LAST February 5, a month before the country went on lockdown, the committee on family relations of the House of Representatives approved House Bill No. 100, or the proposed Absolute Divorce Act.
Cong. Edcel Lagman, author of the proposed measure, will now consolidate his bill with the other divorce bills filed by other congressmen, after which the same will be presented to the plenary for possible approval.
This has been the biggest stride such a bill has taken in the history of this country that has remained the only country in the world without a divorce law. That is, aside from the Vatican.
In the absence of a divorce law, estranged couples have resorted to annulment of marriage under the Family Code.
It is a famously tedious and complicated process that has bred some documented cases of corruption in the trial courts. A number of lawyers have actually been the subject of complaints for manufacturing favorable annulment decisions for their clients.
The vaunted expense in securing an annulment has also placed the process beyond the reach of the poor. Most couples would choose to separate in fact rather than expend much money and effort in litigating the annulment of their marriage.
This has swelled the number of illegitimate children borne out of unions that may not be legalized for as long as one of the parents remains married to his or her estranged spouse.
Lawyers abroad have expressed bewilderment over how the Philippine legal system has rejected divorces secured in other countries.
This happens when a Filipino citizen marries a foreigner. When the marriage is dissolved through a divorce secured abroad, the foreigner is free to remarry but the Filipino spouse will have to wade through a puddle of legal steps before getting disentangled from a relationship that no longer exists in the eyes of that other country.
Traditional thought is that a divorce decree obtained by a Filipino abroad cannot be recognized in the Philippines because Philippine law does not allow divorce.
However, the Family Code 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 likewise have capacity to remarry under Philippine law.”
Our trial courts have been restrictive in their interpretation of that cited provision in the Family Code.
The word “obtained” is being interpreted to mean that the divorce proceeding must have been initiated by the alien spouse and not by the Filipino spouse. If it is the Filipino spouse who initiates the divorce, or at least joins in the proceedings, that divorce decree may not be given force and effect under Philippine law.
Fortunately, the Supreme Court has recently been liberal in its interpretation of the law. In December 2019, it came out with a ruling that confirms this liberal trajectory.
The case of Moraña vs. Republic explains the purpose of the law, which is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who is no longer married to him or her.
Whether the Filipino spouse initiated the foreign divorce proceeding or not, a decree dissolving the marriage bond and capacitating his or her alien spouse to remarry will have the same result: the Filipino spouse will effectively be without a husband or wife.
But there lies the rub. Even if the law has been clarified, the Filipino spouse will still have to avail of the judicial procedure of getting his or her divorce recognized and registered under Philippine law.
Judicial recognition of a foreign divorce must be non-adversarial, but our rules on evidence are designed to nitpick on how the divorce decree and the foreign law must be presented as facts before our family courts.
For example, while it is easy for a mixed couple to secure a divorce certificate in Japan, it is ten times more difficult for the Filipino spouse to have that same certificate recognized in the Philippines.
In fact, a number of such petitions have been dismissed for mere failure of the petitioner to present an official English translation of Japanese law. The courts require more than a printout from a website to prove a foreign law.
Even then, the Supreme Court through its pronouncements on mixed marriages has cleared the path for the enactment of a good divorce law.
Chief Justice Diosdado Peralta has had occasion to comment that it is hypocritical to safeguard the quantity of existing marriages and, at the same time, “brush aside the truth that some of them are of rotten quality.” Will the Senate listen?/PN
