Civil Law

CIVIL LAW Bar Examina0ons 2017

I.

GENERAL PRINCIPLES

A. Effect and Applica7on of Laws • •

General Rule: Ar0cle 4, Civil Code: Laws shall have no retroac0ve effect, unless the contrary is provided. Excep0ons: ➡ When the law itself provides for its retroac0vity; ➡ When the law is penal in nature and is favorable to the accused who is not a habitual delinquent or recidivist; ➡ When the law is procedural in nature; ➡ When it creates new substan0ve rights; ➡ When the law is cura0ve in nature; ➡ When it is interpreta0ve of other laws. CASE TITLE

DOCTRINE

Philippine Na7onal Bank vs. Cayetano A. Tejano G.R. No. 173615 October 16, 2009

It is binding rule, conformably with Ar0cle 4 of the Civil Code, that, generally, laws shall have only a prospec0ve effect and must not be applied retroac0vely in such a way as to apply to pending disputes and cases. This is expressed in the familiar legal maxim lex prospicit, non respicit (the law looks forward and not backward. The ra0onale against retroac0vity is easy to perceive: the retroac0ve applica0on of a law usually divests rights that have already become vested or impairs the obliga0ons of contract and, hence, is uncons0tu0onal.

Marcella-Bobis vs Bobis,336 The accused is prosecuted for the crime of bigamy for not obtaining a judicial SCRA 747 (2000) declara0on of nullity of his first marriage before entering into another marriage. Ignorance of the existence of ar0cle 40 of the Family Code canno enve be successfully invoked as an excuse. Bernabe vs. Alejo G.R. No. 140500 Jan. 21, 2002

An illegi0mate child filed an ac0on for recogni0on pursuant to ar0cle 285 of the NCC during the effec0vity of the Family Code. illegi0mate children who were s0ll minors at the 0me the Family Code took effect and whose puta0ve parent died during their minority are thus given the right to seek recogni0on (under Ar0cle 285 of the Civil Code) for a period of up to four years from aYaining majority age and this vested right was not impaired or taken away by the passage of the Family Code.

Republic vs. Miller G.R. No. 125932 April 21, 1999

Whether or not, an alien, who is qualified to adopt at the 0me of filing the pe00on, can be disqualified by the new provisions of the Family Code. An alien qualified to adopt under the Child and Youth Welfare Code, which was in force at the 0me of the filing of the pe00on, acquired a vested right which could not be affected by the subsequent enactment of a new law disqualifying him. Vested rights include not only legal or equitable 0tle to the enforcement of a demand, but also an exemp0on from new obliga0ons created a[er the right has vested.

A7enza vs. Brillantes AM MTJ 92-706 March 29,1995 243 SCRA 32

Ar0cle 40 is applicable to remarriages entered into a[er the effec0vity of the Family Code on August 3, 1988 regardless of the date of the first marriage. The fact that procedural statutes may somehow affect the li0gants' rights may not preclude their retroac0ve applica0on to pending ac0ons.

Ty vs. Cam G.R. No. 127406 November 27, 2000

The two marriages involved in this case was entered during the effec0vity of the New Civil Code. The Family Code has retroac0ve effect unless there be impairment of vested rights.

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CASE TITLE

DOCTRINE

Systems Factors Corp vs NLRC The retroac0ve applica0on of procedural laws is not viola0ve of any right of a 346 SCRA 149 (2000) person who may feel that he is adversely affected. The reason is that as a general rule, no vested right may aYach nor arise from procedural laws. B. Publica7on Requirement under Ar7cle 2 • •

•

Laws shall take effect a[er fi[een days following the comple0on of their publica0on in the Official GazeYe, unless it is otherwise provided. This Code shall take effect one year a[er such publica0on. The law comprehends all statutes, including those of local applica0on and private laws which should be published as a condi0on for their effec0vity and shall begin fi[een (15) days a[er publica0on, unless the legislature fixes a different effec0vity date. Covered by these rules are presiden0al decrees and execu0ve orders promulgated by the President in the exercise of legisla0ve powers, whenever the same are validly delegated by the legislature, or, at present, directly conferred by the Cons0tu0on. Administra0ve rules and regula0ons must also be published if their purpose is to enforce or implement exis0ng laws pursuant also to a valid delega0on. CASE TITLE

Tanada vs. Tuvera 136 SCRA 27 (1985)

DOCTRINE Ar0cle 2 of the NCC does not preclude the requirement of publica0on in the Official GazeYe even if the law itself provides for the date of its effec0vity. If the law provides for its own effec0vity date, then it takes effect on the said date, subject to the requirement of publica0on. The clause “unless otherwise provided” refers to the date of effec0vity and not the to the requirement of publica0on itself, which cannot in any event be omiYed.

Basa vs. Mercado 61 Phil 632

To be a newspaper of general circula0on, it is enough that it is published for the dissemina0on of local news and general informa0on, that it has bona fide subscrip0on list of paying subscribers, and that it is published at regular intervals.

PASEI vs. Torres G.R. No. 101279 August 6, 1992

Although the ques0oned circulars are a valid exercise of the police power as delegated to the execu0ve branch of Government, they are legally invalid, defec0ve and unenforceable for lack of proper publica0on and filing in the Office of the Na0onal Administra0ve Register as required in Ar0cle 2 of the Civil Code, Ar0cle 5 of the Labor Code and Sec0ons 3(1) and 4, Chapter 2, Book VII of the Administra0ve Code of 1987.

Republic vs. Extelcom G.R. No. 147096 January 15, 2002

Thus, publica0on in the Official GazeYe or a newspaper of general circula0on is a condi0on sine qua non before statutes, rules or regula0ons can take effect. There is nothing in the Administra0ve Code of 1987 which implies that the filing of the rules with the UP Law Center is the opera0ve act that gives the rules force and effect.

Feliza de Roy vs. Court of Contrary to pe00oners' view, there is no law requiring the publica0on of Supreme Appeals Court decisions in the Official GazeYe before they can be binding and as a condi0on G.R. No. 80718 to their becoming effec0ve. It is the bounden duty of counsel as lawyer in ac0ve law January 29, 1988 prac0ce to keep abreast of decisions of the Supreme Court par0cularly where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court decisions (G. R. s) and in such publica0ons as the Supreme Court Reports Annotated (SCRA) and law journals.

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CIVIL LAW Bar Examina0ons 2017

C.

Conflict of Laws •

•

Conflict of Laws is that part of the law of each state which determines whether in dealing with a factual situa0on involving a foreign element, the law or the judgment of some other state will be recognized or applied in the forum. The primary func0on of this department of law is to determined whether the rules of law or judgments of some other state or states, and if so, to what extent, should be recognized or applied in the forum. 1.

JURISDICTION • Jurisdic0on is the right of the State (due to sovereignty) to exercise authority over persons and things within its boundaries, subject to certain excep0ons

KINDS OF JURISDICTION 1.

Jurisdic7on of the Person of the Plain7ff - acquired from the moment he invokes the aid of the court and voluntary submits himself by ins0tu0on of the suit through proper pleadings

2.

Jurisdic7on of the Person of the Defendant - acquired by virtue of any of the following: • Voluntary appearance in court • Enters his appearance as defendant unless he makes it clear that the purpose of his appearance is to ques0on the jurisdic0on of the court over his person • Personal service, and if he refuses, the tendering of summons • Subs0tuted service of summons by: • Summons by Publica0on

3.

Jurisdic7on over the Subject Mader - the power to hear and determine cases of the general class to which the proceedings in ques0on belong and is conferred by the sovereign authority which organizes the court and defines its powers

4.

Jurisdic7on over the Property (Res) - jurisdic0on over the par0cular subject maYer in controversy, regardless of the person who may be interested therein 2.

1. 2. 3.

WAYS OF DEALING WITH A CONFLICT CASE

Dismiss the case, either for lack of jurisdic0on or refusal to assume jurisdic0on (forum non conveniens) Assume jurisdic0on and apply the internal law of the forum Assume jurisdic0on and take into account or apply the law of the State or some other State CASE TITLE

Hilton vs. Guyot 159 U.S. 113 (1895)

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DOCTRINE A foreign judgment is not en0tled to full faith and credit when sued upon another na0on, but is a prima facie evidence only of the claim. No sovereign is bound, unless by special compact, to execute within his dominions a judgment rendered by the tribunals of another state, and if execu0on be sought by suit upon the judgment or otherwise, the tribunal in which the suit is brought, or from which execu0on is sought, is on principle at liberty to examine into the merits of such judgment, and to give effect to it or not, as may be found just and equitable. The general comity, u0lity, and convenience of na0ons have, however, established a usage among most civilized states by which the final judgments of foreign courts of competent jurisdic0on are reciprocally carried into execu0on, under certain regula0ons and restric0ons, which differ in different countries.

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CIVIL LAW Bar Examina0ons 2017

CASE TITLE Suntay vs. Suntay 95 Phil. 500 (1952)

DOCTRINE Facts: Jose Suntay, a Filipino ci0zen, and a resident of the Philippines died in 1934 in Amoy, Fookien Province, China, leaving real and personal proper0es in the Philippines and a house in Amoy. He was survived by his children of the first marriage and his wife and child of the second marriage. The decedent‟s son by the second marriage, claimed that he had found among the files, records and documents of his late father a will and testament in Chinese characters executed and signed by the deceased in 1931 and the same was filed, recorded and probated in the Amoy district court, Fookien Province, China. Should the said will be allowed into probate in the Philippines? Ruling: The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or allowance of wills must also be proved. The legal requirements for the execu0on of a valid will in China should also be established by competent evidence. There is no proof on these points. xxx In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate maYers, it may be presumed that the proceedings in the maYer of proba0ng or allowing a will in the Chinese courts are the same as those provided for in our laws. It is a proceeding in rem and for the validity of such proceedings personal no0ce or by publica0on or both to all interested par0es must be made... The evidence shows that no such no0ce was received by the interested par0es residing in the Philippines. The decree appealed from [denying the will into probate by the CFI of Bulacan is affirmed.

El Banco Espanol - Filipino vs. Palanca G.R. No. L-11390 March 26, 1918

Jurisdic0on, How Acquired: Jurisdic0on over the property which is the subject of the li0ga0on may result either from a seizure of the property under legal process, whereby it is brought into the actual custody of the law, or it may result from the ins0tu0on of legal proceedings wherein, under special provisions of law, the power of the court over the property is recognized and made effec0ve. The ac0on to foreclose a mortgage is said to be a proceeding quasi in rem, by which is expressed the idea that while it is not strictly speaking an ac0on in rem yet it partakes of that nature and is substan0ally such.

3. •

•

DISMISSAL OF THE CASE DUE TO FORUM NON CONVENIENS

Forum non conveniens is a discre0onary power that allows courts to dismiss a case where another court, or forum, is much beYer suited to hear the case. This dismissal does not prevent a plain0ff from refiling his or her case in the more appropriate forum. It is impera0ve that the Court should have jurisdic0on over the case prior to exercising the doctrine of forum non conveniens. If the Court has no jurisdic0on over a case involving foreign elements, then the case should be dismissed on the ground of LACK OF JURISDICTION, and not on the basis of forum non conveniens.

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CIVIL LAW Bar Examina0ons 2017

CASE TITLE Manila Hotel vs. NLRC G.R. No. 120077 October 13, 2000

4.

DOCTRINE The Supreme Court emphasized that under the rule of forum non conveniens, a Philippine court or agency may assume jurisdic0on over the case if it chooses to do so provided: (1) that the Philippine court is one to which the par0es may conveniently resort to;
 (2) that the Philippine court is in a posi0on to make an intelligent decision as to the law and the facts; and
 (3) that the Philippine court has or is likely to have power to enforce its decision.

ASSUMPTION OF JURISDICTION; WHEN MUNICIPAL LAW IS TO BE APPLIED

1.

A specific law of the forum decrees that municipal law should apply. • e.g. Ar0cle 16, Civil Code: cases involving real and personal property are subject to the law of the country where they are situated (lex situs)

2.

The proper foreign law was not properly pleaded and proved. • Our courts cannot take judicial no0ce of foreign laws. Pursuant to the doctrine of processual presump0on, if the proper foreign law is not pleaded and proved as a fact the court has the right to presume that the applicable forum law is the same as the internal law of the forum and should therefore apply the laYer law.

3.

The case falls under any of the excep7ons to the applica7on foreign law. • When the foreign law is contrary to an important public policy of the forum • When the foreign law is penal in nature • When the foreign law is procedural in nature • When the foreign law is purely fiscal or administra0ve in nature • When the applica0on of the foreign law will work undeniable jus0ce to the ci0zens of the forum • When the case involves real or personal property situated in the forum • When the applica0on of the foreign law might endanger the foreign rela0ons or vital interest of the State • When the foreign law is contrary to good morals 5.

ASSUMPTION OF JURISDICTION; WHEN FOREIGN LAW IS TO BE APPLIED

1.

A specific law of the forum decrees that the proper foreign law should apply • e.g. Civil Code, Ar0cle 16, par. 1 (lex situs – law of where the property is located), Ar0cle 16, par. 2 (lex na0onalii – personal law of the decedent), Ar0cle 17 (lex loci celebra0onis – where the contract is executed) 


2.

When another State has the dominant interest in a par7cular act or event, its law should be applied • Law of the State of the Most Significant Rela7onship - Factual contacts of each case are considered in order to arrive at the law of the most significant rela0onship. These contacts differ in each are of substan0ve law. For instance, in torts, the contacts to be taken into account are (a) the place where the injury occurred; (b) the place where the negligent conduct occurred; (c) the domicile, residence or na0onality of the par0es; and (d) the place where the rela0onship between the par0es is entered. In contract cases, the factual contacts include (a) the law chosen by the par0es and in the absence thereof; by (b) the place of contrac0ng; (c) the place of nego0a0on of the contract; (d) the place of performance; and (e) the domicile, residence, na0onality, place of incorpora0on and place of business of the par0es.

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CIVIL LAW Bar Examina0ons 2017

6.

CHARACTERIZATION

KINDS OF CHARACTERIZATION 1. Subject Mader Characteriza7on • A process by which a court, at the beginning of the choice-of-law process, assigns a disputed ques0on to its proper legal category, such as family rela0ons, contracts, succession, property, torts, etc. The legal category to which an issue is assigned determines the governing law. 
 2.

