ARGUMENTS ADVANCE 10

I. The lower court is erred in granting the petition of the appellee for Judicial Recognition of Divorce
pursuant to Article 26 of the Family Code.

1. The lower court’s reliance of Article 26 of the Family Code is erroneous. The provision of which the
lower court’s decision provision is based provides that: “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 likewise have capacity
to remarry under Philippine law”, it is clear and in equivocal terms that only a foreign or an alien
spouse can initiate a divorce proceeding which is plainly inapplicable in the case at bar. In our
present case, it is undisputed that appellee is a Filipino at the time he obtained the divorce decree
in San Francisco, California, USA on February 14, 2017. Likewise, the parties in this case are both
Filipinos during the celebration of their marriage on February 14, 2010 which plainly contradicts the
situation envisioned by the law that is: marriage between Filipino citizen and foreigner. Thus, this
case is not within the ambit of the application of Article 26 of the Family Code.

2. In the case of Republic v. Iyoy,, the Court categorically said “As it is worded, Article 26, paragraph 2,
refers to a special situation wherein one of the parties in the marriage is a foreigner who divorces
his or her Filipino spouse. By its plain and literal interpretation, the said provision cannot be applied
to the case of respondent Crasus and his wife Fely because at the time Fely obtained her divorce,
she was still, a Filipino citizen. x x x At the time she filed for divorce, Fely was still a Filipino citizen,
and pursuant to the nationality principle embodied in Article 15 of the Civil Code of the Philippines,
she was still bound by Philippine laws on family rights and duties, status, condition, and legal
capacity, even when she was already living abroad. Philippine laws, then and even until now, do
not allow and recognize divorce between Filipino spouses. Thus, Fely could not have validly
obtained a divorce from respondent Crasus”.
3. The provision of Art. 10 of Hague Convention on the Recognition of Divorces and Legal Separations
(June 1970) is enlightening. Two wit: 11

Article 10. Contracting States may refuse to recognize a divorce or legal separation if such
recognition is manifestly incompatible with their public policy ("ordre public").

4. As mentioned in Republic v. Orbecido, according to Judge Sempio-Diy, the purpose of adding

Paragraph 2 in Article 26 is to remedy a situation “where the Filipino spouse remains married to the
alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.” It is quite
clear that this is the only scenario that the said Article was envisioned to cure.

5. The case of Bayot v. CA is illustrative of the legal premises under which a foreign divorce is
recognized in Philippine jurisdiction:

First, a divorce obtained abroad by an alien married to a Philippine national may

be recognized in the Philippines, provided the decree of divorce is valid according
to the national law of the foreigner;

Second, the reckoning point is not the citizenship of the divorcing parties at birth or
at the time of marriage, but their citizenship at the time a valid divorce is obtained
abroad; and

Third, an absolute divorce secured by a Filipino married to another Filipino is

contrary to our concept of public policy and morality and shall not be recognized in
this jurisdiction.

6. Furthermore, , this Court has ruled in Tenchavez v. Escaño, that a divorce obtained by Filipino
citizens after the effectivity of the Civil Code is not recognized in this jurisdiction as it is contrary to
State policy.
7. As Justice Alfredo Benjamin S. Caguioa pointed out in his dissent in Republic vs Manalo — “it
bears to emphasize that the public policy against absolute divorce remains in force. At present,
there exists no legal mechanism under Philippine law through which a Filipino may secure a
divorce decree upon his or her own initiative. Accordingly, it is the Court’s duty to uphold such
policy and apply the law as it currently stands until the passage of an amendatory law on the
subject. As members of the Court, ours is the duty to interpret the law; this duty does not carry with
it the power to determine what the law should be in the face of changing times, which power, in
turn, lies solely within the province of Congress”. 12

8. There is a substantial distinction between a Filipino whose marriage was severed through a divorce
filed by his or her foreign spouse and who was subsequently successful in securing a divorce
decree; and a Filipino who initiated the proceeding himself or herself, even though he or she does
not have the capacity to do so. If the divorce decree is consequently issued in the latter case, said
Filipino should take responsibility for the consequence of being in an absurd and unfair situation.
To address the injustice in the above scenario, it is obvious that the law needs to be changed, but it
is not within the power of the Judiciary to do so.

