Can a Filipino get a divorce abroad?

By Atty. Eduardo T. Reyes III

For the umpteenth time, it must be stated that the Philippines apart from the Vatican is the only state in the world that has no divorce law.

Divorce is still not recognized in Philippine jurisdiction and there are four (4) rules that jurisprudence has carved out to guide courts on how to treat a foreign divorce, thus:

1)Philippine laws do not provide for absolute divorce, and hence, the courts cannot grant the same;

2)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;

3)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,

4) 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. (Republic v. Manalo, G.R. No. 221029, April 24, 2018; Angelita Simundac-Keppel v. Georg Keppel, G.R. No. 202039, August 14, 2019).

It must be underlined that Philippine courts do not have the jurisdiction to “grant” a divorce; but only to “recognize” a divorce decree that was handed down in a foreign country.

As stated on the fourth rule above, when a Filipino is married to a foreigner, and a divorce is obtained abroad that capacitates the foreign spouse to remarry, the Filipino spouse can ask that the foreign decree of divorce be judicially recognized by a Philippine court, and then the Filipino spouse shall also be entitled to remarry.

But when a Filipino is married to another Filipino, neither of the spouses can get a divorce. This is because of Article 15 of the Civil Code which states that:

Article 15. Laws relating to family rights and duties, or to the status, condition, and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.

            This is known as the “nationality principle.”

            But what is the Nationality rule?

            It means that a person’s national law follows them relative to issues affecting their family rights and obligations, their status, condition, and legal capacity to enter into contracts. It is a rule of reciprocity such that when Philippine courts are confronted with similar issues on family rights and duties, etc., of a foreign national, their national law shall likewise be consulted and applied to resolve such issues.

Article 15 is related to Article 26 of the New Family Code which in turn states 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 likewise have capacity to remarry under Philippine law.”

            Thus, Article 15 or the Nationality rule applies to two (2) Filipinos married to each other who are doggedly followed by Philippine law that does not allow divorce, even if they will go to a foreign country that allows divorce. Any divorce that they would obtain, will not be valid in the Philippines.

However, under the exceptional circumstance envisaged by Article 26 of the Family Code, when a marriage is between a Filipino and a foreign spouse, and a divorce is obtained abroad, the Filipino spouse shall be capacitated to remarry.

This holds true regardless of whether it is the foreign spouse or the Filipino spouse who files and obtains a divorce decree in a foreign court.

Thus, as held in In the Matter of Petition for the Judicial Recognition of a Divorce Decree obtained in the State of Nevada, U.S.A., Maria Josephine Praxedes Octaviano v. Karl Heinz Ruthe and Lisa Grace S. Bernales, Civil Registrar General, G.R. No. 218008. June 26, 2024, citing Republic v. Manalo, 2018, it was held that “Article 26, 2^nd par. of the Family Code is an exception to Article 15 of the Civil Code that envisages the Nationality principle.” X x x “Conveniently invoking the nationality principle is erroneous. Such principle, found under Article 15 of the Civil Code, is not an absolute and unbending rule. In fact, the mere existence of Paragraph 2 of Article 26 is a testament that the State may provide for an exception thereto. Moreover, blind adherence to the nationality principle must be disallowed if it would cause unjust discrimination and oppression to certain classes of individuals whose rights are equally protected by law. The courts have the duty to enforce the laws of divorce as written by the Legislature only if they are constitutional.”

So when the special circumstances envisaged under Article 26 of the Family Code are present, then even the Filipino spouse can get the divorce abroad, and the same would capacitate him/her to remarry.

                (The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor, MCLE lecturer, bar reviewer and a book author. His website is etriiilaw.com).