Foreign Marriages, Divorces, A26 Family Code
1. Rules on foreign marriages
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) x x x
a. General rule: Foreign marriages are valid
1) All marriages celebrated outside the Philippines are valid here so long as they were valid in the foreign country where the solemnity was made.
b. Exceptions: Prohibited marriages
1) Even if valid in foreign countries, the following marriages are not valid in the Philippines as they are prohibited:
(a) Those contracted by any party below eighteen years of age even with the consent of parents or guardians (FAMILY CODE, Article 35 [1];
(b) Those bigamous or polygamous marriages not failing under Article 41 (Ibid., Article 35 [4]);
(c) Those contracted through mistake of one contracting party as to the identity of the other (Ibid., Article 35 [5]);
(d) Those subsequent marriages that are void under Article 53 (Ibid., Article 35 [6]);
(e) Those where either/both parties are psychologically incapacitated at the time of marriage (Ibid., Article 36);
(f) Those involving incestuous marriages (Ibid., Article 37);
(g) Those considered void due to public policy (Ibid., Article 38)
1) Either/both are under 18 years old
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 x x x
1) A foreign marriage is void if either/both of the party, whether the Filipino or the foreigner, is under 18 years of age.
2) Bigamous or polygamous marriages not failing under Article 41
Art. 35. The following marriages shall be void from the beginning:
x x x
(4) Those bigamous or polygamous marriages not failing under Article 41 x x x
Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a)
1) A foreign marriage is void if they are bigamous or polygamous, and they do not fall under Article 41 of the Family Code.
3) Mistake as to the identity of the other
Art. 35. The following marriages shall be void from the beginning:
x x x
(5) Those contracted through mistake of one contracting party as to the identity of the other x x x
4) Subsequent marriages void under Article 53
Art. 35. The following marriages shall be void from the beginning:
x x x
(6) Those subsequent marriages that are void under Article 53.
Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void.
5) Psychological incapacity
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)
6) Incestuous marriages
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)
7) Void due to public policy
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)
2. Rules on foreign-divorce decrees.
Art. 26. x x x
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)
a. Divorce under Philippine Law
1) At the outset, it bears stressing that Philippine law does not provide for absolute divorce; hence, our courts cannot grant it. However, Article 26 of the Family Code – which addresses foreign marriages or mixed marriages involving a Filipino and a foreigner – allows a Filipino spouse to contract a subsequent marriage in case the divorce is validly obtained abroad by an alien spouse capacitating him or her to remarry. (Medina v. Koike, G.R. No. 215723, 27 July 2016, Per Perlas-Bernabe, J.)
2) Under the above-highlighted paragraph, the law confers jurisdiction on Philippine courts to extend the effect of a foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage. (Medina v. Koike [2016], supra.)
3) Thus, in Garcia v. Recio (2001), it was pointed out that in order for a divorce obtained abroad by the alien spouse to be recognized in our jurisdiction, it must be shown that the divorce decree is valid according to the national law of the foreigner. Both the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven.30 Since our courts do not take judicial notice of foreign laws and judgment, our law on evidence requires that both the divorce decree and the national law of the alien must be alleged and proven like any other fact. (Medina v. Koike [2016], supra.)
b. Legislative intent
1) [T]he 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. (Corpuz v. Sto. Tomas, G.R. No. 186571, 11 August 2010, Per Brion, J.)
2) [T]he purpose of Paragraph 2 of Article 26 is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after a foreign divorce decree that is effective in the country where it was rendered, is no longer married to the Filipino spouse. The provision is a corrective measure to address an anomaly where the Filipino spouse is tied to the marriage while the foreign spouse is free to marry under the laws of his or her country. Whether the Filipino spouse initiated the foreign divorce proceeding or not, a favorable decree dissolving the marriage bond and capacitating his or her alien spouse to remarry will have the same result: the Filipino spouse will effectively be without a husband or wife. A Filipino who initiated a foreign divorce proceeding is in the same place and in “like circumstance as a Filipino who is at the receiving end of an alien initiated proceeding. Therefore, the subject provision should not make a distinction. In both instance, it is extended as a means to recognize the residual effect of the foreign divorce decree on Filipinos whose marital ties to their alien spouses are severed by operation of the latter’s national law. (Republic v. Manalo, En Banc, G.R. No. 221029, 24 April 2018, Per Peralta, J.)
