CHOICE-OF-LAW IN FAMILY RELATIONS

Prof. Elizabeth Aguiling-Pangalangan, Ll.B (U.P,), Ll.M (Harvard) Associat

e Professor (College of Law, University of the Philippines)
I. MARRIAGE
A. Definition: Marriage is a special contract of permanent union between man and
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 institu
tion whose nature, consequences, and incidents are governed by law and not subje
ct to stipulation, except that marriage settlements may fix the property relatio
ns during the marriage within limits provided by this Code. 1 The substantive vali
dity of marriage is governed by Lex Nationalii. (Art. 15 of the Civil Code)
B. Formal Validity: As a contract, marriage is a declaration by the contracting
parties in the presence of the person solemnizing the marriage and two witnesses
of legal age, that they take each other as husband and wife, signed or marked b
y the said contracting parties and their witnesses, and attested to by solemnizi
ng officer.
2. PHILIPPINE POLICY ON MARRIAGE AND THE FAMILY
A. Article XV, Section 2 of the Philippine Constitution: Marriage as an inviolabl
e social institution, is the foundation of the family and shall be protected by
the State. 2
B. Presumption of validity of marriage: Article 220 of the Civil Code.
3. EXTRINSIC VALIDITY OF MARRIAGE
A. The determination of the extrinsic validity is referred to the lex loci celeb
rationis or law of the place of celebration.3
1. Article 2 of the Hague Convention on Celebration and Recognition of the Valid
ity of Marriages4 states that the formal requirements for marriage are governed
by the law of the state of celebration, a reiteration of a recognized principle
of conflict of laws.
2. In the Philippines, the formal requirements of marriage are set forth in Arti
cle 3 of the Family Code.
3. Article 26 of the Family Code states that All marriages solemnized outside the
Philippines in accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this country. . . .
a. In Wong Woo Yu v Vivo (13 SCRA 552 (1965)), the Court held that no validity c
an be given the foreign marriage because no proof was presented relative to the l
aw of the marriage in China.
b. In Adong v Cheong Seng Gee (43 Phil 43 (1922)), the Supreme Court cited Secti
on IV of the Marriage Law (General Order No. 68) which provides that to establis
h a valid foreign marriage pursuant to this comity provision, it is first necess
ary to prove before the courts of the Islands the existence of the foreign law a
s a question of fact, and it is then necessary to prove the alleged foreign marr
iage by convincing evidence.
4. A proxy marriage is defined as a marriage contracted or celebrated through age
nts acting on behalf of one or both parties. There are no Philippine cases on th
e validity of proxy marriages contracted abroad.
a. One of the formal requisites is a marriage ceremony which takes place with the
appearance of the contracting parties before the solemnizing officer and their
personal declaration that they take each other as husband and wife . Art 4 of the
Family Code is explicit that absence of a formal requisite shall render the marr
iage void ab initio.
1. However, this being an issue affecting the extrinsic requirements of marriage
, our laws will not apply even to Filipino citizens who marry in a foreign state
where such proxy marriage is valid. The general rule in Art. 26 will instead ap
ply.
2. In Fernandes v. Fernandes (1949), the US court decided that where a proxy mar
riage celebrated in the District of Columbia was valid in that jurisdiction, the
marriage must be recognized as valid in New York in a proceeding by the wife fo
r support of herself and a minor child by that marriage.
3. In Farah v Farah (1993), the Court found that because the marriage was contra
cted in England, the validity of the marriage is determined according to English
law.
4. In the English case of Apt v. Apt (1947), it was held that the celebration of
marriage by proxy is a matter of the form of the ceremony or proceeding, and no
t an essential of the marriage. There is nothing abhorrent to Christian ideas in
the adoption of that form; and that, in the absence of legislation to the contr
ary, there is no doctrine of public policy which entitles me to hold that the ce
remony, valid where it was performed, is not effective in this country to consti
tute a valid marriage.
5. In In re Valentine s Will (1959), the Court held that though proxy marriages ha
ve never been authorized by statute in this state, they have never been consider
ed repugnant to its public policy and do not contravene the natural law.
b. The Civil Code of the Philippines enumerates marriages that are bigamous, pol
ygamous or incestuous as exceptions to the rule of lex loci celebrationis (Artic
le 71). The Family Code however widens these exceptions to 16 (Article 26). Note
that these refer to the essential requisites of marriage, hence they follow the
general rule for intrinsic validity.
