The Supreme Court x x x aims to adopt a liberal construction of statues. By liberal construction of statutes is meant that method by which courts from the language used, the subject matter, and the purposes of those framing laws, ae able to find out their true meaning. There is a sharp distinction, however, between construction of this nature and the act of court in engrafting upon a law something that has been omitted which someone believes ought to have been embraced. The former is liberal construction and is a legitimate exercise of judicial power. The latter is judicial legislation forbidden by the tripartite division of powers among the three departments of government, the executive, the legislative and the judicial.1
On the basis of the Court's rulings in Van Dorn v. Romillo, Jr.2 (Van Dorn), Republic of the Philippines v. Orbecido, III3 (Orbecido), and Dacasin v. Dacasin4 (Dacasin), the ponencia holds that Aticle 25(2) of the Family Code permits the blanket recognition, under Philippine law, of a divorce decree obtained abroad by a Filipino citizen against the latter's foreigner spouse.
At the outset, it bears to emphasize that the public policy against absolute divorce remains in force. At present, there exists no legal mechanism under Philippine law through which a Filipino may secure a divorce decree upon his own initiative. Accordingky, it is the Court's duty to uphold such policy and apply the law as it currently stands until the passage of an amendatory law on the subject.
As members of the Court, ours is the duty to interpret the law; this duty does not carry with it the power to determine what the law should be in the face of changing times, which power, in turn, lies solely within the province of Congress.
Article26(2) of the Family Code is an
Exception to the nationality principle
Under Article 15 of the Civil Code.
Article 26(2) was introduced during the meetings of the Joint Civil Code and Family Law Committee (the Committee) to address the effect of foreign divorce decrees on mixed marriages between Filipinos and foreigners. The Provision, as originally worded, and the rationale for introduction, appear in the deliberations:
[Professor Esteban B. Bautista (Prof. Bautista)]'s position, even under the present law, was that the Filipina wife should be allowed to remarry as long as the divorce is valid under the national law of husband, with which [Judge Alicia Sempio-Diy (Judge Diy)] and [Justice Leonor Ines-Luciano (Justice Luciano)] concurred.
After further deliberation, [Justice Ricardo C. Puno (Justice Puno)] suggested that they formulate the base to cover the above situation. Judge Diy and [Justice Eduardo P. Caguioa)] formulated the base as follows:
In a mixed marriage between a Filipino citizen and foreigner, both capacitated to marry under Philippine law, in case the foreigner should obtain a valid divorce abroad, capacitating him to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.5
However, subsequent deliberations show that the Committee ultimately resolved to delete the provision and defer action until absolute divorce is determined in future legislation:
On Article [26(2)], [Justice Jose B.L. Reyes (Justice Reyes)] commented that it seems to discriminate against Filipinos, who are maried to Filipinos, since the provision governs only Filipinos married to foreigners.
Justice Puno suggested that, in line with Justice Caguioa's view that x x x they should make the Proposed Family Code as acceptable as possible and since they are not touching on divorce which is one of the big issues and they are leaving it to future legislation, they omit Article [26(2)] temporarily and take it up when they take up the matter of absolute divorce.
Prof. Bautista remarked that it is a matter of equity, justice and fairness that Article [26(2)] should be retained. On the point raised by Justice Reyes, Prof. Bautista opined that there is no unfairness in the case of a Filipino, who is married to a Filipino, because in the case of a Filipino who is married to a foreigner is already free, and yet the Filipino is still married to nobody. [Dean Bartolome S. Carale (Dean Carale) added that if two Filipinos are married anywhere, they are both covered by the Philippine prohibitory laws because they are nationals of the Philippines. Justice Caguioa, however, pointed out that, in effect, there is preferential treatment in the case of Filipinos married to foreigners, since if the foreigner gets a divorce, the Filipino spouse also automatically gets a divorce. Dean Carale remarked that Article [26(2)] will in effect encourage Filipinos to marry foreigners. Prof. Bautista disagreed since iy is the foreigner and not the Filipino, who will seek divorce.
x x x x
Justice Reyes remarked that this article is an implicit recognition of foreign divorce, with which Justice Caguioa concurred. Prof. Bautista and [Professor Flerida Ruth P. Romero (Prof. Romero)] pointed out that the article will only cover exceptional cases and special situations and that there is a reasonable and substantial basis for making it an exception.
After further discussion, Justice Puno rephrased Article [26(2)] in accordance with Dr. Cortes' suggestion as follows:
Where a marriage between a Filipino citizen and a foerigner is validly ibtained abroad capacitating such foreigner to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.
x x x x
Having sufficiently discussed the matter, the Committee decided to put the issue to a vote.
The members voted as follows:
(1) Justice Puno, Justice Caguioa, Dr. Cortes, Dean Carale, Ddean Gupit and Prof. Baviera were for the deletion of Article [26(2)].
(2) Justice Diy, Prof. Bautista, Prof. Romero and [Director Flora C. Eufemio] were for its rentention.