1) Benefits Filipino Spouse only
1) Given the rationale and intent behind the enactment, and the purpose of the second paragraph of Article 26 of the Family Code, [the Supreme Court affirms the RTCs decision] 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. (Corpuz v. Sto. Tomas [2010], supra.)
2) [T]he second paragraph of Article 26 of the Family Code bestows no rights in favor of aliens. (Corpuz v. Sto. Tomas [2010], supra.)
c. Jurisdiction
1) This provision confers jurisdiction on Philippine courts to extend the effect of a foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage. It authorizes our courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow divorce. Philippine courts cannot try the case on the merits because it is tantamount to trying a divorce case. Under the principles of comity, our jurisdiction recognizes a valid divorce obtained by a spouse of foreign nationality, but the legal effects thereof, e.g., on custody, care and support of the children or property relations of the spouses, must still be determined by our courts. The rationale for this rule is to avoid the absurd situation of a Filipino as still being married to his or her alien spouse, although the latter is no longer married to the former because he or she had obtained a divorce abroad that is recognized by his or her national law. (Morisono v. Morisono [2018], supra.)
d. Who can file
1) Article 26(2) applies to mixed marriages where the divorce decree is:
(a) Obtained by the foreign spouse;
(b) Obtained jointly by the Filipino and foreign spouse; and
(c) Obtained solely by the Filipino spouse. (Abel v. Rule, G.R. No. 234457, May 12, 2021, citing Galapon v. Republic, G.R. No. 243722, January 22, 2020; Octaviano v. Ruthe, G.R. No. 218009, 26 June 2023)
2) In the landmark case of Manalo, the Court emphatically declared that Article 26(2) only requires that there be a divorce validly obtained abroad capacitating the foreigner spouse to remarry, without regard as to who initiated it. (Republic v. Cuevas, En Banc, G.R. No. 249238, 27 February 2024, Per Dimaampao, J.)
1) Obtained by foreign spouse
a) Ex-Filipinos
Article 26 (2) applies not only to cases where a foreigner was the one who procured a divorce of his/her marriage to a Filipino spouse, but also to instances where, at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them acquired foreign citizenship by naturalization, initiated a divorce proceeding, and obtained a favorable decree. (Morisono v. Morisono [2018], supra.)
2) Obtained jointly by Filipino and foreign spouse
1) [T]he fact that divorce by mutual agreement is allowed in other jurisdictions was acknowledged by this Court in subsequent cases involving similar facts. (Republic v. Cuevas [2024], supra.)
2) In the case of Racho v. Seiichi Tanaka ( ), the Court squarely dealt with a divorce by mutual agreement involving a Filipino and a Japanese national. In rejecting the OSG’s argument that Article 26(2) applies only to ‘”judicial” divorce decrees , the Court held that (Republic v. Cuevas [2024], supra.):
Racho v. Seiichi Tanaka, G.R. No. 199515, 25 June 2018, Per Leonen, J.:
• The national law of Japan does not prohibit the Filipino spouse from initiating or participating in the divorce proceedings. It would be inherently unjust for a Filipino woman to be prohibited by her own national laws from something that a foreign law may allow. Parenthetically, the prohibition on Filipinos from participating in divorce proceedings will not be protecting our own nationals.