Substance-Procedure Characteriza7on • If the issue is substan0ve, the court may apply the proper foreign law. • But if it is procedural, it is supposed to apply the law of the forum. Thus, maYers of service of summons, joinder or spliqng of cause of ac0on, modes of appeal, periods of appeal, etc. are governed by the law of the forum, so as not to unduly burden the court with the study of the peculiari0es and refinements of another legal system. a. Statute of Frauds • The statute is considered as substan0ve, if it forbids the crea0on of an obliga0on. If it forbids the enforcement of the obliga0on, it is categorized as procedural. b. Statute of Limita7ons • By tradi0on, this is classified as procedural because they barred only the legal remedy without impairing the substan0ve right involved. • Note: ✓ The modern trend is to consider the law that the par0es had in mind at the 0me the transac0on took place (lex loci volunta0s / lex loci inten0onis). The intended law would then be applied in its totality, including its Statute of Limita0ons and Statute of Frauds. An excep0on is if the subject maYer of the transac0on is property located in the Philippines, in which case, Philippine law, being the lex situs, applies. ✓ Borrowing statutes – bar the filing of a suit in the forum if it is already barred by the statute of limita0ons in the place where the cause of ac0on arose.

CASE TITLE

DOCTRINE

C a d a l i n v . P O E A In this case involving money claims filed by Filipinos working in Bahrain, whose Administrator employment contracts were terminated prematurely, the Supreme Court noted that 238 SCRA 721 (1994) Sec0on 48 of Code of Civil Procedure13 is a form of a borrowing statute and by virtue of this Sec0on, the money claims filed by said Filipino workers in Philippine courts were already barred because they were filed beyond the 1-year prescrip0ve period provided in Bahrain‟s Amiri Decree No. 23. However, the Court did not apply Amiri Decree No. 23 because “[t]o enforce the one-year prescrip0ve period of the Amiri Decree No. 23 of 1976 as regards the claims in ques0on would contravene the public policy on the protec0on to labor ... the applicable law on prescrip0on is the Philippine law...” 7. •

•

DÉPAÇAGE

Depecage is the process of applying rules of different states on the basis of the precise issue involved. The doctrine of depecage involves the separa0on of issues and the applica0on of a dis0nct choice-of-law analysis to each issue. For example, A and B, cousins and domiciliaries of Canada, were married in Nevada. A had some proper0es in the Philippines and died intestate in the Philippines while on a year-long vaca0on in the country. The issue on how his proper0es in the Philippines shall be distributed will be governed by Canadian law on succession (lex domicilii), while the issue on the validity of his marriage to B, in rela0on to the issue on whether B is his wife and intestate heir, will be governed by both Nevada law (lex loci celebra0onis) and Canadian law (lex domicilii).

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8. •

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PRINCIPLE OF RENVOI

I t is a French word, which means “refer back” or “return”. It is a procedure whereby a jural maYer presented is referred by the conflict-of-laws rules of the forum to a foreign State, the conflict-of-laws rules of which, in turn, refer the maYer back to the law of the forum or a third State. When the reference is made back to the law of the forum, there is “remission”, while reference to a third State is called “transmission”.

WAYS OF DEALING WITH RENVOI 1.

2.

3. 4.

Reject the renvoi by applying internal law • If the conflicts rules of the forum court refer the case to the law of another state, it is deemed to mean only the “internal” law of the State. The internal law is that which would be applied to a domes0c case that has no conflict-of-laws complica0ons. Accept the renvoi • Accept the renvoi and refer no just to another state’s internal law but to the whole law which includes choice-of-law rules applicable in mul0-state cases. By desistance or mutual disclaimer of jurisdic7on. This has the same result as acceptance of renvoi, but the process used by the court is to desist applying the foreign law. Use the “foreign court” theory. The forum court would assume the same posi7on the foreign court would take if the case is li7gated in the jurisdic7on of the foreign court.

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CASE TITLE Aznar vs. Garcia 7 SCRA 95 (1963)

DOCTRINE Facts: Decedent Edward Christensen was a ci0zen of California, USA, but domiciled in the Philippines. In his will, he bequeathed P3,600 to Maria Helen Christensen (“Helen”), his illegi0mate daughter, and the residue of his estate to his daughter, Maria Lucy Christensen (“Lucy”). Helen filed opposi0on to the approval of the project of par00on base on the will, insofar as it deprived her of her legi0me as an acknowledged natural child of the decedent, based on Philippine laws. Ruling: “We note that Ar0cle 946 of the California Civil Code is its conflict of laws rule, while the rule applied in In re Kaufman, supra, its internal law. If the law on succession and the conflict of laws rules of California are to be enforced jointly, each in its own intended and appropriate sphere, the principle cited in In re Kaufman should apply to each of its ci0zens living in the State, but Ar0cle 946 should apply to such of its ci0zens as are not domiciled in California but in other jurisdic0ons. xxx Appellee [Lucy] argue that what Ar0cle 16 of the Civil Code of the Philippines pointed out as the na0onal law is the internal law of California. But as above explained the laws of California have prescribed two sets of laws for its ci0zens, one for residents therein and another for those domiciled in other jurisdic0ons. Reason demands that We should enforce the California internal law prescribed for its ci7zens residing therein, and enforce the conflict of laws rules for the ci7zens domiciled abroad. xxx It is argued on appellees‟ behalf that the clause „if there is no law to the contrary in the place where the property is situated‟ in Sec0on 946 of the California Civil Code refers to Ar0cle 16 of the Civil Code of the Philippines and that the law to the contrary in the Philippines is the provision in said Ar0cle 16 that the na0onal law of the deceased should govern. This conten0on cannot be sustained. As explained in the various authori0es cited above, the na7onal law men7oned in Ar7cle 16 of our Civil Code is the law on conflict of laws in the California Civil Code, i.e., Ar0cle 946, which authorizes the reference or return of the ques0on to the law of the testator‟s domicile. xxx The court of the domicile cannot and should not refer the case back to California; such ac0on would leave the issue incapable of determina0on because the case will then be like a football, tossed back and forth between the two states, between the country of which the decedent was a ci0zen and the country of his domicile. The Philippine court must apply its own law as directed in the conflict of laws rules of the state of the decedent, if the ques0on has to be decided, especially as the applica0on of the internal law of California provides no legi0me for children while the Philippine law, Arts. 887(4) and 894, Civil Code of the Philippines, makes natural children legally acknowledged forced heirs of the parent recognizing them.

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9.

CHOICE OF LAW IN DIFFERENT AREAS OF CIVIL LAW

Civil Law Topic

Conflict of Laws Rule

Noteworthy

PERSONS AND FAMILY RELATION Extrinsic Validity of • Marriage •

Lex loci celebra0onis (Art. 26(1), Family • Code) Excep0ons 1. Marriage between minors 2. Bigamous or polygamous marriages 3. Mistaken iden0ty of the other party 4. S u bs e q u e nt m a r r i a ge w h e re judgment of annulment or of absolute nullity of the first m a r r i a ge , t h e p a r 0 0 o n a n d distribu0on of the property of the spouses and delivery of the children‟s presump0ve legi0mes w e r e n o t r e c o r d e d i n t h e • appropriate civil registry and registries of property 5. Other party is psychologically incapacitated 6. Incestuous marriages 7. Marriages against public policy

(Arts. 35(1), (4) – (6), 36, 37 & 38)

•

Intrinsic Validity of • Marriage •

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Personal Law (Lex Na0onalii or Lex • Domicilii) Ar0cle 15: Laws rela0ng to family rights and du0es, or to the status, condi0on and legal capacity of persons are binding upon ci0zens of the Philippines, even though living abroad. •

These excep0ons put into issue the capacity of the par0es to enter into the marriage and therefore relate to the substan0ve requirement for marriage. Since the personal law of the par0es, e.g., the na0onal law of Filipinos, governs the ques0ons of intrinsic validity of marriages between the Filipinos abroad, the above enumera0ons are excep0ons to lex loci celebra0onis precisely because they are controlled by lex na0onalii. The above formal requisites apply to foreigners who get married in the Philippines. If one or both of the par0es are foreigners, the foreigner must submit a cer0ficate of legal capacity to contract marriage issued by the diploma0c or consular officials of his/her country in the Philippines before he/she can be issued a marriage license. Stateless persons or refugees need only to submit an affidavit sta0ng the circumstances showing such capacity to contract marriage As to common law marriages of fo re i g n e rs w h o co m e to t h e Philippines as husband and wife, it would seem that we should consider the marriage valid if valid under their na0onal law or the law of the place where the rela0onship began. But the marriage must not be contra b o n o s m o r e s o r u n i v e r s a l l y considered incestuous. For marriages between aliens that are valid under their personal law, they may be recognized as valid in the Philippines, unless the marriage is universally considered incestuous or highly immoral Same rule for mixed marriage under Extrinsic Validity of Marriage

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CIVIL LAW Bar Examina0ons 2017

Civil Law Topic Personal Rela7ons • between Spouses

Conflict of Laws Rule

Noteworthy

Ar0cle 15; Personal Law (Lex Na0onalii or • Lex Domicilii)

•

1.

2.

3.

4.

Property Rela7ons • between Spouses

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GOVERNING LAW: in the absence of a • contrary s0pula0on in the marriage seYlement, the property rela0ons of the spouses shall be governed by Philippine laws, regardless of the place of celebra0on of the marriage and their residence. However, this rule shall not apply: 1. where both spouses are aliens; 2. with respect to the extrinsic validity • of contracts affec0ng property not situated in the Philippines and executed in the country where the property is located; and 3. with respect to the extrinsic validity of contracts entered into in the Philippines not affec0ng property situated in a foreign country whose laws require different formali0es • for their extrinsic validity. (Art. 80, Family Code)

For mixed marriages, the personal law of the husband will prevail, unless contrary to law, goods customs and morals of the forum. S u b s e q u e n t c h a n g e o n t h e na0onality of the spouses are proposed to have the following effects: If both spouses will have the same or common na0onality, the laws where they are na0onals will govern; If only one of the spouse change his or her na0onality, consider the last common na0onality of the spouses; If there was never a common na0onality, the na0onal law of the country where the husband is a na0onal governs. The property rela0ons of the spouses are governed by what has been s0pulated by them. It is thus important for the spouses to know what law governs their rela0onship as husband and wife to prevent future disagreement on the maYer. For mixed marriages, the personal law of the Filipino spouse will govern, pursuant to Art. 80 of the Family Code. This was the inten0on of the Civil Code Revision CommiYee when it amended Art. 124 of the Civil Code in order to protect the Filipino spouse. Under Art. 80 of the Family Code, the property rela0ons of the spouses, regardless of place of celebra0on of the marriage and their residence, shall be governed by the marriage seYlement they have agreed upon before their marriage. In the absence thereof, the system of absolute community shall govern. Principle of Immutability: If the spouses or one of them change their na0onality subsequent to the marriage, their property regime will remain unchanged.

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CIVIL LAW Bar Examina0ons 2017

Civil Law Topic

Conflict of Laws Rule

A n n u l m e n t a n d • Declara7on of Nullity of Marriage •

Noteworthy

Lex loci celebra0onis and Personal law (Lex • na0onalii / Lex domicilii) (Art. 26(1), Family Code & Art. 15, Civil Code)

•

Divorce

• • •

Personal law (Lex na0onalii / Lex domicilii) • (Art. 26(2), Family Code & Art. 15, Civil 1. Code) GENERAL RULE: Our courts only observe rela0ve divorce (legal separa0on). Any divorce sought in Philippine courts will not be granted. Filipino couples cannot obtain absolute divorces abroad and neither shall a valid divorce obtained abroad by Filipino • couples be recognized here. • •

Legal Separa7on

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For Filipinos, their na0onal law is considered because though their marriage is valid under lex loci celebra0onis, grounds for its annulment or declara0on of nullity may exist under PH law, such as if the marriage is bigamous or against public policy. For mixed marriages, if solemnized here in the Philippines, PH law would be followed for annulment or declara0on of nullity of the marriage. If solemnized abroad and valid under the law where the marriage is solemnized and the personal law of one of the spouses, validity may be recognized here in the Philippines, unless the marriage is universally considered incestuous or highly immoral and therefore, void. Excep0on to the General Rule: Valid divorce obtained abroad between foreigners whose na0onal laws allow divorce. A foreign divorce will be recognized in all contrac0ng states if, at the date of the ins0tu0on of the proceeding: The respondent or pe00oner had his habitual residence there, OR Both spouses are na0onals of that State, OR If only the pe00oner was a na0onal, h e s h o u l d h ave h i s h a b i t u a l residence

2.

Where a marriage between a Filipino ci0zen and a foreigner is validly celebrated and a divorce is therea[er validly obtained abroad by the alien spouse capacita0ng him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

Ar0cle 15; Personal Law (Lex Na0onalii or • Lex Domicilii)

For mixed marriages, the grounds available are those under the personal laws of the spouses (Art. 8, H a g u e C o n v e n 0 o n o n L e g a l Separa0on)

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CIVIL LAW Bar Examina0ons 2017

Civil Law Topic

Conflict of Laws Rule

L e g i 7 m a c y , • I l l e g i 7 m a c y, a n d Legi7ma7on • •

•

Rights and Du7es • between Parent and Child • •

•

Adop7on and Legal • Effects •

Noteworthy

Common personal law (Lex na0onalii / Lex • domicilii) of the parents / of the father Art. 15, Civil Code If the parents are of the same na0onality – their common personal law (na0onal law or law of domicile) will be applied. If the parents are of different na0onali0es – personal law of the father governs

Doctrine of Immutability of Status: The status of a child (whether legi0mate or illegi0mate) is not affected by a subsequent change of na0onality of the parents. But the rights and du0es of parent and child, or child and parent, would, a[er the parents‟ change of na0onality, be governed by the new na0onal law of the parents.

Common personal law (Lex na0onalii / Lex • domicilii) of the parents / of the father Art. 15, Civil Code If the child is legi0mate – either the common personal law of the parents or the personal law of the father if the parents are of different na0onali0es governs If the child is illegi0mate – The personal law of the mother is decisive, UNLESS the child is subsequently recognized by the father, in which case the rules on legi0mate children will be applied

If the child is illegi0mate, the personal law of the mother governs.

