MARRIAGE AND DIVORCE

I. Conflict Rules on Status and Capacity (Personal Law)

Personal law, as a concept, is the law which defines an individual’s status and capacity.

A. Theories on Personal Law

(1) Nationality or Personal Theory (lex nationalii)

The status and capacity of an individual are generally governed by the law of his nationality.

(2) Domiciliary or Territorial Theory

The status and capacity of an individual are governed by the law of the domicile.

(3) Situs or Eclectic Theory

The particular place of an event or transaction is determinative of the controlling law.

II. Conflict Rules on Marriage

1. Marriage as a contract

A. Intrinsic validity is generally governed by the parties’ personal laws, either Nationality or
Personal Theory (lex nationalii), or Domiciliary or Territorial Theory.

In the Philippines, our Civil Code in Article 15 adheres to the lex nationalii. Hence,
laws relating to family rights and duties, or the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad.

The legal capacity to contract marriage is determined by the national law of the party
concerned. For Filipino citizens, Article 5 provides that the parties must be a man and a
woman of at least 18 years of age and not under any impediments mentioned in Articles
37 and 38 of the Family Code. For foreigners contracting marriages in the Philippines,
Article 21 of the Family Code requires them to submit a certificate of legal capacity to
contract marriage, issued by their respective diplomatic or consular officials, before they
can be issued a marriage license.

B. Extrinsic validity (formal requisites) is generally governed by lex loci celebrationis or the
law of the place where the marriage is celebrated because of the predictability and the
interstate order arising from society’s interest in marriage.

(1) Between Filipinos celebrated abroad

The validity of marriage is governed by lex loci celebrationis. In accordance with

the first paragraph of Article 26 of the Family Code, if the marriage is valid in the
place of the celebration, the same is also valid in the Philippines. If follows the situs
theory, and not the Nationality Theory.

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 However, the void marriages under Article 35 (1), (4), (5), and (6); Articles 36,
37, 38, and same-sex marriage remain void in the Philippines regardless of the place
of their celebration as they shall still follow the Nationality Theory.

(2) Mixed marriages celebrated abroad

Their validity is governed by lex loci celebrationis. However, marriages that are
highly immoral such as bigamous or polygamous marriages, and universally
considered incestuous marriages such as those under Article 37 of the Family Code
are considered as void regardless of the law of the place where they are celebrated.

(3) Mixed marriages celebrated in the Philippines

The lex nationalii or the national law of the Filipino governs, otherwise, public
policy may be militated against.

(4) Between foreigners celebrated abroad

The validity of marriage is governed by lex loci celebrationis. However,

marriages that are highly immoral such as bigamous or polygamous marriages, and
universally considered incestuous marriages such as those under Article 37 of the
Family Code are considered as void regardless of the law of the place where they are
celebrated.

(5) Between foreigners celebrated in the Philippines

The validity of marriage is governed by lex nationalii or their national laws.

C. Rules on Extrinsic Validity of Certain Situations

(1) Proxy Marriages

Philippine law does not permit proxy marriages but if celebrated in a foreign
state in accordance with the formalities prescribed therein, it may be recognized in
the Philippines under the lex loci celebrationis rule.

(2) Common Law Marriages

Philippine law does not recognize proxy marriages but if valid in the State where
the parties cohabited, it may be recognized in sister States.

(3) Marriage on Board a Vessel on High Seas

The parties must comply with the laws of the nation whose flag the ship is flying.

(4) Consular Marriages

Marriage performed by a consular or diplomatic agent of a sending state is valid

in the receiving state if the latter agreed to his acting in such capacity.

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 (5) Plural Marriages

Where the parties or the husband is a Muslim, the validity of up to four marriages
of the same husband is recognized under the Philippine Muslim Code on Personal
Laws.

2. Marriage as a status

(1) The personal rights and obligations of the spouses

If the spouses have the same nationalities and domicile, their personal rights and marital
obligations are governed by their personal laws either lex nationalii or lex domicilii as the case
may be.

If the spouses have different nationalities or domicile, the personal law of the husband shall
govern their personal rights and marital obligations.

a. The effect of change of nationality of the spouse(s) on their personal rights and
obligations

i. If both spouses acquire a new common nationality, the new national law will
govern.
ii. If only one of the spouses changes his or her nationality, the law of the last
common nationality of the spouses will govern.
iii. If there was never any common nationality or the spouses retain their different
nationalities after the marriage, the national law of both spouses will govern, or
the national law of the husband at the time of the marriage that shall govern.

The rules are subject to the exceptions where the national law of the husband
violates the public policy of the forum; or the national law of the wife is the law of
the forum.

