Divorced obtained abroad by a Filipino not recognized in the Philippines[1] The second paragraph of Article 26 of the Family Code is the primary law on the issue of divorce and Filipino citizens: 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.

[2] If its the Filipino spouse who initiates or files the divorce action against the alien spouse, the subsequent divorce will not be recognized here in the Philippines. If that Filipino gets married here again, he or she will be liable for bigamy.

[3] But if it is the alien spouse who initiates or files the divorce action, Article 26 of the Family Code will apply. The divorce will be recognized here in the Philippines; if the divorce allows the former alien spouse to remarry, the Filipino will also have the right to remarry under Philippine law.

[4] A Filipino spouse divorced by a spouse who had acquired foreign citizenship can remarry under Article 26 FC (Republic of the Philippines v. Cipriano Orbecido III).

[5] Consensual or mutual agreement divorces like kyogi rikon are not recognized here in the Philippines.

[6] A Filipino who validly obtains a divorce decree abroad and wants to remarry must first file with the Family Court a petition for recognition of a foreign divorce decree.

[7] A petition for recognition of a foreign divorce decree is a difficult legal process. Most Filipino lawyers, therefore, advise people to file instead a petition for declaration of nullity under Article 36 of the Family Code.

A divorce obtained by a Filipino in another country, like the USA or Japan for example, is not recognized here in the Philippines. In several decisions, our Supreme Court has ruled that a Filipino who obtains a divorce abroad and gets married here again, is liable for bigamy.

[1] People v. Schneckenburger: The Supreme Court held that the accused, who secured a foreign divorce and later remarried in the Philippines (believing that the foreign divorce was valid), is liable for bigamy.

[2] People v. Bitdu: The Court carefully distinguished between a mistake of fact from a mistake of law. A mistake of fact could be a basis for the defense of good faith in a bigamy case. On the other hand, a mistake of law does not excuse a person, even a lay person, from liability. In this case, the accused had obtained a divorce under Mohammedan custom. The Court held that even if the accused honestly believed she was not committing any violation of the law in contracting her second marriage, and that she had no criminal intent, these did not justify her act.

The Court also ruled that everyone is presumed to know the law. The lack of knowledge that the act constitutes a violation of the law does not exempt a person from the consequences.

[1] If it is the Filipino spouse who initiates or files the divorce action against the alien spouse, the subsequent divorce will not be recognized here in the Philippines. If that Filipino gets married here again, he or she will be liable for bigamy.

[2] However, if it is the alien spouse who initiates or files the divorce action, Article 26 of the Family Code will apply. The divorce will be recognized here in the Philippines; if the said divorce allows the former alien spouse to remarry, the Filipino will also have the right to remarry under Philippine law. That is, after the foreign divorce decree is recognized by a Philippine court; more on this below.

How do you know who filed or initiated the divorce proceedings?

I have come across some forums where the question has been asked as to how do you know who filed or initiated the divorce proceedings? Well, if you look at the divorce papers, the term complainant or petitioner refers to the person who filed or initiated the case. The term defendant or respondent refers to the person against whom the petition was filed.

What about consensual or mutual agreement divorces?

I have been told that in some countries like Japan and Korea, the alien spouse and the Filipino spouse can simply go through an administrative process where they can get divorced in less than a day. According to a Wikipedia article, 90% of divorces in Japan are by mutual consent (the term is kyogi rikon).

This kind of mutual consent or agreement divorce is not recognized here in the Philippines. Article 26 of the Family Code contemplates a situation where the divorce is filed by the alien spouse against the unwilling or innocent Filipino spouse.

Who can get divorced in Japan?Municipal offices are not allowed to accept a. divorce petitions of foreign residents when their countries of origin do not recognize a divorce by agreement (for example the Philippines).b. a divorce petition between a couple of the same foreign nationality.

These petitions must be done through a family court.

When one partner is a Japanese national with a regular address in Japan or both partners are foreign nationals with different nationalities with regular addresses in Japan, the municipal office may accept the application for divorce.

Since every divorce case is different and depends on the nationalities involved, please consult your municipal office before hand.

Types of Divorce in Japan

Divorce by agreement (kygi rikon) - based on mutual agreement. The foreign spouse need not be physically present at the municipal office to register the divorce providing that the registration documents have been properly signed and sealed beforehand by both parties. More than 90% of all Japanese divorces adopt this fast, simple and entirely non-judicial procedure. The couple can freely promise about the distribution of property, custody, child support, etc., but it is recommended to make a printed document about the promises you made.

Divorce by mediation in a family court (chtei rikon) - completed by applying for mediation by the family court (for cases in which divorce by mutual agreement cannot be reached). This is divorce by arbitration in which the husband or wife request that the family court assist them with mediation. It is completed by applying for mediation by the family court. One party would typically apply to the family court, usually in the district of the other parties residence, and after monthly meetings come to some agreement concerning assets, alimony, custody, child support, etc.. These meetings are conducted in private.

