Divorce Philippine-style

When it comes to divorce, who can beat the Philippines as the most hypocritical country on earth? The Philippines remains the only country on this planet which does not have a divorce law. Even Italy where the Roman Catholic pope lives allows divorce. Ay lastima Filipinas, mas papista que el mismo papa. Yet a Filipino citizen can get a divorce by going abroad or having his spouse get one abroad.

The Family Code (signed by Corazon Aquino as Executive Order No. 209 on July 6, 1987 when she ruled the country as a dictator between the time she took the oath of office and the adoption of a new Constitution) does not contain any provision on divorce. But a Filipino citizen can go to a Philippine court to have his foreign divorce or his spouse’s foreign divorce recognized.

This is not a do-it-yourself thing. Even a number of Filipino lawyers do not know how to do it as exemplified by a Filipino who hired a lawyer to do it but he turned out to be “ineffective” (the politically correct word for “incompetent”).  As a result, the case that would have been a slam dunk fell outside the ring.

Here is the story. Two Filipino citizens were married in the Philippines. The wife came to the United States, became a naturalized American citizen, started dating a U.S. citizen, divorced the Filipino husband, and married the U.S. citizen.

What happens to the cuckolded husband in the Philippines? Under the Cory Family Code, he is considered still married to his wife even though they are divorced. Pobrecito!

Suppose the husband finds another woman and wants to marry her?

The marriage license clerk will refuse to issue one because he does not have proof of the valid termination of his marriage—like a death certificate of his spouse or decree of annulment of his marriage.

A Filipino husband hired a lawyer who filed a petition for authority to remarry invoking Article 26, Paragraph 2 of the Cory Family Code providing:

“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.”

The Philippine Supreme Court observed that on its face this provision was not applicable to this case because it applies only to a situation where at the time of the first marriage the parties are a Filipino citizen and a foreigner, but in this case they were both Filipino citizens.

However, taking into consideration the legislative intent and applying the rule of reason, this provision should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.

However, the court said that there was insufficient evidence to support the petition because the petitioner’s lawyer did not present evidence that the petitioner’s former wife had naturalized as an American citizen, that she had obtained a divorce decree in conformity with a foreign law, and did not submit a copy of the foreign law. Republic v. Orbecido, G.R. No. 154380, Oct. 5, 2005.

We had lunch with Justice Quisumbing, a fraternity brother (Alpha Phi Beta), shortly after he wrote this opinion and commended him for his sagacity and practicality. However, we suggested that the Cory Family Code provision should be treated as self-executing in that there should be no need for a Filipino divorcee to incur expenses to file a petition for recognition of a foreign divorce.

Filipino legislators should stop this shameful hypocrisy and morbid fear of the Roman Catholic Church. Enact a divorce law. Filipino Catholics will support you.  I guarantee it. Pope Francis will not excommunicate you. He will simply say, as he said of gays, “Who am I to judge?”

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1^st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)