CONFLICT OF LAWS

Midterm Reviewer

IN GENERAL
CONFLICT OF LAWS That part of law which comes into play when the issue before the court affects some fact, event, or transaction that is so clearly connected with a foreign system of law as to necessitate recourse to that system. Part of the MUNICIPAL LAW of a state (not part of International Law). CONFLICT Private Individuals or Corporations Municipal in character. Strictly personal in nature. Judicial or administrative PIL Sovereign States, UN, etc. International in character. Generally affect public interest Diplomatic negotiations, mediation, etc. OR reprisals, embargo, war RES PERSON

PERSONS NATURE TRANSACTION

- BUT, in Conflict, the POSSIBLE ENFORCEABILITY of its Decision in foreign states must also be considered. - The competence/power of the court to render a judgment that will bind the parties involved. - Plaintiff acquired the moment action is instituted. - Defendant when appearance is entered voluntarily OR by the coercive power of legal process (summons). *personal appearance = consent, but not when it is for the sole purpose of questioning the jurisdiction of the court. SUMMONS [when in Pesonam] a. Personal Service i. To the defendant in person; or ii. Tendering it to him b. Substituted Service i. With some person of suitable age and discretion in defendants residence ii. With some competent person in charge of defendants office - Over the thing/particular subject-matter in controversy. - The purpose of the suit in this case is to affect interests of all persons in a thing [binds the whole world]. *quasi in rem affects the interest of particular persons in a thing. SUMMONS [when in Rem] a. Personal Service b. Substituted Service c. By Publication Only in rem, quasi in rem, involves personal status of the Plaintiff. d. Extra-territorial Service i. By Personal Service ii. By Publication [but copy of summons and order must be sent by reg. mail to last known address] iii. In Any Other Manner that the Court may deem Sufficient Grounds: D does not reside and is not found in the Phils. and the action affects personal status of the P D does not reside and is not found in the Phils. and action relates to property w/in Phils. w/c D has a claim, lien, or interest (actual or contingent). D is a non-resident but the subject of the action is property located in the Phils., in

REMEDIES

CONFLICT OF LAWS CASE any case which involves facts occurring in more than one state or nation, so that in deciding the case, it is necessary to make a choice between laws of different states or countries. *States here do not only mean foreign sovereign countries but also political subdivisions of states (i.e. State of Texas, New York, etc.).

JURISDICTION & CHOICE OF LAW

HOW TO DEAL WITH CONFLICT PROBLEM 1. Determine if the court has JURISDICTION If YES It should then determine whether it should assume jurisdiction or dismiss case based on forum non conveniens. 2. Determine whether to apply the INTERNAL or FOREIGN law. JURISDICTION is conferred by law. SUBJECT - Defined as the power to hear and MATTER determine the cases of the general class to which the proceedings in question belong. - Must be invoked by filing the appropriate COMPLAINT or PETITION [C/P]. - Generally, the court needs only to look at the face of the C/P to determine w.o.n. it has jurisdiction. - If there is prima facie showing of jurisdiction TRIAL. If evidence shows that it has no jurisdiction DISMISS.

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW Based on Sempio-Diy Book

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w/c the relief demanded consists, wholly/in part, in excluding the D from any interest therein. When prop. of a non-resident defendant has been attached in the Phils. FORUM NON CONVENIENS court may refuse to exercise or assume jurisdiction, in view of the ff. practical reasons: a. Evidence and witnesses not readily available b. Court docket is already clogged c. Matter can be better tried and decided in another jurisdiction (main aspects of the case transpired there or witnesses are there). d. Curb evils of forum shopping e. Forum has no particular interest in the case f. Other courts are open and the case may be better tried in said courts g. Inadequacy of the local judicial machinery for effectuating right sought to be enforced h. Difficulty of ascertaining foreign law available. INSTANCES WHEN INTERNAL/DOMESTIC LAW HAS TO BE APPLIED 1. Law of the FORUM EXPRESSLY SO PROVIDES in its conflicts rules 2. When the PROPER FOREIGN LAW has NOT BEEN PROPERLY PLEADED AND PROVED *the court assumes that the foreign law is the same as the internal law [aka PROCESSUAL PRESUMPTION]. To Prove Foreign Law: Written a. Official Publication b. COPY OF THE LAW ATTESTED by the OFFICER HAVING LEGAL CUSTODY of the record or his deputy, accompanied by a CERTIFICATE of any Phil. embassy, consular, or foreign service officer in the foreign country where the record is kept and AUTHENTICATED BY THE SEAL of his office. Unwritten a. Oral testimony of EXPERT WITNESS b. Printed and published books of reports of DECISIONS of the country involved (if proved to be commonly admitted in its courts). 3. Case involves any of the EXCEPTIONS to the application of the proper foreign law. *Foreign law is to be interpreted in the same way as the courts of the country where it comes from interprets it. EXC: when we have a statute worded identically we can apply the interpretation of our courts. WHEN FOREIGN LAW CANNOT BE APPLIED a. It runs counter to sound and established public policy of the forum.

b. Foreign law is contrary to the almost universally conceded principles of morality. c. Foreign law involves procedural matters d. It is penal in character e. It is purely fiscal/administrative in nature f. Will work undeniable injustice to the citizens or residents of the forum g. Application would endanger the vital interests of the State. h. Case involves real or personal property located in our country.

