Author: tancincowp

Amelia’s husband George left for the US in 2007. They have two minor children who are both in elementary school. Every month George sent $200 for the support of his wife and children. After two years, George stopped sending his support and instead sent Amelia a summons and a copy of the petition for divorce. Amelia did not sign the divorce. Nevertheless, a California Superior Court issued a final divorce judgment.

After more than two years, Amelia learned that George married a US citizen and he was petitioned by his US citizen spouse to become a lawful permanent resident. In the meantime, Amelia went on with her life and met Joseph who is also a US citizen. Their relationship developed and Joseph subsequently asked Amelia to marry him so that she can be petitioned to go with him to the US. Amelia accepted Joseph’s proposal and they both set a date for their marriage.

As a condition for Amelia to re-marry in the Philippines, recognition of the foreign decree of divorce is needed in Philippine courts. The request for recognition was denied on the ground that both George and Amelia were Filipino citizens at the time the divorce was obtained. According to Amelia’s legal counsel, the divorce issued by the California Court has no valid and legal effect in the Philippines, as divorce between 2 Filipino citizens is not recognized. Amelia was asked to determine whether George is now a US citizen in order that a divorce may be re-filed to dissolve their marriage (again). Unfortunately, George informed Amelia that his marriage to the US citizen did not work out and that he obtained a second divorce from the second wife. George, though now a green card holder, is still a Filipino citizen.

Meanwhile, Amelia is ready to move on with her life and would like to marry her boyfriend Joseph. Unfortunately, she is not allowed to re-marry considering that under Philippine law, the divorce decree obtained by his former spouse is not recognized. The only exception recognized in Philippine law is in mixed marriages where the foreign national spouse was the party who obtained the divorce. Will Amelia be able to re-marry Joseph? She now wants to migrate to the US with him and build their family there.

Inequity of the Law

While there is no divorce in the Philippines, there is an exception under Section 26 of the Family Code when one of the parties to the marriage is a foreign national. However, for purposes of remarriage of the Filipino national, this divorce decree must be judicially recognized in Philippine courts.
    
In the case of Amelia, since her spouse is not a foreign national but rather still a Filipino citizen, the divorce that was obtained in a California court will not benefit her.  This means that she cannot remarry in the Philippines. George, on the other hand, has not only been re-married to a new partner, he is free to divorce and re-marry as many times as he wants.

Much as Amelia wants to re-marry and live with Joseph, she is deprived from doing so under Philippine law.

DIVORCE OF TWO FILIPINO NATIONALS

It is not uncommon, and not at all hard, for Filipino parties to a marriage to circumvent the prohibitions of the law. This situation arises when one or both Filipino spouses travel to the US and one party files for divorce in a State court. When the divorce is final, either or both parties can then re-marry their respective new partners. These marriages are recognized in US jurisdictions even if it is not valid in the Philippines. Since divorce judgment is recognized in the US, the divorced Filipino spouse can enter into a subsequent marriage with a new partner. This is a common situation where the Filipino is able to get immigrant status in the US and later on naturalized to become a US citizen.

Should the second spouses return to the Philippines after being divorced in the US, this spouse remains “married” and is barred from entering into a subsequent marriage without suffering the criminal consequences of either adultery or bigamy. The first spouse who stays in the US, on the other hand, is free to re-marry and build a new life.

BALANCING THE RESULTING INEQUITIES

Divorce for Filipino nationals may still be an evolving legal issue. In actual cases, the consequences of a lack of legalization of divorce in the Philippines is being experienced both in negative and positive ways depending on the party to the marriage who is able to circumvent this prohibition.  Preservation of a family unit as long as possible is paramount. But in a global economy where people travel and migrate significantly, the strength of a marital relationship is always seriously challenged. If this happens, aren’t families better off with a regulated family law that governs child/spousal support and allow divorce between Filipino nationals and not just mixed marriages?

(Tancinco may be reached at law@tancinco.com or at 02 8877177 or 02 721 1963)

Filipinos in America celebrated the month of October as their Filipino History Month. Resolutions from different states and even from Capitol Hill in Washington DC have declared the month of October as commemorative of the valuable accomplishments of the Filipino-Americans.

The month of October, being Filipino History Month in the US, our attention was drawn happenings in the Philippines.

An invitation was sent to me a few weeks back for a book-signing event by Marites Vitug, author of the “Shadow of Doubt” held at the San Francisco Library on October 13, 2010. Her book reveals probable, if not factual, corruptions inside the Supreme Court.  In the same week I attended a mandatory continuing legal education seminar which was held in Las Vegas, Nevada on October 12-15, 2010 where current Supreme Court decisions were also discussed.

