code (bigamous, polygamous &

CHOICE OF LAW PROBLEMS incestuous marriages

V. Choice of Law in Family Relations
2. consular marriages
A. Marriage – Art. 1, FC. Marriage is a special contract of permanent union between a man
and a woman entered into in accordance with law for the establishment of conjugal and family Between G.R. Lex loci celebrationis
life. Foreigners
Exceptions:
It is the foundation of the family and an inviolable social institution whose nature,
consequences, and incidents are governed by law and not subject to stipulation, except that 1. Highly immoral (bigamous,
marriage settlements may fix the property relations during the marriage within the limits polygamous & incestuous
provided by this Code. marriages

2. Universally considered incestuous,

1. Philippine Policy on Marriage and the Family
ie. Between brothers-sisters &
between ascendants and
Compulsory Theory – it is imperative for the parties to follow the formalities of the place of descendants
celebration (this is followed in the Philippines)
Mixed Apply rule on marriages between
Marriage as a contract has two kinds of requisites: foreigners – to uphold the validity of the
marriage
1. Formal Requisites, generally do not affect the validity of the marriage. Art. 3
of the Family Code provides for three formal requisites namely – Celebrated Between National Law (Art. 21, Family Code)
a) authority of the solemnizing officer in the Foreigners provided the marriage is not highly
b) marriage license Philippines immoral or universally considered
c) marriage ceremony where the contracting parties appear before the incestuous
solemnizing officer
Mixed National Law of the Filipino (otherwise,
2. Essential Requisites, affects the validity of the marriage. Art. 3 of the Family public policy may be militated against)
Code prescribes two essential requisites to marriage:
a. legal capacity of the contracting parties who must be male and female Marriage Lex loci celebrationis (with prejudice
by Proxy with the foregoing rules
b. consent freely given in the presence of a solemnizing officer
Note: a
FACTUAL marriage
SITUATION by proxy
POINT OF CONTACT
is
considered
Celebrated Between G.R. Lex loci celebrationis
celebrated
Abroad Filipinos
where the
Exceptions:
proxy
1. Art. 26 (solemnized outside the appears
Philippines), Art. 35, par. 1, 4, 5 &
6, (void ab initio), Art. 36
(incapacity), Art. 37 (incestuous),
Art. 38 (public policy) of the family 2. Extrinsic Validity of Marriage

By extrinsic validity, it means the legal sufficiency insofar as the formal requisites of
a valid marriage are concerned.
 1. Formal Requisites of Marriage under Philippine Law [Art. 3, FC]
a. authority of the solemnizing officer
b. valid marriage license
c. 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 the presence
of not less than two witnesses of legal age.
2. Determination of Extrinsic Validity
LB: Art. 26, FC. 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.
Art. 2, Hague Convention. Formal requirements for marriage are governed by the
law of the state of celebration.
GR: LEX LOCI CELEBRATIONIS (law of the place of celebration)
4. Effects of Marriage
EXC: Marriage although valid in the Foreign Country is void in the
Philippines:
1. Parties are below 18 years old;
2. Bigamous or Polygamous;
3. Subsequent Marriage is performed without recording in the Civil Registry;
4. Mistake as to the identity of the parties;
5. Psychological Incapacity;
6. Incestuous;
7. Void by reasons of public policy.
3. Intrinsic Validity of Marriage
Refers to the capacity of the general ability of the person to marry, for instances
defined by requirements of age and parental consent.
1. Intrinsic validity is determined by the parties’ personal law, which may
be their domiciliary or national law.
NOTE:
 Laws relating to Family rights and duties, Status, Condition or Legal
capacity of persons are binding on citizens of the Philippines, even though
living abroad [Art. 15, NCC]
 When either or both of the contracting parties are citizens of a foreign
country, it shall be necessary for them before a marriage license can be
obtained to submit a certificate of legal capacity to contract marriage,
issued by their respective diplomatic or consular officials [Art. 21, FC]
 Marriages enumerated under Art. 26(2), FC are void even if valid in the
country where celebrated.
2. Intrinsic requirements of marriage under Philippine Law [Art. 2, FC]
1. legal capacity of the contracting parties who must be male and female;
and
2. consent freely given in the presence of the solemnizing officer
3. The Hague Convention on Validity of Marriages allows a contracting state
to refuse recognition of the marriage in the ff Cases [CR-M3]:
a. one of the parties did not freely Consent
b. spouses were Related, by blood or adoption
c. one of the parties did not have the Mental capacity to consent
d. one of the spouses was already Married
e. one of the parties has not attained the Minimum age, nor acquired the
necessary dispensation
Civil Unions - A civil union (also known as a civil partnership) is a legally recognized
arrangement similar to marriage (created primarily as a means to provide recognition
in law for same-sex couples). Civil unions grant most or all of the rights of marriage
except the title itself.
A. Personal Relations Between the Spouses
1. Governed by the national law of the parties
NOTE: If the spouses have different nationalities, generally the national law of the
husband may prevail as long as it is not contrary to law, customs and good morals
of the forum.
2. Under Philippine law, personal relations between the spouses include
[Arts. 68, 70-71, FC]
i. mutual fidelity
ii. respect
iii. cohabitation
iv. support
v. right of the wife to use the husband’s family name
B. Property Relations of Spouses
a. The Hague Convention declares that the governing law on
matrimonial property is:
1. the internal law designated by the spouses before the marriage
2. in the absence thereof, the internal law of the state in which the
spouses fix their habitual residence
b. Rule under Philippine law [Art. 80, FC] (Asked in ’03 BAR
EXAMINATIONS)
i. In the absence of a contrary stipulation in the marriage settlements, the
property relations of the spouses shall be governed by Philippine laws,
regardless of the place of the celebration of the marriage and their residence.
 A voidable marriage is valid until it is annulled. The remedy here is
ii. Rule is inapplicable: therefore, Annulment. If the marriage is null and void, there is no need of a
 if both spouses are aliens declaration of nullity, since there is nothing to annul.
 with respect to the extrinsic validity of the contracts affecting property not
situated in the Philippines and executed in the country where the property
is located D. Parental Relations
 with respect to the extrinsic validity of contracts entered into in the 1. Determination of Legitimacy of a Child
Philippines but affecting property situated in a foreign country whose laws Legitimacy: personal law of the parents, which may either be their domicile or
require different formalities for its extrinsic validity. nationality
B. Divorce and Separation
1. Divorce Decrees Obtained by Filipinos 2. Common Law Principles on Legitimacy
General Rule: Decrees of absolute divorce obtained by Filipinos abroad have In the Philippines
no validity and are not recognized in Philippine Jurisdiction. a. the legitimacy of the child is governed by the national law of the parents
b. if parents belong to different nationalities, legitimacy of the child is governed by
2. Right to re-marry after Divorce the national law of thefather
Republic v Obrecido, G.R. No. 154380 (2005), the Supreme Court c. personal law of the illegitimate child is the mother’s personal law
interpreted the exception in Art. 26(2), FC as applying to valid marriages
between two Filipino citizens, where one party is later naturalized as a foreign 3. Parental Authority Over the Child –
citizen and obtains a valid divorce decree capacitating him or her to remarry. Personal law of the father controls and rights and duties of parents and child

