According to the Law: Can my Spouse Divorce me Abroad?

Q:
My husband and were married in the Philippines 10 years ago. In 2009, he left to work in Canada and has since attained an immigrant status. Our relationship of course suffered because of the distance, but still I was surprised when recently I received divorce papers from a court in Canada, signed by him, with no explanations whatsoever. Can he really do that, can we become unmarried because of that? How can our laws here in the Philippines protect me?

Sincerely,

No to Divorce

A:
Dear No to Divorce,

To answer your question, I need to clarify some things first: (1) When your husband filed for divorce, was he still a Filipino or had he already obtained a Canadian citizenship? (2) You say that you received “divorce papers signed by him”—do you still need to sign the divorce papers and send it back to him, or did you receive a final decree declaring that the two of you were already divorced?

These details are important because the answers will determine your next course of action, which I will get to in a bit.

But first, I think a brief history of divorce in the Philippines is necessary. Contrary to popular belief, divorce was not always banned in the Philippines. As early as 1917, Act No. 2710 was passed, which allowed for divorce on two grounds only: adultery on the part of the wife, and concubinage on the part of the husband—in other words, sexual infidelity of either spouse. This was the only divorce law in effect for almost three decades, until a "New Divorce Law" (Executive Order No. 141) was enacted during the Japanese Occupation on March 25, 1943. This Divorce Law repealed Act No. 2710, and added ten more grounds for divorce. So aside from sexual infidelity, a divorce may also be granted for the following reasons: (1) attempt against the life of the other spouse, (2) a second subsequent marriage, (3) incurable insanity, (4) loathsome disease, (5) impotence, (6) violence against spouse, (7) unjustified desertion for 1 year, (8) intentional absence for 3 years, (9) slander by deed, or (10) grave assault. But this law was immediately repealed after a year, when the Americans established the Philippine Commonwealth in 1944. In its place, the old divorce law, Act No. 2710, was restored. For the next several years, divorce was alive and well in Philippine Law.

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It was only in 1949, when the Civil Code became effective, that divorce was replaced by legal separation. Under this law, legal separation was allowed under two grounds: (1) For adultery on the part of the wife and for concubinage on the part of the husband; or (2) An attempt by one spouse against the life of the other. The grounds were essentially the same, but legal separation had one big difference from divorce: the spouses were no longer allowed to remarry; they were only allowed to live separately from each other and to manage their separate properties. In 1987, the Family Code was enacted, and under this law, the grounds for legal separation expanded into ten to include the ones we know today. Still, the effects remained the same—the marriage still existed, and the spouses were not allowed to remarry.

Still, it is not correct to say that there is absolutely no divorce in the Philippines at present, because the third chapter of the "Code of Muslim Personal Laws of the Philippines" or P.D. No. 1083 provides for the instances when divorce is allowed for Muslims in the Philippines.

But even if the Family Code no longer provides for divorce in the Philippines, it still recognizes valid divorce decrees executed abroad, as long as it is obtained by the foreign spouse. This is why it is important to know what your husband’s citizenship was at the time he obtained the divorce, because if he was still a Filipino at the time, then the divorce is invalid. Art. 15 of the Civil Code states that “Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.” In other words, it doesn’t matter where you obtained the divorce decree, because if you are a Filipino, our laws will apply to you no matter where you are, and that means you can’t get a divorce. This law also applies to those Filipinos who mistakenly think that just because they got married abroad, then they can get a divorce there later on and they will be free to remarry. Remember: while your marriage abroad is valid, the divorce is not.

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Now, what if your husband was already a Canadian when he got the divorce? Don’t worry, this does not mean that you will be stuck being married to him while he is living the life of a confirmed bachelor. Art. 26 of our Family Code gives the solution to this dilemma: “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.” In this case, your husband will be considered a foreigner for all intents and purposes. You may then file a Petition in Court to recognize the divorce decree obtained abroad. But for your case to prosper, the Supreme Court requires that your prove the following: (1) that your spouse has attained a Canadian citizenship, (2) that a valid divorce decree has been obtained, in conformity with the foreign law allowing it, (3) the existence of the foreign law allowing the divorce, and (4) that that the divorce decree allows the remaining spouse to remarry.

That is why I asked if the divorce papers you received still needed your signature for it to be final, or if they already declared a final divorce decree. If the divorce still requires your consent for it to be final, then you can simply withhold your consent to prevent it from taking effect (unless there is something there which indicates otherwise). On the other hand, if the divorce has already attained finality, then Art. 26 may apply to you. Still, remember that just because he divorced you, it does not mean that he no longer has an obligation to support your children, if any. His duties and obligations of a father cannot be extinguished by divorce.

Atty. Niki Jimeno

 

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