This article was authored by Alexandra Tribe.
In the majority of countries around the world, divorce is accessible to married couples so long as certain factual and jurisdictional criteria are met. One of the rare exceptions to this rule is the Philippines. In general, Philippine law does not provide for divorce inside the country. This restriction applies to both expats and nationals alike. The only exception to this rule is with respect to Muslims, who may divorce in certain circumstances due to their religion.
Although divorce is not legal, the law does allow for marriages to be annulled in certain situations.
Annulment under Philippine Law
Annulment is the only solution to divorce within the Philippines. An annulment of marriage declares that the marital union between a husband and wife is no longer valid. According to Article 45 of the Family Code of the Philippines, there are 6 legal grounds for the annulment of a marriage:
- lack of parental consent (if either party is at least 18 but below 21 years old);
- psychological incapacity;
- consent for marriage obtained by force, intimidation, or undue influence;
- impotence / physical incapability of consummating the marriage; or
- serious sexually transmitted disease.
An annulment will take between 2 – 5 years, and can be an expensive process.Following an annulment, custody of children under the age of 7 is automatically awarded to the mother. There are no standards in child support or spousal maintenance to maintain her previous standard in society.
The view of an overseas divorce under Philippine Law
Where there is a valid marriage between a Filipino citizen and a foreigner/expatriate, then a divorce can be obtained abroad using the laws in the home country of the foreign spouse. This would constitute a valid divorce in the Philippines and would therefore give both parties capacity to remarry under Philippine law.
Until recently, this applied only to mixed nationality couples of Filipino marriages. The rule has broadened and now includes Filipinos who have become naturalised in a foreign country and seek a legally binding divorce.
Divorce under English Law whilst residing in the Philippines
If one of the parties to the marriage is a foreign national, i.e. an expatriate, then they are able to divorce under the jurisdiction of their home country.Despite living overseas, most British expatriates will still qualify to use the English court system should they choose to. For many people this would be their first choice of jurisdiction due to the basis of equality which the English courts employ; however, if they currently reside in the Philippines, this may well be the only option open to them.
In order for an expatriate to divorce using the English courts, they must satisfy certain jurisdictional requirements. By definition, expatriates live overseas and so it is not possible to rely on being habitually resident in England and Wales to secure jurisdiction of the courts. It is therefore necessary to fall back on a person's domicile. The concept of domicile is a complicated one, however put simply, you should be able to satisfy domicile if any of the following apply:
- You and/or the other party were born in England and Wales, and your/their father(s) were born in England and Wales;
- You and/or the other party were not born in England and Wales, however your/their father(s) were born in England and Wales;
- You and/or the other party were born in England and Wales, and your/their father(s) were not born in England and Wales, however they moved to England and Wales prior to your birth and they have an intention to remain permanently; or
- You and/or the other party have lived in England and Wales for a substantial period of time and have assets there plus an intention to remain permanently.
In order to divorce in England and Wales, the parties must have been married for at least 1 year. The ground for divorce in England and Wales is 'irretrievable breakdown of marriage', using one of the five supporting facts:
- Unreasonable behaviour;
- Desertion for a continuous period of 2 or more years;
- The parties have lived apart for a continuous period of 2 years and the other party consents to a divorce; or
- The parties have lived apart for a continuous period of 5 years without consent.
A divorce in England and Wales, if uncontested, generally takes 4-6 months. For a brief overview of the divorce process under English Law, please refer to the following page of our website: http://expatriatelaw.com/where-to-divorce/how-do-i-apply-for-a-divorce/
The Future of the Law in the Philippines
At the moment, there appears to be no drastic changes to the divorce laws in the Philippines on the horizon. Many women's groups have clamoured and fought hard for the legalisation of divorce, but all past attempts to ratify it into law have failed and it is unlikely that this will change in the near future.
For now, as a British expatriate residing in the Philippines, you should look to the English courts to obtain a divorce.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. For any further queries or follow up please contact Expatriate Law at email@example.com.