Article 26 of the Family Code of the Phlippines

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.