Divorced obtained abroad by a Filipino not recognized in the

Philippines
[1] The second paragraph of Article 26 of the Family Code is the primary law
on the issue of divorce and Filipino citizens: 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.
[2] If its the Filipino spouse who initiates or files the divorce action
against the alien spouse, the subsequent divorce will not be
recognized here in the Philippines. If that Filipino gets married here
again, he or she will be liable for bigamy.
[3] But if it is the alien spouse who initiates or files the divorce action, Article
26 of the Family Code will apply. The divorce will be recognized here in the
Philippines; if the divorce allows the former alien spouse to remarry, the
Filipino will also have the right to remarry under Philippine law.
[4] A Filipino spouse divorced by a spouse who had acquired foreign
citizenship can remarry under Article 26 FC (Republic of the Philippines v.
Cipriano Orbecido III).
[5] Consensual or mutual agreement divorces like kyogi rikon are
not recognized here in the Philippines.
[6] A Filipino who validly obtains a divorce decree abroad and wants to
remarry must first file with the Family Court a petition for recognition of a
foreign divorce decree.
[7] A petition for recognition of a foreign divorce decree is a difficult legal
process. Most Filipino lawyers, therefore, advise people to file instead a
petition for declaration of nullity under Article 36 of the Family Code.
A divorce obtained by a Filipino in another country, like the USA or
Japan for example, is not recognized here in the Philippines. In
several decisions, our Supreme Court has ruled that a Filipino who
obtains a divorce abroad and gets married here again, is liable for
bigamy.
[1] People v. Schneckenburger: The Supreme Court held that the accused,
who secured a foreign divorce and later remarried in the Philippines
(believing that the foreign divorce was valid), is liable for bigamy.
[2] People v. Bitdu: The Court carefully distinguished between a mistake of
fact from a mistake of law. A mistake of fact could be a basis for the defense
of good faith in a bigamy case. On the other hand, a mistake of law does not
excuse a person, even a lay person, from liability. In this case, the accused
had obtained a divorce under Mohammedan custom. The Court held that
even if the accused honestly believed she was not committing any violation
of the law in contracting her second marriage, and that she had no criminal
intent, these did not justify her act.
The Court also ruled that everyone is presumed to know the law. The lack of
knowledge that the act constitutes a violation of the law does not exempt a
person from the consequences.
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[1] If it is the Filipino spouse who initiates or files the divorce action against
the alien spouse, the subsequent divorce will not be recognized here in the
Philippines. If that Filipino gets married here again, he or she will be liable for
bigamy.
[2] However, if it is the alien spouse who initiates or files the divorce action,
Article 26 of the Family Code will apply. The divorce will be recognized here in
the Philippines; if the said divorce allows the former alien spouse to remarry,
the Filipino will also have the right to remarry under Philippine law. That is,
after the foreign divorce decree is recognized by a Philippine court; more on
this below.
How do you know who filed or initiated the divorce proceedings?
I have come across some forums where the question has been asked as to
how do you know who filed or initiated the divorce proceedings? Well, if you
look at the divorce papers, the term complainant or petitioner refers to
the person who filed or initiated the case. The term defendant or
respondent refers to the person against whom the petition was filed.
What about consensual or mutual agreement divorces?
I have been told that in some countries like Japan and Korea, the
alien spouse and the Filipino spouse can simply go through an
administrative process where they can get divorced in less than a
day. According to a Wikipedia article, 90% of divorces in Japan are
by mutual consent (the term is kyogi rikon).
This kind of mutual consent or agreement divorce is not recognized
here in the Philippines. Article 26 of the Family Code contemplates a
situation where the divorce is filed by the alien spouse against the
unwilling or innocent Filipino spouse.
Who can get divorced in Japan?
Municipal offices are not allowed to accept
a. divorce petitions of foreign residents when their countries of origin do
not recognize a divorce by agreement (for example the Philippines).
b. a divorce petition between a couple of the same foreign nationality.
