OABEL, JEAN MONIQUE C.

LEGAL WRITING
IB-JD5 ATTY. MYRA S. BORROMEO

BAR EXAMINATION QUESTIONS IN PERSONS AND FAMILY RELATIONS

1. Emmanuel and Margarita, American citizens and employees of the U.S. State
Department, got married in the African state of Kenya where sterility is a ground for annulment
of marriage. Thereafter, the spouses were assigned to the U.S. Embassy in Manila. On the first
year of the spouses’ tour of duty in the Philippines, Margarita filed an annulment case against
Emmanuel before a Philippine court on the ground of her husband’s sterility at the time of the
celebration of the marriage.

A. Will the suit prosper? Explain your answer. (2009 Bar Question)

No, the suit will not prosper. The nationality principle set forth in Article 15 of the Civil
Code will govern the relations of Emmanuel and Margarita. Since they are American citizens,
the governing law as to the ground for annulment is not Kenyan law which Margarita invokes in
support of sterility as such ground; but should be U.S. law, which is the national law of both
Emmanuel and Margarita as recognized under Philippine law.

Hence, the Philippine court will not give due course to the case based on Kenyan law.
The nationality principle as expressed in the application of national law of foreign nationals by
Philippine courts is established by precedents .

2. A Filipino couple, Mr. And Mrs. BM, Jr., decided to adopt YV, an orphan from St.
Claire's orphanage In New York City. They loved and treated her like a legitimate child for they
have none of their very own. However, BM, Jr., died In an accident at sea, followed to the grave
a year later by his sick father, BM, Sr. Each left a sizable estate consisting of bank deposits,
lands and buildings in Manila. May the adopted child, YV, inherit from BM, Jr.? May she also
inherit from BM. Sr.? Is there a difference? Why? Explain. (2004 Bar Question)

YV can inherit from BM, Jr. the succession to the estate of BM, Jr. is governed by
Philippine law because he was a Filipino when he died as provided by the Article 16 of the Civil
Code. Also, under Article 1039 of the Civil Code, the capacity of the heir to succeed is governed
by the national law of the decedent and not by the national law of the heir. Hence, whether or not
YV can inherit from BM, Jr. is determined by Philippine law. Under Philippine law, the adopted
inherits from the adopter as a legitimate child of the adopter.

YV, however, cannot inherit, in his own right, from the father of the adopter, BM, Sr.,
because he is not a legal heir of BM, Sr. The legal fiction of adoption exists only between the
adopted and the adopter.. Neither may he inherit from BM, Sr. by representing BM, Jr. because
in representation, the representative must be a legal heir not only of the person he is representing
but also of the decedent from whom the represented was supposed to inherit.

3. BONI and ANNE met while working overseas. They became sweethearts and got
engaged to be married on New Year’s Eve aboard a cruise ship in the Caribbean. They took the
proper license to many in New York City, where there is a Filipino consulate. But as planned the
wedding ceremony was officiated by the captain of the Norwegian-registered vessel in a private
suite among selected friends. Back in Manila, Anne discovered that Boni had been married in
Bacolod City 5 years earlier but divorced in Oslo only last year. His first wife was also a Filipina
but now based in Sweden. Boni himself is a resident of Norway where he and Anne plan to live
permanently. Anne retains your services to advise her on whether her marriage to Boni is valid
under Philippine law? Is there anything else she should do under the circumstances? (2004 Bar
Question)

If Boni is still a Filipino citizen, his legal capacity is governed by Philippine Law. The
law applicable is Art. 15 of the Civil Code. Under Philippine-Law, his marriage to Anne is void
because of a prior existing marriage which was not dissolved by the divorce decreed in Oslo.
Divorce obtained abroad by a Filipino is not recognized.

If Boni was no longer a Filipino citizen, the divorce is valid. Hence, his marriage to Anne
is valid if celebrated in accordance with the law of the place where it was celebrated. Since the
marriage was celebrated aboard a vessel of Norwegian registry, Norwegian law applies. If the
Ship Captain has authority to solemnize the marriage aboard his ship, the marriage is valid and
shall be recognized in the Philippines.