Personal law (Lex na0onalii / Lex domicilii) • of the adopted (RA 8552, Sec0ons 16-18)

The validity of adop0on at the child‟s domicile or country is recognized in that State and in all others even when the adop0ng parents are domiciled elsewhere or are ci0zens of another country. Applicable laws: RA 8552 (Domes0c Adop0on Act of 1998) and RA 8043 (Inter-Country Adop0on Act of 1995)

•

PROPERTY Extrinsic and Intrinsic • V a l i d i t y o f t h e • Transac7on

/welnicholeverder

Lex Situs/ Lex Rei Sitae • Excep0ons: ✓ Successional Rights - na0onal law of the decedent ✓ Capacity to Succeed - na0onal law of the decedent ✓ Contracts involving Real Property which do not deal with the 0tle thereto - The law intended will be the proper law of the contract ✓ While the validity of the transfer of • land must be determined by the lex situs, the validity of the contract to transfer is determined by the proper law of the contract

Includes aliena0ons, transfers, mortgages; capacity of contrac0ng p a r 0 e s ; i n t e r p r e t a 0 o n o f documents; effects of ownership; co-ownership; accession; usufruct; lease; easement; quie0ng of 0tle; registra0on; prescrip0on; police power; eminent domain; and taxa0on WHEN WILL PH COURT HAS TO SETTLE A PROBLEM IN CLASSIFYING PROPERTY? • When it is located in a foreign country which has a l aw t h at d i s0 n g u i s h e d between real and personal property. Page !12 of !46

CIVIL LAW Bar Examina0ons 2017

Civil Law Topic

Conflict of Laws Rule

Noteworthy

WILLS AND SUCCESSION Extrinsic Validity of • Wills

•

•

If the will was executed by a FILIPINO, • ABROAD, the governing law is Philippine law OR law of the place where he is execu0ng the will. If the will was executed by an ALIEN, ABROAD, the formali0es of his lex na0onalii (law of the country of which he is a ci0zen) • must govern; OR law of his domicile; OR lex loci celebra0onis. If the will was executed by an ALIEN, in the • Philippines, the governing law may be the laws of his country; OR the laws of the Philippines.

•

Intrinsic Validity of • Wills • •

Revoca7on of Wills

•

• •

Lex na0onalii – in countries that follow the • na0onality theory Lex domicilii – in countries that follow the 1. domiciliary theory What governs the intrinsic validity of wills 2. in the Philippines? the NCC applies: lex na0onalii of the decedent

CONFLICT RULES WHEN A PERSON DIES INTESTATE In civil law countries – the na0onal law of the deceased applies In common law countries – the lex domicilii of the deceased at the 0me of death applies with respect to personalty, while the lex situs applies with respect to real property

Under Art. 829 of the NCC, a revoca0on done outside the Philippines by a person who does not have his domicile here is valid if done according to: • The law of the place where the will was made (lex loci celecbra0onis) or • The law of his domicile at the 0me of revoca0on (lex domicilii) • NOTE: Ignores the law of the place of revoca0on If the revoca0on is done in the Philippines, it is valid if made in accordance with the provisions of our Civil Code If the revoca0on is done outside the Philippines by a person who is domiciled here, it is valid if made in accordance with: • Philippine law (lex domicilii) or • Lex loci actus of the revoca0on (the place where the revoca0on was made)

Intestate Succession

•

Personal law of the decedent (Lex na0onalii / Lex domicilii) (Art. 16, Civil Code)

Capacity to Succeed

•

Personal law of the decedent (Lex na0onalii / Lex domicilii) (Art. 16 & 1039, Civil Code)

/welnicholeverder

From a conflict of laws perspec0ve, a will is an involuntary transfer of property because although an act of execu0ng one’s will and testament is a voluntary act, that in itself, does not transfer 0tle. Filipinos cannot make joint wills, whether executed in the Philippines or abroad (Art. 819, Civil Code) Joint wills by aliens made abroad may be recognized as valid in the Philippines if valid according to their personal law or lex loci celebra0onis. But if that joint will is made in the Philippines, it is void for being against public policy. Joint wills by an alien and Filipino made abroad may be considered as valid as to the alien (if allowed by his p e r s o n a l l a w o r l e x l o c i celebra0onis), but void as to the Filipino) for being against Philippine public policy. However, if such joint will is made in the Philippines, it is void for being against public policy.

Page !13 of !46

CIVIL LAW Bar Examina0ons 2017

Civil Law Topic

Conflict of Laws Rule

P r o b a t e a n d • Administra7on of 1. Estate

2.

3.

4.

5. 6.

Lex Fori • Administra0on is procedural in nature. It is the lex fori (law of the forum) that governs not the law that determines how the estate of the deceased is to be distributed In charge of the administra0on is the executor or an administrator with a will • annexed or an administrator The executor is qualified, and the administrator of the estate is appointed, by the court of the country where the deceased was domiciled at the 0me of his death, or if he was a non-domiciliary, the country where his proper0es are found The rights, powers, and du0es of the executor or administrator are coextensive with the territorial jurisdic0on of the court that qualified or appointed him Principal domiciliary administra0on v. ancillary administra0on The domiciliary administrator of the estate of a deceased American ci0zen in the US has no power over and is not en0tled to the possession of the stock cer0ficates of shares of stock by the deceased in a Philippine corpora0on, which cer0ficates must be delivered to the ancillary administrator. (Tayag vs. Benguet)

Noteworthy Wills proved and allowed in a foreign country, according to the law of that country, may be allowed, filed and recorded by the proper court in the Philippines (Rule 77, Sec. 1, Rules of Court) The following must be proved: (1) foreign law on formali0es of wills; (2) due execu0on of the will in accordance with the foreign law; (3) the will had been admiYed to probate in said country; (4) the foreign tribunal is a probate court; (5) foreign laws on procedure and allowance of wills were followed; and (6) the testator had his domicile in the foreign country where the will was probated (Vda. de Perez v. Tolete, 232 SCRA 722)

CONTRACTS Extrinsic Validity of • Contracts

Lex loci celebra0onis (Arts. 17 (1), Civil • Code)

With respect to contracts entered into by cablegram, telex or fax messages between persons in two countries, Art. 139, par. 2 of the Civil Code provides: “Acceptance made by leYer or telegram does not bind the offeror except from the 0me it came to his knowledge. The contract in such case is presumed to have been entered into in the place where the offer was made.”

Capacity of Par7es

Personal law (Lex na0onalii / Lex domicilii) • (Arts. 15, Civil Code)

But if contract involves aliena0on or encumbrance of real or personal proper0es, the governing law is lex situs / lex rei sitae (Art. 16, Civil Code)

/welnicholeverder

•

Page !14 of !46

CIVIL LAW Bar Examina0ons 2017

Civil Law Topic Intrinsic Validity of • Contracts • • •

Conflict of Laws Rule

Noteworthy

Lex loci contractus • Lex loci solu0onis Lex loci volunta0s / inten0onis Law of the State of the most significant rela0onship •

1.

2.

3.

/welnicholeverder

There is no specific provision of Philippine law applicable to a conflicts case on intrinsic validity of contracts. Hence, the following should be taken into considera0on in using any of the conflict of laws rules on intrinsic validity of contracts: If the place of the making of the contract is en0rely incidental or casual, the mechanical applica0on of lex loci contractus might lead to unjust results. If the contract is to be performed in two or more States with conflic0ng laws on validity of contracts, lex loci solu0onis would not be helpful. Under lex loci volunta0s / inten0onis, the par0es may s0pulate that their contract be governed by a specific law (Art. 1306, Civil Code on autonomy of contracts25) and such s0pula0on will be recognized. However, they cannot s0pulate to oust the proper courts of their jurisdic0on, contract away provisions of the proper law that are heavily impressed with public interest, or agree on a law that is contrary to the fundamental policy of the forum.

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CIVIL LAW Bar Examina0ons 2017

Civil Law Topic

Conflict of Laws Rule

Noteworthy

TORTS & DAMAGES Torts

• •

Lex loci delic0 commissi Law of the State of the most significant rela0onship

•

CHARACTERIZATION OF THE PLACE OF WRONG (locus delic0) ✓ Common law theory – looks to the place where the last event necessary to make an actor liable for an alleged tort occurs (where the injury is sustained) ✓ Civil law theory – view the situs of torts as the place where the tortuous act was commiYed.

• 1.

MODERN THEORIES IN TORT LIABILITY Doctrine of Elec7ve Concurrence – Either the laws of the state where the actor engaged in his conduct and where the injury was incurred may be invoked. Theory of Most Significant Rela7onship – The applicable law shall be the law of the country which has the most significant rela0onship to the situa0on. In determining the state which has the most significant rela0onship, the following factors are to be taken into account: • place where the injury occurred • place of conduct causing the injury • domicile, residence, na0onality, place of incorpora0on and place of business • place where rela0onship between the par0es is centered State-interest Analysis – This principle provides for the following methodology: • Determine false or spurious conflicts (i.e., internal laws of the different states have the same result or when only one state has an interest in applying its tort law. • If there is True Conflict: • If Interested Forum – apply the law of such State which has greater interest in upholding its tort law. • If Disinterested Forum – Dismiss on the ground of Non Forum Conveniens. Caver’s Principle of Preference – guideline on which rules on torts may be applied by States in absence of statutory provision: a. Where the State of Injury provides for higher standard of conduct or financial protec0on against injury than the State where the tor0ous act was done, the law of the former shall govern. b. Where the State of injury and conduct provides for lower standard of conduct and financial protec0on than the home State of the person suffering the injury, the law of the State of conduct and injury shall govern. c. Where the State in which the defendant has acted has established special controls over conduct of the kind in which defendant was engaged, the special controls and benefits must be applied although the State has no rela0onship to the defendant. d. Where the law in which the rela0onship has its seat imposed higher standard of conduct or financial protec0on than the law of the State of the injury, the former law shall govern.

2.

3.

4.

/welnicholeverder

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CIVIL LAW Bar Examina0ons 2017

CASE TITLE

DOCTRINE PERSONS AND FAMILY RELATIONS MARRIAGE

Eugenio vs. Velez G.R. No. 85140 May 17, 1990

Philippine Law does not recognize common law marriages. A man and woman not legally married who cohabit for many years as husband and wife, who represent themselves to the public as husband and wife, and who are reputed to be husband and wife in the community where they live may be considered legally married in common law jurisdic0ons but not in the Philippines. While it is true that our laws do not just brush aside the fact that such rela0onships are present in our society, and that they produce a community of proper0es and interests which is governed by law, authority exists in case law to the effect that such form of co-ownership requires that the man and woman living together must not in any way be incapacitated to contract marriage. In any case, herein pe00oner has a subsis0ng marriage with another woman, a legal impediment which disqualified him from even legally marrying Vitaliana.

Djumantan vs. Domingo G.R. No. 99358 January 30, 1995

The fact of marriage by an alien to a ci0zen does not withdraw her from the opera0on of the immigra0on laws governing the admission and exclusion of aliens. Marriage of an alien woman to a Filipino husband does not ipso facto make her a Filipino ci0zen and does not excuse her from her failure to depart from the country upon the expira0on of her extended stay here as an alien

Pilapil vs. Ibay-Somera G.R. No. 80116 June 30, 1989

The law specifically provided that in prosecu0on for adultery and concubinage, the person who can legally file the complaint should be the offended spouse and nobody else. Though in this case, it appeared that private respondent is the offended spouse, the laYer obtained a valid divorce in his country, the Federal Republic of Germany, and said divorce and its legal effects may be recognized in the Philippines in so far as he is concerned. Thus, under the same considera0on and ra0onale, private respondent is no longer the husband of pe00oner and has no legal standing to commence the adultery case under the imposture that he was the offended spouse at the 0me he filed suit.

Garcia vs. Recio G.R. No. 138322 October 2, 2001

The Philippine law does not provide for absolute divorce; hence, our courts cannot grant it. In mixed marriages involving a Filipino and a foreigner, Ar0cle 26 of the Family Code allows the former to contract a subsequent marriage in case the divorce is “validly obtained abroad by the alien spouse capacita0ng him or her to remarry”. A divorce obtained abroad by two aliens, may be recognized in the Philippines, provided it is consistent with their respec0ve laws. Therefore, before our courts can recognize a foreign divorce, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.

Corpuz vs. Sto. Tomas G.R. No. 186571 August 11, 2010

The alien spouse cannot claim under the second paragraph of Art 26 of the Family Code because the substan0ve right it establishes is in favour of the Filipino spouse. Only the Filipino spouse can invoke the second par of Art 26 of the Family Code.

Republic vs. CA and Bobiles G.R. No. 92326 January 24, 1992

The pe00on for adop0on was filed when the law applicable was PD 603 (Child and Youth Welfare Code), where such pe00on may be filed either of the spouses or both of them. A[er the trial court rendered its favorable decision and while the case was pending on appeal in CA, Family Code took effect where joint adop0on of both spouses is mandatory.

/welnicholeverder

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CIVIL LAW Bar Examina0ons 2017

CASE TITLE

DOCTRINE

Roehr vs. Rodriguez GR 142820 June 20, 2003


Divorce decree obtained in Germany by alien spouse was recognized. However, the legal effects thereof (custody and support of children) must s0ll be determined by Philippine courts. “Before our courts can give effect of res judicata to a foreign judgment, such as the award of custody to pe00oner by the German court, it must be shown that the par0es opposed to the judgment had been given ample opportunity to do so on grounds allowed under Rule 39, Sec0on 50 of the Rules of Court (now Rule 39, Sec0on 48, 1997 Rules of Civil Procedure)... In the present case, it cannot be said that private respondent was given the opportunity to challenge the judgment of the German court so that there is basis for declaring the judgment as res judicata with regard to the rights of pe00oner to have parental custody of their two children... the divorce decree was issued to pe00oner by virtue of the German Civil Code provision to the effect that when a couple lived separately for three years, the marriage is deemed irrefutably dissolved. The decree did not touch on the issue as to who the offending spouse was. Absent any finding that private respondent is unfit to obtain custody of the children, the trial court was correct in seqng the issue for hearing to determine the issue of parental custody, care, support and educa0on mindful of the best interests of the children. This is in consonance with the provision in the Child and Youth Welfare Code that the child‟s welfare is always the paramount considera0on in all ques0ons concerning his care and custody.”

