CONFLICT OF LAWS

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LEGAL OPINION:
Whether the Consent Of Filipino Spouse To Obtain An Absolute (Foreign)
Divorce Renders The Decree Valid In The Philippines

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By:

Ma. Emiliana G. Allayban

Jonathan A. Siddayao
Jumen Gamaru Tamayo
JD3-1
THE FACTS

A Japanese citizen and a Filipino woman were married under Japanese Law. The Japanese spouse
seek to divorce her Filipino spouse. When asked for her consent, the Filipino spouse replied and
said, “Ok.”

The divorce was then approved and valid under the Japanese Law.

THE ISSUE

WHETHER the Decree of Divorce obtained in Japan is valid in the Philippines considering that the
consent of the Filipino spouse was instrumental in the approval and issuance of the decree of
divorce.

THE APPLICABLE LAW

The Japanese Divorce Law

Mainly there are three types of divorce under the Japanese law:

Source: http://shikinokaze.jp/english-divorce.html

1. “Kyogi Rikon” Divorce by Agreement

- It is an out-of-court divorce. If the couple agrees to divorce, they can get a divorce by
filling out a document called “rikon todoke” and simply submitting it to the local
government. If the couple has children, they have to decide who will have the parental
rights of the children after divorce. Parental rights are similar to custody, and they include
rights to live with the children, to make decisions regarding the children, and to control
the children’s assets.

2. “Chotei Rikon” Divorce in Mediation

- It is a divorce agreed in the mediation. If the couple cannot agree to divorce or they are
willing to get a divorce depending upon the conditions, either one of the couple can apply
for divorce mediation at the Family Court.

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.

3. ”Rikon Saiban” Divorce by Judgment

- If the mediation fails, the only available means to divorce will be litigation. One or both
parties seeking divorce may sue the other/each other for divorce. Divorce is granted when
the judge finds one of the following causes stipulated in Civil Code Article 770 (1):

i. When a spouse has committed an act of unchastity;

ii. When abandoned by his/her spouse in bad faith;
iii. When it is not clear whether Plaintiff’s spouse is dead or alive for not less than three
years;
iv. When a spouse is suffering from severe mental illness and there is no prospect of
recovery; or
v. When there is any other grave cause making it difficult to continue the marriage.

During the course of litigation, the judge often suggests to hold settlement meeting. If the
parties agree to settle, they can get a divorce by settlement, which is called “Wakai
Rikon.”

From the three (3) modes or types of Japanese Divorce, the factual circumstances of the case
showed that a divorce by agreement was obtained by the spouses.

Under the Japan Civil Code, a codal provision provides allowing divorce by agreement of both
spouses:

“Divorce by agreement

Article 763. Husband and wife may effect divorce by agreement. (Application
mutatis mutandis of the provisions on marriage)”

Source: http://www.international-divorce.com/japan_civil_code.htm

Hence, under Japaneses law, by mere agreement of the spouses, an out-of-court divorce can be
obtained by the spouses. Applying the law applicable in the instant case, the consent given by
the Fillipino spouse was instrumental or essential for a valid divorce by agreement.

The Philippine Law

The Family Code of the Philippines also provides important provisions regarding marriage
celebrated in other countries and where spouses have different nationalities, such as in this, a
Japanese spouse (husband) and a Filipino spouse (wife).

Specifically, the law provides:

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), 3637 and 38. (17a)

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. (As amended by Executive Order 227)

In the instant case, the divorce by agreement obtained by both spouses was valid under the
Japanese law, hence, applying the lex loci celebrationis recognized under our laws, the same
should also be valid UNLESS included among the prohibitions expressly enumerated in the law.

The Family Code expressly provides that, except for marriages prohibited under Articles 35(1), (4),
(5) and (6), 36, 37 and 38, marriages solemnized abroad and which are valid there as such are
recognized as valid here. As a general rule, therefore, the Philippines follows the lex loci
celebrationis rule. (Persons and Family Relations Law by Sta. Maria, pp. 162)

Under Article 35, 41 and 53 of the same code, the following marriages be void marriages from
the beginning which are considered invalid when solemnized abroad are the following:

(1) Those contracted by any party below eighteen years of age even with the consent of parents
or guardians;
xxx
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be
null and void, unless before the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph the
spouse present must institute a summary proceeding as provided in this Code for the declaration
of presumptive death of the absentee, without prejudice to the effect of reappearance of the
absent spouse. (83a)

Art. 53. Either of the former spouses may marry again after compliance with the requirements of
the immediately preceding Article; otherwise, the subsequent marriage shall be null and void.

However, the second paragraph of article 26 provides that the recognition in the Philippines of a
particular absolute divorce obtained in another country which will allow the divorced Filipino to
remarry. The laws says that,

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. (As amended by Executive Order 227)

Hence, where a valid marriage is celebrated, either in the Philippines or abroad, between a
Filipino citizen and a foreigner and, subsequently, the foreigner-spouse obtains a valid divorce
abroad capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to
remarry under Philippine law. (Sta. Maria)

But how about when both spouses (the foreign and the Filipino) gave their consent to obtain
the divorce?

According to Article 15, “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.”

Hence, if a Filipino, regardless of whether he or she was married here or abroad, initiates a
petition abroad to obtain an absolute divorce from his wife or her husband (whether Filipino or
foreigner) and eventually becomes successful in getting an absolute divorce decree, the
Philippines will not recognize such absolute divorce. This is so because, pursuant to the second
paragraph of Article 26 of the Family Code, the only absolute divorce which the Philippines
recognizes is one which is procured by the alien spouse of the Philippine citizen. Hence, in the
eyes of Philippine law in so far as the Filipino is concerned and in cases where he or she is the
one who procures the absolute divorce abroad, his or her status is still married and therefore
should he or she marry again, he or she can be considered to have committed either concubinage
in case of the husband or adultery in case of the wife (Sta Maria)

The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo
matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on
the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of
adultery of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present
Civil Code only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that
case, it expressly prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).

For the Philippine courts to recognize and give recognition or effect to a foreign decree of
absolute divorce betiveen Filipino citizens could be a patent violation of the declared public policy
of the state, specially in view of the third paragraph of Article 17 of the Civil Code that prescribes
the following:

Prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, policy and good customs, shall not be rendered ineffective
by laws or judgments promulgated, or by determinations or conventions agreed
upon in a foreign country.

Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in
effect, give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the
detriment of those members of our polity whose means do not permit them to sojourn abroad
and obtain absolute divorces outside the Philippines. (See Tenchavez v. Escano, 15 SCRA 355).

CONCLUSION

Given the facts and applicable laws, we therefore conclude that, the Divorce by Agreement
obtained by the spouses in Japan cannot be considered as valid on the part of the Filipino spouse
due to the following reasons:

1. The Filipino spouse gave her consent, which is essential in obtaining the divorce, is direct
violation of Article 17 of the New Civil Code. This made the Filipino spouse inability to
remarry;

2. In our jurisdiction, absolute divorce is not recognized (Garcia v. Recio, G.R. No. 138322,
October 2, 2001). Divorce initiated by a Filipino is against public policy (Cang u. Court of
Appeals, 296 SCRA 128).

The foreign marital law and the divorce decree must be duly proven and cannot be taken judicial
notice of (Garcia v. Redo, G.R. No. 138322, October 2, 2001).