As to the second question, if Boni is still a Filipino, Anne can file an action for
declaration of nullity of her marriage to him.

4. In his lifetime, a Pakistani citizen, ADIL, married three times under Pakistani law. When
he died an old widower, he left behind six children, two sisters, three homes, and an estate worth
at least 30 million pesos in the Philippines. He was born in Lahore but last resided in Cebu City,
where he had a mansion and where two of his youngest children now live and work. Two of his
oldest children are farmers in Sulu, while the two middle-aged children are employees in
Zamboanga City. Finding that the deceased left no will, the youngest son wanted to file intestate
proceedings before the Regional Trial Court of Cebu City. Two other siblings objected, arguing
that it should be in Jolo before a Shari’a court since his lands are in Sulu. But Adil’s sisters in
Pakistan want the proceedings held in Lahore before a Pakistani court.
Which court has jurisdiction and is the proper venue for the intestate proceedings? The law of
which country shall govern succession to his estate? (2004 Bar Question)

In so far as the properties of the decedent located in the Philippines are concerned, they
are governed by Philippine law. The law applicable is the Article 16 of the Civil Code. Under
Philippine law, the proper venue for the settlement of the estate is the domicile of the decedent at
the time of his death. Since the decedent last resided in Cebu City, that is the proper venue for
the intestate settlement of his estate.

However, the successional rights to the estate of ADIL are governed by Pakistani law, his
national law, under Article 16 of the Civil Code.

5. Gene and Jane, Filipinos, met and got married in England while both were taking up
post-graduate courses there. A few years after their graduation, they decided to annul their
marriage. Jane filed an action to annul her marriage to Gene in England on the ground of the
latter’s sterility, a ground for annulment of marriage in England. The English court decreed the
marriage annulled. Returning to the Philippines, Gene asked you whether or not he would now
be free to marry his former girlfriend. What would your legal advice be? (2003 Bar Question)

No, Gene is not free to marry his former girlfriend. His marriage to Jane if valid
according to the forms and solemnities of British law, is valid here. The applicable law is Article
17, 1st paragraph of the New Civil Code. However, since Gene and Jane are still Filipinos,
although living in England, the dissolution of their marriage is still governed by Philippine law
as provided by Article 15 of the NCC. Since, sterility is not one of the grounds for the annulment
of a marriage under Article 45 of the Family Code, the annulment of Gene's marriage to Jane on
that ground is not valid in the Philippines.

6. Miss Universe, from Finland, came to the Philippines on a tourist visa. While in this
country, she fell in love with and married a Filipino doctor. Her tourist visa having been expired
and after the maximum extension allowed therefor, the Bureau of Immigration and Deportation
(BID) is presently demanding that she immediately leave the country but she refuses to do so,
claiming that she is already a Filipino citizen by her marriage to a Filipino citizen. Can the BID
still order the deportation of Miss Universe? Explain. (2003 Bar Question)

Yes, the BID can order the deportation of Miss Universe. The marriage of an alien
woman to a Filipino does not automatically make her a Filipino citizen. She must first prove in
an appropriate proceeding that she does not have any disqualification for Philippine citizenship.
The facts are analogous in the case of Yung Uan Chu v. Republic of the Philippines, 159 SCRA
593 [1988]. Since Miss Universe is still a foreigner, despite her marriage to a Filipino doctor, she
can be deported upon expiry of her allowable stay in the Philippines.

7. Felipe and Felisa, Doth Filipino citizens, were married in Malolos, Bulacan on June 1,
1950.In 1960, Felipe went to the United States, becoming a U.S. citizen in 1975. In 1980, he
obtained a divorce from Felisa, who was duly notified of the proceedings. The divorce decree
became final under California law. Coming back to the Philippines in 1982, Felipe married
Segundina, a Filipino citizen. In 2001, Felipe, then domiciled in Los Angeles, California, died,
leaving one child by Felisa, and another one by Segundina. He left a will which was executed in
Manila, under which he left his estate to Segundina and his two children and nothing to Felisa.
Segundina files a petition for the probate of Felipe’s will. Felisa questions the intrinsic validity of
the will, arguing that her marriage to Felipe subsisted despite the divorce obtained by Felipe
because said divorce is not recognized in the Philippines. For this reason, she claims that the
properties left by Felipe are their conjugal properties and that Segundina has no successional
rights.

