2nd exam conflicts

CONFLICT OF LAWS

CHAPTER VIII

NATIONALITY THEORY

Nationality Refers to membership in a political community that is personal and more or less permanent, not temporary

Nationality CitizenshipMembership in an ethnic, social, racial, and cultural group

Membership in a political society

National CitizenMay be:1. A citizen, or 2. Not a citizen but owes permanent allegiance to the State and is entitled to its protection

One who is endowed with political and civil rights in a body politic of a State

The Hague Convention on Conflict of Nationality Laws

Article 1 “It is for the State to determine under its own law who are its nationals. This law shall be recognized by other States insofar as it is consistent with international conventions, international customs and the principles of law generally recognized with regard to nationality.”

Art. 2“Any question as to whether a person possesses nationality of a particular State shall be determined in accordance with the law of that State.”

IllustrationQ: Can the RTC declare that under Philippine law, X, a Filipino woman who marries Y, a Swiss national acquires Swiss nationality?

A: No. What the RTC can competently declare is whether or not, X has lost her Filipino citizenship [by act of marriage]

Nationality TheoryThe theory by virtue of which the status and capacity of an individual are generally governed by the law of his nationality.

Defects of the Nationality Theory1. Change of nationality or citizenship may be difficult to effectuate2. Some individuals, for varying reasons, are stateless3. There are persons possessed of dual or multiple personalities4. It is not always desirable to apply to aliens their national law

Modes of Acquiring Nationality or Citizenship in General1. Birth 2. Naturalization3. Repatriation4. Subjugation or Cession

Modes of Losing Nationality or Citizenship in General1. Release2. Deprivation3. Expiration

4. Renunciation5. Substitution

How Dual or Multiple Nationality may Arise1. Concurrent application of jus soli and jus sanguinis at birth2. Denial by one State of the right of expatriation3. Marriage4. Formal and voluntary act5. Legislative acts of states which allow dual citizenship 6. A naturalized citizen’s failure to comply with certain legal requirements in the country of origin

Personal Law of One with Dual or Multiple Citizenship

1. If the forum is one of the states where he is a citizen – Hague Convention on Conflict of Nationality Laws, Art. 3: “A person having two or more nationalities may be regarded as its national by each of the states whose nationality he possesses.”

2. If the forum is a third state where he is NOT a citizen – Hague Convention on Conflict of Nationality Laws, Art. 5: “Within a 3rd State, a person having 2 or more nationalities shall be treated as if he only had one. Without prejudice to the application of its law in matters of personal status and of any conventions in force, a 3rd state SHALL, of the nationalities which such person possesses, RECOGNIZE exclusively in its territory the nationality of the country:

a. in which he is habitually and principally a resident, or

b. with which the circumstances he appears to be in fact most closely connected [Theory of Effective

Nationality]

How Statelessness may Arise1. From the concurrent application of jus soli and jus sanguinis at birth in the reverse2. Tumultuous political events in some countries have rendered stateless numberless individuals3. Diverse legislations respecting the status of married women4. A formal and voluntary act5. Deprivation of citizenship for any cause such as commission of a crime6. Renunciation by certain acts, express or implied

Q: What will be the personal law of stateless persons in countries following the nationality theory?

A: It shall be determined by: 1. the law of the country of domicile, or 2. in default thereof, by that of the country of residence

Citizens of the Philippines1. Natural Born – those who are citizens of the

Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship [Art. IV, Sec. 2, 1987 Constitution]

2. Naturalized – those becomes citizens through judicial proceedings [Art. IV, Sec.4(1), 1987 Constitution]

3. Citizens by Election – Citizens, who, by virtue of certain legal provision, become such by choosing [or electing] Philippine citizenship at the age of 21 or within reasonable time thereafter – Those born in the RP of foreign parents who before adoption of the 1935 Constitution, had been elected a public office in the RP [Chiongbian v. de Leon, Jan. 31, 1949]

From the lectures of Atty. Melissa Romana Suarez 1

CONFLICT OF LAWS

HOW FILIPINO CITIZENSHIP ACQUIRED

Naturalization The process of acquiring the citizenship of another country [change of citizenship] Modes of Naturalization

1. Judicial Proceeding2. Direct Act of Congress3. Administrative Proceeding

QUALIFICATIONS

JUDICIAL [CA 473]

ADMINISTRATIVE [RA 9139]

AGE Not less than 21 [now 18 under RA 6809] years of age at the DATE of HEARING of the petition

Not less than 18 years of age at the TIME of FILING of the petition

RESIDENCY Continuous residence in RP of not less than 10 years

Born in RP and residing in RP since birth

CHARACTER 1.) Good moral character 2.) Believes in the principles of the Constitution

1.) Good moral character 2.) Believes in the principles of the Constitution

PROPERTY OR

PROFESSION

1.) Must own real estate in RP worth P5,000.00 or 2.) Must have some lucrative trade, profession or lawful occupation

