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Wednesday, March 10, 2010

MARRIAGE MATTER: Petition for Recognition of a Foreign Divorce



I received a Request For Legal Assistance Form from a sister A of Marikina City. She is asking the J. Reuben Clark Law Society Legal Aid to assist her in filing a nullity of marriage against her former husband, J. However, the review of the facts of the case finds the application of the relative divorce provision found in the second Paragraph of Section 26, of the Family Code which states:
"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), 3637 and 38. (17a)


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)"


The Facts:

J, a Filipino, married A, who was likewise a Filipino citizen, in Quezon City, on June 5, 1970. They lived together as husband and wife in the Philippines. Sometime in 1989, J left for the United States and never returned since then. In 1992, a notice of filing of divorce commenced by J against Adela was received by A asking her to sign the documents. A did not sign the documents. Sometime in 1993, a notice of judgment purportedly dissolving the marriage, was issued by the Los Angeles County Court of California, USA. The judgment states that "spouses can remarry after August 20, 1993".

On November 2001, A married F. Now, in order to fully serve in the Church and be sealed to F, A sought the Law Society's help in securing a termination of her marriage with J through the known mode of Petition for a Nullity of Marriage based on Article 36 - Psychological Incapacity.

The Jurisprudence:

In GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO vs. REDERICK A. RECIO,[G.R. No. 138322. October 2, 2001], the Supreme Court through Justice J. Panganiban states that "A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence".

So long as it can be verified that Jaime is already a naturalized American citizen in 1992 when he filed for divorce, then the Divorce he obtained in America was valid and can be recognized in Philippine jurisdiction through a Petition for Recognition of a Foreign Divorce Decree under Rule 39, Section 48 of the Rules of Court. This is so because Jaime was no longer a Filipino citizen when the Divorce Decree was issued. This issue was already settled by the Supreme Court in Llorente versus Court of Appeals G.R. No. 124371. November 23, 2000. This also entitles Adela to marry again.

In Republic v. Orbecido III, the Supreme Court spelled out the twin elements for the applicability of the second paragraph of Art. 26, thus:
x x x [W]e state the twin elements for the application of Paragraph 2 of Article 26 as follows:

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.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.[45]

Both elements obtain in the instant case. We hope to find a Certification of Jaime's naturalization from the American Services Division of the US Embassy.