Hence, the Committee agred that x x x Article [26(2)] shall be deleted x x x.6 (Emphasis and underscoring supplied)
Accordingly, Article 26(2) did not appear in the initial version of the Family Code under Executive Order (EO) 209 which was signed into law by then President Corazon Aquino in July 6, 1987. Days after, or on July 17, 1987, President Aquino issued EO 227 which incorporated, among others, Article 26(2). Thus, when the Family Code finally took effect on August 3, 1988, Article 26, in its entirety, read as follows:
Art. 26. 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 shall likewise have capacity to remarry under Philippine law.
While Article 26(2) was reinstated by executive fiat, it is nevertheless clear that the true spirit behind the provision remains explicit in the Committee deliberations - Article 26(2) had been crafted to serve as an exception to the nationality principle embodied in Article 15 of the Civil Code, which states:
ART. 15. Law relating to family rights and duties, or to the status, condition and legal capacity if persons are binding upon citizens of the Philippines, even though living abroad.
The deliberations show that Article 26(2) has the effect of (i) enforcing divorce decrees whish are binding on foreign nationals under their national law; and (ii) recognizing the residual effect of such foreign divorce decrees on their Filipino spouses who are bound by the prohibition against absolute divorce under the Civil Code.7
To be sure, Article 26(2) had not been crafted to dilute the Philippines' policy against absolute divorce. In fact, this perceived possible dilution is precisely what prompted the majority of the Committee members to vote for the deletion of Article 26(2) in the initial version of the Family Code found in EO 209. As the deliberations indicate, the exception provided in Article 26(2) is narrow, and intended only to address the unfair situation that result s when a foreign national obtains a divorce decree against a Filipino citizen, leaving the latter stuck in a marriage without a spouse, thus:
Justice Caguioa explained that the intention of the provision is legalize foreign divorces for the Filipino so that in the case of a Filipina, who was married to an American, who is turn later secured a divorce, said Filipina willl be allowed to remarry. Justice Puno and Judge Diy remarked that this is not clear in the provision [Article 26(2)]. Justice Puno, however, commented that it will open the gates to practically invalidating the Philippine laws by simple expedient of marrying a foreigner, and that it will be an additional cause for the breakage of families, with which Justice Caguioa concurred. Judge Diy stated that on the other hand, it is an absurdity for a Filipina to be married without a husband.8 (Emphasis supplied)
I believe that this view is consistent with the Court's ruling in Van Dorn,Orbecido, and Dacasin.
In Van Dorn a case decided prior to the enactment of the Family Code, an American citizen sought to compel his former Filipina wife to render an accounting of their alleged conjugal business in Manila. The American citizen argued that he retained the right to share in the proceeds of the dispute business, as the divorce decree issued by the Nevada District Court cannot be given effect in the Philippines. Ruling against the American citizen, the Court held that the divorce decree issued by a United States court is binding against him as an American citizen.9 As a residual effect of such divorce, the American citizen no longer had standing to sue as the husband of his former Filipina wife.10 Hence, in Van Dorn the Court held:
It is rule that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. Howover, aliens may obtain divorces abroad, which may be recognized in the Philippines provided they are valid according to their national law. x x x11 (Emphasis supplied)
In Orbecido, a Filipino citizen sought permission to remarry before the courts, claiming that his former Filipina wife had obtained a divorce decree against him from an American court after she had become naturalized American citizen. The Court held that the effects of the divorce decree should be recognized in the Philippines since it was obtained by the former wife as an American citizen in accordance with her national law, and that as a consequence , the Filipino husband should be allowed to remarry pursuant to Article 26(2). In so ruling, the Court laid down elements for the application pf Article 26(2), thus:
In vies of the foregoing, we state tha twin elements for the application of Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has been clebrated between a Filipino citizen and a foreigner; and
2. 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.
In this case, when [the Filipino spouse's] wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between [them]. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus x x x the "divorced" Filipino spouse should be allowed to remarry .12 (Emphasis and underscoring supplied).
Still, in Dacasin, a Filipino wife secured a divorce decree against her American husband from an Illinois is court. The decree awarded sole custody over the parties' daughter in favor of the Filipino wife. While the parties subsequently executed a Joint Custody Agreement, the Filipino wife refused to honor the agreement, prompting the American husband to seek redress before the Philippine courts. The Court held that the Illinois divorce decree is binding on the American citizen, and that the latter cannot be permitted to evade the terms of the custodial award, Citing the nationality principle, the Court stressed that "a foreign divorce decree carries as much validity against the alien divorcee in this jurisdiction as it does in the jurisdiction of the alien's nationality, irrespective of who obtained the divorce."13 It bears stressing that the issue raised in Dacasin was the enforceability of the Joint Custody Agreement against the American husband , and not the validity of the foreign divorce decree as against the Filipino wife.
Thus rather that serving as bases for the blanketrecognition of foreign divorce decrees in the Philippines, I believe that the Court's rulings in Van Dor, Orbecido and Dacasin merely clarify the parameters for the application of the nationality principle found in Article 15 of the Civil Code, and the exception thereto found in Article 26(2) the Family Code. These parameters may be summarized as follows:
1. Owing to the nationality principle, all Filipino citizens are covered by the prohibition against absolute divorce. As a consequence of such prohibition, a divorce decree obtained abroad by a Filipino citizen cannot be enforced in the Philippines. To allow otherwise would be to permit a Filipino citrizen to invoke foreign law to evade an expresss prohibition under Philippine law.
