Foreign Divorce Recognition and Adultery Forgiveness under Philippine Law
(A Comprehensive Legal Discussion)

I. Introduction

In the Philippines, marriage is a social and legal institution of profound importance. It is protected by the Constitution, and the Family Code provides strict regulations on how and under what circumstances a marital bond may be dissolved or rendered void. Unlike other jurisdictions with more liberal divorce laws, Philippine law generally does not allow divorce between Filipino citizens. Instead, the law provides for annulment or declaration of nullity of a marriage under limited grounds.

However, Philippine law does make exceptions for “foreign divorces” in certain scenarios—especially when one spouse is a non-Filipino or has acquired foreign citizenship. In parallel, issues of marital misconduct, such as adultery, bring into play provisions of the Revised Penal Code that criminalize certain extramarital relations. This article discusses, in a comprehensive manner, the interplay between foreign divorce recognition and adultery forgiveness within the Philippine legal framework.

II. Foreign Divorce Recognition in the Philippines

A. General Rule: Prohibition of Divorce Among Filipino Citizens

As a rule, the Philippines does not allow divorce when both spouses are Filipino citizens. The Family Code recognizes only:

Declaration of Nullity of Marriage – Applicable when a marriage is void from the beginning (e.g., psychological incapacity, lack of a valid marriage license, bigamous or polygamous marriages, etc.).
Annulment of Marriage – Applicable when a marriage is valid but may be annulled due to certain defects (e.g., lack of parental consent for parties aged 18-21 at the time of marriage, vitiated consent, mental incapacity, etc.).

In these situations, the court’s judgment is required to dissolve the marital bond. No local divorce proceeding is recognized by Philippine law for purely Filipino spouses.

B. Recognition of Foreign Divorce: The Statutory Exceptions

Despite the general prohibition, Philippine law (specifically Article 26 of the Family Code, as amended) allows recognition of a divorce obtained abroad in two primary scenarios:

When a Foreign Spouse Obtains Divorce
- If one of the spouses is a foreign national, and that spouse obtains a valid divorce abroad, the Filipino spouse may have the divorce recognized in the Philippines.
- This right for the Filipino spouse to have the marriage considered dissolved (for purposes of remarriage) springs from the foreign spouse’s act of effectively ending the marriage in a foreign jurisdiction.
When the Filipino Spouse Has Acquired Foreign Citizenship
- Following the Supreme Court ruling in Republic v. Manalo (G.R. No. 221029, April 24, 2018), the Filipino spouse who later on acquires foreign citizenship and obtains a divorce decree abroad can also petition for recognition of that foreign divorce in the Philippines.
- The Court highlighted the underlying principle of fairness: If the other spouse is able to remarry after a valid foreign divorce, the former Filipino spouse who has become a foreign citizen should not be left bound to a marriage that the other spouse has effectively ended.

C. Procedures for Recognizing Foreign Divorce

Even if one of these exceptions applies, the foreign divorce is not automatically effective in the Philippines. A judicial recognition of the foreign divorce decree must be obtained through a petition in Philippine courts. The procedure typically involves:

Filing a Petition for Judicial Recognition of Foreign Judgment with the Regional Trial Court.
Proof of Authenticity and Validity of the foreign judgment, which usually involves presenting:
- Certified true copies of the divorce decree and relevant foreign laws.
- Proper authentication (often via the Philippine Embassy or Apostille process, depending on the country issuing the decree).
Court Hearing where the petitioner presents evidence to show:
- The valid celebration of marriage.
- The foreign divorce decree was obtained consistent with the foreign country’s laws.
- The foreign spouse’s nationality or the Filipino spouse’s naturalization prior to obtaining the divorce.

Once the court finds the evidence sufficient, it will issue a decision recognizing the foreign divorce. The court’s decree must then be registered with the Philippine civil registry, and only then can the Filipino spouse validly marry again without incurring criminal liability for bigamy.

III. Adultery Under Philippine Law

A. Definition and Penalties

Under the Revised Penal Code, adultery is committed by a married woman who has sexual intercourse with a man who is not her husband, and by the man who, knowing she is married, has carnal knowledge of her. Key points:

Offended Spouse: Under the law, the husband is the offended party when a wife commits adultery. The husband may file a criminal complaint for adultery against both his wife and her paramour.
Penalties: Adultery is punishable by imprisonment (prisión correccional in its medium and maximum periods, typically ranging from 2 years, 4 months, and 1 day to 6 years).

Meanwhile, concubinage is the corresponding crime for a married man who has sexual relations under specific, more stringent circumstances (e.g., keeping a mistress in the conjugal dwelling or cohabiting with her in another place). However, in practice, proving adultery or concubinage can be challenging, as it requires direct evidence of the extramarital affair.

B. Requirements for Prosecution

To successfully prosecute adultery, the following must be shown:

The woman is legally married.
The adulterous conduct occurred during the subsistence of the marriage.
There was voluntary sexual intercourse between the married woman and a man not her husband.
The offended husband has not forgiven either spouse (no prior condonation or pardon).

