Conflict of Laws- REVIEWER
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REVIEWER IN CONFLICT OF LAWS Cheryl M. Navarro 2007-0026 Arellano University School of Law DEFINITION OF TERMS Conflict of Laws - or Private International Law - that part of the municipal law of a state which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not they should apply foreign law or foreign laws. Public International Law - the body of legal rules which apply between sovereign states and such other entities as have been granted international personalities. DISTINCTIONS BETWEEN CONFLICT OF LAWS AND PUBLIC INTERNATIONAL LAW CONFLICT OF LAW 1.) MUNICIPAL 2.) PRIVATE INDIVIDUALS
BASIS Nature Persons Involved
RESORT TO MUNICIPAL TRIBUNALS
LAW OF NATIONS INTERNATIONAL SOVEREIGN STATES & ENTITIES POSSESSED OF AN INTERNATIONAL PERSONALITY GENERALLY AFFECTING PUBLIC INTEREST; THOSE WHICH IN GENERAL ARE OF INTEREST TO SOVEREIGN STATES MAY BE FORCIBLE OR PEACEFUL Forcible: 1. severance of diplomatic relations, 2. retorsions,
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3. 4. 5. 6.
reprisals, embargo, boycott, nonintercourse, 7. pacific blockades, 8. collective measures under the UN Charter, and 9. WAR Peaceful: 1.diplomatic negotiation, 2.tender & exercise of good offices, 3.mediation, 4.inquiry and conciliation, 5.arbitration, 6.judicial settlement by the ICJ, 7.reference to regional agencies, 8.reference to the UN Theory of Comity - we apply the foreign law because of its CONVENIENCE, and finally, because WE WANT TO GIVE PROTECTION to our citizens, residents and transients in our land. Theory of Vested Rights - we SEEK TO ENFORCE not the foreign law itself but THE RIGHTS THAT HAVE BEEN VESTED under such foreign laws. Theory of Local Law - We apply foreign law not because it is foreign, but BECAUSE OUR OWN LAWS, by applying similar rules, REQUIRE US TO DO SO;
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It is as if the foreign law has become PART AND PARCEL of our own local law.
Theory of Harmony of Laws - In many cases we have to apply the foreign laws so that WHEREVER A CASE IS DECIDED, i.e., irrespective of the forum, THE SOLUTION SHOULD BE APPROXIMATELY THE SAME - thus, identical or similar solutions anywhere and everywhere. When the goal is realized, there will be a harmony of laws. Theory of Justice - the PURPOSE OF ALL LAWS, including Conflict of Laws, is the DISPENSING OF JUSTICE; - if this can be attained in many cases by applying the proper foreign law, we must do so. Comity - the RECOGNITION that one nation allows within its territory, to the LEGISLATIVE, EXECUTIVE OR JUDICIAL ACTS OF ANOTHER NATION, having due regard both to INTERNATIONAL DUTY and CONVENIENCE, and the RIGHTS OF ITS OWN CITIZENS, or other persons who are under the protection of its laws. Characterization/ DOCTRINE OF QUALIFICATION - the process of determining under what category a certain set of facts or rules fall - the process of deciding whether or not the facts relate to the kind of question specified in a conflicts rule. - Also called the doctrine of qualification - The ultimate purpose is to enable the forum to SELECT THE PROPER LAW. Status - the place of an individual in society, and - consists of personal qualities and relationships, more or less permanent, with which the state and the community are concerned. - Among the things which make up the status of a person are the ff.: his being married or unmarried, widowed or divorced, his being a legitimate or an illegitimate child of his parents, his being a minor or his having reached the age of majority; his capacity to enter into various transactions. 3 | Page
Capacity - merely a part of status, and the sum total of his rights and obligations. - The Civil Code distinguishes 2 kinds of capacity: CAPACITY TO ACT and JURIDICAL CAPACITY. - Capacity to act or ACTIVE CAPACITY is the power to do acts with legal effects - Juridical capacity or PASSIVE CAPACITY is the fitness to be the subject of legal relations Personal Law - The law that attaches to an individual, wherever he may go- a law that generally governs his status, his capacity, his family relations, and the consequences of his actuations. - This may be the NATIONAL LAW of his DOMICILIARY LAW or the LAW OF THE SITUS depending upon the theory applied and enforced in the forum. Nationality Theory - the theory by virtue of which the status and capacity of an individual are generally governed by the law of his nationality. Naturalization - a judicial process of acquiring citizenship where formalities of the law have to be complied with, including a JUDICIAL HEARING and APPROVAL OF THE PETITION - it may also mean the acquisition of another citizenship by such acts as marriage to a citizen, and the exercise of the option to elect a particular citizenship. Domiciliary Theory - the theory that in general, the status, condition, rights and obligations, and capacity (SCROC) of a person should be governed by the law of his domicile. Situs or Eclectic Theory - in general, the capacity, legal condition, or status (C.LC.S) of an individual should be governed by the law of the place where an important element of the problem occurs or situated. - If the participation of the individual concerned is active as when he does the act voluntarily, the governing law is the 4 | Page
law of the actual situs of the place of the transaction or event. If the participation is passive, as when the effects of the act are set forth in the law, the governing law is the law of the legal situs or the legal situs of an individual is supposed to be his domicile.
RENVOI - literally means REFERRING BACK; - the problem arises when there is doubt as to whether a reference to a foreign law is a reference to the internal law of said foreign law, or is a reference to the whole of the foreign law, including its conflicts rules. - renvoi (from the French, meaning "send back" or "to return unopened") is a subset of the choice of law rules and it may be applied whenever a forum court is directed to consider the law of another state. DOUBLE RENVOI - occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi - Double Renvoi or the Foreign Courts Doctrine which will also ensure parity of result so long as no other relevant law is using it. In this scenario, the forum court considers that it is sitting as the foreign court and will decide the matter as the foreign court would. Transmission - the process of applying the law of a foreign state through the law of a second foreign state. Marriage as a contract - ARTICLE 1 FAMILY CODE: 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 foundation of the family and an inviolable social institution whose nature, consequences and incidents are governed by law and not subject to stipulations except that marriage settlements may fix the property relations during the marriage within the limits provided by the Family Code. - marriage as any other contract has two kinds of requisites: the formal and the essential requisites. Marriage as a Status - carries with it implications in two fields: 5 | Page
1. the realm of personal rights and obligations of the spouses; and 2. the realm of property relations. Annulment - the remedy to a voidable marriage, i.e., a valid marriage until annulled. Absolute Divorce - a mode of dissolving the marital ties granted for causes subsequent to the marriage ceremony. There is no Divorce in the Philippines. Legal Separation - or divorce a mensa et thoro - or separation from bed and board - or relative divorce - does not sever the marriage bonds - Reconciliation prevents a suit for legal separation or rescinds one already granted. - Can be granted for causes subsequent to the celebration of the marriage - The grounds are those given by the national law of the parties concerned inasmuch as this is purely a question of status, the validity of the marriage being presumed or admitted. Some Grounds for Legal Separation: Grounds for legal separation National law of the parties a) Adultery a) if of the same or common nationality- the common national law governs b) Concubinage b) if of different nationalitiesthe grounds given by BOTH national laws should all be considered proper grounds c) attempt by one spouse NOTE: Residence requirement against the life of the other if suit is brought in the Philippines: a) if cause occurred in the PhilippinesNO RESIDENCE REQUIREMENT b) if cause 6 | Page
occurred outside the Philippines- ONE YEAR RESIDENCE is required in our country LEGAL SEPARATION DISTINGUISHED FROM ANNULMENT OF MARRIAGE LEGAL SEPARATION Can be granted from causes arising after the celebration of marriage Grounds are given by the national parties concerned Presumes the validity of marriage
ANNULMENT Can be granted for causes existing prior to or at the time the wedding takes place Grounds are given by the lex loci celebrationis Questions the very existence of the status
GROUNDS FOR LEGAL SEPARATION: 1. repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner 2. physical violence or moral pressure to compel the petitioner to change religious or political affiliation 3. attempt of respondent to corrupt or induce the petitioner, a common child or a child of the petitioner , to engage in prostitution, or connivance in such corruption or inducement 4. final judgment sentencing the respondent to imprisonment or more than 6 years, even if pardoned 5. drug addiction or habitual alcoholism of the respondent 6. lesbianism or homosexuality of the respondent 7. contracting by the respondent of a subsequent bigamous marriage, whether in the RP or abroad 8. sexual infidelity (adultery or concubinage) or perversion 9. attempt by the respondent against the life of the petitioner 10. abandonment of petitioner by respondent w/o justifiable cause for more than one year. Notes: • Mere preponderance of evidence will suffice to prove the existence of any of the grounds, although in no.4, previous 7 | Page