These petitions must be done through a family court.
When one partner is a Japanese national with a regular address in Japan or
both partners are foreign nationals with different nationalities with regular
addresses in Japan, the municipal office may accept the application for
divorce.
Since every divorce case is different and depends on the nationalities
involved, please consult your municipal office before hand.
Types of Divorce in Japan
Divorce by agreement (kygi rikon ) - based on mutual
agreement. The foreign spouse need not be physically present at the
municipal office to register the divorce providing that the registration
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documents have been properly signed and sealed beforehand by both

parties. More than 90% of all Japanese divorces adopt this fast, simple and
entirely non-judicial procedure. The couple can freely promise about the
distribution of property, custody, child support, etc., but it is recommended
to make a printed document about the promises you made.
Divorce by mediation in a family court (chtei rikon ) completed by applying for mediation by the family court (for cases in which
divorce by mutual agreement cannot be reached). This is divorce by
arbitration in which the husband or wife request that the family court assist
them with mediation. It is completed by applying for mediation by the family
court. One party would typically apply to the family court, usually in the
district of the other parties residence, and after monthly meetings come to
some agreement concerning assets, alimony, custody, child support, etc..
These meetings are conducted in private.
Mediation in the family court is supposed to be presided over by three
mediators: a judge, and a man and a woman who are over 40 years old with
some social experiences. However, the judge is mostly absent from the
mediation and the mediation is usually conducted by two people without
legal knowledge.
Mediation sessions are usually held once a month. Since most mediators are
lay people, if you do not have legal knowledge, a clear goal, and a
maneuvering skill, it could drag on without any satisfying outcome.
If arbitration fails, the family court takes over and has the authority to render
its own terms for the divorce. But note that if the court negotiates this
divorce, they may simply ask you to sign the appropriate Divorce By Mutual
Consent forms. The threat (that your own lawyer may emphasize to you) is
that if you do not negotiate, the judge will issue a decree which will be even
worse. You may be asked to sign these forms even before the agreement
you negotiated is signed. You may not want to do that. Also, you may want
to have a decree from a court so that you can go back to the court and claim
that your partner is not abiding by the agreement. If the agreement is
simply a personal contract, you might have to start legal proceedings all over
again, which of course would take years.
Divorce by decision of the family court (shimpan rikon ) divorce completed by family court decision when divorce cannot be
established by mediation. From now it becomes a public court case. Note
that there is no such thing as a "no fault" divorce at this stage. If the family
court's judgment is rejected by one of the parties, then an appeal can be
lodged and the district court takes over the case.
Note that according to Civil Code 770-2, judges have absolute discretion to
decide whether to grant a divorce or whether the marriage is proper in view
of the circumstances. Also, divorce in court is time consuming.
Divorce by judgment of a district court (saiban rikon ) - If
divorce cannot be established by the family court, then application is made
to the district court for a decision (application for arbitration is a
prerequisite). Once the case is decided, the court will issue a certified copy
and certificate of settlement, to be attached to the Divorce Registration.
Either party in the divorce has the right to appeal to a higher court against
any decision made in a lower court, all the way up to the Supreme Court.
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Grounds for Divorce

The Japan Civil Code Article 770 provides five grounds for unilateral divorce if
divorce cannot be reached by mutual agreement:
a. infidelity
b. malicious desertion
c. uncertainty whether or not the spouse is dead or alive for three years
or more
d. serious mental disease without hope of recovery
e. a grave reason which makes continuing the marriage impossible
Under Japan Civil Code Article 710, the plaintiff can demand the payment of
consolation money and the distribution of property. However in most cases
the amounts of consolation money tends to be rather small, usually only a
few million yen. If the defendant lacks financial means, the amount can be
much lower.
Documents to submit:
1. Notification of Divorce (in the case of kygi-rikon; paperwork available at
andto be turned into the parties local municipal office) bearing the
signatures andpersonal seals of two adult witnesses.
