marriage in the Philippines or in another country x x x[.]”‘ On appeal to the Court of Appeals (CA), however, the RTC decision was overturned. The appellate court held that Article 26 of the Family Code should apply even if it was Manalo who filed for divorce. The decree made the Japanese spouse no longer married to Manalo; he then had the capacity to remarry. It would be unjust to still deem Manalo married to the Japanese who, in turn, was no longer married to her. The fact that it was Manalo who filed the divorce was inconsequential. This ruling of the CA was then affirmed by the Court in Manalo upon a petition for review on certiorari that was filed by the Republic of the Philippines.” 15
- The National Law of the Foreigner of Naturalized Alien spouse allows the latter to remarry
Compared with the other grounds, under the Family Code, to terminate the marriage bond, Article 26, FC, mainly requires that the foreign spouse must have validly obtained a divorce decree or judgment and his or her national law capacitates him or her to remarry.
The reason, therefore, of the law is that, since the foreign law capacitates the divorcing foreign ex-spouse to marry again, there is no rhyme or reason why the Filipino ex-spouse will not also be permitted to have another crack at remarriage. This is famously and legally known as the “Principle of Reciprocity”.
- Rep. Edcel Lagman, Reinstituting Absolute Divorce Now, The Manila Times, May 13, 2021
- Ibid., supra.
- Ibid., supra.
- Biblical Sanction that “what God has joined together let no man put asunder.”
- Article XV, The Family, 1987 Philippine Constitution
- 1987 Philippine Constitution, supra.
- Article 26, Family Code
- Article 36, Family Code
- Articles 35, 37, 38, 44, 53, & 40 in relation to Art. 50, Family Code
- Article 45, Family Code
- Luzviminda Morisono vs. Ryoji Morisono, G.R. No. 226013, July 02, 2018
- Republic of the Philippines vs. Cipriano Orbecido III, G.R. No. 154380, October 5, 2005
- G.R. No. 154380, October 5, 2005, supra.
- Nullada vs. Civil Registrar of Manila, G.R. No. 224548, January 23, 2019
- G.R. No. 224548, January 23, 2019, supra.