PHILIPPINE CONFLICT OF LAWS

DEFINITION:

Conflict of Laws (Private International Law) is that part of the municipal law of a state which directs its courts
and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not
they should apply a foreign law or foreign laws.

ELEMENTS:

1. Conflict of laws is part of the municipal law of a state;

2. There is a directive to courts and administrative agencies;
3. There is a legal problem involving a foreign element;

An issue involves foreign element when:

 One party is an alien;

 One party is a resident of a foreign country;
 Contract is celebrated/performed abroad;
 When a property in issue is located abroad;
 Marriage contracted in a foreign country;
 When the parties agree that the laws of a foreign country will apply.

4. PURPOSE: There is either an application or non-application of a foreign law or foreign laws.

It does not automatically follow that when an issue involves a foreign element, there is a necessity to
apply conflict provisions. Conflict of laws exists when the issue engenders in the mind of the judge what laws
(foreign or local) to apply to solve such issue.

ASPECTS OF CONFLICT OF LAWS:

1. INTERNATIONAL LAW  governs the relationship between states & international organizations

2. MUNICIPAL LAW  governs the relationship between individuals, between an individual & the state
or between an individual & entities or corporations

COMPOSITION :

a. PURELY INTERNAL / DOMESTIC  statutes, codes, constitution, ordinances

b. CONFLICT RULES  treaties, conventions, general principles of law as found in the legal
system

BASIC CAUSE FOR CONFLICTS PROBLEMS

Conflicts problems come into being through variance in the municipal laws of the countries involved.
There is a “multiplicity of governments with separate legal systems”.

SCOPE AND FUNCTIONS OF CONFLICT OF LAWS:

a. The determination of which country has jurisdiction;

b. The applicability to a particular case of either the local or the foreign law;
c. The determination of the force, validity and effectiveness of a foreign judgment.

Thus, three questions, present themselves:

(1) Jurisdiction – more remedial law;

(2) Choice of law – most important;
 (3) Applicability of a foreign judgment- enforceability.

PRIVATE INTERNATIONAL LAW PUBLIC INTERNATIONAL LAW

Municipal in character
Dealt in by private individuals, individuals,
corporations
Transactions are private ones between
private individuals
Litigated in local courts, exception:
 Commercial transactions
Examples:
Patent, trade names, intellectual
property  these may be litigated
in international courts
International in character
Parties involved are sovereign states and other entities
possessed of an international personality, such as the United
Nations Organization
Transactions are entered into which generally affect public
interest; those which in general are of interest only to
sovereign states [political crimes]
May also be litigated in local courts but are mostly litigated
before international courts

The remedy is to resort to municipal

tribunals The remedies may be peaceful of forcible. Peaceful remedies
include:
Diplomatic negotiation,
Tender and exercise of good offices
Mediation,
Inquiry and conciliation,
Arbitration,
Judicial settlement by the International Court of Justice,
Reference to regional agencies such as the
Organization of American States, reference to the United
Nations itself.
Forcible remedies include:
The severance of diplomatic relations,
Retorsions,
Reprisals,
Embargo,
Boycott,
Non-intercourse,
Pacific blockades,
Collective measures under the UN Charter
War

EXCEPTIONS TO CERTAIN DISTINCTIONS:

FIRST DISTINCTION:

Not all conflict problems are determinable by the application of municipal laws. Certain problems can
be solved by the application of treaties, agreements, or international conventions, especially when the conflict
involves the interpretation or application of certain provisions in such agreements:

GATT;
Intellectual Property Code;
Guadalajara Convention of 1961;
Hague Convention of 1929

Hence, in such, the issues assume the character of internationality, i.e., they are resolved, not by the
application of a certain municipal law, but by international law.

SECOND DISTINCTION:
 The present trend in International Law is towards individual responsibility. No longer is International
Law a matter of public concern. Consequently, individuals are now involved in matters which are international
in nature. For treaties, agreements and conventions, although entered into by states, are fulfilled through the
collective actions of individuals. They directly perform the obligations and enjoy the rights granted by them by
these agreements.

There are, therefore, certain doctrines and rules in International Law which concern with private
individuals:

Stateless persons;
Prisoners of war;
War crimes tribunals in Uganda/Yugoslavia;
International Criminal Court
UN Committee on Human Rights  a private individual may go to this committee & sue his own state

THIRD DISTINCTION:

Redress of violations of human rights enjoyed and protected by individuals through international
declarations observed by signatory States on human rights can now be cognizable, not only by international
tribunals, but also by the local courts.

SOURCES OF CONFLICT OF LAWS:

Indirect sources:
1. natural moral law
2. works of writers

Direct sources:
1. constitutions
2. codifications
3. special laws
4. treaties and conventions
5. judicial decisions
6. international customs

Q : How do we know that a problem or situation is conflict in nature?

A: It is conflict in nature when the problem or situation calls into operation the conflict rules, if it calls into
application any of the conflict provisions

CONFLICT PROVISIONS:

1. Labor Code  when an alien works here

2. Taxation  double taxation
3. Corporation Code  foreign corporation doing business here in the Philippines
4. Negotiable Instruments Law  foreign bills of exchange
5. Civil Law
6. RPC, Article 2

CIVIL CODE :

Article 15 - Nationality Theory

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though living abroad.

Article 16 - Lex Situs

Art. 16. Real property as well as personal property is subject to the law of the country where it is situated.

However, intestate and testamentary successions, both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property may be found.

Article 17 - Lex Loci Celebrationis

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.

When the acts referred to are executed before the diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their
execution.

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order,
public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country.

Article 815 - A Filipino making a will abroad

Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms
established by the law of the country in which he may be. Such will may be probated in the Philippines.

Article 816 - Alien making a will in the Philippines

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his
country, or in conformity with those which this Code prescribes.

Article 817 - Alien making a will abroad, probated in the Philippines

Art. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in
accordance with the law of the country of which he is a citizen or subject, and which might be proved and
allowed by the law of his own country, shall have the same effect as if executed according to the laws of the
Philippines.

Article 819 - On Joint Wills

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)

Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not
be valid in the Philippines, even though authorized by the laws of the country where they may have been
executed.

Article 829 - 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.

Article 1039 - Capacity to succeed

Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Article 1753 - Damage to Goods in Transitu

Art. 1753. The law of the country to which the goods are to be transported shall govern the liability of
the common carrier for their loss, destruction or deterioration.

FAMILY CODE :

Article 21 - Aliens marrying in the Philippines

Art. 21. 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.

Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity
herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage.

Article 26 - Lex Loci Celebrationis

- Divorce Obtained 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)

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. (As amended by Executive Order 227)

Article 80 - Property Relations in Mixed Marriages

Art. 80. In the absence of a contrary stipulation in a marriage settlement, 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.

This rule shall not apply:

(1) Where both spouses are aliens;

(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and
executed in the country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property
situated in a foreign country whose laws require different formalities for its extrinsic validity.

Article 184 - Adoption by an Alien

Art. 184. The following persons may not adopt:

(1) The guardian with respect to the ward prior to the approval of the final accounts rendered upon the
termination of their guardianship relation;
(2) Any person who has been convicted of a crime involving moral turpitude;
(3) An alien, except:
(a) A former Filipino citizen who seeks to adopt a relative by consanguinity;
(b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or cdt
(c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by
consanguinity of the latter.

Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the
rules on inter-country adoptions as may be provided by law. (28a, EO 91 and PD 603) –amended by RA 8552,
section 7

RA 8552, SECTION 7 . WHO MAY ADOPT. – THE FOLLOWING MAY ADOPT:

(a) Any 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 16 years older than the adoptee, and who is in the position to support and care for
his/her children in keeping with the means of the family. the requirement of 16 year difference between the
age of the adopter and the adoptee may be waived when the adopter is the biological parent of the adoptee, or
is the spouse of the adoptee’s parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her
country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the
Philippines for at least 3 continuous years prior to the filing of the application for adoption and maintains such
residence until the adoption degree is entered, that 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, and that his/her government allows the adoptee to enter his/her country as son/daughter: provided,
further, that the requirements on residency and certification of the aliens 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(4 th) degree of consanguinity or
affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse;
(iii) one who is married to a Filipino citizen and seeks to adopt jointly his/her spouse a relative within the 4 th
degree of consanguinity or affinity of the Filipino spouse; or

(c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her
financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other
spouse has signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.

In case the husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other,
joint parental authority shall be exercised by the spouses.

Article 187 - Can a Filipino Adopt an Alien?

Art. 187. The following may not be adopted:

(1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or, prior to
the adoption, said person has been consistently considered and treated by the adopter as his or her own child
during minority.
(2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and
(3) A person who has already been adopted unless such adoption has been previously revoked or rescinded.
(30a, EO 91 and PD 603) –amended by RA 8552, section 8

RA 8552, SECTION 8. WHO MAY BE ADOPTED. The following may be adopted:

(a) Any person below 18 years of age who has been administratively or judicially declared available for
adoption;

(b) The legitimate son/daughter of one spouse by the other spouse;

(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy;

(d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by
the adopter(s) as his/her own child since minority;
(e) A child whose adoption has been previously rescinded; or

(f) A child whose biological or adoptive parent(s) has died: Provided, that no proceedings shall be initiated
within 6 months from the time of death of said parent(s).

CHAPTER II

WHAT THE TRIBUNALS OF THE FORUM MUST DO

OUTLINE:

1. ASSUMING JURISDICTION
2. APPLYING FOREIGN LAW
CASES:
a. PHILSEC VS CA [274 SCRA 102] 1992
b. COMMUNICATIONS VS CA [260 SCRA 673] 1996
c. MANILA HOTEL VS NLRC [343 SCRA 1] 2003
d. PAKISTAN VS OPLE [190 SCRA 90] 1990
3. APPLYING LOCAL LAW
4. APPLYING FOREIGN LAW
1. provided in the contract/law
2. pleaded/proved
3. not within the eight (8) exceptions

ALTERNATIVES GIVEN TO THE COURTS:

Whenever a conflicts problem presents itself before a tribunal of the forum, the court is primarily
confronted with the question of jurisdiction.

 When the court is without jurisdiction, it has no alternative except to

dismiss the case.

 When a tribunal possesses jurisdiction, it may:

a. refuse to assume jurisdiction on the ground of forum non conveniens; or

b. assume jurisdiction, in which case it may either:

i. apply the internal law of the forum (lex fori); or

ii. apply the proper foreign law (lex causae).

JURISDICTION

Jurisdiction is the authority of a tribunal to hear and decide a case. In Conflict of Laws, Jurisdiction is
the power of the state to create legal interests which other states will recognize and enforce.

Kinds of Jurisdiction:

1. Jurisdiction over the subject matter. It is conferred by law and defined as the authority of a court
to hear and decide cases of the general class to which the proceedings in question belong.

2. Jurisdiction over the person. It is the power of a court to render judgment that will be binding on
the parties involved: the plaintiff and the defendant.

 Jurisdiction over the person of the plaintiff is acquired from the moment he
institutes the action by the proper pleading.
  Jurisdiction over the person of the defendant is acquired by voluntary appearance,
personal or substituted service of summons.

3. Jurisdiction over the res. It is jurisdiction over the particular subject matter in controversy,
regardless of the persons who may be interested thereon. Said jurisdiction may, for instance, be
acquired by coercive seizure of the property by attachment proceedings.

A] ASSUMPTION OF JURISDICTION

When the forum assumes jurisdiction over a case, it may, under proper circumstances:

1. Apply the internal or domestic law (lex fori); or

2. Apply the proper foreign (lex causae)

PAKISTAN AIRLINES vs. OPLE

190 SCRA 90

Facts: Petitioner Pakistan International Airlines Corporation (PIA) executed in Manila two separate
contracts of employment with flight attendants Farrales and Mamasig. The contracts provided, among
others, that the agreements contained therein shall be construed and governed by laws of Pakistan,
and only the courts of Karachi, Pakistan shall have jurisdiction to consider any matter arising out or
under the agreement.

Roughly 1 year and 4 months prior to the expiration of the contracts of employment, the employee
were informed that their services would be terminated. Consequently, Farrales and Mamasig
instituted before the DOLE a complaint for illegal dismissal. The Regional Director ordered the
reinstatement of the said employees, hence, the instant petition of certiorari.

Held: Petitioner PLA cannot take refuge in paragraph 10 of its employment agreement which specifies,
firstly, the law of Pakistan, as the applicable law of the agreement and, secondly, lays venue for
settlement of any dispute arising out of or in connection with the agreement only in courts of Karachi,
Pakistan. The first clause of paragraph 10 cannot be invoked to prevent the application of Philippine
labor laws and regulations to the subject matter of this case, i.e, the employer-employee relationship
between petitioner PIA and private respondents. We have already pointed out the relationship is
much affected with public interest and that the otherwise applicable Philippine laws and regulations
cannot be rendered illusory by the agreeing upon some other law to govern their relationship.

Neither may petitioner invoke the second clause of paragraph 10, specifying the Karachi courts as the
sole venue for the settlement of disputes between the contracting parties. Even a cursory scrutiny of
the relevant circumstances of this case will show the multiple and substantive contracts between the
Philippine law and Philippine courts, on the one hand, and the substantive contacts between the
parties, upon the other: the contract was not only executed in the Philippines, it was also performed
here, at least partially. Private respondents are Philippine citizens and residents, while petitioner,
although a foreign corporation, is licensed to do business (and actually doing business), and hence,
resident in the Philippines. Lastly, private respondents were based in the Philippines in between their
assigned flights to the Middle East and Europe. All the above contacts point to the Philippine courts
and administrative agencies as a proper forum for the resolution of contractual disputes between the
parties. Under these circumstances, paragraph 10 of the employment agreement cannot be given
effect so as to oust Philippine agencies and courts of the jurisdiction vested upon them by the
Philippine law.

Finally, and in any event, the petitioner PIA did not undertake to plead and prove the contents of
Pakistan law on the matter; it must therefore be presume that the applicable provisions of the law of
Pakistan are the same as the applicable provisions of Philippine law.

B] REFUSAL TO ASSUME JURISDICTION

Basis:
 It is an exercise of sovereign right. The reason often given for refusal to assume jurisdiction is that to
so would prove inconvenient for the forum: Forum non conveniens.