• The Solicitor General’s narrow interpretation of Article 26 disregards any agency on the part of the Filipino spouse. It presumes that the Filipino spouse is incapable of agreeing to the dissolution of the marital bond. It perpetuates the notion that all divorce proceedings are protracted litigations fraught with bitterness and drama. Some marriages can end amicably, without the parties harboring any ill will against each other. The parties could forgo costly court proceedings and opt for, if the national law of the foreign spouse allows it, a more convenient out-of-court divorce process. This ensures amity between the former spouses, a friendly atmosphere for the children and extended families, and less financial burden for the family.
3) In Galapon v. Republic, a Filipino and a South Korean secured a divorce decree by mutual agreement in South Korea. The trial court granted the petition for judicial recognition of the foreign divorce but the appellate court reversed such ruling. Upon elevation of the case to this Court, it reinstated the trial court’s ruling and held that the Court of Appeals (CA) erred in denying the recognition of the divorce decree obtained by mutual agreement. In resolving the controversy, the Court centered on the interpretation of Article 26(2) as applied to divorce decrees obtained jointly by the foreign spouse and a Filipino citizen. (Republic v. Cuevas [2024], supra.)
4) In the case of In Re: Ordaneza v. Republic, the Court likewise held that the divorce by agreement between a Filipino and a Japanese national “severed the marital relationship between the spouses and the Japanese spouse is capacitated to remarry.” Hence, the “foreign divorce decree by agreement” was judicially recognized. (Republic v. Cuevas [2024], supra.)
5) The case of Republic v. Bayog-Saito also involved a Filipino and a Japanese who obtained a divorce in Japan via a Notice of Divorce. When the divorce notification was accepted, the divorce was recorded in the family registry in Japan. Thereafter, the vice-consul of the Japanese Embassy in the Philippines issued a Divorce Decree which was then authenticated by the DFA. When the Filipino spouse filed a petition for judicial recognition of foreign divorce decree, the trial court granted it. The OSG interposed an appeal to the CA asserting that absolute divorce is against public policy and the Filipino spouse cannot jointly seek a divorce decree with her husband even
if such is allowed in the latter’s country. The CA affirmed the RTC ruling. On appeal, the Court also affirmed the ruling of the lower courts. (Republic v. Cuevas [2024], supra.)
3) Obtained by Filipino spouse
1) [I[n the recent case of Republic v. Manalo (Manalo), the Court En Banc extended the application of Article 26 (2) of the Family Code to further cover mixed marriages where it was the Filipino citizen who divorced his/her foreign spouse. (Morisono v. Morisono [2018], supra.)
2) In addition, the fact that a validly obtained foreign divorce initiated by the Filipino spouse can be recognized and given legal effects in the Philippines is implied from Our rulings in Fujiki v. Marinay, et al. (2013) and Medina v. Koike (2016). (Republic v. Manalo, En Banc [2018], supra.)
3) In Fujiki, the Filipino wife, with the help of her first husband, who is a Japanese national, was able to obtain a judgment from Japan’s family court, which declared the marriage between her and her second husband, who is a Japanese national, void on the ground of bigamy. In resolving the issue of whether a husband or wife of a prior marriage can file a petition to recognize a foreign judgment nullifying the subsequent marriage between his or her spouse and a foreign citizen on the ground of bigamy, We ruled:
Fujiki v. Marinay, G.R. No. 196049, 26 June 2013, Per Carpio, J.:
• Fujiki has the personality to file a petition to recognize the Japanese Family Court judgment nullifying the marriage between Marinay and Maekara on the ground of bigamy because the judgment concerns his civil status as married to Marinay. For the same reason he has the personality to file a petition under Rule 108 to cancel the entry of marriage between Marinay and Maekara in the civil registry on the basis of the decree of the Japanese Family Court.