THEORIES THAT JUSTIFY APPLICATION OF FOREIGN LAW

THEORY OF COMITY No foreign law would be allowed to operate in another state except by the comity of nations i.e. the reciprocal courtesy w/c members of the family of nations owe to one another. 2 Principles (Based on): Reciprocity Persuasiveness of a Foreign Judgment Vested rights should be protected. Courts enforce not the foreign law or foreign judgment but the right or rights that have been vested under such law or judgment. Rights once acquired under foreign law or judgment should be enforced regardless of where the suit for its enforcement is filed. EXC when foreign law is against public policy of the forum. We apply the foreign law not because it is foreign, but because our own law, by applying a similar rule, requires us to do so. Identical or similar problems should be given identical or similar solutions. The proper foreign law should be applied to attain the dispensation of justice

VESTED-RIGHT

LOCAL LAW

HARMONY LAWS JUSTICE

OF

*NOT EXCLUSIVE in the absence of an applicable provision in the code or statute, the various theories should be examined and weighed as the bear on a given conflicts problem.NO SINGLE THEORY contains the whole truth, no one approach is completely valid.

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW Based on Sempio-Diy Book

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NATURE & COMPOSITION OF CONFLICT RULES

A conflicts rule or provision of law is a provision found in our own law which governs a factual situation possessed of a foreign element. 2 KINDS 1. ONE-SIDED RULE indicates when Philippine law may apply. i.e.
Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669)

status, capacity, condition, family relations and the consequences of his action. STATUS Consists of personal qualities and relationships, more or less permanent, with which the state and the community are concerned. i.e.: Civil status of a person, paternity and filiation CAPACITY Only part of ones status.

DIFFERENT THEORIES ON HOW THE PERSONAL LAW OF AN INDIVIDUAL IS DETERMINED: a. The NATIONALITY THEORY(aka personal theory) status and capacity of a person is determined by the law of his nationality or his national law The DOMICILIARY THEORY (aka territorial theory) status and capacity of a person is determined by the law of his domicile The SITUS or ECLECTIC THEORY the law of the particular place or situs of an event or transaction as generally the controlling law.

2. ALL-SIDED/MULTILATERAL RULE indicates whether to apply local law or the proper foreign law. i.e.
Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

b.

c.

PARTS OF EVERY CONFLICTS RULE 1. FACTUAL SITUATION 2. POINT OF CONTACT OR CONNECTING FACTOR The 1st states certain operative facts, the legal consequences of which are determined in the 2nd part (the 1st part raises while the 2nd part answers). Characterization process of assigning a certain set of facts or factual situation to its proper or correct legal category. By categorizing the legal problem (i.e. tort, contract, succession, etc.) the court or the parties involved reach the proper solution whether to apply the local law or the proper foreign law. a.k.a. classification or qualification LEX FORI determines the problems characterization [on the ground of necessity and convenience]. *unless the result would be a clear injustice.

*In the Philippines, we follow the NATIONALITY THEORY.

THE NATIONALITY THEORY

The NATIONALITY THEORY (aka personal theory) status and capacity of a person is determined by the LAW OF HIS NATIONALITY OR HIS NATIONAL LAW. In the field of conflict of laws, nationality and citizenship are the same [nationality=citizenship]. DIFFERENT KINDS OF CITIZENS IN THE PHILIPPINES: 1. NATURAL-BORN CITIZENS who are citizens from birth without having to perform any act to acquire or perfect their Philippine citizenship 2. Citizens BY NATURALIZATION formerly aliens but by judicial, legislative or administrative process, they have become Filipino citizens. Each country or state has the sole power and authority to determine under its internal or municipal law who are its citizens or nationals (Art. 2 of the Hague Convention on Conflict of Nationality Laws). Therefore, as long as he is a Filipino citizen, our country is not concerned if he has any other citizenship. he has NO NATIONAL

PERSONAL LAW- THEORIES ON DETERMINING PERSONAL LAW

PERSONS PERSONAL LAW that which attaches to him wherever he may go; the law that generally governs his

In case of a STATELESS PERSON LAW! RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW Based on Sempio-Diy Book

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Therefore the nationality theory cannot be applied. In this case, the court shall apply the law of his domicile or if he has none, the law of the country of his temporary domicile. CITIZENSHIP OF A FILIPINO WOMAN WHO MARRIES A FOREIGNER Under the 1987 Constitution, citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission, they are deemed, under the law, to have renounced their Philippine citizenship. (This provision now applies to both males and females who marry aliens) CITIZENSHIP OF AN ALIEN WOMAN WHO MARRIES A FILIPINO HUSBAND An alien woman marrying a Filipino, native-born or naturalized, becomes ipso fact a Filipino provided that she is not disqualified to be a citizen of the Philippines under Sec. 4 of the same law. Note: an alien woman married to an alien husband who (the husband) subsequently naturalized also follows the Philippine citizenship of her husband provided that she does not suffer any of the disqualifications.