Noveras vs. Noveras G.R. No. 188289 August 20, 2014

David and Le0cia are US ci0zens who own proper0es in the USA and in the Philippines. Le0cia obtained a decree of divorce from the Superior Court of California in June 2005 wherein the court awarded all the proper0es in the USA to Le0cia. With respect to their proper0es in the Philippines, Le0cia filed a pe00on for judicial separa0on of conjugal proper0es. The Court ruled that even if the Court applies the doctrine of processual presump0on as the lower courts did with respect to the property regime of the par0es, the recogni0on of divorce is en0rely a different maYer because, to begin with, divorce is not recognized between Filipino ci0zens in the Philippines. Absent a valid recogni0on of the divorce decree, it follows that the par0es are s0ll legally married in the Philippines. The trial court thus erred in proceeding directly to liquida0on. PROPERTY

Cheesman vs. IAC G.R. No. 74833 January 21, 1991

/welnicholeverder

The fundamental law prohibits the sale to aliens of residen0al land. Sec0on 14, Ar0cle XIV of the 1973 Cons0tu0on ordains that, "Save in cases of hereditary succession, no private land shall be transferred or conveyed except to individuals, corpora0ons, or associa0ons qualified to acquire or hold lands of the public domain." Pe00oner was, of course, charged with knowledge of this prohibi0on. Thus, assuming that it was his inten0on that the lot in ques0on be purchased by him and his wife, he acquired no right whatever over the property by virtue of that purchase; and in aYemp0ng to acquire a right or interest in land, vicariously and clandes0nely, he knowingly violated the Cons0tu0on; the sale as to him was null and void.

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CIVIL LAW Bar Examina0ons 2017

CASE TITLE

DOCTRINE WILLS AND SUCCESSION

Cayetano vs. Leonidas 129 SCRA 522 (1984)

Facts: Adoracion Campos, an American ci0zen and permanent resident of Pennsylvania, USA, died in Manila while temporarily residing with her sister. She was survived by her father, pe00oner Hermogenes Campos and sisters, private respondents Nenita Paguia, Remedios Lopez and Marieta Medina. Nenita Paguia filed a pe00on for the reprobate of the will of the deceased which was allegedly executed in the US according to the laws of Pennsylvania, which a[er her death was probated and registered in the same State. The court allowed the reprobate of the will in the Philippines and Paguia was appointed administratrix. Pe00oner Campos filed a pe00on to set aside the reprobate of the will on the ground, inter alia, that the reprobate of the will in the Philippines divested him of his legi0me which was reserved by the law for him. Ruling: “This conten0on is without merit. Although on its face, the will appeared to have preterited the pe00oner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the 0me of her death, an American ci0zen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. xxx the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the na0onal law of the decedent. Although the par0es admit that the Pennsylvania law does not provide for legi0mes and that all the estate may be given away by the testatrix to a complete stranger, the pe00oner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific provisions of Philippine Law. It is a seYled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Ar0cle 16(2) and 1039 of the Civil Code, the na0onal law of the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) xxx” CONTRACTS

King Mau vs. Sycip G.R. No. L-5897 April 23, 1954

The conten0on that as the contract was executed in New York, the Court of First Instance of Manila has no jurisdic0on over this case, is without merit, because a non-resident may sue a resident in the courts of this country where the defendant may be summoned and his property leviable upon execu0on in the case of a favorable, final and executory judgment. It is a personal ac0on for the collec0on of a sum of money which the Courts of First Instance have jurisdic0on to try and decide. There is no conflict of laws involved in the case, because it is only a ques0on of enforcing an obliga0on created by or arising from contract; and unless the enforcement of the contract be against public policy of the forum, it must be enforced.

Hongkong vs. Sherman G.R. No. 72494 August 11, 1989

One basic principle underlies all rules of jurisdic0on in Interna0onal Law: a State does not have jurisdic0on in the absence of some reasonable basis for exercising it, whether the proceedings are in rem quasi in rem or in personam. To be reasonable, the jurisdic0on must be based on some minimum contacts that will not offend tradi0onal no0ons of fair play and substan0al jus0ce. The defense of private respondents that the complaint should have been filed in Singapore is based merely on technicality. The par0es did not thereby s0pulate that only the courts of Singapore, to the exclusion of all the rest, has jurisdic0on. Neither did the clause in ques0on operate to divest Philippine courts of jurisdic0on.

/welnicholeverder

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CIVIL LAW Bar Examina0ons 2017

CASE TITLE

DOCTRINE

United Airlines vs. Court of Appeals G.R. No. 124110 April 20, 2001

The doctrine of lex loci contractus, as a general rule, the law of the place where a contract is made or entered into governs with respect to its nature and validity, obliga0on and interpreta0on. This has been said to be the rule even though the place where the contract was made is different from the place where it is to be performed, and par0cularly so, if the place of the making and the place of performance are the same. Hence, the court should apply the law of the place where the airline 0cket was issued, when the passengers are residents and na0onals of the forum and the 0cket is issued in such State by the defendant airline. TORTS AND DAMAGES

Loucks vs. Standards 224 N.Y. 99 120 N.E. 198 1918

One state’s penal laws are not enforceable in any other state. Whether a statute is penal depends on the type of liability it creates. Where the penalty is awarded to the state or a member of the public is suing in the interest of the whole community to right a public wrong, the statute and/or recovery is penal. While this statute is penal in the sense that damages are awarded on the basis of the defendant’s conduct rather than the plain0ff’s measure of damages, the right to recover is private and therefore the statute is not penal in the interna0onal sense. The public policy of New York is not violated by the enforcement of the right, as New York recognizes the right of survivors to recover for wrongful death. The fact that the MassachuseYs Statute is different in the way it is enforced does not make the MassachuseYs Statute wrong. The forum may refuse to enforce a right based on a foreign statute only where enforcement would violate an express strong public policy of the forum.

Trajano vs. Marcos 765, 61 USLW 2257

In the amicus brief filed by the US Jus0ce Department, a narrower interpreta0on of the Alien Tort Statute was advocated, excluding cases between aliens for human rights viola0on commiYed within the aliens’ domes0c jurisdic0on. It limited jurisdic0on of US Courts to tort ac0ons to which the United States “might be held accountable to the offended na0on” if it did not extend protec0on of its laws.

Saudi Arabian Airlines vs. CA G.R. No. 122191 October 8, 1998

"State of the most significant rela0onship" – applied; taken into account and evaluated according to their rela0ve importance with respect to the par0cular issue: (a) the place where the injury occurred (b) the place where the conduct causing the injury occurred (c) the domicile, residence, na0onality, place of incorpora0on and place of business of the par0es (d) the place where the rela0onship, if any, between the par0es is centered • • •

/welnicholeverder

private respondent is a resident Filipina na0onal, working here pe00oner is a resident foreign corpora0on engaged here in the business of interna0onal air carriage Weighing the rela0ve claims of the par0es, the court a quo found it best to hear the case in the Philippines. Had it refused to take cognizance of the case, it would be forcing plain0ff (private respondent now) to seek remedial ac0on elsewhere, i.e. in the Kingdom of Saudi Arabia where she no longer maintains substan0al connec0ons. That would have caused a fundamental unfairness to her. Moreover, by hearing the case in the Philippines no unnecessary difficul0es and inconvenience have been shown by either of the par0es.

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CIVIL LAW Bar Examina0ons 2017

BAR QUESTIONS AND SUGGESTED ANSWERS ON GENERAL PRINCIPLES OF CIVIL CODE 1.

True or False: The doctrine of "processual presump7on" allows the court of the forum to presume that the foreign law applicable to the case is the same as the local or domes7c law. (Bar, 2009)

SUGGESTED ANSWER: TRUE. If the foreign law necessary to the resolve an issue is not proven as a fact, the court of the forum may presume that the foreign law is the same as the law of the forum. 2.

Give at least two reasons why a court may assume jurisdic7on over a conflict of laws case.

SUGGESTED ANSWER: a. b. 3.

Statute theory. There is a domes0c law authorizing the local court to assume jurisdic0on. Comity theory. The local court assumes jurisdic0on based on the principle of comity or courtesy.

Alden and Stela were both former Filipino ci7zens. They were married in the Philippines but they later migrated to the United States where they were naturalized as American Ci7zens. In their union, they were able to accumulate several real proper7es both in the US and in the Philippines. Unfortunately, they were not blessed with children. In the US, they executed a joint will ins7tu7ng as common heirs to divide their combined estate in equal shares, the five siblings of Alden and the seven siblings of Stela. Alden passed away in 2013 and a year later, Stela also died. The siblings of Alden who were all ci7zens of the US ins7tuted probate proceedings in a US court impleading the siblings of Stela who were all in the Philippines. a. Was the joint will executed by Alden and Stela who were former Filipinos valid? Explain with legal basis. b. Can the joint will produce legal effect in the Philippines with respect to the proper7es of Alden and Stela found here? If so, how? c. Is the situa7on presented in Item 1 an example of depecage? (Bar 2015)

SUGGESTED ANSWER: a.

The joint will shall be valid if it was executed in accordance with US law. At the 0me of the will’s execu0on, Alden and Stela were US ci0zens. The will of an alien who is abroad produces effect in the Philippines if made with the formali0es prescribed by the place of the law in which he resides, or according to the formali0es observed in his country. Ar0cle 819 of the Civil Code does not apply as it refers specifically to the invalidity of joint wills “executed by Filipinos in a foreign country”.

b.

The joint will may produce legal effect in the Philippines f it was validly executed in accordance with the laws of the US. To be given legal effect in the Philippines, it must be probated in this country. Since the will was executed abroad by aliens, it must comply with Ar0cle 17 or Ar0cle 816 of the Civil Code. Under Ar0cle 17, the forms and solemni0es of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. Under Ar0cle 816, the will of an alien who is abroad produces effect in the Philippines if made with the formali0es prescribed by the place of the law in which he resides, or according to the formali0es observed in his country, or in conformity with those which this Code prescribes. Since Alden and Stela were both naturalized American ci0zens at the 0me of the execu0on of the will, they are allowed to execute a will in accordance with the formali0es prescribed by the law of their country, where they reside, or Philippine law.

c.

No, the situa0on presented in Item 1 is not an example of depacage. Depacage is a term used where different aspects of a case involving a foreign element may be governed by different systems of law. In this case, only one system of laws governs, that of US law. Under Ar0cle 16 (2) of the Civil Code, 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 na0onal law of the person whose succession is under considera0on, whatever may be the nature of the property and regardless of the country wherein said property may be found. For the will to be probated, it must also

/welnicholeverder

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CIVIL LAW Bar Examina0ons 2017

comply with US law under Ar0cles 17 and 816 of the Civil Code, as the US was the place of the will’s execu0on, the residence of the spouses, and the country where they are na0onals. 4.

Sec7on 1 of P.D. No. 755 states: “Sec7on 1. Declara7on of Na7onal Policy. – It is hereby declared that the policy of the State is to provide readily available credit facili7es to the coconut farmers at preferen7al rates; that this policy can be expedi7ously and efficiently realized by the implementa7on of the ‘Agreement for the Acquisi7on of a Commercial Bank for the Benefit of the Coconut Farmers’ executed by the Philippine Coconut Authority, the terms ofwhich ‘Agreement’ are hereby incorporated by reference; x x x” A copy ovhe Agreement was not adached to the Presiden7al Decree. P.D. No. 755 was published in the Official Gazede but the text of the Agreement described in Sec7on 1 was not published. Can the Agreement in ques7on be accorded the status ofa law? Explain. (2016 Bar)

SUGGESTED ANSWER: No. Sec0on 1 of P.D. No. 755 did not validate the Agreement between PCA and defendant Eduardo M. Cojuangco, Jr. dated May 25, 1975 nor did it give the Agreement the binding force of a law because of the nonpublica0on of the said Agreement. According to the Supreme Court in Tanada vs. Tuvera, all statutes, including those of local applica0on and private laws, shall be published as a condi0on for their effec0vity, which shall begin fi[een days a[er publica0on unless a different effec0vity date is fixed by the legislature. Publica0on must be in full or it is no publica0on at all since its purpose is to inform the public of the contents of the laws. Since the Agreement was not published, it cannot be given a binding force and effect of law. II. HUMAN RELATIONS A chapter on human rela0ons was formulated to present some basic principles that are to be observed for the righ{ul rela0onship between human beings and the stability of the social order. The lawmaker makes it impera0ve that everyone duly respect the rights of others. Indeed this chapter is calculated to indicate certain norms that spring from the fountain of good conscience. These guides for human should run as golden threads through society, to the end that law may approach its supreme ideal, which is the sway and dominance of jus0ce. Civil Code Ar7cle

Stress of the Ar7cle

19

• • • •

20

Indemnifica0on of others due to ILLEGAL ACTS

21

Indemnifica0on of others due to IMMORAL ACTS

22

Prohibi0on against Unjust Enrichment

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Ac0ng with jus0ce The giving to everyone his due The observance of honesty and good faith Thus rights must never be abused; the moment they abused, they ceased to be rights.

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CIVIL LAW Bar Examina0ons 2017

A. Abuse of Right A right, though by itself legal because recognized or granted by law as such, may become the source of some illegality. When a right is exercised in a manner which does not conform to the norms enshrined in Art. 19 and results in damage to another, a legal wrong is thereby commiYed for which the wrongdoer must be held responsible. This principle is based upon the famous maxim summum jus summa injuria (the abuse of a right is the greatest possible wrong) (Arlegui v. CA, G.R. No. 126437, March 6, 2002). Ra0onale: The exercise of a right ends when the right disappears, and it disappears when it is abused, especially to the prejudice of others. The mask of a right without the spirit of jus0ce which gives it life is repugnant to the modern concept of social law. It cannot be said that a person exercises a right when he unnecessarily prejudices another or offends morals or good customs. B. Elements of Abuse of Right Ar7cle 19 1. 2.

There is a legal right or duty; Such duty is exercised in bad faith; 3. It is for the sole intent of prejudicing or injuring another (Albenson Enterprises Corp. vs CA)

Ar7cle 20

Ar7cle 21

Speaks of the general sanc0on for all 1. other provisions of law which do not 2. specially provide for their own sanc0on 3.

NOTE: The absence of good faith is NOTE: Generally, laws provide for essen0al to abuse of right their own sanc0ons and methods of enforcement thereof. Ar0cle 20 applies only in cases where the law does not provide for its own sanc0ons. Hence, Every person who, contrary to law, wilfully or negligently causes damage to another shall indemnify the laYer for the same (Art. 20, NCC). Said ar0cle provides f o r a g e n e r a l s a n c 0 o n – indemnifica0on for damages .

