On divorce

The Philippines, aside from Vatican City, remains the only country where absolute divorce is not allowed.

On the basis of Article 26(2) of the Family Code, however, Philippine courts have extended the effect of a foreign divorce decree to allow a Filipino spouse to contract a subsequent marriage where the divorce was validly obtained abroad by an alien spouse, capacitating him or her to remarry.

Given the diverse legal frameworks across countries, there are multiple avenues for obtaining a divorce. In Japan, for instance, couples may secure a divorce by mutual agreement without the need for judicial proceedings.

This mode of divorce was the central issue in Republic v. Ng (G.R. 249238, 27 February 2024). The Republic argued that the divorce by agreement obtained in Japan by Ruby Ng, a Filipino citizen, and Akihiro Sono, a Japanese national, who were married in Quezon City, should not be recognized in the Philippines. 

According to the Republic, a foreign divorce, to be recognized here, must be decreed by a court of competent jurisdiction.

Jurisprudence, however, has settled that a foreign divorce by mutual agreement falls within the ambit of Article 26(2) and may be judicially recognized in the Philippines.

What distinguished the petition in Republic v. Ng was the view advanced during deliberations that recognizing foreign divorces obtained through mutual agreement would contravene public policy against absolute divorce and encourage collusion that undermines marriage as protected by the Constitution and civil laws.

In denying the petition, Justice Dimaampao ruled that all valid divorces — whether initiated jointly by the Filipino spouse and the foreign national through agreement, and whether obtained amicably or through adversarial judicial proceedings — may be recognized in this jurisdiction. 

The ruling rested on the following grounds:

First, the plain language of Article 26(2) requires only that the divorce be “validly obtained abroad.” It makes no distinction as to the type of proceeding undertaken. To insist that the divorce must be judicially obtained adds a condition not found in the law. More importantly, the provision addresses the absurd situation where a Filipino spouse remains legally married to a foreign spouse despite the marriage having been dissolved abroad.

Second, public policy against absolute divorce does not apply to Article 26(2). The provision was crafted precisely as an exception to the nationality principle on divorce. If the divorce is valid under the foreign spouse’s national law and allows that spouse to remarry, Article 26(2) applies.

Third, public policy against collusion does not justify a denial of recognition. “Agreement” is not synonymous with “collusion.” A divorce by mutual agreement, if valid under Japanese law, cannot reasonably be regarded as a scheme to circumvent Philippine law.

Fourth, the Court is guided by international comity. Comity extends recognition not only to foreign judgments but also to sovereign nonjudicial acts, including a divorce decree issued without court intervention.

Fifth, remand, not outright dismissal, was proper. In actions for judicial recognition of foreign divorce, the petitioner bears the burden of proving (1) the fact of divorce, and (2) the applicable foreign law that capacitated the foreign spouse to remarry. 

While Ng sufficiently proved the fact of divorce, she presented only an unauthenticated photocopy of the Japanese divorce law. This failed to comply with the Rules on Evidence. The Court declined to take judicial notice of the OCA compilation of foreign divorce laws, holding that such a compilation does not dispense with evidentiary requirements.

Consistent with its policy of liberality in cases involving mixed marriages, and considering that only the proof of foreign law was lacking, the Court remanded the case to the trial court for reception of evidence on Japanese divorce law.