abode

loyalty

IMPORTANCE OF KNOWING THE DOMICILIARY THEORY (although our country follows the nationality theory) a. In some cases, our own law makes the law of the domicile of a person the controlling factor in the solution of conflict cases b. Sometimes, our law makes either the law of ones nationality or that of his domicile as the controlling factor c. In cases of stateless individuals, or those with dual or multiple nationalities, the domiciliary theory runs to the rescue of the nationality theory d. Citizens of countries like the US or Great Britain, which follow the domiciliary theory, may become involved in litigation in our country which follows the nationality theory. DIFFERENT KINDS OF DOMICILE a. Domicile of ORIGIN domicile assigned by law to a person at the moment of his birth. This never changes for a person is born only once. b. CONSTRUCTIVE Domicile/Domicile by operation of Law the domicile assigned by law to a person after birth on account of a legal disability, like minority, insanity, imprisonment, etc. This may change from time to time. c. Domicile of CHOICE domicile of a person sui juris because he has his home there and to which, whenever absent, he intends to return. RULES IN DETERMINING ONES DOMICILE OF ORIGIN A. LEGITIMATE CHILD His domicile of origin is that of his parents at the time of this birth If parents are separated, the domicile of the custodial parents B. ILLEGITIMATE CHILD The domicile of origin is that of the mother at the time of his birth C. LEGITIMATED The domicile of his father at the time of his birth D. ADOPTED CHILD The domicile of his real parents at the time of his birth E. FOUNDLING His domicile of origin is the country where he was found. RULES ON DETERMINING ONES CONSTRUCTIVE DOMICILE 1. MINORS a. Legitimate- domicile of both parents. In case of disagreement, that of the father unless there is judicial order to the contrary. b. Illegitimate- domicile of the mother

THE DOMICILIARY THEORY

DOMICILIARY THEORY It is the theory whereby the status, condition, family rights and obligations, and capacity of a person are governed by the law of his domicile. DOMICILE defined It is the place where a person has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning (Story, Conflict of Laws, Sec. 41) For the exercise of civil rights and fulfillment of civil obligation, the domicile of natural persons is the place if their habitual residence (Art. 50, NCC) No person can ever be without a domicile A person cannot have two simultaneous domiciles A natural person, free, and one of age and under no disability can change his domicile at pleasure DOMICILE Relatively more permanent abode of a person Fixed, permanent residence to which, when absent, one has the intention of returning RESIDENCE Temporary stay of a person in a given place A place of abode, whether permanent or temporary

*Residence is not domicile but domicile is residence DOMICILE Ones permanent place of CITIZENSHIP Ties of allegiance and

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c.

d.

In case of absence or death of either parent, the domicile of the present parent. Adopted- domicile of choice of the adopter.

The capacity, condition, status and family relations of a person are governed not necessarily by the law of his nationality, or the law of his domicile, but by the law of the place where an important element of the problem occurs or situated. 2 KINDS OF PARTICIPATION OF INDIVIDUAL CONCERNED A. Active Participation when the act is done voluntarily, the governing law is the actual situs of the transaction or event. i.e.: in the act of getting married is voluntarily, the validity of the marriage is governed by its actual situs or lex loci celebrationis B. Passive Participation the effects of the act are set forth or determined by law, the governing law is the law of the legal situs; i.e., the domicile of the individual concerned. i.e.: with respect to the rights and obligations, and property relations, of the Filipino couple, however, they are governed by the national law of the spouses, which regulates or fixes such matters between them. *If the transaction involves property, real or personal, the law that determines the validity of transaction is lex situs or lex rei sitae (law of the country where it is situated) THE PROBLEM OF THE RENVOI RENVOI means refer back RENVOI PROBLEM arises when there is doubt as to whether the reference by the lex fori to the foreign law involves a reference to the INTERNAL LAW of the foreign law or a reference to the ENTIRETY of the foreign law [including its conflicts rules]. Note: 2 PARTS OF EVERY MUNICIPAL LAW 1. Purely internal or DOMESTIC LAW 2. Rules in CONFLICT OF LAWS 4 SOLUTIONS COURT CAN ADOPT WHEN CONFRONTED WITH RENVOI 1. REJECT the court does not want the case to be sent back to us. 2. ACCEPT accepts the referral back of the case [Philippine law will therefore be applied]. 3. *single renvoi/transmission 4. THEORY OF DESISTMENT i.e. we refrain from applying national law if said law follows the domiciliary theory [in the end, we still apply Philippine law].

2.

INSANE, IDIOTS, IMBECILE They cannot select their own domicile, the law assigns their domicile to them. a. If they are below the age of majority, the rules on minors apply to them b. If they are of age and have guardians, they follow the domicile of choice of their guardians. If they have no guardians, their constructive domicile is their domicile of choice before they became insane. MARRIED WOMEN A. VALID MARRIAGE i. The constructive domicile of the wife is the domicile of both spouses unless the law allows the wife to have a separate domicile. ii. If there is legal separation between the spouses, the wife can have her own domicile of choice iii. If there is a separation de facto, the wife can also have a separate domicile. B. VOIDABLE MARRIAGE Apply the same rules as when the marriage was valid After annulment, the wife can freely select her own domicile of choice C. VOID MARRIAGE Wife can have a domicile separate from the husband. OTHER PERSONS a. CONVICT OR PRISONER his domicile is the one he had possessed prior to his incarceration. b. SOLDIERS domicile before their enlistment c. PUBLIC OFFICIALS OR EMPLOYEES ABROAD like diplomats, consular officials, etc. domicile is the one they had before they were assigned elsewhere, unless they voluntarily adopt their place of employment as their permanent residence.

3.

4.

