CONFLICTS OF LAW Reviewer PARAS, 1990, 1996 CHAPTER 1
PHILIPPINE PRIVATE INTERNATIONAL LAW or CONFLICT OF LAWS – any case which involves facts occurring in more than one state or nation, so that in deciding the case, it is necessary to make a choice between the laws of the different state or countries; presented whenever a legal controversy arises in which there is a foreign element (H.F. Goodrich) DEFINITION: [pdcw]That part of the municipal law of a state, which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not they should apply a foreign law or foreign laws. ELEMENTS: It is a part of the municipal law of a state; - not international in character; but refers to a given problem with a foreign element. There is a directive to courts and administrative agencies; - Admin. Agencies include DFA, Bureau Bureau of Immigration, Securities and Exchange Commission, and the like. There is a legal problem involving foreign element; - In which case, the courts court s must look beyond its own internal law There is either an application or a non-application of a foreign law(s). - Refers not only to the laws of foreign states but also the law of political subdivisions which have their own legal system.
IMPORTANCE: 1. To adjust conflicting rights in international, mercantile and corporate transactions; and 2. To solve personal, family, property and successional, contractual problems, possessed of facts or elements operating in two or mote states.
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SCOPE OF FUNCTIONS 1. Determines of which country has jurisdiction; 2. (Choice of Law): Applicability to a particular case of either the local or foreign law; 3. (Applicability of the foreign judgment): Determines the force, validity and effectiveness of a foreign judgment.
HOW COL IS OBSERVED: 1. States must harmonize their own rule of equity with the legislation and jurisprudence in other lands. 2. Individuals must not evade our laws by going elsewhere and resorting to a foreign forum.
Art. 71 of the Civil C ode provides that incestuous marriages, even if valid in the place of celebration, cannot be countenanced in this country. country .
In recognizing foreign legal system, do we implicitly admit the inadequacy of our own jurisprudence?
NO. The very essence of a sovereign state is that it has no superior. Each sovereign state is supreme within its own limits. It is therefore within the power of such state to exclude at any time any or all foreign laws from operating within its borders. Hence, when effect is given to a foreign law, it is only because the municipal law of that state ‘temporarily abdicates’ its supreme authority in favor of the foreign law, which for the time being, becomes itself, by will of the state, its municipal law.
EXAMPLES OF DIVERSITY INTERPRETATIONS
ORAL WILL - Not allowed in PH but allowed in US. MARRIAGE - PH – monogamy; Muslim countries – polygamy. - PH allows articulo mortis but not mortis causa. - PH does not recognize divorce; US allows it.
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BASIC CAUSE FOR COL : ‘Variance’ in the municipal laws of the countries involved.
CONFLICT OF LAWS vs LAW OF NATIONS
Private International Law Public International Law (Conflict of Laws) (Law of Nations) As to NATURE or CHARACTER International in Character National, Municipal, or local in character As to PERSONS Involved
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i. Lex situs = law of the place where the property is situated ii. Lex loci celebrationis = law of the place of celebration or execution (formalities or solemnities) iii. Either lex nationalii ( adopted in PH) or lex domicilli = national law or the domiciliary law (successional rights to an estate) iv. In Criminal Law: Principle of Territoriality (jurisdiction is where a crime has been omitted) and Principle of Generality (bind both citizens and aliens who are in the said country or territory; upon all who live or sojourn in Philippine territory: Art. 14 of Civil Code) EXCEPTIONS TO PRINCIPLE OF GENERALITY: 1. Principles of Public International Law (i.e. diplomatic immunity) 2. Treaty stipulations (i.e. grant of bases which is a waiver of jurisdiction within the terms “necessary appurtenances…and rights incident thereto.” v. Agreement vs Treaty (by De Leon, pp. 21)
Private Individuals or States, international corporations organizations As to TRANSACTIONS Involved Private transactions Generally affect public interest; in which sovereign states are interested As to REMEDIES or SANCTIONS Resort to municipal Resort may be peaceful tribunals (diplomatic negotiation, mediation, arbitration, judicial settlement by ICJ), or by forcible remedies (severance of diplomatic relations, reprisals, embargo, boycott, pacific blockade, war o
DUALIST vs MONIST School of Thought
MONISM International law and domestic law belong to only one system of law with international law considered as superior to domestic law
DUALISM (pluralist theory, based on positivism) domestic and international law are two different spheres of law. They would favor state law.
May overlap: If State A should recognize the government of State B, the latter is given permission to sue in the courts of the former. But a sovereign state, whether recognized or not, cannot be made a defendant in a foreign country. This is in line with the “State Immunity from Suit.” Because aside from the fact that it is an insult against a sovereign state, how can the judgment ever be effectively enforced? Donald Baer Commander US Naval Base vs Hon. Tito Tizon o
SOURCES 1. Direct a. Constitutions b. Codifications c. Special laws d. Treaties and conventions e. Judicial decisions f. International customs
2. Indirect a. Natural Moral Law – rule of human conduct implanted by God in our nature and in our conscience urging us to do what is right and avoid what is evil. b. Work of Writers – writings that have influence judicial decisions on the subject.
CHAPTER 2 (JURISDICTION) What the Tribunals of the Forum Must Do
Alternatives Given to the Court 1. When without jurisdiction – dismiss the case; 2. When with jurisdiction: a. Refuse to assume jurisdiction on the ground of “ forum non conveniens ;” or
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b. Assume jurisdiction, in which case it may either: i. Apply the internal law of the forum (lex fori ); or ii. Apply the proper foreign law ( lex causae )
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Question of Jurisdiction Jurisdiction – the authority of a tribunal to hear and decide a case, as well as its power to enforce any judgment it may render thereon.
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KINDS OF JURISDICTION: 1. Over the SUBJECT MATTER (conferred by laws; authority of a court to head and decide cases of the general class to which the proceedings in question belong) 2. Over the PERSON (binding on the parties involved: plaintiff –acquired from the moment he instituted the action; and defendant- acquired by: (1) voluntary appearance even through by motion or simple manifestation of appearance except if the purpose us to question the jurisdiction of the court over his person; (2) by service of summons which may either be through personal service – serving a copy to the defendant in person or by tendering it to him if he refuses to receive it, or through substituted service – if defendant cannot be served within a reasonable time); (3) by summons by publication – if the action is in rem or quasi in rem or if it involves the personal status of the plaintiff.
Action In Rem Directed against the thing itself Binding upon the whole world
Action In Personam Directed against a particular person(s) Binding only between and among the parties in the case
3. Over the RES (“particular” subject matter i.e. real property; may be acquired by coercive seizure of the property by attachment proceedings)
How Service is Made on a Private Foreign Corporation (Rule 14, Sec. 12) o
Corporation must be doing business in the Philippines and not engaged merely on isolated transaction
Immaterial whether the business is doing illegal or not On its resident agent On the government official designated by law Or any of its of ficers or agents within the Philippines o
Principle of Continuing Jurisdiction Even if the defendant leaves the state of the forum prior to the final determination of the suit, the jurisdiction that had been previously acquired over him continues.
REFUSAL TO conveniens -
ASSUME
JURISDICTION: forum
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Reason often given for refusal to assume jurisdiction is that to do so would prove ‘inconvenient’ for the forum: “ Forum non conveniens” or the court’s discretionary power to decline the exercise of its jurisdiction where another court may more conveniently hear a case.
Instances where forum non conveniens may be invoked: F E Ni C O 1. 2. 3. 4.
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The evidence and the witnesses may not be readily available; The court dockets of the forum may already be clogged; Where “ f orum shopping” is ought to be curbed; The forum has no particular interest in the case ( parties may neither be citizens or residents; subject matter occurred elsewhere; cause of action not related to the forum) When other courts are open; the case may be better tried in said courts.
Note: The doctrine should generally apply only if the defendant is a corporation. If the defendant is an individual, the proper forum might not acquire jurisdiction over him (i.e. he may not be residing there), leaving plaintiff without any remedy. Application of the Principle: 1. 2.
If neither the plaintiff nor the defendant, nor the cause of the action is related to the forum; In the interest of justice, where the suit is between aliens or non-residents, or where the litigation can more appropriately be conducted in a foreign tribunal.
ILLUSTRATION: Heine vs New York Insurance Co. FACTS: German citizens brought insurance claims against the New York Life Insurance Company, a NY based corporation, issued in Germany before the Oregon Court in USA.