There is an act which is legal But which is contrary to morals, good custom, public order, or public policy The act was done with intent to injure

NOTE: Deals with acts contra bonus mores or contrary to good morals and presupposes loss or injury, material or otherwise, which one may suffer as a result of such viola0on.

In view of the general sanc0on provided for under Art. 20, a person however does not have an absolute right to be indemnified, it is essen0al that some right of his be impaired. Without such, he is not en0tled to indemnifica0on C.

Prohibi7on against Unjust Enrichment

The ar0cle applies only if: • •

Someone acquires or comes into possession of “something” which means delivery or acquisi0on of “things”; and Acquisi0on is undue and at the expense of another, which means without any just or legal ground.

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UNJUST ENRICHMENT REQUISITES

1. 2. 3. 4.

The defendant has been enriched; The plain0ff has suffered a loss; The enrichment of the defendant is without just or legal ground; and The plain0ff has no other ac0on based on contract, quasi-contract, crime or quasidelict.

REMEDY

The remedy is Accion In Rem Verso. It is an ac0on for recovery of what has been paid without just cause. NOTE: Mistake is not an essen0al element, as opposed to solu0on indebi0 where mistake is an essen0al element. ACCION IN REM VERSO: It is an ac0on for recovery of what has been paid or delivered without just cause or legal ground. Under Art. 22 of the NCC, if a person acquires or comes into possession of something at the expense of another without just or legal ground through an act or of performance by another or any other means has the obliga0on to return the same. Accion in rem verso can only be availed of if there is no other remedy to enforce it based on contract, quasi- contract, crime or quasi-delict.

WHEN TO AVAIL REMEDY

It can only be availed of if there is no other remedy to enforce it based on contract, quasi-contract, crime or quasi-delict.

COMPARED TO SOLUTIO Mistake is an essen0al element in solu0o indebi0. In accion in rem verso, it is not INDEBITI necessary that there should have been mistake in the payment (Rabuya, 2006). D. Jurisprudence CASE TITLE

DOCTRINE

Amonoy vs. Gu7errez 351 SCRA 731 (2001)

One who merely exercises one’s rights does no ac0onable injury and cannot be held liable for damages.

RCPI vs. CA 143 SCRA 657 (1986)

Dionela filed a complaint for damages against RCPI alleging that the defamatory words on the telegram sent to him not only wounded his feelings but also caused him undue embarrassment and affected his business as well as because other people have come to know of said defamatory words. There is a clear case of breach of contract by the pe00oner in adding extraneous and libelous maYers in the message sent to Dionela.

Constan7no vs. Mendez 209 SCRA 18 (1992)

Mere sexual intercourse is not by itself a basis for recovery. Damages could only be awarded if sexual intercourse is not a product of voluntariness and mutual desire.

Gashme Shookat Baksh vs. Where a man’s promise to marry is in fact the proximate cause of the acceptance of CA his love by a woman and his representa0on to fulfill that promise therea[er 219 SCRA115 (1993) becomes the proximate cause of the giving of herself unto him a sexual congress, proof that he had, in reality, no inten0on of marrying her and that the promise was only a subtle scheme or decep0ve device to en0ce or inveigle her to accept him and to obtain her consent to the sexual act, could jus0fy the award of damages pursuant to ar0cle 21 of the new civil code not because of such promise to marry but because of the fraud and deceit behind it and the wilful injury to her honor and reputa0on which followed therea[er.

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CASE TITLE

DOCTRINE

UP vs. Philab G.R. No. 152411 Sept. 29, 2004

Whether or not UP is liable to pay PHILAB considering that it is only a donee of FEMF, FEMF being the one which funded the project, and despite being a donee, unjust enrichment s0ll applies to UP. In order that accion in rem verso may prosper, the essen0al elements must be present: (1) that the defendant has been enriched, (2) that the plain0ff has suffered a loss, (3) that the enrichment of the defendant is without just or legal ground, and (4) that the plain0ff has no other ac0on based on contract, quasi-contract, crime or quasi-delict.

Beumer vs. Amores G.R. No. 195670 December 3, 2012

An ac0on for recovery of what has been paid without just cause has been designated as an accion in rem verso. This provision does not apply if, as in this case, the ac0on is proscribed by the Cons0tu0on or by the applica0on of the pari delicto doctrine.

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PERSONS AND FAMILY RELATIONS I.

PERSONS AND PERSONALITY Defini7on

Person

A person is every physical or moral, real or juridical and legal being suscep0ble of rights and obliga0ons or being the subject of legal rela0ons.

Personality

Personality, on the other hand, is the ap0tude to be the subject, ac0ve or passive, of juridical rela0ons.

Kinds of Persons

1. 2.

Juridical Capacity

It is the fitness to be the subject of legal rela0ons. It is inherent in every natural person and is lost only through death. (Ar0cle 37, NCC)

Capacity to Act

It is the power to do acts with legal effect. (Ar0cle 37, NCC)

Natural – Human beings and have physical existence Juridical – Ar0ficial persons and product of legal fic0on

A. Dis7nc7on between Juridical Capacity vs. Capacity to Act JURIDICAL CAPACITY

CAPACITY TO ACT

DEFINITION

Fitness to be subject of legal rela0ons

Power to do acts with legal effects

ACQUISITION

Inherent; it co-exists with the natural person

Through the fulfillment of specific legal ac0vi0es

LOSS

Through death

Through death and other causes

IN RELATION TO THE OTHER

Can exist without capacity to act

Cannot exist without capacity to act

LIMITATION

None

• •

Art 38 - Restric0ons Art 39 - Modifica0ons & Limita0ons

B. Restric7ons on Capacity to Act (Ar7cle 38) 1. 2. 3. 4. 5. 6.

Minority - State of a person who is under the age of legal majority which is eighteen years of age Insanity – State of a person whose mental facul0es are diseased Deaf-mute – Lacking sense of hearing and the inability to speak 
 NOTE: Only deaf-mutes who do not know how to write are declared by law incapable of giving consent. Imbecility – State of a person who while advanced in age has the mental capacity comparable to that of a child between two and seven years of age Prodigality – A spendthri[ or squanderer Civil Interdic7on – An accessory penalty imposed upon an accused who is sentenced to a principal 
 penalty not lower than reclusion temporal. NOTE: The following are the effects of civil interdic0on: a. Depriva0on of parental or marital authority; b. Depriva0on of the right to be the guardian of the person and property of a ward; c. Depriva0on of his property by act inter vivos; and d. Depriva0on of the right to manage one's proper0es (Art. 34, RPC).

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C. Circumstances that Modify or Limit Capacity to Act 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

Insanity Prodigality Age Imbecility Deaf-Mute Family Rela0ons Alienage Trusteeship Penalty Insolvency Absence

D. Birth; Determina7on of Civil Personality The Civil Code provides that birth determines personality, but the conceived child shall be considered born for all purposes that are favorable to it, provided it is born later with the condi0ons specified in Art. 41 (Art. 40, NCC). This provision has been superseded by Art. 5 of P.D. No. 603 (The Child and Youth Welfare Code), which declares that the civil personality of the child shall commence from the 0me of his concep0on, for all purposes favorable to him, subject to the requirements of Art. 41 of the NCC. E.

Acquisi7on of Personality Through Birth

• • •

General Rule: Actual/Permanent Personality – Personality begins at birth, not at concep0on. Excep0on: Presump0ve/Temporary – The law considers the conceived child as born (Conceptus pro natohabetur) NOTE: For there to be presump0ve personality, the foetus must be “born later in accordance with law” and the purpose for which such personality is given must be beneficial to the child.

F.

“Born later in accordance with law”

A foetus with an intra-uterine life of: 1. 2.

Less than 7 months – Must survive for at least 24 hours a[er its complete delivery from the maternal womb At least 7 months – If born alive, it shall be considered born even if it dies within 24 hours a[er complete delivery. 


NOTE: Complete delivery means the cuqng of the umbilical cord. G. Provisional Personality of a Conceived Child A conceived child, although as yet unborn, has a limited and provisional personality. Its personality is provisional because it depends upon the child being born alive later under certain condi0ons. H. Rights of the Conceived Child Since a conceived child has a provisional personality even while inside the mother’s womb, it is en0tled to the following rights: a. Right to support b. To receive dona0ons c. To be acknowledged (Rabuya, 2009) 


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CIVIL LAW Bar Examina0ons 2017

I.

Right to be Acknowledged

A conceived child has the right to be acknowledged even if it is s0ll conceived. It is a universal rule of jurisprudence that a child, upon being conceived, becomes a bearer of legal rights and is capable of being dealt with as a living person. The fact that it is yet unborn is no impediment to the acquisi0on of rights provided it be born later in accordance with law (De Jesus v. Syquia, G.R. No. L-39110, November 28, 1933). J.

Death; Effect on Civil Personality

Death ex0nguishes civil personality. However, the rights and obliga0ons of the deceased are not necessarily ex0nguished by his death. K. Rules to apply in case there is doubt as to who died first It depends on whether the par0es are called to succeed each other. • If successional rights are involved – Art. 43 of the NCC: Survivorship Rule, and Rule 131, Sec. 3(kk): Presump0on of simultaneous deaths between persons called to succeed each other, apply. • If no successional rights are involved – Rule 131, Sec. 3 (jj) of the Rules of Court applies. (Presump0on of survivorship) NOTE: Both are to be applied only in the absence of facts. CASE TITLE

DOCTRINE

Geluz vs CA July 20, 1961

It is unques0onable that the appellant’s act in provoking the abor0on of appellee’s wife, without medical necessity to warrant it, was a criminal and morally reprehensible act, that cannot be to severely condemned; and the consent of the woman or that of her husband does not excuse it. But the immorality or illegality of the act does not jus0fy an award of damage that, under the circumstances on record, have no factual or legal basis.

Quimiguing vs ICAO 34 SCRA 132 (1970)

A conceived child, although as yet unborn, is given by law a provisional personality of its own for all purposes favorable to it, as explicitly provided under ar0cle 40 of the civil code.

C o n 7 n e n t a l S t e e l v s . Montaño G.R. No. 182836 Oct. 13, 2009

Whether or not, a death of a fetus is considered a death of a dependent of the parent. One need not acquire civil personality first before he/she could die. Even a child inside the womb already has life. No less than the Cons0tu0on recognizes the life of the unborn from concep0on, that the State must protect equally with the life of the mother. If the unborn already has life, then the cessa0on thereof even prior to the child being delivered, qualifies as death.

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II. MARRIAGE Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the founda0on of the family and an inviolable social ins0tu0on whose nature, consequences, and incidents are governed by law and not subject to s0pula0on, except that marriage seYlements may fix the property rela0ons during marriage within the limits provided by this Code. Inviolable Social Ins0tu0on: It means that, marriage is an ins0tu0on in which the community is deeply interested. The State has surrounded it with safeguards to maintain its purity, con0nuity and permanence. The security and stability of the State are largely dependent on it. It is in the interest and duty of each member of the community to prevent the bringing about of a condi0on that would shake its founda0on and lead to its destruc0on. The incidents of the status are governed by law, not by will of the par0es (Beso v. Daguman, A.M. No. MTJ-99-1211, January 28, 2000 [ciWng Jimenez v. Republic, G.R. No. L-12790, August 31,1960]). Semper praesumitur pro matrimonio - Always presume marriage. (US vs. Villafuerte and Rabano) The law favors the validity of a marriage because the State is interested in the preserva0on of the family, and the sanc0ty of the family is a maYer of cons0tu0onal concern. As stated in Adong vs Cheong Seng and Perido vs. Perido; “The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdicWon is not only a civil contract, but it is a new relaWon, an insWtuWon in the maintenance of the law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumpWon of evidence special to the case, to be in fact married.” A. Marriage vs. Ordinary Contract MARRIAGE NATURE

• • •

ORDINARY CONTRACT

Special contract Sui generis contract Social ins0tu0on

Merely a contract

Law on Marriage

GOVERNING LAW • RIGHTS OF THE PARTIES TO • STIPULATE

Law on Contracts

GR: Not subject to s0pula0on XPN: Property rela0ons in marriage seYlements Legal capacity is required

The par0es are free to s0pulate subject to certain limita0ons

CAPACITY TO CONTRACT

Minors may contract thru their parents or guardians or in some instances, by themselves

GENDER REQUIREMENT

Contrac0ng par0es must only be two Contrac0ng par0es may be two or more persons of opposite sexes persons regardless of sex

DISSOLUTION BY AGREEMENT

Dissolved only by death or annulment, Can be dissolved by mutual agreement never by mutual agreement among others.

B. Requisites of a Valid Marriage ESSENTIAL REQUISITES 1. 2.

Legal capacity of the contrac0ng par0es who must 1. be a male and a female; 2. Consent freely given in the presence of the 3. solemnizing officer (Art. 2, FC).

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FORMAL REQUISITES Marriage Ceremony Authority of the solemnizing officer Valid marriage License (Art. 3, FC) Page !29 of !46

CIVIL LAW Bar Examina0ons 2017

ESSENTIAL REQUISITES

FORMAL REQUISITES

LEGAL CAPACITY OF THE PARTIES TO MARRY 1. 2. 3.

Age – at least 18 years of age Sex – between male and female Lack of legal impediment to marry

The impediments which may affect legal capacity are those men0oned in Ar0cles 37 and 38 of the Code. CASE TITLE

DOCTRINE

Rep. vs. Orbecido G.R. No. 154380 October 05, 2005

Whether or not, a Filipino spouse of an alien, who is a Filipino at the 0me of marriage, remarry a[er the laYer acquires a foreign divorce that allows her to remarry. The reckoning point is not the ci0zenship of the par0es at the 0me of the celebra0on of the marriage, but their ci0zenship at the 0me a valid divorce is obtained abroad by the alien spouse capacita0ng the laYer to remarry.

Corpuz vs. Sto. Tomas G.R. No. 186571 Aug. 11, 2010 628 SCRA 266

A judgment of divorce is a judicial decree, although a foreign one, affec0ng a person’s legal capacity and status that must be recorded. But while the law requires the entry of the divorce decree in the civil registry, the law and the submission of the decree by themselves do not ipso facto authorize the decree’s registra0on.

C.

