The Philippines remains the only country in the world, aside from Vatican City, where absolute divorce is not legally available under civil law. While the Family Code provides for legal separation and annulment (declaration of nullity), "divorce" in the traditional sense does not exist for Filipino citizens married in the Philippines.
However, the law recognizes a significant exception: Article 26, Paragraph 2 of the Family Code. This provision allows a Filipino spouse to remarry if their foreign spouse obtains a valid divorce abroad.
The Legal Basis: Article 26 of the Family Code
Originally, Philippine law held that a divorce obtained abroad by a Filipino was not valid. This created a "limping" marriage—where one spouse was free to remarry under their foreign law, but the Filipino spouse remained legally tied to them under Philippine law.
To remedy this, Article 26 (as amended by Executive Order No. 227) states:
"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."
Key Requirements for Recognition
For a foreign divorce to be recognized in the Philippines, it must meet specific criteria established by law and Supreme Court jurisprudence (notably the landmark Republic v. Manalo case):
- A Mixed Marriage: The marriage must be between a Filipino citizen and a foreign national.
- A Valid Foreign Divorce: The divorce must be validly obtained according to the national law of the foreign spouse.
- Capacity to Remarry: The divorce decree must explicitly allow the foreign spouse to remarry.
- The "Initiator" Rule (Post-Manalo): Previously, it was believed the foreign spouse must be the one to file. However, the Supreme Court ruled in Republic v. Manalo (2018) that it does not matter who initiates the divorce (the Filipino or the foreigner), as long as a valid divorce is obtained abroad by a foreigner.
The Process: Judicial Recognition vs. Automatic Recognition
It is a common misconception that a foreign divorce decree is automatically valid in the Philippines. It is not. The divorce is considered a fact that must be proven in a Philippine court.
1. Filing the Petition
The Filipino spouse must file a Petition for Judicial Recognition of Foreign Divorce in the Regional Trial Court (RTC) where the relevant Civil Registry is located.
2. Proving the Foreign Law
Philippine courts do not take judicial notice of foreign laws. This is the most technical part of the process. You must prove:
- The existence of the foreign divorce decree.
- The foreign law under which the divorce was granted (usually through an official publication or a certification from the foreign country’s embassy/consulate).
3. Evidence Required
Typical documents needed include:
- The Divorce Decree (authenticated/apostilled).
- The Foreign Divorce Law (authenticated/apostilled).
- Marriage Certificate (PSA copy).
- Birth Certificate of the Petitioner.
Comparison: Recognition vs. Annulment
| Feature | Judicial Recognition of Divorce | Declaration of Nullity (Annulment) |
|---|---|---|
| Grounds | Valid divorce obtained abroad. | Defects existing at the time of marriage (e.g., psychological incapacity). |
| Parties | One spouse must be a foreigner. | Both spouses can be Filipinos. |
| Complexity | Generally faster if documents are in order. | Usually involves psychological evaluations and longer trials. |
| Outcome | Recognition of a status already changed abroad. | Marriage is declared void from the beginning (void ab initio). |
The Role of the PSA and DFA
Once the RTC issues a Final Order recognizing the foreign divorce, the judgment must be registered with the Local Civil Registrar (LCR) and subsequently with the Philippine Statistics Authority (PSA).
Once the PSA annotates the Marriage Certificate, the Filipino spouse’s status is officially changed from "Married" to "Divorced" (or "Single" for purposes of remarriage). The Department of Foreign Affairs (DFA) will then allow the Filipino spouse to revert to their maiden name in their passport (if applicable).
Important Considerations
- Dual Citizens: If a Filipino was a dual citizen at the time of the divorce, or if a Filipino naturalized as a foreign citizen and then obtained a divorce, the rules vary slightly but generally favor recognition.
- Property Relations: A recognized foreign divorce also terminates the absolute community of property or conjugal partnership. Issues regarding the partition of Philippine properties may need to be addressed in the same or a separate proceeding.
- Custody and Support: While the divorce is recognized, matters of child custody and support for children residing in the Philippines remain subject to the jurisdiction of Philippine courts and the principle of the "best interests of the child."