criminal conviction is essential in view of the necessity of a “final judgment”. • Abandonment as used herein is synonymous to criminal desertion, i.e., a husband’s or wife’s abandonment or willful failure without just cause to provide for the care, protection or support of the spouse who is in ill health or necessitous circumstances. This includes both the INTENTION to ABANDON and the EXTERNAL ACT by which the intention is carried into effect. Paternity (or maternity) - the civil status of the father (or mother) with respect to the child begotten by him (or her). Filiation - the status of the child in relation to the father or mother. Parental Affection - the love of the parents for the child Filial Affection - the love of the child for the parents Legitimation - a remedy or process by means of which those who in fact were not born in wedlock, and should therefore be ordinarily considered illegitimate children, are, by fiction and upon compliance with certain requirements, regarded by the law as legitimate, it being supposed that they were born when their parents were already validly married. - The requisites for legitimation are those prescribed by the national law of the father. The following constitute the internal requisites for the legitimation of an illegitimate child: 1) The child must be conceived and born outside wedlock of parents who at the time of the conception were disqualified by any impediment to marry each other. 2) There must be subsequent valid marriage When we mention the relationship between the child and the parents, we inferentially include also the following matters:
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a) b) c) d)
presumptions of legitimacy and illegitimacy rights and obligations of parents and children parental authority reciprocal support
Adoption - the process of making a child, whether related or not to the adopter, possess in general the rights accorded to a legitimate child. CONFLICTS RULES ON ADOPTION 1) Whether or not the status of adoption has been created depends on the national law of the adopter. 2) If the adoption takes place in the Philippines, our country’s procedural requisites must be complied with in accordance with the theory of lex fori in procedural matter. 3) Adoption cannot be allowed without judicial approval. 4) The following are not allowed to adopt: -
The GUARDIAN WITH RESPECT TO THE WARD prior to the approval of the final accounts rendered upon the termination of their guardianship relation; Any person who has been CONVICTED OF A CRIME INVOLVING MORAL TURPITUDE; An ALIEN except:
a) a former Filipino citizen who seeks to adopt a relative by consanguinity b) one who seeks to adopt the legitimate child of his/her Filipino spouse; or c) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative by consanguinity of the latter. Note: An alien with whose government of the RP has no diplomatic relations may not be adopted. Adoption of a foreigner does not grant said foreigner Philippine citizenship. Doctrine of Immutability of Status
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theory that the STATUS OF A CHILD- HIS LEGITIMACYIS NOT AFFECTED BY ANY SUBSEQUENT CHANGE IN THE NATIONALITY OF THE PARENTS. However, the national law of the parents will be changed should the parents effect a change of nationality: the rights and obligations of parents and child will now be determined by the new national law.
Example: A Filipino illegitimate child who becomes a legitimated child of his Filipino parents by virtue of recognition by both parents and their subsequent valid marriage, continues to be a legitimate child even if the parents should subsequently embrace another nationality. The parental and filial rights and obligations will now be governed the NEW nationality, but the child is considered still a legitimated child, despite any contrary rule under the new nationality. Moreover, the new rights and obligations will be effective only from the moment the new nationality is embraced, not before. Guardianship - there are generally 3* kinds of guardians 1. Guardians over the Person*- appointed generally by the courts where the ward is domiciled. Their powers are coextensive with the authority of the appointing court. Hence, a guardian as such, is not permitted to sue in other jurisdictions unless his guardianship is also recognized in such foreign courts. However, he may litigate in his own individual or private capacity. 2. Guardians over the Property* - appointed by the court where the property of the ward may be found; their powers are fixed by the appointing court, and cannot have extraterritorial application. Should the ward have properties in foreign states, ancillary guardianship proceedings are imperative. 3. General Guardians* (over both the person and the property of the wards). Can generally be appointed only by the court of the country where the ward is domiciled and where the properties are located. 10 | P a g e
Powers are coextensive with those of the court that designated them. 4. Domiciliary Guardians (appointed by the courts of the domicile of the wards) 5. Ancillary Guardians (those appointed elsewhere) Real Property - part of the country where it is located. - Its immovability makes it logical that it shall be subject to the laws of the states where it is found (lex situs/lex rei sitae) Personal Property - movable property - governed by the law of the owner (MOBILIA SEQUUNTUR PERSONAM) - may be tangible or intangible - TANGIBLES- Choses in possession - INTANGIBLES- Choses in action (such as shares of stock, franchises, and copyrights) REAL AND PERSONAL PROPERTIES FACTUAL SITUATION
1) Real prop erty extrinsic and intrinsic validity of
alienations, transfers, mortgages, capacity of parties, interpretation of documents, effects of ownership, co-ownership, accession,
usufruct, lease, easement, police power, eminent domain, taxation, quieting of title, registration and prescription
Exceptions: a) successional rights b) capacity to succeed c) contracts involving real property but which do not deal with the title thereto 11 | P a g e
POINT OF CONTACT Lex rei sitae (Art. 16, NCC)
national law of the decedent - national law of the decedent - lex loci voluntatis/ lex loci intentionis - the principal contract (usu.
d) contracts where the real property is given as security
Tangible Personal Property a) in general
Loan) is governed by the proper law of the contract (lex loci voluntatis/ lex loci intentionis note: the mortgage itself, however, is governed by the lex rei sitae. There is a possibility that the principal contract is valid but the mortgage is void; or it may be the other way around. If the principal contract is void, the mortgage would also be void (for lack of proper cause or consideration0, although by itself, the mortgage could have been valid.
EXCEPTIONS: SAME AS THOSE FOR REAL PROPERTY
b) means of transportation -
c) thing in transitu (these things have a changing status because they move) - loss, destruction, deterioration - validity and effect of the seizure of the goods -
disposition of alienation of the goods
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n) LEX REI SITAE Exceptions: same as those for real property except that in example concerning the mortgage the same must be changed to a pledge of personal property.
law of the flag (or in some cases of the place of registry)
law of the depot or resting place
law of the destination
locus regit actum (where seized) bec. Said place is
Intangible personal property a) recovery of debts or involuntary assignment of debts (garnishment) b) voluntary assignment of debts
c) taxation of debts d) administration of debts
e) negotiability or nonnegotiability of an instrument f) validity of transfer, delivery or negotiation of the instrument
their temporary situs lex loci voluntatis/lex loci intentionis
a) where the debtor may be effectively served with summons (usu. The domicile) b) lex loci voluntatis/ lex loci intentionis (proper law of the contract) other theories: 1) NATIONAL LAW OF THE CREDITOR OR DEBTOR 2) DOMICILE OF THE DEBTOR OR THE CREDITOR 3) LEX LOCI CELEBRATIONIS 4) LEX LOCI SOLUTIONIS c) domicile of the creditor d) lex situs of assets of the debtor (for these assets can be held liable for the payment of the debts) e) the right embodied in the instrument
g) effect on a corporation of the sale corporate shares
f) in general, situs of the instrument at the time of transfer, delivery or negotiation g) law of the place of incorporation
h) effect between the parties of the sale of corporate shares
h) lex loci voluntatis/lex loci intentionis
i) taxation on the 13 | P a g e
dividends of corporate shares j) taxation on the income of the sale corporate shares k) franchises l) goodwill of a business and taxation thereon m)patents, copyrights, trademarks, trade names
i) law of the place of incorporation j) law of the place where the sale was consummated k) law of the place that granted them l) law of the place where the business is carried on m)in the absence of a treaty, they are protected only by the state that granted them. Note: foreigners may sue for infringement of trademarks and tradenames in the RP only if Filipinos are granted reciprocal concessions in the state of the foreigners.