1.) Must have a known trade, business, profession or lawful occupation from which he derives income sufficient to support his family 2.) Exempted – college degree holders who are unable to practice their profession because they are disqualified by reason of their citizenship

EDUCATION His children must be enrolled in a school where RP history, civics and government are taught and prescribed as part of the curriculum

Must have received his primary and secondary education from DECS recognized school where RP history, civics and government are taught and prescribed as part of the curriculum and his minor children must be enrolled in similar schools

LANGUAGE Must be able to speak and write: 1.) English or Spanish, and 2.)Any principal RP language

Must be able to read, write and speak: 1.) Filipino, or 2.) Any RP dialect

OTHERS Must have mingled with Filipinos and evinced desire to learn

and embrace customs and traditions of Filipinos

Under CA 473 - 10 Year Residency is Reduced to 5 Years when the Applicant: 1. Has honorably held office under the government2. Has established a new industry or introduced a useful invention in the RP3. Has married a Filipino woman4. Has been engaged as a teacher in a school not established for the exclusive instruction of children of a particular nationality or race for a period of not less than 2 years5. Was born in the RP

Steps in Administrative Naturalization Proceedings 1. File a DECLARATION of INTENTION2. FILING of PETITION for naturalization3. PUBLICATION in Official Gazette4. HEARING of Petition5. Promulgation of judgment awarding naturalization6. REHEARING of Petition7. Taking an OATH of allegiance

The following are Disqualified from Applying for Naturalization under CA 473 1. Citizens or subjects or nations with whom the the RP is at war, during the period of such war2. Those: a. Opposed to organized government, or b. Affiliated with any association or group of persons who upload and teach doctrines opposing all organized governments3. Those defending or teaching the necessity of or propriety of violence and personal assault or assassination for the success or predominance of their ideas4. Those who are: a. Polygamists, or b. Believers in the practice of polygamy 5. Those convicted of crimes involving moral turpitude 6. Those suffering from:

a. Mental alienation, orb. Incurable contagious diseases;

7. Those who, during the period of their residence in the RP:a. Have not mingled socially with the Filipinos, orb. Have not evinced a sincere desire to learn and embrace

the customs, traditions and ideals of the Filipinos;

8. Citizens or subjects of a foreign country whose law do not grant Filipinos the right to be naturalized citizens or subject thereof (Reciprocity)

Grounds for Cancellation of Filipino Citizenship Acquired through Naturalization

1. Certificate of naturalization was obtained fraudulently or illegally

2. He established his permanent residence abroad within five [5] years after his naturalization

3. The petition was based on an invalid declaration of intention

4. His minor children failed to comply with the educational requirements through his fault or neglect

5. He allowed himself to be used as a dummy in violation of our naturalization laws

ACQUISITION OF FILIPINO CITIZENSHIP

Q: Does an alien woman who marries a Filipino acquire Filipino citizenship?


CONFLICT OF LAWS

Chronology of Rules:1. Under Sec. 15 of the Naturalization Law [CA 473] provides: “Any woman married to a citizen of the RP, and who might herself be lawfully naturalized, is deemed a citizen of the Philippines” - up to the late 1950’s this was construed to generally mean that if an alien woman married to a Filipino national did not suffer from any of the disqualifications under Sec. 4 of CA 473, she was to be considered a Filipino citizen by the mere fact of marriage

2. In the 1960’s - the SC, in a line of cases, held that it was not enough that the alien wife did not have any disqualifications; she should also have all the qualifications required by CA 473 to become a Filipino citizen by naturalization [ARCPEL]

3. In Burca v. RP [30 Jan 1967] - the SC held that not only must the alien woman possess all the qualifications and none of the disqualifications under CA 473, she must also file a petition for naturalization in the CFI of the place where she had resided at least one year before the filing of the petition, this meant that:

a.) alien men married to Filipinas are given better treatment because only 5 years residency is required

b.) alien women who marry Filipinos are placed on the same footing as any other alien without any marital tie to a Filipino national

4. In Moy Ya Lim Yao v. Commissioner [41 SCRA 292 (1971)] – the SC reversed the Burca decision and held that under Sec. 15 of CA 473, there is no such proceeding [other than a tedious naturalization proceeding] that can be resorted to, so a procedure was suggested. Marriage to a Filipino citizen makes her ipso facto a Filipino citizen because of Sec. 15 of the Revised Naturalization Law. She does not have to go through tedious judicial proceedings.