The inconvenience may be manifested, among other things, in the following ways:
1. The evidence and the witnesses may not be readily available;
2. The court dockets of the forum may already be clogged: to permit additional cases would
inevitably hamper the speedy administration of justice;
3. The evils of forum-shopping (the practice of looking over the courts of the world for possible
procedural advantages) ought to be curbed;
4. The forum has no particular interest in the case; the parties may either be citizens or
residents, the subject matter of the litigation had evolved somewhere else;
5. Other courts are open; certainly, the case may be better tried in said courts.

Factors:

(1) Situation of the parties

(2) Possibility of arriving at an intelligent decision
(3) Enforceability of the judgment

However, be it remembered that the doctrine should generally apply only if the defendant is a
corporation. After all, if the defendant is an individual, it may be difficult for the convenient or proper forum to
acquire jurisdiction, thus leaving the plaintiff without any remedy.

Application of the Principle

(1.) If neither the plaintiff, nor the defendant, nor the cause of action is related to the forum, the action will not
be heard.

(2.) Courts of equity and of law occasionally decline, in the interest of justice, to e exercise jurisdiction, where
the suit is between aliens or non-residents, or where for kindred reason, the litigation can more appropriately
be conducted in a foreign tribunal.

MODIFICATIONS WHICH AFFECT A LOCAL COURT IN W/N TO APPLY A FOREIGN OR LOCAL LAW:

1. FORUM NON CONVENIENS  The reason often given for refusal to assume jurisdiction is that to do so
would prove inconvenient for the forum and to the parties as well.

FORUM NON CONVENIENS IS MANIFESTED IN:

i. The evidence and the witnesses may not be readily available;

ii. The court dockets of the forum may already be clogged: to permit additional cases would
inevitably hamper the speedy administration of justice;

iii. The evils of “forum-shopping” ought to be curbed;

iv. The forum has no particular interest in the case; the parties may either be citizens or
residents; the subject matter of the litigation has evolved somewhere else;

v. Other courts are open: certainly, the case may be better tried in said courts.

TAKE NOTE: There is no equivalent for forum non conveniens in our local laws. If a judge refuses to
entertain a case on the ground that the dockets are clogged, he ,may be dismissed! Hehehe!

2 REQUISITES:

1. The court should establish that another forum is available, or;

2. Another forum can provide a more adequate remedy.
CASES:

PHILSEC VS CA [1992]  Forum non-conveniens cannot be a ground for a motion to dismiss. The court
needs to establish vital facts before forum non conveniens may be raised.

COMMUNICATIONS MATERIALS VS CA  Requisites for the application of forum non conveniens.

The Philippine court may assume jurisdiction over the case if it chooses to do; provided the
following requisites are met:

1. Philippine court is one which the parties may conveniently resort to;
2. Philippine courts is in a position to make an intelligent decision as to the law
and the facts; and
3. Philippine court has or is likely to have power to enforce its decision.

MANILA HOTEL VS NLRC

343 SCRA 1 [2003]

FACTS: A laborer was working in Oman. He was hired by a hotel in China. The contract was for 4 yrs.
He was dismissed in the Philippines before the contract expired. He sued the hotel in China. The Labor
Arbiter assumed jurisdiction.

RULING: The case should be dismissed due to the application of forum non conveniens.

The NLRC was a seriously inconvenient forum. We note that the main aspects of the case
transpired in 2 foreign jurisdictions and the case involves purely foreign elements. The only link that
the Philippines has with the case is that respondent Santos is a Filipino citizen. The Place Hotel and
MHICL are foreign corporations. Not all cases involving Filipino citizens can be tried here. The
employment contract- Respondent Santos was hired directly by the Palace Hotel, a foreign employer,
through correspondence sent to the Sultanate of Oman, where Responde4t was then employed. He
was hired without the intervention of POEA or any authorized recruitment agency of the government.

Under the rule of forum non conveniens, a Philippine court or agency may assume
jurisdiction over the case if it chooses to do so provided:

(1) that the Philippine court is one to which the parties may conveniently resort to;
(2) that the Philippine court is in a position to make an intelligent decision as to the law and the
facts; and
(3) that the Philippine court has or is likely to have power to enforce its decision.

The conditions are unavailing in the case at bar. The SC cannot see how the NLRC is a
convenient forum where all the incidents of the case – from the time of recruitment, to employment
to dismissal occurred outside the Philippines, an inconvenience is compounded by the fact that the
proper defendants are not nationals of the Philippines.

Neither can an intelligent decision be made as to the law governing the employment contract
which was perfected in foreign soil. This calls for the application of lex loci contractus.

Neither can the NLRC determine the facts surrounding the alleged illegal dismissal as all acts
complained of took place in a foreign country. The NLRC was not in a position to determine whether
the Tiannamen Square incident truly adversely affected operations of the Palace Hotel as to justify
respondent’s retrenchment.

Lastly, even assuming that a proper decision could be reached by NLRC, such would not have
binding effect against the employer, Palace Hotel, a corporation incorporated under the laws of China
and was not even served with summons. Jurisdiction over its person was not acquired.
Sir de la Banda: This is a distinct case. He was hired in Oman through a recruiter and not in the Philippines.
Thus, the Labor Arbiter has no jurisdiction.

2. PRESENCE OF INTERNATIONAL TREATIES AND CONVENTIONS

Examples: GATT
WTO
INTELLECTUAL PROPERTY

3. AVAILABILITY OF PROCEEDINGS

 Aliens cannot file divorce here

 In South American countries, you cannot file a petition for adoption

4. AGREEMENTS THAT JURISDICTION SHAL BE VESTED IN ANOTHER COUNTRY

PAKISTAN AIRLINES VS OPLE  A contract freely entered into should, of course, be respected as PIA argues,
since a contract is the law between the parties. The principle of party autonomy in contracts is not, however,
an absolute principle. The rule in Article 1306 of our Civil Code is that the contracting parties may establish
such stipulations as they may deem convenient, provided they are not contrary to law, morals, good customs,
public order or public order or public policy. Thus, counterbalancing the principle of autonomy of contracting
parties is the equally general rule that provisions of applicable law, especially provisions relating to matters
affected with public policy, are deemed written into the contract. Put a little differently, the governing principle
is that parties may not contract away applicable provisions dealing with matters heavily impressed with public
interest. The law relating to labor and employment is clearly such an area and parties are not at liberty to
insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting
with each other.

SIR de le Banda: Moreover, this case involves Filipino citizens, the contract was entered in the Philippines and
PIA is a resident foreign corporation. Thus, Philippine courts have jurisdiction.

COGNOVIT– a clause in a contract whereby a debtor agrees to be subject to the jurisdiction of a specific court
in a foreign country if he breaches the contract. This is one of the exceptions of the application of the principle
forum non conveniens.

5. DOMESTIC LAW PROVIDES ASSUMPTION OF JURISDICTION OF A COURT

A good example is the Marcos case involving 10,000 Human Rights Violations. This case was filed and
heard in Hawaii even though the violations were committed in the Philippines. This was allowed because there
is a law in the US permitting US courts to hear cases of human rights violations committed in another country.

LONG-ARM STATUTE – a provision in the municipal law of a state which allows its forum to acquire jurisdiction
over cases involving a foreign element. This is true especially in cases of violations of Public International Law.

 A state is over reaching its arm. But Sir de la Banda does not know of any statute allowing Philippine courts
to over-reach its arms. 