Chose - a thing, an article of personal property - a chattel personal, and is either IN ACTION OR IN POSSESSION Chose in Action (Intangible Personal Property) - a thing in action - the right of bringing an action or - right to recover a debt or money Chose in action means any of the following: 1) Right of proceeding in a court of law to procure payment of sum of money, or right to recover a personal chattel or a sum of money by action; 2) A personal right not reduced into possession, but recoverable by a suit at law; 14 | P a g e
3) A right to personal things of which the owner has the possession, but merely a right of action for their possession; 4) Includes personal chattels which are not in possession, and all property in action which depends entirely on contracts express or implied; 5) A right to receive or recover a debt, demand, or damages on a cause of action ex-contractu or for a tort or omission of a duty. Chose in Possession (Tangible Personal Property) - Personal thing of which one has possession Goodwill - the PATRONAGE of any established trade or business - the BENEFIT acquired by an establishment BEYOND the mere value of the capital stocks, funds, or property employed therein IN CONSEQUENCE OF THE GENERAL PUBLIC’S PATRONAGE AND ENCOURAGEMENT which it receives from its customers. Trademark - the name or symbol of goods made or manufactured. Trade name - the name or symbol of a store or business place Service Mark - the name or symbol of services rendered. Copyright - the right of literary property as recognized and sanctioned by positive law. Will - an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. Succession - a mode of acquisition by virtue of which the property, rights and obligations, to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. 15 | P a g e
Theories on the Proper Law for the Transmission of Successional Rights 1) Unitary or Single System- one law governs the transmission of both real and personal property 2) Split or Scission System- one law governs real property while another determines successional rights to personal property. WILLS, SUCCESSION, AND ADMINISTRATION FACTUAL SITUATION 1) Extrinsic Validity of Wills a) made by an alien abroad b) made by a Filipino abroad c) made by an alien in the RP 2) Extrinsic validity of JOINT WILLS (made in the same instrument) a) made by Filipinos abroad b) made by aliens abroad
4) 5) a)
c) made by aliens in the Philippines Intrinsic Validity of wills (including order of succession, amount of successional rights, and intrinsic validity of the provisions of the will) Capacity to succeed Revocation of wills if done in RP
if done outside RP 16 | P a g e
POINT OF CONTACT a) lex nationalii/ lex domicilii/ RP law/ lex loci celebrationis b) lex nationalii/ lex loci celebrationis c) lex nationalii/ lex loci celebrationis
a) lex nationalii (void even if valid where made) b) valid if accdg. Lex nationalii/ lex domicilii/ lex loci celebrationis c) lex loci celebrationis therefore VOID Lex nationalii of the deceasedregardless of the location and nature of the property
Lex nationalii of the deceased a) lex loci actus (of the revocation) b)
by a non-domiciliary
by a domiciliary
6) probate of wills made abroad a) if not yet probated b) if already probated abroad
7) Executors and administrators
- lex loci celebrationis of the WILL/ lex loci domicilii - lex domicilii/ lex loci actus of REVOCATION a) lex fori b) lex fori (must also be probated in the RP; but enforcement of the foreign judgment on probate is enough)
a) where appointed
a) if domiciled- where domiciled at death
if not domiciled- where the assets are found b) co-extensive with the qualifying or the appointing court note: these rules also apply to principal, domiciliary or ancilliary administrators and receivers even in nonsuccession cases.
Holographic Wills - a will which is entirely written, dated and signed by the hand of the testator himself. - Subject to no other form and need not be witnessed. - The disposition of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. Decedent and Testator - decedent is the general term applied to the person whose property is transmitted through succession, whether or not he left a will, if he left a will, he is also called a testator. Testamentary Capacity 17 | P a g e
the capacity to comprehend the nature of transaction in which the testator is engaged at the time, to recollect the property to be disposed of and the persons who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument will distribute his property among the objects of his bounty.
Attestation Clause - the clause wherein the witnesses certify that the instrument has been executed before them, and the manner of the execution of the same. Estate - the interest which a person has in lands, or any other subject of property Obligation - a juridical necessity to, to do or not to do. - A juridical relation whereby a person (creditor) may demand from another (debtor) the observance of a determined conduct and in case of breach, may demand satisfaction from the assets of the latter. Contract - a meeting of the minds between 2 persons whereby one binds himself, with respect to the other, to give something or to render some service. - An agreement which creates an obligation - Agreement upon sufficient consideration, to do or not to do a particular thing. - May be express or implied. Express Contract - the agreement is formal and stated verbally or in writing - the terms of the agreement are declared by the parties in writing or verbally at the time it is entered into Implied Contract - the agreement in fact is presumed or inferred from the acts of the parties - may also arise from mere consent - where one party rendered services to another, and these services were accepted by the latter, in the absence of proof that the services were rendered gratuitously, an obligation results to pay the reasonable worth of the 18 | P a g e
services rendered upon the implied contract of hiring, under the principle of facio ut des, i.e., I do that you may give. Tort - a legal wrong committed upon another’s person or property, independent of a contract Crime - an act or omission punishable by law Felony - transgression against the Revised Penal Code Offense - transgression against a special law Infraction - transgression against a local or municipal or local ordinance Corporation - an artificial being created by operation of law, having the right of succession and the powers, attributes, and properties expressly authorized by law or incident to its existence. Natural Moral Law - rule of human conduct implanted by God in our nature and in our conscience, urging us to do whatever is right and avoid whatever is evil. Special Laws - regulate, for instance, the treatment of foreign insurance companies, the reciprocal privileges in the matters of patents, the requisites before an alien may obtain a copyright, the conditions under which alien retail trade may still continue, and the grant of incentives to foreign investors. LEX SITUS - law of the place where the property is situated - governs almost everything that concerns real property: formalities for their alienation, the capacity to encumber or otherwise dispose of them, and so forth. 19 | P a g e
In the Philippines, this rule applies to both real and personal property.
