divorce in the Philippines

[ANALYSIS] Getting a foreign divorce recognized in the Philippines

Francesco Britanico

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[ANALYSIS] Getting a foreign divorce recognized in the Philippines

Illustration by Nico Villarete

'Working in a law office, I’ve handled about a hundred cases on Recognition of Foreign Divorce. These divorces come from wherever in the world Filipinos happen to be.'

Every day, I get dozens of inquiries on ending a marriage. Some ask me about annulment. Some think legal separation is better. And still others ask me about a case called Recognition of Foreign Divorce. 

The Philippines does not have divorce. But, in certain cases, the Philippines recognizes a divorce obtained abroad. 

Can your foreign divorce be recognized in the Philippines?

So, should you now go off to the US to end your Filipino marriage?

Well, not exactly.

A foreign divorce can only be recognized if one of the spouses was a foreigner at the time of the divorce. In all other situations, a foreign divorce cannot be recognized in the Philippines. 

So, what happens when a Filipino divorces another Filipino abroad? Let me give you an example.

Thirty-five years ago, two Filipinos divorced in California. The divorce was validly obtained there. When the Filipina passed away, however, her Filipino husband remained a compulsory heir to her Philippine properties because they were still married under Philippine law. The foreign divorce was not recognized in the Philippines. 

“Well,” you might say, “what about when a dual citizen divorces a Filipino?”

A dual citizen is a Filipino. No matter where he is, Philippine family law remains binding upon him, which means foreign divorce would not be recognized here. 

There is only one situation that is eligible for Recognition of Foreign Divorce. That is when at least one of the spouses is a non-Filipino. There is no other situation that qualifies.

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What is a Recognition of Foreign Divorce case like?

Working in a law office, I’ve handled about a hundred cases on Recognition of Foreign Divorce. These divorces come from wherever in the world Filipinos happen to be. 

Many were from the United States, of course. I’ve worked on cases from California, Illinois, Texas, New York, Mississippi, Hawaii, and Guam. There were also divorces in Canada, the United Kingdom, Norway, Austria, Hungary, Australia, New Zealand, Japan, Korea, Taiwan, Hong Kong, and mainland China.

I know what a Recognition of Foreign Divorce case is and what it isn’t. And I have gently comforted new clients who turned to us after having been scammed with fake PSA records, or clients who have unaccomplished cases or had their cases dismissed. 

I suspect that if more people knew what this case was like, fewer people would be taken advantage of by the unscrupulous. 

Let me go through some things you need to know when you file a case for Recognition of Foreign Divorce. (And some of the stories I’ve come across).

Can I ‘expedite’ my Recognition of Foreign Divorce case? 

No, you really can’t rush this.

Recognition of Foreign Divorce requires a court case in the Philippines. It follows steps like other court cases in the Philippines. There is the gathering of documents, the drafting of pleadings, the presentation of jurisdictional facts, the presentation of a witness, and then the decision. 

The time you’d expect other court cases to take also applies to Recognition of Foreign Divorce, heavily influenced by the fact that the Philippine court system is overburdened. You should expect a case like this to take about a year and a half, from filing in court to getting a court decision. 

Yes, it can be done sooner if the court is efficient. But all this cannot be done in just three months. 

I’ll never forget a client who first got in touch with me over email two years ago. She wanted a fast Recognition of Foreign Divorce because she wanted to remarry, and the country she was in required that her home country first recognize her divorce. 

She wanted a quick case, so she paid someone to “expedite” her documents. That person came back to her and gave her red ribboned court and PSA documents over a coffee table. But, when she tried to use these for official transactions, she discovered the papers were fakes. 

She tried again. She was still pressed for time and decided to “expedite” it again. So she paid some fixer a “processing fee” – only to be presented with better fakes. 

She finally called us. She accepted that the process would take at least a year. She asked us to take the case and work on it (after first calling us, speaking to our head attorney, and sending someone over to check if we really did exist. Couldn’t blame her – she’d been scammed twice.)

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Where do I file my case? 

“Do you mean to say I’m still married?”
“Yes,” I said, rather regretfully. 

At that point, she was very upset. This new client had waited for three years. She had a fiancé who had paid for the case to go through but was now quickly losing patience with the case (and her). 

But the case had to be filed again, because the case had been filed in the wrong court. 

You must follow the rules for jurisdiction to be obtained. Otherwise, the case may be dismissed or later refused registration by the PSA. You cannot file the court case in just any city.  And unlike other kinds of cases, it is not filed where you live. 

Recognition of Foreign Divorce is a Rule 108 case under the Rules of Court. Under Rule 108, it must be filed where the marriage was recorded. If you were married in Boracay, then the case must be filed in Aklan. If you were married in Pasig, the case must be filed in Pasig. 

This should be strictly followed, so that you avoid problems such as the Solicitor General posing an objection, or the case being dismissed, or the PSA eventually refusing to register a court decision. 

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What proof do I have to submit?

The foreign divorce decree, duly authenticated abroad, has to be submitted to the Philippine court. The foreign law on divorce also has to be proven in Recognition of Foreign Divorce cases. 

Our office has a full discussion about these requirements every time a new case comes in.Foreign documents have to be authenticated for the court here to accept them. The relevant rule is Section 24, Rule 132 of our Rules of Court. I’ll quote part of it here: 

“The record of public documents…when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his or her deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody.”

It goes on, but let me highlight a few things. 

The written, official acts of a sovereign authority – such as a foreign divorce or a foreign divorce law – are proved through an “official publication” or “a copy attested by an officer having legal custody of the record.”

But what is an “official publication?” Or who is the officer having legal custody of the record? These are different for each country so it is an exercise in private international law every time.

A lady who had been married in Rizal contacted us to ask why her case was dismissed. She said she wanted to fight for her rights dahil validly divorced naman ako

Our lawyers looked at her documents and saw why. I told her that even if she had been validly divorced, she needed to prove that to the judge. But her photocopy of California laws just did not suffice for Section 24. As far as the court was concerned, the foreign law she submitted could have been made up. It had not been shown to be an official publication nor was it authenticated, and so it wasn’t accepted by the court. 

I admit that it can be a challenge to prove the foreign law to a Philippine court. Since governments are organized differently, the officer who has legal custody of a record differs from country to country. The official custodian might be the Ministry of Justice, the Secretary of State, or the Courts. It could be the Legislature or the Queen’s Printer. It is different per country.

Recognition cases often require us to research the structure of the foreign government. We then coordinate with that foreign office to secure an official publication or an authenticated copy accompanied with proof of his authority. It takes quite a bit of work.

In some cases, we’ve also had to prove parts of the foreign rules of court. Some judges also asked us to show where in the foreign law it says that the divorced spouses are free to remarry for them to extend this to freedom to the Filipino. Other cases even obliged us to look into which version of the law was in effect when the divorce took place because there had been several amendments to the foreign law since then.

If you’re going through a case like this, the evidence has to be carefully gathered according to the rules and jurisprudence. The lawyers have to look at them carefully to avoid risk to the case. 

I’ve gone through what you should expect in a case like Recognition of Foreign Divorce in this first part of the series. In the second part, I’ll continue to elaborate on three other points and then wrap it all up in a summary. – Rappler.com

Francesco C. Britanico is a family and corporate lawyer. He has taught Property Law and other subjects at the Legal Studies program of the Lyceum of the Philippines University. He is the managing lawyer and founder of FCB Law

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