Published November 7th, 2006 in Annulment and Legal Separation.
On 17 July 1987, shortly after the signing of Executive Order No. 209 (Family Code), Executive Order No. 227 was also signed into law, amending, inter alia, Article 26 of the Family Code. As so amended, it now states:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
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. (Italics supplied)
Article 26, par. 2, is an important innovation belatedly introduced by the Aquino Government, which is intended to extricate the Filipino spouse from an absurd and unjust situation in which he or she is married to someone who is not married to him or her. This provision applies only to cases where at the time of celebration of marriage, the parties are a Filipino citizen and a foreigner. In effect, this provision introduces divorce in our country, much less extends some degree of recognition to foreign divorce, although in exceptional cases.
Significantly, Article 26, par.2 now includes 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 capacitating him or her to remarry. The Filipino spouse should likewise be permitted to remarry as if the other party were an alien at the time of solemnization of the marriage (Republic vs. Orbecido, GR 154380, 5 October 2005).
Article 26, par.2 may have raised some problems than it solves. A number of questions can be raised with respect to the operation of this provision, to wit:
1. Is there a need for a judicial decree in Philippine courts to declare the Filipino spouse qualified to remarry? The Family Code has no explicit provision to that effect, unlike in cases of void marriages and of a remarriage in case of absence of one of the spouses amounting to presumptive death (Art. 40 and 41, Family Code) where a court decree is required.
2. Is Art. 26, par. 2 applicable to foreign divorces obtained before the effectivity of the Family Code in view of Art. 256?
3. What if the Filipino spouse does not intend to remarry, what is the status of any children they may have after the divorce decree? Does the Filipino spouse have a right to demand support from his/her former alien spouse? What is his/her status with respect to his/her former foreign spouse? Can he/she claim share of property or income acquired by the former foreign spouse.
Moreover, I am of the moral view that the Orbecido doctrine is open to constitutional questions, viz:
1. Is the Orbecido ruling violative of the equal protection of the law clause of the Constitution as it favors only the rich, who may use or abuse the remedy of naturalization as foreign citizen and obtaining a valid foreign divorce and having it recognized in the Philippines in order to terminate his or her marriage with the Filipino spouse given the great difficulty in having a declaration of nullity and annulment of marriage granted at the appellate level of the court?
2. Is the Orbecido ruling tantamount to judicial legislation considering the fact that the Supreme Court has in effect amended Art 26, par. 2 of the Family Code, a substantive law? The OSG had posited that the issue was a matter of legislation and not of judicial legislation, a contention which was not addressed by the Supreme Court in its ruling. Would it not be much more orderly and customary if the Orbecido doctrine be cast in statutory form like the conflicting SC rulings namely People vs. Aragon, Wiegel vs. Sempio-Diy, and Yap vs. Paras, which were set in stone by Art. 40 of the Family Code?