LEX LOCI CELEBRATIONIS - law of the place of the celebration or execution - governs generally all transactions insofar as FORMALITIES OR SOLEMNITIES are concerned. - One important exception to this rule is whenever property is involved, in which a case it is the lex situs that should control. Criminal Law Principle of Territoriality - the place or territory where a crime has been committed has jurisdiction to try the offense that has been committed. Criminal Law Principle of Generality - criminal laws of a country bind both the citizens and the aliens who are in the said country or territory. - “Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations.” - Aliens come under our territorial jurisdiction because while they are in our country, they owe some sort of allegiance, even if it be temporary. JURISDICTION - from the Latin “jus dicere”, i.e., the right to speak. - The authority of a tribunal to hear and decide a case and also the power to enforce any judgment it may render thereon in foreign states, subject to the rights of said states. JURISDICTION OVER THE SUBJECT MATTER - Conferred by law; the consent or the submission of the parties on this point is of no consequence; only the law confers it and only the law may change it. - the authority of a court to hear and decide cases of the general class to which the proceedings in question belong - the allegations in the petition or complaint, read together with the proper jurisdictional law, will confer jurisdiction on the court JURISDICTION OVER THE PERSON 20 | P a g e
the power of the court to render a judgment that will be binding on the parties involved: the plaintiff and the defendant - jurisdiction over the person of the plaintiff is acquired from the moment he institutes the action by the proper pleading - jurisdiction over the person of the defendant is acquired through the following means: 1. voluntary appearance 2. personal substituted service of summons JURISDICTION OVER THE RES - jurisdiction over the particular subject matter in controversy, REGARDLESS of persons who may be interested therein. FORUM-SHOPPING - the practice of looking over the courts of the world for possible advantages ought to be curbed PUBLIC POLICY - the manifest will of the state - that which it desires on account of its own fundamental principles of justice, its own perception of morals, and its deep-rooted traditions for the common weal. COMITY BASED ON RECIPROCITY - if the laws and judgments of the forum are recognized in a foreign state, the forum in turn will recognize the laws and judgments emanating from said foreign state. RECOGNITION OF A FOREIGN JUDGMENT - our courts will allow said FOREIGN JUDGMENT TO BE PRESENTED AS A DEFENSE TO A LOCAL LITIGATION - involves merely the sense of justice - does not require either action or a special proceeding - may exist without enforcement ENFORCEMENT OF FOREIGN JUDGMENTS - a plaintiff wants the courts to POSITIVELY CARRY OUT AND MAKE EFFECTIVE IN THE PHILIPPINES A FOREIGN JUDGMENT - virtually implies a direct act of sovereignty - necessitates a separate action or proceeding brought precisely to make the foreign judgment effective - necessarily carries with it recognition 21 | P a g e
Extrinsic Fraud - fraud based on facts not controverted or resolved in the case where the judgment was rendered. Intrinsic Fraud - fraud which goes to the very existence of the cause of action. PURELY INTERNAL RULE - Governs a purely domestic problem, one without any foreign element - Directly answers a given problem CONFLICTS RULE - applies when the factual situation involves a foreign element - merely indirectly responds by indicating whether internal or foreign law is to be applied. FACTUAL SITUATION - set of facts presenting a conflicts problem - defines its object –certain operatives facts - raises a legal question POINT OF CONTACT OR THE CONNECTING FACTOR - the law of the country with which the factual situation is most intimately connected. CAPACITY TO SUCCEED - The factual situation indicating that a person is dead, and someone alleges a right or capacity to inherit from the former. TOTALITY APPROACH - getting the law intended by the parties to govern the contract then applying the intended law in its totality including its periods of prescription and its statute of frauds. LEX FORI THEORY - the forum considers its own concepts its own characterization, otherwise there will be a virtual surrender of sovereignty right in the forum’s own home. LEX CAUSAE THEORY 22 | P a g e
the exact opposite of the lex situs theory the law identified in the choice-of-law stage of the conflict process as the one to be applied to determine the case the characterization of the foreign state, which is the principal point of contact, is supposed to be followed.
UNIVERSAL ANALYTICAL THEORY/ COMPARATIVE APPROACH THEORY - common factors both in the LEX FORI and the LEX CAUSAE are taken into consideration in order to avoid unjust results - Characterization comes only after a general comparative analytical study of the jurisprudence of all the states involved. DUAL THEORY OF LEX FORI AND LEX CAUSAE - Similar to the Comparative Approach Theory, except that instead of considering worldwide conceptions, ONLY TWO CONCEPTS ENTER INTO THE PICTURE: THE CHARACTERIZATION OF THE LEX FORI AND THAT OF THE LEX CAUSAE. AUTONOMOUS THEORY (may be related to TRANSMISSION) - The forum should consider the characterization of the country referred to in the conflicts rule of the lex causae - Hence, if the characterization in the forum State A points to State B as the lex causae, and the conflicts rule in State B refers to State C as the proper point of contact, it is the characterization in State C which must be used by State A. NATURAL-BORN CITIZENS - those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. NATURALIZED CITIZENS - citizens who are not natural-born citizens and those who become citizens through judicial proceedings CITIZENS BY ELECTION - Citizens who, by virtue of certain legal provisions, become such by choosing or electing Philippine citizenship at the age of 21 or within a reasonable time hereafter. EFFECTIVE NATIONALITY THEORY 23 | P a g e
if the deceased is not a citizen of the forum, we must get the law of the nation of which he was both a national and a domiciliary
DOMICILE - the place where a person has certain settled, fixed, legal relations because it is assigned to him by the law at the moment of birth (DOMICILE OF ORIGIN) - the place assigned to him by law after birth on account of a legal disability caused for instance by minority, insanity, or marriage in the case of a woman or because he has home there (CONSTRUCTIVE DOMICILE/DOMICILE BY OPERATION OF LAW) - that to which, whenever he is absent, he intends to return (DOMICILE OF CHOICE) DOMICILE OF ORIGIN (DOMICILIUM ORIGINS) - acquired at birth - applies only to infants - never changes for a person is born only once. CONSTRUCTIVE DOMICILE (DOMICILIUM NECESSARIUM) - given after birth - all those who lack capacity to choose their own domicile (infants, married women, idiots and insane) - Legal disabilities prevent their making a choice - May change from time to time, depending upon circumstances DOMICILE OF CHOICE - a result of the voluntary will and action of the person concerned PRINCIPLE OF ONLY ONE DOMICILE - No natural person can have more than one domicile at a time while a person may have more than one residence, the Civil Code recognizes only one domicile: the place of habitual residence. RESIDENCE - a more or less temporary place of abode which may be located in several places FOREIGN COURT THEORY - International PINGPONG/ International Football/ Revolving Doors/ inextricable circle 24 | P a g e
The RP court, in deciding the case, will put itself in the position of the foreign court and whatever the foreign court will do respecting the case, the RP court will likewise do.
THEORY OF DESISTMENT - the RP court desists or refrains from applying a foreign law because of its inadequacy being founded on a different basis. Hence, the RP court applies its internal law. Ordinary Children - with an intra-uterine life of at least 7 months. - Mere birth is sufficient Extraordinary Children - if the intra-uterine life be less than 7 months - the child must have lived for at least 24 hrs. after its complete delivery from the maternal womb NCC Article 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. NCC Article 41. For civil purposes, the fetus is considered born if its is alive at the time it is completely delivered from the mother’s womb. However, if the fetus had an intra-uterine life of less than 7 months, it is not deemed born if it dies within 24 hrs. after its complete delivery from the maternal womb. Presumptive Personality - Personality does not begin at birth, it begins at conception. It is essential that birth should occur later, otherwise the fetus will be considered as never having possessed legal personality. Emancipation - takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of 18 yrs. Absence - the legal status of a person who disappears from his domicile, his whereabouts being unknown - Article 384 of the Civil Code: 25 | P a g e
2 years having elapsed without any news about the absentee or since the receipt of the last news, and 5 years in case the absentee has left a person in charge of the administration of his property, his ABSENCE may be declared. -
Article 386 of the Civil Code:
The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. PRESUMPTION OF DEATH Article 390. [ORDINARY ABSENCE] After the absence of 7 years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except those of succession. The absentee shall not be presumed DEAD for the purpose of opening his succession till after an absence of 10 years. If he disappeared after the age of 75 years, an absence of 5 years shall be sufficient in order that his succession may be opened. In ordinary absence- death is presumed to have occurred on the last day of the period In extraordinary / qualified absence- death is presumed to have occurred at the beginning of the period. SURVIVORSHIP The rules on survivorship are found in Article 43 of the Civil Code and in Rule 131 of the Rules of Court: Article 43 CC. If there is doubt, as between 2 or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; IN THE ABSENCE OF PROOF, it is presumed that THEY DIED AT THE SAME TIME AND THERE SHALL BE NO TRANSMISSION OF RIGHTS FROM ONE TO THE OTHER. 26 | P a g e
Rule 131, Sec. 3 (jj) Rules of Court: When 2 or more persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is presumed from the probabilities resulting from the STRENGTH AND AGE OF THE SEXES, according to the following rules: 1. if both were under the age of 15, the older is presumed to have survived; 2. if both were above the age of 60, the younger is presumed to have survived; 3. if one is under 15 and the other above 60, the former is presumed to have survived; 4. if both be over 15 and under 60, and the sexes be different, the male is presumed to have survived; if the sexes be the same, then the older; 5. if one be under 15 or over 60, and the other between those ages, the latter is presumed to have survived. MARRIAGE AS A CONTRACT FACTUAL SITUATION 1. ) if celebrated abroad * between Filipinos
* between foreigners
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POINT OF CONTACT 1.) LEX LOCI CELEBRATIONIS (without prejudice to the exceptions under bigamous, polygamous, and incestuous marriages and consular marriages LEX LOCI CELEBRATIONIS except if the marriage is: a) Highly immoral (like bigamous and polygamous marriages) b) Universally considered incestuous, ie., bet. Brothers and sisters and bet. Ascendants and descendants.
