Essentials of proving foreign divorce

By Atty. Eduardo T. Reyes III

With the ease of meeting people through the internet even if they are located abroad, mixed-marriages are becoming commonplace.

Given however that the Philippines still does not have a divorce law, the Filipino spouse is placed at a disadvantage when the marriage breaks down as the foreign spouse can easily avail of divorce to wriggle out of the marriage.

Article 26 of the Family Code has been enacted to cure this unfair situation. Pursuant to this legal provision, in a mixed-marriage, once the foreign spouse obtains a divorce which allows him/her to remarry, the Filipino spouse shall likewise be capacitated to remarry. However, while it was consistently held by jurisprudence the latest of which is Regie David Tsutsumi v. Republic of the Philippines, G.R. No. 258130, April 17, 2023, that “x x x time and again it grants liberality in cases involving the recognition of foreign decrees to Filipinos in mixed marriages and free them from a marriage in which they are the sole remaining party. After all, procedural rules are designed to secure and not override substantial justice, especially here where what is involved is a matter affecting the lives of families;” still, proving the divorce is easier said than done.

Especially in countries that are not “English-speaking”- officially, at least-, their documents are mostly written in their foreign language. If the document is not written in English, the Rules on Evidence dictate that there must be an official English translation. On top of that, the said translation must be properly “authenticated.”

Question: which office will authenticate the documents from abroad? Should it be the Philippine Embassy where the documents came from? Or the Foreign Embassy in the Philippines of the country where the documents were issued?

In the recent case of Regie David Tsutsumi v. Republic of the Philippines, ibid, it was concluded that either will do. This means that the Embassy of the foreign country concerned (like the Japanese Embassy in Manila in the case of Tsutsumi), can properly authenticate the documents.

More, another implicit lesson we can learn from the Tsutsumi ruling is that the Filipino spouse who is filing the petition for judicial recognition of foreign divorce pursuant to Article 26 of the Family Code must determinedly ask for three (3) important reliefs to be granted by the court. They are:

• To ask for the RECOGNITION of the foreign divorce as binding between the parties and valid here in the Philippines;
• To pray for the DECLARATION of the legal capacity of the Filipino spouse-petitioner to REMARRY as a consequence of the divorce obtained by his/her foreign spouse; and,
• To seek an ORDER to ANNOTATE the divorce decree in the local civil registry where the marriage was registered and to RECORD the judgment recognizing the divorce in the same civil registry.    

It must be underlined that trial courts, as a rule, cannot grant reliefs that are not prayed for in the pleading/s.

It is best therefore to be clear and categorical when seeking reliefs from the court.

                (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).