Annulment, yes; divorce, no

HARDLY NOTICED was a recent news release of the Catholic Bishops’ Conference of the Philippines showing that—per the Office of the Solicitor General—marriage annulments “rose by more than 40 percent over the past 10 years… from 4,520 cases in 2001 to 8,282 in 2010.” This is probably because both the Church and the State allow legitimate annulment but prohibit divorce.

Difference from divorce. This vast difference in attitude stems from the fact that the grounds for (1) annulling “voidable” marriages, and (2) declaring the nullity of a “void” marriage had existed before or at the time of the exchange of marital vows. Hence, no valid marriage existed from the very beginning. On the other hand, the cause for divorce arose after the exchange of “I do’s.” Thus, there was a valid marriage that the divorce decree dissolves.

For this reason, our courts are authorized to annul voidable marriages and/or to declare the nullity of void unions, whether among Filipinos or aliens. However, they have no power to issue divorce decrees, whether to Filipinos or to foreigners. Moreover, a divorce granted by a foreign court to Filipinos is not valid here.

Hence, a divorce obtained by a Filipino couple in Las Vegas, even though valid in Las Vegas, is not valid here. If one of the Filipino spouses should remarry again in this country, he or she would be guilty of bigamy. If the wife cohabits with another man in the Philippines without marrying that man, she could be prosecuted for adultery. If the husband cohabits openly with another woman without marrying her, he could be prosecuted for concubinage.

However, a divorce granted by a foreign court to foreigners, if valid according to the national law of the spouse concerned, shall be valid here. Furthermore, a divorce between a Filipino and a foreigner, obtained abroad by the alien spouse, shall also be valid here.

Here, “the Filipino spouse shall likewise have the capacity to remarry under Philippine law,” says Article 26 of our Family Code. The Supreme Court (Republic v. Orbecido, Oct. 5, 2005) explained that Article 26 aims “to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.” This law prevents a scenario where a Filipino is still considered legally married to an alien who is no longer deemed legally wedded to the Pinoy.

When foreign divorce benefits Filipinos. Article 26 is the exception to the general rule that bars Filipinos from enjoying the benefits of divorce decrees obtained abroad. Under this exception, the foreign husband could no longer insist on cohabiting with his Filipina wife. The divorce released the wife from her obligation to cohabit with him. Likewise, the Filipina wife could consider herself capacitated to remarry or to cohabit, without being guilty of bigamy or adultery.

In a recent decision (Corpuz v. Sto. Tomas, Aug. 10, 2010), the Supreme Court ruled that this right given to the Filipino spouse by Article 26 is not available to the foreign spouse. In this case, a Canadian (to be more accurate, a Filipino who was naturalized as a Canadian) who obtained a divorce in Canada from his Filipina wife has no right to ask a Philippine court to recognize the divorce decree so he could remarry another Filipina. Only the former Filipina wife may do so, that is, ask Philippine courts for this recognition.

A Philippine court cannot adjudge the marital status of the Canadian because the capacity to marry is determined by the national law of the person who wants to be married. Aliens who marry in the Philippines are required to present to the solemnizing officer a certificate of capacity to marry issued by their embassy or consulate.

Void and voidable marriages. Retired Justice Jose C. Vitug, in his book, “Compendium of Civil Law and Jurisprudence,” grouped void marriages into: “(a) those where there is an absence of the essential and formal requisites of marriage (under Articles 2 and 3 of the Family Code); (b) bigamous or polygamous marriages; (c) those where a party to the marriage was psychologically incapacitated to marry at the time of its celebration; (d) incestuous marriages; (e) those contracted through mistake as to the identity (physical, not as to character, rank or fortune) of the other party; and (f) those declared void because of public policy. Also declared void by the Code are subsequent marriages where, in the case of absentee spouses under Article 41, both spouses of the subsequent marriage acted in bad faith (Article 44) and where, in the case of an annulment or of absolute nullity of a marriage, the spouses marry before the petition and distribution of the property (of the spouses of the prior marriage) as well as the delivery of the presumptive legitimes of the children and the recording thereof in the civil registry (Article 53, in relation to Article 52).”

On the other hand, voidable marriages are listed in Article 45. These include those entered into by persons (a) without parental consent if 18 years or over but below 21; (b) of unsound mind; (c) whose consent was obtained through fraud (as defined in Article 46), force, intimidation, or undue influence; (d) who are impotent or unable to consummate a marriage (but sterility or the inability to procreate is not a ground); or (e) afflicted with a serious and incurable sexually transmitted disease.

The grounds and procedure for nullifying marriages in the Catholic Church are governed by Canon Law.


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