2. Nevertheless, the effects of a divorce decree obtained by a foreign national may be extended to the law Filipino spouse, provided the latter is able to prove (i) the issuance of a divorce decree, and (ii) the personal law of the foreign spouse allowing such divorce.14 This exception, found under Article 26(2) of the Family Code, respects the binding effect of the divorce decree on the foreign national, and merely recognizes the residual effect of such decree on the Filipino spouse.
It should be emphasized, however that the prohibition against absolute divorce only applies to Filipino citizens. Accordingly, it cannot be invoked by a foreign national law. To reiterate, a divorce decree issued by a foreign court remains binding on the foreign spouse in the Philippines, regardless of the party who obatianed the same provided that such decree valid and effective under the foreign spouse's national law.
In essence, the applicable rule (whether Article 15 of the Civil Code on one hand, or Article 26 of the Family Code on the other), is determined by (i) the law upon which the divorce decree had been issued; brought before the Philippine courts; and (iv) the law governing the personal status of the party seeking relief.
The corresponding effect of these determining factors are, in turn illustrated by the relevant cases involving the issue at hand, decided after the issuance of EO 227:
Incidents of Divorce
Incidents of Action in the Philippines
Pilapil v. Ibay-Somera15 (Pilapil)
Divorce obtained in Germany by German Spouse
German spouse filed two (2) complaints charging Filipino spouse with adultery
The divorce decree is binding on the German spouse pursuant to the nationality principle. Accordingly, the German spouse lacks standing to file the complaints as "offended spouse", having obtained the divorce decree prior to the filing of said complaints.
Republic v. Iyoy16 (Iyoy)
Divorce obtained in the United States by Filipino wife prior to her naturalization as an American citizen
Filipino husband invokes the divorce decree secured by his Filipino wife as additional ground to grant his petition for declaration of nullity
The divorce decree cannot be recognized in the Philippines since the Filipino wife obtained the same while still a Filipino citizen, and was at such time, bound by Philippine laws on family rights and duties, pursuant to the nationality principle.
Divorce obtained in the United States by naturalized American spouse
Filipino spouse sought enforcement of divorce in the Philippines
The effects of the divorce decree must be recognized in favor of the Filipino spouse pursuant to Article 26(2) of the Family Code, Accordingly, the Filipino spouse should be allowed to re-marry.
Divorce obtained in the United States by Filipino spouse
American spouse sought enforcement of the Joint Custody Agreement he had executed with his former Filipino wife which bore terms contrary to those in the divorce decree
The divorce decree is binding on the American spouse, pursuant to the nationality principle. Accordingly, he cannot be allowed to evade the same by invoking the terms of the Joint custody Agreement.
Bayot v. Court of Appeals17 (Bayot)
Divorce obtained in the Dominican Republic by naturalized American Spouse
Naturalized American Spouse sought annulment of her marriage with her Filipino spouse through a petition for annulment filed before the Regional Trial Court (RTC)
The divorce decree is binding on the naturalized American spouse, pursuant to the nationality principle. Accordingly she is left without any cause of action before the RTC, as a petition for annulment presupposes a subsisting marriage.
Fujiki v. Marinay18 (Fujiki)
Divorce obtained in Japan by Filipina wife against her second husband who is a Japanese national
First husband (also a Japanese national) sought recognition of the divorce obtained by his Filipina wife against her second husband through a Petition for Judicial Recognition of Foreign Judgment (or Decree of Absolute Nullity of Marriage) filed before the RTC
The effect of the divorce decree issued pursuant to Japanese law may be recognized in the Philippines in order to affect the status of the first husband, who, pursuant to nationality principle, is governed by Japanese law. Such recognition is in line with the Philippines' public policy, which characterizes bigamous marroages as void ab initio.
Medina v. Koike19 (Medina)
Divorce jointly obtained in Japan by Filipina wife and Japanese husband
Filipina wife sought to enforce the divorce in the Philippines through a Petition for Judicial Recognition of Foreign Divorce and Declaration of Capacity to Remarry before the RTC
The case was remanded to the CA to allow Filipina wife to proved that the divorce obtained abroad by her and her Japanese husband is valid according to the latter's national law.
The factual circumstances in the foregoing cases illustrate and confirm, the legislative intent behind Article 26(2), that is, primarily, to recognize foreign divorce decrees secured by foreign nationals insofar as they affect Filipinos who would otherwise be precluded from invoking such decrees in our jurisdiction, and, as well, to recognize those foreign divorce decrees obtained by Filipinos insofar as they affect their foreign spouses whose national laws allow divorce. For emphasis, I quote the relevant portion of the deliberations:
Prof. Bautista remarked that it is a matter of equity, justice and fairness that Article [26(2)' should be retained. x x x Dean Carale added that if two Filipinos are married anywhere, they are both covered by the Philippine prohibitory laws because they are nationals of the Philippines. Justice Caguioa, however , pointed out that, in effect, there is preferential treatment in the case of Filipinos married to foreigners, since if the foreigner gets a divorce , the Filipino spouse also automatically gets a divorce. Dean Carale remarked that Article [26(2)] will in effect encourage Filipinos to marry foreigners. Prof. Bautista disagreed since it is the foreigner and not the Filipino, who will seek divorce.
