Article 26 of the Family Code

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Divorce decrees secured outside the Philippines are recognized in certain instances. This is provided in Article 26 of the Family Code, which reads in full:

ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
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.

In mixed marriages involving a Filipino and a foreigner, Article 26 of the Family Code allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry. A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws.[1]

Contents

Elements for application

The twin elements for the application of this provision are:

  • 1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and
  • 2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

Effect of losing Filipino citizenship

At first glance, Article 26 seems to apply only to a marriage between a Filipino and a foreigner. This was raised by a respected commentator in Family Law, Justice Sempio-Diy, who noted that Art. 26 does not apply "to a divorce obtained by a former Filipino who had been naturalized in another country after his naturalization, as it might open the door to rich Filipinos’ obtaining naturalization abroad for no other reason than to be able to divorce their Filipino spouse."[2]

However, this provision was later interpreted by the Supreme Court to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The reckoning point is not the citizenship of the parties at the time of marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.[3] In other words, after complying with the procedure in having the foreign decree of divorce (secured by the spouse who is a former Filipino) judicially recognized here in the Philippines (through the appropriate court action), the Filipino spouse may validly remarry.

Effect of RA 9225

Then came the new law (Republic Act No. 9225) that allows former Filipinos to re-acquire or maintain their Filipino citizenship. Here are the issues: If a Filipino secures a divorce BEFORE losing his/her Philippine citizenship by naturalization as a foreign citizen (the divorce is not valid under Philippine laws), will the subsequent loss of Philippine citizenship have any effect on the validity of the previous divorce? Will it make any difference if the foreign decree of divorce, validly secured by a former Filipino, is not judicially recognized here in the Philippines before that former Filipino re-acquires his/her Philippine citizenship? On the other hand, what’s the effect of the re-acquisition of Filipino citizenship on the foreign decree of divorce previously and validly secured?

Related links

References

  1. Garcia vs. Recio, G.R. No. 138322, 2 October 2001
  2. Handbook on the Family Code of the Philippines, 1995 Ed., p. 30
  3. Philippines vs. Orbecido III, G.R. No. 154380, 5 October 2005
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