In the Philippines, the recognition of a foreign divorce decree is a complex legal process that involves multiple steps, careful documentation, and adherence to specific legal standards, as discussed in our previous article . But for those seeking to have their foreign divorce decree recognized in the country, it is important to have an in-depth yet practical understanding of the intricacies of the legal process involved, which directly influence the legal costs.
The Legal Process Explained
Preparation
The following are the initial list of document requirements that needs to be attached to the petition upon filing. Depending on the particular foreign country involved, other documents may be necessary. This is because different countries have different divorce processes and different kinds of marriage and divorce documents. Any foreign document attached to the petition needs to be apostilled by the competent authority or authenticated by the Philippine Embassy in the foreign country.
1. Proof of Marriage
If the marriage was solemnized in the Philippines, a certified true copy of the marriage certificate issued by Philippine Statistics Authority (PSA) must be submitted to the court.
If the marriage was solemnized abroad, the official marriage certificate or record from the foreign country must be submitted. And if a copy of the marriage certificate or record was filed with the Philippine Consulate, a copy of the Report of Marriage of a Filipino Married Abroad must also be submitted.
2. Proof of Divorce
The petitioner must submit a certified copy of the divorce decree. If it was written in a foreign language, it must be accompanied by a copy duly translated to English.
In addition, each country has a different set of laws and procedures to validly secure divorce decree. Thus, the documentary proofs of foreign divorce vary per country. For example in Republic v. Kikuchi1, it was established that under the laws of Japan, mayors are the written notice of divorce from the filing spouses. Thus, the Philippine Supreme Court held in this case that while divorce decrees are normally issued by courts, an Acceptance Certificate by a city mayor of Japan duly authenticated by the Philippine embassy was sufficient evidence that a divorce decree was validly obtained abroad.
3. Proof of Law on Divorce Abroad
The foreign law capacitating the foreign spouse to remarry must be proven as a fact during trial and in accordance with the Rules of Court.
To prove a foreign law as fact, the copy submitted to the court must undergo a two-fold authentication. First, the copy must be sourced from an official publication or attested by the officer having legal custody of the foreign document. Second, it must be apostilled or authenticated by the Philippine Consulate and must come with an official translation to English language, if written in a foreign language.
This is because our courts do not have the capacity to simply take judicial notice of a foreign divorce law posted on the Supreme Court website. In Arreza v. Toyo,2 the prevailing jurisprudence, states that:
“Philippine courts do not take judicial notice of foreign judgments and laws. They must be proven as fact under our rules on evidence. A divorce decree obtained abroad is deemed a foreign judgment, hence the indispensable need to have it pleaded and proved before its legal effects may be extended to the Filipino spouse.”
4. Proofs of citizenship and residence of the spouses, and the children, if any.
It must also be established that one of the spouses is a foreigner at the time of the divorce, while the other is a Filipino. Likewise, the citizenship of their children, if any must be proven. To do so, the petitioner must submit duly authenticated or apostilled copies of their respective birth certificates and/or passports.
Court Presentation
1. Filing of Verified Petition
The Petition for Recognition of Foreign Divorce (Petition) must be signed by a lawyer and sworn to by the petitioner. The petition will contain copies of all relevant documents and must also be accompanied by the Judicial Affidavit of his or her proposed witnesses.
The Petition takes the nature of a petition for cancellation or correction of entry in the civil registry under Rule 108 of the Rules of Court as it serves as the appropriate adversarial proceeding by which the applicability of the foreign judgment can be measured and tested in terms of jurisdictional infirmities, want of notice to the party, collusion, fraud, or clear mistake of law or fact.3
2. Notice, Posting and Publication
After the Petition is raffled to a specific branch, the court shall issue an order setting the case for a jurisdictional hearing, and instructing the court sheriff to serve copies of this order and Petition to: (1) Philippine government offices concerned, (2) last known address of the former spouse, and (3) any other required parties. This court order must also be posted in several conspicuous places in the city where the Petition was filed, and published in newspaper of general circulation in the city or province once a week for three (3) weeks.
As a matter of procedural due process, the documentary proofs of service, notice and publication must be presented in this hearing in order for the court to acquire jurisdiction, or authority to hear and decide the Petition.
3. Presentation of Testimonial and Documentary Evidence
The above-mentioned proofs of marriage, foreign law and foreign divorce shall be part of the testimony of the witness, which usually is the petitioner, himself or herself. The presentation of a foreign lawyer, as an expert witness on applicable laws, may also be called for.
The direct testimony of the witness is commonly presented by way of a judicial affidavit, which is a formal record of the witness’ narration of the incidents relating to the marriage and the divorce and identification of the above-mentioned documentary proofs. This judicial affidavit as previously mentioned must already be attached to the Petition.
Then, during trial, the witness must still personally appear in court to identify and affirm the contents of their judicial affidavit in order for his or her testimony and documentary evidence to be admitted in court.
The witness may be cross-examined by the State, through a counsel the Office of the Solicitor General (OSG) or from Office of the City Prosecutor (OCP) as duly deputized by the OSG. The judge may also make clarificatory questions during trial.
Because of the changes in court procedure instituted by the Supreme Court since the COVID pandemic, witness testimony, in meritorious circumstances, can be already done via video conference, subject to the court’s discretion. Moreover, for witnesses residing abroad, the video conference must still be conducted within the premises of the Philippine Embassy, where the witness is located. This thus requires careful coordination with the court, the Philippine embassy and the witness, especially in view of differences in time zones, and distance constraints.
After all the petitioner’s evidence are presented, and submitted to the court, the lawyer shall draft and submit a Formal Offer of Evidence, listing all the above-mentioned documentary proofs in relation to the witnesses’ testimony. If there is no active opposition by other parties, including the State, the petitioner shall thereafter await the decision of the court.
4. Decision
If the court, upon careful evaluation, finds the petitioner’s evidence satisfactory and sufficient, it shall issue a decision (Decision), granting the petition for recognition for foreign divorce.
Post-Judgment Registration
- Registration of the Decision to the Local Civil Registrar (LCR) where the marriage was recorded.
- Registration of the Decision to the Local Civil Registrar (LCR) of Manila if marriage was celebrated and registered overseas.
- Registration of Decision to the Philippine Statistics Authority (PSA).
Why Legal Fees Are Structured the Way They Are
As a matter of practicality, a potential client would often ask upfront how much and how long it takes to secure a judicial recognition of foreign divorce decree in the Philippines.
Given the legal complexities, however, a comprehensive understanding of the process and corresponding fees can aid potential clients to carefully choose who they shall engage as legal representative, and how much they should prepare for legal fees in handling a petition for recognition for foreign divorce, which then are structured to cover the time, effort, and expertise required at each stage:
- Drafting a strong petition and gathering necessary documents demand extensive legal research and meticulous drafting by experienced lawyers, ensuring that the petition is comprehensive and meets all legal requirements.
- Lawyers provide essential court representation by appearing in multiple court hearings, preparing witnesses, and addressing objections or challenges during proceedings, ensuring effective navigation of the legal system.
- Coordinating and presenting expert witnesses, often necessary for explaining foreign laws, increases legal costs but is crucial for achieving a successful outcome.
- Obtaining, apostilling, and translating foreign documents incur additional expenses, which are included in the overall cost.
For any questions or concerns related to recognition of foreign divorce decree in the Philippines, feel free to contact our experienced team.
Prepared by Jermile Salor.
FOOTNOTES
- G.R. No. 243646, 22 June 2022.
- G.R. No. 213198, 1 July 2019.
- Republic v. Cote, G.R. No. 212860, 14 March 2018.