x x x x
Justive Reyes remarked that this article is an implicit recognition of foreign divorce, with which Justice Caguioa concurred. Prof. Bautista and Prof. Romero pointed out that the article will only cover exceptional cases and special situations and that there is a reasonable and substantial basis for making it an exception.20 (Emphases and underscoring supplied)
Consistent with the foregoing, the Court held in Iyoy:
As it worded, Article 26, paragraph 2, refers to a special situation wherein one of the [parties in the marriage] is a foreigner who divorces his of her Filipino spouse. By its plain and literal interpretation, the said provision cannot be applied to the case of respondent Crasus and his wife Fely because at the time Fely obtained her divorce, she was still a Filipino citizen. x x x x At the time she filed for divorce, Fely was still a Filipino citizen, and pursuant to the nationality principle embodied in Article 15 of the civil Code of the Philippines, she was still bound by Philippine laws on family rights and duties, status, condition, and legal capacity, even when she was already living abroad. Philippine laws, then and even until now, do not allow and recognize divorce between Filipino spouses. Thus, Fely could not have validity obtained a divorce from respondent Crasus.21 (Emphasis and underscoring supplied)
Article 26(2) of the Family Code
merely recognizes the classification
previously made pursuant to the
The ponencia characterizes Article 26(2) of the Family Code as unconstitutional, as it proceeds from a "superficial [and] arbitrary" classification.22 This position appears to be based on the premise that Article 26(2) creates new distinctions in itself. This premise, however, is simply erroneous.
The clasifcation under Article 26(2), (that is, between Filipinos in mixed marriages and Filipinos married to fellow Filipinos) was created as a matter of necessity, in recognition of the classification between Filipinos and foreign nationals which had been created by Article 15 of the Civil Code decades prior.
In his Separate Opinion in Pilapil, Justice Paras highlights the interplay between these two provisions, thus:
In the case of Recio v. Hardem (100 Phil. 427 ), the Supreme Court considered the absolute divorce between the American wife as valid and binding in the Philippines on the theory that their status and capacity are governed by their National law, namely, American law. There is no decision yet of the Supreme Court regarding the validity of such a divorce if one of the parties, say an American , is married to a Filipino wife, for then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of the National law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Fiipino woman is still married to a man who is no longer her husband. It is the opinion however, of the undersigned that vey likely the opposite expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still one of the exceptions to the application of the proper foreign law (one of the exception to comity) is when the foreign law will work an injustice or injury to the people or residents pf the forum. Consequently since to recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law, it would seem that under our law existing before the new Family Code (which took effect on August 3, 1988) the divorce should be considered void both with respect to the American husband and the Filipino wife.23 (Empahsis supplied)
Hence, to characterize Article 26(2) as unconstitutional in such respect would be to disregard the nationality principle and the reasons which render the adoption thereof necessary; it would be tantamount to insisting that Filipinos should be governed with whatever law they choose.
Article 26(2) of the Family Code rests
on substantial and reasonable
It has been argued that the verba legis interpretation of Article 26(2) of the Family Code violates the equal protection clause, and that the application of the provision in this manner would not only be oppressive, but likewise unconstitutional.
These reservations appear to proceed from three different classifications which, in turn, have been called into question - first, that between Filipinos in mixed marriages and Filipinos who are married to fellow Filipinos; second, that between Filipinos and foreigners; and finally, that betweeb men and women.
As earlier discussed, the ponencia finds the first classification "superficial [and] arbitrary"24 insofar as it limits the scope of recognition to cover only those divorce decrees obtained by foreign nationals.
It bears to stress, however, that he guarantee of equal protection under the Constitution does not require that all laws indiscriminately operate with equal force with respect to all subvjects at all times;25 the guarantee does not preclude classification provided they are reasonable and based on substantial distinctions.26
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by the statute. Equality of the operation of statutes does not mean indiscriminate operation on person merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the order departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.27 (Emphasis supplied)
There should be no dispute on the exercise of substantial distinctions between Filipinos in mixed marriages and those who are married to fellow Filipinos. In fact, several of these distinctions were highlighted in the ponencia, thus:
A Filipino who is married to another Filipino is not similarly situated with a Filipino who is married to another Filipino is not similarly situated with a Filipino who is married to a foreign citizen. There are real, material and substantial differences between them, Ergo, they should not be treated alike, both as to righs conferred and liabilities imposed. Without a doubt, there are political, economic, cultural, and religious dissimilarities as well as varying legal systems and procedures, all too unfamiliar, that a Filipino national who is married to an alien spouse has contend with. More importantly, while a divorce decree obtained abroad by a Filipino against another Filipino is null and void, a divorce decree obtained by an alien against his or her Filipino spouse is recognized if made in accordance with the national law of the foreigner.28 (Emphasis supplied)
As observed by the ponencia, the most important distinction between Filipinos in mixed marriages and those who are married to fellow Filipinos is their exposure to the absurdity for which Article 26(2) had been precisely crafted, as only Filipinos in mixed marriages may find themselves married without a spouse due to the effects of a foreign divorce decree. This distinction is "substantial" as to necessitate a difference in treatment before the law.
