Will the divorce obtained by a former Filipino, now an alien, entitle his or her Filipino spouse to remarry?

A question that is often asked is whether the divorce secured by a former Filipino after he or she became a citizen of another country, will enable the Filipino spouse to remarry?

Yes, it will enable the Filipino spouse to remarry.

"Art. 26, (par. 2) of the Family Code provides:

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."

According to the case of Llorente vs. CA (G.R. No. 124371. November 23, 2000), the divorce obtained by US citizen who was formerly a Filipino when he married his Filipina wife, is "valid and recognized in this jurisdiction as a matter of comity."

Also, as explained by the Department of Justice (DOJ) Opinion No. 134, Series of 1993,

"Article 26 merely states "alien spouse" without taking into consideration of his nationality at the time of marriage. Therefore, the fact that the spouse who obtaine dthe foreign divorce was a former Filipino citizen is not contorlling. What is important is that the divorce was obtained by the spouse who is not a citizen of the Philippines, in order that the second paragraph of Article 26 of the Family Code can apply."

Since, the former Filipino is already a citizen of another country, he is no longer governed by Philippine laws with regards to his civil status or marital relations but by the law of his new country.

What is required for the Filipino spouse divorced by his or her alien spouse in order to remarry is to submit the divorce decree before the National Statistics Office so that it will be recorded in their marriage certificate.

DOJ Opinion on the Validity of the Divorce by a Former Filipino

This opinion was obtained from the Department of Justice of the Philippines following the request of Assistant Secretary Sime D. Hidalgo, of the Departmentof Foreign Affairs, as to whether a foreign divorce obtained by an alien spouse who was a former Filipino citizen wil entitle his or her Filipino spouse to remarry:

Republika ng Pilipinas

KAGAWARAN NG KATARUNGAN

Department of Justice

Manila

OPINION NO.: 134 S. 1993

2^nd Indorsement

September 23,1993

Respectfully returned to the Honorable Secretary ( Attn.: Secretary Sime D. Hidalgo), Department of Foreign Affairs, Pasay City, the within request of the Ambassador of the Embassy/Mission of the Philippines in Vienna, for opinion as to whether a foreign divorce obtained by an alien spouse, who was a former Filipino citizen, will entitle his/her Filipino spouse to remarry.

We concur with the view that said Filipino Spouse may legally remarry based on Article 26 of the Family Code of the Philippines (E.O. No. 209, as amended ), which reads as follows:

“Art. 26.

xxxxx

Where a marriage between a Filipino citizen and a foreigner is validity 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.”

In Opinion No. 10, s. 1989, we had occasion to rule that:

“Divorce, as a general rule, is not recognized in the Philippines. However, in the situation contemplated in Article 26 of the Family Code, Supra, and only in that instance, the effect of divorce, which is the severance of the marriage ties, is allowed to benefit the Filipino spouse who is thereby given capacity to remarry under Philippine law.

It is said that the idea of inclusion of the second paragraph of Article 26 is to avoid the absurd situation of a Filipino being still legally married to his or her alien spouse, although the latter is no longer married to the Filipino spouse because he or she had obtained a divorce abroad which is recognized by his or her national law. It will, likewise, solve the problem of many Filipino women who, under the Civil Code, are still considered married to their alien husbands even after the latter have already validly divorced under their (the husband’s) national law and perhaps have already remarried (Alicia V. Sempio-Diy, Handbook on the Family Code of the Philippines, p. 27).”

It is believed that the above ruling equally applies to the instant case. The aforequoted Article 26 merely states “alien spouse” without taking into consideration his nationality at the time of marriage. Therefore, the fact the spouse who obtained the foreign divorce was a former Filipino citizen is not controlling. What is important is that the divorce was obtained by the spouse who is not a citizen of the Philippines, in order that the second paragraph of Article 26 of the Family Code can apply.

Ramon J. Liwag
Acting Secretary