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Filipino marries a foreign woman, their property relations will be absolute community of property. But if a Filipina woman marries a foreign man, the property relations shall be governed depending on the national laws of the husband.
ISSUE: WON Oregon court may refuse to take cognizance of the case on the ground of forum non conveniens. HELD: YES. To require it to defend the action would impose upon it great and unnecessary inconvenience and expense , and probably compel them to produce numerous records from Oregon to miles away from its home office. Also, it would consume months to try to dispose of the ca se.
ASSUMPTION OF JURISDICTION When jurisdiction is assumed, the forum may either apply lex fori or the lex causae.
Application of the Internal or Domestic Law ( Lex Fori): E N E C – P P A R
1. When the law of the forum expressly so provides in its conflicts rules; i. Art. 16, par. 1 (mandates the application of lex situs or lex res sitae to all properties, whether real or personal, found and located here) - property transactions ii. Art. 16, par. 2 (order and mount of successional rights, intrinsic validity of testamentary provisions, and capacity to succeed). Hence, when a Filipino father with a Chinese child dies, the estate of the father shall be distributed in accordance with the Philippine law because the deceased is a Filipino national. iii. Art. 80 (property relations of marriage) – “In the absence of 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 except (1) where both spouses are aliens, (2) with respect to the extrinsic validity of contracts affecting property not situated in PH and executed in the country where the property is located, (3) with respect to the extrinsic validity of contracts entered into in the Philippines but affecting the property situated outside the country whose laws require different formalities for its extrinsic validity. Examples: o
The matrimonial property regime is governed by the national law of the husband , not by the location of the property. In PH, the presumed matrimonial property relations shall be the ‘absolute community of property.’ Hence, if a
iv. Art. 829 (revocation of wills)
2. When the proper foreign law ( lex causae) has not been properly pleaded and proved; = there is no judicial notice of any foreign law. If not properly pleaded and proved , our courts will presume that the foreign law is the same as our local or domestic or internal law.
Proof of Foreign Law If it is WRITTEN, it may be proved by an (1) o official publication thereof; or (2) a copy of such accompanied with a certificate issued by an officer having the custody of the record. If UNWRITTEN, it may be proved by (1) o oral testimony of expert witness; or (2) by printed and published books of reports or decisions of the country involved.
3. When the case involves any of the exceptions to the application of the lex causae (exceptions to ‘comity’): a.
When the foreign law, judgment, or contract is contrary to a sound and established public policy of the forum;
Ex: incestuous marriage, joint will.
Public Policy – the manifest will of a state. Contrary to Public Policy – when we already have a conflicts rule or a rule governing a situation where a foreign element is involved) NOTE: While foreign law may be contrary to our law, it is not necessarily contrary to our public policy. EXAMPLES : American dies, leaving properties in PH. He gave nothing to his children in his will. Can his will be given effect in PH despite the PH policy to grant children their legitimes?
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Yes. Art. 16 (2) of the Civil Code (a conflicts of rule) provides that successional rights are governed by the ‘national law’ of the deceased.
May an absolute divorce be obtained abroad by Filipinos be given effect in the Philippines?
NO. Art. 15 of the Civil Code provides that ‘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” Frd – S – C - L
May marriage between first cousins in California, where it is valid, be recognized in the Philippines?
NO. Art. 71 of the Civil Code provides that ‘ All marriages performed outside the Philippines in accordance with the laws in force in the country where they were performed and valid there as such, shall also be valid in this country, except bigamous, polygamous, or incestuous marriages as determined by Philippine laws.
May the marriage between a Filipino step brother and his Filipina step sister in California (valid there) be recognized in Philippines?
YES. For the simple reason that it is not bigamous, polygamous, or incestuous. Statues which restrict natural rights, such as the right to marry must be construed restrictively or strictly. What the law does not include, it excludes. Inclusio union, exclusion est alterius. Thus, if a marriage does not fall under the enumerated exceptions, it should come under the general rule. Furthermore, Art. 71, which is our only law on foreign marriages are ‘merely general provisions.’ It is well known that in case of conflict between general and particular provisions, the particular provisions should prevail.
b. When the foreign law…is contrary to almost universally conceded principles of morality (contra bonos mores ); Example: prostitution c. When the foreign law…involves matters;
procedural
BASIS: There are no vested rights in the rules of procedure; one must take the procedural formalities of a forum in the state in which he finds them.
d. When the case involves penal laws, contracts, judgments; PENAL LAWS, CONTRACTS, JUDGMENTS = criminal laws; if the purpose of penalty is to ‘remedy an act of injustice against the general public’ EXAMPLES: i. CRIMINAL STATUTES A Filipino murders a friend in New York.
He cannot be prosecuted in the Philippines but by the laws of New York. This is based on principle of territoriality. ii. CONTRACTS WITH PENALTY CLAUSE A enters into a contract with B in New York. It stipulates that in the event of default, forfeiture of any advance payment would ensue. May the ‘penalty clause’ be enforced in PH?
YES. Because ‘penalty clause’ should not be considered a penalty.
e. When the case involves purely fiscal (revenueproducing) or administrative matters; A State should not be burdened with the task of implementing the financing activities of other countries. Thus, if Filipino is assessed for his income tax in New York and he decides to abandon his liability there and comes back to PH to escape from the New York tax, NY cannot successfully sue him in our courts for said liability. After all, a tax liability ‘does not arise from a contract entered into with the government concerned: it is a unilateral demand, a legal imposition which can be successfully enforced only within the territorial jurisdiction of the foreign state. Similarly with administrative codes of alien governments,we cannot be expected to assist in the implementation of foreign governmental functions.
f. When the application of the foreign law, judgment, or contract, may work undeniable justice to the citizens or residents of the forum; Prevailing circumstances should naturally determine the justness of a claim.
EXAMPLES:
g. When the application of the foreign law… may work against the vital interests and national security of the state of the forum;
An American, used to ‘trials by jury’ in the US cannot insist on a jury tria l in the Philippines in case he is accused of a crime he committed in our country.
h. When the case involves real or personal property situated in the forum.
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Instances Exempting the Application of Internal or Domestic Law to Conflict of Laws:
court. The American found the French judgment to be final.
1. A foreign sovereignty, diplomatic official, or public vessel or property of another state is involved; 2. The state accepted a limitation upon its jurisdiction over certain persons or things of another State through a treaty; 3. Foreign law has been pleaded and proved. (Rule 132, Sec. 25, ROC ).
“Comity rests, not on the basis of reciprocity but upon the persuasiveness of the foreign judgment.”
CHAPTER III – CHOICE OF LAW Theories on Why the Foreign Law May in Some Cases Be Given Effect CVL-HRJ 1. Theory of Comity – we apply foreign law because of its ‘convenience’ and because we want to give ‘protection’ to our citizens, residents, and transients in our land. - Being voluntary and not obligatory, rests in the discretion of the tribunals of the forum and is governed by certain more or less recognized rules. 2 KINDS: i. (Based on) reciprocity – “If the laws and judgments of the forum are recognized in a foreign state, the forum will in turn recognize the laws and judgments emanating from the said state.” HILTON vs GUYOT: American Court cannot enforce the French judgment which was against an American national despite that the American court deemed the French trial as fair and impartial on the ground that the French tribunals do not regard American decisions with finality; applying the principle of RECIPROCITY.
ii. (Based on) persuasiveness – If the forum is persuaded that a foreign judgment is meritorious and has been rendered by a court of competent jurisdiction, it will enforce that judgment in the forum even if the forum does not reciprocate. JOHNSTON vs COMPANIE GENERALE TRANSATIANTIQUE: An American sued a French corporation. Judgment was rendered in favor of the corporation. American tried again but in the American
Note: A foreign final judgment “is presumptive evidence of a right as between the parties and their successors in interest by subsequent title” and may be repelled by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.”
2. Theory of Vested Rights – Here we seek to enforce not the foreign law itself but the ‘rights that have been vested’ under such foreign law; a right having been created by an appropriate law, the recognition of its existence follows everywhere. - BASIS: PRINCIPLE OF TERRITORIALITY. LOUCKS vs STANDARD OIL CO. : A NY resident was killed in Massachusetts through reckless imprudence of the defendant’s driver. A suit was ensued in New York to “recover damages” on the basis of a Massachusetts statute granting monetary award in a case like this. Defendant alleges that NY law cannot apply the Massachusetts law. “Massachusetts law can be applied not necessarily because it will be applied in NY but because the vested right created under MSCTS law should be recognized in NY. The fundamental policy is that there shall be some atonement for the wrong.