THE SITUS OR ECLECTIC THEORY

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW Based on Sempio-Diy Book

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5. FOREIGN COURT THEORY simply do what the foreign court would do if confronted with the same problem. DOUBLE RENVOI when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi. But since the foreign law remits the case to Philippine law, being the law of the deceaseds domicile, the foreign court may discover that Philippine law does not accept the remission, so the foreign court, sitting as a Philippine court, would still apply its own internal law. This is then what our court will apply. TRANSMISSION process of applying the law of a foreign state thru the law ofr a second foreign state. i.e. chinese citizen domiciled in the Philippines but died with properties in England. English law [following domiciliary thoey] will refer to Philippine law. Philippine law [following National theory] will refer to Chinese law. Chinese law will then be ultimately applied. Fairness, equity, and justice are to be considered in detemining the course of action with renvoi problems.

the presence of not less than two witnesses of legal age. (53a, 55a)

Absence of any formal or essential requisite will render the marriage VOID AB INITIO. EXC: Art. 35 (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so. BUT an irregularity in the formal requisite shall not affect the validity of the marriage (only party liable for irregularity will be liable). Art. 2 and 3 also applies to FOREIGNERS who get married in the Phils. *if one or both of the parties are FOREIGNERS Certificate of Legal Capacity to Contract Marriage must be issued by the diplomatic or consular officials of her country in the Phils. **if STATELESS person only an Affidavit stating capacity to marry (capacity is based on law of domicile). COMMON LAW MARRIAGES IN THE PHILS. Between Filipinos VOID Between Foreigners who came to the country as husband and wife as a result of such a union VALID. *but must not be contra bonus mores or universally considered incestuous. WHEN 2 FILIPINOS MARRY EACH OTHER ABROAD
Art. 26. 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, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38. (17a)

CONFLICT RULES ON MARRIAGE

Arise due to the different public policies, cultures, or codes of morality of countries thereby leading to different laws in determining the validity of marriage as a contract. To deny validity to marriages that do not conform to our idea or concept of marriage would create a very serious problem in, among other things: a. Status of children b. Property relations bet. spouses c. Parental authority d. Rights of succession bet. spouses and members of their family PHILIPPINE INTERNAL LAW ON VALIDITY OF MARRIAGES
Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. (53a) Art. 3. The formal requisites of marriage are: (1) Authority of the solemnizing officer; (2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and (3) 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 in

We follow LEX LOCI CELEBRATIONIS valid there, valid here! EXC: 1 or both did not have CAPACITY BIGAMOUS or POLYGAMOUS No CONSENT (Mistaken Identity) PSYCHOLOGICAL INCAPACITY INCESTUOUS Void by reason of PUBLIC POLICY Marriage by 2 Filipinos abroad may be conducted by a COUNSUL-GENERAL, CONSUL or VICE-CONSUL (Consular official performs the duties of the civil registrar and the solemnizing officer). WHEN 2 FOREIGNERS MARRY EACH OTHER ABROAD

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW Based on Sempio-Diy Book

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We still apply LEX LOCI CELEBRATIONIS BUT, we do not apply ALL the exceptions in Art. 26 INCESTUOS marriages are the only EXCEPTION. *or those marriages highly immoral i.e. bigamous or polygamous in Christian countries. WHEN FILIPINO & FOREIGNER MARRY EACH OTHER ABROAD (Mixed Marriage Abroad) If the marriage is VOID AS TO ONE AND VALID AS TO THE OTHER VALID! EXCEPT: universally incestuous or highly immoral. WHEN FILIPINO & FOREIGNER MARRY EACH OTHER IN THE PHILS. (Mixed Marriage Here) Our LAW should be followed otherwise, our public policy would be violated (both as to the intrinsic and extrinsic). MARRIAGE AS A STATUS 2 ASPECTS 1. Personal Rights and Obligations of the Spouses (Personal Relations) purely personal to the spouses. 2. Property Relations law lays down rules and judicial sanctions. PERSONAL RELATIONS 1. BOTH FILIPINOS Philippine Law (Nationality Theory) 2. SAME NATIONALITIES (Other than Filipino) Depends if they are governed by the Nationality Theory or Domiciliary Theory. 3. SPOUSES OF DIFFERENT NATIONALITIES Depends on the national law of the husband (w.o.n. it adheres to Nationality or Domiciliary Theory). EXC: National Law of the husband violates the public policy of the forum or the national law of the wife happens to be the law of the forum. *Filipina who Marries a Foreigner she shall retain her Filipino citizenship unless by her acts she is deemed to have renounced her citizenship this means she is still protected by her national law (Philippine Law) and their personal relations will be governed by it. WHEN THERE IS ACQUISITION OF NEW NATIONALITY 1. IF BOTH ACQUIRE NEW ONE BY THEIR COMMON ACT new national law will govern 2. IF HUSBAND ALONE CHANGES last common nationality of the spouses (to avoid prejudice to the wife who would suffer a change in her rights without any free exercise of choice on her part).

PERSONAL RIGHTS AND DUTIES OF HUSBAND AND WIFE UNDER PHILIPPINE LAW a. To live together, observe mutual love, respect, and fidelity, and render mutual help and support. b. To fix together the family domicile (in case of disagreement the court shall decide). c. Jointly responsible for support of the family d. Management of the household e. Aggrieved spouse may apply to the court for relief in case one spouse neglects his or her duties, etc. f. To exercise a legitimate profession without consent of the other (EXC when objections are raised on valid, serious, and moral grounds). PROPERTY RELATIONS BOTH FILIPINOS Philippine Law. SAME NATIONALITIES (Both Foreigners) Depends if they are governed by the Nationality Theory or the Domiciliary Theory. DIFFERENT NATIONALITIES (Filipino and Foreigner) *Filipina who Marries a Foreigner she shall retain her Filipino citizenship unless by her acts she is deemed to have renounced her citizenship this means she is still protected by her national law (PHILIPPINE LAW) and their property relations will be governed by it as well. DIFFERENT NATIONALITIES (Both Foreigners) law of the husband. **with respect to the EXTRINSIC VALIDITY of contracts affecting real property LEX SITUS governs. WHEN THERE IS ACQUISITION OF NEW NATIONALITY Apply the DOCTRINE OF IMMUTABILITY OF MATRIMONIAL REGIME Regardless of the change of nationality of the husband or the wife or both, the original property regime that prevailed at the start of their marriage prevails. Reasons for the Rule: a. Marital Peace b. Avoid Prejudice to Creditors c. For spouses to protect themselves from each other **Immutability of Property Regime is different from Immutability of the law governing said regime. ANNULMENT AND DECLARATION OF NULLITY OF MARRIAGE PRELIMINARY MATTERS ANNULMENT remedy if the marriage is voidable or annullable.

