Falling in and out of love in Australia: Philippine law on foreign marriage, divorce and annulment

Filipinos are citizens of the world, and they figure in all sorts of complex situations with foreign elements. One such situation is marriage. And separation. And divorce. And remarriage. And so on and so forth. So we’re caving in to the demand of many of our Facebook friends – mostly women, for good reason – to talk about these topics. 

We tried to state the law and consular practice in the simplest way possible, and avoided discussing the “grey areas” and matters that remain the subject of debate and consultations. We may not be able to answer each question with absolute certainty or authority, but we are hopeful we’re helping to create more awareness among our readers on these common concerns. 

Here, therefore, are a few basic things to know and understand:

Q. I am a Filipino living in Melbourne, and I plan to marry my Australian fiancé. Will my marriage here in Australia be valid in the Philippines?

A. Yes, your marriage will be valid in the Philippines as long as it is valid in the place of marriage, following the lex loci celebrationis principle, unless the marriage:

1. Involves at least one party who is below 18 years of age;
2. Is bigamous or polygamous;
3. Was contracted through mistake in the identity of either party; 
4. Is void under Article 53 of the Family Code (non-compliance with requirements of prior judgment of annulment or nullity);
5. Is void under Article 36 of the Family Code (psychological incapacity);
6. Is incestuous; or 
7. Is void for reasons of public policy under Article 38 of the Family Code (where the parties are related to one another to a certain degree, or where one party killed his/her spouse or the spouse of the other party in order to marry the latter).

Q. I am a Filipino and I have a valid, subsisting marriage to another Filipino. I got married for a second time to an Australian, which marriage is valid under Australian law. Will my marriage in Australia be recognised under Philippine law? 

A. No. Your marriage in Australia, even if valid under Australian law, falls under number 2 above (bigamous), and therefore is void under Philippine law. There is a “legal impediment” to getting married for a second time. A second marriage under these circumstances can always be challenged or voided in court, and constitutes grounds for a criminal case for bigamy. 

Citizens of the Philippines, even though living abroad, are bound by Philippine laws “relating to family rights and duties, or to the status, condition and legal capacity.” Such laws obviously cover marriages of Filipinos, in and out of the Philippines. 

Q.  How can I have my marriage in Australia recorded in the Philippine civil registry (Philippine Statistics Authority)?

A. You will need to submit a Report of Marriage (ROM) at the nearest Philippine Embassy or Consulate General. Since the marriage took place outside the Philippines, it will not be recorded in the Philippine civil registry unless you report the same with the Philippine Embassy or Consulate. 

The Embassy/Consulate, after receiving the ROM, forwards the same to the PSA for recording in the national civil registry. 

Q. What are the requirements for ROM?

A. The Requirements are as follows:

1. Duly accomplished Report of Marriage (ROM) Form (4 originals, typewritten);
2. Original and 4 photocopies of the following:
3. Australian Marriage Certificate
4. Passports of both parties, which must be valid at the time of marriage
5. Proof Philippine citizenship of Filipino spouse (e.g., current visa)
6. Philippine Statistics Authority (PSA) Birth Certificate of the female Filipino spouse 
7. Payment of AUD$45.00 in cash or postal money order payable to the Philippine Consulate General (do not send cash in the mail). 
8. Self-addressed Express Post Envelope. 

Note that there is an additional fee of AUD$ 45.00 for delayed registration (one year or more from the date of marriage). 

Additional requirements also apply to applicants who are widowed or had previous marriages. 

Submission of the requirements may be either in person or by mail. If by mail, the ROM Form must be duly notarised, or certified by a justice of the peace, and payment may only be by postal money order (to prevent loss or theft of cash in the mail). 

Q. Do the same requirements apply if I married a fellow Filipino citizen in Australia?

A. Yes. Because the marriage also took place in Australia, you will need to report it to the Embassy or Consulate for recording in the Philippine civil registry. 

Q. I am a Filipino woman who recently got married in Australia and have filed a ROM with the Philippine Consulate.  Can I already use my husband’s surname in my passport? 

A. Not right away. Under a recent regulation of the Department of Foreign Affairs, you need to present a PSA (Philippine Statistics Authority) – certified copy of your ROM before you can change your name in your Philippine passport. It usually takes at least six months before you can obtain a PSA-certified copy of your ROM. 

Q. In any case, can I continue using my maiden surname in my passport after getting married?

A. Yes. Based on the opinion of civil law experts and decisions of the Supreme Court, such as in Remo vs. Department of Foreign Affairs (DFA), a married woman has the option of using her husband’s surname or retaining her maiden surname.

However, at any time thereafter, at her instance, a married woman may opt to use her married name, after presenting proof of a valid subsisting marriage. 

Q. I have used my married surname (husband’s family name) in my passport, but my husband and I don’t get along well. Can I now drop his name from my passport? 

