Exclusive right

Under Article 26, second paragraph of the Family Code (FC), “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 the capacity to remarry under Philippine Law”. This is the law which Gerry, a former Filipino citizen who became a Canadian citizen tried to use in his case.

On January 8, 2005 Gerry married Lyn, a Filipina, in Pasig City. But due to work and other professional commitments, he had to leave for Canada soon after the wedding. Sometime in April 2005 however, he returned to the Philippines intending to surprise his wife, but was the one shocked to discover that Lyn was having an affair with another man. Hurt and disappointed, Gerry returned to Canada to file a petition for divorce. The divorce decree was granted on December 8, 2005 and took effect a month later on January 8, 2006.

Since then Gerry has moved on and two years later he found another Filipina to love. Desirous of marrying his new Filipina fiancée in the Philippines, he went to the Pasig City Registry Office and registered the Canadian divorce decree. The National Statistics Office (NSO) however informed Gerry that the marriage between him and Lyn still subsists under Philippine law and that the foreign divorce decree must first be judicially recognized by a competent Philippine court in order to be enforceable.

Accordingly, Gerry filed a petition with the Regional Trial Court (RTC) for judicial recognition of foreign divorce and/or declaration of marriage as dissolved. Although summoned, Lyn did not file any responsive pleading but submitted instead a notarized letter/manifestation to the court, offering no opposition to Gerry’s petition. In fact she said that she would have filed a similar case herself but for financial and personal problems. She thus requested that she be considered a party-in-interest with a similar prayer as Gerry’s.

On October 30, 2008, the RTC denied Gerry’s petition. The RTC said that Gerry was not the proper party to institute the action for judicial recognition of the foreign divorce decree as he is a Canadian citizen. It ruled that only the Filipino spouse can avail of the remedy under the second paragraph of Article 26 of the FC in order for him/her to remarry under Philippine law. Was the RTC correct?

The RTC was correct in limiting the applicability of the second paragraph of Article 26 of the FC for the benefit of the Filipino spouse. The alien spouse can claim no right under the said paragraph. Essentially, the said paragraph provided the Filipino spouse a substantive right to have his/her marriage to the alien spouse considered as dissolved, capacitating him/her to remarry. Without the second paragraph of Article 26 of the FC, the judicial recognition of the foreign divorce, whether in a proceeding precisely for the purpose or as a related issue in another proceeding, would be of no significance to the Filipino spouse since our laws do not recognize divorce as a mode of severing the marital bond. The policy against absolute divorce cannot be subverted by judgments promulgated in a foreign country (Article 17, Civil Code).

The FC recognizes only two types of defective marriages — void and voidable. In both cases, the basis for judicial declaration of absolute nullity or annulment of the marriage exists before or at the time of the marriage. Divorce on the other hand contemplates the dissolution of the lawful union for cause arising after the marriage. Our family laws do not recognize absolute divorce between Filipino citizens.

But even if Gerry as an alien has no right under the said second paragraph of the FC, his petition before the RTC should not be dismissed. The unavailability of the said paragraph does not necessarily strip him of legal interest to petition the RTC for recognition of his foreign divorce decree. His direct involvement or being the subject of the foreign judgment is sufficient to clothe him with the requisite interest to institute an action before our courts for the recognition of the foreign judgment. The foreign divorce decree itself, after its authenticity and conformity with Canadian laws have been duly proven, serves as presumptive evidence of a right in favor of Gerry pursuant to Section 48. Rule 39 of the Rules of Court. The case should therefore be remanded to the trial court for further proceedings especially to determine whether the divorce decree is consistent with the Canadian divorce law and to allow other interested parties to oppose the foreign judgment and overcome the presumptive evidence of a right in Gerry’s favor under the said foreign judgment (Corpus vs. Sto. Tomas, G.R. 186571, August 11, 2010, 628 SCRA 266).

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