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DECLARATION OF NULLITY remedy if the marriage is void ab initio. VOIDABLE MARRIAGE Can be validated either by free cohabitation or prescription. Same property regime as in a valid marriage. Children are legitimate if conceived before the decree of annulment. Marriage attacked attacked. cannot be collaterally VOID MARRIAGE Cannot be convalidated. The only property relationship between the parties is a co-ownership (Art. 147-148). Children are illegitimate (EXC those children of void marriages under Art. 36 and 53). Marriage may be attacked directly or collaterally. Marriage can still be impugned even after the death of the spouses.

Art. 26, par. 2. 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 have capacity to remarry under Philippine law.

This is meant to avoid the absurd situation where a Filipino is still married to his or her alien spouse although the latter is no longer married to the former and may already have another spouse. *This does not apply when the divorce was obtained abroad by a Filipino spouse because they are governed by Phil. laws and our laws do not allow divorce. **BUT, Divorce obtained by Filipino citizens after they have been naturalized is recognized. Dissent of Sempio-Diy: Divorce obtained by Filipinos who have been naturalized are recognized not under Art. 26, par. 2 which should apply only to mixed marriages but by applying the rules on Conflict of Laws (p. 119). In the Phils., a Decree of DIVORCE obtained abroad by alien spouses is recognized IF VALID UNDER THEIR NATIONAL LAW. LEGAL SEPARATION OR RELATIVE DIVORCE ABSOLUTE DIVORCE dissolves the marriage and the parties can marry again. LEGAL SEPARATION only separation from bed and board but the parties remain married. LEGAL SEPARATION Marriage is not defective. Grounds arise marriage. after the ANNULMENT Marriage is defective. Grounds must exist at the time or before the celebration of the marriage. Marriage is set aside and the parties can marry again. Grounds for annulment are those given by the lex loci celebrationis (subj. to certain execptions).

Marriage can no longer be impugned after the death of the spouses.

*JUDICIAL DECLARATION OF NULLITY MUST BE SOUGHT The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void (in other words, you cannot assume!). Otherwise, the subsequent marriage will be considered BIGAMOUS and VOID! CONFLICT RULES GR: The LEX LOCI CELEBRATIONIS is applied. The law that determines validity should also be the law that determines invalidity. EXCEPTIONS: 1. When 2 FILIPINOS marry abroad the grounds are the exceptions to in Art. 26, namely: a. 1 or both did not have CAPACITY b. BIGAMOUS or POLYGAMOUS c. No CONSENT (Mistaken Identity) d. PSYCHOLOGICAL INCAPACITY E. INCESTUOUS f. Void by reason of PUBLIC POLICY 2. As to FOREIGNERS who marry abroad exceptions are: a. Highly immoral marriages b. Universally incestuous marriages ABSOLUTE DIVORCE GR: Family Code does not allow DIVORCE. EXC: that which is validly obtained by a Foreigner from his or her Filipino spouse capacitating him or her to remarry.

Parties are still married to each other and cannot remarry. Grounds are those given by the national law or the domiciliary law of the parties concerned (question is one of status).

CONFLICT RULES 1. SAME NATIONALITY grounds are those given by their personal law (whether national or domiciliary).

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW Based on Sempio-Diy Book

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2. DIFFERENT NATIONALITIES personal law of the husband and the wife are both available (Hague Convention). JURISDICTION In case of aliens, we do not assume jurisdiction unless the national law of the parties is willing to recognize its jurisdiction. Foreigners may ask for legal separation here even if they did not get married in this country what is important is jurisdiction over both parties (and the procedural requirements are complied with). *it is enough that the petitioner foreigner has resided in the Phils. for 6 mos.
Art. 55. A petition for legal separation may be filed on any of the following grounds: (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 of more than six 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 Philippines or abroad; (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a) Art. 56. The petition for legal separation shall be denied on any of the following grounds: (1) Where the aggrieved party has condoned the offense or act complained of; (2) Where the aggrieved party has consented to the commission of the offense or act complained of; (3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation; (4) Where both parties have given ground for legal separation; (5) Where there is collusion between the parties to obtain decree of legal separation; or (6) Where the action is barred by prescription. (100a)

Prescriptive period is 5 years from the time of the occurrence of the cause. Wife cannot drop the name of the husband, whether she is the guilty party or not.

