Can you end a marriage by to declaring it as void or annulled?

Please be informed of Article 2035 of the New Civil Code, which states that:

"Art. 2035. No compromise upon the following questions shall be valid:

"(1) The civil status of persons;

"(2) The validity of a marriage or a legal separation;

"(3) Any ground for legal separation;

"(4) Future support;

"(5) The jurisdiction of courts;

"(6) Future legitime. (1814a)"

Based on the above-stated law, there shall be no valid compromise, and, by implication, no waiver of the validity of a marriage.

Although Article 6 of the same Code provides that rights may be waived, the said waiver must not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.

Since an such compromise is about the validity of a marriage, such agreement shall be void.

Further, in the case of Landicho vs. Relova, et al., (GR L-22579, Feb. 23, 1968), the Supreme Court, through Associate Justice Enrique Fernando, held that:

"As was correctly stressed in the answer of respondent Judge relying on Viada, parties to a marriage should not be permitted to judge for themselves its nullity, only competent courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond question. A party who contracts a second marriage then assumes the risk of being prosecuted for bigamy."

Thus, parties to the marriage should not be permitted to judge for themselves its nullity, for this must first be submitted to the judgment of competent courts.

Only when the nullity of a marriage is so declared by the court can it be held as void. So long as there is no such declaration, the presumption is that the marriage exists and is valid.

House approves divorce bill

The House of Representatives has approved the absolute divorce bill on second reading.

House Bill 9349, as amended, was approved through a voice vote during plenary session on Wednesday.

The measure aims to "reinstitute absolute divorce as an alternative mode for the dissolution of an irreparably broken or dysfunctional marriage under limited grounds and well-defined judicial procedures," the bill's fact sheet read.

Grounds for absolute divorce include physical violence or "grossly abusive conduct," a final prison sentence of over six years; drug addiction, habitual alcoholism, chronic gambling, bigamous marriage; and marital infidelity.

Also grounds for absolute divorce were moral pressure to change religious or political affiliation; attempt to corrupt or induce the petitioner, a common child, of the petitioner's child to engage in prostitution and homosexuality.

Under the bill, either spouse is allowed to seek absolute divorce if they have been legally separated for over two years.

Grounds for annulment under Article 45 of the Family Code, as modified in the bill, were also grounds for absolute divorce.

Separation in fact for at least five years with "highly improbable" reconciliation; psychological incapacity, whether it "existed at the time of the marriage or supervenes after the marriage;" and irreconcilable differences were also grounds for absolute divorce.

The bill included psychological and emotional violence, sexual violence, or economic abuse as grounds for absolute divorce.

"When one of the spouses undergoes a sex reassignment surgery or transitions from one sex to another, the other spouse is entitled to petition for absolute divorce with the transgender or transsexual as respondent, or vice versa," it said.

The bill also recognizes a valid foreign divorce, which "must be authenticated by the Philippine Consul in or proximate to the foreign country where it was secured, and subsequently registered with the proper Civil Registry Office in the Philippines" or the Office of the Philippine Consul where the Filipino lives.

Marriages nullified or dissolved by the Roman Catholic Church "or any other recognized religious sect" "shall be granted civil recognition as if a divorce had been granted in accordance with the provisions of this Act," without undergoing judicial process if authenticated by the proper religious authorities, and registered with the proper civil registry office.

Under the bill, a petition for absolute divorce can be filed in court by a spouse or jointly by the spouses within 10 years "from the occurrence or discovery of the cause for divorce or from the effectivity of the Absolute Divorce Act, whichever comes later."

Public prosecutors must investigate to determine whether the spouses are colluding or whether either coerced the other to file the petition.

Petitioners who are overseas Filipinos will be given priority by the court.

The bill allows summary judicial proceedings in cases of separation in fact for at least five years; bigamous marriage; legal separation for at least two years; the spouse being sentenced to imprisonment for at least six years; or sex reassignment surgery or transition into another sex.

A family court will try its best to reunite and reconcile the concerned spouses during a 60-day cooling-off period after the filing of the petition. Once the cooling-off period has expired without the parties having reconciled, the court will try to appeal and make a decision within one year.

