My husband and I were already separated when he went to the US in 2000. He has not come back to the Philippines since then. We both have our respective partners now. Can my husband apply for a divorce in the US so we can both remarry?
Under our present laws, divorce is not a means of terminating the validity of marriages entered into between two Filipinos. A different rule, however, shall be observed in case one of the spouses is from a country which allows its citizens to obtain a divorce. Article 26, paragraph 2 of the Family Code of the Philippines provides that when a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter obtained by the alien spouse capacitating him to remarry, the Filipino spouse shall likewise have the capacity to remarry under Philippine law. This rule shall also be applied in instances where at the time of the marriage, both parties were still Filipinos but one of them was subsequently granted foreign citizenship. What is important is that when the divorce decree was obtained, the spouse who applied for it was already a citizen of a country which allows divorce (Republic vs. Orbecido, G.R. No. 154380, October 5, 2005).
Your husband’s capacity to validly obtain a divorce in the United States of America (USA) shall depend on his present citizenship. If he is still a Filipino citizen, he will not be able to obtain a divorce which will terminate the validity of your marriage even if he has been staying in the USA for a very long time. In which case, you or your husband shall need to file a petition for annulment or declaration of nullity of your marriage before you will have the legal capacity to contract another marriage.
On the other hand, if your husband had already lost his Filipino citizenship and has become a naturalized American citizen, he may obtain a divorce in the USA to sever your marriage bonds. The divorce decree which will capacitate him to remarry shall likewise give you the capacity to validly enter into another marriage. However, since our courts do not take judicial notice of foreign laws and judgments, you will still need to file a petition before our courts for the recognition of the judgment of divorce that your husband will obtain. You need to prove in the said petition the divorce as a fact and demonstrate its conformity to the foreign law allowing it (Republic vs. Orbecido, GR No. 154380, October 05, 2005).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that 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 firstname.lastname@example.org