IV. Forgiveness (Pardon) in Adultery Cases

A. Legal Basis for Pardon or Forgiveness

Under the Revised Penal Code, certain crimes against chastity, such as adultery and concubinage, require a criminal complaint filed by the offended spouse. If the offended spouse forgives the offender(s)—which can be done before the case is filed or even during the early stages of the criminal proceeding—this pardon or condonation can bar the prosecution or result in the dismissal of the case. Specifically:

Article 344 of the Revised Penal Code provides that the offenses of adultery and concubinage cannot be prosecuted except upon a complaint filed by the offended spouse. If the offended spouse has consented or pardoned (expressly or impliedly) the adulterous act prior to filing the complaint, it effectively extinguishes the action.

B. Forms of Forgiveness

Express Forgiveness – The offended spouse explicitly states in writing or verbally that he forgives the wife and her paramour.
Implied Forgiveness (Condonation) – The offended spouse, by subsequent acts, may be deemed to have condoned the offense. For example, continued cohabitation with knowledge of the adultery can be interpreted as condonation.

Once forgiveness is established, it bars prosecution. The rationale is that the State recognizes that adultery (or concubinage) is a private offense, and the law respects the offended party’s decision to pardon.

C. Effect of Continued Marital Relations

A key consideration is the continued marital relations after knowledge of the adultery. If the husband continues living with the wife after discovering her extramarital affair, courts may interpret that as an implied pardon. Hence, the criminal complaint might fail if the offended spouse is deemed to have forgiven the offending party.

V. Interplay Between Foreign Divorce Recognition and Adultery

A. Adultery Liability Before Divorce Recognition

Timing is Crucial
- If a married woman commits adultery prior to any validly recognized foreign divorce, she may be criminally liable if the offended spouse pursues the case.
- A foreign divorce decree obtained but not yet recognized by Philippine courts is generally not a valid defense to an adultery charge for acts committed while the marriage was still considered subsisting under Philippine law.
Effect of Subsequent Recognition of Foreign Divorce
- If the marriage is eventually recognized as dissolved through a valid foreign divorce, this does not retroactively legalize prior adulterous acts. Criminal liability (if proven) may still attach for acts committed before the Philippine court recognized the divorce.

B. Adultery Forgiveness and Foreign Divorce

Condonation/Consent Before Divorce
- If the offended spouse consents or forgives the adulterous act (expressly or implicitly) prior to obtaining a divorce, the adultery complaint cannot prosper.
- In some scenarios, the offended spouse might seek a foreign divorce as a remedy but decide to not press criminal charges. This scenario is effectively an out-of-court resolution, given that the offended spouse’s inaction could be construed as condonation.
Adultery and Remarriage
- Once a valid foreign divorce has been recognized by Philippine courts, the parties are considered no longer married. Therefore, any sexual relations by the former wife with another man after the recognition is no longer considered adultery.
- In short, once there is a recognized foreign divorce, the potential for new adultery charges (with the ex-spouse as the offended party) ceases to exist.

VI. Practical Considerations

A. Ensuring Proper Documentation

For those seeking to have a foreign divorce recognized, gathering authentic and properly authenticated documentation from abroad is critical. The burden of proof rests on the petitioner to demonstrate the validity of the foreign judgment.

B. Legal Counsel and Court Proceedings

Securing competent legal counsel in the Philippines is imperative. Attorneys experienced in Family Law and Private International Law can guide petitioners through the intricate requirements of:

Presenting foreign statutes.
Proving the divorce’s conformity with the laws of the foreign country.
Establishing the nationality of the foreign spouse or the acquisition of foreign citizenship by the Filipino spouse.

C. Respecting Jurisdiction and Local Laws

Filipinos who obtain divorces abroad must remember that without judicial recognition in the Philippines, they remain legally married under Philippine law. Entering into a subsequent marriage without that recognition can result in a criminal charge of bigamy.

D. Navigating Criminal Charges for Adultery

If an offended spouse discovers an affair but continues to cohabitate or otherwise reconciles, that action might constitute implied forgiveness. Hence, pursuing an adultery case later could be dismissed based on condonation.

Offended spouses should be aware that once they file an adultery complaint, they must not engage in actions that might be construed as pardon (e.g., continuing marital relations) unless they do, in fact, wish to forgive the offending spouse.

VII. Conclusion

Foreign Divorce Recognition and Adultery Forgiveness in the Philippine context illustrate two key realities of Philippine marital and criminal law:

Strict Protection of Marriage – The Philippines maintains a stringent stance against divorce for purely Filipino couples, allowing dissolution primarily through annulment or nullity petitions. However, Filipino spouses married to foreign nationals (or who themselves become foreign nationals) may avail of foreign divorce recognition—subject to judicial petition and proof of validity.
Private Nature of Adultery – Adultery remains a crime under the Revised Penal Code, but it is classified as a private offense, requiring the offended spouse’s complaint. Forgiveness or condonation by the offended spouse extinguishes criminal liability. Adultery’s prosecution thus hinges heavily on personal decisions, marital dynamics, and timing.

Ultimately, anyone grappling with these issues—particularly a Filipino spouse who obtains or faces a foreign divorce, or one confronting marital infidelity—should seek legal advice to protect their rights under Philippine law. The complexities of jurisdiction, evidence, timing, and the interplay of civil status with criminal liability demand careful navigation in order to arrive at a legally sound resolution.