A. Is the divorce secured by Felipe in California recognizable and valid in the

Philippines? How does it affect Felipe’s marriage to Felisa? Explain. (2%)
B. What law governs the formalities of the will? Explain. (1%)
C. Will Philippine law govern the intrinsic validity of the will? Explain. (2%) (2002 Bar
Question)

A. (1) The divorce secured by Felipe in California is recognizable and valid in the Philippines
because he was no longer a Filipino at the time he secured it. Aliens may obtain divorces abroad
which may be recognized in the Philippines provided that they are valid according to their
national law.

(2) With respect to Felipe the divorce is valid, but with respect to Felisa it is not. The divorce
will not capacitate Felisa to remarry because she and Felipe were both Filipinos at the time of
their marriage. However, in DOJ Opinion No. 134 series of 1993, Felisa is allowed to remarry
because the injustice sought to be corrected by Article 26 also obtains in her case.

B. The foreigner who executes his will in the Philippines may observe the formalities prescribed
in:
a. the law of the country of which he is a citizen under Article 817 of the New Civil code, or
b. the law of the Philippines being the law of the place of execution under Article 17 of the New
Civil Code.

C. Philippine law will not govern the instrinsic validity of the will. Article 16 of the New Civil
Code provides that intrinsic validity of testamentary provisions shall be governed by the national
law of the person whose succession is under consideration. California law will govern the
intrinsic validity of the will.

8. Alex was born a Filipino but was a naturalized Canadian citizen at the time of his death
on December 25, 1998. He left behind a last will and testament in which he bequeathed all his
properties, real and personal, in the Philippines to his acknowledged illegitimate Filipina
daughter and nothing to his two legitimate Filipino sons. The sons sought the annulment of the
last will and testament on the ground that it deprived them of their legitimes but the daughter was
able to prove that there were no compulsory heirs or legitimes under Canadian law. Who should
prevail? Why? (2002 Bar Question)

The daughter should prevail because Article 16 of the New Civil Code provides that intestate and
testamentary succession shall be governed by the national law of the person whose succession is
under consideration.

9. It is said that “equity follows the law” What do you understand by this phrase, and what
are its basic implications? (2003 Bar Question)

“Equity follows the law” means that courts exercising equity jurisdiction are bound by rules of
law and have no arbitrary discretion to disregard them. Equity is applied only in the absence of
but never against statutory law.

10. Juan is a Filipino citizen residing in Tokyo. Japan. State what laws govern:

A. His capacity to contract marriage in Japan. [1%]

B. His successional rights as regards his deceased Filipino father's property in Texas, U.SA [1%]
C. The extrinsic validity of the last will and testament which Juan executed while sojourning in
Switzerland. [2%]
D. The intrinsic validity of said will. [1%] (1998 Bar Question)

A. Juan's capacity to contract marriage la governed by Philippine law - i.e., the Family Code -
pursuant to Art. 15, Civil Code, which provides that our laws relating to, among others, legal
capacity of persons are binding upon citizens of the Philippines even though living abroad.

B. By way of exception to the general rule of lex rei sitae prescribed by the first paragraph of
Art. 16, Civil Code, a person's successional rights are governed by the national law of the
decedent (2nd par., Art. 16). Since Juan's deceased father was a Filipino citizen, Philippine law
governs Juan's successional rights.

C. The extrinsic validity of Juan's will is governed by (a) Swiss law, it being the law where the
will was made as provided by the Art. 17, 1st paragraph of the Civil Code), or (b) Philippine law,
by implication from the provisions of Art. 816, Civil Code, which allows even an alien who is
abroad to make a will in conformity with our Civil Code.

D. The intrinsic validity of his will is governed by Philippine law, it being his national law as
provided by Art. 16 of the Civil Code).