(2) The property relations of the spouses

a. Under the Hague Convention

The internal law designated by the spouses before marriage will govern their
matrimonial property regime. In the absence thereof, the internal law of the state where
the spouses fix their first habitual residence will apply.

b. Under Philippine Rule

If the spouses are both Filipinos and spouses of mixed marriages, it is the
Philippine laws that shall govern, in the absence of contrary stipulation, regardless of
the place of the celebration of marriage and residence of the parties.

However, if both spouses are foreigners, it is the personal law of the husband that
shall govern. With respect to the extrinsic validity of contracts affecting real properties,
it is the lex situs that shall govern, whether the properties are situated in the Philippines
or in a foreign country.

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 c. Doctrine of Immutability of Matrimonial Regime states that the original property
regime at the start of the marriage shall remain regardless of the change of the
nationality on the part of the husband or of the wife or of both.

3. Legal Separation or Relative Divorce

a. Grounds

The grounds for legal separation of spouses having the same nationality are
governed by their national law. However, if the spouses are of different nationalities,
the grounds given under both their national laws shall all be considered proper grounds.

b. Jurisdiction

In case of aliens, jurisdiction is not assumed by the forum state unless the
national law of the parties recognizes its jurisdiction. Foreigners’ married abroad may
file for legal separation in the Philippines as long as jurisdiction over them is obtained.
Other countries may assume jurisdiction on the basis of the domicile of one of the
parties or the matrimonial domicile.

4. Annulment and Declaration of Nullity of Marriages

a. Grounds

The grounds for the annulment and declaration of nullity are governed by lex loci
celebrationis.

However, the void marriages under Article 35 (1), (4), (5), and (6); Articles 36,
37, 38, and same-sex marriage remain void regardless of the place of their celebration,
if the parties are citizens of the Philippines.

b. Jurisdiction

It is vested in the court of the nationality or domicile of the parties, and not the
place of the celebration of the marriage. In cases of Filipino litigants and domiciliaries,
the Philippine courts have jurisdiction.

5. Absolute Divorce obtained abroad

a. Under Hague Convention

The granting of divorce must comply with the national law of the spouses and the
law of the place where the application for divorce is made.

The requisites for a foreign divorce to be recognized in contracting states are

provided at the date of the filing of the proceedings:
i. Petitioner and respondent had habitual residence in the state where the
divorce was obtained;
ii. Both spouses were nationals of the said state; and
iii. Although petitioner was a national of another state, he or she had his or her
residence in the place where the divorce was obtained.

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b. Under Philippine Law

Philippine law does not provide for absolute divorce, hence, our courts cannot
grant it. A marriage between two Filipinos cannot be dissolved even by a divorce
obtained abroad because of Articles 15 and 17 of the Civil Code as the same is
considered contrary to public policy and morality. Because of the Nationality Principle
under Article 15, only Philippine nationals are covered by the policy against absolute
divorces. Hence, in Pilapil vs. Ibay-Somera (G.R. No. 80116, June 30, 1989), the Court
stated that the divorce and its legal effects obtained by a foreigner in Germany in this
case, may be recognized in the Philippines insofar as the foreigner is concerned
provided they are valid according to their national law in view of the Nationality
Principle on the status of persons.

In Van Dorn vs. Romillo, Jr. (G.R. No. 68470, October 8, 1985), where the
husband was no longer a Filipino citizen when he obtained the divorce from his Filipino
spouse, the validity of the divorce was determined based on the law of the country to
which he is a citizen at the time the valid divorce was obtained.

With respect to mixed marriages, Article 26 of the Family Code allows the
Filipino to contract a subsequent marriage in case the divorce is validly obtained abroad
by the alien spouse capacitating him or her to remarry as held in Garcia vs. Recio (G.R.
No. 138322, October 2, 2001). In determining the application of the said provision, the
Court in Republic vs. Orbecido III (G.R. No. 154380, October 5, 2005) held that the
reckoning point is not the citizenship of the parties at the time of the celebration of
marriage but their citizenship at the time a valid divorce is obtained abroad by the alien
spouse capacitating him or her to remarry. Hence, in Republic vs. Iyoy (G.R. No. 15277,
September 21, 2005), Article 26 of the Family Code was held inapplicable because at
the time the divorce was obtained abroad by a Filipino citizen from his/her Filipino
spouse.

In the more recent case of Republic vs. Manalo (G.R. No. 2210229, September
21, 2005), the Court considered valid in the Philippines the divorce obtained abroad by
a Filipino spouse.

c. Right to Re-Marry after Divorce

The divorce must be judicially recognized first by the Philippine courts and
annotated in the local civil registry before the Philippine national can remarry.