To disregard these substantial distinctions for the sake of liberality would empower Filipinos in mixed marriages to obtain divorce decrees by invoking foreign law at whim, and effectively sanction a legal preference in their favor at the expense of those Filipinos who happen to be married to their fellow Filipinos. A liberal interpretation of Article 26(2) would, in Dean Carale's words, "encourage Filipinos to marry foreigners."29
To stress, all Filipinoa are bound by the prohibition against absolute divorce. The recognition afforded to foreign divorce under Article 26(2) is extended only as a means to recognize its residual effect on Filipinos whose marital ties to their alien spouses are severed by operation of the latter's national laws. The provision was not intended to grant any preferential right in favor of Filipinos in mixed marriages, but intended merely to recognize the operation of foreign divorce on foreigners whose national laws permit divorce.
Equally apparent is the fundamental distinction between foreigners and Filipinos under the second classification, the former being subject to their respective national laws and the latter being bound by the laws of the Philippines regardless of their legal status, among others, cannot be made subject to the same parameters. In any case, I emphasize, at the sake of being repetitious, that such classification had been created not by Article 26(2) of the Family Code, but rather, the nationality principle under Article 15 of the Civil Code:
ART. 15. 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.
Finally, I find that Article 26(2) does not make any discernable distinction between men and women, as the exception therein may be invoked by both men and women, as the exception therein may be invoked by both men and women with equal force to attain the same end, provided that the requirements for its application obtain. While I am certainly aware that the respondent in this case is one of the many Filipino women who find themselves in unsuccessful marriages with foreign nationals, I am equally aware that this unfortunate circumstance is similarly faced by Filipino men, who, like their female counterparts, are precluded from obtaining an absolute divorce under Philippine law.
Respondent's case falls outside of the
Scope of Article 26(2) of the Family
In this case, it has been established that (i) the respondent is a Filipino citizen who married a Japanese national; (ii) it was respondent who subsequently obtained a divorce decree against her Japanese husband from a Japanese court; and (iii) the respondent thereafter filed a Petition for Recognition and Enforcement of a Foreign Judgment30 before the RTC.31 It is clear that respondent is, and has always been, a Filipino citizen. Pursuant to the nationality principle, respondent's personal status is subject to Philippine law which, in turn, prohibits absolute divorce.
Hence, the divorce decree which respondent obtained under Japanese law cannot be given effect, as she is, without dispute, a national not of Japan, but of the Philippines. Nevertheless, the verba legis application of Article 26(2) does not deprive the respondent of legal remedies, as she may pray for the severance of her marital ties before the RTC in accordance with the mechanisms now existing under the Family Code.
The Constitution mandates the protection of the Family Code characterizes marriage as a special contract of permanent union, and regards the family as "am inviolable social institution whose nature, consequences, and incidents are governed by law" and generally, not subject to stipulation.33 Upon these fundamental principles rests the prohibition against absolute divorce, which had remained effective and unchanged since the enactment of the Civil Code in 1950.34
Adherence to this prohibition is met with much reservation, as it purportedly forces Filipinos to play second-fiddle to their foreign spouses, and places said Filipinos at a disadvantage. Moreover, it had been argued in the deliberation of the Court that such adherence sanctions various forms of abuse that plague mixed marriages, and deprives Filipinos in such marriages of a way out. I find that these observations, pressing as they are, already delve into the wisdom of statutes governing marriage and personnel status with which the Court cannot interfere.
To note, Article 26(2) of the Family Code has remained unchanged since the issuance of EO 227. The blanket recognition of absolute divorce overturns the Court's unequivocal interpretation of the provision as laid down in the cases of Pilapil, Iyoy, Orbecido, Dacasin, Bayot, Fujiki and Medina, which span a period of nearly three decades. Ascribing a contradictory interpretation to the provision, under the guise of equal protection, essentially re-writes Article 26(2) and gives it a meaning completely different from the farmer's intention.
While I am not oblivious to the difficulty that results from the prohibition on absolute divorce and commiserate totally with the respondent in this regard, I find that the prohibition remains, and thus, must be faithfully applied. To my mind, a contrary ruling will subvert not only the intention of the farmers of the law, but also of the Filipino people, as expressed in the Constitution. The Court is bound to respect the prohibition, until the legislature deems it fit to lift the same through the passage of a statute permitting absolute divorce.
As recognized by the ponencia, there are currently four bills in the subject of divorce and severance of marriage pending before the 17th |Congress: (i) House Bill No. 116 (HB 116) and House Bill No. 2380 (HB 2380) which propose different grounds for the issuance of a judicial decree of absolute divorce; (ii) House Bill No. 1062 (HB1062) which proposes the inclusion of separation in fact as an additional ground for annulment of marriage; and (iii) House Bill No. 6027 (HB 6027) which proposes additional grounds for dissolution of marriage. These bills have been consolidated and substituted by House Bill No. 730335 (HB 7303), which, at present, is awaiting deliberations before the Senate.36
HB 7303 proposes the issuance of divorce decrees on the basis of the following grounds:
1. The existing grounds for legal separation and the annulment of marriage under Article 55 and 45 of the Familly Code;
2. Separation in fact for at least five years;
3. Psychological incapacity, whether or not present at the time of the celebration of the marriage;
4. Gender reassignment surgery or transition from one sex to another undertaken by either spouse; and
5. Irreconcilable marital differences.37
These movements towards the passage of a divorce law illustrate that the difficulty which results from the absolute prohibition against marriage is being addressed by the 17th Congress through a statute specifically crafted for the purpose. That the legislature has seen it necessary to initiate these proposed laws is a clear delineation of the Court's role - that is, to simply apply the current law and not for it to indulge in judicial legislation.