3. Theory of Local Law – Foreign law is applied not because it is foreign, but because ‘our own laws require us to do so’ i.e. when a foreign law has become part and parcel of our own local law. 4. Theory of Harmony Laws – so that wherever a case is decided irrespective of the forum, the solution should be approximately the same; “identical problems must have identical solutions anywhere.” 5. Theory of Justice – the purpose of all laws is the dispensing of justice; if this can be attained by applying the proper foreign law, we must do so.
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6. Right Theory – the theories adverted to do not mutually exclude one another.
CHAPTER V COLLATERAL MATTERS 1. nature and proof of foreign judgments 2. nature and composition of the conflicts rules 3. characterization or classification of conflict rules and judgments 4. various theories on status and capacity 5. The Problem of the Renvoi.
NATURE AND COMPOSITION OF CONFLICT RULES CONFLICT RULES (RULES OF PRIVATE INTERNATIONAL LAW) – provisions in a country’s own law which covers a factual situation with a foreign element. Kinds of Conflict Rules: 1. ONE-SIDED (Philippine Internal Law applies) EXAMPLES: Art. 15. “Laws relating to family rights and duties, or the status, condition, and the legal capacity of persons are binding upon the citizens of the Philippines, even though living abroad ” 2.
CHAPTER IV
Art. 16. “Intestate and testamentary successions (order of succession, amount of successional rights, and intrinsic validity of testamentary provisions) shall be regulated under the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless where said property may be found.”
NATURE AND PROOF OF FOREIGN JUDGMENTS NATURE – A foreign judgment does not of itself have a ny extra-territorial application. It may only be applied within the territory of the tribunal using it. For it to be effective in PH, it must be proved in accordance to our rules.
RECOGNITION vs ENFORCEMENT Recognition – our courts will allow said foreign judgment to be presented as a defense to a local litigation Merely the sense of justice Does not require special action or special proceeding Enforcement – exists when a plaintiff wants the courts to carry out and make effective in the Philippines a foreign judgment. Implies a direct act of sovereignty Needs a separate action or proceeding to make the foreign judgment effective Necessarily carries with it recognition BOTH REQUIRES PROOF OF FOREIGN JUDGMENT.
ALL-SIDED (indicates when foreign law is to be applied)
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OTHERS Art. 815: “When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines.” – place of execution / lex loci celebrationis Art. 1039: “Capacity to succeed is governed by the nation of the decedent.” – law of nationality Art. 1753: “The law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction, or deterioration. Art. 26. “A marriage celebrated abroad is VALID in the place of celebration, EXCEPT when the marriage is bigamous polygamous, or incestuous. – lex loci celebrationis
REQUISITES FOR RECOGNITION OR ENFORECMENT OF FOREIGN JUDGMENT (P J C C R) 1. Proof of foreign judgment 2. Judgment must be civil or commercial matter 3. Proper jurisdiction, notice (no collusion, extrinsic fraud, or clear mistake of fact or law); 4. Judgment must not contravene a sound public policy - unfaithful mother, awarded by a US court custody of her child was denied said custody by our co urts. 5. Judgment must be res judicata (final, based on merits, jurisdiction, identity of parties – subject matter – cause of action)
EFFECT OF FOREIGN JUDGMENTS Judgment against a specific thing – “conclusive upon the title to the thing;” 2. Judgment against a person – is presumptive evidence of a right as between the parties and their successors in interest. ONCE ENFORCED, AS IF ENFORCED BY OUR OWN COURT’S JUDGMENT 1.
CHAPTER VI – CHARACTERIZATION OF CONFLICTS RULE CHARACTERIZATION - The process of determining under what category a certain set of facts fall
Steps in Characterization: 1. Determination of facts involved; 2. Characterization of the factual situation; - A Californian wife dies. Her husband claims the entire conjugal property by virtue of accretion invoking Californian law. In our law, it is succession and not accretion. Art. 26. “A marriage celebrated abroad is VALID in the place of celebration, EXCEPT when the marriage is bigamous polygamous, or incestuous. 3. Determination of the conflicts rule to be applied; 4. Characterization of the connecting factor; 5. Characterization of the problem as procedural or substantive;
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6. Pleading and proving the proper foreign law; 7. Application of the foreign law to the problem.
Theories on Characterization 1. Lex Fori Theory – forum merely considers its own concepts in its own characterization.
2. Lex Causae Theory – opposite; to follow the characterization of the foreign 3.
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5. 6.
state which is the principal point of contract. Universal Analytical Theory (comparative approach theory) – characterization comes only after a general comparative analytical study of the jurisprudence of all states involved. Common factors both in lex fori and the lex causae are taken into consideration. Dual Theory of Lex Fori and Lex Causae – similar to “comparative approach theory” except that only 2 concepts are considered into the picture (lex fori and lex causae) instead of considering worldwide conceptions. Autonomous Theory Totality Theory – (1) get the characterization or the law intended by the parties, and then (2) apply the characterization given by that intended law.
CHAPTER VIII – NATIONALITY THEORY -by virtue of which, the status and capacity of an individual is generally governed by the law of his nationality; adopted in the Philippines
NATIONALITY AND CITIZENSHIP Nationality – is membership in an ethnic, social, racial, and cultural group; synonymously used with citizenship Citizenship – membership in a political society. Thus, when we say that successional right to the estate of a person shall be governed by his national law, we mean the law of the state of which the deceased was a citizen at the time of his death. DEFECTS: 1. Refugees 2. Stateless individuals – What will be their personal law? 3. Dual or multiple nationality – What citizenship will control?
3 KINDS OF CITIZENS IN THE PHILIPPINES 1.
CHAPTER VII – VARIOUS THEORIES ON STATUS AND CAPACITY
STATUS – the place of an individual in a society; and consists of personal qualities and relationships Characteristics: 1. Conferred principally by the state, not by the individual; 2. A matter of public or social interest; 3. A concept of social order; 4. Generally supposed to have a universal character.
Naturalized citizens – not natural-born citizens; who become such through judicial proceedings ( Art. IV, Sec. 1(4), 1987 Consti )
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Citizens by election – by virtue of certain legal provisions, become such by choosing or electing Philippine citizenship at the age of 21 or within a reasonable time thereafter.
- merely a part of status; the sum total of his rights and obligations - capacity to act or judicial capacity
-Law that attaches to individual; governs one’s status, capacity, family relations, and consequences of his actuations. THEORIES ON PERSONAL LAW 1. National Law – law of his nationality governs Art 15 – Family Rights, Duties, Status, Conditions, and Legal Capacity Art. 16 (2) – Order of Succession, Successional Rights, Intrinsic validity of testamentary provisions
Government Officials who must be natural-born Filipinos: a. Chief Justice b. Associate Justices of the Supreme Court c. Senate President d. Members of the Senate e. Speaker and Members of the HOR f. Chairmen and Members of the Constitutional Commissions: CSC, COA, COMELEC
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CAPACITY
PERSONAL LAW
Natural-born citizens – citizens from birth without having to perform any act to acquire or perfect their Philippine citizenship ( Art. IV, Sec. 2, Consti. ); must be distinguished from “native born citizen”
2 THEORIES ON DETERMINING CITIZENSHIP 1. 2.
Jus Soli – If born in a country, a person is a citizen of the same. Jus Sanguinis – “citizenship by blood;” Follows the citizenship of his parents
Art. 2, Hague Convention of Conflict of Nationality Laws: “ Any question as to whether a person possesses the nationality of a particular state should be determined in accordance with the law of the state.”
Illustration: A Chinese applicant for naturalization had all the qualifications and none of the disqualifications. OSG objected on the ground that he did not obtain permission to renounce Chinese citizenship.
Art. 21 (Family Code) – capacity to contract marriage Art. 1039 – Capacity to succeed is governed by the law of the nation of the decedent. e 2. Domiciliary Law – domicile as the determinative law 3. Situs/Eclectic Theory – the place (situs) of an event is the controlling law
(A) The applicant can be naturalized because in our country, it is insignificant that he disobeyed Chinese laws. What matters is his compliance with our laws.
(Q) What if he is still regarded as Chinese citizen in China? (A) This is not a case of dual citizenship. (1) Insofar as the Philippines is concerned, he is a Filipino. And (2) insofar as the China is concerned, he may only be a Chinese and not a Filipino. (3) From the viewpoint of a third state, dual or multiple citizenship may exist.