Marriage Contract; Best Evidence of Marriage

The best documentary evidence of a marriage is the marriage contract. Although a marriage contract is considered primary evidence of marriage, the failure to present it is not, however, proof that no marriage took place, as other evidence may be presented to prove marriage. (Balogbog vs. Court of Appeals, 269 SCRA 259) CASE TITLE

DOCTRINE

Villanueva vs. CA 198 SCRA 472 (1991)

The best documentary evidence of a marriage is the marriage contract. A marriage contract renders unnecessary the presump0on that a man and a woman depor0ng themselves as husband and wife have entered into a lawful contract of marriage.

People vs. Borromeo 133 SCRA 106, 110 (1984)

The mere fact that no record of the marriage exists in the registry of marriage does not invalidate said marriage, as long as in the celebra0on thereof, all requisites for its validity are present. The forwarding of a copy of the marriage cer0ficate to the registry is not one of said requisites.

Trinidad vs. Court of Appeals Proof of marriage other than the marriage contract may be presented like: G.R. No. 118904 1. tes0mony of a witness to the matrimony April 20, 1998 2. the couple’s public and open cohabita0on as husband and wife a[er the alleged wedlock 3. the birth and bap0smal cer0ficate of children born during such wedlock and 4. the men0on of such nup0al in subsequent documents Cariño v. Cariño G.R. No. 132529 Feb. 02, 2001 351 SCRA 127

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Whether or not the cer0fica0on by the registrar of the non-existence of marriage license is enough to prove non-issuance thereof. The records reveal that the marriage contract of pe00oner and the deceased bears no marriage license number and, as cer0fied by the Local Civil Registrar of San Juan, Metro Manila, their office has no record of such marriage license.

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D. Marriage Ceremony VALID MARRIAGE CEREMONY 1.

VALIDITY OF MARRIAGE BY PROXY

Personal appearance of the contrac0ng par0es 1. before the solemnizing officer; Their personal declara0on that they shall take each 2. other as husband and wife; and In the presence of not less than 2 witnesses of legal age.

If performed in the Philippines – No, it is not allowed, hence the marriage is void. If performed abroad – Whether it is allowed or not depends upon the law of the place where the marriage was celebrated (lex loci celebra0onis).

•

There is no marriage ceremony if what transpired • was a mere private act of signing a marriage contract by the contrac0ng par0es, without the presence of the solemnizing officer (Rabuya, ci0ng Morigo v. People, 422 SCRA 376 [2004])

Philippine laws prohibit marriages by proxy. Since the marriage is performed in the Philippines, Philippine laws shall apply following the principle of lex loci celebra0onis.

•

No par0cular form of ceremony or religious rite for • solemniza0on of the marriage is required by law (Art. 6, FC).

As to marriages between Filipinos - all marriages solemnized outside the Philippines, in accordance with the laws enforced in said country where they are solemnized, and valid there as such, shall also be valid here in the country, except those prohibited under Art. 35 (1), (2), (4), (5), (6), 36, 37 and 38 (Art. 26, FC).

2. 3.

CASE TITLE

DOCTRINE

Morigo vs People 422 SCRA 376 (2004)

Pe00oner and Lucia BarreYe merely signed the marriage contract on their own. The mere act of signing a marriage contract by the contrac0ng par0es without the presence of the solemnizing officer will not result to marriage.

Infante vs. Arenas June 29, 1951

The failure of the solemnizing officer to ask the par0es whether they take each other as husband and wife cannot be regarded as a fatal omission if the par0es nonetheless signed the marriage contract in the presence of the solemnizing officer. A declara0on of word of mouth of what the par0es and already stated in wri0ng would be a mere repe00on, so that its omission should not be regarded as fatal.

E.

Authority of the Solemnizing Officer UNDER ORDINARY CIRCUMSTANCE

1. 2.

3.

4.

Incumbent judiciary member, provided that he acts 1. within his jurisdic0on Priest, rabbi, imam or minister of any church/ religious sect duly authorized – Provided at least one of the par0es belongs to such church or religious 2. sect. Consul general, consul or vice-consul – Provided both par0es are Filipinos and marriage takes place abroad in the country where the consul holds office. Mayors (Arts. 444 and 445 of LGC) – including “Ac0ng Mayor”

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UNDER ARTICULO MORTIS Ship captain or airplane chief – provided the marriage is performed: • During voyage, even during stopovers • Between passengers or crew members Militar y commander of a unit who is a commissioned officer – provided the marriage is performed: • In absence of chaplain; • Within zone of military opera0on; • Between members of the armed forces or civilians

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UNDER ORDINARY CIRCUMSTANCE

UNDER ARTICULO MORTIS

Where a judge solemnized a marriage outside his court’s jurisdic0on, this is a mere irregularity in the formal requisite, which while it may not affect the validity of the marriage, may subject the officia0ng official to administra0ve liability (Navarro v. Domagtoy, A.M. No. MTJ-96- 1088. July 19, 1996, as cited in Rabuya, 2009).

Duty of the solemnizing officer in a marriage in ar0culo mor0s: The solemnizing officer in a marriage in ar0culo mor0s a[er solemnizing such marriage shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths, that the marriage was performed in ar0culo mor0s and that he took the necessary steps to ascertain the ages and rela0onship of the contrac0ng par0es and the absence of a legal impediment to the marriage (Art. 29, FC).

From the 0me of the effec0vity of the Family Code on August 3, 1988 up to the 0me of the effec0vity of the Local Government Code on January 1, 1992, mayors do not have the authority to solemnize marriage.

The failure of the solemnizing officer to execute an affidavit that he solemnized the marriage in ar0culo mor0s will have no effect as to the validity of marriage. The marriage will s0ll be valid. The law permits marriages in ar0culo mor0s without marriage license but it requires the solemnizing officer to make an affidavit and file it.

CASE TITLE

DOCTRINE

Arañes v. Occiano A.M. 02-1390 April 11, 2002 380 SCRA 402

The respondent Judge solemnized marriage without the requisite marriage license. Where a judge solemnizes a marriage outside his court’s jurisdic0on, there is a resultant irregularity in the formal requisite laid down in ar0cle 3, which while it may not affect the validity of marriage, may subject the officia0ng official to administra0ve liability.

OCA vs. J. Necessario et al A.M. NO. 07-1691 April 2, 2013 695 SCRA

The court does not accept the arguments of the respondent judges that the ascertainment of the validity of the marriage license is beyond the scope of the duty of a solemnizing officer especially when there are glaring pieces of evidence that point to the contrary. As correctly observed by the OCA, the presump0on of regularity accorded to a marriage license disappears the moment the marriage documents do not appear regular on its face.

F.

Marriage License Marriage License

PURPOSE

VALIDITY

A marriage license is required in order to no0fy the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar. The requirement and issuance of marriage license is the State’s demonstra0on of its involvement and par0cipa0on in every marriage The license shall be valid in any part of the Philippines for a period of 120 days from the date of issue, and shall be deemed automa0cally cancelled at the expira0on of said period if the contrac0ng par0es have not made use of it. NOTE: If the par0es contracted marriage a[er the lapse of 120 days from the issuance of the marriage license, such marriage shall be considered void for lack of marriage license.

EFFECT OF LACK OF PARENTAL ADVICE WHEN REQUIRED

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In case a party who is required by law to obtain parental advice or undergo marriage counselling fails to do so, the issuance of marriage license is suspended for 3 months from the comple0on of publica0on of the applica0on.

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CIVIL LAW Bar Examina0ons 2017

Marriage License VALIDITY OF THE MARRIAGE CELEBRATED DURING THE SUSPENSION OF THE ISSUANCE OF MARRIAGE LICENSE

The status of the marriage if the par0es get married within the said 3-month period depends: 1. If the par0es did not obtain a marriage license – the marriage shall be void for lack of marriage license. 2. If the par0es were able to obtain a marriage license – the marriage shall be valid without prejudice to the ac0ons that may be taken against the guilty party.

PERSONS AUTHORIZED TO ISSUE MARRIAGE LICENSE

The marriage license is issued by the local civil registrar of the city or municipality where either contrac0ng party habitually resides (Art. 9, FC).

G. Excep7on to Marriage License Requirement

1.

M a r r i a g e s a m o n g Provided they are solemnized in accordance with their customs, rites or prac0ces Muslims or members of (Art. 33, FC). e t h n i c c u l t u r a l communi7es

2.

Marriages in Ar7culo a. mor7s b. c.

3.

Marriages in Remote “Remote Place” - no means of transporta0on to enable the party to personally places (Art. 28, FC) appear before the local civil registrar.

4.

M a r r i a g e s b e t w e e n The requisites are: (5D PAS) par7es Cohabi7ng for at least 5 years (Art. 34, FC) 1. Living together as husband and wife at least 5 years before the marriage. • The 5 year period must be characterized by: ➡ Exclusivity – the partners must live together exclusively, with no other partners, during the whole 5-year period. ➡ Con0nuity – such cohabita0on was unbroken. • NOTE: The period is counted from the date of celebra0on of marriage. It should be the years immediately before the day of the marriage.

/welnicholeverder

In case either or both of the contrac0ng par0es are at the point of death (Art. 27, FC) Solemnized by a ship captain or airplane pilot (Art. 31, FC) Within zones of military opera0on (Art. 32, FC).

2. •

No legal impediment to marry each other During the period of cohabita0on. NOTE: The five-year period of cohabita0on must have been a period , of legal union had it not been for the absence of marriage. 


3.

Fact of absence of legal impediment must be Present at the 0me of the marriage 


4.

Par0es must execute an Affidavit that they are living together as husband and wife for 5 years and that they do not have any impediment to marry 


5.

Solemnizing officer must execute a Sworn statement that he had ascertained the qualifica0ons of the par0es and found no legal impediment to their marriage (Manzano v. Sanches, March 1, 2001).

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5.

Marriages solemnized outside the Philippines w h e r e n o m a r r i a g e license is required by the country where it was solemnized CASE TITLE

DOCTRINE

Alcantara vs. Alcantara G.R. No. 167746 August 28, 2007

Whether or not, a marriage license issued by a municipality or city to a non-resident invalidates the license. Issuance of a marriage license in a city or municipality, not the residence of either of the contrac0ng par0es, and issuance of a marriage license despite the absence of publica0on or prior to the comple0on of the 10-day period for publica0on are considered mere irregulari0es that do not affect the validity of the marriage.

Abbas vs. Abbas G.R. No. 183896 January 30, 2013

The Municipal Civil Registrar of Carmona, Cavite, where the marriage license of Gloria and Syed was allegedly issued, issued a cer0fica0on to the effect that no such marriage license for Gloria and Syed was issued, and that the serial number of the marriage license pertained to another couple, Arlindo Getalado and Myra Mabilangan. The fact that the names in said license do not correspond to those of Gloria and Syed does not overturn the presump0on that the registrar conducted a diligent search of the records of her office.

Cruz vs. Catandes C.A., 39 O.G. NO. 18, p. 324

In a marriage in ar0culo mor0s, while it is advisable that a witness to the marriage should sign the dying party’s signature if the laYer be physically unable to do so, s0ll if upon order of the solemnizing official, another person should so sign, the marriage is s0ll valid. The law as much as possible intends to give legal effect to a marriage. As a maYer of fact, no par0cular form for a marriage celebra0on is prescribed.

Soriano vs. Felix L-9005 June 20, 1958

The affidavit is for the purpose of proving the basis for exemp0on from the marriage license. Even if there is failure on the part of the solemnizing officer to execute the necessary affidavit, such irregularity will not invalidate the marriage for the affidavit is not being required of the par0es.

People vs. Dumpo 62 Phil. 246

No judicial no0ce can be taken of Mohammedan rites and customs for marriage. They must be alleged and proved in court.

Payne vs. Payne 298 F. 970

The commission of perjury or decep0on on the part of the contrac0ng par0es as to their age in order to avoid the statutory requirement of parental consent is not a cause to invalidate the marriage obtained through such marriage license.

Niñal vs. Bayadog 328 SCRA 122 March 14, 2000

In this case, at the 0me of Pepito and respondent’s marriage, it cannot be said that they have lived with each other as husband and wife for at least five years prior to their wedding day because their cohabita0on is not exclusive. The Court ruled that the cohabita0on contemplated under said provisions must be in the “nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract” and “characterized by exclusivity meaning no third party was involved at any0me within the 5 years and con0nuity that is unbroken.

/welnicholeverder

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H. Marriage Ceremony

GENERAL RULE

No prescribed form of a marriage ceremony under the Family Code.

MINIMUM REQUIREMENT

The contrac0ng par0es must personally appear before the solemnizing officer and declare that they take each other as husband and wife in the presence of at least two witnesses of legal age. • •

WITNESSES

At least two (2) witnesses of legal age It can, however, be jus0fiably argued that the absence of two witnesses of legal age in a marriage ceremony is merely an irregularity in the said formal requirement which, according to Ar0cle 4, shall not affect the validity of the marriage but the party or par0es responsible for the irregularity shall be civilly, criminally, and administra0vely liable.

CASE TITLE

DOCTRINE

B a l o g b o g v s . C o u r t o f Appeals G.R. No. 83598 March 7, 1997

In this case, the issue of the absence of the witnesses during the marriage ceremony was not even taken up by the Supreme Court. In other words, to prove the validity of the marriage, it was enough that there was proof that a wedding took place where an exchange of vows can be presumed though the presence of witnesses will not necessarily be presumed. The absence of witnesses, therefore, was not such a serious flaw and would therefore only cons0tute an irregularity.

I.

Marriage Celebrated Outside the Philippines

Marriages contracted outside the Philippines and are performed in accordance with the laws in force in the country where they were solemnized are valid in this country. GENERAL RULE

In case a Filipino contracts a foreign marriage which is null and void in the place where it was solemnized, the same shall also be null and void in the Philippines even if such was valid if celebrated under Philippine laws. Foreign marriages shall not be recognized in the Philippines if: (BIBMAP2)

EXCEPTIONS

a. b. c. d. e. f. g.

Contracted by a na0onal who is Below eighteen (18) years old Incestuous marriages Bigamous or polygamous marriages Contracted through mistake of one party as to the iden0ty of the other Contracted following the annulment or declara0on of nullity of a previous marriage but before par00on When any of the party is psychologically incapacitated when the marriage was celebrated Marriage is void by reason of public policy

•

The existence of the per0nent provisions of the foreign marriage law must be shown to prove foreign marriage. Philippine Courts cannot take judicial no0ce of foreign laws. Like any other facts, they must be alleged and proved.