Indeed, it is desirable, if not imperative, that statutes in a progressive democracy remain responsive to the realities of the present time. However, responsiveness is a matter of policy which requires a determination of what the law ought to be, and not what the law actually is.38 Widening the scope of the exception found in Article 26(2) so as to indiscriminately recognize foreign divorce in this jurisdiction is doing, in Justice Elias Finley Johnson's 39 words, "exactly what the Legislature itself [has] refused to do."40 It not only subverts the standing public policy against absolute divorce; worse, it sanctions a violation of the fundamental principle of separation of powers - a violation which cannot be undone by any subsequent law. To wield judicial power in this manner is to arrogate unto the Court a power which it does not possess; it is to forget that this State, is foremost governed by the rule of law and not of men, however wise suchmen are or purport to be.
Considering the foregoing, I submit that the Court of Appeals erred when it reversed the RTC's order denying respondent's Petition for Enforcement. Hence, I vote to GRANT the instant Petition for Review.
ALFREDO BENJAMIN S. CAGUIOA
1 See Tañada v. Yulo, 61 Phil. 515-516, 519 (1935) [Per J. Malcolm, En Banc]; emphasis supplied.
2 223 Phil. 357 (1985) [Per J. Melencio-Herrera, First Division].
3 509 Phil. 108 (2005) [Per J. Quisumbing, First Division].
4 625 Phil. 494 (2010) [Per J. Carpio. Second Division].
5 Minutes of the 146th Joint Meeting of the Civil Code and Family Law Committees dated July 12, 1986, p. 5.
6 Minutes of the 149th Joint Meeting of the Civil Code and Family Law Committees dated August 2, 1986, pp. 14-15.
7 See CIVIL CODE, Arts. 15 and 17,
8 Supra note 5.
9 Supra note 2, at 361.
10 Id. at 362
12 Supra note 3, at 115-116.
13 Supra note4, at 508; emphasis and underscoring supplied.
14 See Medina v. Koike, 791 Phil. 645, 651-652 (2016) [Per J. Perlas-Bernabe, First Division] Garcia c. Recio, 418 Phil. 723, 725 and 730-731 (2001) [Per J. Panganiban , Third Division].
15 256 Phil. 407 (1989) [Per J. Regalado, Second Division].
16 507 Phil. 485 (2005) [Per J. Chico-Nazario, Second Division].
17 591 Phil. 452 (2008) [Per J. Velasco, Jr., Second Division].
18 712 Phil. 525 (2013) [Per J. Carpio, Second Division].
19 Supra note 14.
20 Supra note 6.
21 Supra note 16, at 503-504.
22 Ponencia, p. 14.
23 Supra note15, at 421.
24 Ponencia, p. 14.
25 See generally Department of Education, Culture and Sports v. San Diego, 259 Phil. 1016 (1989) [Per J. Cruz, En Banc].
26 See Fariñas v. Executive Secretary, 463 Phil. 179, 206-208 (2003) [Per J. Callejo, Sr., En Banc].
27 Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531, 559-560 (2004) [Per J. Puno, En Banc].
28 Ponencia, p. 14.
29 Supra note 6, at 14.
30 Formerly captioned as Petition for Cancellation of Entry of Marriage; see ponencia, p.2.
31 Ponencia p. 2.
32 CONSTITUTION, Art. II, Sec. 12.
33 FAMILY CODE, Title I, Art. I.
34 See generally Raymundo v. Peñas, 96 Phil. 311 (1954) [Per J. J.B.L. Reyes, En Banc].
35 AN ACT INSTITUTING ABSOLUTE DIVORCE AND DISSOLUTION OF MARRIAGE IN THE PHILIPPINES.
36 HB 7303 passed its second reading on March 14, 2018, and was likewise approved on its and final reading before the lower house on March 19, 2018. See"House passes divorce bill on second reading," <http://www.sunstar.com.ph/article/423557> (last accessed on March 19, 2018) and "House aproves divorce bill on 3rd reading," <https://www.rappler.com/nation/198516-divorce-bill-philippines-passes-third-reading-house-represetatives> (last accessed on March 22, 2018).
37 See HB 7303, Sec. 5.
38 See generally People v. Vera, 65 Phil. 56 (1937) [Per J. Laurel, En Banc].
39 Justice Elias Finley Johnson served as Associate Justice of the Supreme Court of the Philippines from 1903 to 1933.
40 See Nicolas v. Alberto, 51 Phil. 370, 380 (1928) [Dissenting Opinion, J. Johnson].
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I concur with the ponencia of Justice Peralta, adding the following points.