MULTIPLE OR DUAL CITIZENSHIP
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1. Same person as above (Fil-Chinese) died in France, leaving properties in PH. What law governs the successional right of the decedent? (A): Get the law of the forum if the forum is one of the countries of which the deceased was a national. Absent such case, as in this case, Philippine law shall control the successional rights to his estate. ( Art. 16, par. 2, Civil Code )
2. Chinese-Japanese died in Manila, leaving properties in the Philippines. Prior to his death, he was domiciled in Japan. (A): Japanese law shall apply because he was both a citizen and domiciliary of Japan. If it is evident that the deceased considered the domicile as the more effective connecting factor for his personal law , THEORY OF EFFECTIVE NATIONALITY APPLIES. DOMICILIARY THEORY applies “if the deceased is not a citizen of the forum, the law of the nation of which he was both a national and a domiciliary governs.”
3. (ART. 5, Hague Convention on Conflict of Nationality Laws ) “…a third state shall apply the nationalities based on either the (1) nationality of the country in which he is habitually and principally a resident , or the (2) nationality of the country with which in the circumstances he appears to be in fact most closely connected to. 4. Cuban Singaporean was domiciled at the time of his death in Italy. He died in Alaska, leaving properties in the Philippines. What law governs his successional rights? (A) 1. First , get the Cuban and Singaporean law on succession and apply them harmoniously; (law of nationality) 2. Secondly, in so far as there is a conflict, refer to the law of Italy ( law of domicile )
Modalities of Acquiring Dual/Multiple Citizenship: (F L V C) 1. Through a naturalized citizen’s failure to comply with certain legal requirements in the country of origin. 2. Combined application of “jus soli” and “jus sanguinis ;” 3. By legislative act of States; 4. By voluntary act of the individual.
STATELESS INDIVIDUALS: (D R V C) 1. Deprived of his citizenship (by committing a crime) 2. Renounced his nationality (by certain act, express or implied) 3. Voluntarily asked for release from original state 4. When born in a state that applies only the principle of jus sanguinis, whose parents are governed with laws recognizing only jus soli .
Personal Laws of Stateless Individuals 1. The law of domicile or habitual residence. – applies on successional rights. 2. Law of the place of temporary residence.
JUDICIAL ACTIONS/REMEDIES ON CITIZENSHIPS (J O F I) 1. Judicial Declaration of Philippine Citizenship – illegitimate child of a Chinese father and a Filipino mother files a petition for correction of entry in Civil Registry (as Chinese to Filipino) 2. File a petition for citizenship or naturalization – Chinese woman married to a Filipino; went to the court to seek a declaration of Philippine citizenship 3. Injunction – One claims to be a Filipino citizen; Bureau of Immigration requires them to register as aliens 4. Oath of Allegiance – An illegitimate daughter of a Filipino mother (was erroneously registered as an alien) married an alien. She later petitioned for judicial repatriation.
Filipina Woman Who Marries an Alien
(Art. IV, Sec. 4, 1987 Constitution ) “Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it .”
Filipino Male Who Marries an Alien “An alien woman marrying a Filipino, native -born or naturalized, becomes ipso facto a Filipino provided she is not disqualified to be a citizen of the Philippines under Sec. 4 of the the Revised Naturalization L aw.’
Alien Woman Married to an Alien Husband Who Takes Oath of Allegiance as a Filipino Citizen The alien woman follows the Philippine citizenship of her husband the moment he takes his oath, provided she is not disqualified under the law. Thus, it is not necessary for an alien to prove in a judicial proceeding that she posses all the qualifications and none of the disqualifications under the Revised Naturalization Law.
CITIZENS OF THE PHILIPPINES, 1987 C ONSTITUTION 1. Who are citizens of the Philippines at the time of the adoption of this Constitution; 2. Whose fathers or mothers are citizens of the Philippines; 3. Born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority. 4. Those naturalized in accordance with the law.
Derivative Citizenship – Those who become citizens of the Philippine by virtue of their election benefits not only the individual himself but also his children . Chiongbian vs De Leon Victoriano Chiongbian – born in the Philippines of foreign parents; elected as councilor ; has a son, William (still a minor at the time of the adoption of Philippine Constitution). Cancellation of registration of vessels sought against William on the ground that he is not a Filipino citizen – that the grant of citizenship to his father by virtue of his election to a public office is strictly personal and cannot be so considered on William. (A) “ William is a Filipino by virtue of the fact that he was still a minor when his father became a Filipino citizen.”
Children of Filipino Fathers 1. When already of age at the time of the parent’s naturalization, they do not become Filipino citizens unless they themselves be naturalized. 2. Minors born outside the Philippines (before naturalization of parents) – must reside here 3. Minors born outside the Philippines (after naturalization of parents) – law requires registration
NATURALIZATION -the process of acquiring the citizenship of another country, either by compliance with the formalities of the law (judicial hearing and approval of the petition) or by acts of marriage. Attributes: 1. Citizenship is not a right, it is a privilege a. requires full and strict compliance with legal requisites;
9
b. c.
burden on the applicant to show he has complied with all conditions imposed by law; petitions involve public interest , hence, even if objections had not been raised in the trial court, higher tribunal may subject the entire records to scrutiny.
Qualifications of Petitioner: 1. Must be not be less than 21 years on the date of the hearing of petition; 2. A resident for a continuous period of 10 years; a. Reduced to 5 years when: i. Married to a Filipino woman; ii. Established a new industry or introduced a new invention in the Philippines; iii. Held office in the government; iv. A teacher; v. Was born in the Philippines 3. Of good moral character; 4. Owns real estate in PH not less than P5,000; or must have lucrative trade, profession or lawful occupation; 5. Can speak and write English or Spanish AND any of the principal Philippine languages; - a deaf-mute cannot speak, therefore he cannot be naturalized. 6. Must have enrolled his minor children in Philippine schools where Philippine history, government, and civics are taught. Disqualifications: 1. Who opposed to the government or affiliated with a group who uphold doctrines opposing the government; 2. Teaching or defending violence, assault, or assassination; 3. Polygamists or believers in the practice of such; 4. Convicted of a crime involving moral turpitude; 5. Suffering from mental alienation or incurable contagious decease; 6. Have not mingled socially with Filipinos or who have not evinced a sincere desire to learn and embrace Filipino customs, traditions, and ideals; 7. Subjects of nations with whom the US and PH are at war; 8. Subjects of a foreign country whose laws do not grant reciprocal rights on naturalization Steps in Naturalization Proceeding: (F P P H – R O) 1. Filing of declaration of intention to become a Filipino citizen; 2. Petition for naturalization must then be filed in court; 3. Publication in the Official Gazattee; 4. Hearing of the petition; 5. If approved, there will be a re-hearing 2 years after; 6. Taking of the oath of allegiance. Grounds for Cancellation of Naturalization: 1. Naturalization certificate was obtained fraudulently or illegally; 2. If it is shown that the person will return, within 5 years following issuance of said certificate, to his native country and establish a permanent residence therein; 3. Invalid declaration of intention; HOW CITIZENSHIP IS LOST: 1. Substitution of a new nationality – becoming a naturalized citizen of a foreign state; 2. Renunciation – may be expressed or implied (subscribing to an oath of allegiance of a foreign country; 3. Deprivation – as a form of punishment for committing a crime;
4. Release – (is voluntary) person asks the permission of his country to be freed from citizenship therein. (not provided for under our law so no prior permission is needed; only renunciation); 5. Expiration – long stay abroad (not applicable to PH); applies to naturalized foreigners who within 5 years after naturalization, permanently resides to foreign country; HOW PHILIPPINE CITIZENSHIP IS REACQUIRED: 1. BY NATURALIZATION; 2. REPATRIATION; 3. DIRECT ACT OF NATIONAL ASSEMBLY;
CHAPTER IX – DOMICILIARY THEORY DOMICILIARY THEORY IN CONFLICTS OF LAW - Is the theory that in general the status, condition, rights, obligations, and capacity of a person should be governed by the law of his domicile. DEFECTS: 1. Various countries have varying concepts as to the real meaning of domicile. 2. Domicile is comparatively easier to change than nationality. 3. For ulterior motives, persons may pretend to be domiciliaries of one state when in truth their domicile may be elsewhere. DOMICILE *one’s permanent place of abode
NATIONALITY/CITIZENSHIP *indicates ties of allegiance and loyalty
A person may be a citizen or nat ional of one state, without being a domiciliary thereof; conversely, one may possess his domici le in one state without necessarily being a citizen or national thereof. IMPORTANCE OF KNOWING DOMICILE 1. Applies in Art. 829 of the Civil Code, “A revocation done outside the Philippines, by a person who does not have his domicile in this country , is valid when it is done according to the law of the place where t he will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions o f this Code.” 2. Both the domiciliary and the nationality theories are used: Art. 816, “The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country , or in conformity with those which this Code provides.” 3. It often runs to the rescue of the nationality theory in solving conflicts problems posed by ‘stateless individuals’ and by those possessed of a ‘dual or multiple citizenship.’ DEFINITION OF DOMICILE - is that place where a person has certain settled, fixed, legal relations because: 3 KINDS OF DOMICILE 1. Domicile of Origin It is assigned to him by the law “at that moment of birth;” o Applies only to infants; o
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Never changes for a person is born only once; Fixed by law. 2. Constructive Domicile or Domicile by Operation of Law o Assigned to him by the law “after birth” on account of legal disability caused for instance by minority, insanity, or marriage in the case of a woman; or Refers to all those who lack capacity to choose their own o domicile (infants, married women, idiots, and insane). Legal disabilities prevent their making a choice; May change from time to time; o o Fixed by law.
