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Tagbilaran City, Bohol, Philippines
February 27, 2011 issue

Common-law, same-sex marriages abroad invalid in the Philippines


Citing existing public policy and jurisprudence, Bohol First District Congressman Rene Lopez Relampagos said that certain marriages contracted abroad cannot be held as valid here in the Philippines. “New values, ideas, and paradigms have made their way in the lives of the Filipino people and also in our laws and jurisprudence since the enactment of the Family Code in 1987, particularly, among others, on issues about marriage,” the Boholano solon said. For this reason, Relampagos filed Wednesday, House Bill 4269, which proposes the amendment of Article 26 of the Family Code.

The first paragraph of Article 26 declares, “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 the country, except those prohibited under Articles 35(1), (4), (5), (6), and 36, 37 and 38.” The bill will add to and expand the exceptions to the provision, which will be held as prohibited marriages, and clarify contentious points that have been the subject of judicial debate. HB 4269 also expands the application of the second paragraph of Article 26 to Filipino citizens whose spouses have eventually become naturalized citizens of other countries and thereafter obtained legal decrees of absolute divorce from their spouse.

The proposed amendment will provide a remedy to the Filipino spouse who did not procure the divorce to move on with his or her life without the stigma of being called “unfaithful.” At present, the law expressly only grants capacity to remarry for the Filipino spouse of a foreigner who obtained a valid decree of absolute divorce in another country. For the main part, House Bill 4269 declares the following as prohibited: common-law marriages obtained abroad by Filipinos; same-sex marriage of Filipinos abroad; marriage by way of jest when there is absolutely no genuine consent on the part of both contracting parties and declared as null by competent court; and marriage by proxy, where the consent of any one of the parties is not personally expressed in the presence of the solemnizing officer.

On the legal status of m arriages contracted by any party below 18 years of age even with the consent of parents or guardians, however, the bill proposes that such a marriage may be held valid if between a Filipino citizen and a foreigner and solemnized in the foreigner's state where the latter, although below 18, is capacitated to marry. On same-sex marriages, the bill states that Philippine public policy expressly recognizes only marriages celebrated between a man and a woman with legal capacity to marry and thus a same-sex marriage between Filipinos held in a country which recognizes such marriages cannot be held as valid in the Philippines. Aside from the provisions in the Family Code, the bill also cites, in its prefatory section, Article 15 of the Civil Code, which provides that “laws relating to family rights and duties, or to status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad,” and Article 17, also of the Civil Code, which states that “prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.” These provisions also stand, as pronounced in Philippine jurisprudence, that a person has legal capacity to marry only a person of the opposite sex and that this limitation will follow the Filipino anywhere in the world.

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