Mediation in the family court is supposed to be presided over by three mediators: a judge, and a man and a woman who are over 40 years old with some social experiences. However, the judge is mostly absent from the mediation and the mediation is usually conducted by two people without legal knowledge.

Mediation sessions are usually held once a month. Since most mediators are lay people, if you do not have legal knowledge, a clear goal, and a maneuvering skill, it could drag on without any satisfying outcome.

If arbitration fails, the family court takes over and has the authority to render its own terms for the divorce. But note that if the court negotiates this divorce, they may simply ask you to sign the appropriate Divorce By Mutual Consent forms. The threat (that your own lawyer may emphasize to you) is that if you do not negotiate, the judge will issue a decree which will be even worse. You may be asked to sign these forms even before the agreement you negotiated is signed. You may not want to do that. Also, you may want to have a decree from a court so that you can go back to the court and claim that your partner is not abiding by the agreement. If the agreement is simply a personal contract, you might have to start legal proceedings all over again, which of course would take years.

Divorce by decision of the family court (shimpan rikon) - divorce completed by family court decision when divorce cannot be established by mediation. From now it becomes a public court case. Note that there is no such thing as a "no fault" divorce at this stage. If the family court's judgment is rejected by one of the parties, then an appeal can be lodged and the district court takes over the case.

Note that according to Civil Code 770-2, judges have absolute discretion to decide whether to grant a divorce or whether the marriage is proper in view of the circumstances. Also, divorce in court is time consuming.

Divorce by judgment of a district court (saiban rikon) - If divorce cannot be established by the family court, then application is made to the district court for a decision (application for arbitration is a prerequisite). Once the case is decided, the court will issue a certified copy and certificate of settlement, to be attached to the Divorce Registration. Either party in the divorce has the right to appeal to a higher court against any decision made in a lower court, all the way up to the Supreme Court.

Grounds for Divorce The Japan Civil Code Article 770 provides five grounds for unilateral divorce if divorce cannot be reached by mutual agreement:

a. infidelityb. malicious desertionc. uncertainty whether or not the spouse is dead or alive for three years or mored. serious mental disease without hope of recoverye. a grave reason which makes continuing the marriage impossible

Under Japan Civil Code Article 710, the plaintiff can demand the payment of consolation money and the distribution of property. However in most cases the amounts of consolation money tends to be rather small, usually only a few million yen. If the defendant lacks financial means, the amount can be much lower.

Documents to submit:1. Notification of Divorce (in the case of kygi-rikon; paperwork available at andto be turned into the parties local municipal office) bearing the signatures andpersonal seals of two adult witnesses.2. Personal seal of the reporting person(s) foreign spouses are exempted if they do not have one, the foreign spouses signature will serve)3. If the reporting office is not the office of the permanent address of the Japanese partner, a copy or an extract of his or her family register.4. Passport5. Certificate of current address (or Alien Registration Card)6. Copy of marriage certificate if both parties are foreign nationals.7. A registered copy of the birth certificate of any minor child the couple has if both parties are foreign nationals.

If both parties are not in agreement to the divorce, it is necessary to receive mediation and judgment by the Family Court. If the court rules in favor for the divorce you should then submit a copy of the court ruling and the Notification of Divorce to your municipal office.

Custody of Children Following a divorce, a family court will determine which of the parents will maintain parental authority over any minor children younger than 20 years of age (Article 766 of the Civil Code). If a foreign parent is designated parental authority, the parent may be granted visa status allowing them to raise the child/children in Japan.

The general practice is to award custody to the mother unless there is an overriding reason to award custody to the father. Nationality of the child is not considered crucial in the determination of which parent will assume custody. Joint custody is not recognized in Japan.

Japanese family law has no provision for visitation rights and has no legal mechanism to enforce visitation rights or other court-negotiated settlements afterwards. It is quite usual that upon divorce, the father pays nothing for the childs support and that he never sees his child.

If an international divorce includes joint custody of the children, it is important to the foreign parent to register it themselves, because joint custody is not legal in Japan. The parent to register the divorce may thus be granted sole custody of the child according to Japanese law. A foreign child custody agreement cannot be automatically enforced in Japan, although the court can order enforcement.

Q & A on DivorceQ: Can foreign citizens be divorced in Japan?A: Yes. However, foreign citizens must show evidence that they are able to be divorced in their country of nationality and that the procedures used in Japan are compatible with those of their home country.

Q: What are the residency requirements for filing?A: At least one of the parties must be a legal resident of Japan. The court will not accept cases from couples who have traveled to Japan for the sole purpose of obtaining a divorce.

Q: Can a divorce be granted in absentia?A: While both parties do not need to be present to file with a court and begin the procedures leading to a divorce, because of the nature of the conciliation process, the court will require the appearance by both parties for at least one joint hearing. But a divorce can also be granted if it is determined that the partner has abandoned the one filing for divorce. Typically this means the whereabouts and the status of the spouse have been unknown for at least 3 years. This could likely be prevented by regularly filing an anti-divorce form.