5. Djumantan v. Domingo [240 SCRA 746 (1995)] – the SC held that marriage to a Filipino does not ipso facto make an alien woman a Filipino as there is no law guaranteeing aliens married to Filipino citizens the right to be admitted, much less the right to be given permanent residency in the Philippines. She has to go through administrative proceedings

Procedure Suggested by the Supreme Court

1. File a petition for the cancellation of her ACR alleging, among other things, that she is married to a Filipino citizen and that she is not disqualified from acquiring her husband's citizenship pursuant to Sec. 4 of CA 473

2. Upon the filing of said petition, which should be accompanied or supported by the joint affidavit of her and her Filipino husband to the effect that she does not belong to any of the groups disqualified by the cited section from becoming naturalized Filipino citizen, the BI conducts an investigation and thereafter promulgates its order or decision granting or denying the petition.

3. Once the BI cancels her registration as an alien, there will probably be less difficulty in establishing her Filipino citizenship in any other proceeding, depending naturally on the substance and vigor of the opposition.

LOSS OF FILIPINO CITIZENSHIP

Q: What happens to the citizenship of a Filipino woman who marries a foreigner?

What Happens to Filipino Citizenship of Filipina when she Marries an Alien 1. Prior to the 1973 Constitution:

a. If she acquires the nationality of her husband - she loses it

b. If she does not acquire the nationality of her husband - she retains it

2. Under the 1973 and 1987Constitution - she retains it, unless by her act or omission she is deemed, under the law to have renounced it [Art. III, Sec. 2, 1973 Constitution Art. IV, Sec. 4, 1987 Constitution]

Ways of Losing Filipino Citizenship 1. By naturalization in a foreign country2. By express renunciation 3. By subscribing to an oath of allegiance to support the Constitution or laws of a foreign country upon attaining the age of 21 years4. By rendering service to, or accepting commission, in the armed forces of a foreign country without the consent of the Republic5. By cancellation of the certificate of naturalization6. By having been declared by competent authority, a deserter of the AFP in time of war, unless, subsequently, a plenary pardon or amnesty has been granted7. By marrying an alien [if a woman], if by her act or omission, she is deemed to have renounced her Philippine citizenship

REACQUISITION OF FILIPINO CITIZENSHIP

How Filipino Citizenship May be Reacquired1. By naturalization2. By repatriation3. By direct act of Congress

RepatriationA mode of reacquiring Filipino citizenship which is only applicable to former Filipinos

Who May be Repatriated1. Deserters in the armed forces in times of war [international] 2. Filipino women who lost their citizenship by marriage to an alien [RA 8171]3. Natural born Filipinos who lost their citizenship because of economic necessity [RA 8171]4. Natural born Filipinos who lost their citizenship because of political necessity [RA 8171] 5. Those who rendered service in the US armed forces without the consent of the government6. Any natural born citizen who lost his Filipino citizenship under RA 725

CHAPTER IX

DOMICILIARY THEORY

The theory that in general, the:1. status2. condition3. rights4. obligations, and


CONFLICT OF LAWS

5. capacity of a person should be governed by the law of his DOMICILE

Defects of the Domiciliary Theory1. Various countries have varying concepts as to the real meaning of domicile; 2. Domicile is comparatively easier to change than nationality [thus an individual dissatisfied with the law of his particular domicile may simply effectuate a change of domicile as to have a different personal law;3. For ulterior motives, persons may pretend to be domiciliaries of one state when in truth their domicile may be elsewhere

Q: Under what law should a forum define the elements constituting domicile? X an English national, who divides his time between London and Manila files a case in the RTC of Manila.

Q: What concept of domicile shall apply? The concept of domicile under RP law, or the concept of domicile under English law?

Sec. 13 of the Second Restatement The forum’s rules are applied when domicile is a fact necessary: 1. to the judicial jurisdiction of the State of the forum to apply its local law or to create or affect legal interests, or 2. to the power of one of its courts or officials to act.

Sec. 13 of the Second Restatement In the field of choice of law, where the particular interest is governed by the local law of the person’s domicile, the forum likewise applies its own rules of domicile to identify the State of the applicable law.

Example

X dies intestate in Paris, leaving movable properties in England, California, New York and France. A proceeding to determine how the chattels located in New York are to be distributed, is brought in a New York court. Under New York conflict rules, this question is governed by the law of the last domicile of X. To identify which state is the last domicile of X, the New York court will apply its own domestic rules of domicile. Unless it does so, the New York court will have no means of knowing whether the solution of the question is to be found in the internal law of England, California, New York or France.

Q: What is the negative consequence of this solution [using the law of the forum to determine domicile?

A: The New York state, by using its own rules to determine the domicile of X may find that the last domicile of X was in France. What if, under the laws of France, X does not qualify as it’s domiciliary?

Criticism against Characterization of the Law of the Forum Domicile, like nationality, establishes a social and political link between an individual and a particular state, therefore, that link should be construed under the law of that State.