APPLICATION OF THE INTERNAL OR DOMESTIC LAW

TAKE NOTE: The GENERAL RULE is: APPLY LOCAL LAW

EXCEPTION : APPLY FOREIGN LAW

Instances when the forum has to apply the internal or domestic law in adjudicating a conflicts problem set
before it:

a. When the law of the forum expressly so provides in its conflicts rules;
b. When the proper foreign law has not been properly pleaded and proved;
c. When the case involves any of the exceptions to the application of the proper foreign law (EXCEPTIONS TO
COMITY):
1. When the foreign law, judgment, or contract is contrary to a sound and established public policy of the
forum;

Q: How does one know that a certain foreign law contravenes public policy?
A: There are two possibilities:

(i) when there is a conflict rule on the matter (e.g. joints wills, divorce)
(ii) where there exists an important policy-the state contrary to the foreign law.

Q: What is the principal source of public policy?

A: Constitution, especially Declaration of Principles and State Policies (Art.II)

Q: What is public policy?

A: It is the manifest will of the state.

CADALIN vs. POEA

238 SCRA 721

Issue: Whether Bahrain law on prescription of action, or Philippine law on prescription that shall be
the governing law.

Held: As a general rule, a foreign procedural law will not be applied in the forum. Procedural matters,
such as service, joinder of actions, period and requisites for appeals, and so forth, are governed by the
laws of the forum. This is true even if the action is based upon a foreign substantive law.

A law on prescription of action is sui generis in conflict of laws in the sense that it may be viewed
either as procedural or substantive depending on the characterization given such a law.

However, the characterization of a statute into procedural or substantive law becomes irrelevant when
the country of the has a “borrowing statute.” Said statute has the practical effect of treating the foreign
statute of limitations as one of substance. A “borrowing statute” directs the state of the forum to
apply the foreign statue of limitations to the pending claims based on the foreign law. While there are
several kinds of “borrowing statute”, one form provides than an action barred by the laws of the place
where it accrued, will not be enforced in the forum even though the local statute has not run against it.

Thus, the courts of the forum will not enforce any foreign claim obnoxious to the forum’s public policy
to enforce the one-year prescriptive period of the Bahrain law as regards the claims in question would
contravene the public policy on the protection to labor.

PAKISTAN AIRLINES vs. OPLE

190 SCRA 90

Facts: Petitioner Pakistan International Airlines (PIA) executed in Manila two separate contracts of
employment with flight attendants Farrales and Mamansig. The contracts provided, among others,
that PIA can terminate the agreement at any time by giving the employee notice in advance one
month before the intended date of termination or in lieu thereof by paying the employee wages
equivalent to one month salary.

Roughly 1 year and 4 months prior to the expiration of the contracts of employment, the employee
were informed that their services would be terminated. Consequently, Farrales and Mamasig
instituted before the DOLE a complaint for illegal dismissal. The Regional Director ordered the
reinstatement of the said employees. Hence, the instant petition for certiorari.

Held: A contract freely entered into should, of course, be respected as PIA argues, since a contract is
the law between the parties. The principle of party autonomy in contracts is not, however, an absolute
principle. The rule in Article 1306 of our Civil Code is that the contracting parties may establish such
stipulations as they may deem convenient, provided they are not contrary to law, morals, good
customs, public order or public order or public policy. Thus, counterbalancing the principle of
 autonomy of contracting parties is the equally general rule that provisions of applicable law, especially
provisions relating to matters affected with public policy, are deemed written into the contract. Put a
little differently, the governing principle is that parties may not contract away applicable provisions
dealing with matters heavily impressed with public interest. The law relating to labor and employment
is clearly such an area and parties are not at liberty to insulate themselves and their relationships from
the impact of labor laws and regulations by simply contracting with each other.

BANK OF AMERICA VS AMERICAN REALTY

321 SCRA 651 [1999]

Facts: Petitioner Bank of America NT & SA (BANTSA) is an international banking & financing institution
duly licensed to do business in the Philippines, organized & existing under & by virtue of the laws of
the State of California while PR American Realty Corporation (ARC) is a domestic corporation. BANTSA
granted 3 major multi-million US dollar loans to 3 corporate borrowers, all of which are existing under
& by virtue of the laws of the Republic of Panama and are foreign affiliates of PR.

Due to the default in the payment of the loan amortizations, BANTSA & the corporate
borrowers signed & entered into restructuring agreements. As additional security for the restructured
loans, PR ARC as 3rd-party mortgagor executed 2 real estate mortgages over its parcels of land located
at Bulacan, Philippines. Eventually, the corporate borrowers defaulted in the payment of the
restructured loans prompting Petitioner BANTSA to file civil actions before foreign courts [2 actions in
England & another 2 in Hong Kong] for the collection of the principal loan. In theses civil suits, ARC,
being a 3rd party mortgagor, was not impleaded as party-defendant.

BANTSA filed before the Office of the Provincial Sheriff of Bulacan, an application for
extrajudicial foreclosure of Real Estate Mortgage [REM]. Subsequently, the properties were sold at
public auction to the highest bidder.

ARC, by applying Philippine laws, filed before the RTC of Pasig an action for damages against
petitioner, for the latter’s act of extrajudicially foreclosing the REM despite the pendency of civil suits
before foreign courts for the collection of the principal loan. Petitioner, on the other hand contends
that English law applies thus the rule prohibiting the mortgagee from foreclosing the mortgage after an
ordinary suit for collection has been filed, is not applicable.

Sir de la Banda: according to Philippine laws, the remedies are alternative & not cumulative. However, as to
British laws, the remedies are cumulative.

Issue: Which law should apply? Philippine law or British law?

Ruling: Philippine law. In the instant case, assuming arguendo that the English law on the matter were
properly pleaded and proved in accordance with Section 24, Rule 132 of the Rules of Court and the
jurisprudence laid down in Yao Kee vs Sy-Gonzales, said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to sound & established public policy of
the forum, the said foreign law, judgment or order shall not be applied. Additionally, prohibitive laws
concerning persons, their acts or property, and those which have for their object public order, public
policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country. The public policy sought to be
protected in the instant case is the principle imbedded in our jurisdiction prescribing the splitting up of
a single cause of action.

2.When the foreign law, judgment, or contract is contrary to almost universally conceded principles of
morality (contra bonos mores);

Examples: slavery, prostitution, incestuous marriages

3. When the foreign law, judgment, or contract, or contract involves procedural matters;

We do not give effect to foreign procedural rules because:

 a. there are no vested rights in procedure
b. rules of procedure do not affect the outcome of the case
c. rules of procedure are really very technical in nature

4. When the case involves penal laws, contracts, judgments:

Example: If a Filipino murders a friend in New York, he cannot be prosecuted in the Philippines for the crime he
committed in a foreign state. The criminal statutes in NY are deemed penal, even in an international sense;
hence, they will not be enforced in the local forum. Take note that we adhere to the principle of territoriality as
a cardinal maxim in criminal law.

However, this has been modified by recent trends in Public International Law, especially in the field of:

(i) extradition
(ii) transfer service treaty; and
(iii) the recent Pinochet case.
(iv) crimes against humanity like drug trafficking

5. When the case involves fiscal (i.e. revenue-producing) or administrative matters;

6. When the application of the foreign law, judgment, or contract may work undeniable injustice to the
citizens or residents of the forum;

7. When the application of the foreign law, judgment, or contract may work against the vital interest and
national security of the state of the forum;

The national interests of the forum should not be jeopardized: thus, any foreign law, judgment, or
contract that may result in the undermining of our governmental processes will obviously be refused
enforcement in our forum.

