True, absolute divorce is not allowed in the Philippines owing to the sanctity and inviolability of marriage as a social institution. Marriage is the foundation of the Filipino family. No less than the 1987 Philippine Constitution recognizes the sanctity of family life and declares it a matter of state policy to protect and strengthen the family as a basic autonomous social institution. Hence, even divorce decrees obtained by Filipino citizens abroad are not binding and recognized in our jurisdiction.
HOWEVER, the rule is not absolute as it admits three exceptions, namely:
Divorce between two foreign citizens, if valid in their national laws even if the marriage was celebrated in the Philippines;
Divorce between a Filipino citizen and a foreigner as, under Article 26(2) of the Family Code of the Philippines, where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the foreigner spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law; and
Divorce between a Filipino citizen and a former Filipino citizen, where both parties were Filipino citizens at the time of the celebration of the marriage, but one of them subsequently becomes naturalized as a foreign citizen and the latter obtains a valid divorce decree abroad capacitating him or her to remarry; in such a case, the Filipino spouse shall likewise have capacity to remarry under Philippine law (see Republic vs. Orbecido III ).
Note that the divorce decree must be obtained abroad by the foreigner spouse or by the former Filipino citizen spouse, and NOT in any case by the Filipino spouse. Likewise, there must be a showing that the divorce decree gave the foreigner spouse legal capacity to remarry because in some jurisdictions, remarriage may be limited or prohibited (Bayot vs. Bayot ).
For Filipino citizens, on the other hand, who seek to dissolve their marriage for purposes of remarriage, Philippine law grants them three remedies in proper cases, to wit:
File a Petition for Declaration of Nullity of Marriage, in case of void marriages;
File a Petition for Declaration of Presumptive Death, in case the present spouse has well-founded belief that his or her spouse who has disappeared for four consecutive years, or two years where there was danger of death, is dead.
A MARRIAGE CEREMONYwhich takes place with the APPEARANCE of the contracting parties BEFORE THE SOLEMNIZING OFFICER and their PERSONAL DECLARATION that they take each other as husband and wife IN THE PRESENCE of NOT LESS THAN TWO WITNESSES of LEGAL AGE.
The TOTAL ABSENCE of any of the ESSENTIAL or FORMAL requisites shall render the marriage VOID AB INITIO EXCEPT as stated in Article 35(2), supra, which provides that marriages contracted with either or both of the contracting parties believing in good faith that the Solemnizing Officer had the legal authority to perform marriages shall be valid.
A DEFECT in any of the ESSENTIAL requisites shall render the marriage VOIDABLE as provided in Article 45, supra.
An IRREGULARITY in the FORMAL requisites shall NOT AFFECT the validity of the marriage BUT the party or parties responsible for the irregularity shall be civilly, criminally, and administratively liable (Article 4, supra).
A Marriage License is issued by the Local Civil Registrar of the city or municipality where either of the contracting parties to the marriage habitually resides after completion of the 10-day period of publication of the Notice of the impending marriage. A Marriage License is DIFFERENT from a Marriage Certificate/Marriage Contract. The latter is issued by the Solemnizing Officer AFTER the marriage, in which the contracting parties to the marriage declare, among others, that they take each other as husband and wife. It is the primary or best evidence to prove the existence (NOT validity) of the marriage when the question as to whether or not a marriage has been contracted arises in litigation. The former, on the other hand, is a formal requisite of marriage issued BEFORE the marriage, the total absence of which at the time of the celebration of the marriage renders the marriage void ab initio EXCEPT in the case of marriages exempt from the license requirement as provided under Articles 27 to 34 of the Family Code of the Philippines, to wit:
Marriages among Muslims or among members of the ethnic cultural communities solemnized in accordance with their customs, rites, or practices;
Marriages in articulo mortis (or where either or both of the contracting parties are at the point of death), even if the ailing party subsequently survives;
Marriages in remote places where residence of either party is so located that there is no means of transportation to enable such party to appear personally before the Local Civil Registrar; and
Marriages between a man and a woman who have lived together as husband and wife for at least 5 years and without any legal impediment to marry each other at the time of the celebration of the marriage.
A Marriage License is valid in any part of the Philippines, NOT abroad, for a period of 120 days from the date of issue. The date of issue refers to the date of signing of the Local Civil Registrar of the Marriage License. The contracting parties to the marriage must make use of the same within the 120-day period; otherwise, it shall be deemed AUTOMATICALLY cancelled. A marriage contracted with an expired Marriage License is equivalent to a marriage solemnized without a Marriage License; hence, such marriage is void ab initio.
Note that the first exemption applies ONLY to Muslims and members of the ethnic cultural communities of the Cordillera Autonomous Region because they have a separate law – Code of Muslim Personal Laws of the Philippines (P.D. No. 1083) and the Organic Act of the Cordillera Autonomous Region (R.A. No. 6766), respectively. Other ethnic groups are still governed by the Family Code of the Philippines (Sta Maria, 2004).
In the cases of the second and third exemptions, the Solemnizing Officer shall state in an Affidavit executed before the Local Civil Registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the Local Civil Registrar and that the said Solemnizing Officer took the necessary steps to ascertain the ages and relationship of the contracting parties to the marriage, and the absence of a legal impediment to the marriage. The original of the above-mentioned Affidavit together with a legible copy of the Marriage Contract shall be sent by the Solemnizing Officer to the Local Civil Registrar of the municipality where it was performed within the period of 30 days after the performance of the marriage (Articles 29-30, Family Code of the Philippines).
In the case of the last exemption, the contracting parties to the marriage shall execute an Affidavit of Cohabitation, stating therein the facts that (a) they have lived together as husband and wife for at least five years, and (b) no legal impediment to marry each other exists at the time of the celebration of the marriage. Also, the Solemnizing Officer shall execute a Sworn Statement stating under oath that he ascertained the qualifications of the contracting parties to the marriage and found no legal impediment to the marriage (Article 34, supra). In the computation of the 5-year period of cohabitation, the 5-year period should be computed on the basis of cohabitation as husband and wife where the only missing factor is the Marriage Contract to validate the union. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity – meaning no legal impediment was present at any time within the 5 years, and continuity – that is unbroken (Republic vs. Dayot ; Niñal vs. Bayadog ).