The proposal of the Solicitor General is to give Article 261 of our Family Code an interpretation which capacitates and empowers the Japanese husband the option to divorce and how such choice has effects in our country while, at the same simply because she is a Filipina.
That interpretation may be unconstitutional. Article II, Section 14 of our Constitution provides:
Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.
This constitutional fiat advances the notion of gender equality from its passive formulation in Article III, Section 12 to its more active orientation.
Article III, Section 1 simply states that "nor shall any person be denied the equal protection of the laws." Traditionally, this means that the State has no duty to find ways and means to ensure equality. It is only a prescription that whatever legal burdens and benefits are given to men should likewise be given to women. It does not require the State, through any of its organs, to find affirmative ways and means to battle the patriarchy-that complex of political, cultural, economic factors that ensure women's disempowerment.
By enacting or Constitution and signing on to our political obligations to the Convention on the Elimination of All Forms of Discrimination Against Women, we have legally committed to do better.
We likewise note that the Family Code was followed by Republic Act No. 7192 or the Women in Development and Nation Building Act. Within this law are provisions which ensure equal treatment between men and women, thus:
Section 2. Declaration of Policy. - This State recognizes the role of women in nation building and shall ensure the fundamental equality before the law of women and men. The State shall provide women rights and opportunities equal to that of men.
. . . .
Section 5, Equality in Capacity to Act. Women of legal age, regardless of civil status, shall have the capacity to act and enter into contracts which shall in every respect be equal to that of men under similar circumstances.
In all contractual obligations where married men have the capacity to act, married women shall have equal rights.
To this end:
(1) Women shall have the capacity to borrow and obtain loans and executive security and credit arrangements under the same conditions as men;
(2) Women shall have equal access to all government and private sector programs granting agricultural credit, loans and non-material resources and shall enjoy equal treatment in agrarian reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and
(4) Married women shall have the rights equal to those of married men in applying for passports, secure visas and other travel documents, without need to secure the consent of their spouses.
In all other similar contractual relations, women shall enjoy equal rights and shall have the capacity to act which shall in every respect be equal to those of men under similar circumstances. (Underscoring suppplied)
Republic Act No. 9710 or the Magna Carta of Women reflects the state policy to "[abolish]. . . the unequal structures and practices that perpetuate discrimination and inequality"3 between the sexes, and Section 19 of the law is specific on the equality of women and men as to rights relating to marriage and family relations:
Section 19. Equal Rights in All Matters Relating to Marriage and Family Relations. - The State shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and shall ensure:
(a) the same rights to enter into and leave marriages or common law relationships referred to under the Family Code without prejudice to personal and religious beliefs;
(b) the same rights to choose freely a spouse and to enter into marriage of a child shall have no legal effect;
(c) the joint decision on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;
(d) the same personal rights between spouses or common law spouses including the right to choose freely a profession and an occupation;
(e) the same rights for both spouses or common law spouses in respect of the ownership, acquisition, management, administration, enjoyment, and disposition of property;
(f) the same rights to properties and resources, whether titled or not, and inheritance, whether formal or customary; and
(g) women shall have equal rights with men to acquire change, or retain their nationality. The state shall ensure I particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife render her stateless or force upon her the nationality of the husband. Various statutes of other countries concerning dual citizenship that may be enjoyed equally by women and men shall likewise be considered.
Customary laws shall be respected: Provided, however, That they do not discriminate against women. (Underscoring supplied)
Section 19 is straightforward: the State shall ensure that men and women are to have "the same rights to enter into and leave marriages."
Following Section 19 of Republic Act No. 9710, Article 26 of the Family Code should be read to mean that who initiates the divorce proceedings abroad is immaterial. Once a divorce decree is issued, the foreign spouse is deemed to have "obtained" a divorce which capacitates him or her to remarry. The same status should therefore ne afforded to the Filipino spouse.
Besides, in many jurisdictions, the foreign spouse is given the option to divorce on the basis of a mutual recognition that irreconcilable differences have surfaced in the context of their relationship. Some foreign laws, therefore allow joint filing for a divorce decree to ensure that there be less incrimination among the spouses, a more civil and welcoming atmosphere for their children, and less financial burden for the families affected. The interpretation proposed by the Solicitor General does not accommodate this possibility. It is blind to the actual complexities experienced by our citizens in mixed marriages.
Justice Caguioa provides the argument that interpreting Article 26 of the Family Code in manner provided in the ponencia violated the nationality principle enshrined in Article 15 of the Civil Code.
Article 15 of the Civil Code provides:
Article 15. 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.
Clearly, it is not only Article 26 of the Family Code or the Civil Code that applies. It should also include the Constitution, which is the bedrock of rights of any citizen. Thus, the State's obligation to "ensure" the fundamental equality before the law of women and men".4 applies with equal if not greater force. In mu vie, this is the full extent of the nationality principle. It is borne of rational interpretation, not judicial legislation.
Finally, my agreement with the ponencia is also impelled by my understanding that divorce is more consistent with the constitutionality command for the State to ensure human dignity.
The restrictive nature of our marriage laws tends to reify the concepts of a family which is already far from the living realities of many couples and children. For instance, orthodox insistence on heteronormativity may not compare with the various other "non-traditiona" arrangements present in many loving households.