LEX LOCI CELEBRATIONIS except if the marriage is: c) Highly immoral (like bigamous and polygamous marriages) d) Universally considered incestuous, ie., bet. Brothers and sisters and bet. Ascendants and descendants. - TO UPHOLD THE VALIDITY OF THE MARRIAGE. If celebrated in the Philippines between foreigners
Marriage by proxy (celebrated where the proxy appears)
NATIONAL LAW provided the marriage is not highly immoral or universally considered incestuous NATIONAL LAW of the Filipino (otherwise public policy may be militated against) LEX LOCI CELEBRATIONIS (with prejudice to the foregoing rules)
MARRIAGE AS A STATUS FACTUAL SITUATION 1) Personal Rights and Obligations between the Husband and the Wife
POINT OF CONTACT NATIONAL LAW OF THE HUSBAND Note: Effect of subsequent change of nationality a) if both will have a new common nationality, THE NEW ONE; b) if only one will change, THE LAST COMMON NATIONALITY c) if there was never any
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2) Property Relations between the Husband and the Wife
common nationality, THE NATIONAL LAW OF THE HUSBAND AT THE TIME OF THE WEDDING NATIONAL LAW OF THE HUSBAND, w/o prejudice to Art. 80 of the FC, to wit: In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by RP laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: 1) Where both spouses are aliens; 2) With respect to the extrinsic validity of contracts affecting property not situated in the RP and executed in the country where the property is located. 3) With respect to the extrinsic validity of contracts entered into in the RP but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. Effect of Change of NationalityNo EFFECT accdg. To the Doctrine of immutability in the matrimonial property regime.
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Article 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: 1. A person on board a vessel lost during a sea voyage, or on an airplane which is missing, who has not been heard for 4 years since the loss of the vessel or airplane; 2. a person in the armed forces who has taken part in war, and has been missing for 4 years. 3. a person who has been in danger of death under other circumstances and his existence has not been known, for 4 years. Juridical Jurisdiction - authority to hear and determine a legal controversy. - The jurisdiction of our tribunals of justice is governed by our own law on the matter. Legislative Jurisdiction - the authority to enact laws - the competence of a person’s national law to govern his status Compulsory Rule - it is IMPERATIVE for the parties to follow the formalities of the PLACE OF CELEBRATION Optional Rule - the parties may follow EITHER THE LEX LOCI CELEBRATIONIS OR THEIR NATIONAL LAW Ecclesiastical Rule - the formalities of BOTH THE LEX LOCI CELEBRATIONIS AND THE NATIONAL LAW of the parties must be complied with Common-Law Marriage - the living-in together or the celebration of a man and a woman as husband and wife without getting married Marriage by Proxy - One where one of the parties is merely represented at the ceremony by a friend or delegate Absolute Community Regime 30 | P a g e
Almost all the properties of the marriage are owned in common by the husband and the wife
Relative Community Regime/Community Partnership of Gains or the Ganancial System - everything earned during the marriage belong to the conjugal partnership Complete Separation of Property Regimes - each owns his/her earnings Dotal or Dowry System - the wife, before the marriage, delivers a dowry or property to the husband to help out in the marriage obligations, but later, when the marriage is dissolved, the property of its value must be returned. Complete Absorption or Administration by the husband - the husband owns all the properties of the marriage, but he is liable for all the debts Marital Administration System - each spouse still owns his/her property, but the husband administers all the properties. Immutability of Matrimonial Property Regime Doctrine - REGARDLESS OF CHANGE OF NATIONALITY on the part of the husband or the wife or both, THE ORIGINAL PROPERTY REGIME AT THE START OF THE MARRIAGE REMAINS. Mutability of Law - when the law of the original nationality itself changes, the marital regime, the property relationship, has to change accordingly. - This cannot be helped for law is essentially a dynamic thing; - However, vested rights must be duly protected. Socially grotesque situation - a situation where a Filipino woman is still married to a man who is no longer her husband Abandonment - Synonymous to CRIMINAL DESERTION 31 | P a g e
A husband’s or wife’s willful failure without just cause to provide for the care, protection or support of a spouse who is still in ill health or necessitous circumstances Includes both the intention to abandon and the external act by which the intention is carried into effect.
BIGAMY - committed by any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or - who shall contract a second or subsequent marriage before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. Sexual Infidelity - Unfaithfulness in marriage - Adultery and concubinage are encompassed in the term Sexual perversion - an abnormality by a person in matters of sex Pre-marital Sex - indulging by an unmarried couple in sexual intercourse prior to getting married. Adultery - voluntary sexual intercourse of a married person other than the offender’s husband or wife - committed by a married woman who shall have sexual intercourse with a man not her husband; and by a man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void. OPEN AND NOTORIOUS ADULTERY - The parties must reside together publicly in the face of society as if conjugal relations existed between them, and their so living and the fact that they are not husband and wife must be known in the community Concubinage - committed by any husband who (1)shall keep a mistress in the conjugal dwelling or (2)have sexual intercourse under scandalous circumstances with a woman not his wife, (3)cohabit with her in any other place. 32 | P a g e
ILLICIT COHABITATION - the living together as man and wife of two persons who are not lawfully married with the implication that they habitually practice fornication (unlawful sexual intercourse between two unmarried persons). ATTEMPT BY ONE SPOUSE AGAINST THE LIFE OF THE OTHER - the attempt must not be justified as in the case of lawful self-defense; nor must it be one where the attempt was made because the other was caught in flagrante delicto with a lover. The attempt must be one of attempted or frustrated parricide, not one caused by negligence for in the latter case, it cannot be said that there was an attempt. Note: Art. 59. FC: No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. Defenses in Legal Separation: a) Condonation- forgiveness, express or implied. Must be free, voluntary, and not induced by duress or fraud b) Consent- may be express or implied. Must be unclouded by fraud, duress, or sometimes even mistake c) Connivance d) Recrimination or mutual guilt- a charge made by an accused person against the accuser; in particular, a countercharge of adultery or concubinage made by one charged with the same offense in a suit for legal separation, against the person who has charged him or her. e) Collusion- Art. 60 of FC: No decree of legal separation shall be promulgated upon stipulation of facts or a confession of judgment. This is an agreement whereby one party will pretend to have committed the ground relied upon. f) Prescription- Art. 57, FC: An action for legal separation shall be filed within 5 years from the time of the occurrence of the cause. Need not be alleged. 33 | P a g e
Note: Art. 58 FC: An action for legal separation shall in no case be tried before 6 months shall have elapsed since the filing of the petition. The “cooling-off period” (6 months) is the period of time in which no action may be taken by either sides. Purpose: to enable the parties to cool-off. Art. 61 FC: After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. Note: The spouses, while may be entitled to live separately from each other after the filing of the petition, are not required to do so. Effects of legal separation: 1) Spouses may live separately 2) Marriage bonds not severed 3) The absolute community or the conjugal partnership shall be dissolved and liquidated 4) The offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited (in accordance with the provisions of Art. 43) 5) The custody of the minor children shall be awarded to the innocent spouse, subject to Art. 213 of FC 6) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. 7) The provisions in favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law. (the provisions of the will being referred to here are provisions made 34 | P a g e
PRIOR TO and NOT AFTER the decree of legal separation; otherwise it cannot be said that the decree revokes any provision, for the will had not yet been made.) TWO THINGS THAT MAY BE REVOKED BY THE INNOCENT SPOUSE: 1) Donations made in favor of the offending spouse (must be brought within 5 years from the time the decree of legal separation has become final); and 2) Designation of the offending spouse as beneficiary in the insurance contracts of the innocent spouse. Condonation - forgiveness, express or implied - to constitute valid defense, it must be free, voluntary, and not induced by duress or fraud. RECRIMINATION OR MUTUAL GUILT - a charge made by an accused person against the accuser - a counter charge of an adultery or concubinage made by one charged with the same offense in a suit for legal separation, against the person who has charged him or her. COLLUSION - an agreement whereby one party will pretend to have committed the ground relied upon. RECONCILIATION - a bilateral act, requiring common consent, whether express or implied. - In law of domestic relations, reconciliation is a voluntary resumption of marital relations in the fullest sense. - Shall have the ff. consequences: a. The legal proceedings, if still pending, shall thereby be terminated in whatever stage; b. The final decree of legal separation shall be set aside, but the separation of property and any for forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their property regime. CONSANGUINITY 35 | P a g e
kinship blood relationship the connection or relation of persons descended from the same stock or common ancestor.
