In a previous article, we mentioned that Article 26 of the Family Code provides that where a valid marriage between a Filipino and a foreign spouse, and thereafter a divorce is validly obtained by the foreign spouse which allows the foreigner to remarry, the Filipino spouse shall also be capacitated to marry.
It’s not all that simple though.. The divorce decree issued abroad does not automatically enable the Filipino spouse to remarry. There is a need for a Judicial Declaration of a Valid Divorce, which requires that action in court be initiated through the filing of a petition.
“A copy of the Divorce Decree has already been sent to the Philippine Embassy, the Department of Foreign Affairs, and the NSO. Would that suffice?”
Unfortunately, no. Judicial recognition of the foreign decree of absolute divorce in our country is a process that can only be done through Philippine courts.
In Garcia v. Recio, the Supreme Court ruled that a divorce obtained abroad by an alien may be recognized in our jurisdiction, provided the decree is valid according to the national law of the foreigner. The presentation solely of the divorce decree is insufficient; both the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Because 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 and like any other fact.
The divorce decree must be proven, just like any fact, in court. The presentation of the divorce decree is insufficient. Proof of its authenticity and due execution must be presented. This necessarily entails proving the applicable laws of the jurisdiction where the foreigner-spouse (who could be a former Filipino) is a national.
The following documents are required as annexes to be attached to the petition:
1. Marriage Certificate
2. Divorce Decree
3. Divorce Law
4. Identification documents
The above-listed documents have to be translated if written in a foreign language other than English, certified as an official and true copy by its official custodian, and ‘apostilled’ or authenticated at the nearest Philippine Embassy.
A common problem in recognition cases is how to obtain the documents from the proper office, given that civil and judicial registry rules vary from one country to another. The next and bigger problem of course, is the manner by which the judge will appreciate the documents presented.