CONFLICT RULES ON STATUS OF CHILDREN

LEGITIMACY IF THE PARENTS HAVE THE SAME NATIONALITY common national law of the parents. IF DIFFERENT NATIONALITIES national law of the father. LEGITIMATE CHILDREN conceived or born during the marriage of the parents. *children born of void marriages under Art. 36 (psychological incapacity) and Art. 53 (born before parent delivers the presumptive legitime). **children conceived as a result of artificial insemination are considered legitimate. ILLEGITIMATE CHILDREN children conceived and born outside a valid marriage xxx unless otherwise provided in the Code. LEGITIMATE/D Bear surname of the father and the mother To receive support from their parents, ascendants, brothers and sisters Entitled to legitime and other successional rights. ILLEGITIMATE Use surname of the mother (or the father if recognized). Under parental authority of the mother Support Legitime (equal to of the legitimate child)

DETERMINING RIGHTS AND DUTIES BETWEEN PARENT AND CHILD If LEGITIMATE PARENTS HAVE SAME NATIONALITIES their common personal law. DIFFERENT NATIONALITIES personal law of the father. If ILLEGITIMATE Personal law of the MOTHER. BUT, personal law of the father applies if the child is subsequently recognized. DOCTRINE OF IMMUTABILITY OF STATUS Status of a child is not affected by a subsequent change of nationality of the parents. BUT, the rights and duties of parent and child would, after the parents change of nationality,

RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW Based on Sempio-Diy Book

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be governed by the new national law of the parents. LEGITIMATION Legitimization a process whereby children who in fact were born in lawful wedlock and should therefore be ordinarily considered illegitimate children are regarded as legitimate. *Legitimated children have the same rights as legitimate children (Art. 179, FC). The common national law of the parents governs. IF the parents have different nationalities, the national law of the father governs. *in countries following the domiciliary theory, the law of the domicile of the parents govern or the law of the domicile of the father. REQUISITES IN ORDER FOR A CHILD TO BE LEGITIMATED:
Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated. (269a)

DOCTRINE OF IMMUTABILITY OF STATUS applies. Therefore, despite the change of citizenship/personal laws of the parents/father status as legitimated child remains. **this is the same as in a legitimate child because. . .
Art. 180. The effects of legitimation shall retroact to the time of the child's birth. (273a)

ADOPTION Current Applicable Laws 1. RA 8043 Inter-Country Adoption 2. RA 8552 Domestic Adoption LAW THAT DETERMINES RELATIONSHIP CREATED The childs personal law (to protect his well-being). BUT, if the child does not reside in the country of his citizenship personal law of the adopter OR personal law of the child and the adopter concurrently. LAW THAT DETERMINES THE LEGAL EFFECTS Determined by the same law that relationship of adoption.

a. FILIPINO CITIZEN of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. *sixteen (16) year difference between the age of the adopter and adoptee may be waived when: i. adopter is the biological parent of the adoptee ii. Adopter is the spouse of the adoptee's parent. b. ALIEN possessing the same qualifications as above stated for Filipino nationals. Provided: his/her country has diplomatic relations with the Philippines he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application and maintains such residence until the adoption decree is entered he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter. Provided, Further, That the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following: i. a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or ii. one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or iii. one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse. c. GUARDIAN with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. RA 8552 requires HUSBAND and WIFE to adopt jointly. EXC: a. When one spouse seeks to adopt his/her own illegitimate child b. When one spouse seeks to adopt the illegitimate child of the other c. Where spouses are legally separated other spouse can adopt alone without the consent of the other. LEGAL EFFECTS OF ADOPTION (UNDER PHILIPPINE LAW)

created

the

LEGAL EFFECTS OF ADOPTION (GENERAL) 1. Successional rights of the adopted child 2. Parental authority 3. Use of the surname of the adopter WHO MAY ADOPT Sec. 7, RA 8552 (this is the one discussed by Sempio-Diy)

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1. All legal ties between the biological parent/s and the adopted child are severed and the same shall be vested in the adopter/s (EXC where the biological parent is the spouse of the adopter). 2. The adopted child shall be considered for all intents and purposes to be the legitimate child of the adopter/s (same rights as legitimate child). 3. Adopter/s and the adopted child shall have reciprocal rights of succession. Adoption proceedings are IN REM (Publication is required). Mere agreement of adoption is not a valid adoption COURT DECREE is required. Mere registration of the child in the civil registry as the child of the adopter is not a valid adoption. Capacity and right of the adopter is determined by the law enforced at the time petition is filed. RECOGNITION OF FOREIGN DECREE OF ADOPTION Under Sec. 48 of Rule 39 we can recognize the foreign decree of adoption provided the foreign court had jurisdiction to render the said decree. Also there should not have been: a. Want of notice b. Collusion c. Extrinsic Fraud d. Clear mistake of law and fact

d. For HOLOGRAPHIC Wills only requirements are: it must be entirely written, dated, and signed by the hand of the testator himself (no other req.). 2. INTRINSIC VALIDITY GR: Determined by LEX NATIONALII or LEX DOMICILII. Philippines applies lex nationalii. *JOINT WILLS Filipinos cannot make joint wills whether here or abroad notwithstanding lex loci celebrationis. Joint wills made by aliens abroad shall be considered valid in the Phils. if valid according to lex nationalii, lex domicilii, or lex loci celebrationis. Joint wills made by an alien and a Filipino are valid only as to the alien if his lex nationalii, lex domicilii, or lex loci celebrationis allows it. Joint wills made by aliens in the Philippines are void as a matter of public policy. INTESTATE SUCCESSION Law of the country where one is a citizen or law of the country where he is domiciled. In the Phils., we apply lex nationalii. REVOCATION OF WILLS
Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. (n)