domiciled in China, China will be the constructive domicile of said child at the age of 11.
o o
3. Domicile of Choice Because he has his home there, whenever he is absent, he o intends to return. o (not fixed by law) but a result of the voluntary will and action of the person concerned. RULES FOR THE DOMICILE OF ORIGIN (DOMICILIUM ORIGINS) 1.
Legitimate Child – is the domicile of choice of his father at the moment of the birth of the child. Example: If a Filipino child is born in France at the time that his father is domiciled in Japan, the domicile of origin of the child is in Japan.
*In case of death of either parent, the domicile of the surviving parent governs. *If both parents are dead, the constructive domicile of the parent who died later governs. 2. Illegitimate – the domicile of choice of the mother 3. Adopted – domicile of the adopter. 4. Ward – domicile of choice of guardian. B. For Married Women: 1. If the marriage is valid – domicile of choice of both husband or wife. *In case of disagreement, the exercise of choice of either spouse will no longer be constructive but a domicile of choice. 2. If the marriage is voidable (valid until annulled) – Should she continue being domiciled in the same place as her husband, such would be a domicile of her choice. 3. If marriage is void – She had no constructive domicile. Same rule above should she choose the domicile of her husband. C. Rule for Idiots, Lunatics, and the Insane
If the child is posthumous ( one born after the death of the father), its domicile of origin is the domicile of choice of the mother.
2.
Illegitimate Child – is the domicile of choice of the mother at the time of the birth of the child.
3.
Legitimated child (an illegitimate child who subsequently is granted the status of a legitimate child by the process called legitimation) – is the domicile of the father at the time of birth (not at the time of legitimation) of the child. Because “the effects of legitimation shall retroact to the time of the child’s birth – Art. 180)
4.
Adopted Child – is not the domicile of the adopter but the domicile of the real parent or parent by consanguinity.
5.
Foundling (an abandoned infant whose parents are unknown) – is the country where he/she was found. Q : Suppose the parents become known, what will be the domicile of the origin of the foundling? A: He/she is NOT a foundling, and therefore cannot have a domicile of origin as a foundling.
RULES FOR NECESARIUM)
THE
CONSTRUCTIVE
DOMICILE
(DOMICILIUM
A. Rules for Infants 1. Legitimate – domicile of choice of either the mother or father Example: If at the time the child is 6 years old, the domicile of choice of either the father or mother is in California, then it will be the constructive domicile of the child at that age. If he reaches the age 6, the father or mother is already
1. 2.
If below age of majority – rule on infants applies If above age of majority: a. If with guardians – domicile of choice of their guardians b. If without guardians – their domicile of choice shortly before they became insane or during their lucid intervals.
RULES FOR DOMICILE OF CHOICE (FUNDAMENTAL PRINCIPLES) 1. No natural person must ever be without a domici le. 2. ONLY ONE DOMICILE. No person can have 2 or more domiciles at the same time, except for certain purposes, and from different legal viewpoints. “While a person may have more than one o residence, he can only have one domicile or place of habitual residence.” Otherwise, the law to follow the person would be o indeterminate in certain cases. But one may have more than one domicile as to o purposes, i.e one domicile is for purposes of taxation and the other is for the purpose of obtaining a legal separation. CASES 1. In Re Dorrance’s Estate (from Penn) Facts: Mr. D, a resident of New Jersey, bought an estate in Pennsylvania, where he began to live with his wife and child. He goes to NJ once in a while and in his will be stated that he was a resident of NJ (to avoid paying taxes in Penn). Held: He was domiciled in Penn as shown by his conduct, notwithstanding his expressed desire to have NJ as his domicile as such is self-serving and contrary to his actual conduct. 2.
In Re Dorrance’s Estate (from NJ) Issue: WON Penn decision is binding in NJ.
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Held: No. The domicile of the deceased was in NJ as evidenced by his intention to return there, notwithstanding actual residence in Penn. In view of the animus manendi , he never lost his NJ domicile. A man may choose his own domicile; the motive that may prompt him is immaterial.
3.
4.
CHANGE. Every sui juris may change his domicile. o For a change of domicile intention to reside elsewhere without actual residence in the place chose will not be sufficient. o On the other hand, actual residence in a new place without intention to make it the permanent abode will not also be enough. o Thus, to effect ‘change’ in domicile, ACTUAL STAY and INTENTION must concur. RETENTION. Once acquired, it remains the domicile unless a new one is obtained: a. By a capacitated person; o (not applicable) because of lack of voluntariness: i. infants, idiots, lunatics, insane, ii. convict or a prisoner (his domicile of choice is the one previously possessed by him, unless he deliberately makes the new locality his permanent home, after he gets out of prison); iii. involuntary exiles (compelled by the command of a superior political power to abandon their country) – domicile of choice is their previously existing domicile iv. soldiers – domicile at the time of their enlistment v. public officials and employees, diplomats, and consular officers – domicile of choice is their previously existing domicile. b. With freedom of choice; c. With actual physical presence in the place chosen; d. And a provable intent that it should be one’s fixed and permanent place of abode (one’s home); that there should be “animus manendi ” or intent to remain or “animus nonrevertendi” or intent NOT to return to the original abode. For ‘retention’ of old domicile – there need not be a concurrence of ACTUAL STAY and INTENT for unless a new domicile is acquired, the old one is retained. Hence, one may retain his old domicile so long as he resides there OR so long as he intends to return. o “Intention without residence or residence without intention will not suffice for the acquisition of a domicile BUT will be sufficient for the retention of an existing domicile.” o
CASES: 1. VELILLA VS POSADAS Mr. M lived and worked in Manila for more than 25 years. He wandered around the world until he died in Calcutta.
ISSUE: Where was his domicile at the time of his death? HELD: Philippines. Because he never acquired any domicile in a for eign country despite wandering abroad. To effect abandonment of one’ s domicile, there must be a (1) deliberate and provable choice of new
domicile, coupled with (2) actual residence in the place chosen, with a (i) declared and (ii) provable intent that it should be one’s fixed and permanent place of abode, one’s home. 2. GALLEGO vs VERA TO ACQUIRE A NEW DOMICILE OF CHOICE, WHAT THINGS MUST CONCUR? 1. Residence or bodily presence in the new locality (must be actual); 2. Intention to remain there (must be for an indefinite period); 3. Intention to abandon the old domicile.
There must be an animus manendi or an animus non revertendi . The acts of the person must conform with his purpose. The change of his residence must be voluntary .
3. TESTATE ESTATE vs BOHANAN Testator was born in Nebraska; Had properties in California; Had temporary but long residence in the Philippines; In his will executed in Manila, he stated t hat his domicile and permanent residence be in Nevada. HELD: His permanent domicile in the US depended upon his p ersonal intent or desire. Nobody else but the testator can choose his own domicile or permanent residence for him, because such choice is his exclusive and permanent right. 4.
IMELDA MARCOS AND BUTZ AQUINO CASES
IMELDA MARCOS vs COMELEC Imelda was proclaimed as the duly elected representative o f 1st district of Leyte. Respondent Montejo asked the Comelec to disqualify Imelda for the lack of 1-y ear residency requirement. Marcos argued however that she has been a resident of the area since childhood and has not abandoned her residency.