Solution Proposed by the Institute of International Law of 1931 1st step – the courts in each country determine under its own domestic legislation whether or not an individual is domiciled therein

2nd step – where two [2] or more foreign laws conflict in respect of domicile, that concept prevailing in the place of actual residence should be preferred

Best Solution Break down the meaning of domicile in accordance with the concrete issues involved such as capacity to enter into contract, succession upon death, or validity of divorce decrees in order to ascertain which kind of domicile is a desirable connecting factor for each of these separate matters

Definition of Domicile in Conflicts of Laws 1. First Restatement – Domicile is the place with which a person has a settled connection for certain legal purposes, either because his home is there or because that is the place assigned to him by law2. Second Restatement – Domicile is a place, usually a person’s home, to which the rules of Conflicts of Laws sometimes accord determinative significance because of the person’s identification with that place

Importance of Domicile in Philippine Conflicts of Laws:

1. Our own law makes in some cases the law of domicile as the controlling factor in the solution of conflicts problems rather than the national law of the person involved

2. In some codal provisions, both domiciliary and nationality theories are used

3. The domiciliary theory often runs to the rescue of the nationality theory in solving conflicts problems posed by stateless individuals, and by those possessed by dual or multiple citizenship

4. Many domiciliary rules prevalent when we were under the control and jurisdiction of the US, were engrafted into our jurisprudence

5. Some very important nations of the world have adopted almost invariably the domiciliary theory

DISTINCTIONS

Citizenship DomicileIndicates ties of allegiance and loyalty

Speaks of one’s permanent abode

One may be a citizen of a state without being a domiciliary thereof

One may be a domiciliary of a state without being a citizen thereof

DISTINCTIONS

Residence DomicileMore or less temporary More or less permanentUsed to indicate a place of abode, whether permanent or temporary

Denotes a fixed residence to which, when absent, one has the intention of returning

Residence is not domicile Domicile is residence coupled with intention to remain for an unlimited time

One may have numerous places of residence

One can only have one domicile for one and the same purpose at any time


CONFLICT OF LAWS

KINDS OF DOMICILE

Domicile of ORIGIN

CONSTRUCTIVE Domicile

Domicile of CHOICE

The domicile of one’s parents at the time of his birth

The domicile established by law after birth in the case of persons under legal disability, regardless of their intention or voluntary act

The domicile which is voluntarily chosen by a sui juris, as his more or less permanent home to which, whenever he is absent, he intends to return

Established at the moment of birth

Assigned or given after birth

Chosen after birth

Applies only to infants

Assigned to all those who lack capacity to choose their own domicile since legal disabilities prevent them from making a choice

Applies to all persons who are not legally disabled to make a choice

Never changes May change from time to time

May change from time to time

Less easily abandoned

More easily abandoned

Result of voluntary will & action of person concerned

RULES

Subject His Domicile of Origin is:

His Constructive Domicile is:

Legitimate Child

The domicile of CHOICE of his FATHER at the moment of BIRTH of the child

The domicile of choice of:1. Either parent, or2. The surviving parent [Art. 212 FC], or3. The parent who died last [Art. 212, FC]

Posthumus Legitimate child

The domicile of CHOICE of his MOTHER


Illegitimate child

The domicile of CHOICE of his MOTHER at the moment of birth of the child


Legitimatedchild

The domicile of his FATHER at the time of the BIRTH [because legitimation has a retroactive effect]

Adopted child The domicile of the The domicile of

real parents or parent by consanguinity

CHOICE of his ADOPTER

Foundling The country where it was found

Ward The domicile of his parents

The domicile of CHOICE of guardian

Rules on Constructive Domicile for Married Women

Marriage Her Constructive Domicile is:Valid The domicile of CHOICE of both the

husband and the wife [husband makes the choice but in case of disagreement, the courts will decide] (Art. 69, Family Code)

Voidable 1. Prior to annulment – the domicile of both the husband and wife [unless the wife is permitted to select her own domicile of choice]2. After annulment – she no longer has any constructive domicile, she can take a domicile of her own choice

Void No constructive domicile, she can take a domicile of her own choice

Even in cases of a Valid Marriage – Wife May be Allowed to Have a Separate Domicile: 1. If the husband lives abroad, or there are other valid and compelling reasons for the exemption (Art. 69, Family Code) 2. If they are legally separated (Art. 63[1], Family Code)3. If the husband forcibly ejects the wife from the conjugal homes so that he may have illicit relations with another4. If there is a separation de facto of the spouses

Rules on Constructive Domicile for Idiots, Lunatics and the Insane

If the Idiot, Lunatic or Insane Person is:

What is his Constructive Domicile?

BELOW the age of majority

Apply the rules for infants

ABOVE the age of majority

1. If he has a guardian over his person – domicile of the guardian2. If he has NO guardian over his person – domicile of his choice shortly before he became insane

Domicile of Choice The place voluntarily chosen by a sui juris, as his more or less permanent home that to which whenever he is absent, he intends to return

Art. 50, Civil Code – “For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence”.

