Introduction

In the Philippine legal system, marriage is regarded as a special contract of permanent union between a man and a woman, governed primarily by the Family Code of the Philippines (Executive Order No. 209, as amended). The country does not recognize absolute divorce for Filipino citizens, except in specific cases involving mixed marriages or Muslim Filipinos under the Code of Muslim Personal Laws. This creates unique challenges for Filipinos who are separated—whether de facto (informally living apart) or legally separated—and wish to enter into a new marriage with a foreigner. This article comprehensively explores the legal framework, requirements, and procedures relevant to such scenarios, emphasizing that "separated" status alone does not confer the capacity to remarry. Instead, the dissolution or nullification of the prior marriage is typically necessary.

Marital Status Under Philippine Law

Philippine law classifies marital status strictly, with marriage being indissoluble except through death, annulment, or a declaration of nullity. Separation, in this context, can refer to:

De Facto Separation: This is an informal arrangement where spouses live apart without court intervention. It has no legal effect on the marriage bond and does not allow either party to remarry. Any attempt to contract a subsequent marriage would be considered bigamous and void ab initio (from the beginning), punishable under Article 349 of the Revised Penal Code with imprisonment.
Legal Separation: Governed by Articles 55 to 67 of the Family Code, legal separation is a court-decreed remedy allowing spouses to live separately due to grounds such as repeated physical violence, sexual infidelity, or abandonment. However, it does not dissolve the marriage. The separated spouses remain legally married, and remarriage is prohibited. The decree affects property relations, custody, and support but preserves the marital tie.

For Filipinos separated in either manner from a previous spouse (typically another Filipino), they lack the legal capacity to marry anyone, including foreigners, until the prior marriage is legally terminated.

Exceptions Involving Foreigners: The Role of Article 26 of the Family Code

A key exception applies in mixed marriages. Under Article 26, paragraph 2 of the Family Code:

"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."

This provision recognizes foreign divorces initiated by the alien spouse, provided:

The marriage was validly celebrated.
The divorce is valid under the foreigner's national law.
The divorce capacitates the foreigner to remarry.
The Filipino spouse was not the one who initiated the divorce (to prevent circumvention of Philippine no-divorce policy).

If a Filipino is "separated" from a foreign spouse and the foreigner obtains a divorce abroad, the Filipino can petition Philippine courts for recognition of the foreign divorce under Rule 108 of the Rules of Court or through a special proceeding. Upon judicial recognition, the Filipino regains capacity to remarry, including to another foreigner.

However, if the prior marriage was to another Filipino, no such exception applies, as divorces obtained abroad by Filipinos are not recognized (Article 15 of the Civil Code: laws relating to family rights apply to Filipinos even abroad).

Capacity to Contract Marriage: Essential Requisites

Article 2 of the Family Code outlines the essential requisites for a valid marriage:

Legal Capacity: Both parties must be at least 18 years old, not under any impediment (e.g., existing marriage, insanity).
Consent: Freely given in the presence of a solemnizing officer.
Authority of Solemnizing Officer: Must be a judge, priest, rabbi, imam, or authorized consul.
Marriage Ceremony: No prescribed form, but parties must declare they take each other as husband and wife before witnesses.
Marriage License: Except in cases like marriages in articulo mortis (at the point of death) or cohabitation for at least five years without impediment.

For a separated Filipino, the primary barrier is legal capacity due to the subsisting prior marriage. To overcome this:

Annulment (Articles 45-54, Family Code): Declares the marriage voidable due to grounds like fraud, impotence, or psychological incapacity (as interpreted in landmark cases like Republic v. Molina, G.R. No. 108763). Annulment restores single status, allowing remarriage.
Declaration of Nullity (Articles 35-44): Declares the marriage void ab initio for reasons such as bigamy, incest, or lack of license. This also restores capacity to marry.

The process involves filing a petition in the Regional Trial Court (RTC) where either spouse resides, with the Office of the Solicitor General as respondent. It requires evidence, psychological evaluations (for incapacity grounds), and can take 1-3 years, costing PHP 150,000-500,000 in legal fees.

Special Requirements for Marriage to Foreigners

Once capacity is established (e.g., via annulment or recognition of foreign divorce), additional requirements apply when marrying a foreigner in the Philippines:

Certificate of Legal Capacity to Contract Marriage (CENOMAR/CEMAR): Issued by the Philippine Statistics Authority (PSA) for the Filipino, confirming no existing marriage. For the foreigner, an equivalent affidavit or certificate from their embassy/consulate in the Philippines, affirming capacity under their national law (e.g., no subsisting marriage).
Visa and Residency: The foreigner must have a valid passport and visa (e.g., tourist visa or 9(g) pre-arranged employment visa). Overstayers may face issues.
Parental Consent/Advice: If either party is 18-21, parental consent is needed; for 21-25, parental advice.
Pre-Marriage Counseling: Mandatory seminar by the Department of Social Welfare and Development (DSWD) or local government unit (LGU) on family planning, responsibilities, etc.
Documents for Foreigners:
- Birth certificate.
- Divorce decree (if previously married), with English translation if needed.
- Death certificate (if widowed).
- All foreign documents must be authenticated by the foreigner's embassy and the Philippine Department of Foreign Affairs (DFA).
Marriage License Application: Filed at the local civil registrar (LCR) of the municipality/city where the marriage will occur. Requires 10-day posting period for public notice.
Solemnization: Can be civil (by a mayor, judge, or military commander) or religious, but must comply with Philippine laws.

If the marriage occurs abroad, it must follow the lex loci celebrationis (law of the place of celebration), but the Filipino's capacity is governed by Philippine law (Article 15, Civil Code).

Procedure for Marriage in the Philippines

Secure Documents: Filipino obtains PSA birth certificate and CENOMAR; foreigner gets embassy-issued capacity certificate.
Attend Seminar: Complete pre-marriage counseling.
Apply for License: Submit application to LCR with fees (around PHP 200-500).
Waiting Period: 10 days after posting.
Ceremony: Conducted within 120 days of license issuance.
Registration: Marriage contract registered with LCR and PSA within 15 days.

For separated Filipinos post-annulment, the annulment decision must be annotated on the PSA marriage record to update status.

Challenges and Considerations

Bigamy Risks: Attempting marriage without proper termination leads to criminal liability (up to 8 years imprisonment) and void marriage.
Property and Children: Legal separation or annulment affects property (absolute community or conjugal partnership dissolved) and custody (best interest of the child under Article 213).
Muslim Filipinos: Under Presidential Decree No. 1083, divorce is allowed for Muslims, potentially simplifying remarriage to foreigners if Shari'a court grants it.
Same-Sex Marriage: Not recognized in the Philippines, regardless of status.
International Treaties: The Hague Convention on Apostille simplifies document authentication for foreigners from member states.
Costs and Time: Annulment proceedings are lengthy and expensive, often deterring individuals. Proposals for divorce legalization (e.g., House Bill No. 9349) remain pending.

Conclusion

For separated Filipinos seeking to marry foreigners in the Philippines, the path requires addressing the indissolubility of marriage through annulment, nullity declaration, or recognition of a foreign divorce (if applicable). Mere separation does not suffice. Compliance with documentary and procedural requirements ensures validity, protecting against legal pitfalls. Individuals are advised to consult a family law attorney for personalized guidance, as jurisprudence (e.g., from Supreme Court decisions) evolves. This framework upholds the constitutional protection of marriage as the foundation of the family (Article XV, Section 2, 1987 Constitution).