Article 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)
VALIDATION PROVISION. The Family Code expressly provides
that, except for marriages prohibited under Articles 35 (1), (4), (5) and (6),
36, 37 and 38, marriages solemnized abroad and which are valid there as such
are recognized as valid here. As a general rule, therefore, the Philippines
follows the lex loci celebrationis rule.
Lex
loci celebrationis - in Latin, is a legal term for
a legal principle, of whatever origins, now found in the English Common law,
meaning as roughly translated "the
law of the land (Lex loci) where the marriage was celebrated",
independent of the laws of marriage of the Countries of legal nationality or
legal citizenship of both parties, or of the laws of the Countries in which the
parties as persons are domiciled for the purpose of Family law, or resident, of
whatever definition—and the assumption under the Common law that such a
marriage, when lawfully and validly celebrated under the law of the land (Lex
loci) in which the marriage was celebrated, unless Statute (or Legislation) or
the Common law explicitly provides when certain otherwise lawful and valid
marriages must be adjudged otherwise, is and must be presumed and considered
also lawful and valid. –Wikipedia-
A MATTER OF
INTERNATIONAL COMITY.
The legal effect which may be given by one state to the marriage laws of
another state is merely because of comity or because of public policy and
justice demand the recognition of such laws and no state is bound by comity to
give effect in its courts to laws which are repugnant to its own laws and
policy. This is because every sovereign state is the conservator of its own
morals and good order of society. Each sovereign state has the right to declare
what marriages it will or will not recognize, regardless of whether the
participants are domiciled within or without its border and notwithstanding
such marriages’ validity under the laws of a foreignstate where such marriages
were contracted.
EXCEPTIONS.
A.
Below 18 years of age. Under
the Family Code, if either or both contracting parties are Filipinos and they
are below 18 years of age, their marriage solemnized abroad will not be
recognized in the Philippines as valid even if the marriage is valid in the
place where it has been solemnized. Our law clearly adheres to the rule that
the marrying capacity of the contracting parties is governed by the national
law of the party, which is the Philippine law.
However, if one is a Filipino and
another an alien whose national laws capacitate persons below 18 years of age
(for instance 16 years of age) to marry, a foreigner can get married in the
Philippines even if he is below 18 years of age if he obtains a certificate of
legal capacity from his diplomatic mission in the Philippines stating that, in
his country persons even under 18 of age can marry.
B.
Bigamous and Polygamous marriages. Though valid abroad, shall likewise not
be recognized in the Philippines. A bigamous
marriage is committed by a person who contracts a second marriage before the
former marriage has been legally dissolved, or before the absent spouse has
been declared presumptively dead by means of a judgment rendered in the proper
proceeding. Polygamy is the act or
state of a person who, knowing that he has two or more wives, or that she has
two or more husbands, marries another.
C.
Marriage abroad where there is mistake of identity of the other contracting
party is also not recognized in the Philippines. This true even if the one
who committed the mistake were the foreigner – spouse.
D.
A marriage by a Filipino to a person who is psychologically incapacitated to
perform the essential marital obligations abroad, even if valid in the foreign
country where it has been solemnized, shall not be considered valid here. If
the Filipino is himself the person who is psychologically incapacitated, such
marriage is likewise considered void in the Philippines.
E.
Marriage between ascendants and descendants of any degree as well as
between brothers and sisters, whether of the full or half blood are likewise
not considered as valid here even if such marriages were allowed in the country
where they were celebrated. These are void as they are incestuous.
F.
Marriage declared void under Philippine laws for being against public policy will
not be considered here even if such marriage are not against public policy or
not illegal in the country where said marriage were solemnized.
ARE COMMON – LAW
MARRIAGE OBTAINED ABROAD BY FILIPINOS VALID IN THE PHILIPPINES? Article 26 of the family code
apparently does not specifically included common – law marriages contracted by
Filipinos abroad as one of the exceptions to the general rule that marriages
solemnized abroad is generally valid here in the Philippines if valid where
they were solemnized.
However, common – law marriage
obtained by Filipinos abroad should not be recognized here. Article 26 clearly
uses the word “solemnized” and not “contracted” or “performed”.
Solemnization means the performance
of the formal act or ceremony by which a man and a woman marriage and assume
the status of husband and wife.
Solemnization refers to or implies a
ceremonial marriage and not one which was contracted or merely performed by way
of a mere agreement of the parties, such as in case of a common – law marriage.
Indeed, the formality, namely, the solemnization, inherent in a ceremonial
marriage is what primarily distinguishes it from a common law marriage.
SAME SEX MARRIAGE OF
FILIPINOS ABROAD INVALID. Public
policy in the Philippines mandates that only a man and a woman can marry each
other. Article l of the Family Code states that marriage is a special contract
of permanent union between a man and a woman. It also states that the
contracting parties must be a male and a female. The Family Code is replete
with terms and articles clearly indicating that marriage is a heterosexual
relationship. Hence, words like “husband and wife”, “father and mother” and
“man and woman” are used. Same sex marriage, therefore, is not allowed in the
Philippines. If a Filipino contracts a marriage abroad with a person of the
same sex, whether such person is another Filipino or a foreigner, such marriage
shall not be recognized here.