Requisites to Acquire A Domicile of Choice 1. Capacity2. Freedom of Choice3. Residence or sometimes a mere physical presence in the plane where domicile is alleged to have been acquired3. Intention to make that place home

Fundamental Principles Governing Domicile of Choice 1. No natural person must ever be without a domicile, but may be stateless [every person must have a domicile]


CONFLICT OF LAWS

2. No person can have two[2] or more domiciles at the same time [but may have dual nationality], except for certain purposes, and from different legal viewpoints.3. Every natural person, as long as he is free and sui juris may have and change his domicile at pleasure 4. The burden of proof is on the one who alleges that a change of domicile has taken place5. Domicile, once acquired, is retained unless a new one is obtained by capacitated persons with:

a. freedom of choiceb. actual physical presence in the place chosen,

andc. a provable intent that it should be one’s fixed

and permanent abode; there should be:* animus manendi – intent to remain* animus non-revertendi – intent not return to the original abode

CHAPTER XII

PERSONAL STATUS & CAPACITY

Philippine Conflicts Rule on Status and Capacity:Art. 15, Civil Code: “Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines even though living abroad.”

Q: Is Art. 15 a one-sided conflicts rule?

Treaty of Montevideo on International Law – Art. I --- “No incapacity of a penal character, nor for reasons or religion, race, nationality or opinion will be recognized.

Distinctions

Judicial Jurisdiction Legislative JurisdictionThe authority of the courts to hear and determined the cause of action, whatever be the governing law that governs status and capacity

The authority of the state [of one’s nationality or domicile] to promulgate laws affecting one’s status

The authority to hear and determine a legal controversy

The competence of a person’s national law to govern his status

Governed by the Law of the Forum

Status is governed by one’s own national law tried by our own courts

BEGINNING of PERSONALITY Example

A Japanese couple resides in the Philippines. There is an unborn child in the womb of the Japanese wife.

Q: Can a donation be made to the unborn child?A: Personality begins at CONCEPTION and NOT at birth.

Philippine Internal Laws Governing the Beginning of Personality (Art 40 & 41 of the Civil Code)

2 Kinds of Children:Ordinary – those with intra-uterine lives of at least 7 months – mere birth is sufficient to acquire personalityExtraordinary – if the intra-uterine life is less than 7 months, to acquire personality, the child must have lived for at least 24 hours after its complete delivery from the maternal womb

AGE of MAJORITYPhilippine Internal Laws Governing Age of Majority

(Art. 234 of the Civil Code amended by RA 6809)Emancipation takes place by the attainment of

majority. Unless otherwise provided, majority commences at the age of 18 years.

ExampleX, a 17-year old American, enters into a contract with a Filipino corporation in the Philippines.Q: Is he capacitated to enter into such contract?

ABSENCEPhilippine Internal Law Governing Age of Majority

(Art. 384 of the Civil Code)

A person’s absence may be declared:2 years having elapsed without any news about the absentee or since the receipt of the last news, and 5 years in case the absentee has left a person in charge pf the administration of his property

ExampleF [Filipina] married J [Japanese man] in the Philippines. J disappeared while living in the Philippines. After 4 years, F tried to have J judicially declared absent. Under Japanese law, however, one can only be declared absent after 5 years.

Q: Can the Philippine court declare J absent after 4 years?

END of PERSONALITYQ: When does personality end?A: Many legal systems believe that the personality of a human being is extinguished by death

Philippine Internal Laws on Presumption of Death

Kind of Absence

Presumed Dead for ALL Purposes

EXCEPT Succession

(Art. 390-391 Civil Code)

Presumed Dead for Purposes of Remarriage

(Art. 40 Family Code)

Ordinary 7 years 4 yearsExtraordinary 4 years 2 years

ExampleF [Filipina] is married to B, [British man]. B disappeared. F wants B to be declared dead because F wants to remarry.

Q: Why is there a difference in the treatment between absence and presumptive death?A: Because

Absence Presumptive DeathIs a Status Is a Presumption Therefore it is governed by Art. 15

Therefore it is governed by Procedural Law

Which is the National Law Which is the law of the Forum

Synopsis of the Rules on Status in General:

Factual Situation Point of ContactBEGINNING of PERSONALITY of natural persons

National Law of the child

Ways and effects of National Law


CONFLICT OF LAWS

EMANCIPATION Use of NAMES and SURNAMES

National Law

Use of TITLES of NOBILITY

National Law

ABSENCE National Law of the absent person

Presumption of DEATH and SURVIVORSHIP

Law of the FORUM [Lex Fori]

AGE of MAJORITY National Law

CHAPTER XIV

MARRIAGE AS A STATUS

Legal Consequences of Marriage The marital bond that unites husband and wife gives rise to a set of rights and obligations:1st – with respect to their PERSONAL RELATIONS, and2nd – with respect to their PROPERTY RELATIONS

