Consented foreign divorce

Can a foreign divorce by mutual consent between the Filipina spouse and her foreign spouse be recognized in this jurisdiction? This is the case of Dina, a Filipina, and Tanabe, a Japanese national, who have been married for 12 years. Eventually they parted ways and not long after, Tanabe even begot a child with another woman, prompting him to ask for divorce from Dina.

Initially, Dina was averse to Tanabe’s idea. But after his relentless prodding, she relented and agreed to sign the divorce papers. So, Dina and Tanabe were issued a divorce decree, which was duly recorded in the Family Register of the Japanese city where they reside, as well as a Receiving Certificate stating that their divorce decree was duly reported to said office.

Subsequently, Dina filed before the RTC in the Philippines a Petition for Recognition of Divorce in order to remarry. She presented as her evidence, the documents issued by the Japanese Office.

The Republic of the Philippines through the Office of the Solicitor General (OSG) sought the dismissal of the petition, mainly arguing that a consensual or mutual divorce such as the divorce obtained by Dina is not contemplated by Article 26 of the Family Code; hence it cannot be recognized by the Philippine courts.

But the RTC granted Dina’s petition. The RTC found that Dina was able to comply with all the requirements of Article 26 and rejected the argument of the OSG. It ruled that the divorce decree as stated in the Notification of Divorce and Certificate of Acceptance of Divorce issued between the petitioner and Tanabe are hereby recognized, given credence and ordered enforced. The RTC found that petitioner was able to comply with all the requirements of Article 26(2).

It gave credence and weight to the Notification of Divorce and Acceptance of Divorce as proof of the fact of divorce, the documents being certified as genuine and duly authenticated by the officials from the Philippine consulate in Japan.

Citing Articles 728 and 732 of the Civil Code of Japan, the RTC stated that the divorce between the couple dissolved their marriage and restored them to the state of unmarried persons, which thus capacitated the petitioner to remarry.

In addition, the trial court rejected the argument of the OSG that a Filipino’s divorce by agreement abroad cannot be recognized here, as the RTC held that the evidence of petitioner showed that the divorce was, in fact, not mutual but was forced upon the petitioner by her former husband.

On appeal, the Court of Appeals (CA) reversed the RTC decision, ruling that a divorce by mutual consent of the parties cannot be recognized in this jurisdiction. Was the CA correct?

The Supreme Court (SC) said no. The SC ruled that to follow the OSG interpretation, Dina would sadly remain in limbo – a divorcee who cannot legally remarry. This is the dire situation of most of our kababayans in unsuccessful marriages since, more often than not, their divorces abroad are obtained through mutual agreement.

More appalling here is that those whose divorce end up getting rejected by Philippine courts for such a flimsy reason would still be considered as engaging in extra-marital affairs in the eyes of the Philippine law when they choose to move on with their lives and enter into another relationship like their foreign spouse.

Worse, their children in the subsequent relationship would be considered illegitimate.

Contrary to the posture of the OSG, therefore, the CA correctly held that the divorce obtained by Dina abroad against her foreign husband, whether at their behest or consent, may be recognized as valid in this jurisdiction so long as it complies with the documentary requirements under the Rules of Court.

According to the SC under the second paragraph of Article 26 of the Family Code, Philippine courts may extend the effect of a foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage.

The noble objective of Article 26 is to avoid the absurd situation where a Filipino remains married to his or her alien spouse, whereas the latter is no longer married to the former because he or she had obtained a divorce abroad that is recognized by his or her national law.

The aim was to solve the problem of many Filipinos who, under the Civil Code, are still considered married to their alien spouses even after the latter have already validly divorced them under their (the spouses’) national laws and perhaps have already married again. (This is the ruling in the case of Basa-Egami vs. Bersales etc. et.al. G.R No.249410, July 16, 2022.)

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