When Michelle, a 30 year-old Filipina accounting clerk met James in Manila, she fell in love instantly. James, a 40 year-old US national working as a systems analyst, was also captivated by the Filipina’s charm and proposed to her four days later. Michelle accepted the marriage offer without hesitation.

But there is a problem. Michelle is still married to her Filipino husband Fred who has been working in the US for the past ten years. Fred obtained a divorce in the US five years ago, and is now currently living with his new spouse in New York.

Philippine law prohibits divorce. What then is the legal remedy of Michelle? Is her marriage with Fred in the Philippines still in force? Is she prohibited from re-marrying despite the divorce obtained by Fred? How can she leave for the US if she is not allowed to marry James? What about Fred’s subsequent marriage? Is it binding?
As mentioned earlier, divorce is prohibited under Philippine laws.

Article 26 of the Family Code Philippines however, provides that, “…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.”
The provision refers only to a situation where one of the spouses is a Philippine citizen while the other is a foreigner. Under this law, the Filipino spouse is allowed to remarry if the foreign spouse validly obtains a divorce in another country and is permitted, under the same law, to contract a subsequent marriage.
Thus, under Philippine law, if the foreigner decides to leave the local spouse by divorcing the latter, and subsequently contracts a valid marriage, the local spouse who was left behind can legally remarry.

According to the framers of the Family Code, the purpose of the provision is 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.”

Should this be the case, the law would then be giving preferential advantage to the foreign spouse who, after being allowed to obtain a divorce, is also permitted to remarry anyone, even another Philippine citizen. Meanwhile, the local spouse continues to be legally bound by the marriage, and is prohibited from marrying another.

The latter is left in a very disadvantageous and precarious position, and may even be charged for the crime of bigamy, if he or she contracts a subsequent marriage.
This is exactly the ridiculous situation intended to be avoided by the framers of the law. Thus, under Article 26, as long as the foreigner is validly allowed to obtain a divorce in the Philippines and subsequently re-marry, the local spouse is likewise allowed by the Family Code of the Philippines to contract a subsequent marriage.

But the main question that still needs to be answered is does this principle apply to the case of Michelle?
At the time Michelle and Fred celebrated their marriage, they were both Philippine citizens, and as pointed out earlier, divorce between Philippine citizens are prohibited.

There are two (2) requisites that should be present for the divorce obtained abroad by Fred to be binding on Michelle, thus capacitating her to re-marry:
1. That there is a valid marriage celebrated between a Filipino citizen and a foreigner; and
2. That there is a valid divorce obtained abroad by the alien spouse capacitating him or her to remarry

Under the first requisite, it is not the citizenship of the parties at the time of the marriage that should be controlling, but their respective citizenships at the time the divorce is obtained.

Thus, even if Michelle and Fred were both citizens of the Philippines at the time of their marriage, as long as Fred subsequently became a naturalized US citizen during the validity of his marriage with Michelle, then he can now be considered as a “foreigner” under the contemplation of Article 26.

Under such a situation, their marriage is now considered as a “…valid marriage celebrated between a Filipino Citizen and a foreigner,” in complete compliance with the first requisite.

Under the second requisite, since the divorce which was validly obtained by Fred in the US allows him to contract a subsequent marriage, then Michelle under Philippine laws is now also permitted to contract a subsequent marriage.

Since the two grounds under Article 26 are present, then there is no impediment to the planned grand wedding of Michelle and James. Now, all they have to do is apply for a US K1 fiancée visa. But that’s another story.