G.R. No. 249238 - Concurring Opinion

G.R. No. 249238, February 27, 2024,
♦ Decision, Dimaampao, [J]
♦ Concurring Opinion, Gesmundo, [CJ]
♦ Concurring Opinion, Leonen, [J]
♦ Concurring Opinion, Caguioa, [J]
♦ Dissenting Opinion, Hernando, [J]
♦ Concurring Opinion, Zalameda, [J]
♦ Dissenting Opinion, Singh, [J]

REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. RUBY CUEVAS NG A.K.A. RUBY NG SONO, RESPONDENT.

Article. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.

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. (Emphasis supplied)

In Republic v. Orbecido III,1 the Court held that the twin elements for the application of paragraph 2 are:

With respect to the second element, the Court in Republic v. Manalo3 (Manalo) held that the word "obtained" does not mean "initiated," such that Article 26(2) would apply even if it was the Filipino spouse who initiated the divorce since, in the end, the divorce was still "obtained" by the foreign spouse.4

In my Separate Opinion therein, I disagreed with the majority on that point and submitted that Article 26(2) of the Family Code is a narrow exception to the nationality principle found in Article 15 of the Civil Code. In my view, Article 26(2) merely recognizes the residual effect that a foreign divorce obtained abroad by the foreign spouse would have on the Filipino spouse who remains unable to remarry under Philippine law. Article 26(2) thus allows the Filipino spouse to remarry in such a situation. However, Article 26(2) should not operate when it is the Filipino spouse who initiates and obtains the foreign divorce (as in the case of Manalo), for that would be to allow him or her to evade the effects of the nationality principle which does not recognize divorce as a mode of terminating a marriage.

In subsequent cases,5 I concurred in the applicability of Article 26(2) in cases where both the Filipino and foreign spouse jointly initiate and obtain the foreign divorce. I maintained my position in Manalo and explained that Article 26(2) should apply in a case where the Filipino spouse jointly initiates and obtains the divorce with the foreign spouse because the requirement of the law is still satisfied—the divorce was initiated and obtained by the foreign spouse, albeit with the conformity of the Filipino spouse. That said, while I maintain my view in Manalo, that does not apply in the present case because, unlike in Manalo, the foreign divorce here was initiated and obtained by both the Filipino spouse and the foreign spouse.

Back to the present case, jurisprudence further requires the following to be proven: (1) the fact of divorce;6 (2) that such divorce conforms to the national law of the foreign spouse;7 and (3) under the national law of the foreign spouse, the divorce capacitates such foreign spouse to remarry.8

In this case, however, only the fact of divorce was proven by the respondent. The fact of divorce, though not also disputed by the Office of the Solicitor General,9 is shown by the following pieces of evidence submitted by the respondent: (1) an authenticated Divorce Certificate issued by the Japanese embassy in the Philippines; (2) a Certificate of Acceptance of Notification of Divorce; (3) a Certification by the Civil Registry Office of Manila City acknowledging that a Divorce Certificate has been filed and recorded in their office; and (4) an original copy of the Family Registry of Japan issued by the Mayor of Nakano-Ku, Tokyo, Japan, with its English translation, showing that the fact of divorce was duly recorded in the Civil Registry of Japan.10

As to the national law of the foreign spouse, it is unfortunate that the respondent only presented an unauthenticated photocopy of the relevant provisions of the Japanese Civil Code and its corresponding English translation. Nonetheless, if it would appear later on, after the reception of evidence pursuant to the ponencia's remand, that the English translation of the Japanese law is similar to the Japanese law provisions proven in previous cases decided by the Court, I believe that respondent's Petition should be granted.

Culled from decided cases which granted the petition for recognition filed by the parties,11 the relevant provisions of the Japanese Civil Code provide:

From the foregoing provisions, it is evident that the divorce in the present case conforms to the national law of the Japanese husband and thereby recapacitated him to remarry. Under Article 763, the spouses may divorce each other by agreement; which is done through a notification made by the spouses. Here, it appears that the spouses agreed on the divorce, notified the Mayor of Nakano-Ku, Tokyo, and caused its registration in the Civil Registry of Japan.13 Under Article 763, it is clear that the-divorce by mutual agreement capacitated the respondent's Japanese spouse to remarry. Thus, if the respondent is able to prove the Japanese Civil Code provisions above, her Petition for recognition should be granted since all the elements for the application of Article 26(2) are present.