Q: What documents are required to make an application for divorce?

A: 1. The application form (available gratis from the Family Court) and the following supplementary documents. All English language documents must be translated into Japanese.2. Copy of marriage certificate.3. Abstract of the national law of the spouses pertaining to divorce. 4. A copy of certificate of alien registration for non-Japanese parties.5. If the couple has a minor child, the birth certificate of the child must be presented. The court may also request copies of the birth certificates or passports of the parties to the divorce. Japanese citizens must normally present a copy of family register and certificate of residence.

Applicable Law Concerning International Divorce in JapanIn the case of a couple of a Japanese national and a foreign national, the General Principle Act regarding application of law including divorce. If one party is a Japanese resident living in Japan, the Japanese civil code will be applied.

In the case of a couple of a Japanese national and a foreign national, according to the General Principle Act regarding application of law including divorce, if one party is a Japanese resident living in Japan, the Japanese civil code will be applied.

In the case of a couple who are both foreign nationals, the same act stipulates as follows;1) In case the law of both partys country is same, the law of the same country shall be applicable.2) In case there is no such law, the law of the country, where the couple have a common place of domicile, shall be applicable.3) In case neither of the above laws are applicable, then the law of the country, where both of the couple has a closer relationship, shall be applicable.Therefore, the Japanese civil code may apply to a couple who are both foreign nationals with different nationality. The procedure of their divorce may be also completed according to Japanese civil code, which allows to submit a signed divorce registration, under mutual agreement, to the public office.

Effectiveness of Divorce by Mutual Agreement for Foreign SpouseHowever, this type of non-judicial divorce cannot be always valid for their home country, even though it is recognized in Japan as a valid divorce. In most of countries, where only divorce settled by legal suit is admissible, divorce by mutual agreement does not have any effect. If divorce by mutual agreement is not admissible in your country, you had better get permission by mediation or adjudication or litigation at a court in Japan. In case both sides are same national from same country, the law of their country will apply. In this case, too, the permission of a court is necessary, if the law of their country only recognize divorce settled by a court decision.

International DivorceBetween Japanese and Foreign NationalIf you are a foreign national married to a Japanese, you may wonder whether you can get a divorce in Japan. Japanese law recognizes all three types of divorce described above. However, whether such divorce is recognized in your home country depends upon the laws of your country. It is advisable to consult a lawyer qualified to practice in your home country under which procedure you should get a divorce and what procedures are necessary in order for your divorce to be recognized under the laws of your home country.

Between Foreign NationalsThe Japanese Family Court has jurisdiction over foreign couples if one of the couple lives in Japan. If the couple has the same nationality, the court will apply the laws of the country of which the couple has nationality. If the couple has different nationalities, but both live in Japan, the court will apply the laws of Japan.

When One Spouse is Living AbroadIf one of the spouses is living in Japan but the other is living abroad, can they get a divorce in Japan?If the couple agrees to divorce, they can get a divorce by submitting a divorce paper called Rikon Todoke, notification of divorce, to the local government. However, such divorce may not be recognized by the laws of your home country or the laws of the country where you live.

As of October, 2013, the Japanese court has limited jurisdiction over lawsuits for divorce filed by those living in Japan against their spouses living abroad. However, it has jurisdiction over lawsuits for divorce filed by those living abroad against their spouses living in Japan.

FAQs

Do I need a lawyer for the mediation? Mediation is a process created for people to negotiate through the mediators to resolve the conflict without lawyers. In fact, many people attend mediation without lawyers. However, some people who attended mediation without lawyers complain that they were mistreated by the mediators, or they did not have any meaningful discussion. As explained above, most mediators are lay people who lack knowledge of relevant laws, sociological or psychological expertise, and mediation management skills. If you are not represented by an attorney, you may even waiver your rights by making a mediation agreement without knowing you are doing so. If you do not have enough funds to hire a lawyer, you should at least consult one before you make a mediation agreement. When a large amount of money or valuable assets are involved, it is usually better to hire a lawyer because:

The legal fees could be relatively small compared with the amount of money involved.

Such cases are more likely to be litigated. You will most probably hire a lawyer for litigation. If you hire a lawyer anyway, you may feel better to be represented by one from the beginning.

How long will it take to get a divorce in mediation?It depends on how quickly the parties reach an agreement. Typically, a mediation session is held once a month. Some couples reach an agreement after a few sessions. Others cannot reach an agreement at all at the mediation. After a few sessions, if the mediators find it difficult for the parties to reach an agreement, they will end the mediation, and one or both of the couple choose to litigate.

According to the statistics made public by the court, in 2011, out of 31,139 divorces agreed in mediation, 11,539 were agreed within 3 months, 13,479 within 6 months. However, 1,180 took more than a year and more than 3,000 cases failed to reach agreements after 6 months or longer.

How long will it take to divorce in litigation?It depends on how many issue must be adjudicated and how complicated each issue is. Usually the larger the amount of money involved, the longer it takes.

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