A. No. Based on Remo vs. DFA, a Filipino married woman who has started using her husband’s surname in her passport cannot revert to her maiden name in her passport, unless she presents documents evidencing any of the following: a) death of the husband; b) judicial declaration of absolute nullity or annulment of her marriage; c) judicial recognition (by a Philippine court) of a foreign divorce obtained by either the Filipino wife or the foreign husband, pursuant to Art. 26 of the Family Code and recent Supreme Court decisions. 

However, there are moves in Congress now to expand the legal bases for allowing married women to revert to the use of their maiden names. 

Q. I am a Filipino woman who married an Australian man who later divorced me under Australian law. Is my marriage automatically dissolved under Philippine law? Can I legally remarry? 

A. No, your marriage to the Australian man is not automatically dissolved under Philippine law. Although Article 26 of the Family Code plainly states that “the Filipino spouse shall have capacity to remarry under Philippine law” after being divorced by the alien spouse, the Supreme Court said this does not take place automatically. 

In the case of Republic vs. Orbecido, the Court declared that “before a foreign divorce decree can be recognised by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.” In other words, the foreign divorce obtained by the foreign spouse must be proven as a fact in a Philippine court. The content of the foreign law upon which this divorce was based must also be proven in court.

Finally, for the purpose of remarrying, the Filipino spouse must additionally prove in court that the foreign divorce decree allows his/her foreign spouse to remarry. 

Divorce remains largely taboo in Philippine law, which allows only a narrow opening for Filipinos to escape difficult marriages with their foreign spouses. 

Q. Can a Filipino national married to a foreigner divorce the latter abroad and later on remarry under Philippine law? 

A. Article 26 of the Family Code appears not to allow this, as its scope is limited to a situation where it is the foreign spouse – not the Filipino spouse – who initiated the divorce abroad. 

But in a stunning reversal of this widely-held doctrine, the Supreme Court, in Republic vs. Tanedo-Manalo, suggested that the abused Filipino wife of a Japanese national may also initiate the divorce, and that such divorce may be proven in and enforced by a Philippine court. “It is not amiss to point out that the women and children are almost always the helpless victims of all forms of domestic abuse and violence,” the Court reasoned, in rejecting what it called a “prohibitive” interpretation of Article 26. 

The main takeaway from this, therefore, is that even citizens of the Philippines can now initiate divorce from their foreign spouses, and have a right to petition a Philippine court for the judicial recognition of this divorce. However, the requirements under Republic vs. Orbecido, remain, i.e., that the divorce must be proven as a fact, and the foreign law upon which the divorce was granted – for instance, Australia’s Marriage Law – must likewise be established in court. 

Q. “H”, a Filipino, successfully divorced his wife, “W”, also a Filipino, in Australia. “H” now wants to marry “M,” another Filipino woman, in the Philippines. Can “H” petition a Philippine court to recognise his divorce from “W” so that he can marry “M” in the Philippines?

A. No. There remains no basis yet in Philippine law to allow divorce between spouses who are both Filipino, notwithstanding the decision in Republic vs. Tanedo-Manalo.

“H” cannot legally marry “M” just yet. He has to find another way to legally free himself from his marriage to “W”.

Q. Is there any other way for “H” to invalidate his marriage to “W” in the Philippines?

A. Yes. There are remedies available under the Family Code to legally end a marriage. Depending on the grounds alleged, it can be a case for Annulment or Declaration of Absolute Nullity. 

The two may sound identical, but they are not. They are based on distinct and separate grounds. But the fundamental difference is that in Annulment, the marriage is dissolved only from the time the judgment granting the annulment becomes final and executory. In the case of Absolute Nullity, the marriage is declared non-existent – void ab initio (from the very beginning); it’s as if the marriage never took place, and no rights and obligations are created, except with respect to the children, who shall retain their legitimate status. 

Incidentally, under the Shari’a law, Filipino Muslim husbands may contract up to four legal marriages under certain conditions. Some Filipino men have actually resorted to converting to the Islamic faith for the sole purpose of entitling them to remarry, but a number of them have been rebuked by the Supreme Court, suggesting they were merely evading prosecution for bigamy. 

Q. As a Filipino, can I get married at the Philippine Consulate? Can the Consul General, Consul or Vice Consul solemnise my marriage? 

A. Yes. Article 7 of the Family Code mentions the consul general, consul or vice consul among the officers authorised to solemnise marriages among Filipinos, specifically overseas. 

Under Article 10, aside from solemnising or officiating the marriage ceremony, the consul general, consul or vice consul performs the duties of the civil registrar, including the issuance of the marriage license and the recording and reporting of marriages of Filipinos. The ceremony is held in the premises of the Consulate or Embassy, and the requirements may be obtained from their respective websites. 

Marriages performed at these places and solemnised by consular officers need not be reported by the parties separately. It is essential, however, that both parties in the marriage be citizens of the Philippines, as the Family Code specifically mentions “marriages between Filipinos…” 

Foreign nationals wishing to marry Filipino nationals in the Philippines, however, may do so, provided they meet the requirements under the Family Code.  

For more information on this, please email the Philippine Consulate General in Melbourne at Melbourne.pcg@dfa.gov.ph.