SC declared Imelda was qualified to run and be el ected therein basically on the ground that the challenged Comelec resolution are null and void for lack of jurisdiction (must be filed in HRET). AQUINO vs COMELEC Comelec has barred Butz Aquino from assuming the post of representative for 2nd district in Makati on the ground of ineligibility for the post as he fell short of the required residency. SC dismissed Aquino’s appeal on said decision on the ground of l ack of jurisdiction (must be filed in HRET).
SC did not proclaim Syjuco (respondent), who garnered the 2nd spot, on the ground that a candidate who got the 2nd-highest number of cotes cannot be proclaimed winner since he is not the choice of the electorate.
DOMICILE Permanent (habitual) Only one Fixed permanent residence to which when absent, one has intention of returning
RESIDENCE temporary Can have more than one Used to indicate abode, whether permanent or temporary
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Residence is not domicile but domicile is a residence, coupled with intention to remain for an indefinite time.
CHAPTER X – SITUS OR ECLECTIC THEORY
2.
Q: What law governs the capacity of a German to alienate his lands and cars in the Philippines?
A: Applying the situs theory, said capacity is governed by the law of the place where the property is located. Since the properties are in the Philippines, Philippine law governs.Art. 16, par. 1 of the Civil Code likewise applies in this case.
SITUS OR ECLECTIC THEORY RESTATED States that the capacity, legal condition, or status of an individual should be governed not necessarily by the law of his nationality nor by the law of his domicile but by the law of the place (situs) where an important element of the problem occurs or is situated . 2 Kinds of Participation of the Individual Concerned : 1. If the participation is active (as when he does the act voluntarily) the governing law is the law of the ACTUAL SITUS o (the place of the transaction or event); If the participation is passive (as when the effects of the act are set forth in the law) o t the governing law is the law of the LEGAL STATUS (legal situs of an individual is supposed to be his DOMICILE) Examples: 1. Q: 2 Filipinos, domiciled in Japan, get married in California. What law governs: a. The validity of marriage: b. The marital obligations of husband and wife: 2.
CHAPTER XI – PROBLEM OF THE RENVOI Renvoi – literally means “referring back” The problem arises when there is a doubt as to whether a reference to a foreign law is a reference to the: (1) internal law of said foreign law, or (2) to the whole of the foreign law, including ‘conflicts’ rules. o In the latter case, if one state follows the nationality theory , and the other state follows domiciliary theory , there is a possibility that ‘the problem may be referred back’ to the law of the first state. Example: An English domiciliary of the Philippines dies i n Manila, leaving his English child.
ISSUE: Should the successional rights of the ch ild be governed by English internal law on succession or by Philippine internal law? If internal law is applied on succession: English law will govern.
A: a.
b.
The act of getting married is a voluntary one. Hence the participation of the man and a woman is active. In which case, the governing law is the actual situs or where the marriage took place, which is in California. Hence, California law governs the validity of marriage. The marital obligations are not fixed by them but are imposed by law. Hence, their participation in this matter is passive. The governing law is thus the legal status, which is the domicile of the parties. Since they are domiciled in Japan, their marital rights and obligations are governed by Japanese law. Note, however, that the Philippine law does not follow the situs theory. Applying our law, the answers would be different:
a.
If the marriage is valid in California, the marriage is also valid in the Philippines (situs theory) except if the marriage is bigamous, polygamous, or incestuous.
b.
Their PERSONAL marital obligations are governed by Philippine law under Art. 15 of the Civil Code (Nationality Theory).
If the whole law of England, including conflict rules: English conflicts rule will govern: by the law of domicile at the time of his death (Philippine law) Proposed Solutions: 1. REJECT RENVOI 2. ACCEPT – We referred the matter (mentally) to the English Law and the England referred it back to us. 3. Follow the Theory of Desistment / Mutual-Disclaimer of Jurisdiction theory – We desist or refrain from applying English Law, being inadequate as it is founded on a different basis. 4. Use Foreign Court Theory – Our Courts will put itself in the position of the foreign Court. (“follow the leader”) DOUBLE REVOI – Occurs when the local court in adopting the Foreign Court Theory, discovers that the foreign court accepts the renvoi. TRANSMISSION – the process of applying the law of a foreign state through the law of a second foreign state. Example: An Italian domiciled in the Philippines dies i n England.
Their PROPERTY relations are also governed by Philippine law (Nationality Theory) by virtue of Art. 80 of the Family Code.
If the case is tries in England, the n the English Court (follows ‘domiciliary theory’) refers to the law of the Philippines. But Philippines refer the matter to Italy (follows ‘nationality theory’). Hence, England now applies Italian law. There was transmission. Renvoi Deals with 2 countries
Transmission Deals with 3 or more countries
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“referring back”
“transmitting”
Implications of Renvoi and Transmission 1. Both renvoi and transmission may not apply only to successional rights but also to marriage and other contracts and agreements. 2. Both problem may occur even if (in renvoi ) the two countries both adhere to, say, nationality theory or to domiciliary theory. EXAMPLES: 1.
2.
2 citizens of State X (Nationality Theory) marries in State Y (Nationality Theory). State Y says: If foreigners marry here, t heir marriage is valid provided that it is also valid in the country of which they are citizens. State X: will not be confronted by the problem of renvoi . Is the reference in their conflicts rule to the foreign law a reference to the foreign INTERNAL law on marriage or a reference to the WHOLE of the foreign law? TRANSMISSION IN MARRIAGE: 2 Filipinos domiciled in China married in England. PH Law: “If marriage is valid where it is celebrated, it will generally be valid here in the PH.” However, if England law says: “Marriages in England between foreigners shall be considered valid here ONLY i f they are recognized valid in their law of domicile. Now then, PH courts will have to apply the law of China, thru the law of another sate, England. This is a case of transmission.
ARGUMENT IN FAVOR OF EACH PROPOSED SOLUTIONS FOR RENVOI 1. 2.
3. 4.
REJECTION OF THE RENVOI ACCEPTANCE OF RENVOI a. In contrast, if all countries accept renvoi, each country will ultimately apply its own internal law. If all does such, there would be a discord. Harmony would result only if one state accept renvoi and the other rejects it. DESISTMENT THEORY FOREIGN COURT THEORY
PHILIPPINE LAW ON THE MATTER In the case of IN THE MATTER OF TESTATE ESTATE OF THE DECEASED EDWARD CHRISTENSEN , his acknowledged natural daughter, Helen, claims that under Art. 16, par. 2 of the Civil Code, California law should be applied. But since the matter was referred to the law of domicile (Philippine law), the share of Helen must be increased in view of successional rights of illegitimate children in the Philippines. On the other hand, the respondent contends t hat the national law of the deceased must apply (California Law), in which there are no compulsory heirs and consequently a testator could dispose off any property possessed by him in absolute dominion and that illegitim ate children not being entitled to anything under the said law, the will of the deceased giving the bulk of the property to the respondent, must remain undisturbed.
HELD: Court granted more successional rights to Helen in effect that there are 2 rules in California on the matter: (1) internal law – should apply to Californians domiciled therein, and (2) conflicts r ule – applies to Californians domiciled outside the same. California law provides, “If there is no law to the contrary in the place where personal property is situated, it is deemed to follow the person of its owner and is governed by t he law of his domicile.”
If a California citizen dies domiciled in the Philippines, our courts are compelled to apply the National Law of the deceased. But since California law itself refers back the matter to the Philippines (place of domicile), we may have no alternative but to accept the same. Substantially, this is the theory of the single renvoi or the theory of acceptance of the renvoi. To do otherwise, ie. To refer back again the matter to California, with the possibility that the problem will once again be returned to us, would give rise to ‘international football.’ TESTATE ESTATE OF AMOS BELLIS vs BELLIS
Facts: Amos Bellis was a citizen and resident of Texas at the time of his death. In his two wills, one disposing his Texas properties, and the other his Philippine properties. He recognized in both wills that his illegitimate children be not given anything. Texas Law has no conflicts rule governing successional rights. Texas Law has no compulsory heirs and thus no legitimes. Illegitimate children opposed the will on the ground that they have been deprived of their legitimes to which they are entitled if Philippine law were to apply. ISSUE: Are the illegitimate children entitled to properties of the deceased. HELD: NO. Texas Law must be applied because it is the national law of the deceased. Renvoi doctrine in Edward Christensen case cannot be applied. Said doctrine is pertinent where the decedent is a national of one country, and a domiciliary of the other. In this case, the decedent was both a national and domiciliary of Texas at the time of his death. But if Texas has conflicts rule adopting the situs theory (lex rei sitae), calling for the adoption of the law of the place where properties are situated, renvoi would arise since the properties herein involved are in the Philippines. Oppositors pointed out that the execution of 2 will convey that the testator intended Philippine law to govern his Philippine estate. Assuming so, it will NOT alter the law that “a provision in a foreigner’s will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is ILLEGAL AND VOID of his national law.”(Miciano vs Brimo)
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b.
