Marriage, Nationality and Divorce
(Updated 30 July 2018)
By Atty. Rita Linda V. Jimeno
The story of Rosanne in my column last week triggered numerous reactions from readers that merit discussion. As a jump-off point, we shall encapsulate Rosanne’s case. Her Filipino husband who used to be loving and conscious of his familial obligations, abandoned all his duties toward her and their children when, as a result of his prolonged employment abroad, he found a new love. He then divorced her and married his lover with whom he now has two children.
We said that there is a gap in our family law because while her husband is no longer married to her, she remains married to him, an incongruous situation which our family law offers no solution to… Read Full Article Here
Logically You Can Not Be Married and Unmarried (Divorced) At The Same Time
I’ve had a number of online conversations lately about folks in the same or similar situations as the lady described in Attorney Jimeno’s article.
There is always a lot of discussion when a foreigner and a Filipino marry, often centering around where the marriage should take place and where, or when (if ever) they could divorce.
Now to most people’s logic, “marriage” and “divorce” (or “annulment”) are binary options. You can’t be in both situations at the same time.
But There’s a Different Sort Of Logic At Work Here In The Philippines
A couple facts to consider (from my lay knowledge only, of course, if you need a lawyer, consult one).
The Philippines recognizes US marriages and the US recognizes Philippine marriages.
This is an important point.
People write me all the time and ask things like, “well we were married in the Philippines, but now I live in California, so my Philippine marriage doesn’t mean anything here, does it”?
Well, actually it does mean something. It means a LOT. Married is married, under US or Philippine law.
Thus where the couple marries has made no difference in legality within the Philippines or the United States.
If you are married, then you are married.
Forever, unless death or a court (a court which has jurisdiction over you) dissolves the marriage.
A Marriage Can Have Huge Property Considerations
If there is no prenuptial agreement (commonly known as a Marriage Settlement in the Philippines) all the couples property becomes community property.
The day of the marriage, each member of the marriage owns half of everything the partner owns.
This joint ownership lasts forever, again, unless one party dies or the marriage is dissolved by a court.
(A court with jurisdiction. This can become very important).
Those with significant assets, children of previous marriages, etc. should really seek competent legal advice before saying “I do”.
Once a couple marries they cannot be divorced in the Philippines.
The Family Code does not allow divorce.
(A notable exception, if the marriage falls under Sharia (Muslim) law, there may be a legal (recognized by the NSO/PSA) divorce alternative available. This is way out of my area of expertise. Those of you of the Islamic faith or married to one of the Islamic faith, must seek guidance from someone competent to advise under the Sharia Law. But Saria Law divorces can only be granted for marriages celebrated under Sharaia law. This specially excludes Christain ceremones and Philippines civil ceremonies … so it is a prety small “loophole”)
The couple may:
- Obtain a legal separation under Philippine law. This can settle support, visitation, property disagreements and the like, but it is not a divorce, and neither party is free to marry again.
- Obtain a legal annulment under Philippine law the couple is then both free to remarry. (Note, this has nothing to do with annulment within the Catholic church — two separate issues)
- Obtain a divorce outside the Philippines. If this is done, the results under Philippine law vary depending on the citizenship of both parties and also who files for the divorce.
- If both parties are citizens of another country the divorce is recognized by the Philippines.
- If one party is Filipino and the other a non-Filipino then:
- If the foreigner files (is the “petitioner”) then the divorce is valid and the Filipino becomes free to re-marry.
- If the Filipino files and the divorce is granted then the Filipino partner is still considered married under the Philippine Family Code and may not remarry within the Philippines. S/he may also be technically guilty of the crime of bigamy, a prosecutable offense under Philippine law.
Bottom Line To All This:
If you are a Filipino who was ever married in the Philippines and who now wants to remarry, start now getting your ducks in order to be able to begin the annulment process.
Your previous marriage will not just “go away”.
And it doesn’t matter how long ago you married, how long it has been since your first husband deserted you, you are still married.
To my mind, this also applies even if you are outside the Philippines currently and living under another country’s laws.
You may want to return to the Philippines someday, or you may want future children to be able to enjoy their Filipino birthright without the legal stigma of illegitimacy.
If you are a foreigner, intending to marry a Filipino who was previously married and is now legally separated or effectively abandoned by a former spouse, be aware s/he may very well still be married under the laws of the Philippines.
You may also be guilty of the crime of adultery of you spend so much as one night with her.
She is still another man’s wife under the Philippine law and he can still file charges against you. (OR, demand payment to avoid charges … a very frequent blackmail situation here).
Grit your teeth and do the right thing at the right time … ignoring these legalities may prove more costly farther down the road than acting on them now.
Or so Philly opines, regarding Marriage, Nationality and Divorce in the Philippines.