8. When the case involves real or personal property situated in the forum.

How service is made on a NON-RESIDENT DEFENDANT:

1. NON-RESIDENT ALIEN WHO HAPPENS TO BE IN THE PHILIPPINES  He may be served with summons
and a case may be filed against him.

2. RULE 14, SECTION 12. SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITY

When the defendant is a foreign private juridical entity which has transacted business in the
Philippines, service may be made on its resident agent designated in accordance with law for that purpose,
or, if there be no such agent, on the government official designated by law to that effect, or to any of its
officers or agents within the Philippines.

NORTHWEST AIRLINES vs. CA

241 SCRA 192

Facts. A complaint was filed by Northwest Airlines against CF Sharp & Co., a Philippine
corporation doing business in Japan before the 36 th Civil Department, Tokyo District Court of
Japan. As the two attempts to serve summons upon the Japan branch were unsuccessful, the
head office of Sharp in Manila.

The director of the Tokyo District Court requested the Supreme Court to serve the
summons through diplomatic channels upon the defendant’s head office in Manila.
Consequently, defendant received the with of summons. But despite receipt of the same,
Sharp failed to appear at the scheduled hearing. Thus, the Tokyo court declared defendant in
 default and proceeded to render judgment ordering it to pay Northwest the sum of Y83, 158,
195.00

Northwest sought to execute the judgment before the RTC of Manila. On the other
hand, Sharp contended that the judgment of the Japanese court sought to be enforced was null
and void, and unenforceable in this jurisdiction, having been rendered without due and proper
notice to the defendant, considering that the action is in personam.

Held: It is well-settled that matters of remedy and procedure are governed by the lex fori or
the internal law of the forum. In this case, it is the procedural law of Japan where the
judgment was rendered that determines the validity of the extraterritorial service of process
on Sharp. As what this law is a question of fact, not of law. It may not be taken judicial notice
of and must be pleaded and proved like any other fact. It was then incumbent upon Sharp to
present evidence as to what the Japanese procedural law is and to show the under it, the
assailed exterritorial service is invalid. It did not. Accordingly, the presumption of identity or
similarity of laws, or the so-called processual presumption may be invoked.

Section 14, Rule 14 of the Rules of Court provides that if the defendant is a foreign
corporation doing business in the Philippines, service may be made:

(1) on its resident agent designated in accordance with law for that purpose;

(2) on the government official designated by law to that effect; or

(3) on any of its officers or agents within the Philippines.

Sharp had, admittedly, no resident agent in Japan. Hence, it was proper for the court to serve
the summons through the government official designated by law to that effect. The service made by
the Tokyo District Court, requesting the Supreme Court of Japan to cause the delivery of the summons
and other legal documents through the Ministry of Foreign Affairs of Japan, which, in turn, sent them
to the Japanese Embassy in the Philippines, and The Japanese Embassy sent them to the Department
of Foreign Affairs, which referred them to the Executive Judge of the RTC of Manila, is equivalent to
service on the proper government official under Section 14, Rule 14 of the Rules of Court in relation to
Section 128 of the Corporation Code.

RULE 14, SECTION 15. Extraterritorial service. – When the defendant does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff of relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or
in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein,
or the property of the defendant has been attached within the Philippines, service may, by leave of court be
effected out of the Philippines by personal service as under Section 6; or by publication in a newspaper of
general circulation in such places and for such time as the court may order, in which case a copy of the
summons and order of the court shall be sent by registered mail to the last known address of the defendant, or
in any other manner the court may deem sufficient. Any order granting such address leave shall specify a
reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must
answer.

GENERAL RULE: A non-resident defendant who is not found in the Philippines cannot be served with summons
and consequently, the court does not acquire jurisdiction over him.

EXCEPTIONS: He may be served with summons and the court acquires jurisdiction over his person when:

1. the action affects the personal status of the plaintiff

2. the subject is property within the Philippines
3. the relief demanded is consists in excluding the defendant therein
4. the action is quasi in rem
CAN SUE CANNOT SUE

annulment damages
legal separation sum of money
recognition support

VALMONTE vs. CA
252 SCRA 92

Facts: Spouses Alfredo and Lourdes Valmonte are both residents of Washington, USA. Nevertheless,
Alfredo, a member of the Philippine bar, practices his profession in the Philippines, commuting for this
purpose between his residence in the US and Manila, where he holds office. Rosita Dimalanta, a sister
of Lourdes, filed a case for partition of real property and accounting of rentals against the spouses
before the RTC of Manila. Service of summons was then made upon Alfredo, who was at his office in
Manila at that time. He accepted the summons, insofar as he was concerned, but refused to accept
the summons for his wife on the ground that he was not authorized to accept the process on her
behalf. Accordingly, the process server left without leaving a copy of the summons and complaint for
petitioner Lourdes.

Issue: Whether or not there was valid service of summons to Lourdez Valmonte.

Held: As petitioner Lourdes Valmonte is a nonresident who is found in the Philippines, service of
summons on her must be in accordance with Rule 14, Section 17. Such service, to be effective outside
the Philippines, must be made either:

(1) by personal service;

(2) by publication in a newspaper of general circulation in such places and for such time as the court
may order, in which case a copy of the summons and order of the court should be sent by registered
mail to the last known address of the defendant; or

Since in the case at bar, the service of summons upon petitioner Lourdes Valmonte was not
done by means of the first two modes, the question is whether the service on her attorney, petitioner
Alfredo Valmonte can be justified under the third mode, namely, in any manner the court may deem
sufficient.

We hold it cannot. This mode of service, like the first two, must be made outside the
Philippines, such as through the Philippine Embassy in the foreign country where the defendant
resides. Moreover, there are several reasons why the service of summons on Atty. Alfredo Valmonte
cannot be considered a valid service of summons on peitioner Lourdes Valmonte. In the first place,
service of summons on petitioner Alfredo Valmonte was not made upon the order of the court as
required by the Rule 14, Section 17, and certainly was not a mode deemed sufficient by the court
which in fact refused to consider the service to be valid and on that basis declare petitioner Lourdes
Valmonte in default for her failure to file an answer.

In the second place, service in the attempted manner on petitioner was not made upon prior
leave of the trial court as required also in Rule 14, Section 17. As provided in Section 19, such leave
must be applied for by motion in writing, supported by affidavit of the plaintiff or some person on his
behalf and setting forth the ground for the application.

Finally, and most importantly, because there was no order granting such leave petitioner
Lourdes Valmonte was not given ample time to file her answer which, according to the rules, shall be
not less than sixty (60) days after notice. It must be noted that the period to file an answer in an
action against a resident defendant differs from the period given in an action filed against a
nonresident who is not found in the Philippines.

BANCO DO BRASIL VS CA
333 SCRA 545 [2000]
 FACTS: Poro Point Shipping Services, acting as the local agent of a Panamanian Company, requested
permission for its vessel MV Star Ace, which had engine trouble, to unload its cargo and to store it at
the Philippine Ports Authority [PPA] compound, while awaiting transshipment to Hong Kong. The
request was approved by the Bureau of Customs but despite approval, customs personnel boarded the
vessel on suspicion that it was the hijacked MV Silver Med. The vessel was seized and during seizure
proceedings, La Union was hit by 3 typhoons, and the vessel ran aground & was abandoned. PPSS’s
representative entered into a salvage agreement with Duraproof Services. To enforce its salvor’s lien,
Duraproof filed an action before the RTC. The RTC ordered Banco do Brasil to pay Duraproof the
amount of $300,000 in damages. Petitioner Banco sought reconsideration on the ground that there
was no valid service of summons as service was on the wrong party – the ambassador of Brazil. Hence,
it argued, the TC did not acquire jurisdiction over Petitioner Banco.