CHAPTER XII – RULES ON STATUS IN GENERAL SYNOPSIS OF THE RULES ON STATUS IN GENERAL Art. 15, Civil Code. “Laws relating to family rights and duties , or to the legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.” 1. 2. 3. 4. 5. 6. 7.
I.
Beginning of personality (natural persons) Ways and effects of emancipation Age of majority Use of names and surnames Use of tiles of nobility Absence Presumption of death and survivorship. Lex Fori (Arts. 43, 390, 391 of Civil Code; Rule 131, Sec. 5 (jj) of Rules of Court) BEGINNING OF PERSONALITY (Art. 40, 41)
2. 3.
4. 5.
However, if in case of a voidable marriage, and the marriage is annulled, it was as if he was never emancipated. Attainment of the age of majority Parental concession; child must be at least 18 and must consent thru recording in the Civil Register of an agreement in a public instrument executed by the parent exercising parental authority and the minor at least 18 years of age. Such emancipation shall be irrevocable. Judicial concession (child must be at least 18 and must consent) – final and irrevocable Orphan who is a minor: by concession upon an order of the Court.
III.
AGE OF MAJORITY (Art. 234)
“Emancipation takes place by the attainment of majority (18 years).”
Problems:
Art. 40. “Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it (donation, acknowledged, support), provided it be born later with the conditions specified in the following article.”
1. Q : A citizen of State X wants to apply for Philippine naturalization (requires 21 years old). In State X, he is already considered major age at 19 years old. At that age, may he already file his petition to be a Filipino citizen?
Art. 41. “For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the fetus had an intra-uterine life of less than 7 months, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb.”
A: YES. Provided that at the time of hearing of the petition , he is already 21 years old. If he is not yet 21 years of age , the hearing of the petition will have to be postponed, notwithstanding the act that in his own country, he has already reached the age of majority. Because rules on naturalization and nationality are dependent purely on our laws.
Notes: 1.
Presumptive personality – personality does not begin at birth, it begins at conception; provided that the birth should occur later; otherwise, fetus is deemed to have never possessed legal personality. (human form not required) 2. Effects: If Arts. 40 and 41 are not complied with, “birth and death will not be recorded in the Civil Registry.” 3. 2 Kinds of Children: Ordinary – with an intra-uterine life of at least 7 months; i. Extraordinary (not premature) – if the intra-uterine life ii. be less than 7 months. (Here, the child must have lived for at least 24 hours after its complete delivery from maternal womb).
2. Q: A female from State X marries a Filipino, but because she is a deaf-mute, she does not become a Filipino. The marriage however is valid. Now then, assume that she is only 18, but in State X, marriage makes her a person of major age. Is she still a minor? A: NO, in view of the marriage. IV.
4. Art. 40 and 41 apply only to Filipino babies. If the child be a foreigner, the beginning of its personality depends upon its national law . (Art. 15) Q : An alien mother of State X gave birth to a child in Manila. The child had an intra-uterine existence of only 6 months, and it dies 3 hours after complete separation from maternal womb. The law of State X vests legal personality upon the child in such case. Does the child acquire personality? A: Yes. Because this is a matter that depends upon his national law.
V. II.
Married woman may use (Art. 176): 1. Maiden first name + surname + husband’s surname; 2. Maiden first name + husband’s surname; 3. Husband’s full name, but prefixing a word indicating that she is his wife, such as “Mrs.” TITLES OF NOBILITY
WAYS AND EFFECTS OF EMANCIPATION
Ways of Emancipation: 1.
USE OF NAMES AND SURNAMES Legitimate children – surname of the father (Art. 364) Adopted child – surname of the adopter (Art. 365) Legitimated children – surname of the father Children conceived before the decree annulling a voidable marriage – surname of the father Illegitimate children – surname of the mother, unless recognized by the father .
Marriage by the minor (Art. 234, Family Code) a. Father cannot get daughter’s custody fro husband in view of the emancipation.
“An Englishman who may have such a title is allowed to use the same in our country as the right to use a title of nobility depends upon the national law of an individual. But if he applies for Philippine naturalization, he must renounce any hereditary title or order of nobility he possesses as such titles of royalty or nobility are not allowed under our Constitution.
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VI.
ABSENCE
2. If both were above 60 yo – younger is presumed to have survived; 3. One is under 15 and the other above 60 – 15 is presumed to have survived; 4. One us under 15 or over 60 and the other between those ages – the latter is presumed to have survived. 5. Both be over 15 and below 60; sexes be different – male is presumed to have survived 6. Both be over 15 and below 60; same sex – older is presumed to have survived.
Absence, being the legal status of a person who disappears from his domicile, his whereabouts being unknown, is governed by the national law. Our courts also have jurisdiction to declare an alien domiciliary in the Philippines as absent under Arts. 384-386 of the Civil Code.
Judicial declaration of the absence shall not take effect until 6 months after its publication in a newspaper of general circulation. 2 years - without any news or since the receipt of the last news about the absentee 5 years – in case the absentee has left a person in charge of administration of his property
Application:
VII. PRESUMPTION OF DEATH AND SURVIVORSHIP
Art. 43 (applies when 2 or more persons are involved ‘who are called to succeed each other,’ i.e. father and son) Art. 131 (in all other cases) Rule on Preponderance of Evidence (when here are acts from which a contrary conclusion can be inferred)
PRESUMPTION OF DEATH (Arts. 390 –391) VIII. Lex Fori (internal law) – governs the rules on presumption of death, regardless of the nationality involved. Why? Because in certain cases, “there may be a burden of proof.”
(Art. 390) Ordinary Absence (Death is presumed to have occurred on the last day of the period): After absence of 7 years – presumed dead for all purposes, except for those of succession (after 10 years) Absence of 5 years – disappeared after the age of 75 years (succession to be opened) (Art. 391) Qualified or Extraordinary Absence (Death is presumed to have occurred at the beginning of the period): 4 years – on board a vessel lost during a sea voyage; missing airplane; in the armed forces who has taken part in war; in danger of death under other circumstances and his existence has been unknown.
END OF PERSONALITY
Art. 42. “Civil personality is extinguished by (physical, not civil) death. The effect of death upon the rights and obligations of the deceased is determined by the (1) law, (2) contract, (3) and by will.”
Incidentally, a judicial decree in a foreign country placing a person under civil interdiction will not be recognized in our forum: this is because such a judgment is penal in character.
LEGISLATIVE JURISDICTION vs JUDICIAL JURISDICTION
NOTES: 1.
2.
A person shall not be declared presumptively dead by the court even after the lapse of the periods because (1) such a declaration would be useless since such a presumption is already given in the law itself; and (2) because such a judgment can never be final in the sense that is may turn out that the person concerned is still alive. But when property rights are involved, such a judicial determination of presumptive death may be made.
RULES ON SURVIVORSHIP (Art. 43; Rule 131, Sec. 5 (kk and jj) of RoC):
Art. 43. “If there is doubt, as between 2 or more persons who are called to succeed each other , as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence f proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other.” Rule 131, Sec. 3 (kk, jj): “When two persons (a) perish in th e same calamity, and it is (b) not shown who died first, and (c) there are no particular circumstances from which it can be inferred, the survivorship is presumed from the probabilities resulting from the strength and age of the sexes, according to the following rules: 1. If both were under 15 yo – older is presumed to have survived;
Judicial (authority to hear and determine a legal controversy) – the jurisdiction of our courts is governed by our own law on the matter Legislative (aside from the authority to enact laws) – is the competence of a person’s national law to govern his status.
