EN BANC

G.R. No. 249238 - REPUBLIC OF THE PHILIPPINES, Petitioner, v.

RUBY CUEVAS NG A.K.A. RUBY NG SONO, Respondent.

Promulgated:

Febru~
x----------------------------------------------------------&-~

DISSENTING OPINION

SINGH,J.:

The ponencia resolves, among others, the issue of whether a foreign

divorce decree obtained by mutual agreement of the divorcing spouses can be
recognized in the Philippines. The ponencia concludes that such a foreign
divorce decree can be recognized, on the strength of the Court's prior rulings
inRacho v. Tanaka, et al. (Racho), 1 Basa-Egami v. Bersales (Basa-Egami), 2
and Republic v. Bayog-Saito (Bayog-Saito). 3 While these cases did allow the
recognition of a foreign divorce decree obtained by mutual consent, I humbly
submit that there is a need to revisit this lygal issue and thoroughly consider
the various aspects involved in resolving this question. Thus, as the ponencia
concludes that foreign divorces obtained by mutual consent between the
parties may be recognized here, I am compelled to register my dissent.

The rule that a foreign divorce which capacitates a foreign spouse to

remarry should be recognized in this jurisdiction so as to allow the Filipino
spouse to also remarry under Philippine law is anchored on the second
paragraph of Article 26 of the Family Code of the Philippines (Family Code).
Article 26 provides:

Art. 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), 3637 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)

834 Phil. 21 (2018) [Per J. Leonen, Third Division].

2
G.R. No. 249410, July 6, 2022 [Per J. Zalarneda, First Division].
3
G.R. No. 247297, August 17, 2022 [Per J. Inting, Third Division].
Dissenting Opinion 2 G.R. No. 249238

Significantly, Article 26 refers to a divorce that is "validly obtained

abroad" and does not distinguish as to any type of divorce. A plain reading
of the second paragraph of Article 26 would thus imply that whether a foreign
divorce was obtained through a judicial proceeding or by mutual consent (a
no-fault divorce in other jurisdictions), Philippine law will recognize and
enforce this divorce in order to allow a Filipino to remarry where the foreign
spouse has a similar capacity to remarry under the relevant foreign law.

This interpretation, which the Court essentially espoused in Racho,

Basa-Egami, and Bayog-Saito, follows a line of cases where the Court has
taken a liberal approach in the recognition of foreign divorce to afford parity
to the Filipino spouse, starting with Van Dorn v. Romillo (Van Dorn). 4
Indeed, the importance of these cases cannot be denied. They have ensured
that our laws protect the interests of a Filipino spouse who would otherwise
be trapped in a marriage notwithstanding the fact that their foreign spouse is
already free to remarry under the laws of their own country.

However, I believe that reading Article 26 (2) to cover even foreign

divorces obtained by mutual consent conflicts with, first, the intent animating
the inclusion of Article 26 (2) in the Family Code; second, the fundamental
precepts through which the judgments of foreign courts may be recognized in
the Philippines; third, the rule enshrined under the Civil Code of the
Philippines (Civil Code) that personal laws follow Filipinos wherever they
may be; and, fourth, the prevailing public policy against divorce as expressed
in the Constitutional protection granted to marriage.

I submit that a proper consideration of the foregoing factors should lead

to the conclusion that Article 26 (2) of the Family Code should be read to
cover only foreign divorces obtained through a judicial proceeding.

The legislative intent behind Article 26

(2) of the Family Code

Article 26 (2) of the Family Code was first introduced during the
deliberations of the Joint Civil Code and Family Code Law Committee.
Significantly, the members of the Committee originally voted to delete the
provision. It was also not included in the first version of the Family Code
when it was signed into law on July 6, 1987. It was eventually added as an
amendment on July 17, 1987.

The discussions of the members of the Committee on the matter are

particularly relevant:

4
223 Phil. 357 (1985) [Per J. Melencio-Herrera, First Division].
~ ;/ ! lo

,.,
Dissenting Opinion .J G.R. No. 249238

Justice [Ricardo] Puno suggested that, in line with Justice [Eduardo]

Caguioa's view that as much as possible they should make the Proposed
Family Code as acceptable as possible and since they are not touching on
divorce which is one of the big issues and they are leaving it to future
legislation, they omit Article 26 temporarily and take it up when they
take up the matter of absolute divorce. 5

Dr. [Irene] Cortes proposed that, as a compromise, they can retain

Article 26 but they should limit to marriage abroad. Prof. Romero
commented that only the rich will benefit from the provision. Dr. Cortes
stated that it will also protect the Filipino citizen, who may have married
and divorced abroad.