2. Personal seal of the reporting person(s) foreign spouses are exempted if
they do not have one, the foreign spouses signature will serve)
3. If the reporting office is not the office of the permanent address of the
Japanese partner, a copy or an extract of his or her family register.
4. Passport
5. Certificate of current address (or Alien Registration Card)
6. Copy of marriage certificate if both parties are foreign nationals.
7. A registered copy of the birth certificate of any minor child the couple has
if both parties are foreign nationals.
If both parties are not in agreement to the divorce, it is necessary to receive
mediation and judgment by the Family Court. If the court rules in favor for
the divorce you should then submit a copy of the court ruling and the
Notification of Divorce to your municipal office.
Custody of Children
Following a divorce, a family court will determine which of the parents will
maintain parental authority over any minor children younger than 20 years
of age (Article 766 of the Civil Code). If a foreign parent is designated
parental authority, the parent may be granted visa status allowing them to
raise the child/children in Japan.
The general practice is to award custody to the mother unless there is an
overriding reason to award custody to the father. Nationality of the child is
not considered crucial in the determination of which parent will assume
custody. Joint custody is not recognized in Japan.
Japanese family law has no provision for visitation rights and has no legal
mechanism to enforce visitation rights or other court-negotiated settlements
afterwards. It is quite usual that upon divorce, the father pays nothing for the
childs support and that he never sees his child.
If an international divorce includes joint custody of the children, it is
important to the foreign parent to register it themselves, because joint
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custody is not legal in Japan. The parent to register the divorce may thus be
granted sole custody of the child according to Japanese law. A foreign child
custody agreement cannot be automatically enforced in Japan, although the
court can order enforcement.
Q & A on Divorce
Q: Can foreign citizens be divorced in Japan?
A: Yes. However, foreign citizens must show evidence that they are
able to be divorced in their country of nationality and that the
procedures used in Japan are compatible with those of their home
country.
Q: What are the residency requirements for filing?
A: At least one of the parties must be a legal resident of Japan. The court will
not accept cases from couples who have traveled to Japan for the sole
purpose of obtaining a divorce.
Q: Can a divorce be granted in absentia?
A: While both parties do not need to be present to file with a court and begin
the procedures leading to a divorce, because of the nature of the conciliation
process, the court will require the appearance by both parties for at least one
joint hearing. But a divorce can also be granted if it is determined that the
partner has abandoned the one filing for divorce. Typically this means the
whereabouts and the status of the spouse have been unknown for at least 3
years. This could likely be prevented by regularly filing an anti-divorce form.
Q: What documents are required to make an application for divorce?
A: 1. The application form (available gratis from the Family Court) and the
following supplementary documents. All English language documents must
be translated into Japanese.
2. Copy of marriage certificate.
3. Abstract of the national law of the spouses pertaining to divorce.
4. A copy of certificate of alien registration for non-Japanese parties.
5. If the couple has a minor child, the birth certificate of the child must be
presented. The court may also request copies of the birth certificates or
passports of the parties to the divorce. Japanese citizens must normally
present a copy of family register and certificate of residence.
Applicable Law Concerning International Divorce in Japan
In the case of a couple of a Japanese national and a foreign national, the
General Principle Act regarding application of law including divorce. If one
party is a Japanese resident living in Japan, the Japanese civil code will be
applied.
In the case of a couple of a Japanese national and a foreign national,
according to the General Principle Act regarding application of law
including divorce, if one party is a Japanese resident living in Japan, the
Japanese civil code will be applied.
In the case of a couple who are both foreign nationals, the same act
stipulates as follows;
1) In case the law of both partys country is same, the law of the same
country shall be applicable.
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2) In case there is no such law, the law of the country, where the couple have
a common place of domicile, shall be applicable.
3) In case neither of the above laws are applicable, then the law of the
country, where both of the couple has a closer relationship, shall be
applicable.