3. Recognition of Foreign Divorce and Correction of Entry NOTE: Reference to the personal law of the father may result in joint exercise of parental
authority over the property of the child by the father and mother; or, in the case on the
4. Nature of Recognition of Foreign Divorce Proceedings illegitimate child, to the mother alone

5. Validity of Foreign Divorce Between Foreigners E. Adoption

1. A foreign divorce will be recognized in all contracting states if, at the date of A. Definition
the institution of the proceedings [Hague Convention on the Recognition of The act by which relations of paternity and filiation are recognized as legally existing between persons
Divorce and Legal Separation]: not so related by nature
a. either spouse had his habitual residence there;
B. Domestic Adoption Act of 1998
b. both spouses were nationals of that state; or
1. An alien may adopt, provided he is:
c. if only the petitioner was a national, he should have his habitual a. of legal age
residence there. b. in possession of all civil capacity and legal rights
2. While there is no provision of law requiring Philippine courts to recognize a c. of good moral character
foreign divorce decree between non-Filipinos such will ne recognized under the d. no conviction of any crime involving moral turpitude
principle of international comity, provided that it does not violate a strongly e. emotionally and psychologically capable of caring for children
held policy of the Philippines. f. at least 16 years older than the adoptee
g. in a position to support and care for his children
h. his country has diplomatic relations
C. Annulment and Declaration of Nullity i. residence in the Philippines for at least 3 continuous years prior to the filing of the
The grounds for annulment is governed by the law of the place of the celebration. application for adoption and maintains such residence until the adoption decree is entered
j. certificate of legal capacity to adopt in his country to be issued by his diplomatic or consular
The service of summons is governed by the state or the domicile or the residence of the parties. office; and
k. his government allows the adoptee to enter his country as his adopted son/daughter

2. The requirement on residence and certificate of qualification may be waived for the following:
DISTINCTION: ANNULMENT AND DECLARATION OF NULLITY OF MARRIAGE; a) A former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity
or affinity; or
b) One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
c) One who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a
relative within 4th degree of consanguinity or affinity of the Filipino spouse
3. The requirement of 16 years difference between the adopter and the adoptee may be waived if the
adopter is:
a. The biological parent of the adoptee
b. The spouse of the adoptee’s parent

C. Inter-country Adoption
1. Definition—
A socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree
of adoption is issued outside the Philippines.

2. This is an alternative means of childcare if the child cannot be cared for in any suitable manner in
the Philippines

NOTE: Adoption is one of the ways prescribed by law for the acquisition of Filipino citizenship

D. Effects of Adoption
Two different legal orders:
1. If the adopters’ personal law applied—same law governs the effects of the adoption
2. If the personal law of the child determined the creation of the legal relationship—such law will
cease and yield to the personal law of the adopting parents

CASES:
Republic of the Philippines v CA, 227 SCRA 401 (1993)
Uggi Lindamand Therkelsen b. Republic, 12 SCRA 400 (1964)
Ng Hian v. Collector of Custom, 34 Phil 248 (1916)
Ramirez Marcaida v Aglubat, 21 SCRA 1033 (1962)
Republic v Miller, 306 SCRA 183 (1999)