Justice [JBL] Reyes remarked that this article is an implicit

recognition of foreign divorce, with which Justice Caguioa concurred.
Prof. [Esteban] Bautista and Prof. [Flerida Ruth] Romero pointed out
that the article will only cover exceptional cases and special situations
and that there is a reasonable and substantial basis for making it an
exception.

After further discussion, Justice Puno rephrased Article 26 m

accordance with Dr. Cortes' suggestion as follows:

Where a marriage between a Filipino citizen and a

foreigner is validly celebrated abroad and a divorce is
thereafter validly obtained abroad capacitating such
foreigner to remarry, the Filipino spouse shall likewise have
capacity to remarry under Philippine law.

Prof. Bautista remarked that, as rephrased, it would be better if they

delete the above provision. On the other hand, Dr. Cortes was for deferring
action on the above provision. Justice Puno suggested that it be deleted
temporarily and it be taken up if and when absolute divorce is adopted.

Having sufficiently discussed the matter, the Committee decided to

put the issue to a vote.

The members voted as follows:

(1) Justice Puno, Justice Caguioa, Dr. Cortes, Dean Carale, Dean Gupit
and Prof. Baviera were for the deletion of Article 26.

(2) Judge Diy, Prof. Bautista, Prof. Romero and Director Eufemio were
for its retention. 6 (Emphases supplied)

As aptly observed by Associate Justice Caguioa m his dissent m

Republic v. Manalo: 7

5
Minutes of the 149th Joint Meeting of the Civil Code and Family Law Committees dated August 2, 1986,
p. 14.
6
Id. at 13-15.
7
831 Phil. 33 (2018) [Per J. Peralta, En Banc].
Dissenting Opinion 4 G.R. No. 249238

While Article 26(2) was reinstated by executive fiat, it is

nevertheless clear that the true spirit behind the provision remains explicit
in the Committee deliberations - Article 26(2) had been crafted to
serve as an exception to the nationality principle embodied in Article
15 of the Civil Code. 8 (Emphasis in the original)

The Committee members recognized that Article 26 (2) could be

interpreted as a step towards recognizing absolute divorce and, thus, its
application requires careful consideration and restraint, rather than liberality.

Further, the factual milieu within which Article 26 (2) was conceived
and proposed to be included in the Family Code is very relevant. It was
intended to remedy the unfair situation brought about by cases like Van Dorn,
where a Filipino, under Philippine law, is still considered married while the
foreign spouse is capacitated to remarry under his or her law after obtaining a
divorce decree from a foreign court. It is obvious that the members of the
Committee did not have in mind a scenario where spouses can simply execute
a divorce agreement and have it registered in a government office, without
judicial intervention.

These considerations must inform the Court's interpretation of this

prov1s10n.

Recognition of foreign judgments as

basis for recognizing divorce decrees
obtained through a judicial
proceeding

The procedural rule that governs the recognition of foreign judgments

(the same set of rules invoked in cases involving the recognition of foreign
divorce), is Section 48, Rule 39 of the Rules of Court. Section 48 provides:

Section 48. Effect of foreign judgments or final orders. - The

effect of a judgment or final order of a tribunal of a foreign country,
having jurisdiction to render the judgment or final order is as follows:

(a) In case of a judgment or final order upon a specific thing, the

judgment or final order, is conclusive upon the title to the thing, and

(b) In case of a judgment or fmal order against a person, the

judgment or final order is presumptive evidence of a right as between the
parties and their successors in interest by a subsequent title.

In either case, the judgment or final order may be :repelled by

evidence of a want of jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake oflaw or fact. (Emphasis supplied)

8
Id. at 89.
Dissenting Opinion 5 G.R. No. 249238

As the title itself of Section 48 states, it applies only to "judgments or

final orders." This suggests that it covers only issuances by foreign courts or
judicial tribunals. This view is supported by the last paragraph of Section 48
which provides that a foreign judgment or final order may be repelled by
evidence of"want ofjurisdiction, want of notice to the party, collusion, fraud,
or clear mistake of law or fact." Notably, all these are elements of a judicial
proceeding. Thus, a reading of Section 48 would show that, in so far as the
recognition of foreign divorce decrees is concerned, it would only cover
divorce decrees issued by a judicial tribunal in a judicial proceeding, and
would exclude divorce decrees obtained by mutual consent.

