Recognition by local law of a divorce obtained abroad by a foreigner

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Persida Acosta

Dear PAO,
My husband (a Frenchman) and I got married twice, one in a church wedding and another in a civil wedding.
We got married in church first on June 23, 2006. By August of the same year, we found out that his legal capacity to contract marriage was fake as we hired a third party to process it for us. The legal capacity to contract marriage was obtained from the French Embassy, and furnished the Philippines by August. We had our civil marriage by September 6, 2006 in a different city.

Recently, I went to the Philippine Statistics Authority, and to my surprise, our church wedding was registered as well as the civil wedding.

Our September 6, 2006 marriage was declared as divorced under the French law on June 30, 2016. Would that mean I am still married to my husband by our June 23, 2006 wedding?
Sincerely,
Ms. M

Dear Ms. M,
In order for a marriage to be valid, the parties contracting the marriage shall comply with certain requirements under our Family Code, which provides;
“Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and


(2) Consent freely given in the presence of the solemnizing officer.
Xxx Xxx Xxx

“Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2).”|

In your case, one of the formal requisites of your marriage is absent, which is the legal capacity of your husband as it turned out to be fake. Your marriage to your husband on June 23, 2006 is thus void. Article 40 of the Family Code, however, expressly provides that there must be a judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage and such absolute nullity can be based only on a final judgment. For purposes other than remarriage, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime or a criminal case for that matter, no judicial action is necessary to declare a marriage an absolute nullity. The court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case (Nial vs Badayog, G.R. No. 133778, March 14, 2000; ponente, former Associate Justice Consuelo Ynares-Santiago).

Hence, for purposes of contracting another marriage, you need to file a petition in court to declare your first marriage void. For purposes other than remarriage, however, you need not seek a final judgment declaring the previous marriage void. Other evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such previous marriage void (Domingo vs. Court of Appeals, G.R. No. 104818, September 17, 1993; ponente, former Associate Justice Flerida Ruth Romero).

As to your second marriage on September 6, 2006, Article 26 of the Family Code provides that 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. Yet as enunciated in Garcia vs. Recio (G.R. No. 138322 October 2, 2001; ponente, former Supreme Court Justice Artemio Panganiban), 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. The divorce decree and the governing personal law of the alien spouse who obtained the divorce, however, 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. Hence, to be recognized in the Philippines, a petition must be filed in this jurisdiction to recognize the divorce decree of your marriage obtained under the French Law.

We find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated. We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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