J.

Divorce

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GENERAL RULE

Divorce is NOT ALLOWED in the Philippines. 1.

EXCEPTIONS

2.

Between two (2) aliens - if valid in their na0onal laws even if marriage was celebrated in the Philippines Between a Filipino and an alien if: a. There is a valid marriage celebrated between a Filipino ci0zen and a foreigner b. A valid divorce according to the na0onal law of the foreigner is obtained abroad and the alien spouse capacita0ng him or her to remarry (Ar0cle 26, par 2)

CASE TITLE San Luis vs. Sagalongos G.R. No. 134029 February 6, 2007

DOCTRINE A Filipino who had been divorced by his alien spouse abroad may validly remarry in the Philippines even if the marriage has been solemnized before the Family Code took effect. The marriage 0e, when severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. It was noted that there is no need to retroac0vely apply Ar0cle 26, paragraph 2 of the Family Code, since there is sufficient jurispruden0al basis allowing the Court to rule in the affirma0ve.

Gilbert Corpuz vs. Sto. Tomas The alien spouse can claim no right under the second paragraph of Ar0cle 26 of the G.R. No. 186571 Family Code as the substan0ve right it establishes is in favor of the Filipino spouse. August 11, 2010 The legisla0ve intent is for the benefit of the Filipino spouse, by clarifying his or her marital status, seYling the doubts created by the divorce decree. Essen0ally, the second paragraph of Ar0cle 26 of the Family Code provided the Filipino spouse a substan0ve right to have his or her marriage to the alien spouse considered as dissolved, capacita0ng him or her to remarry. The capacity of the Filipino spouse to remarry, however, depends on whether the foreign divorce decree capacitated the alien spouse to do so. Addi0onally, an ac0on based on the second paragraph of Ar0cle 26 of the Family Code is not limited to the recogni0on of the foreign divorce decree. If the court finds that the decree capacitated the alien spouse to remarry, the courts can declare that the Filipino spouse is likewise capacitated to contract another marriage. No court in this jurisdic0on, however, can make a similar declara0on for the alien spouse (other than that already established by the decree), whose status and legal capacity are generally governed by his na0onal law. Bayot vs. Bayot G.R. No. 155635 & 163979 November 7, 2008

There must be a showing that the divorce decree gave the foreigner spouse legal capacity to remarry because in some jurisdic0ons, remarriage may be limited or prohibited.

Garcia vs. Recio G.R. No. 138322 October 2, 2002

Without the divorce decree and foreign law as part of the evidence, the Court cannot rule on the issue of whether pe00oner has the personality to file the pe00on for declara0on of nullity of marriage. A[er all, pe00oner may have the personality to file the pe00on but the divorce decree obtained was a limited divorce or a mensa et thoro or the foreign law may restrict remarriage even a[er the divorce decree becomes absolute .

Van Dorn vs. Romillo, Jr.

Public policy and our concept of morality abhor absolute divorce. But owing to the na0onality principles under Art. 15, NCC, only Philippine na0onals are governed by the policy against absolute divorce obtained abroad by an alien which may be recognized in the Philippines, provided, it is valid according to his na0onal law.

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K. Void Marriages (Ar7cle 35) • •

A void marriage is that which is not valid from its incep0on. Only marriages declared void by the legislature should be treated as such. There can be no other void marriages outside of those specifically provided by law. Void marriages can never be ra0fied or cured by any act of any of the contrac0ng par0es.

•

LAaMB- PIPS-18 1. 2. 3. 4.

Absence of any of the essen0al or formal requisites of marriage; Marriages contracted by any party below 18 years of age even with the consent of parents or guardians; Solemnized without License, except those marriages that are exempt from the license requirement; Solemnized by any person not Authorized to perform marriages unless such marriages were contracted with either or both par0es believing in good faith that the solemnizing officer had the legal authority to do so; 5. Contracted through Mistake of one of the contrac0ng par0es as to the iden0ty of the other; 6. Bigamous or polygamous marriages; 7. Subsequent marriages which are void under Art. 53 FC; 8. Marriages contracted by any party, who at the 0me of the celebra0on of the marriage, was Psychologically 
 incapacitated (Art. 36, FC); 9. Incestuous Marriages (Art. 37, FC); 10. Marriages declared void because they are contrary to Public policy (Art. 38, FC). VOID MARRIAGES GENERAL RULE

Divorce is NOT ALLOWED in the Philippines. 1.

EXCEPTIONS

L.

2.

Between two (2) aliens - if valid in their na0onal laws even if marriage was celebrated in the Philippines Between a Filipino and an alien if: a. There is a valid marriage celebrated between a Filipino ci0zen and a foreigner b. A valid divorce according to the na0onal law of the foreigner is obtained abroad and the alien spouse capacita0ng him or her to remarry (Ar0cle 26, par 2)

ABSENCE OF ANY OF THE ESSENTIAL REQUISITES

MARRIAGE MUST BE CONTRACTED BY A MAN AND A WOMAN; SAME SEX MARRIAGE; EFFECT OF SEX CHANGE •

Marriage is a union founded on the dis0nc0on of sex. The law likewise provides that the contrac0ng par0es must be a male and a female. This par0cular requirement appears to be for emphasis purposes only for even in its absence, the phrase “contrac0ng par0es” could not have included within its ambit persons of the same sex. This is evidenced by the fact that the New Family Code as well as the Civil Code are replete with words of heterosexual import such as “husband and wife,” “man and woman,” and “father and mother.” In fact, the very first ar0cle of the Family Code explicitly provides that marriage is a special contract of permanent union between a man and a woman.

/welnicholeverder

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CASE TITLE

DOCTRINE

Silverio vs. Republic G.R. No. 174689 October 19, 2007

In this case, where the pe00oner who had a biological sex change from male to female through sex-reassignment-surgery and where he sought the amendment of his birth cer0ficate to reflect the change in sex as a preliminary step to get married to his partner, the Supreme Court rejected the said pe00on and ruled that the sex determined by visually looking at the genitals of a baby at the 0me of birth is immutable and that there is no law legally recognizing sex reassignment.

Republic vs. Cagandahan G.R. No. 166676 September 12, 2008

In this case, where the respondent was found out to have Congenital Adrenal Hyperplasia (CAH) which is a condi0on where the person afflicted has both male and female characteris0cs and organs and where, through expert evidence, it was shown that the respondent, though gene0cally a female, secreted male hormones and not female hormones, had no breast, and did not have any monthly menstrual period and where the respondent, in his mind and emo0on, felt like a male person and did not want to have surgery, the Supreme Court considered the person as an “intersex individual” and granted the preference of the person to be considered as a male person, thereby allowing the amendment of the birth cer0ficate of the person from female to male. Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong medica0on, to force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in respondent’s development to reveal more fully his male characteris0cs. In the absence of evidence that respondent is an “incompetent” in the absence of evidence to show that classifying respondent as a male will harm other members of society who are equally en0tled to protec0on under the law, the Court affirms as valid and jus0fied the respondent’s posi0on and his personal judgment of being a male. As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a maYer of right but of judicial discre0on, to be exercised in the light of the reasons adduced and the consequences that will follow. The trial court’s grant of respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondent’s change of name merely recognizes his preferred gender, we find merit in respondent’s change of name. Such a change will conform with the change of the entry in his birth cer0ficate from female to male.

M. MARRIAGES CONTRACTED BY ANY PARTY BELOW 18 YEARS OF AGE EVEN WITH THE CONSENT OF PARENTS AND GUARDIANS • •

Marriages contracted where one or both of the par0es are below 18 years of age are void for lack of legal capacity even if the parents consented to such marriage. If the na0onal law of the foreigner recognizes 17 year old persons to be capacitated to marry, then their marriage is valid, otherwise it is void.

/welnicholeverder

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CASE TITLE Teter vs. Teter 101 Ind. 129

DOCTRINE Free consent connotes that the contrac0ng par0es willingly and deliberately entered into the marriage. It signifies that, at the 0me of the marriage ceremony, they were capable of intelligently understanding the nature and consequences of the act. The consent requisite to the marriage rela0on need not, however, be expressed in any special manner, or any par0cular form so long as there is a manifesta0on that the contrac0ng par0es take each other as husband and wife.

N. SOLEMNIZED BY ANY PERSON NOT AUTHORIZED TO PERFORM MARRIAGES • •

General Rule: The marriage is void ab ini0o. Excep0ons: 1. Express - If either or both par0es believed in good faith that the solemnizing officer had the legal authority to do so (Art. 35, FC). 2. Implied - Ar0cle 10 in rela0on to Ar0cle 26 of the Family Code. If the marriage between a foreigner and a Filipino ci0zen abroad solemnized by a Philippine consul assigned in that country is recognized as valid in the host country, such marriage shall be considered as valid in the Philippines

It must be observed that it is not the presence or absence of the solemnizing officer which consJtutes the formal requirement but it is the absence or presence of the authority of such solemnizing officer. Ar0cle 7 also provides the limits of their authority and the elements or requirements for such authority to fully vest on the solemnizer. O. CONTRACTED THROUGH MISTAKE OF ONE OF THE CONTRACTING PARTIES AS TO THE IDENTITY OF THE OTHER •

•

P.

For marriage to be rendered void, the mistake in iden0ty must be with reference to the actual physical iden0ty of other party, not merely a mistake in the name, personal qualifica0ons, character, social standing, etc (Rabuya, 2009). The important thing to be remembered here is that the contrac0ng party absolutely did not intend to marry the other, as the same is not the person he or she actually knew before the marriage.

BIGAMOUS OR POLYGAMOUS MARRIAGES •

• •

Except those allowed under special laws such as the Muslim Code or under Ar0cle 41 of the Family Code, the law prohibits a married man or woman from contrac0ng another bond of union as long as the consort is alive. (U.S. vs. Ibañez, 13 Phil 686) Thus, a subsequent marriage contracted by a wife during the life of a former husband, with any person other than such former husband, is illegal and void from the beginning. (Carratala v. Samson, 43 Phil. 75) It is when a person contracts a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presump0vely dead by means of judgment rendered in the proper proceedings. (ArWcle 349, RPC)

It is important to note, however, that in a bigamous marriage, the first marriage must have been valid. If the first marriage is in itself void and a subsequent marriage is contracted without a prior judicial declara0on of nullity of the first marriage, the subsequent marriage is also void because it violates Ar0cle 40 in rela0on to Ar0cles 52 and 53 of the Family Code. Essen0ally, Ar0cle 40 states that a judicial declara0on of nullity must first be obtained before any of the contrac0ng par0es is to remarry and, in accordance with Ar0cle 52, such judicial declara0on of nullity must be recorded with the local civil registrar also before any subsequent marriage. Non-observance of ArJcle 40 in relaJon to ArJcle 52 shall make the subsequent marriage void pursuant to the express provision of ArJcle 53.

/welnicholeverder

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CASE TITLE

DOCTRINE

Nicdao Cariño vs. Cariño G.R. No. 132529 February 2, 2001

The Supreme Court said that viola0on of Ar0cle 40 make the subsequent marriage void because it is bigamous. The inaccuracy of this ruling is discussed under Ar0cle 40.

In Re: Salvador v. Serafico A.M. 2008-20-SC March 15, 2010

The Supreme Court has consistently held that a judicial declara0on of nullity is required before a valid subsequent marriage can be contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral. Ar0cle 40 of the Family Code expressly requires a judicial declara0on of nullity of marriage.

Mercado vs. Tan GR: 137110 August, 2000

Under Art. 40 of the Family Code, before one can contract a second marriage on the ground of nullity of the first marriage, there must first be a final judgment declaring the first marriage void. If a party fails to secure a judicial declara0on of nullity of the first marriage, he or she runs the risk of being charged with bigamy as the marital bond or vinculum in the first nup0al subsists.

Void Under Ar7cle 53

For persons whose marriages have been annulled or declared null and void to be able to validly marry again, they must undertake the liquida0on, par00on and distribu0on of their proper0es, if any, and, only in proper cases, the delivery of the children’s presump0ve legi0mes and therea[er all these requirements, including the decree of annulment or nullity, should be recorded in the appropriate civil registry and the registries of property. Non-compliance with these requirements will render any subsequent marriage void.

Q. PSYCHOLOGICAL INCAPACITY •

• •

•

The Supreme Court defined psychological incapacity as “no less than a mental (not physical) incapacity that causes a party to be truly incogni0ve of the basic marital covenants that concomitantly must be assumed and discharged by the par0es to the marriage.” While insanity can be a good indicator of psychological incapacity, it is not a pre-requisite for the existence of the ground for nullity under Ar0cle 36. Psychological incapacity, to perform the essen0al marital obliga0ons, must be present at the 0me of the marriage ceremony, but can be manifested later on during the marriage. It is considered a ground to nullify a marriage. Such a marriage cannot be cured by cohabita0on considering that it is void and, therefore, ra0fica0on cannot apply. Requisites of Psychological Incapacity 1. Juridical antecedence – Must be rooted in the history of the party anteda0ng the marriage, although overt manifesta0ons may arise only a[er such marriage. 2. Gravity – Grave enough to bring about the disability of the party to assume the essen0al marital obliga0ons. 3. Permanence or incurability – Must be incurable. If curable, the cure should be beyond the means of the par0es involved. 


•

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GUIDELINES SET BY THE COURT TO AID IN ITS DISPOSITION OF CASES INVOLVING PSYCHOLOGICAL INCAPACITY Basis: Republic vs. CA & Molina 1. 2.

3. 4. 5. 6.

7. 8.