1. either or both parties are below 18 years of age;
2. bigamous or polygamous (Article 35[4]);
3. a subsequent marriage is performed without recording in the Civil Registry an
d Registry of Properties the judgment of annulment or declaration of nullity of
the first marriage, the partition and distribution of the properties of the spou
ses and the delivery of the children s presumptive legitimes (Articles 35[6], 52,
53);
4. there was mistake as to the identity of the contracting party (Article 35[6])
;
5. one of the parties was psychologically incapacitated to comply with the essen
tial marital obligations (Article 36);
6. the marriage is incestuous (Article 37);
7. the marriage is void by reason of public policy (Article 38).
4. INTRINSIC VALIDITY OF MARRIAGE
A. Definition. The intrinsic requirements of marriage refer to capacity or the ge
neral ability of a person to marry, for instances defined by requirements of age
and parental consent, but it does not refer clearly to an individual s being perm
itted to marry a specific person or a person of a determinate class. 5 These intri
nsic requirements are controlled by the parties personal laws, which may either b
e their domicile or nationality.
B. Philippine law requires legal capacity of the parties to enter into a marriag
e contract, which means that they must be at least 18 years of age and are not b
arred by any impediment to marry each other. The second substantive or essential
requisite is consent freely given in the presence of an authorized solemnizing
officer.
1. However when a party to the marriage is between 18 to 21 years old, parental
consent is required. Following the lex nationalii rule, it is not necessary in c
ase the party s national law does not provide for the same requirement. Hence, the
marriage of a Filipino politician in his 40 s and an actress of Filipino descent
but Italian citizenship is valid despite lack of parental consent from the mothe
r of the actress.
C. Though valid in a foreign country certain marriages may be void in the Philip
pines on grounds of public policy, as enumerated in Article 38.
1. In the case of In Re Dalip Singh BIR s Estate,6 the Court held that polygamous
marriages can be recognized in English law so as to confer on the wives the status
of a wife, for the purposes of Section 10 of the British Nationality and status
of Aliens Act or for the purposes of succession, and upon the children the statu
s of legitimacy.
2. In the case of In re May s Estate (185 N.Y.S. 284), the Surrogate Court ruled t
hat such marriage was not only void in New York as opposed to natural law but wa
s contrary to the provisions of the Domestic Relations Law; hence, Sam did not q
ualify for the letters of administration as the surviving spouse of the decedent
. Upon appeal, the Court held that the relationship was not within the Levitical
forbidden degrees in the Old Testament. It was not offensive to the public sens
e of morality to a degree regarded generally with abhorrence and thus was not wi
thin the inhibitions of natural law.
II. DIVORCE AND SEPARATION
1. Most countries exercise divorce jurisdiction on the basis of domicile of one
of the parties or matrimonial domicile.
2. The Hague Convention Relating to Divorce and Separation of 1902 provides that
the granting of divorce or separation must comply with the national law of the
spouses and the law of the place where the application for divorce is made. Some
laws such as the Codigo Bustamante and Siamese Law in private international law
have made the right to separation or divorce depend on the national law of the
spouses and the grounds for divorce subject to the law of the forum provided the
parties were domiciled there.7
3. The grounds for divorce are dictated by the lex fori.
A. DIVORCE DECREES OBTAINED BY FILIPINOS
1. General Rule. Decrees of absolute divorce obtained by Filipinos abroad have n
o validity and are not recognized in Philippine jurisdiction.
a. In the case of Tenchavez v. Escao (15 SCRA 355 (1965)), the Court ruled that a
foreign divorce between Filipino citizens, sought and decreed after the effecti
vity of the present Civil Code (Rep. Act 386), is not entitled to recognition as
valid in this jurisdiction; and neither is the marriage contracted with another
party by the divorced consort, subsequently to the foreign decree of divorce, e
ntitled to validity in the country and that the remarriage of divorced wife and
her cohabitation with a person other than the lawful husband entitle the latter
to a decree of legal separation conformably to Philippine law.
b. In Manila Surety v. Teodoro (20 SCRA 463 (1967), the Supreme Court did not re
cognize the decree of divorce granted by a Nevada Court in favor of Jose Coromin
as, Jr. and Sonia Lizares, both Filipino citizens. Hence, the subsequent marriag
e entered into by Corominas is null and void. The property of Corominas second wi
fe is entirely hers and not subject to execution for debts owed by Corominas.