The worst thing we do in a human relationship is to regard the commitment of the other formulaic. That is, that it is shaped alone by legal duty or what those who are dominant in government regard as romantic. In truth, each commitment is unique, borne of its own personal history, ennobled by the sacrifices it has gone through, and defined by the intimacy which only the autonomy of the parties creates.
In other words, words that describe when we love or are loved will always be different for each couple. It is that which we should understand: intimacies that form the core of our beings should be as free as possible, bound not by social expectations but by the care and love each person can bring.
Yet, the present form and the present interpretation we have on the law on marriage constrains. In love, there are no guarantees. I choosing our most intimate partners, we can commit mistakes. It is but part of being human.
Our law cruelly defines the normal. The legal is coated in a false sense of morality poorly reasoned. It condemns those who have made bad choices into a living inferno.
In my view, this case is step forward in the right direction.
As I stated in a dissent5 I wrote I 2016, we had absolute divorce laws in the past. Act No. 2710,6 enacted in 1917, allowed the filing of a petition for divorce on the ground of adultery on the part of the wife, or concubinage on the part of the husband.7
Eleven grounds for divorce were provided in Executive Order No. 141,8 effective during the Japanese occupation. These grounds included "intentional or unjustified desertion continuously for at least one year prior to the filing of a [petition]for divorce" and "slander by deed or gross insult by one spouse against the other to such an extent as to make further living impracticable."9
After the Japanese left, the laws they enacted were declared void.10 Act. No. 2710 again took effect until the Civil Code's enactment in 1950. Since then, absolute divorce has been prohibited in our jurisdiction.
A world whose borders are increasingly becoming permeable with the ease of travel as well as with the technological advances will definitely foster more inter-cultural relationships. These relationships can become more intimate.
I am of the belief that the law never intended for the Filipino to be at a disadvantage. For so long as the Constitution itself guarantees fundamental equality, the absurd result from a literal and almost frigid and unfeeling interpretation of our laws should not hold. To say that the one spouse may unequal relationship prone to abuse in such intimate relationships.
The law is far from frigid. It should passionately guarantee equality and I stand with this Court in ensuring that it does.
ACCORDINGLY, I vote to deny the Petition for Review on Certiorari and to affirm, with modification, the Court of Appeals' Decision in CA-G.R. CV No. 100076. The case should be remanded to the court of originfor further proceedings and reception of evidence as to the relevant Japanese law on divorce.
MARVIC M.V.F. LEONEN
1 FAMIY CODE, art. 26 provides:
Article 26. 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 Article 35 (i), (4), (5) and (6), 3637 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.
2 CONST, art III, Sec. 1 provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
3 Rep. Act. No. 9710, sec. 2 provides:
Section 2. Declaration of Policy. Recognizing that the economic, political, and sociocultural realities affect women's current condition, the State affirms the role of women in nation building and ensures the substantive equality of men and women entails the abolition of the unequal structures and practices that perpetuate discrimination and inequality. To realize this, the State shall endeavor to develop plans, policies, programs, measures, and mechanisms to address discrimination and inequality in the economic, political, social, and cultural life of women and men.
The State condemns discrimination against women in all its forms and pursues by all appropriate means and without delay the policy of discrimination against women in keeping with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other international instruments consistent with Philippine law. The State shall accord women the rights, protection, and opportunities available to every member of society.
The State affirms women's rights as human rights and shall intensify its efforts to fulfill its duties under international and domestic law to recognize, respect, protect fulfill, and promote all human rights and fundamental freedoms of women, especially marginalized women, in the economic, social, political, cultural, and other fields without distinction or discrimination on account of class, age, sex, gender, language, ethnicity, religion, ideology, disability, education, and status. The State shall provide the necessary mechanisms to enforce women's rights and adopt and undertake all legal measures necessary to foster and promote the equal opportunity for women to participate in and contribute to the development of the political, economic, social, and cultural realms.
The State, in ensuring the full integration of women's concerns in the mainstream of development, shall provide ample opportunities to enhance and develop their skills acquire productive employment and contribute to their families and communities to the fullest of their capabilities.
In pursuance of this policy, the State reaffirms the right of women in all sectors to participate in policy formulation, planning, organization, implementation, management, monitoring, and evaluation of all programs, projects, and services such as financing, production, and marketing to encourage active participation of women in national development.
4 CONST., art. II, sec 14.
5 See Dissenting Opinion Matudlan v. Republic, G.R. No. 203284, November 14, 2016, <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=jurisprudence/2016/november2016/203284.pdf> [Per J. Del Castillo, Second Division].
6 An Act to Establish Divorce (1917).
7 Act No. 2710, sec. 1 provides:
Section 1. A petition for divorce can only be filed for adultery on the part of the wife or concubinage on the part of the husband, committed in any of the forms described in article four hundred and thirty-seven of the Penal Code.
See Valdez v. Tuazon, 40 Phil. 943, 948 (1920)[Per J. Street, En Banc].
8 Otherwise known as "The New Divorce Law."
9 Baptista v. Castañeda, 76 Phil. 461, 462 (1946) [Per J. Ozaeta, En Banc].
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