During the deliberations, some of my esteemed colleagues took the position that Article 26(2) should not apply in the present case because: (1) Article 26(2) applies only to foreign divorce decrees issued by a foreign court, and not to a divorce decree by mutual agreement, as in this case; and (2) recognizing the divorce by mutual agreement would be repugnant to the Philippines' policy against dissolving marriages based on "collusion" of the parties.

Foreign divorces obtained by mutual agreement are included within the ambit of Article 26, paragraph 2

Article 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.

From a plain reading of the provision, it is clear that Article 26(2) does not distinguish between a divorce obtained judicially and one obtained not through a judicial process. Under the plain-meaning rule, or verba legis, when the law is clear and unambiguous, there is no room for interpretation; only application.14 Moreover, where the law does not distinguish, neither should the Court. Ubi lex non distinguit nec nos distinguire debemos.15 "[G]eneral words and phrases in a statute should ordinarily be accorded their natural and general significance. The rule requires that a general term or phrase should not be reduced into parts and one part distinguished from the other so as to justify its exclusion from the operation of the law."16

In the present case, since the provision employs the word "divorce"—without any qualification as to its form—it should apply to a divorce whether obtained through judicial process or not. The Court is bound by the words of the statute and cannot put words in the mouths of the lawmakers, for the legislature is presumed to know the meaning of the words, to have used words advisedly, and to have expressed its intent by the use of such words as are found in the statute.17 Indeed, had the legislature intended to make a distinction between divorces obtained through a judicial process and those that were not, it could have easily done so by qualifying "divorce" with the word "judicial" or "decree." But the legislature did not do this, and it is presumed that this lack of distinction was intentional. Any perceived deficiency in the language of Article 26(2) may only be corrected by legislation, not by the Court's judicial power.

Assuming arguendo that there is ambiguity in the provision that calls for construction, applying the provision to the present divorce by mutual agreement is consistent with the purpose of the law and will not result in any absurdity.

A statute must be read according to its spirit or intent. Ratio legis est anima or "the spirit rather than the letter of the law." When construing a statute, the Court must bear in mind the reason for its enactment, the purpose it seeks to achieve, and the evil it seeks to remedy.18 "[T]hat which is within the intent of the lawmaker is as much within the statute as if within the letter; and that which is within the letter of the statute is not within the statute unless within the intent of the lawmakers."19

The second paragraph of Article 26 was not part of the original provision. It was inserted by subsequent amendment20 "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."21 It was based on the Court's decision in Van Dorn v. Judge Romillo, Jr.,22 where the foreign spouse sought to lay a claim on the Filipino spouse's business and properties in the Philippines despite his previous acknowledgment in the divorce that they had no communal properties. The foreign spouse argued that the divorce cannot be recognized in the Philippines for being contrary to public policy and, therefore, in the Philippines, he should still be considered as the spouse of the Filipino. The Court rejected this argument, holding that a foreign divorce that is valid under the national law of the foreign spouse may be recognized in the Philippines. The Court also acknowledged that it would be unjust to hold the Filipino spouse to her marital obligations, when the foreign spouse is released from such obligations in his own country. Thus:

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served.23 (Italics in the original)

a corrective measure to address the anomaly that results from a marriage between a Filipino, whose laws do not allow divorce, and a foreign citizen, whose laws allow divorce. The anomaly consists in the Filipino spouse being tied to the marriage while the foreign spouse is free to marry under the laws of his or her country. The correction is made by extending in the Philippines the effect of the foreign divorce decree, which is already effective in the country where it was rendered. The second paragraph of Article 26 of the Family Code is based on this Court's decision in Van Dorn v. Romillo which declared that the Filipino spouse "should not be discriminated against in her own country if the ends of justice are to be served."25 (Citations omitted)

With this legislative intent in mind, Article 26(2) cannot, and should not, be interpreted as excluding divorces by mutual agreement. If the divorce by mutual agreement in the present case is not recognized by the Court, respondent Ruby Ng Sono will remain tied to the marriage, but her foreign spouse will be free to marry under the laws of his country. This is the very evil, "anomaly," or "absurd situation" that Article 26(2) seeks to address. Such an interpretation is not supported by, but in fact goes against, both the letter and the spirit of the law.