2. In cases wherein one or both of the spouses subsequently become foreigners, a
divorce decree validly obtained in accordance with their new national laws woul
d be recognized in the Philippines.
a. In Llorente v. CA (345 SCRA 592 (2000)), the Supreme Court declared the divor
ce decree obtained by a former Filipino to be valid and binding in this jurisdic
tion as a matter of comity. The fact that the late Lorenzo Llorente became an Am
erican citizen long before and at the time of: (1) his divorce from Paula; (2) m
arriage to Alicia; (3) execution of his will; and (4) death, is duly established
, admitted and undisputed. Thus, as a rule, issues arising from these incidents
are necessarily governed by foreign law in accordance with Art. 15 of the Civil
Code.
3. However, a marriage between a Filipino citizen and a foreigner is susceptibl
e to divorce if the divorce is validly obtained abroad by the alien spouse capaci
tating him or her to remarry . . . (thus) the Filipino spouse shall likewise hav
e the capacity to remarry under Philippine law. 8
a. In Van Dorn v. Romillo (139 SCRA 139 (1985)), the Supreme Court held that a v
alid decree of divorce would bind the couple.
b. In Pilapil v. Ibay-Somera (174 SCRA 653 (1989)), the court held that the divo
rce and its legal effects may be recognized in the Philippines insofar as privat
e respondent is concerned in view of the nationality principle in our civil law
on the matter of status of persons. Private respondent, being no longer the husb
and of petitioner, had no legal standing to commence the adultery case under the
imposture that he was the offended spouse at the time he filed suit.
c. In Garcia v. Recio (366 SCRA 437 (2001)), the Supreme Court denied respondent
Recio s contention that the Australian divorce decree adequately established his
legal capacity to marry under Australian law. The divorce decree does not raise
a disputable presumption or presumptive evidence as to his civil status based on
Section 48, Rule 39 49 of the Rules of Court, for the simple reason that no pro
of has been presented on the legal effects of the divorce decree obtained under
Australian laws.
B. VALIDITY OF FOREIGN DIVORCE BETWEEN FOREIGNERS
1. The Hague Convention on the Recognition of Divorce and Legal Separation9 stat
es that a foreign divorce will be recognized in all contracting states if, at th
e date of the institution of the proceedings, a) the respondent or petitioner ha
d his habitual residence there; or b) both spouses were nationals of that state;
or c) if only the petitioner was a national, he should have his habitual reside
nce there.
2. In the United States, under the full faith and credit clause of their constit
ution, a state has the duty to recognize a divorce pronounced in a sister state
when both spouses are domiciled there. When only the plaintiff was domiciled the
re, other conditions such as service of process to the defendant must be fulfill
ed. A divorce rendered by a foreign country is not covered by the full faith and
credit clause but would be recognized under the same circumstances that a siste
r state s divorce decree is given recognition,10 paramount of which is the jurisdi
ction of the foreign court based on the parties domicile.
3. While there is no provision of law requiring Philippine courts to recognize a
foreign divorce decree between non-Filipinos such will be recognized under the
principle of international comity, provided that it does not violate a strongly
held policy of the Philippines.
1 Article 1, FAMILY CODE
2 See also CONST. Art. XV, Secs. 1, 3(1)-(4), 4 and Art. II, Sec. 112 on the nat
ional policy on the family.
3 Rabel, supra, Chap. X, note 1, at 224.
4 Concluded March 14, 1978.
5 Rabel, supra, note 3, at 263.
6 188 P. 2nd 499 (1948)
7 FAMILY CODE, Article 26, par. 2.
8 FAMILY CODE, Article 26, par. 2.
9 Concluded June 1, 1970.
10 Rabel, supra, note 3, at 500-527.
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