Divorce obtained abroad by a Filipino

[charlwill]

A divorce obtained by a Filipino in another country, like the USA for example, is not recognized here in the Philippines. In several decisions, Supreme Court has ruled that a Filipino who obtains a divorce abroad and gets married in the Philippines, is liable for bigamy.

In People v. Schneckenburger, the Court held that the accused who secured a foreign divorce, and later remarried in the Philippines, in the belief that the foreign divorce was valid, is liable for bigamy.

The Court, in People v. Bitdu, carefully distinguished between a mistake of fact, which could be a basis for the defense of good faith in a bigamy case, from a mistake of law, which does not excuse a person, even a lay person, from liability. Bitdu held that even if the accused, who had obtained a divorce under the Mohammedan custom, honestly believed that in contracting her second marriage she was not committing any violation of the law, and that she had no criminal intent, the same does not justify her act.

The Supreme Court further stated therein that with respect to the contention that the accused acted in good faith in contracting the second marriage, believing that she had been validly divorced from her first husband, it is sufficient to say that everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.

When the divorce is obtained by an alien spouse against a Filipino
The second paragraph of Article 26 of the Family Code states, to wit, “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. (As amended by Executive Order 227”)

We must make a distinction here. In the case of a Filipino married to an alien spouse, if he or she initiates or files the divorce action, the subsequent divorce will not be recognized here in the Philippines. If he or she gets married here again, he or she will be liable for bigamy.

However, if it is the alien spouse who initiates or files the divorce action, Article 26 of the Family Code will apply. The divorce is recognized here in the Philippines, and if the said divorce allows the former alien spouse to remarry, the Filipino will also have the right to remarry under Philippine law.

[empott]

Exactly!

[Pepe n Pilar]

Nice post Charlwill, very informative

[johncar54]

This is a very interesting post by Charwill, however, I believe that the court interpretation must be open to dispute.

I am sure that in law it must be arguable that if a Filipino, who is divorced by his/her alien spouse, is free to marry then the converse must apply, ie where the Filipino spouse divorces his/her alien spouse he /she must equally be free to marry.


In this later case the alien spouse would be free to marry, as they would in the first case. It is arguably ridiculous to treat the Filipino as still be considered as married if his/her spouse is treated as no longer married. Who would they be married to?

I hope a prominent Filipino lawyer chooses to appeal such a case to the high court.

I don't know if international human right law applies to the Philippines, if it does the present court finding must be reversed.

[keithAngel]

My interpretation is that if the Filipino is married in the Phils then a divorce secured by an either spouse abroad would not be valid in the Philippines

She would however be free to marry abroad it would only be in the Fils this marriage would not be recognised

If they were married abroad and the Filipino was devorced my the foriegn partner this would be valid in the Fils ?

[PeterB]

If they were married abroad and the Filipino was devorced my the foriegn partner this would be valid in the Fils ?

I'm not sure about 'valid', but the Filipino would be free to marry again in Phils.

[legal Forum]

I am sure that in law it must be arguable that if a Filipino, who is divorced by his/her alien spouse, is free to marry then the converse must apply, ie where the Filipino spouse divorces his/her alien spouse he /she must equally be free to marry.

[beppe]

In the end why not introduce a divorce legislation, it would reflect the reality more closely.

[Florge]

This is a very interesting post by Charwill, however, I believe that the court interpretation must be open to dispute.

I am sure that in law it must be arguable that if a Filipino, who is divorced by his/her alien spouse, is free to marry then the converse must apply, ie where the Filipino spouse divorces his/her alien spouse he /she must equally be free to marry.


In this later case the alien spouse would be free to marry, as they would in the first case. It is arguably ridiculous to treat the Filipino as still be considered as married if his/her spouse is treated as no longer married. Who would they be married to?

I hope a prominent Filipino lawyer chooses to appeal such a case to the high court.

I don't know if international human right law applies to the Philippines, if it does the present court finding must be reversed.

The cases mentioned are already decided by the high court (Supreme Court here). It simply means that the Filipino spouse can get married only when the divorce has been declared, in which such action was initiated by the foreign spouse. Why foreign? because Filipinos are covered by Philippine laws wherever they may be and since we don't recognize divorce, then essentially, Filipinos can't get divorced. But that also depends on the marriage law of the country of the foreign spouse. that is another discussion.

So, if you want to get divorce, let the foreign spouse initiate it so that when the divorce is approved, you are free to marry either in the Phils or abroad.

My interpretation is that if the Filipino is married in the Phils then a divorce secured by an either spouse abroad would not be valid in the Philippines

She would however be free to marry abroad it would only be in the Fils this marriage would not be recognised

If they were married abroad and the Filipino was devorced my the foriegn partner this would be valid in the Fils ?

The divorce must be secured by the foreign spouse so that Filipino spouse can get married. Yes, the Filipino spouse is free to marry abroad but that marriage is bigamous under Philippine law since he/she hasn't gone through annullment/divorce.

I'm not sure about 'valid', but the Filipino would be free to marry again in Phils.

Correct.