RULING: Banco’s petition is meritorious. Where the action is in personam, jurisdiction over the person
of the defendant is necessary for the court to validly try and decide the case. When the defendant is a
non-resident, personal service of summons within the state is essential to the acquisition of
jurisdiction over the person. This cannot be done, however, if the defendant is not physically present in
the country, and thus, the court cannot acquire jurisdiction over his person and therefore cannot
validly try and decide the case against him.

It must be stressed that any relief granted in rem or quasi in rem actions must be confined to
the res, and the court cannot lawfully render a personal judgment against the defendant. Clearly, the
publication of summons effected by PR is invalid & ineffective for the trial court to acquire jurisdiction
over the person of petitioner, since by seeking to recover damages from petitioner for the alleged
commission of an injury to his person or property caused by petitioner’s being a nuisance defendant,
PR’s action became in personam. Bearing in mind the in personam nature of the action, personal, or, if
not possible, substituted service of summons on petitioner, and not extraterritorial service, is
necessary to confer jurisdiction over the person of petitioner and validly hold it liable to PR for
damages. Thus, the TC had no jurisdiction to award damages in favor of PR & against petitioner.

3. RULE 14 SECTION 16. RESIDENTS TEMPORARILY OUT OF THE PHILIPPINES. When any action is commenced
against a defendant who ordinarily resides in the Philippines, but who is temporarily out of it, service may, by
leave of court, be also effected out of the Philippines, as under the preceding section.

Elements for the Application of Forum Non Conveniens :

COMMUNICATION MATERIALS vs. CA

260 SCRA 670

Facts: Petitioner entered into a License Agreement with ITEC, a foreign corporation not licensed to do
business in the Philippines. By virtue of such agreement, petitioner sold electronic products to PLDT. One
year thereafter, however, ITEC decided to terminate the agreement on the ground of breach of such
agreement. ITEC charges petitioner of using knowledge and information of ITEC’s products specifications
to develop its own line of equipment which are similar, if not identical, to ITEC’s own.

A complaint was, subsequently filed with the Makati RTC. Petitioner filed a motion to dismiss the
complaint on the ground that ITEC is simply engaged in forum-shopping, which justifies the application
against it of the principle of forum non conveniens.

Held: Petitioner’s insistence on the dismissal of this action due to the application, or non-application, of the
private international law of forum non conveniens defies well-settled rules of fair play. According to
petitioner, Philippine court has no venue to apply its discretion whether to give cognizance or not to
present action because it has not acquired jurisdiction over the plaintiff in the case, the latter allegedly
having no personality to sue before Philippine courts. This argument is misplaced because the court has
already acquired jurisdiction over the plaintiff in the suit, by virtue of his filing the original complaint. And
as we have already observed, petitioner is not at liberty to question plaintiff’s standing to sue, having
already acceded to the same by virtue of its entry into the License Agreement referred to earlier.
 Thus, having acquired jurisdiction, it is now for the Philippine court based on the facts of the case, whether
to give due course to the suit or dismiss it, on the principle of forum non conveniens. Hence, the
Philippine court may refuse to assume jurisdiction over the case if it chooses to do; provided the
following requisites are met:

Philippine court is one which the parties may conveniently resort to;
Philippine courts is in a position to make an intelligent decision as to the law
and the facts; and
Philippine court has or is likely to have power to enforce its decision.

REPUBLIC OF THE PHILIPPINES vs. MARCOS

107 US Sup. Ct. 2178

Facts: This is an appeal from a judgment of the US District court for the Southern District of New York,
granting a preliminary injunction to the Republic of the Philippines prohibiting the sale or transfer of 5 New
York properties.

The defenses involved include the act of state doctrine, sovereign immunity and forum non conveniens.
The district court, in refusing to dismiss the case on forum non conveniens grounds, noted that the plaintiff
seeks to impress a constructive trust only in regard to the properties located in New York and seeks the
appointment of a receiver pending final resolution of the case.

Held: Judgment affirmed. At this stage, forum non conveniens determinations are committed to the sound
discretion of the trial court. It is true that in the 1984 case of Islamic Republic vs. Pahlavi, it was also
alleged that the former Shah and his wife had accepted bribes, misappropriate funds, and embezzled or
converted billions of dollars belonging to the national treasury of Iran”, but the case was dismissed because
the litigation had little relation or connection to the state of New York other than the presence of the Shah
and his wife in the state. The complaint in that case asked that a constructive trust be imposed “on the
asset of the defendant throughout the world”. Here, however, the case involves “the ownership of Specific
property in this state and only such property.” Here, the plaintiff seeks to impress a constructive trust only
on assets in New York. The assets in dispute are pieces of real property, fixed and immovable. It thus
seems difficult to deem the Southern District of New York an inconvenient forum. Nor is there any showing
that an alternative forum is available and adequate to provide appropriate remedies in respect to this
property, ultimate ownership of which rest with the holders of bearer shares of offshore corporations. We
put little or no stock in the suggestion made at oral argument that these shares could be located, attached,
and the corporations themselves properly be brought before this or some other court.

The district court rejected the forum non conveniens argument, noting that the complaints only seeks
the United States’ recognition of a Philippine decree and that the district court will not be asked to try the
basic issues accusing Ferdinand Marcos of unlawful takings. It did see that the court might be required to
adjudicate whether Marcos is the owner of the New York properties, evidence as to which in both New
York and the Philippines, but he did not visualize that the case would involve questions of unlawful takings
and the rights of the Philippine Republic. As for final relief, the district court stated that the evidence of
wrongdoing would be reviewed only to the extent necessary to inquire whether the ultimate Philippine
decree, if any, is inconsistent with the law and policy of the United States. This action is merely ancillary to
an eventual Philippine decree or judgment and was brought in the Southern District only because the real
estate is located here.

Forum Non Coveniens is not a Ground for a Motion to Dismiss:

PHILSEC INVESTMENTS vs. CA

274 SCRA 104

Facts: Private respondent Ventura Ducat obtained a loan from peititoner Philsec in the sum of
US42,500,000.00. As he failed to pay the loan, Philsec sued Ducat. However, the US District Court
dismissed it.
 While the US case was still pending, petitioner filed a complaint against Ducat in the RTC of Makati. Ducat,
in turn moved to dismiss it on the ground of forum non conveniens. The trial court granted Ducat’s motion
to dismiss on the ground that the case can be better tried and decided by the US court.

Held: The trial court’s refusal to take cognizance of the case is not justifiable even on the ground of forum
non conveniens. First, a motion to dismiss is limited to the grounds under Rule 16, Section 4 of the Rules of
Court, which does not include forum non conveniens. The propriety of dismissing a case based on this
principle requires factual determination, hence, it is more properly considered a matter of defense.
Second, while it is within the discretion of the trial court to abstain from assuming jurisdiction on this
ground, it should do so only after vital facts are established, to determine whether special circumstances”
require the court’s desistance.