PERSONAL RELATIONSArt. 68, Family Code : The husband and wife are

obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support

Scope of Personal Relationship between Husband and Wife

1. Mutual fidelity, cohabitation, and respect2. Reciprocal support or assistance3. Right of the wife to bear husband’s surname4. Duty of the wife to follow the husband to his

residence or domicile

Rule on Personal RelationsGeneral Rule – In jurisdictions adopting nationality as

the test of status in general, such as the RP, the personal relations between husband and wife are traditionally controlled by the law of the State which the husband is a citizen

Exceptions – In the following instances, the national law of the husband may be disregarded:

1. Where the national law of the husband will violate the public policy of the forum

2. When the national law of the wife is the lex fori, especially in matters of procedure

3. In the interest of trade and to protect domestic creditors

Synopsis or Rules for Marriage as a STATUS

FACTUAL SITUATION POINT OF CONTRACTPERSONAL RIGHTS and OBLIGATIONS between Husband and Wife

NATIONAL LAW of HUSBAND

Effect of Subsequent Change of Nationality1. If both husband and wife will have a new common

nationality – their NEW national law will govern their personal relations

2. If only one will change his/her nationality – the LAST COMMON nationality will still govern their personal relations

3. If there was never a common nationality – the NATIONAL law of the HUSBAND at the time of

the marriage was entered into will govern their personal relations

PROPERTY RELATIONS

Kinds of Property Regimes that Spouses may enter into in the RP:

1. Absolute Community of Property:2. Conjugal Partnership of Gains3. Complete Separation of Property

Art. 80 FAMILY CODE Conflicts Rule PROPERTY RELATIONS of the SPOUSES

In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence.

This rule shall not apply:1. Where both spouses are aliens;2. With respect to the EXTRINSIC VALIDITY of

CONTRACTS: Affecting property not situated in the

Philippines, and Executed in the country where the property

is located; 3. With respect to the EXTRINSIC VALIDITY of

CONTRACTS: Entered into the Philippines, but Affecting property situated in a foreign

country whose laws require different formalities for its extrinsic validity

Rules on Property Relations

General Rule - Property relations are governed by Philippine law, whether or not:

the parties are both Filipinos or one party is a foreigner

their marriage was celebrated in the RP or abroad they reside in the RP or abroad, or their properties are located in the RP or abroad

Exception - RP will not apply: in marriages between aliens in mixed marriages where the parties stipulate

otherwise to the EXTRINSIC VALIDITY of CONTRACTS

involving property situated in a foreign country:

*executed in the country where the property is located, and

* entered into in the RP but said country’s laws require different formalities for its extrinsic validity

Illustration X [Swiss national], married Y [Filipina] in Manila in

1989. They did not enter into a particular property regime. The spouses established their domicile in the Philippines. In the course of their marriage, they had a son Z.

Under Swiss laws, the complete separation of property regime governs and therefore X can freely dispose of his properties without restrictions.

While living in the Philippines, X bought shares of stock in SMC from the proceeds of his own salary. When X died, he left all his shares of stock to his brother, B. Y and Z opposed the will of X on the ground of preterition.

Q: What law governs the property relations of X and Y?A: Under Art. 80, Philippine laws particularly the Family Code shall govern. Under the Family Code, the governing


CONFLICT OF LAWS

regime is the Absolute Community of Property, therefore the SMC shares of stock are co-owned by X and Y.

Q: Can X, by will, give all of his shares of stock to B?A: No, because under the ACP, he only owns 50% of the SMC shares of stock

Q: Can X, by will, give his entire 50% share to B?A: Yes, because “intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property be found” [Art. 16[2], Civil Code]

Effects of Subsequent Change of Nationality NO EFFECT – under the Doctrine of IMMUTABILITY in the MATRIMONIAL Property Regime

Note: BUT, change in nationality or status is to be distinguished from change in legislation

Distinctions

IMMUTABILITY of MATRIMONIAL

PROPERTY REGIME

MUTABILITYof the LAW

Subsequent change of nationality does NOT affect the original property regime in the marital property relationship

When the law of the original nationality changes the marital regime, the property relationship has to change accordingly

CHAPTER XV

ANNULMENT OF A VIODABLE MARRIAGE AND DECLARATION OF

NULLITY OF A VOID MARRIAGE

Two Questions with which Conflicts of Laws is Concerned with Reference to Annulment1. What court has jurisdiction to declare that a marriage is annulled?2. What law governs the annulment of marriage?

Illustration If X and Y were married in Japan, the RTC can acquire jurisdiction over the case but may apply Japanese law to determine whether at the time of the celebration, there was a formal or substantive impediment that would defeat the marriage

Q: Can 2 foreigners who did not get married in the RP sue for annulment in the RP?Q: What court normally has jurisdiction to annul a marriage?