• There is no doubt that the prior spouse has a personal and material interest in maintaining the integrity of the marriage he contracted and the property relations arising from it. There is also no doubt that he is interested in the cancellation of an entry of a bigamous marriage in the civil registry, which compromises the public record of his marriage. The interest derives from the substantive right of the spouse not only to preserve (or dissolve, in limited instances) his most intimate human relation, but also to protect his property interests that arise by operation of law the moment he contracts marriage. These property interests in marriage include the right to be supported “in keeping with the financial capacity of the family” and preserving the property regime of the marriage.
• Property rights are already substantive rights protected by the Constitution, but a spouse’s right in a marriage extends further to relational rights recognized under Title III (“Rights and Obligations between Husband and Wife”) of the Family Code. x x x
4) [P]ursuant to Manalo (2018), foreign divorce decrees obtained to nullify marriages between a Filipino and an alien citizen may already be recognized in this jurisdiction, regardless of who between the spouses initiated the divorce; provided, of course, that the party petitioning for the recognition of such foreign divorce decree – presumably the Filipino citizen – must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. (Morisono v. Morisono [2018], supra.)
5) In a foreign divorce between a Filipino and an alien, it is immaterial which spouse initiated the divorce proceedings abroad in light of the fundamental equality of women and men before the law. Once a divorce decree is issued by a competent foreign court, the alien spouse is deemed to
have obtained the divorce as required in Article 26(2) of the Family Code. (Abel v. Rule, G.R. No. 234457, 12 May 2021, Per Leonen, J.)
e. Elements
1) [T]he following elements must concur in order for Article 26 (2) to apply, namely:
(a) that there is a valid marriage celebrated between a Filipino citizen and a foreigner; and
(b) that a valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. (Morisono v. Morisono [2018], supra.)
f. Procedural
1) Judicial recognition of a foreign divorce requires that the national law of the foreign spouse and the divorce decree be pleaded and proved as a fact before the Regional Trial Court. The Filipino spouse may be granted the capacity to remarry once our courts find that the foreign divorce was validly obtained by the foreign spouse according to his or her national law, and that the foreign spouse’s national law considers the dissolution of the marital relationship to be absolute. (Racho v. Tanaka, G.R. No. 199515, 25 June 2018, Per Leonen, J.)
Juego-Sakai v. Republic, G.R. No. 224015, 23 July 2018, Per Peralta, J.:
• We cannot yet grant petitioner’s Petition for Judicial Recognition of Foreign Judgment for she has yet to comply with certain guidelines before our courts may recognize the subject divorce decree and the effects thereof. Time and again, the Court has held that the starting point in any recognition of a foreign divorce judgment is the acknowledgment that our courts do not take judicial notice of foreign judgments and laws. This means that the foreign judgment and its authenticity must be proven as facts under our rules on evidence, together with the alien’s applicable national law to show the effect of the judgment on the alien himself or herself. Since both the foreign divorce decree and the national law of the alien, recognizing his or her capacity to obtain a divorce, purport to be official acts of a sovereign authority, Section 24 of Rule 132 of the Rules of Court applies. Thus, what is required is proof, either by (1) official publications or (2) copies attested by the officer having legal custody of the documents. If the copies of official records are not kept in the Philippines, these must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.
• In the instant case, the Office of the Solicitor General does not dispute the existence of the divorce decree, rendering the same admissible. What remains to be proven, therefore, is the pertinent Japanese Law on divorce considering that Japanese laws on persons and family relations are not among those matters that Filipino judges are supposed to know by reason of their judicial function.
• [The case was remanded to the trial court for the reception of evidence on Japanese Divorce Law.]
g. Effects
1) Dissolution of Marriage
1) 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. (Corpuz v. Sto. Tomas [2010], supra.)
2) Child custody
1) Both Dacasin v. Dacasin (2010) and Van Dorn (1985) already recognized a foreign divorce decree that was initiated and obtained by the Filipino spouse and extended its legal effects on the issues of child custody and property relation, respectively. (Republic v. Manalo, En Banc, G.R. No. 221029, 24 April 2018, Per Peralta, J.)
