27 November 2011
Mr. Adriano Enriquez
Maria Orosa Street
Manila
Dear Mr. Enriquez:
This legal opinion seeks to answer your question as to whether or not you can now
remarry under Philippine law after discovering that your wife had been naturalized as an
American citizen and had obtained a divorce decree and then married a certain Innocent
Stanley.
The Facts
Per our discussion and the documents you have shown me, the following are the
pertinent facts:
On May 24, 1991, you married Myra Santos in the Philippines. Your marriage was
blessed with a son Miguel Enriquez.
In 1996, your wife left for the United States bringing along your son Miguel. A few
years later, you discovered that your wife had been naturalized as an American citizen.
Sometime in 2010, you learned from your son that your wife had obtained a divorce decree and
then married a certain Innocent Stanley.
The Applicable Law
The applicable law is Paragraph 2 of Article 26 of the Family Code. It provides 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.”
On its face, the foregoing provision does not appear to directly govern your situation. It
seems to apply only to cases where at the time of the celebration of the marriage, the parties are
a Filipino citizen and a foreigner.
Your case, on the other hand, is one where at the time the marriage was solemnized, the
parties were two Filipino citizens, but later on, the wife was naturalized as an American citizen
and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried
an American citizen while residing in the U.S.
The Legislative Intent behind Paragraph 2 of Article 26
However, an examination of the records of the proceedings of the Family Code
deliberations showed that the intent of Paragraph 2 of Article 26 is to avoid the absurd situation
where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is
no longer married to the Filipino spouse.
The Applicable Jurisprudence
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of VAN
DORN v. ROMILLO, JR. (G.R. No. L-68470, 8 October 1985, 139 SCRA 139). The Van
Dorn case involved a marriage between a Filipino citizen and a foreigner. The Supreme Court
held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines,
and consequently, the Filipino spouse is capacitated to remarry under Philippine law.
Will this same principle apply to your case? The jurisprudential answer lies latent in the
1998 case of QUITA v. COURT OF APPEALS (G.R. No. 124862, 22 December 1998, 300
SCRA 406). In Quita, the parties were, as in your case, Filipino citizens when they got
married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the
same year. The Supreme Court therein hinted, although by way of obiter dictum only, that a
Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law
and can thus remarry.
Analysis and Conclusion
Thus, taking into consideration the legislative intent and applying the rule of reason,
Paragraph 2 of Article 26 would apply to your case because it should be interpreted to include
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.
The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner
at the time of the solemnization of the marriage.
Hence, the reckoning point is not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at the time a valid divorce is obtained
abroad by the alien spouse capacitating the latter to remarry.
I am confident that said interpretation would prevail in court because to rule otherwise
would be to sanction absurdity and injustice. Where the interpretation of a statute according to
its exact and literal import would lead to mischievous results or contravene the clear purpose of
the legislature, it should be construed according to its spirit and reason, disregarding as far as
necessary the letter of the law. A statute may therefore be extended to cases not within the literal
meaning of its terms, so long as they come within its spirit or intent (LOPEZ & SONS, INC. v.
COURT OF TAX APPEALS, No. L-9274, 1 February 1957, 100 Phil. 850)
Recommendation
To invoke Paragraph 2 of Article 26, it is required that you should submit competent
evidence concerning the divorce decree and the naturalization of your wife. This is based on the
settled rule that one who alleges a fact has the burden of proving it and mere allegation is not
evidence (CORTES v. COURT OF APPEALS, G.R. No. 121772, 13 January 2003,
395 SCRA 33).
Likewise, it is also a rule under Philippine law that before a foreign divorce decree can
be recognized by our own courts, the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it. Such foreign law must also be proved
as our courts cannot take judicial notice of foreign laws (GARCIA v. RECIO, G.R. No.
138322, 2 October 2001, 366 SCRA 437).
Furthermore, you must also show that the divorce decree allows your ex-wife to
remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient
to declare that you are capacitated to enter into another marriage.
For the said purpose, we recommend the filing of a Petition for Declaratory Relief based
on Section 1 of Rule 63 of the Rules of Court. The said provision states:
“Section 1. Who may file petition — Any person interested
under a deed, will, contract or other written instrument, or whose
rights are affected by a statute, executive order or regulation,
ordinance, or other governmental regulation may, before breach
or violation thereof, bring an action in the appropriate Regional
Trial Court to determine any question of construction or validity
arising, and for a declaration of his rights or duties, thereunder.”
In the case of OFFICE OF THE OMBUDSMAN v. IBAY, G.R. No. 137538, 3
September 2001, 364 SCRA 281, it was held that the requisites of a Petition for Declaratory
Relief are:
1) there must be a justiciable controversy;
2) the controversy must be between persons whose interests are adverse;
3) that the party seeking the relief has a legal interest in the controversy; and
4) that the issue is ripe for judicial determination.
I am of the considered opinion that the said requisites are all present. First, your case
clearly presents a justiciable controversy concerning the applicability of Paragraph 2 of Article
26 to a marriage between two Filipino citizens where one later acquired alien citizenship,
obtained a divorce decree, and remarried while in the U.S.A. Second, the State, which will be a
party to the petition will necessarily assert its duty to protect the institution of marriage while
you, a private citizen, will insist on a declaration of your capacity to remarry; hence adverse
interests will be involved. Third, you, as the party who will be praying for relief, clearly have
legal interest in the controversy. Lastly, the issue is also ripe for judicial determination
inasmuch as when you remarry, litigation will ensue and put into question the validity of your
second marriage.
I appreciate the opportunity to advise you regarding this matter. Please let me know if
you wish to discuss any of these issues further. Thank you.
Yours faithfully,
(Sgd.) LEGAL COUNSEL
This legal opinion was prepared by Atty. Ralph Sarmiento.