AFFINITY - connection existing in consequence of a marriage, between each of the married persons and the kindred of the other. Lineal Consangunity - subsists between persons of whom one is descended in a direct line from the other and so upwards in the direct ascending line and so downwards in the direct descending line. COLLATERAL CONSANGUINITY - Subsists between persons who have the same ancestors, but who do not descend or ascend one from the other DIRECT AFFINITY - subsists between the husband’s and his wife’s relations by blood, or between the wife and the husband’s relations by blood. SECONDARY AFFINITY - subsists between the husband’s and his wife’s relations by marriage COLLATERAL AFFINITY - Subsists between the husband and the relations of his wife’s relations
ENUMERATION Elements of Private International Law: 1. Conflict of laws is that part of the municipal law of the State 36 | P a g e
2. The direction to Courts and Administrative agencies 3. A legal problem involving a foreign element 4. The application or non-application of foreign law/foreign laws Importance of Conflict of Laws 1. To adjust conflicting rights in international mercantile and corporate transactions 2. To solve personal, family, property and successional contractual problems, possessed of facts or elements operating in two or more states. Scope of Functions of Conflict of Laws 1. To prescribe the conditions under which the court is competent to entertain such a suit 2. To determine for each cases the particular territorial system of law by reference to which the rights of the parties must be ascertained 3. To specify the circumstances in which a foreign judgment can be recognized as a decisive of the question in dispute In other words, 1. The determination of which country has jurisdiction 2. The applicability to a particular case of either the local or the foreign law 3. The determination of the force, validity and effectiveness of a foreign judgment Why conflict of law is observed? 1. States must of necessity observe the subject because it is part of their municipal law. Surely, a government, anywhere and anytime, is duty bound to enforce and respect its own municipal legislation 2. individuals observe it because of fear of municipal sanctions SOURCES OF CONFLICT OF LAWS 1. Indirect - Natural Moral Law - Work of Writers 37 | P a g e
2. Direct - Constitutions - Codifications - Special Laws - Treaties and Conventions - Judicial Decisions - International Customs Kinds of Jurisdiction 1. Jurisdiction over the subject matter 2. Jurisdiction over the person 3. Jurisdiction over the res Reasons for Refusal to Assume Jurisdiction: Forum Non Conveniens 1. the evidence and the witnesses may not be readily available 2. the court dockets of the forum may already be clogged; to permit additional cases would inevitably hamper the speedy administration of justice 3. the evils of forum shopping Application of the Internal or Domestic Law 1. when the law of the forum expressly so provides in its conflicts rules 2. when the proper foreign law has not been properly pleaded and proved 3. when the case involves any of the exceptions to the application of the proper foreign law Exceptions To The Application Of Foreign Law 1) When the foreign law, judgment or contract is: - Contrary to almost universally conceded principles of morality (contra bonos mores) - Contrary to a sound and established public policy of the forum - Involves procedural matters 2) When the case involves: - Penal laws, contracts and judgments - Purely fiscal or administrative matters - Real or personal property situated in the forum
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3) When the application of the foreign law, judgment, or contract: - May work undeniable injustice to the citizens or residents of the forum - May work against the vital interests and national security of the state of the forum Proving of a Written Foreign Law 1. By an OFFICIAL PUBLICATION thereof; 2. By a COPY ATTESTED BY THE OFFICER HAVING THE LEGAL CUSTODY OF THE RECORD, or by his deputy, and accompanied with a CERTIFICATE THAT SUCH OFFICER HAS CUSTODY Proving of an Unwritten Law 1. By the ORAL TESTIMONY of expert witnesses 2. By PRINTED AND PUBLISHED BOOKS OF REPORTS OF DECISIONS of the country involved, if proved to be commonly admitted in such courts Theories on Why the Foreign Law may in Some Cases Be Given Effect 1. Theory of Comity 2. Theory of Vested Rights 3. Theory of Local Law 4. Theory of Harmony of Laws 5. Theory of Justice Kinds of Comity 1. Based on Reciprocity 2. Based on the persuasiveness of foreign judgment Reasons why not all foreign judgments can be recognized or enforced in our country 1. The requisite proof thereof may not be adequate 2. They may contravene our established public policy 3. They may contradict one another: one cannot be guided by contradictions 4. The administration of justice may be shockingly corrupt in some countries Conditions and Requisites Before Foreign Judgments may be Recognized and Enforced in the Philippines
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1. Proof of Foreign Judgment (For recognition, there is no necessity for a separate action or proceeding 2. the judgment must be on civil or commercial matter 3. No lack of jurisdiction, No want of notice, No collusion, No fraud, No clear mistake of law or fact 4. The judgment must not contravene a sound and established public policy of the forum The Requisites for Res Judicata 1. The judgment must be final 2. The court rendering the judgment must have jurisdiction over the subject matter and the parties 3. The judgment must be on the merits 4. There must be identity of parties, of subject matter, and of cause of action Kinds of Conflicts Rule 1. One-Sided Rule/ Unilateral Rule 2. All-sided Rule/ Multilateral Rule Factors Which Give Rise to the Problem of Characterization 1. Different legal systems attach to the same legal term with different meanings; 2. Different legal systems may contain ideas or conceptions completely unknown to one another 3. Different legal systems apply different principles for the solution of problems which, in general terms, are of common nature Steps in Characterization (According to Dean Falconbridge) 1. Characterization of the questions 2. Selection of the proper law 3. Application of the proper law Steps in Characterization (According to Edgardo Paras) 1. Determination of the facts involved 2. Characterization of the factual situation 3. Determination of the conflicts rule which is to be applied 4. Characterization of the point of contact or the connecting factor 5. Characterization of the problem as procedural or substantive 6. pleading and proving of the proper foreign law 7. application of the proper foreign law to the problem Theories in Characterization (DUAL LT) 40 | P a g e
1. 2. 3. 4. 5. 6.