CONFLICT RULES ON WILLS, SUCCESSION, and ADMINISTRATION OF THE ESTATE OF DECEASED PERSONS
2 THEORIES IN DETERMINING PROPER TRANSMISSION OF SUCCESSIONAL RIGHTS LAW FOR

1. UNITARY OR SINGLE SYSTEM only one law determines transmission of real as well as personal properties. 2. SPLIT OR SCISSION SYSTEM succession to real property is governed by lex situs while succession to movable or personal property is governed by law of the domicile of the deceased at the time of his death. VALIDITY OF WILLS 1. EXTRINSIC VALIDITY a. FILIPINO Abroad he may comply with the formalities of Philippine law or the lex loci celebrationis. B. ALIEN Abroad lex nationalii, lex domicilii, lex loci celebrationis. c. ALIEN in the Phils. lex nationalii or lex loci celebrationis (Phil. law).

If the REVOCATION is done outside the Philippines by a person who is domiciled here VALID if made in accordance with our law or the place where the revocation was made (lex loci actus). INTERPRETATION OF WILLS a. Literal meaning shall control if the terms are clear and unambiguous. *Contemporaneous and subsequent acts of the testator may also be considered. b. If testators intention cannot be ascertained by the preceding rules ambiguous words are to be interpreted in accordance with the law which was most probably in the mind of testator when he used those words and with which he is presumed to be most familiar. c. If the will admits of different interpretations that which will make the disposition operative shall be preferred. d. Every effort should be made to prevent intestacy.

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RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW Based on Sempio-Diy Book

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PROBATE Probate process of providing before a competent court the: Due execution of a will That testator was possessed of testamentary capacity The approval by said court of the will Allowance/disallowance essentially procedural in nature law of the forum applies. Wills proved and allowed in a foreign country according to the laws of such country may be allowed, filed, and recorded by the proper court in the Phils. BUT, it still has to be REPROBATED in the Phils. in accordance with out procedural law. Evidence necessary for the probate of will probated outside the Phils. a. Due execution of the will in accordance with foreign law. b. Testator had his domicile in the foreign country where the will was probated c. The will had been admitted to probate in said country d. The foreign tribunal is a probate court. e. Laws of the foreign country on procedure and allowance of wills were followed. ADMINISTRATION OF ESTATE OF DECEASED PERSONS ADMINISTRATION the process of determining and realizing the assets of a deceased person, the payment of the debts of the estate and the actual distribution of the residue to the heirs. Procedural in nature therefore lex fori governs. EXECUTOR appointed in a will and qualified by the court to be in charge of the distribution. ADMINISTRATOR appointed by the court to take charge of the distribution (there is no will). *Appointed by the court where the deceased was domiciled at the time of his death or where his properties are found. The rights, powers, and duties of the executor or administrator are coextensive with the territorial jurisdiction of the court that qualified or appointed him. PRINCIPAL DOMICILIAR ADMINISTRATION administration granted in the country of the deceaseds last domicile. ANCILLARY ADMINISTRATION administration in other countries where the deceased also left properties. *the domiciliary administrator has no power over and is not entitled to the possession of properties of the deceased in another country which must be delivered to the ancillary administrator of the

deceaseds estate in that country to be administered by the latter. CADUCIARY RIGHTS in cases where the deceased left no heirs, the State shall have the right to consider his properties as bona vacantia and seize all property of the deceased lying within its borders. *it may also mean that a State is considered as the last heir of the deceased person and therefore succeeds to his properties as such.

CONFLICT RULES ON PROPERTY

Art. 15. Real property as well as personal property is subject to the law of the country where it is situated.

LEX REI SITAE/LEX SITUS is therefore adopted for both real property and even personal property. *due to the growing complexity and variety of personal property no longer making them immediately connected with the person of the owner. LEX SITUS AS TO REAL PROPERTY Covers the extrinsic and intrinsic validity of transactions over real property (alienations, transfers, mortgages, capacity of the parties, effects of ownership, etc.) EXC (when lex situs does not apply): SUCCESSION national law of the decedent is followed. CONTRACTS proper law of the contract is followed: Lex loci voluntatis; or Lex loci intentionis

LEX SITUS AS TO PERSONAL PROPERTY There is no problem when the movable is tangible and has a fixed situs. Problem arises when the movable is mobile or usually in motion. CONSTRUCTIVE SITUS is therefore given to these movables. VESSELS 1. Law of the Flag if a public vessel. 2. Law of the Country or Place of Registry private or commercial vessel. *if vessel is temporarily docked at a foreign port said port is considered its temporary situs. GOODS IN TRANSIT 1. Liability for LOSS DESTINATION. 2. Validity and Effect of Seizure place where the goods were seized.

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RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW Based on Sempio-Diy Book

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3.