Associate Justice Ramon Paul L. Hernando (Justice Hernando) submits that a divorce by mutual agreement is not the foreign judgment contemplated by our rules because it lacks some form of judicial proceeding or judicial intervention. While this argument finds support in Rule 39, Section 48 which speaks of the "[e]ffect of foreign judgments or final orders,"26 this procedural inadequacy should not operate to limit the efficacy of Article 26(2) of the Family Code. To be sure, procedural rules must give way to substantive law.

To require that foreign divorces, in order to be recognized in the Philippines, should be obtained judicially, would be to ignore the fact that: (1) there are jurisdictions, such as Japan, which allow a divorce outside judicial proceedings; and (2) such divorce, if not recognized in the Philippines, will defeat the corrective purpose of Article 26(2) to the prejudice of the Filipino spouse.

Again, the Court is bound by both the letter and the spirit of Article 26(2) to recognize the divorce by mutual agreement in order to recapacitate the Filipino spouse to marry.

Recognizing the foreign divorce by mutual agreement will not violate public policy

Comity "is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws."27 "The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when contrary to its policy, or prejudicial to its interest. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong, that courts of justice have continually acted upon it, as a part of the voluntary law of nations. . . . It is not the comity of the courts, but the comity of the nation, which is administered and ascertained in the same way, and guided by the same reasoning, by which all other principles of municipal law are ascertained and guided."28

However, a foreign law, judgment, or contract shall not be applied or recognized by the Court when it would: (1) contravene a sound and established public policy of the forum; or (2) work undeniable injustice to the citizens or residents of the forum.29

Justice Hernando and Associate Justice Maria Filomena D. Singh (Justice Singh) submitted that recognizing the instant divorce by mutual agreement would be repugnant to the Philippines' policy against dissolving marriages based on "collusion" of the parties. I disagree.

First and foremost, I would like to emphasize again that Article 26(2) itself recognizes the validity of foreign divorces, without distinction as to both the form and the ground of the divorce. Recognizing divorces by mutual agreement cannot be contrary to public policy because it is recognized as valid by Article 26(2). Had it been the legislative intent to exclude divorces by mutual agreement from paragraph 2, the provision could have easily done so, as it did with its first paragraph by qualifying what types of foreign marriages will not be considered as valid in the Philippines. Unlike in paragraph 1 of Article 26, however, paragraph 2 did not specify what grounds or forms of divorce would not be recognized in the Philippines. Clearly, there was no intent to make a distinction between divorces obtained with the consent of both parties and those obtained without. The Court should not make a distinction or qualification in the absence of legislative intent to that effect.

Jurisprudence is clear that as long as the divorce is obtained by a foreign spouse,30 terminates the marriage, and capacitates the foreign spouse to remarry, the Courts should give it effect pursuant to Article 26, paragraph 2.

Second, I submit that a divorce by mutual agreement is not a form of collusion. "Agreement" is not the same as "collusion." An "agreement" is defined as a "mutual understanding" or "a manifestation of mutual assent."31 On the other hand, "collusion" is defined as a "secret agreement or cooperation especially for an illegal or deceitful purpose,"32 or "[a]n agreement to defraud another to do or obtain something forbidden by law."33 In the context of divorce, it refers to "an agreement between a husband and wife to commit or to appear to commit an act that is grounds for divorce. For example, before the advent of no-fault divorce, a husband and wife might agree to make it appear that one of them had committed adultery."34

In Ocampo v. Florenciano,35 the Court adopted the definition of "collusion" by American case law, that is"[an] agreement ... between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the parties. It is a ground for denying the divorce."36

From the foregoing definitions, it is clear that for there to be "collusion," there must be: (1) an agreement to circumvent the law; and (2) misrepresentation or suppression of evidence to obtain a divorce. This interpretation is consistent with the Family Code's treatment of "collusion" by parties in proceedings for annulment or declaration of nullity of marriage and legal separation. The Family Code guards against collusion between the parties in obtaining a decree of annulment, declaration of nullity, and legal separation, thus:

Evidently, the Family Code seeks to prevent a situation where the parties would fabricate or suppress evidence in order to fool the court into issuing a decree of annulment, a declaration of nullity, or a decree of legal separation.