During that same week, exactly on October 15, 2010, a resolution was rendered by the Supreme Court on the issue of plagiarism causing alarm to many of us practitioners. My classmate, now Dean of the UP College of Law Marvic Leonen, and other UP professors brought out to public the plagiarism that was committed by a sitting Supreme Court Justice in a court decision. For doing so, an Order to Show Cause was instead issued again Dean Leonen and the other professors why they do not merit contempt for causing harm to the integrity of the court.    

As an alumni of the UP College of Law, we recall the many years we laboriously spent to attain the title of an “attorney”. In the (arguably) best law school in the country, we learned not just the law but also the values of a good advocate. We look up to the Justices as the final arbiter of disputes who inspire us to be the best lawyers that we can be. We had Justices, and even a current sitting justice, as our professors during law school who commanded respect from us.  As we graduated from law school, we put to heart Justice Holmes’ words written on the walls of Malcolm Hall that the business of a law school is not simply to teach law but to teach it in a” grand manner and to make great lawyers.” As we graduated from law school and passed the bar we wanted not just to be lawyers but also to be “great” lawyers.

More than two decades have passed since I graduated from the UP College of Law. Through these years, I have always tried to remain committed to the values taught me in law school and to use the tools passed on to me as I have moved towards my chosen career path. Being a graduate of a Philippine law school but practicing in a US jurisdiction is very challenging. It is often difficult for us immigrants with a “foreign” degree.  We are always put in situations almost on a daily basis in judicial or administrative cases we appear in to show that we have better legal skills than graduates of US schools.  

We Remain Vested

Just like any immigrant in an adopted land, stereotyping of a particular nationality by other immigrants or natural-born citizens is common. When one foreign attorney is “disbarred” or “suspended” from practicing law, a judgment is passed not only on that particular individual.  More often than not, that individual’s judgment also affects the reputation of other attorneys of that same nationality. While we are not accountable for all Filipino nationals, as an immigrant, there is somehow a moral responsibility for us to try to boost the positive image of not just ourselves but our community as well.

In one case that we handled in our office, a client revealed that she was given an annulment decree submitted by a Filipino “consultant” which turned out to be a bogus judicial decree. The submission by the “consultant” of the fraudulent document resulted in the client being put in deportation proceedings. When confronted by the immigration judge about the fraudulent document, the respondent in the deportation case claimed that she paid a “court clerk” to come up with such a document. While the client retained our services in deportation proceedings to defend her, I was not responsible for submitting this document. But when this issue came up, it was a very embarrassing situation to me as a Filipino practitioner. We, as Filipinos, do not want to have a reputation as prone to submit false documents and tell lies under oath. I tried to rationalize that (hopefully) this was just an isolated case.

The stories of alleged corruption in our highest court as written in the book of Marites Vitug’s “Shadow of Doubt” are almost too hard to believe. Unlike the case of a low level clerk in the lower courts who produce fraudulent documents, the alleged corruption in the highest court of the land is very disheartening.  I do give the Justices mentioned in the book the benefit of a doubt.

On October 15, 2010 the Supreme Court released a resolution absolving of plagiarism one of their own, a current sitting Justice.  After reading the rationale behind the decision, I was totally dumbfounded. The alleged plagiarism did not happen because the legal researcher of the Justice allegedly accidentally deleted the attributions and that “malicious intent” is required. I totally disagree with the rationale for this resolution.  Legal practitioners who are interested to know more, can read that resolution on their own and make their own conclusions.

To make matters worse, the Highest Court decided to take action against the ‘messengers’ who pointed out the plagiarism who happens to be one of the most brilliant lawyers in the legal academe in the country.  I have known Dean Leonen since law school days and even then, he was always a brilliant scholar. He chose the path of public service instead of the riches of private practice.  To me, he is one of the “great” lawyers produced by the UP College of Law.  While the Supreme Court indeed has the final say, it is just shameful to punish the person(s) who pointed out the plagiarism. Punishing Dean Leonen and the other UP professors for bringing to pubic the plagiarism committed by a sitting Supreme Court justice is a travesty. This time, I cannot simply turn a blind eye to this issue. I cannot fathom how it can be rationalized that pointing out the plagiarism committed by a sitting Justice deserves a rebuke. How ridiculous is it that the person who commits plagiarism is absolved but the person(s) who pointed out the plagiarism is being punished ????

As a lawyer who advocates for what is right and just for our clients, the judicial system’s integrity is critical in order for people to trust the system. We have to remind those who are lost in the legal process to continue to trust in the legal and judicial system. The reputation of the Philippine judiciary is at a heightened crisis as the plagiarism case has gotten adverse reaction not just from the local bar but also from the international legal community. Can the Justices legitimately focus and resolve the issue at hand without compromising our faith in the system?  Please give us something to hope for.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or at 721 1963)