PROOF OF FOREIGN LAW

(1) If the foreign law is WRITTEN LAW (such as a statute or a constitution), it may proved by:

(i) An official publication thereof;

(ii) A copy attested by the officer having the legal custody of the record, or
By his deputy, and accompanied with a certificate that such officer has custody. (From a Filipino official
stationed in the foreign country)

(2) If the foreign law is UNWRITTEN LAW as customs or traditions, it may be proved by:

(i) The oral testimony of expert witnesses; or

(ii) Printed and published books of reports of decisions of the country involved, if proved to be
commonly admitted in such courts.

YAO KEE vs. SY-GONZALES

167 SCRA 736

Facts: Sy Kiat, a Chinese national, died in Caloocan City where he was then residing, leaving behind real
and personal properties here in the Philippines. Thereafter, Aida Sy –Gonzales, alleging herself to be
the wife of Sy Kiat, filed a petition for the grant of letters of administration. The petition was opposed
by Yao Kee, alleging that she is the lawful wife of Sy Kiat in China.

To support Yao Kee’s allegation, she presented Gan Ching, here younger brother, who stated that he
was among the many people who attended the wedding of his sister with Sy Kiat and that no marriage
certificate is issued by the Chinese government, it being the custom in China to treat as sufficient the
document signed by the parents or elders of the parties.

RULING: Construing the provisions of Article 71 of the Civil code, the Court has held that to establish a
valid foreign marriage, two things must be proven, namely:
The existence of the foreign law as a question of fact; and
The alleged foreign marriage by convincing evidence.

In proving a foreign law, the procedure is provided in Section 25, Rule 132 of the Rules of Court. The
Court has interpreted this provision to include competent evidence like the testimony of a witness to
prove the existence of a written foreign law.

In the case at bar, petitioners did not present any competent evidence relative to the law and custom
of China on marriage. The testimonies of Yao and Gan Ching cannot be considered as proof of China’s
law or custom on marriage not only because they are self serving evidence, but more importantly,
there is no showing that they are competent to testify on the subject matter. For failure to prove the
foreign law or custom, and consequently, the validity of the marriage in accordance with said law or
custom, the marriage between Yao Kee and Sy Kiat cannot be recognized in this jurisdiction.
 Petitioners contend that contrary to the Court of Appeals’ ruling they are not duty bound to prove the
Chinese law on marriage as judicial notice thereof had taken by this Court in the case of Sy Joc Lieng vs.
Sy Quia (16 Phil. 137).

This contention is erroneous. Well settled in this jurisdiction is the principle that Philippine courts
cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact.
Moreover, a reading of said case would show that the party alleging the foreign marriage presented a
witness, one Li Ung Bieng, to prove that matrimonial letters mutually exchanged by the contracting
parties constitute the essential requisite for a marriage to be considered duly solemnized in China.
Based on his testimony, which as found by the Court is uniformly corroborated by authors on the
subject of Chinese marriage, what was left to be decided was the issue of whether or not the fact of
marriage in accordance with Chinese law was duly proven.

Further, even assuming for the sake of argument that the Court has indeed taken judicial notice of the
law of China on marriage in the aforecited case, petitioners however have not shown any proof that
the Chinese law or custom obtaining at the time the Sy Joc Lieng marriage was celebrated in 1847 was
still the law when the alleged marriage of Sy Kiat to Yao Kee took place in 1931 or eighty-four years
later.

PROCESSUAL PRESUMPTION – In the absence of proof of the contents of a foreign law, that foreign law is
presumed to be the same as Philippine Law.

WILD VALLEY VS CA
342 SCRA 213 [2000]

RULING : It is well-settled that foreign laws do not prove themselves in our jurisdiction and our courts
are not authorized to take judicial notice of them. Like any other fact, they must be alleged and
proved.

A distinction is to be made as to the manner of proving a written and an unwritten law. The
former falls under Section 24, Rule 132 of the Rules of Court. Where the foreign law sought to be
proved is “unwritten,” the oral testimony of expert witnesses is admissible, as are printed and
published books of reports of decisions of the courts of the country concerned if proved to be
commonly admitted in such courts. The court has interpreted Section 24 to include competent
evidence like the testimony of a witness to prove the existence of a written foreign law.

For a copy of a foreign public document to be admissible, the following requisites are
mandatory:

(1) It must be attested by the officer having legal custody of the records or by his deputy; and
(2) It must be accompanied by a certificate by a secretary of the embassy or legation, consul
general, consul, vice consular or consular agent or foreign service officer, and with the seal of his
office.

The latter requirement is not a mere technicality but is intended to justify the giving of full faith and
credit to the genuineness of a document in a foreign country.

LAUREANO VS CA
324 SCRA 414

RULING : The TC rightly ruled on the application of Philippine Law, thus: “Neither can the court
determine whether the termination of the plaintiff is legal under the Singapore Laws because of the
defendant’s failure to show which specific laws of Singapore Laws apply to this case. Philippine Courts
do not take judicial notice of the laws of Singapore. The defendant that claims the applicability of the
Singapore Laws to this case has the burden of proof. The defendant has failed to do so. Therefore,
Philippine law should be applied.”
 CHAPTER III

THEORIES ON WHY THE FOREIGN LAW MAY IN SOME CASES BE GIVEN EFFECT

OUTLINE:

1. Theories why foreign laws should be given effect

2. Foreign judgments

CASES:

1. ASIAVEST VS CA 361 SCRA 489 [2001]

2. PHILIPPINE ALUMINUM VS FASGI 342 SCRA 722 [2000]
3. SOORAJMULL NAGARMULL VS BINALBAGAN 33 SCRA 46 [1970]
4. PHILSEC INC VS CA 274 SCRA 102 [1997]
5. PHIL INTERNATIONAL VS CA 172 SCRA 810 [1992]

RECITATION:

1. What is characterization in simple terms?

2. What is status?
3. What is personal law?
4. What are the theories of personal law?
5. Is the nationality theory being followed in the Philippines?
6. Are there instances when the domiciliary theory is applied here?

GENERAL RULE: We are not obliged to apply foreign law

WHY DO WE STILL APPLY FOREIGN LAW?

A. PRACTICAL REASONS

1. Indiscriminate application of local law in all conflict cases can lead to injustice.
2. To discourage forum-shopping

B. THEORETICAL REASONS

1. THE THEORY OF COMITY

We apply the foreign law because of its convenience. Comity is the recognition which one nation
allows within its territory, to the legislative, executive, or judicial acts of another nation, having due regard both
to international duty and convenience, and to the rights of its own citizens, of other persons who are under the
protection of its laws.

Sir de la Banda  comity means courtesy. We bend a little of barb wire in order to give way to other countries’
laws.

Defects of the Theory of Comity:

1. presupposes the existence of an international theory. There is no such duty.

2. assumes a desire to show courtesy to other states. The real reason for the application of the foreign
law is the avoidance of gross inconvenience and injustice to litigants, whether natives or foreigners.
3. leaves the application of the foreign law to the discretion of the forum.

There are two kinds of comity:

(1) comity that is based on reciprocity, and,

(2) comity based on the persuasiveness of a foreign judgment.
2. The Theory of Vested Rights

We seek to enforce not the foreign law or the foreign judgment itself, but simply the vested rights that
have been vested under such foreign law or judgment.