LEX FORI LEX CAUSAE UNIVERSAL ANALYTICAL DUAL THEORY OF LEX FORI AND LEX CAUSAE AUTONOMOUS THEORY TOTALITY THEORY
Two kinds of capacity: 1. capacity to act 2. juridical capacity Characteristics of Status: (CCUPS) 1. conferred principally by the State 2. a matter of public or social interest 3. a concept of social order 4. cannot be easily terminated at the mere will or desire of the parties concerned 5. generally supposed to have a universal character THEORIES ON PERSONAL LAW OR THE LAW THAT SHOULD GOVERN STATUS AND CAPACITY IN GENERAL 1. Nationality Theory- Personal Theory 2. Domiciliary Theory- Territorial Theory 3. Situs Theory- Eclectic Theory 3 Kinds of Citizens of the Philippines 1. Natural-born 2. Naturalized 3. Citizen by election 2 Theories on Whether Place or Ancestry Determines Citizenship 1. Jus Soli 2. Jus Sanguinis Citizens of the Philippines Under the 1987 Constitution 1. Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution 2. Those whose fathers or mothers are citizens of the Philippines
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3. Those born before 17 January 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority 4. those who are naturalized in accordance with law. Qualifications for Naturalization 1. AGE. The petitioner must not be less than 21 years old on the date of the hearing of the petition 2. RESIDENCE. he must have resided in the Philippines for a continuous period of not less than 10 years. 3. MORAL. He must be of good moral character and 4. CONSTI. He must believe in the principles underlying the Philippine Constitution 5. CONDUCT. he must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is living. 6. PROPERTY. he must have a real estate in the Philippines worth not less than PHP5,000.00 OR must have some lucrative trade, profession, or lawful occupation. 7. LANGUAGE. he must be able to speak an write English or Spanish and any one of the principal Philippine languages 8. MINORS. he must have enrolled his minor children of school age in any of the public schools/private schools recognized by the Bureau of Private Schools where RP history, government, and civics are taught or prescribed as part of the school curriculum during the entire period of the residence required of him, prior to the hearing of the petition. 3 Kinds of Domicile 1. domicile of origin 2. constructive domicile 3. domicile of choice Proposed Solution to the Renvoi 1. Reject the Renvoi 2. Accept the Renvoi 3. Follow the Theory of Desistment/ mutual disclaimer of jurisdiction theory, to wit: THEORY OF DESISTMENT 42 | P a g e
the RP court desists or refrains from applying a foreign law because of its inadequacy being founded on a different basis. Hence, the RP court applies its internal law.
4. make use of the foreign court theory, to wit: FOREIGN COURT THEORY - International PINGPONG/ International Football/ Revolving Doors/ inextricable circle - The RP court, in deciding the case, will put itself in the position of the foreign court and whatever the foreign court will do respecting the case, the RP court will likewise do. Emancipation takes place by: 1. 2. 3. 4.
Marriage of the minor attainment of the age of majority parental concession judicial concession
ASPECTS OF MARRIAGE 1. As a contract 2. As a union, a status, a legal relation Substantial or Essential Requisites of Marriage of Filipinos 1. legal capacity of the contracting parties 2. consent of the contracting parties freely given 3. marriage license, except in marriage of exceptional cases 4. authority of the person solemnizing the marriage 5. marriage ceremony Personal Rights and Obligations between the husband and the wife 1. Mutual fidelity, cohabitation, and respect 2. Mutual assistance and support 3. Right of the wife to use the husband’s name STATELESSNESS 1. DEPRIVATION of citizenship for any cause. 43 | P a g e
2. RENUNCIATION of nationality by certain acts, express or implied 3. VOLUNTARY RELEASE from his original state 4. BORN in a country which recognizes only the principle of jus sanguinis but whose law of the parents recognizes only the principle of jus soli. Personal Law of stateless individuals The Hague Conference of 1928 on International Private Law suggested that the personal law of stateless individuals shall be: 1. the law of the domicile (habitual residence) 2. secondarily the law of the place of temporary residence RULES ON STATUS IN GENERAL FACTUAL SITUATION 1. Beginning of personality 2. Ways and effects of emancipation 3. Age of majority 4. Use of names and surnames 5. Use of titles and nobility 6. Absence 7. Presumptions of death and survivorship
POINT OF CONTACT National law of the child National law National law National law National law National law Lex fori
ANNULMENT OF VOIDABLE MARRIAGE AND DECLARATION OF NULLITY OF A VOID MARRIAGE FACTUAL SITUATION 1) Grounds for annulment (if the marriage is voidable merely) 2) Grounds for declaration of nullity (if marriage is void ab initio)
POINT OF CONTACT The law alleged to have been violated: in other words, it is the law of the place of celebration (lex loci celebrationis) subject to certain exceptions that furnish the grounds)
ARTICLE 26. All marriages solemnized outside the RP is accordance with the laws in force in the country where they 44 | P a g e
were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), Articles 36, 37, and 38. Article 35: The ff. marriages shall be void from the beginning: *those contracted by any party below 18 years of age even with the consent of parents or guardians *those bigamous or polygamous marriages not falling under Art. 41 * those subsequent marriages that are void under Art. 53 Article 36: A marriage contracted by any party, who at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even of such incapacity becomes manifest only after its solemnization. Article 37: Marriages between the ff. are incestuous and void from the beginning whether the relationship between the parties be legitimate or illegitimate: 1. between ascendants and descendants of any degree 2. between brothers and sisters of the full or half blood Article 38: The ff. marriages shall be void from the beginning for reasons of public policy: 1. between collateral blood relatives, whether legitimate or illegitimate, up to the 4th civil degree 2. between step-parents and step-children 3. between parents-in-law and children-in-law 4. between the adopting parent and adopted child 5. between the surviving spouse of the adopted child and the adopter 6. between an adopted child and a legitimate child of the adopter 45 | P a g e
7. between adopted children of the same adopter 8. between parties where one, with the intention to marry the other, killed that person’s spouse, or his or her own spouse. REQUIREMENTS TO PROVE A FOREIGN MARRIAGE: 1. the existence of the pertinent provision of the foreign marriage law 2. the celebration or performance of the marriage in accordance with said law Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have the capacity to remarry under the RP law. SIMPLY PUT: If valid where celebrated, it is also valid here. NOTES: • Insofar as the grounds for annulment or nullity are concerned, it is not the National law that governs, it is the LEX LOCI CELEBRATIONIS, subject to certain exceptions. • The grounds for LEGAL SEPARATION are those indicated in the national law of the parties concerned, and not those of the place of celebration of marriage. Art. 15 will apply because a suit or legal separation necessarily admits the validity of the marriage. • Two Filipinos are married by the Philippine Ambassador to the US inside the RP Consulate in Washington D.C. In US, let’s say, an Ambassador is authorized to perform marriages, will such marriage be given cognizance in the RP? Ans: NO. Having been celebrated in the RP consulate in Washington, the marriage is considered to have been performed in the Philippines. Under our law, the ambassador cannot perform a marriage; ONLY CONSULsGENERAL, and VICE-CONSULS can under the Family Code. • Since we follow the NATIONALITY THEORY, our courts have jurisdiction to take cognizance of 46 | P a g e
annulment and nullity suits where the litigants are Filipinos, or where they are domiciliaries of the Philippines. • Church annulments of marriages and declarations of their nullity are only for religious purposes, and are not binding on our civil laws and courts of our country, unless amendments to our family Code are made. • Art. 36 OF FC: A marriage contracted by any party, who at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void if such incapacity becomes manifest only after its solemnization. • Under Church laws, examples of PHYCHOLOGICAL INCAPACITY will include inter alia: 1. A wrong concept of marital vows and marital infidelity 2. Alcoholism 3. Gambling 4. Womanizing 5. Adamant refusal to give support to a degree incompatible with a mature understanding of responsible married life This degree is of course subject to determination by the courts, particularly the SC. And even if these causes should manifest themselves long after the wedding, said causes are considered to be potentially existing already at the time of the celebration of the marriage. ABSOLUTE DIVORCE FACTUAL SITUATION 1) if sought in the RP (whether by Filipinos or by foreigners) 2) if obtained abroad:
POINT OF CONTACT 1) lex fori (therefore, will not be granted)
a) bet. Filipinos
nati onal law (therefore, not valid here even if valid abroad; and this is true regardless of the divorce)
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b) bet. Foreigners
b) National law (if valid in the State granting it and valid according to the national law of the parties, will also be valid here) c) apply (a) and (b) respectively.
