Article 26 of the Family Code: Marriages and divorce abroad
Status: Amended
Amended
This provision has been amended. The text below is the current version.
- Amended by: Executive Order No. 227
What does Article 26 say?
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.
What does it mean in plain language?
Article 26 has two rules. First, a marriage celebrated abroad is valid in the Philippines if it was valid in the country where it took place, except for the kinds of marriage the article lists. Second, when a Filipino is married to a foreigner and a valid divorce is obtained abroad that lets the foreign spouse remarry, the Filipino spouse can also remarry under Philippine law.
Philippine law does not provide for absolute divorce, so Philippine courts cannot grant one (Manalo). The second paragraph exists so that a Filipino is not left married to a foreign spouse who, under his or her own country's law, is no longer married. Executive Order No. 227 added this paragraph to the Family Code.
A foreign divorce does not take effect in the Philippines by itself. A Philippine court must recognize it first. To get that recognition, the person must prove the divorce as a fact and prove the foreign law that allows it.
How does it work in real life?
Gina and Hiroshi: divorce filed by the Filipina
Gina, a Filipina, married Hiroshi, a Japanese citizen, in Manila. Years later Gina herself filed for divorce in Japan and got a decree. Under Manalo, it does not matter that Gina was the one who filed. To remarry in the Philippines, she asks a Philippine court to recognize the divorce. She must present the divorce decree as proof of the divorce, and also prove the Japanese law on divorce.
Ramon and Liza: one spouse became American
Ramon and Liza, both Filipinos, married in Cebu. Liza moved to the United States, became an American citizen and later got a divorce there. Under Orbecido, Article 26 can apply to Ramon, because Liza was already a foreigner when she got the divorce. Ramon must prove Liza's naturalization, the divorce, the foreign law, and that the divorce lets Liza remarry.
Marco and Nina: two Filipinos divorced in Dubai
Marco and Nina, both Filipino citizens, got a divorce while working in Dubai. Neither changed citizenship. Article 26 does not help them, because neither spouse was a foreigner. Under Philippine law they are still married. A new marriage by either of them would be bigamous, and bigamous marriages are void (Article 35(4)).
These are made-up examples to show how the rule works. They are not advice for any real case.
What does this mean in practice?
- The court case is about recognizing the foreign divorce, not about trying the divorce again. Manalo says Philippine courts "extend the effect of a foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage".
- Philippine courts still decide the legal effects in the Philippines, such as custody, care and support of children, or property, according to Manalo.
- A foreign law is a fact that must be alleged and proven. A Philippine judge will not simply assume what a foreign law says.
- Only the Filipino spouse can claim the right in the second paragraph. In Corpuz v. Sto. Tomas (2010), the Supreme Court said "the substantive right it establishes is in favor of the Filipino spouse". The foreign spouse can still ask a Philippine court to recognize the foreign divorce decree as a foreign judgment.
- In Fujiki v. Marinay (2013), the Court said recognition of a foreign judgment only requires proof of the fact of the judgment, so it may be made in a special proceeding to cancel or correct entries in the civil registry under Rule 108 of the Rules of Court.
- For the whole recognition process, see is a foreign divorce valid in the Philippines?
- The PSA marriage certificate and CENOMAR guides on this site explain how to request copies of your civil registry records.
Which marriages abroad are not valid here?
Under the first paragraph, a marriage valid where it was celebrated is still not valid in the Philippines if it falls under Articles 35(1), (4), (5) and (6), 36, 37 or 38. In plain words, these are marriages where:
- a party was below 18 years old (Article 35(1));
- the marriage is bigamous or polygamous, outside the case of Article 41 (Article 35(4));
- one party made a mistake about who the other person was (Article 35(5));
- it is a later marriage that is void under Article 53 (Article 35(6));
- a party was psychologically incapacitated (Article 36);
- the marriage is incestuous (Article 37) or void for reasons of public policy (Article 38).
How did the Supreme Court widen the second paragraph?
Read word for word, the second paragraph seems to cover only a couple where one spouse was already a foreigner on the wedding day, and only a divorce obtained by the foreign spouse. Two Supreme Court rulings changed how it is applied:
- Republic v. Orbecido III (2005): the paragraph also covers two Filipinos who married, when one of them later became a foreign citizen and then obtained a divorce. The Court said the reckoning point is citizenship "at the time a valid divorce is obtained abroad".
- Republic v. Manalo (2018): the paragraph also covers a Filipino who personally filed for the divorce against a foreign spouse. The Court said: "The letter of the law does not demand that the alien spouse should be the one who initiated the proceeding wherein the divorce decree was granted."
Both rulings kept one condition. The person must prove the divorce and the foreign law in a Philippine court. In both cases the Supreme Court did not end the matter there: in Orbecido it set aside the lower court's ruling for lack of evidence, and in Manalo it sent the case back to the trial court to receive proof of the Japanese divorce law.
Which Supreme Court rulings are relevant?
- Republic v. Manalo (G.R. No. 221029)Republic v. Manalo explained: a Filipino who obtains a divorce abroad against a foreign spouse can have it recognized here, if the foreign law is proven.
- Republic v. Orbecido III (G.R. No. 154380)Republic v. Orbecido III explained: a Filipino can remarry after a spouse who became a foreign citizen gets a divorce abroad, once the facts are proven.
- Corpuz v. Sto. Tomas (G.R. No. 186571)Corpuz v. Sto. Tomas explained: a foreign spouse may ask a Philippine court to recognize a divorce, and registering it without court recognition is void.
- Fujiki v. Marinay (G.R. No. 196049)Fujiki v. Marinay explained: how a foreign court judgment voiding a bigamous marriage is recognized in the Philippines through a Rule 108 petition.
Frequently asked questions
Is a marriage done abroad valid in the Philippines?
Usually yes. Under the first paragraph of Article 26, a marriage valid where it was celebrated is also valid here, unless it falls under the exceptions the article lists, such as a party below 18, bigamy, mistake of identity, psychological incapacity, incest or marriages void for public policy.
My foreign spouse divorced me abroad. Can I remarry in the Philippines?
Under the second paragraph of Article 26, the Filipino spouse gains capacity to remarry. In practice a Philippine court must first recognize the foreign divorce. You must prove the divorce and the foreign law that allows it, because Philippine courts do not take judicial notice of foreign laws.
What if I am the Filipino who filed for the divorce abroad?
In Republic v. Manalo (2018), the Supreme Court said the law does not require the foreign spouse to be the one who filed. A Filipino who obtained the divorce against a foreign spouse is also covered, as long as the divorce and the foreign law are proven.
We were both Filipinos when we married, but my spouse later became a foreign citizen and divorced me. Does Article 26 apply?
Yes. In Republic v. Orbecido III (2005), the Supreme Court said what counts is citizenship when the divorce is obtained, not on the wedding day. You still have to prove the naturalization, the divorce and the foreign law.
We are both Filipinos and got divorced abroad. Are we still married here?
Yes. In Manalo the Supreme Court restated that the marriage of two Filipinos cannot be dissolved even by an absolute divorce obtained abroad. Article 26 needs one spouse to be a foreigner when the divorce is obtained.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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