PROOF OF FOREIGN
MARRIAGE. To
establish a valid marriage pursuant to the comity provision of Article 26, it
is necessary to prove the foreign law as a question of fact and then to prove
the celebration of marriage pursuant thereto by convincing evidence. The
presumption arises on proof of a marriage in another jurisdiction, that such
marriage was performed in accordance with the law of that jurisdiction. If such
law of the other state is not pleaded nor proved and for the purpose of
determining the validity of the marriage in the said state, the laws of such
state, in the absence of proof to the contrary, will be presumed by the court
to be the same as the laws of its own state.
ABSOLUTE DIVORSE. Generally, absolute divorce between
two citizens of the Philippines is not recognized in the Philippines. Hence, if
the contracting parties who are citizens of the Philippines get validly married
in the Philippines or anywhere in the world, their status, in so far as
Philippines is concerned, as married persons follow them anywhere in the world.
They can only sever their relationship as husband and wife if anyone of them
has a cause of action to declare the marriage void or to annul the marriage. Divorce
initiated by a Filipino is against public policy.
States recognize divorces of aliens
obtained in other states as a matter of international comity. Aliens may obtain
divorce abroad, which may be recognized in the Philippines, provided, they are
valid according to their national law. the foreign marital law and the divorce
decree must be duly proven and cannot be taken judicial notice of. Our civil
law adheres to the nationality rule on the matter of status or legal capacity
of a person. This means that as a person shall determine such status or legal
capacity.
If the marriage is between two
Filipinos and one of them obtains an absolute divorce abroad after he has been
naturalized as a citizen of a foreign country where absolute divorce is
recognized, such naturalized foreigner, who was formerly a Filipino, can come
back to the Philippines and validly remarry. The nationality rule shall
likewise apply to him. Article 26 will not apply but the law of the country
where he was naturalized.
PROVING
FOREIGN DIVORCE. Will be discussed in the case of Bayot v. Court of Appeals, G. R. no.
155635/163979, November 7, 2008, 570 SCRA 472.
FOREIGNER FILING PETITION FOR
RECOGNITION OF DIVORCE. The alien spouse can
claim no right under the second paragraph of Article 26 of the Family Code as
the substantive right it establishes is in favor of the Filipino spouse
The
Family Code recognizes only two types of defective marriages – void and
voidable marriages. In both cases, the basis for the judicial declaration of
absolute nullity or annulment of the marriage exists before or at the time of
the marriage. Divorce, on the other hand, contemplates the dissolution of the
lawful union for cause arising after the marriage. Our family laws do
not recognize absolute divorce between Filipino citizens.
Recognizing
the reality that divorce is a possibility in marriages between a Filipino and
an alien, President Corazon C. Aquino, in the exercise of her legislative
powers under the Freedom Constitution, enacted Executive Order No. (EO) 227,
amending Article 26 of the Family Code to its present wording.
Under
our laws, the Filipino spouse has to be considered still married to the alien
spouse and still subject to a wife's obligations cannot be just. The Filipino
spouse should not be obliged to live together with, observe respect and fidelity,
and render support to the alien spouse. The latter should not continue to be
one of her heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to be
served.
The
provision was included in the law "to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after obtaining a
divorce, is no longer married to the Filipino spouse." The legislative
intent is for the benefit of the Filipino spouse, by clarifying his or her
marital status, settling the doubts created by the divorce decree. Essentially,
the second paragraph of Article 26 of the Family Code provided the Filipino
spouse a substantive right to have his or her marriage to the alien spouse
considered as dissolved, capacitating him or her to remarry. Without the second
paragraph of Article 26 of the Family Code, the judicial recognition of the
foreign decree of divorce, whether in a proceeding instituted precisely for
that purpose or as a related issue in another proceeding, would be of no
significance to the Filipino spouse since our laws do not recognize divorce as
a mode of severing the marital bond; Article
17 of the Civil Code provides that the policy against absolute divorces cannot
be subverted by judgments promulgated in a foreign country. The inclusion of
the second paragraph in Article 26 of the Family Code provides the direct
exception to this rule and serves as basis for recognizing the dissolution of
the marriage between the Filipino spouse and his or her alien spouse.
Additionally,
an action based on the second paragraph of Article 26 of the Family Code is not
limited to the recognition of the foreign divorce decree. If the court finds
that the decree capacitated the alien spouse to remarry, the courts can declare
that the Filipino spouse is likewise capacitated to contract another marriage.
No court in this jurisdiction, however, can make a similar declaration for the alien
spouse (other than that already established by the decree), whose status and
legal capacity are generally governed by his national law.
The
purpose of the second paragraph of Article 26 of the Family Code, the RTC was
correct in limiting the applicability of the provision for the benefit of the
Filipino spouse. In other words, only the Filipino spouse can invoke the second
paragraph of Article 26 of the Family Code; the alien spouse can claim no right
under this provision.
The
second paragraph of Article 26 of the Family Code bestows no rights in favor of
aliens –The foreign divorce decree itself, after its authenticity and
conformity with the alien’s national law have been duly proven according to our
rules of evidence.
VOID AND VOIDABLE MARRIAGES. In the
event that a Filipino contracts a foreign marriage which is null and void under
the laws of the state where it has been solemnized, such marriage shall
likewise be null and void in the Philippines. This is so because the first
paragraph of Article 26 clearly provides that foreign marriage, to be
considered valid in the Philippines, must be valid in accordance with the laws
in force in the country where they are solemnized. Accordingly, if the marriage
is not valid in the country where it has been solemnized, it is likewise not
valid in the Philippines.