Disposition or Alienation proper contract between the parties.

law

of

INTANGIBLE PERSONAL PROPERTIES A. CREDITS Involuntary Transfer/Assignment of Debt place where the debtor may be served with summons (usually his domicile). Voluntary proper law of the contract. B. NEGOTIABLE INSTRUMENTS Negotiability LAW GOVERNING THE RIGHTS EMBODIED IN THE INSTRUMENT. Transferability law at the TIME of transfer, delivery, or negotiation. C. SHARES OF STOCK Corporation + Another Person law of the place of INCORPORATION. Between Parties PROPER LAW OF THE CONTRACT. D. FRANCHISES Law of the STATE GRANTING THE FRANCHISE. E. GOODWILL Law of the place WHERE THE BUSINESS IS CARRIED ON. *Goodwill the patronage of any established trade or business; the benefit acquired by an establishment beyond the value of its capital stocks, funds, or property in consequence of the general public patronage and encouragement that it receives from its customers. F. INTELLECTUAL PROPERTY RIGHTS GR: protected by the State that granted or recognized them. But, according to RA 8293
Section 3. International Conventions and Reciprocity. - Any person who is a national or who is domiciled or has a real and effective industrial establishment in a country which is a party to any convention, treaty or agreement relating to intellectual property rights or the repression of unfair competition, to which the Philippines is also a party, or extends reciprocal rights to nationals of the Philippines by law, shall be entitled to benefits to the extent necessary to give effect to any provision of such convention, treaty or reciprocal law, in addition to the rights to which any owner of an intellectual property right is otherwise entitled by this Act. (n)

In other words, Philippines must be a co-party in a treaty/convention of the country where the foreigner is domiciled or is a national AND there must be reciprocity of rights.

CONFLICT RULES ON CONTRACTS

Contract a meeting of the minds between two persons whereby one binds himself, with respect to the other to give something or to render some service. EXTRINSIC VALIDITY GR: governed by LEX LOCI CELEBRATIONIS If via LETTER/TELEGRAM
Acceptance made by letter or telegram does not bind the offerer except from the time it came to his knowledge. The contract, in such a case, is presumed to have been entered into in the place where the offer was made. (1262a)

EXC to lex loci celebrationis a. When place of execution is merely casual/incidental apply MOST SIGNIFICANT RELATIONSHIP (the law of the place with the MSR to the transaction). b. When lex loci celebrationis contravenes an established policy in the forum c. Applying it would result to gross injustice to the people of the forum d. Transaction is contra bonos mores CAPACITY TO ENTER INTO CONTRACTS GR: governed by PERSONAL LAW of the parties (National Law or Domiciliary Law). EXC: contracts involving alienation or encumberance of properties (real and personal) LEX SITUS i.e. a Filipino (18 y.o.) who enters into a contract in a country where age of majority is 21 cannot later on plead his incapacity HE IS GOVERNED BY PHIL. LAW (Art. 15, NCC). BUT, if an alien (18 y.o.) enters into a contract in the Philippines, he cannot later on plead his incapacity just bec. age of majority based on his national law is 21 it would greatly IMPEDE BUSINESS TRANSACTIONS. To Reconcile: Nationality Theory should be limited to family and domestic relations. Proper Law of the Contract business/commercial transactions INTRINSIC VALIDITY

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RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW Based on Sempio-Diy Book

CONFLICT OF LAWS
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GR: proper law of the VOLUNTATIS/INTENTIONIS).

contract

(i.e.

lex

loci

In the Phils. There is no specific provision of law, BUT our policy is to give effect to the intention of the parties (the expressed intention or the implied intention). *aka Choice of Law *as determined by many factors i.e. law with the most substantial connection with the transaction or the law that may be presumed to be intended by the parties to bind their transactions. Some Limitations to Choice of Law a. Law must have connection with the transaction. b. If the law selected should change, the new law shall be applied (EXC where the change is so revolutionary that it could not have been foreseen by the parties). c. Cannot stipulate on jurisdiction of courts or oust the courts of their jurisdiction. d. Cannot contract away applicable provisions of law that are impressed with public interest or involve public policy (i.e. labor) e. Several laws may be selected (each of which may govern certain elements of the transaction). SPECIAL CONTRACTS 1. BARTER, SALE, DONATIONS Extrinsic lex situs Intrinsic- lex situs Capacity of Parties lex situs

This is a contract to render service, so: Extrinsic lex loci celebrationis Intrinsic- lex loci voluntatis/intentionis Capacity of Parties personal law of the parties *LIABILITY FOR LOSS/DESTRUCTION/DETERIORATION OF GOODS IN TRANSIT law of the DESTINATION of the goods. COGSA liability may be limited unless value is declared by the shipper and such declaration is in the BOL. AIR liability for death/injury/damage to passenger or cargo is governed by the WARSAW Convention. liability if there is malice, gross negligence, bad faith, improper discrimination the carrier is liable for damages beyond those limited in Warsaw Convention. IN SUMMARY (More or Less) If REAL CONTRACT lex situs. If PERSONAL CONTRACT law on contracts will apply, hence: Extrinsic lex loci celebrationis Intrinsic- lex loci voluntatis/intentionis Capacity of Parties personal law of the parties

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The good of the people is the greatest law. - Marcus Tullius Cicero

2. LEASE OF PROPERTY If it creates REAL rights (period of 1 yr or more/registered) lex situs If month-to-month, week-to-week, etc. Extrinsic lex loci celebrationis Intrinsic- lex loci voluntatis/intentionis Capacity of Parties personal law of the parties 3. PLEDGE, CHATTEL MORT., REM, ANTICHRESIS Extrinsic lex situs Intrinsic- lex situs Capacity of Parties lex situs 4. LOAN Extrinsic lex loci celebrationis Intrinsic- lex voluntatis/intentionis Capacity of Parties personal law of the parties 5. LEASE OF SERVICE Extrinsic lex loci celebrationis Intrinsic- lex loci voluntatis/intentionis Capacity of Parties personal law of the parties 6. TRANSPORTATION/CARRIAGE

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RJ & ELI - LLB III, EH 404, UNIVERSITY OF SAN CARLOS LAW Based on Sempio-Diy Book