9. Furthermore, it is an elementary rule in statutory construction that the Court is bound to apply
the plain language of a statute to accomplish the intent of the General Assembly. If the language is
clear and unambiguous, the court will not look to rules of construction or to legislative history; it will
simply apply the language. This is consistent with the legal maxim: Dura lex, sed lex (the law is
hard, but it is the law). It is maxim of Roman civil law meaning that, however regrettable the
outcome of the legal decision may be, the law must be proclaimed and enforced. The maxim has
been used both sincerely and disingenuously.

10. Since the Court is only granted judicial power, it should not attempt to assume or be compelled to
perform non-judicial functions. In interpreting the law, the judiciary should not go beyond its well-
established parameters, not even if the court believes that by doing so, a just and equitable
resolution of the case would be achieved. This is especially true if the desired remedy lies
elsewhere, within the power of another co-equal body, the Legislature.
 11. In Philippine Intl. Trading Corporation v. Commission on Audit, the Court with regards to the rules
on statutory construction said that “there is an implicit mandate that its construction and
interpretation must be consistent, as much as possible, with other existing provisions of the law”.
13

12. Our State expresses its prime duty on the protection of marriage under Article 2, Section XV of our
1987 Constitution which provides that: ““Marriage, as an inviolable social institution, is the
foundation of the family and shall be protected by the State”. In the case at bar, it is undoubtedly
clear that Kyrie, the appellant seeks this protection from our State, whose marital bond is in the
peril of dissolution. It is then the position of the appellant that this Court shall uphold this
constitutional safeguard for marriage and the family as a whole, pursuant to applicable laws.

13. Philippine case law has consistently recognized the legal institution of marriage as a relationship of
transcendental importance. As stated in Avenido v. Avenido, the basis of human society throughout
the civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but it is
a new relation, an institution in the maintenance of which the public is deeply interested.
Consequently, every intendment of the law leans toward legalizing matrimony.” The legal maxim of
semper praesumitur pro matrimonio— a presumption always arises in favor of marriage—is
codified in law through Article 220 of the Civil Code.

II. The lower court disregard the Nationality Rule embodied in Article 15 of the New Civil Code of which
the appellee is bound.

1. It is unbelievable for the lower court to grant the petition of the appellee notwithstanding the
controlling provision of Article 15 of the Civil Code which wholly referred as the Nationality Rule.
The said article provides that: “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”. The appellee cannot feign ignorance to the application of this rule that regardless of
where he is, as a citizen of the Philippines might be, he will be governed by Philippine laws with
 respect to his or her family rights and duties, or to his or her status, condition and legal capacity. In
the present case, considering that our country has not yet passed a divorce decree, Aljur as a
Filipino is bound to it. Put it simply, the divorce decree he obtained in San Francisco, California
cannot be recognized under our laws. 14

2. The second paragraph of Article 26 is a window afforded to Filipino nationals who find themselves
trapped in a marriage where their foreign spouses have exercised the right to sever the same
through a divorce proceeding. It is necessarily limited because Philippine law does not afford its
own citizens that same right. Their own national law restricts them. In the case at bar, Aljur is
basically restricted to institute a divorce proceeding because our law itself does not provide for
such judicial action.

3. Hence, in the eyes of Philippine law in so far as the Filipino is concerned and in cases where he or
she is the one who procures the absolute divorce abroad, his or her status is still married and
therefore should he or she marry again, he or she can be considered to have committed either
concubinage in case of the husband or adultery in case of the wife. With this, it can be categorically
said that Aljur is still married to Kyrie notwithstanding the divorce decree he validly obtained
abroad.

4. The nationality rule does not provide for an exemption, nor the provision of Article 26 of the Family
Code can be considered as an exemption to it. The latter provision only sought to supplement it by
further bringing the process to a fair conclusion that when a foreign spouse divorces a Filipino
citizen, and that the such divorce is recognized within the Philippine jurisdiction under the
nationality rule, fairness dictates that the Filipino concerned should also be allowed to remarry. It is
not enough merely to declare him or her as no longer married to his or her foreign spouse . In
Garcia v. Recio, the Court reiterated the requisite conditions before the second paragraph of Article
26 of the Family Code can apply. Thus — “ At the outset, the Court lays the following basic legal
principles as the take-off points for the Court’s discussion. Philippine law does not provide for
 absolute divorce; hence, Philippine courts cannot grant it. A marriage between two Filipinos cannot
be dissolved even by a divorce obtained abroad, because of Articles 15 and 17 of the Civil Code”.

5. The basic problem with the decision of the lower court is that it wanted to provide a remedy for a
situation that is not within the scope of Article 26, Paragraph 2 to address. This provision was never
intended to carve an exception to the restriction imposed by Article 15. 15