A: In many countries today, the regularly competent court that has jurisdiction to annul a marriage is that of the domicile of the parties

1. REASON: It is the state of the domicile that has the greatest interest in the domestic relations of the contracting parties2. PRACTICAL JUSTIFICATON: Domiciled aliens may bring their matrimonial causes before the local courts instead of compelling them to travel to, and sue, in their respective countries

Courts with Jurisdiction to Annul a Marriage1. The court of the state where both parties are NATIONALS2. The court of the state where at least one party is a national3. The court of the state where the wife was a national prior to her marriage4. The court of the state of domicile of the parties

Choice of LawGeneral Rule

The law that governs the formal and substantive validity of the contract of marriage also governs the question as to whether there is a valid cause for annulment

Annulment based on Formal DefectsSince, as a general rule, all questions involving

formalities are governed by the law of the place where the marriage is performed, the lex loci celebrationis, this law also determines the consequences of any defect pertaining to form.

Therefore, the grounds for annulment will be provided by the law of the place where the marriage was celebrated

Annulment based on Substantive Defects

For marriages performed ABROAD – the lex loci celebrationis shall determine whether or not there is a defect in substance which would render the marriage valid

What Law Shall Govern the Annulment of Marriages Celebrated in the PHILIPPINES

1 Between FOREIGNERS – lex loci celebrationis [Philippine law - as it is the law which was alleged to be violated]

2 Between FILIPINOS – lex loci celebrationis [Philippine law] will provide the grounds for annulment namely:1 One party is NOT legally CAPACITATED to

marry [below 18] [Art. 35(1)]2 BIGAMOUS or POLYGAMOUS marriages

[Art. 35(4)]3 MISTAKE as to the IDENTITY of the other

party [ Art. 35(5)]4 Psychological Incapacity [Art. 36]5 INCESTUOS Marriage [Art. 37]6 VOID marriages for reasons of PUBLIC

POLICY [Art. 38]7 Grounds for Annulment [Art. 45]

CHAPTER XVI

ABSOLUTE DIVORCE

Distinctions:

DIVORCE ANNULMENTPresupposes a VALIDLY existing marriage

Ends a marriage which though considered valid in the interim, nonetheless is DEFECTIVE


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Granted for causes SUBSEQUENT to the marriage ceremony

Granted for cause which exist at the VERY TIME the marriage was entered into

Kinds of Divorce

ABSOLUTE DIVORCE LEGAL SEPARATIONDivorce a vinculo matrimoniee

Divorce a mensa et thoro

Marital ties are dissolved, hence the parties are allowed to marry

Parties remain married but allowed to live separately from each other

Reconciliation does not revive a marriage already dissolved by a degree granting absolute divorce

Reconciliation:1. Prevents a suit for legal separation or2. Rescinds one already granted

Rules Today for ABSOLUTE DIVORCE

Parties Brought in RP

If Brought in a Foreign Court

Filipinos Will NOT prosper

Divorce decree will NOT be recognized here on any ground even if allowed in said foreign court

Foreigner & Foreigner

Will NOT prosper

Divorce decree will be recognized as valid only if the following 2 conditions concur:1. The foreign court must have had jurisdiction to grant the absolute divorce2. The divorce must be recognized as valid by the national law of the parties

Filipino & Foreigner

Will not prosper

1. General Rule - DENY the validity of the divorce 2. Exception - Art. 26, FC, if the divorce is validly obtained abroad by the alien spouse capacitating him to marry, the Filipino spouse shall have capacity to remarry under RP law

RULES on ABSOLUTE DIVORCE1. General Rule - Absolute divorce is NOT allowed and NOT recognized in RP2. Exceptions – Divorce may be recognized in RPa. When obtained by ALIENS in a FOREIGN COUNTRY (Art.15 Civil Code, Art. 21 Family Code)b. When obtained by MUSLIMS under the Muslim Codec. Under Art. 26 of the FAMILY CODE which states that: “When a divorce is thereafter obtained by the alien spouse capacitating him or her to marry, the Filipino spouse shall have the capacity to remarry under Philippine law”.

Requisites for Divorce to be Recognized in RP Under Art. 26 1. The marriage must be MIXED2. The divorce is obtained by the ALIEN spouse 3. The divorce must CAPACITATE the alien spouse to remarry

What is Meant by MIXED Marriage Under Art. 261. Sempio Dy View – the marriage must already be mixed at the time of CELEBRATION

2. DOJ opinion 1993 – the marriage need not be mixed at the time of celebration for as long as it is mixed at the time of the divorce*In case of CHANGE of citizenship, it is the citizenship at the time of the divorce that controls

Factual Situation Point of ContractDivorce sought in the RP [whether by Filipinos or Foreigners ]

LEX FORI [therefore will NOT BE granted]Exception: Muslim Divorce

Divorce obtained BROAD1. Between Filipinos

NATIONAL LAW – therefore: 1. Not valid here even if valid abroad2. Regardless of the cause of divorce