In the present case, the divorce by mutual agreement obtained by the spouses can hardly be considered as a form of collusion because: (1) this agreement appears to be sanctioned by the Japanese Civil Code as a mode of terminating a marriage and is recognized as valid by Article 26(2). Therefore, the agreement is not for the purpose of circumventing a law; and (2) there is no misrepresentation, fabrication, or suppression of evidence or a ground for divorce involved.

There being no collusion to begin with, the subject divorce by mutual agreement does not offend Articles 48 and 56 of the Family Code.

Notably, there may be instances when a divorce by mutual agreement is confirmed by a foreign court. For instance, in Galapon v. Republic,37 (Galapon) the couple therein obtained a "divorce by mutual agreement" in South Korea which was subsequently confirmed by a South Korean Local Court. If the Court equates "collusion" with "agreement," as implied by Justice Hernando and Justice Singh, then even those kinds of divorces would not be recognized in the Philippines even if a foreign tribunal has already satisfied itself that the divorce was warranted under its law.

That said, I do not see any substantial need for a foreign divorce based on mutual consent to first undergo judicial proceedings in a foreign court before it is recognized in the Philippines, especially when none of the parties deny consenting to such divorce. Such a judicial proceeding would likely only determine whether the parties did indeed consent to the divorce. Notably, Article 73938 (in relation to Articles 763 and 764) of the Japanese Civil Code encourages39 the notification of the divorce agreement to be witnessed by two other persons of full age. This safeguard should be more than sufficient to satisfy the Court that both spouses voluntarily consented to such divorce, in the absence of any indication or serious allegation that one of the spouses did not actually give his or her consent.

Third, the Court in Manalo ruled that Article 26(2) applies regardless of who between the spouses initiated the divorce. The Court held that the provision demands only that a valid divorce is obtained abroad. It does not require the foreign spouse to be the one to initiate the divorce.

In accordance with Manalo, the Court in Galapon recognized that Article 26(2) applies also to mixed marriages where the divorce decree is initiated by both the Filipino and foreign spouse. In that case, the couple therein obtained a "divorce by mutual agreement" in South Korea which was subsequently confirmed by a South Korean Local Court.

In the cases of Racho v. Tanaka, et al.,40 Basa-Egami v. Bersales,41 and Republic v. Bayog-Saito,42 the Court acknowledged and took no issue with Japanese divorces by mutual agreement.

The foregoing cases ultimately recognize that a foreign divorce need not always involve animosity or adversarial proceedings between the spouses. By its very nature, a no-fault divorce (such as the present divorce by mutual agreement under Japanese law) does not require that either or both of the spouses had committed a "fault" which constitutes a ground for divorce. In the words of the Court in Abel v. Rule,43 interpreting Article 26 to exclude "joint petitions for divorce" will "cause this Court to close its eyes to the fact that the laws in some foreign countries 'allow joint filing for a divorce decree to ensure that there be less incrimination among the spouses, a more civil and welcoming atmosphere for their children, and less financial burden for the families affected."'44 I agree with Associate Justice Rodil V. Zalameda's opinion that "[w]ith a more viable alternative allowed by the divorce law of the foreign spouse, there is no rhyme or reason for this Court to complicate matters by compelling the estranged couple to further hurt each other's feelings with a needless court battle."45

Should the Court exclude divorces by mutual agreement from the application of Article 26(2), the spouses would be encouraged to look for fault or ground, if only to have their divorce recognized in the Philippines. This would open the doors to, if not altogether induce, true collusion.

All told, I agree that the present divorce by mutual agreement should be recognized, so long as the relevant Japanese law on divorce is sufficiently proven by the respondent.

Accordingly, I vote to PARTLY GRANT the Petition and REMAND the case for reception of evidence of the Japanese law on divorce.