Divorced but canít remarry

First Posted 10:38:00 10/31/2010

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CALIFORNIA, United States?Amelia?s husband George left for the US in 2007. They have two minor children who are both in elementary school. Every month, George sends $200 for the support of his wife and children.

After two years, George stopped sending his support and instead sent Amelia a summons and a copy of the petition for divorce. Amelia did not sign the divorce. Nevertheless, a California Superior Court issued a final divorce judgment.

After more than two years, Amelia learned that George married a US citizen and he was petitioned by his US citizen spouse to become a lawful permanent resident. In the meantime, Amelia went on with her life and met Joseph, also a US citizen. Their relationship developed and Joseph subsequently asked Amelia to marry him so that she can be petitioned to go with him to the US. Amelia accepted Joseph?s proposal and they both set a date for their marriage.

As a condition for Amelia to remarry in the Philippines, recognition of the foreign decree of divorce is needed in Philippine courts. The request for recognition was denied on the ground that both George and Amelia were Filipino citizens at the time the divorce was obtained. According to Amelia?s legal counsel, the divorce issued by the California Court has no valid and legal effect in the Philippines, as divorce between two Filipino citizens is not recognized.

Amelia was asked to determine whether George is now a US citizen in order that a divorce may be re-filed to dissolve their marriage (again). Unfortunately, George informed Amelia that his marriage to the US citizen did not work out and that he obtained a second divorce from the second wife. George, though now a green card holder, is still a Filipino citizen.

Amelia is ready to move on with her life and would like to marry her boyfriend Joseph. Unfortunately, she is not allowed to remarry considering that under Philippine law, the divorce decree obtained by his former spouse is not recognized. The only exception recognized in Philippine law is in mixed marriages where the foreign national spouse was the party who obtained the divorce. Will Amelia be able to remarry Joseph? She now wants to migrate to the US with him and build their family there.

Inequity of the law

While there is no divorce in the Philippines, there is an exception under Section 26 of the Family Code when one of the parties to the marriage is a foreign national. However, for purposes of remarriage of the Filipino national, this divorce decree must be judicially recognized in Philippine courts.

In the case of Amelia, since her spouse is not a foreign national but still a Filipino citizen, the divorce that was obtained in a California court would not benefit her. This means that she cannot remarry in the Philippines. George, on the other hand, has not only been remarried to a new partner, he is free to divorce and remarry as many times as he wants.

Much as Amelia wants to remarry and live with Joseph, she is deprived from doing so under Philippine law.

Divorce of two Filipinos

It is not uncommon, and not at all hard, for Filipino parties to a marriage to circumvent the prohibitions of the law. This situation arises when one or both Filipino spouses travel to the US and one party files for divorce in a state court. When the divorce is final, either or both parties can then remarry their respective new partners.

These marriages are recognized in US jurisdictions even if it is not valid in the Philippines. Since divorce judgment is recognized in the US, the divorced Filipino spouse can enter into a subsequent marriage with a new partner. This is a common situation where the Filipino is able to get immigrant status in the US and later on naturalized to become a US citizen.

No divorce in the Philippines

Should the second spouse return to the Philippines after being divorced in the US, this spouse remains ?married? and is barred from entering into a subsequent marriage without suffering the criminal consequences of either adultery or bigamy. The first spouse who stays in the US, on the other hand, is free to remarry and build a new life.

Divorce for Filipino nationals may still be an evolving legal issue. In actual cases, the consequences of a lack of legalization of divorce in the Philippines are being experienced both in negative and positive ways depending on the party to the marriage who is able to circumvent this prohibition.

Preservation of a family unit for as long as possible is paramount. But in a global economy where people travel and migrate significantly, the strength of a marital relationship is always seriously challenged.

If this happens, aren?t families better off with a regulated family law that governs child/spousal support and allow divorce between Filipino nationals and not just mixed marriages?

Tancinco may be reached at law@tancinco.com or at 02 887-7177 or 02 721-1963.

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