American husband can get a divorce, wife can remarry
"For 5 years I had been married to an American Mexican. He is now 74 years old. We did not have a good relationship and he wants to get a divorce. My query is, can he file a divorce in America?
M. RosellDear M. Rosell,
Anent your query if your American Mexican husband can get a divorce in America, the answer is yes.Pertinent law subject of your query are the New Civil Code and the Family Code of the Philippines, thus:
“Article 15, New Civil Code.-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.”“Article 17, New Civil Code.-The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.
Xxx”“Article 26, Family Code. XxxWhere a marriage between a Filipino citizen and a foreigner is validly celebrated and 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.”Status is the sum total of a person’s rights, duties, and legal capacities. The rights and obligations of a person may be governed by his law of domicile or national law. The rights and obligations of Filipinos are governed by the law of the Philippines regardless of their place of residence.
Article 15 of the New Civil Code is a rule of private international law. It is the so-called conflicts rule for it refers to a foreign element such as a foreign country or national. For Filipinos, insofar as Philippine laws are concerned, the same are applicable to Filipinos even though residing abroad, thus, a Filipino wife or a Filipino husband remains as a husband or a wife, wherever he or she may reside or go. On the other hand, nationals of other countries are considered to be governed by their own national law. Thus, the acts of your American Mexican husband are governed by the laws of America which is his national law. In America, divorce is allowed, thus, your husband can file a divorce anytime he wants to.However, the Congress, by virtue of Article 26 of the Family Code, accorded relief to Filipinos who are spouses of foreigners to get the same benefit as what the foreigner spouse will get from the granting of the divorce, to the end that such Filipino spouse can also remarry under Philippine law. The intent of the framers of the law is to avoid unfairness to the Filipino spouse.After your foreigner husband gets a divorce in his country, such divorce is valid here as if the same has been obtained here in the Philippines, thus, capacitating you to remarry should you want to after complying some legal requirements and start moving on and living your own life.In GRACE J. GARCIAAAAa.k.a. GRACE J. GARCIA-RECIO vs. REDERICK A. RECIO,[G.R. No. 138322. October 2, 2001], the Supreme Court through Justice J. Panganiban states that “A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgments hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence”.Thus, A Divorce Decree that may be obtained in America can be recognized in Philippine jurisdiction through a Petition for Recognition of a Foreign Divorce Decree under Rule 39, Section 48 of the Rules of CourtFurther, in Republic v. Cipriano Orbecido III, G.R. No. 154380, October 5, 2005, the Supreme Court spelled out the twin elements for the applicability of the second paragraph of Art. 26, thus:x x x [W]e state the twin elements for the application of Paragraph 2 of Article 26 as follows:1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner and2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.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.We hope that we were able to address your concern. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com."
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"American husband can get a divorce, wife can remarry"
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