Thus, while a foreigner’s status is governed by his national law (legislative jurisdiction), our own courts (not the foreign courts) will have authority to decide questions concerning said foreigner’s status (judicial jurisdiction) by applying his natio nal law. Ybanes vs Fuster
2 Spaniards (husband and wife) obtained divorce from each other. The validity of the divorce was assailed in a Philippine Court. Considering the this involves 2 aliens domiciled in our country, may our own courts take cognizance of the case despite that under the law, questions of status are resolved by their national law? A: YES. Because jurisdiction of courts is generally submitted to the territorial principle. Parties should endeavor to have their rights established by the tribunals of the State which have coercive means to enforce their decisions; otherwise, a person runs the risk of incurring useless expenditures to obtain a judgment that cannot be enforced.
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CHAPTER XIII – MARRIAGE AS A CONTRACT
polygamy, incest], and consular marriages.
Marriage (Art. 1, Family Code) is: 1. 2. 3. 4. 5.
A special contract Of permanent union Between a man and a woman Entered into in accordance with law Or the establishment of conjugal and family life.
6. 7. 8.
It is the foundation of the family And an inviolable social institution Whose nature, consequences, and incidents are governed by law and not subject to stipulation, Except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.
9.
2.Between foreigners
Exceptions: (1) highly immoral (bigamous or polygamous) (2) universally considered incestuous (between brothers and sisters whether whole or half-blood, legitimate or illegitimate.) 3. Mixed
2 Aspects of Marriage: 1. 2.
Lex loci celebracionis
A CONTRACT A UNION, STATUS, LEGAL RELATION
Lex loci celebracionis. Same as “between foreigners” to uphold the validity of marriage
Contract of Marriage vs Ordinary Contracts Contract of Marriage
Ordinary Contracts
1. Also an inviolable social institution
Are mere contracts
2. Nature, consequences, and incidents are governed by the law. Thus, as a general rule, ‘stipulations are of no value.’ Except to marriage settlements.
Agreements entered into usually depend on the stipulations agreed upon by the contracting parties unless those stipulations violate the law, public policy, public order, good customs, or good morals.
3. Age requirements vary
Age requirement is the age of majority
4. Dissolved only through death or annulment or legal causes (or absolute divorce in specified instances for foreigners and Muslims) (D D A L)
Dissolved by express provision of the law, expiration of the term, f ulfillment of the purpose for which the contract was entered into, or through mutual agreement. (E E F M)
5. Validity is verified generally by a reference to lex celebrationis.
Substantial or intrinsic validity is usually resolved by an inquiry into the law intended by the parties (lex loci voluntatis or lex loci intentionem)
SYNOPSIS: Marriage as a Contract Factual Situation
Celebrated Abroad
1. Between Filipinos
Lex loci celebracionis; without prejudice to exceptions under Arts. 26, 35 (1, 4, 5, 6), 36, 37, and 38 of the Family Code [bigamy,
Celebrated in the Philippines
4. Marriage by Proxy
national law (Art. 21, Civil Code); provided not highly immoral or incestuous
national law of the Filipino (otherwise public policy may be militated against) Lex loci celebrationis (considered as celebrated where the proxy appears)
Marriage as a Contract. 2 REQUISITES: 1.
2. I.
FORMAL – generally do not affect the validity of marriage (i.e. if a judge solemnizes marriage) except for some (i.e. marriage license, except in marriages of exceptional character ) ESSENTIAL
Theories on FORMAL Requisites: 1. Compulsory Rule – imperative for the parties to follow the formalities of the place of celebration (lex loci celebrationis) or the law of the place where t he act was done or performed (locus regit actum) (Art. 17, par. 1) 2. Optional Rule – either the lex loci celebrationis or their national law . (*rule followed in most countries) 3. Ecclesiastical Rule – formalities of both the lex loci celebrationis and the national law (imposing religious requirements). (*practiced in Spain and Palestine)
II. ESSENTIAL or SUBSTANTIAL REQUISITES for FILIPINOS who marry IN THE PHILIPPINES: 1. Legal capacity 2. Consent 3. Authority of the person solemnizing the marriage 4. Marriage license Others: 1. 2.
Opposite sexes Celebration of marriage (marriage ceremony) although no particular form is required; need not be in writing as signs would suffice.
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Thus, ‘common law marriage’ between Filipinos in the Philippines (living together –cohabit- as husband and wife without getting married) is not considered valid ‘for solemnization is required before a proper officer).
II. CELEBRATED ABROAD BETWEEN FOREIGNERS valid here when validly celebrated abroad (lex
Q1: A marriage in California between American 1st cousins will be recognized as valid in the Philippines if valid in the place of celebration. While it may be ‘incestuous’ under the Philippine law, Art. 26 cannot be applied to foreigners. Otherwise, it is as if our Family Code were to rule the world.
Q: Is a common law marriage between foreigners, which began abroad, valid in the Philippines? A: YES. Provided that it is valid in their national law according to the laws of the place where the relationship began.
Q2: If a Turk brings to the Philippines 4 wives, to all of whom he got married validly in Turkey, should we recognize all 4 marriages? A: We distinguish. (1) Successional Rights. All the wives as well as all the children should be regarded as legitimate because underArt. 16, par. 2 of the Civil Code, the successional rights shall be determined by the National Law of the deceased.
CONFLICT RULES ON SUBSTANTIAL VALIDITY OF MARRIAGE: I. CELEBRATED ABROAD BETWEEN FILIPINOS (Art. 26) 1. “All marriages solemnized outside the Philippines 2. in accordance with the laws in force in the country where they were solemnized 3. and valid there as such 4. shall also be valid in this country 5. except (polygamous, bigamous, and incestuous)” ~ caused by nationality theory *** *** *** *** *** *** 1. 2. 3. 4.
“Where a marriage between a Filipino citizen and a foreign is validly celebrated And a divorce is thereafter validly obtained abroad By the client spouse, capacitating him or her to remarry , The Filipino spouse shall likewise have capacity to remarry under Philippine law.”
loci celebrationis)
(2) Cohabitation. Only the first wife will be reco gnized as legitimate and the rest will be deemed as concubines (mistress kept by a husband in a conjugal dwelling).
III. CELEBRATED ABROAD, MIXED MARRIAGES “If by one law the marriage is valid, and by another law the marriage is void, that which will uphold the validity of the marriage should be followed.”
Q1: A Filipino girl marries her American first cousin in California where such is deemed valid.
NOTE: A marriage inside the Philippine Consulate abroad between Filipinos is considered as if the marriage has been celebrated not in the foreign country but right here in the Philippines.
A: The marriage should be regarded as valid in both sides. After all, the marriage is considered valid where it was celebrated.
PROBLEMS: IV. CELEBRATED IN THE PHILIPPINES BETWEEN FOREIGNERS Q1: Filipino 1st cousins got married in California, where the marriage is considered valid. Will their marriage be recognized in the Philippines? A: NO. Incestuous marriage, as governed by the laws of nationality, are prohibited under the Philippine laws.
Q2: A Filipino step-brother married his Filipino step-sister in California. Will our court recognize the validity of the marriage abroad? A: YES. The marriage is neither bi gamous, polygamous, or incestuous as determined by Philippine law. The controlling law is Art. 26 and not Art. 15 nor 17, par. 3 of the Civil Code. In case of conflict between a particular provision and general provisions, the former prevails.
Should foreigners decide to marry in this country, their ‘capacity to marry’ shall be governed by their national law as evidenced by a certificate of legal capacity to contract marriage issued by their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall obtain certificate of legal capacity and submit an affidavit stating the circumstances showing such capacity to contract marriage. Hence, Chinese first cousins may validly marry here provided that such marriage is recognized by Chinese law. V. CELEBRATED IN THE PHILIPPINES, MIXED MARRIAGES If a Filipino marries in the Philippines an American, the national law of the Filipino should be followed. Otherwise, our public policy may be militated against. VI. MARRIAGES BY PROXY
Art. 26 must be construed restrictively because it is a statute in derogation of a natural right to get married. What the law does not include it excludes. And in case of doubt, the validity of marriage should be favored.
Is one were one of the parties is merely represented at the ceremony
by a friend or a delegate.
Void in the Philippines (if between Filipinos and in mixedmarriages) because physical presence of both parties are required under Art. 6 of the Family Code. (Not applicable if between foreigners when recognized by their national law)
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NOTE: A marriage by proxy is regarded as celebrated in the place where proxy appears). If performed abroad: lex loci celebrationis (between Filipinos, foreigners, or mixed)
CHAPTER XIV – MARRIAGE AS A STATUS
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