2. Between Foreigners

NATIONAL LAW – therefore valid here if :1. Valid in the state granting it, and2. Valid according to the national law of the parties

3. Mixed NATIONAL LAW without prejudice to Art. 26[2] of Family Code

CHAPTER XVII

LEGAL SEPARATION

Synopsis for LEGAL SEPARATION

Factual Situation Point of ContractGrounds for Legal Separation:

NATIONAL LAW of the parties

1.) If of the same nationality

The COMMON national governs

2.) If of different nationalities

The grounds given by BOTH national laws should all be considered proper grounds

Distinctions

LEGAL SEPARATION ABSOLUTE DIVORCEDivorce a mensa et thoro Divorce a vinculo

matrimonieeParties remain married but allowed to live separately from each other

Marital ties are dissolved, hence the parties are allowed to marry

Effects of Reconciliation:1. Prevents a suit for legal separation, or2. Rescinds one already granted

Reconciliation does not revive a marriage already dissolved by a degree granting absolute divorce

LEGAL SEPARATION ANNULMENTCan be granted for causes arising AFTER the celebration of the marriage

May be granted ONLY for causes which exist PRIOR or AT THE TIME the wedding takes place

Grounds are given by the NATIONAL LAW of the parties concerned

Grounds are given by the LEX LOCI CELEBRACIONIS [subject to certain exceptions]

The validity of the marriage Questions the very From the lectures of Atty. Melissa Romana Suarez 9

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is presumed or admitted; purely a question of status

existence of the status of marriage itself

No residency requirement At least one of the parties must be a domiciliary of the forum

Jurisdiction [Where Petition for Legal Separation May be Filed] A suit for Legal Separation can be filed ANYWHERE as long as:1. It is allowed under the national law of the petitioner2. It is allowed by the laws of the forum

Grounds for Legal Separation Art. 55, FC1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;

2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;

4. Final judgment sentencing the respondent to imprisonment of more that 6 years, even if pardoned;

5. Drug addiction or habitual alcoholism of the respondent; 6. Lesbianism or homosexuality of the respondent;

7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;

8. Sexual infidelity or perversion;

9. Attempt by the respondent against the life of the petitioner; or

10. Abandonment of the petitioner by respondent w/o justifiable cause for more than 1 year.

Defenses in Legal Separation [Art. 56, FC] • Condonation • Consent • Connivance• Collusion• Recrimination or mutual guilt• Prescription ß

Which Court Has Jurisdiction?

ANNULMENT LEGAL SEPARATIONThe court of the state where both parties are NATIONALS

All courts can acquire jurisdiction over legal separation cases provided that:1. The law of the state where the parties are nationals allow it2. The law of the state where the case is filed has proceedings for legal separation

The court of the state where at least one party is a nationalThe court of state where the wife was a national prior to her marriageThe court of the country domicile of the parties [domicile of the husband is controlling]

Why there is a DIFFERENCE in the CHOICE of LAW

ANNULMENT LEGAL SEPARATIONSince the defect in the marriage already existed at the time of the celebration of the marriage, it is the law of the place where the marriage was celebrated which was violated

Since the grounds arose only AFTER the marriage took place, the law of the place where the marriage was celebrated were NOT violated

SYNOPSIS OF RULES

Factual Situation Point of ContactANNULMENT What Law Furnishes the Grounds

for Annulment1 Between

ALIENSLEX LOCI CELEBRACIONIS[the law of the place where the marriage was celebrated as it is the law which was alleged to be violated]

2 BetweenFILIPINOS

LEX LOCI CELEBRACIONIS – valid grounds in the place where the marriage was celebrated INCLUDING exceptions under Art. 26, namely:1. One party is NOT legally CAPACITATED to marry[Art. 35(1)]2. BIGAMOUS or POLYGAMOUS marriages [Art. 35(4)]3. MISTAKE as to the IDENTITY of the other party [Art. 35(5)]4. Psychological Incapacity [Art. 36]5. INCESTUOS Marriage [Art. 37]6. VOID marriages for reasons of PUBLIC POLICY [Art. 38]

LEGAL SEPARATION

NATIONAL LAW of the parties

Note:1. Defenses in Legal Separation shall also be from the

National Law of the parties even if the marriage was celebrated in RP

2. Prescription in Legal Separation cases is also governed by the National Law of the parties.

Q: Is there any residency requirement if the legal separation is filed by aliens?A: NO. The Family Code has expressly repealed the residency requirement. Even a tourist can file a petition for legal separation

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"He who began a good work in you, will be faithful to complete in you." (Philippians 1:6)

"But one thing I do: Forgetting what is behind and straining toward what is ahead, I press on toward the

goal to win the prize for which God has called me heavenward in Christ Jesus." (Philippians 4:13-14)


CONFLICT OF LAWS

Compiled by: TFMforManresa2011


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