Stated more simply, while the Court has taken a consistent liberal
stance in the recognition of foreign divorce, this position appears to be at odds
with the procedural rules governing the recognition of foreign divorce
decrees. To be sure, procedural rules must give way to substantive law. In
this case, Article 26, as interpreted by the Court, should prevail over Section
48, Rule 39 of the Rules of Court. To the extent that there is a need to provide
a definitive set of rules governing the recognition of divorce decrees, whether
obtained through a judicial proceeding or by mutual consent, Section 48
should therefore be amended accordingly.

To be sure, Article 26 is a substantive and special law while Section 48,

Rule 39 is a remedial and general law. Generally, a substantive law ought to
prevail over remedial law. However, while it is true that Section 48 is a
procedural rule, it is, nonetheless, rooted in substantive law, and one that is
critical to the Philippine government's recognition and enforcement of the
judicial acts of foreign countries.

Our jurisprudence has established that the recognition and enforcement

of foreign judgments is a generally accepted principle of international law. In
Mijares v. Hon. Ranada, 9 this Court held:

The rules of comity, utility and convenience of nations have

established a usage among civilized states by which final judgments of
foreign courts of competent jurisdiction are reciprocally respected and
rendered efficacious under certain conditions that may vary in different
countries. 10 (Citation omitted)

Section 48, Rule 39 of the Rules of Court implements a generally

accepted principle of international law, which, as no less than the Constitution
provides, forms part of the law of the land. 11 This is the legal anchor which
allows for the enforcement and recognition of the judgments of foreign
countries in this jurisdiction. Such foreign judgments would necessarily

9
495 Phil. 372 (2005) [Per J. Tinga, Second Division].
10
Id. at 382.
II CONST., Article II, sec. 2.
Dissenting Opinion 6 G.R No. 249238

include divorce decrees. Stated more simply, foreign divorce decrees

obtained through judicial proceedings can be recognized and enforced in the
Philippines precisely because the generally accepted principles of
international law and, necessarily, our domestic law, mandates the recognition
and enforcement of the judgment of foreign courts. There is no similar legal
underpinning for the recognition of a divorce by mutual consent, where the
spouses do not submit the matter before any foreign court.

Public policy against absolute divorce

Even assuming that Section 48, Rule 39 of the Rules of Court may be
amended to include foreign divorces obtained by mutual consent, there are,
nevertheless, far greater considerations that cannot be resolved by such an
amendment. There are a number of factors that call for a more nuanced
interpretation and application of the second paragraph of Article 26 of the
Family Code.

Section 2, Article XV of the Constitution lays out the State policy on

the importance of marriage in society. It reads:

SECTION 2. Marriage, as an inviolable social institution, is the

foundation of the family and shall be protected by the State.

In relation to this, the Philippines has no law recognizing absolute

divorce, much less divorce by mutual consent. In fact, even as the Family
Code allows the declaration of nullity and the annulment of a marriage under
specific grounds, it nevertheless zealously guards against collusion. Article
48 of the Family Code provides:

Art. 48. In all cases of annulment or declaration of absolute nullity

of marriage, the Court shall order the prosecuting attorney or fiscal assigned
to it to appear on behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not fabricated or
suppressed.

In the cases referred to in the preceding paragraph, no judgment

shall be based upon a stipulation of facts or confession of judgment.

Foreign divorces obtained by mutual consent, where no court has

examined the evidence and heard the parties, are rife with opportunities for
collusion. At its worst, it is a tool to circumvent our public policy against
absolute divorce. This is the very concern expressed by the members of the
Committee when they considered the inclusion of Article 26 (2). It should not
be used as a means for the recognition of absolute divorce in the Philippines,
where there is, at present, no law authorizing it because public policy is against
it.
Dissenting Opinion 7 G.R. No. 249238

Our laws on marriage and its dissolution form part of the body of laws
that follow Filipino citizens wherever they may be. Article 15 of the Civil
Code of the Philippines provides:

ARTICLE 15. Laws relating to family rights and duties, or to the

status, condition and legal capacity of persons are binding upon citizens of
the Philippines, even though living abroad.