The cooling-off period will not apply in cases involving violence against women and their children or attempt against the life of the spouse or a common child or the petitioner's child.

The bill defines absolute divorce as "the judicial dissolution of a marriage or the termination of the bond of matrimony where the spouses return to their status of being single with the right to contract marriage again."

When he sponsored the bill at the plenary, Albay 1st District Rep. Edcel Lagman had said that "divorce stories can also be love stories."

In his sponsorship speech, Lagman said absolute divorce was not for everybody.

"The overwhelming majority of Filipino marriages are happy, enduring and loving. They do not need the divorce law," he said.

An absolute divorce law, he said, "is urgently necessary in marriages which have totally collapsed and are beyond repair, where the majority of the victims are the wives who have been subjected to cruelty, violence, infidelity and abandonment."

Lagman said that it was time the country had an absolute divorce law.

Gabriela Women's Party Rep. Arlene Brosas, who also sponsored the bill, said it "will not necessarily lead to termination of marriages and breakups. It is merely offering another option to spouses who may or may not resort to it. It retains the existing remedies of legal separation, declaration of nullity of the marriage, and annulment and only adds divorce as one more remedy."

"While divorce under this proposed measure severs the bond of marriage, divorce as a remedy need not be for the purpose of remarriage; it may be resorted to by individuals to achieve peace of mind and facilitate their pursuit of full human development," Brosas said.

Source: Business World

How to Have a Divorced Abroad Recognized in the Philippines

Philippine laws do not provide for absolute divorce, and hence, the courts cannot grant the same. However, in case of a mixed marriage between a Filipino citizen and a foreign citizen, the Family Code of the Philippines allows the estranged Filipino spouse to remarry in case the divorce is “validly obtained abroad by the alien spouse capacitating him or her to remarry.”

The following elements must concur in order for said law to apply:

1. There is a valid marriage celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad, capacitating the parties to remarry, regardless of who between the spouses initiated the divorce proceedings.

Thus, pursuant to Republic v. Manalo,  foreign divorce decrees obtained to nullify marriages between a Filipino and an alien citizen may already be recognized in Philippine jurisdiction, regardless of who between the spouses initiated the divorce; provided, 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.

As a matter of procedure, a case must be filed in court to secure a judgment recognizing the foreign divorce between a Filipino and a foreigner. In terms of evidence, both the foreign divorce decree or judgment and the foreign divorce law need to be proven during the trial. Following a favorable judgment, the divorce would be recorded in the civil registry and the estranged Filipino spouse would be deemed allowed to remarry.

The requirement for recognition of foreign divorce is simply that at least one of the spouses was a non-Filipino at the time of the divorce. This follows from the second paragraph of Article 26 of the Family Code of the Philippines to wit:

“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 likewise have capacity to remarry under Philippine law.”

Q: WHY IS IT IMPORTANT TO FILE A PETITION FOR RECOGNITION OF FOREIGN DIVORCE IN THE PHILIPPINES?

There are a number of reasons why it is important to file a petition for recognition of foreign divorce in the Philippines, to wit:

1. Unless the foreign divorce is judicially recognized, the divorce decree will not be registered with the Civil Registrar and the Philippine Statistics Authority (PSA); consequently, a Certificate of No Marriage (CENOMAR) will not be issued should a divorced Filipino plan to remarry;

2. Without a judicial recognition of the foreign divorce, the previous marriage is deemed to subsist; contracting another marriage in the Philippines may constitute the crime of bigamy; and

3. If the foreign divorce decree is not judicially recognized in the Philippines, the divorced spouse may still exercise his or her rights to the community or conjugal property as an heir in case of the death of the other spouse.

Q: HOW ARE FOREIGN DIVORCE DECREES JUDICIALLY RECOGNIZED IN THE PHILIPPINES?

A petition for a judicial recognition of a foreign divorce in the Philippines shall be filed before the Regional Trial Court (RTC) in the city or province where the corresponding civil registry to be corrected is located. If the marriage is celebrated abroad, the petition shall be filed before the RTC which has jurisdiction over the place of residence of the petitioner.

