Proof of foreign divorce

By Atty. Eduardo T. Reyes III

After months of sweltering heat, finally the heavens had yielded rain as if the clouds were poked by a multitude of petitions praying for rain.

Life has its seasons. But sometimes, the drought seems too long in its turn in the cycle that it becomes difficult to endure.

Relationships, too, regrettably, have their seasons.

There is a honeymoon stage, that starts like a vibrant summer and blossoms during spring; but it could become colder in December. Then the next summer, it could be a long, unbearable drought.

When a marriage is unable to survive the drought, because for the couple the rain is still far away, then it will end up in a divorce or annulment.

Sadly, for a Filipino couple, only an annulment is available as the Philippines still has no divorce law.

By contrast, when the marriage is between a Filipino and a foreigner, and a divorce is obtained abroad -either by the Filipino or the alien, or both-  divorce can come in handy as it may be presented in a petition for judicial recognition of foreign divorce pursuant to Article 26 of the Family Code.

But first, let us recall the rules on divorce from the prism of Philippine law as envisaged in jurisprudence. Thus:

“In Morisono v. Morisono, we summarized the treatment of foreign divorce judgments in this jurisdiction, thus: 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.” (Angelita Simundac-Keppel v. Georg Keppel, G.R. No. 202039, August 14, 2019, also cited in Republic v. Manalo, 2018).

It must be stressed that aside from proving the fact of divorce, the foreign law must also be proven. The reason is because it is primordial that the national law of the foreign spouse must allow divorce as a requirement for Philippine courts to recognize the divorce subject of the petition.   

Logically, the next question that comes to the fore is: how then is a foreign law proven in Philippine courts?

It cannot be done by merely procuring printouts of the foreign law downloaded from a website. Thus, jurisprudence teaches that:

“Here, what petitioner offered in evidence were mere printouts of pertinent portions of the Japanese law on divorce and its English Translation. There was no proof at all that these printouts reflected existing law on divorce in Japan and its correct English translation. Indeed, our rules require more than a printout from a website to prove a foreign law. In Racho, the Japanese law on divorce was duly proved through a copy of the English Version of the Civil Code of Japan translated under the authorization of the Ministry of Justice and the Code of Translation Committee.” (In re: Petition for judicial recognition of divorce between Minuro Takahashi and Juliet Rendora Moraña v. Republic of the Philippines, G.R. No. 227605. December 5, 2019; reiterated in Republic v. Jocelyn Asusano Kikuchi, G.R. No. 243646, June 22, 2022 ).

                Sanguinely, there is OCA Circular No. 157-2022 (23 June 2022) titled “Compilation of The Laws of Foreign Countries on Marriage and Divorce.” Here, the Office of the Court Administrator has exhorted all Family Courts to be “advised to take judicial notice of the compilation of laws of foreign countries on marriage and divorce in the resolution of cases requiring the presentation of the laws of foreign countries on marriage and divorce which could be accessed at https://sc.judiciary.gov.ph/foreign-divorce-laws/.” And this was further superseded by OCA Circular No. 157-2022-A (07 July 2022) where courts in general, not only Family courts, must “use as reference” the said foreign laws.

This relieves the petitioner in a petition for judicial recognition of foreign divorce of the duty to present authenticated copies of the foreign law concerned.

                But what about the divorce decree? How can it be authenticated?

It used to be that the authentication of a foreign document like a divorce decree handed down in a foreign country, must be done in the Philippine Consular Office in the foreign country where it was issued. But it has proven to be both cumbersome and expensive.

Fortunately, in Regie David Tsutsumi v. Republic of the Philippines, G.R. No. 258130, which came down on April 17, 2023, it was concluded that a divorce document issued in Japan can be authenticated by the Japanese Embassy in Manila. This makes it so much easier for the petitioner to prove a foreign divorce. Thus:

“In previous cases, we have already ruled that Japanese laws allow divorce by mutual agreement. By whatever name it may be called, the Divorce Certificate supported by Certificate of Acceptance of Notice of Divorce, as authenticated by the Japanese Embassy in Manila is the best evidence of the fact of divorce obtained by petitioner from her husband, Ayahiro. More, the State did not question the existence of these pieces of evidence and the fact of divorce between the petitioner and her husband. ln Republic v. Manalo, if the opposing party fails to properly object, as in this case, the divorce report and divorce certificate is rendered admissible as written acts of the foreign official body.”

                Indeed, with this latest decision of the Supreme Court, proving a foreign divorce has become a lot easier.

Metaphorically, this makes the drought shorter in the lives of couples whose marriages had ended up in divorce.

                (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).