ABSOLUTE DIVORCE Distinguished from ANNULMENT ABSOLUTE DIVORCE Presupposes a VALIDLY EXISTING MARRIAGE
ANNULMENT Ends a marriage which though considered valid in the interim, nonetheless, is DEFECTIVE Granted for causes Granted for causes AT THE SUBSEQUENT to the marriage VERY TIME THE MARRIAGE ceremony IS ENTERED INTO KINDS OF DIVORCE: 1) ABSOLUTE DIVORCE (Divorce a vinculo matrimoniee) – marital ties are dissolved. 2) RELATIVE DIVORCE (divorce a mensa et thoro)separation from bed and board or legal separation, where parties remain married, although this time, they are allowed to live separately from each other. PATERNITY AND FILIATION, ADOPTION, GUARDIANSHIP, AND FUNERALS FACTUAL SITUATION - Paternity and filiation - Including Parental Authority and - Reciprocal support - Legitimacy - Legitimation - Recognition - Presumptions of legitimacy - Rights and obligations of parents and children - Including parental authority and reciprocal support 48 | P a g e
POINT OF CONTACT If legitimate, NATIONAL LAW OF THE FATHER If illegitimate, NATIONAL LAW OF THE MOTHER. If illegitimate but recognized by the father, the NATIONAL LAW OF THE FATHER. Determination of whether legitimate or illegitimate, NATIONAL LAW OF THE FATHER, in general.
Adoption- creation of the status of adoption; rights and obligations of adopter and adopted.
Doctrine of Immutability of Status- change of parents’ nationality does not affect the status of the child. In general, NATIONAL LAW OF THE ADOPTER. In the Philippines, adoption by a Filipino does not confer Filipino citizenship on an adopted alien child.
a) Over the person - appointing court
powers of guardian
b) Over the property - appointing court
powers of guardian
c) over the person and over the property (general guardian) - appointing court -
powers of guardian
- Funerals- incidents thereof
court of the domicile of the ward coextensive with those of the appointing court (law of the appointing state) court where the property if found (lex rei sitae) coextensive with those of the appointing court
court where the property and the ward are found coextensive with those of the appointing court
Where the body is buried.
the incidents of funerals are governed by the law of the country where the body is to be buried. The duty and the right to make arrangements for the funeral of a relative devolve on the persons obliged to support the deceased while still alive. Every funeral shall be in keeping with the social standing of the deceased. The higher the social standing of the
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deceased in life, the more dignified and expensive his funeral be, as a general rue. Prohibited is pompous and elaborate funeral of a criminal on whom the death penalty has been inflicted. The "center of gravity" approach, first adopted by the Court of Appeals of New York, might be characterized as a simplified version of the "most significant relationship" test of the Second Restatement. This approach authorizes courts to look at all the existing contacts between the various parties to a suit and various jurisdictions. Ultimately, the court should choose the law of whatever jurisdiction is most closely tied to the case.
HOW FOREIGN LAW IS GIVEN APPLICATION IN THE PHILIPPINES: 1. 2. 3. 4.
By statutory directives (consent of the State) By agreement of the parties By treaty or convention By conflict of laws rule
In their absence -A. Principles governing Conflict of Law Cases 1. Substance vs. Procedural Principles All matters of procedure are governed by the law of the forum where the case is filed, while matters of substance are governed by the law of the country where the cause of action arose. •
PROBLEM: Some laws may be treated by one country as procedural and by another country as substantive (e.g. statute of limitations)
SOLUTIONS: • •
Government Interest Analysis - the law of the country whose interest is most impaired by failure to apply its statute should be applied Borrowing Statute - the law of the country has a statute “borrowing” the prescriptive period provided in the foreign statute; EXCEPTION: when contrary to public policy or prohibitive laws
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2. Center of Gravity Doctrine (Grouping of Contacts Principle or State of the Most Significant Relationship Theory) Law of the state which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort or in contract 3. Renvoi Doctrine (Table Tennis Theory) The conflict of law rule of the forum resorts to the foreign law, which in turn refers back to the law of the forum.
RENVOI DOCTRINE APPLIED Aznar vs. Garcia, G.R. No. L-16749, Jan. 3, 1963
FACTS: Edward Christensen, who at his death was a US citizen but domiciled in the Philippines, left a will, devising unto Maria Helen a certain amount of money and giving the rest of his estate to Maria Lucy. Helen opposed the partition on the ground that she is deprived of her legitime. Her contention is that the law of California directs that the law of the domicile (Philippines) should govern the will. ISSUE: Whether or not the national law or the domiciliary law should apply HELD: The intrinsic validity of wills is governed by the national law of the decedent. In the present case, the national law of Edward is the laws of California. However, there were two conflicting California laws regarding succession. One is enunciated in In Re Kaufman (which does not provide for legitimes) and another is Art. 946 of the California Civil Code (which provides that the law of the domicile applies). SC held that the national law is Art. 946, which is the conflict of laws rule of California. The reason is that In Re Kaufman applies only to residents while Art. 946 is specific to nonresidents. Thus, since Art. 946 contains a refer-back to Philippine laws (the law of the domicile), then Maria Helen is entitled to her legitime. 4. Lex Fori The law of the forum governs all matters pertaining to procedural or remedial rights.
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B. Applicability of Foreign Laws and its Exceptions WHEN FOREIGN LAW, EVEN THOUGH APPLICABLE, MAY NOT BE GIVEN APPLICATION: 1. 2. 3. 4.
Foreign law contravenes prohibitive law or public policy of the forum Relationship of the parties affects public interest Real property is involved (apply lex rei sitae) Foreign law, judgment or contract is contrary to a sound and established public policy of the forum 5. Foreign law is procedural in nature (lex fori governs procedural matters) 6. Foreign law is penal in nature
EXCEPTION: CONTRARY TO SOUND PUBLIC POLICY Bank of America, NT vs. American Realty Corporation, .G.R No. 133876, Dec. 29, 1999
FACTS: Bank of America, duly licensed to do business in the Philippines and existing under the laws of California, USA, granted US Dollar loans to certain foreign corporate borrowers. These loans were secured by two real estate mortgages by American Realty, a domestic corporation. When the borrowers defaulted, Bank of America sued them before English courts. While these cases were pending, Bank of America likewise judicially foreclosed the real estate mortgages in the Philippines. Thus, American Realty sued for damages against Bank of America. ISSUE: Whether or not Bank of America can judicially foreclose the real estate mortgages despite pendency of the civil suits before English courts HELD: English law purportedly allows the filing of judicial foreclosure of mortgage despite pendency of civil suit for collection. But English law was never properly impleaded and proven. Thus, the doctrine of processual presumption applies. SC further held that even assuming arguendo that English laws were proven, said foreign law would still no find applicability. When the foreign law, judgment or contract is contrary to a sound and established public policy of the forum, the said foreign law, judgment or order shall not be applied. Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective b laws or judgments promulgated, or by determinations or
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conventions agreed upon in a foreign country. The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the splitting of a single cause of action. Moreover, the foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum. C. Authentication, Electronic Evidence and Judicial Cognizance of Foreign Judgments **To be recognized by Philippine courts, foreign laws and judgments must be alleged and proved. HOW FOREIGN PUBLIC DOCUMENTS ARE PROVED: 1. Official publication 2. Certified true copy or one attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has custody •
The certificate must be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept Authenticated by his seal of office
**If the foreign law or judgment does not comply with the above requirements, it will not be recognized and the Doctrine of Processual Presumption will apply (Philippine courts will assume the foreign law is the same as Philippine laws).
GENERAL RULE: Philippine courts are not authorized to take judicial notice of foreign laws.
• • •
Where there are exceptional circumstances when the foreign laws are already within the actual knowledge of the court (generally known or actually ruled upon in a prior case) Where the courts are familiar with the specific foreign laws (e.g. Spanish civil law) Where the adverse party did not dispute the application of foreign law Where the tribunal is a quasi-judicial body which is not bound by strict rules of technicality
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