Thus, Filipinos, regardless of where they may be and who they choose
to marry, continue to be bound by Philippine law which prohibits absolute
divorce. To be sure, the second paragraph of Article 26, and the jurisprudence
which interpreted it, carves out an exception to the general rule set out in
Article 15 of the Civil Code. As mentioned, this was done to ensure that
Filipino spouses are not disadvantaged and that our laws do not work to treat
them unfairly and discriminatorily. But it is, nonetheless, still only an
exception. Moreover, it is an exception borne out of the unique circumstances
facing Filipino spouses of foreign nationals who would be left at a
disadvantage if our laws on marriage and its dissolution remain inflexible.

The general rule remains to be that there is a Constitutional mandate

enshrining the status of marriage as an inviolable social institution; that there
is no absolute divorce in the Philippines; that the Family Code limits the means
by which a marriage can be dissolved and, in this regard, categorically
prohibits collusion; and that laws pertaining to marriage and family follow a
Filipino citizen wherever they may be.

Thus, while it is important to ensure that our family laws accord

Filipino spouses the protection that they deserve and that they be granted parity
in the eyes of the law, these interests must be balanced with other equally
important considerations such as the Constitutional mandate for the State to
protect the inviolability of marriage as an institution and the prevailing public
policy, as reflected in our laws, prohibiting absolute divorce.

This means that when faced with questions such as that presented to the
Court in this case, the Court must not pursue an interpretation of the law that
would completely disregard one State interest for another, one that would
prioritize one State policy over another, or one that would allow a
circumvention of the laws that it is duty bound to obey and enforce.

I submit that it is important for the Court to pursue a position that would
prevent local courts from indiscriminately recognizing foreign divorces
without regard to our public policy on absolute divorce.

To this extent, a proper resolution of this issue must balance the

interests involved here - i.e., the importance of granting parity to Filipino
Dissenting Opinion 8 G.R. No. 249238

spouses and the imperative of upholding the country's fundamental policies

. .
concerning mamage.

Thus, I take the view that the application of the second paragraph of
Article 26 should be nuanced in that it should be interpreted to mean that only
foreign divorces obtained through judicial proceedings may be recognized in
this jurisdiction. This view achieves the purpose of protecting the interests of
Filipino spouses without relaxing the rules too much so as to facilitate the
circumvention of our prevailing law against absolute divorce. This
interpretation also imposes a reasonable standard for what kinds of divorce
decrees may be recognized in the Philippines - only those which a judicial
tribunal has examined and confirmed to be meritorious, and not one that was
arrived at by mere agreement of the parties.

In addition, this approach limits the points by which the second

paragraph of Article 26 disagrees with the essential features of our laws on
marriage and its dissolution. Specifically, while a Filipino national, who
would normally not be allowed to obtain divorce, would be able to have their
foreign divorce recognized in the country, they would still nonetheless be
prohibited from colluding with their foreign spouse. This narrow
interpretation would also be consistent with the purpose for which the second
paragraph of Article 26 was included in the Family Code - to address a
specific issue as a carve out to the general rule. I further submit that this
interpretation would not disadvantage Filipino spouses. They would still be
free to obtain a foreign divorce, provided that it is one that is issued after
judicial proceedings.

Finally, I believe that this interpretation, even as it distinguishes

between a foreign divorce obtained through a judicial proceeding and a
foreign divorce obtained by mutual consent, does not violate the equal
protection clause. It is fundamental that equal protection does not demand
absolute equality. It only requires that all persons shall be treated alike under
similar circumstances and conditions. It does not for bid discrimination as to
things that are different. 12

There is a substantial distinction between former spouses whose

divorce was obtained by judicial proceedings and those whose divorce was
obtained by mutual consent. The recognition of the foreign divorce in the
former case is rooted in the Philippines' recognition of the authority of a
foreign court to make a judicial determination as to the propriety of divorce.
It is, more importantly, anchored on the international law principle of comity
among nations, which mandates the recognition and enforcement of foreign

12
Zomer Development Co, Inc. v. Special Twentieth Division ofthe Court ofAppeals, 868 Phil. 93 (2020)
[Per J. Leonen, En Banc].
Dissenting Opinion 9 G.R. No. 249238

judgments. To reiterate, this legal underpinning does not exist in cases where
a foreign divorce is obtained by mere mutual consent.

To be sure, spouses similarly situated as the spouses in this present case

are not left without a remedy. They can opt to seek annulment or the
declaration of the nullity of their marriage in this jurisdiction. They can also
choose to file for divorce before a foreign court.

I respectfully reiterate that the role of the Court is to ensure that our
laws are upheld and, when necessary, to bridge any gaps in the law. It is not,
however, within the Court's authority to override established public policy.

Associate Justice