Dear PAO,

I was married to an American citizen for 10 years. Thereafter, he decided to obtain a decree of an absolute divorce in the US. After it was granted, my ex-husband married another woman in the US. May I legally remarry here in the Philippines, even if an absolute divorce decree was issued by a foreign court? What should I do?

Jana

Dear Jana,

Yes, you may still validly remarry here in the Philippines, subject to the condition that the foreign divorce decree will be recognized here through the filing of a petition for recognition of a foreign judgment of divorce before our local courts. This is based on Article 26(2) of the Family Code which provides that:

“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 has the effect of enforcing a divorce decree, which is binding on the foreign national spouse under his or her national law, and recognizing as well the residual effect of such foreign decree on the Filipino spouse, despite the prohibition against absolute divorce under our laws. It is intended to avoid an absurd scenario where a Filipino would still be considered as married to his or her foreign spouse even after the latter had already obtained a valid divorce abroad, and may likely have already remarried.

In the recent case of Shela Bacaltos Asilo v. Presiding Judge Maria Luisa Lesle G. Gonzales-Betic, Branch 225, Regional Trial Court, Quezon City (GR 232269, July 10, 2024, Ponente: Chief Justice Alexander Gesmundo), the Supreme Court explained:

“It is well-established that ‘[t]he recognition of the foreign divorce decree may be made in a Rule 108 proceeding itself, as the object of special proceedings (such as that in Rule 108 of the Rules of Court) is precisely to establish the status or right of a party or a particular fact.’ xxx

“At this juncture, for purposes of clarity, the Court states that in a petition for recognition of a foreign divorce decree on the basis of Article 26(2) of the Family Code, the ultimate facts that must be alleged are as follows:

“1. The celebration of a marriage between a Filipino and an alien;

“2. The subsequent acquisition of an absolute divorce in a foreign jurisdiction;

“3. The nationality of the alien spouse at the time the absolute divorce was obtained; and

“4. The national law of the alien spouse, which recognizes the absolute divorce and capacitates said alien spouse to remarry.

“These ultimate facts are in addition to the jurisdictional facts that must be alleged in the petition.”

As explained by the high court, the preparation of documents and pieces of evidence to establish the mentioned ultimate facts is imperative to warrant a favorable disposition from the court, should you wish to have your foreign divorce with your husband recognized in our country. These facts are necessary in order to show your entitlement to the benefits of Article 26(2) of the Family Code.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]