Burden of proof to show the nullity of the marriage belongs to the plain0ff; The root cause of the psychological incapacity must be: a. medically or clinically iden0fied b. alleged in the complaint, c. sufficiently proven by experts and d. clearly explained in the decision. The incapacity must be proven to be exis0ng at “the 0me of the celebra0on” of the marriage. Such incapacity must also be shown to be medically or clinically permanent or incurable. Such illness must be grave enough to bring about the disability of the party to assume the essen0al obliga0ons of marriage. The essen0al marital obliga0ons must be those embraced by Arts. 68 up to 71 of the FC as regards the husband and wife, as well as Arts. 220, 221 and 225 of the same Code in regard to parents and their children. Such noncomplied marital obliga0on(s) must also be stated in the pe00on, proven by evidence and included in the text of the decision. Interpreta0ons given by the Na0onal Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. The trial court must order the prosecu0ng aYorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a cer0fica0on, which will be quoted in the decision, briefly sta0ng therein his reasons for his agreement or opposi0on, as the case may be, to the pe00on

NOTE: In Republic v. Quintero-Hamano, 428 SCRA 735 (2004, the SC held that these guidelines may not be relaxed just because the spouse alleged to be psychologically incapacitated happens to be a foreign na0onal. The norms used for determining psychological incapacity should apply to any person regardless of na0onality because the rules were formulated on the basis of studies of human behavior in general. EACH CASE ON PSYCHOLOGICAL INCAPACITY MUST BE SEEN ON ITS OWN MERIT Basis: Te vs. Te Predictably, however, in resolving subsequent cases, the Court has applied the aforesaid standards, without too much regard for the law’s clear inten0on that each case is to be treated differently, as “courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.” At the risk of being redundant, we reiterate once more the principle that each case must be judged, not on the basis of a priori assump0ons, predilec0ons or generaliza0ons but according to its own facts. And, to repeat for emphasis, courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals. CASE TITLE Perez-Ferraris vs. Ferraris G.R. No. 162368 July 17, 2006

DOCTRINE The malady or mental disposi0on of one or both of the spouses must be such as to seriously and effec0vely prevent them from having a func0onal and normal marital life clearly conducive to bringing up a healthy personal inter-marital rela0onship within the family which is necessary for its growth. It must be a psychological illness afflic0ng a party even before the celebra0on of the marriage.

Chi Ming Tsoi vs. Court of It involves a senseless, protracted, and constant refusal to comply with the essen0al Appeals marital obliga0ons by one or both of the spouses although he, she or they are 78 SCAD 57; 266 SCRA 325 physically capable of performing such obliga0ons.

/welnicholeverder

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CASE TITLE

DOCTRINE

Marcos vs. Marcos G.R. No. 136490 October 19, 2000

Psychological incapacity, as a ground for declaring the nullity of a marriage, may be established by the totality of the evidence presented. There is no requirement, however, that the respondent should be examined by a physician or a psychologist as a condi0on sine qua non for such declara0on.

Republic vs. CA & Molina G.R. No. 108763 February 13, 1997

What is important is the presence of evidence that can adequately establish the party’s psychological condi0on. For indeed, if the totality of evidence presented is enough to sustain a finding a psychological incapacity, then actual medical examina0on of the person concerned need not be resorted to.

Ochosa vs. Alano G.R. No. 167459 January 26, 2012

We are sufficiently convinced, a[er a careful perusal of the evidence presented in this case, that Bona had been, on several occasions with several other men, sexually disloyal to her spouse, Jose. Likewise, we are persuaded that Bona had indeed abandoned Jose. However, we cannot apply the same convic0on to Joses thesis that the totality of Bonas acts cons0tuted psychological incapacity as determined by Ar0cle 36 of the Family Code. There is inadequate credible evidence that her defects were already present at the incep0on of, or prior to, the marriage. In other words, her alleged psychological incapacity did not sa0sfy the jurispruden0al requisite of juridical antecedence. We have stressed 0me and again that Ar0cle 36 of the Family Code is not to be confused with a divorce law that cuts the marital bond at the 0me the causes therefore manifest themselves. It refers to a serious psychological illness afflic0ng a party even before the celebra0on of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the du0es and responsibili0es of the matrimonial bond one is about to assume. These marital obliga0ons are those provided under Ar0cles 68 to 71, 220, 221 and 225 of the Family Code.

Villalon vs. Villalon G.R. No. 167206 November 18, 2005

A man’s tendency to womanize, unless shown to be due to causes of psychological nature that is grave, permanent, and incurable, cannot be equated to psychological incapacity as ground to nullify a marriage. If his marital infidelity does not appear to be symptoma0c of a grave psychological disorder which rendered him incapable of performing his spousal obliga0ons, then it does not cons0tute psychological incapacity. Sexual infidelity, by itself, is not sufficient proof that one is suffering from psychological incapacity. It must be shown that the acts of unfaithfulness are manifesta0ons of a disordered personality, which make pe00oner completely unable to discharge the essen0al obliga0ons of marriage.

Kalaw vs. Fernandez G.R. No. 166357 January 14, 2015

The frequency of the respondent’s mahjong playing should not have delimited the Court’s determina0on of the presence or absence of psychological incapacity. Instead, the determinant should be her obvious failure to fully appreciate the du0es and responsibili0es of parenthood at the 0me she made her marital vows. The fact that the respondent brought her children with her to her mahjong sessions did not only point to her neglect of parental du0es, but also manifested her tendency to expose her children to the culture of gambling on every occasion of her mahjong sessions was a very grave and serious act of subordina0ng their needs for paren0ng to the gra0fica0on of her own personal and escapist desires. She revealed her wanton disregard for her children’s moral and mental development. This disregard violated her duty as a parent to safeguard and protect her children, hence, she could be adjudged as suffering from psychological incapacity.

/welnicholeverder

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CASE TITLE

DOCTRINE

Bier vs. Bier, G.R. No. 173294 February 27, 2008

Mere isolated idiosyncrasies of a spouse are not of themselves manifesta0ons of psychological incapacity to perform the essen0al marital obliga0ons. The manifesta0ons of psychological incapacity must be aYributed to a psychological illness and not merely physical illness.

Aspillaga vs. Aspillaga G.R. No. 170925 October 26, 2009

Mere incompa0bility and irreconcilable differences are not enough.

Azcueta vs. Azcueta G.R. No. 180660 May 26, 2009

Nevertheless, the tes0mony of an expert witness, like a psychiatrist or psychologist, if credible and if consistent with the totality of the evidence, which is also credible, must be given great weight.

Antonio vs. Reyes G.R. No. 155880 March 10, 2006

The Supreme Court even adhered to the medical and clinical findings of the psychiatrist and psychologist who did not personally examine the subject but who were given reliable data about the respondent and read the per0nent court records in coming up with a more reliable assessment that the respondent was a pathological liar, as against the faulty clinical and medical findings of the psychiatrist of the respondent who examined the respondent and claimed that the respondent was not suffering from psychological incapacity. The mere fact therefore that a psychiatrist personally examined the subject person is not an assurance that his or her findings would be sustained. BAR QUESTIONS AND SUGGESTED ANSWERS

1.

Art. 36 of the FC provides that a marriage contracted by any party who, at the 7me of the celebra7on, was psychologically incapacitated to comply with the essen7al marital obliga7ons of marriage, shall be void. Choose the spouse listed below who is psychologically incapacitated. a. Nagger b. Gay or Lesbian c. Congenital sexual pervert d. Gambler e. Alcoholic (2006 Bar Ques7on) 


SUGGESTED ANSWER: B and C. To be sure, the existence and concealment of these condi0ons at the incep0on of marriage renders the marriage contract voidable (Art 46, FC). They may serve as indicia of psychological incapacity, depending on the degree and severity of the disorder (Santos v. CA, G.R. No. 112019, January 4, 1995). Hence, if the condi0on of homosexuality, lesbianism or sexual perversion, exis0ng at the incep0on of the marriage, is of such a degree as to prevent any form of sexual in0macy, any of them may qualify as a ground for psychological incapacity. The law provides that the husband and wife are obliged to live together, observe mutual love, respect and fidelity (Art. 68, FC). The mandate is actually the spontaneous, mutual affec0on between the spouses in the natural order it is sexual in0macy which brings the spouses wholeness and oneness (Chi Ming Tsoi v. CA, G.R. No. 119190, January 16, 1997). ALTERNATIVE ANSWERS: •

None of them are necessarily psychologically incapacitated. Being a nagger, etc., are at best only physical manifesta0ons indica0ve of psychological incapacity. More than just showing the manifesta0ons of incapacity, the pe00oner must show that the respondent is incapacitated to comply with the essen0al marital obliga0ons of marriage and that it is also essen0al that he must be shown to be incapable of doing

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•

so due to some psychological, not physical illness (Republic v. Quintero-Hamano, G.R. No. 149498, May 20, 2004). A congenital sexual pervert may be psychologically incapacitated if his perversion incapacitates him from discharging his marital obliga7ons; for instance, if his perversion is of such a nature as to preclude any normal sexual ac0vity with his spouse.

R. INCESTUOUS MARRIAGES •

Marriages that are considered as incestuous a. Between ascendants and descendants of any degree; b. Between brothers and sisters whether of the full or half blood (Art. 37, FC). 
 NOTE: Regardless of whether the rela0onship between the par0es is legi0mate or illegi0mate. CASE TITLE

DOCTRINE

Gould vs. Gould Incestuous marriages have been universally condemned as grossly indecent, 78 Conn. 242, 61 A 604, cited immoral, and inimical to the purity and happiness of the family and the welfare of in 35 Am. Jur. 266 future genera0ons. Various reasons have been assigned why incestuous marriages should be prohibited, especially those between persons closely related by consanguinity. In the first place, they are abhorrent to the nature, not only of civilized men, but of barbarous and semi-civilized peoples and, in the second place, tend to the confusion of rights and du0es incident to family rela0ons. S.

CONTRARY TO PUBLIC POLICY

It is the policy of the state to foster a normal, peaceful, and wholesome integral nuclear family unit which would cons0tute the very founda0on of society. For the state, therefore, the marriages described in Ar0cle 38 will not serve the fundamental objec0ve of nurturing a stable family unit that can effec0vely be the founda0on of society. Following the general rule that only those declared by law as a void marriage should be treated as such, the enumera0on in Ar0cle 38 is exclusive. a.

Marriages between: • Collateral blood rela0ves (legi0mate or Illegi0mate) up to the 4th civil degree; • Step-parents & step-children; • Parents-in-law & children-in-law; • Adop0ng parent & the adopted child; • Surviving spouse of the adop0ng parent & the adopted child; • Surviving spouse of the adopted child & the adopter; • Adopted child & legi0mate child of the adopter; • Adopted children of the same adopter; • Par0es where one, with the inten0on to marry the other, kills the laYer’s spouse, or his/her spouse (Art. 38, FC). 
 NOTE: The list is exclusive. If not falling within this enumera0on, the marriage shall be valid. Such as marriages between: • Adopted and Illegi0mate child of the adopter • Step brother and step sister • Brother-in-law and sister-in-law • Par0es who have been guilty of adultery or concubinage

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T.

SUBSEQUENT MARRIAGE

1. WHEN ALLOWED 2.

Marriage between a Filipino and a foreigner and procurement by the alien spouse of a valid divorce decree abroad, capacita0ng him/her to remarry. Terminable bigamous marriages (Art. 41).

Before the celebra0on of the subsequent marriage: (ABD) REQUISITES OF 1. VALIDITY UNDER ARTICLE 41 2. 3.

The Absent spouse had been absent for 4 consecu0ve years (ordinary absence) or 2 consecu0ve years (extra-ordinary absence); The present spouse has a well-founded Belief that the absent spouse is already dead; There is judicial Declara0on of presump0ve death in a summary proceeding.

1. REQUISITES FOR ISSUANCE OF JUDICIAL 2. DECLARATION OF 3. PRESUMPTIVE 4. DEATH

That the absent spouse has been missing for four consecu0ve years, or two consecu0ve years if the disappearance occurred where there is danger of death under the circumstances laid down in Ar0cle 391 of the New Civil Code That the present spouse wishes to remarry That the present spouse has well-founded belief that the absentee is dead That the present spouse files a summary proceeding for the declara0on of presump0ve death of the absentee (Republic of the Philippines vs. Nolasco G.R. 94053, 1993)

GR: The order of the trial court gran0ng the pe00on for judicial declara0on of presump0ve death under Ar0cle 41 of the Family Code is immediately final and executory by the express provision of Ar0cle 247 of the Family Code. FINALITY OF PRESUMPTIVE DEATH

EFFECT IF BOTH PARTIES IN SUBSEQUENT MARRIAGE UNDER ART 41 ACTED IN BAD FAITH

EXCEPTION: Under Ar0cle 41 of the Family Code, the losing party in a summary proceeding for the declara0on of presump0ve death may file a pe00on for cer0orari with the CA on the ground that, in rendering judgment thereon, the trial court commiYed grave abuse of discre0on amoun0ng to lack of jurisdic0on. From the decision of the CA, the aggrieved party may elevate the maYer to this Court via a pe00on for review on cer0orari under Rule 45 of the Rules of Court. 1. 2. 3. 4.

The subsequent marriage is void ab ini0o All dona0ons propter nup0as made by one in favour of the other are revoked by opera0on of law All testamentary disposi0ons made by one in favour of the other are revoked by opera0on of law The par0es shall be liable for the crime of bigamy.

CASE TITLE

DOCTRINE

Eduardo Manuel vs. People G.R. No. 165842 November 29, 2005

The requirement for a judgment of the presump0ve death of the absent spouse is for the benefit of the spouse present because she could be charged and convicted of bigamy if the defense of good faith based on mere tes0mony is found incredible. It is also for the protec0on of the State. The law regula0ng civil marriages are necessary to serve the interest, safety, good order, comfort or general welfare of the community and the par0es can waive nothing essen0al to the validity of the proceedings. A civil marriage anchors an ordered society by encouraging stable rela0onships over transient ones; it enhances the welfare of the community.

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U. JUDICIAL DECLARATION OF NULLITY OF MARRIAGE

NECESSITY OF THE JUDICIAL DECLARATION OF NULLITY OF MARRIAGE

The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void (Art. 40, FC). There has yet to be a judgment declaring it void, for it is solely on the basis of that final judgment that a party can remarry. The 0me for filing an ac0on or defense for the declara0on of absolute nullity of marriage, whether in a direct or collateral manner, does not prescribe (Art. 39, FC).

PRESCRIPTIVE PERIOD Any of the par0es in a void marriage can file an ac0on for the declara0on of nullity of marriage even though such party is the wrongdoer. EFFECT OF DEATH OF A 1. PARTY IN A PETITION FOR DECLARATION OF NULLITY 2. OF MARRIAGE

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Before the entry of judgment – The court shall order the case closed and terminated without prejudice to the seYlement of estate in proper proceedings. A[er the entry of judgment – The decision shall be binding upon the par0es and their successors-in- interest in the seYlement of the estate.

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