2) In Dacasin, post-divorce, the former spouses executed an Agreement for the joint custody of their minor daughter. Later on, the husband who is a US citizen, sued his Filipino wife enforce the Agreement, alleging that it was only the latter who exercised sole custody of their child. The trial court dismissed the action for lack of jurisdiction, on the ground, among others, that the divorce decree is binding following the “nationality rule” prevailing in this jurisdiction. The husband moved to reconsider, arguing that the divorce decree obtained by his former wife is void, but it was denied. In ruling that the trial court has jurisdiction to entertain the suit bu not to enforce the Agreement, which is void, this Court said (Republic v. Manalo, En Banc [2018], supra.):
Dacasin v. Dacasin, G.R. No. 168785, 05 February 2010, Per Carpio, J.:
• Nor can petitioner rely on the divorce decree’s alleged invalidity – not because the Illinois court lacked jurisdiction or that the divorced decree violated Illinois law, but because the divorce was obtained by his Filipino spouse – to support the Agreement’s enforceability . The argument that foreigners in this jurisdiction are not bound by foreign divorce decrees is hardly novel. Van Dron v. Romillo settled the matter by holding that an alien spouse of a Filipino is bound by a divorce decree obtained abroad. There, we dismissed the alien divorcee’s Philippine suit for accounting of alleged post-divorce conjugal property and rejected his submission that the foreign divorce (obtained by the Filipino spouse) is not valid in this jurisdiction x x x.30
2) Property Relations
1) Van Dorn was decided before the Family Code took into effect. There, a complaint was filed by the ex-husband , who is a US citizen, against his Filipino wife to render an accounting of a business that was alleged to be a conjugal property and to be declared with right to manage the same. Van Dorn moved to dismiss the case on the ground that the cause of action was barred by previous judgment in the divorce proceedings that she initiated, but the trial court denied the motion. On his part, her ex-husband averred that the divorce decree issued by the Nevada court could not prevail over the prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a foreign court cannot, especially if the same is contrary to public policy, divest Philippine courts of jurisdiction to entertain matters within its jurisdiction . In dismissing the case filed by the alien spouse, the Court discussed the effect of the foreign divorce on the parties and their conjugal property in the Philippines. Thus (Republic v. Manalo, En Banc [2018], supra.):
Van Dorn v. Romillo, G.R. No. L-68470, 08 October, 1985, Per Melencio-Herrera, J.:
• There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy.
• Is it true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy and morality. However, aliens may obtain divorce abroad, which may be recognized in the Philippines, provided they are valid according to their national law. In this case, the divorce in Nevada released private respondent from the marriage from standards of American law, under which divorce dissolves the marriage. x x x
x x x
• Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal assets. As he is estopped by his own representation before said court from asserting his right over the alleged conjugal property.
• To maintain, as private respondent does, that under our laws, petitioner has to be considered still married to private respondent and still subject to a wife’s obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. 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.
2) Right to Remarry
1) When this Court recognized a foreign divorce decree that was initiated and obtained by the Filipino spouse and extended its legal effects on the issues of child custody and property relation, it should not stop short in likewise acknowledging that one of the usual and necessary consequences of absolute divorce is the right to remarry. Indeed, there is no longer a mutual obligation to live together and observe fidelity. When the marriage tie is severed and ceased to exist, the civil status and the domestic relation of the former spouses change as both of them are freed from the marital bond. (Republic v. Manalo, En Banc [2018], supra.)
2) [A]n 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. (Corpuz v. Sto. Tomas [2010], supra.)
h. Miscellaneous
1) Foreign divorce decree obtained by Filipino spouses
1) Consistent with the nationality rule, a marriage between two Filipinos cannot be dissolved by absolute divorce even if the decree is obtained abroad. The rationale for this policy is that under the prevailing legal framework in the Philippines, absolute divorce is “considered contrary to our concept of public policy and morality.” (Republic v. Cuevas, En Banc [2024], supra.)