The following are the documents required to be attached to the petition. For documents issued or made abroad, they must either be (a) an official publication of such document or (b) a copy attested by the officer having the legal custody of the document, or by his deputy. Additionally, there must be an accompanying certificate that such officer has the custody, which may be issued by the embassy or consular office of the Philippines and authenticated by the seal of its office.

Any foreign document attached to the petition needs to be apostilled by the competent authority or authenticated by the Philippine Embassy in the foreign country.

PROOF OF MARRIAGE

The petitioner needs to present to the court a certified true copy of the marriage certificate registered in the Philippines issued by the Philippine Statistics Authority (PSA).

If the marriage was celebrated abroad, the official marriage certificate or record from the foreign country shall be presented. If a copy of the marriage certificate or record was filed with the Philippine Consulate, a copy of the Report of Marriage of a Filipino Married Abroad shall also be presented.

PROOF OF DIVORCE

The petitioner needs to present to the court a certified copy of the divorce decree, order, or decision. 

The petitioner must present to the Court the official copies of his or her foreign divorce documents such as the divorce decree which should be duly translated to English if it was written in a foreign language.

Countries have different laws and policies when it comes to divorce. Thus, documents used or issued may also be different. An example is the pronouncement of the Supreme Court in Republic v. Kikuchi, 6 where it was established that Mayors in Japan are authorized to accept divorce. The Supreme Court in this case considered the duly authenticated Certificate of Acceptance issued by City Mayor of Sakado City as sufficient evidence of divorce obtained in Japan.

PROOF OF LAW ON DIVORCE ABROAD

The foreign law capacitating the foreign spouse to remarry must be proven as a fact during trial and in accordance with the Rules of Court. 

The petitioner must present to the Court a certified copy of the specific law on divorce in the country where it was obtained. It must be apostilled or authenticated by the Philippine Consulate and must come with an official translation to the English language if written in a foreign language. Said divorce law must indicate that parties to the divorce can remarry.

OCA Circular No. 157-2022 issued on 23 June 2022, announced that foreign divorce laws that have been officially translated into English language may be obtained on the Supreme Court website, and thus, petitioners need not prove it during the trial, to wit:

“…the Family Courts are advised to take judicial notice of this compilation of the laws of foreign countries on marriage and divorce in the resolution of cases requiring the presentation of the laws of foreign countries on marriage and divorce.”

However, OCA Circular No. 157-2022-A issued on 7 July 2022 supersedes the said Circular. It states the following:

“To address this matter, the Department of Foreign Affairs (DFA), upon request of the OCA, furnished the OCA with a compilation of several foreign laws on marriage and divorce, for reference and use of the judiciary in resolving petitions for recognition and enforcement of foreign decree of divorce, subject to prevailing jurisprudence and/or applicable Court issuances related thereto.” 

Simply put, the trial court cannot take judicial notice of a foreign divorce law posted on the Supreme Court website. In Arreza v. Toyo,7  the prevailing jurisprudence, states that:

“Philippine courts do not take judicial notice of foreign judgments and laws. They must be proven as fact under our rules on evidence. A divorce decree obtained abroad is deemed a foreign judgment, hence the indispensable need to have it pleaded and proved before its legal effects may be extended to the Filipino spouse.”

Proofs of Citizenship and Residence of the Parties (the spouses), and the Children, if any.

In order to prove the citizenship of the parties (the spouses), and the children if any, the petitioner needs to present to the court their birth certificates and/or passports.

It must be established that one of the parties is an alien or a foreigner at the time of the divorce for Article 26 of the Family Code to apply.

PUBLICATION

After filing the petition, the RTC branch where the case is raffled will order that the substance of the petition be published in a random newspaper of general circulation in the city or province once a week for three (3) weeks.

POST-JUDGMENT PROCEDURE

After trial and after the court renders its decision granting the petition, the decision shall be registered before the Local Civil Registrar (LCR) where the marriage was recorded, the Local Civil Registrar (LCR) of Manila if marriage was celebrated and registered overseas, and the Philippine Statistics Authority (PSA).

Source: Ajalaw