Therefore, the Japanese civil code may apply to a couple who are both
foreign nationals with different nationality. The procedure of their divorce
may be also completed according to Japanese civil code, which allows to
submit a signed divorce registration, under mutual agreement, to the public
office.
Effectiveness of Divorce by Mutual Agreement for Foreign Spouse
However, this type of non-judicial divorce cannot be always valid for their
home country, even though it is recognized in Japan as a valid divorce. In
most of countries, where only divorce settled by legal suit is admissible,
divorce by mutual agreement does not have any effect. If divorce by mutual
agreement is not admissible in your country, you had better get permission
by mediation or adjudication or litigation at a court in Japan.
In case both sides are same national from same country, the law of their
country will apply. In this case, too, the permission of a court is necessary, if
the law of their country only recognize divorce settled by a court decision.
International Divorce
Between Japanese and Foreign National
If you are a foreign national married to a Japanese, you may wonder whether
you can get a divorce in Japan. Japanese law recognizes all three types of
divorce described above. However, whether such divorce is recognized in
your home country depends upon the laws of your country. It is advisable to
consult a lawyer qualified to practice in your home country under which
procedure you should get a divorce and what procedures are necessary in
order for your divorce to be recognized under the laws of your home country.
Between Foreign Nationals
The Japanese Family Court has jurisdiction over foreign couples if one of the
couple lives in Japan. If the couple has the same nationality, the court will
apply the laws of the country of which the couple has nationality. If the
couple has different nationalities, but both live in Japan, the court will apply
the laws of Japan.
When One Spouse is Living Abroad
If one of the spouses is living in Japan but the other is living abroad, can they
get a divorce in Japan?
If the couple agrees to divorce, they can get a divorce by submitting a
divorce paper called Rikon Todoke, notification of divorce, to the local
government. However, such divorce may not be recognized by the laws of
your home country or the laws of the country where you live.
As of October, 2013, the Japanese court has limited jurisdiction over lawsuits
for divorce filed by those living in Japan against their spouses living abroad.
However, it has jurisdiction over lawsuits for divorce filed by those living
abroad against their spouses living in Japan.
FAQs

Do I need a lawyer for the mediation?

Mediation is a process created for people to negotiate through the mediators
to resolve the conflict without lawyers. In fact, many people attend
mediation without lawyers. However, some people who attended mediation
without lawyers complain that they were mistreated by the mediators, or
they did not have any meaningful discussion. As explained above, most
mediators are lay people who lack knowledge of relevant laws, sociological
or psychological expertise, and mediation management skills. If you are not
represented by an attorney, you may even waiver your rights by making a
mediation agreement without knowing you are doing so. If you do not have
enough funds to hire a lawyer, you should at least consult one before you
make a mediation agreement. When a large amount of money or valuable
assets are involved, it is usually better to hire a lawyer because:
The legal fees could be relatively small compared with the amount of money
involved.
Such cases are more likely to be litigated. You will most probably hire a
lawyer for litigation. If you hire a lawyer anyway, you may feel better to be
represented by one from the beginning.
How long will it take to get a divorce in mediation?
It depends on how quickly the parties reach an agreement. Typically,
a mediation session is held once a month. Some couples reach an
agreement after a few sessions. Others cannot reach an agreement
at all at the mediation. After a few sessions, if the mediators find it
difficult for the parties to reach an agreement, they will end the
mediation, and one or both of the couple choose to litigate.
According to the statistics made public by the court, in 2011, out of 31,139
divorces agreed in mediation, 11,539 were agreed within 3 months, 13,479
within 6 months. However, 1,180 took more than a year and more than 3,000
cases failed to reach agreements after 6 months or longer.
How long will it take to divorce in litigation?
It depends on how many issue must be adjudicated and how
complicated each issue is. Usually the larger the amount of money
involved, the longer it takes.