FAMILY CODE AMENDMENTS:ARTICLE 26 ON FOREIGN DIVORCE
(SB No. 1052 Committee Report No. 5)
By: SEN. PIA S. CAYETANO
Mr. President, I rise to sponsor Senate Bill No. 1052 under Committee Report No. 5 entitled “AN ACT AMENDING ARTICLE 26 OF EXECUTIVE ORDER NO. 209, OTHERWISE KNOWN AS THE FAMILY CODE OF THE PHILIPPINES”.
Mr. President, it has been two decades since the Family Code of the Philippines took effect on August 3, 1988. Throughout the decades, there have been significant developments in Philippine legislation and jurisprudence. As such, your Committee on Youth, Women and Family Relations consulted with family law experts and conducted a hearing to review and fill in the gaps or inadequacies of certain provisions in the Family Code as a result of said developments.
Mr. President, there are a number of amendments that need to be presented on the floor. I will present these amendments individually.
The proposed amendments subject of this Committee Report is on Article 26 which allows a Filipino to contract a subsequent marriage in cases where divorce is validly obtained abroad by his or her alien spouse.
Discriminatory to Filipino spouses
Paragraph 2 of Article 26 of the Family Code states: “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.”
Based on this Article, if the marriage of a Filipino citizen and a foreigner results in divorce which allows the alien spouse to remarry, the Filipino spouse shall be able to also remarry.[i] Records show that the intention of the framers of this law was to allow the Filipino spouse to remarry once the foreign spouse had obtained a foreign divorce.
The law, however, as presently worded, has created much confusion because some judges require, in addition to the divorce decree obtained abroad, a statement in the divorce decree or a separate certification that the foreign spouse is capacitated to remarry, if presented.
This has proven difficult for many Filipinos because divorce decrees are worded differently all over the world. Some provide that the marriage is dissolved, others state that the divorce is granted. Many, do not include an explicit statement that the parties are allowed to remarry because this is already implicit in any decree in divorce. Since the marriage ties are dissolved, it necessarily follows that the parties are free to remarry.
It is interesting to note that during the time the Family Code was drafted, many Filipinos with alien spouses would go to the Dominican Republic to obtain divorce decrees. The dispositive portion of their divorce decree states that the spouses are divorced and that they are now capacitated to remarry. Article 26 followed the wording style of the divorce decrees issued by the Dominican Republic.
Guide for judges in interpreting foreign divorce decrees
Given all of the foregoing, a reasonable reading of the law should be that a Filipino spouse who has been legally divorced by his or her alien spouse in a foreign country where divorce is allowed, should be allowed to remarry regardless of whether or not the alien spouse is capacitated to marry according to the laws of his or her country of origin.
To put Filipino and alien spouses on equal footing and prevent unintentional discrimination against our fellow countrymen Mr. President, it is necessary that Article 26 should be amended by removing the alien spouse’s capacity to remarry after the divorce as a requisite for the Filipino spouse’s ability to remarry.
Thus, paragraph 2 of Article 26 should simply read as follows:
“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, the Filipino spouse shall have capacity to remarry under the law.”
Thank you, Mr. President.
[i] 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), 36, 37 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.
Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227)
Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood. (81a)
Art. 38. The following marriages shall be void from the beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse. (82)