Basis:
This is based on the cardinal principle of territoriality. Extraterritorial effect is given not to foreign laws
or judgments as such but merely to the rights they have created.

Defects of the Vested Rights Theory:

1. in recognizing rights, the proponents of this theory implicitly recognize the foreign law. For how else
can they determine whether or not there has been a vesting of rights?
2. based on the mistaken notion of the concept of “territoriality” Territorial law includes the conflicts
rules (which embody a constant reference to the proper foreign law)
3. sometimes the problem is not about vested rights; instead it is whether or not to apply certain foreign
disabilities or incapacities.

3. The Theory of Local Law

We apply foreign law, not because it is foreign, but because our own laws, by applying similar rules,
requires us to do so; hence, it is as if the foreign law has become part and parcel of our own local law.

4. The Theory of Harmony of Laws

We have to apply the foreign law so that wherever a case is decided, that is, irrespective of the forum,
the solution should approximately be the same: thus, identical or similar problems must have identical or
similar solutions anywhere. When the goal is realized there will be a harmony of laws.

5. The Theory of Justice

The purpose of all laws, including Conflict of Laws, is the dispensing of justice: if this can be attained in
many cases by applying the proper foreign law, we must do so.

6. The Theory of Reciprocity and Persuasiveness of Foreign Judgment

-recognition vice versa
-forum is persuaded that foreign judgment is meritorious

7. The Right Theory

It will be observed that the theories mentioned do not mutually exclude one another; perhaps the
truth may be found in their combination.

CHAPTER IV

THE NATURE AND PROOF OF FOREIGN JUDGMENTS

FOREIGN JUDGMENTS

GENERAL RULE: Foreign judgments are effective only in the court of the place in where it was rendered.

However, some decisions of the Supreme Court allowed the effectivity of foreign judgments here.

2 WAYS IN WHICH WE GIVE EFFECT TO FOREIGN JUDGMENTS:

1. Recognition
2. Enforcement
TAKE NOTE:

 If local judgment – can be enforced by a motion for execution

 If foreign judgment – cannot be enforced by a motion for execution
Remedy – File a new case

For a foreign judgment to be ever made effective in our country, it is imperative that it be proved in
accordance with our prescribed rules on the matter.

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS, DISTINGUISHED

RECOGNITION
Courts will allow said foreign judgment to be
presented as a defense to a local litigation;
enforcement
Involves merely the sense of justice
Does not require either action or a special
proceeding
May exist without enforcement
ENFORCEMENT
Exist when a plaintiff wants the courts to positively carry
out and make effective in the Philippines a foreign
judgment
Implies a direct act of sovereignty
Necessitates a separate action or proceeding brought
precisely to make the foreign judgment effective
Necessarily carries with it recognition

NOTE: For both recognition and enforcement, proof of the foreign judgment has to be presented.

Reasons why not all foreign judgments can be recognized or enforced in our country:

1. The requisite proof thereof may not be adequate;

2. They may contravene our established public policies;
3. They may contradict one another.
4. In some countries the administration of justice may be shockingly corrupt.

CONDITIONS AND REQUISITES BEFORE FOREIGN JUDGMENTS MAY BE RECOGNIZED AND ENFORCED IN THE
PHILIPPINES:

(1) There must be proof of the foreign judgment; for recognition there is no necessity for a separate action or
proceeding, enforcement requires such separate action or proceeding.

(2) The judgment must be on a civil or commercial matter (because if on a criminal or revenue or
administrative or remedial matter, the same would fall under the exceptions to the application of the foreign
law).
(3) There must be no lack of jurisdiction, no want of notice, no collusion, no extrinsic fraud, no clear mistake
of law or fact.

ASIAVEST VS CA
361 SCRA 489 [2001]

Facts: Petitioner Asiavest is a corporation organized under the laws of Malaysia while Private
Respondent PNCC is a domestic corporation. Petitioner initiated a suit for collection against
PR before the High Court of Malaysia in Kuala Lumpur to recover the indemnity of the
performance bond it had put in favor of PR. The High Court of Malaya rendered judgment in
favor of the Petitioner. Following unsuccessful attempts to secure payment from PR under the
judgment, Petitioner initiated a complaint before the RTC of Pasig to enforce the said
judgment.

Issue: W/N the CA erred in denying recognition and enforcement to the Malaysian Court’s
judgment

Ruling: YES! The foregoing reasons relied upon by PR in preventing enforcement and
recognition of the Malaysian judgment primarily refer to matters of remedy and procedure
taken by the Malaysian High Court relative to the suit for collection initiated by Petitioner.
Needless to stress, the recognition to be accorded a foreign judgment is not necessarily
affected by the fact that the procedure in the courts of the country in which such judgment
was rendered differs from that of the courts of the country in which the judgment is relied on.
Ultimately, matters of remedy and procedure such as those relating to the service of
summons or court process upon the defendant and the formal requirements in a decision are
governed by the lex fori or the internal law of the forum, i.e., the law of Malaysia in this case.

In this case, it is the procedural law of Malaysia where the judgment was rendered
that determines the validity of the service of court process on PR as well as other matters
raised by it. As to what the Malaysian procedural law is, remains a question of fact, not of law.
It may not be taken judicial notice of and must be pleaded and proved like any other fact.
Section 24 & 25 of the Revised Rules of Court provide that it may be evidenced by an official
publication or by a duly attested or authenticated copy thereof. It was then incumbent upon
PR to present evidence as to what that Malaysian procedural law is and to show that under it,
the assailed service of summons upon a financial officer of a corporation, as alleged by it, is
invalid. Accordingly, the presumption of validity and regularity of service of summons and the
decision thereafter rendered by the High Court of Malaysia must stand.
*EVIDENCE IS WANTING ON ALLEGED EXTRINSIC FRAUD

PHILIPPINE ALUMINUM VS FASGI

342 SCRA 722 [2000]

Facts: FASGI, a corporation organized and existing under and by virtue of the laws of the State
of California, USA, entered into a contract with PAWI, a Philippine corporation, and with SPS,
an Italian Corporation. The agreement provided for the importation and distributorship of
aluminum wheels in the US. Unfortunately, FASGI later found the shipment to be defective
and in non-compliance with their agreement. FASGI instituted an action against PAWI & FPS
for breach of contract and recovery of damages before the US District Court for the Central
District of California. During the pendency of the case, the parties entered into a compromise
agreement. However, PAWI still was not able to comply with the agreement and with the
subsequent supplemental settlement agreement prompting FASGI to pursue its complaint for
damages against PAWI before the California District Court. Unable to obtain satisfaction of the
final judgment within the US, FASGI filed a complaint for enforcement of foreign judgment
before the RTC of Makati. The RTC dismissed the complaint.

Ruling: PAWI claims that its counsel, Mr. Ready, has acted without its authority. Verily, in this
jurisdiction, it is clear that an attorney cannot, without the clients authorization, settle the
action or subject matter of the litigation even when he honestly believes that such a
settlement will best serve his client’s interest.

In the instant case, the supplemental settlement agreement [SSA] was signed by the
parties, including Mr. Ready. If Mr. Ready was indeed not authorized by PAWI, then PAWI
could have forthwith signified to FASGI a disclaimer of the SSA. Instead, more than 1 year
after the execution of the SSA, PAWI’S President sent a communication to FASGI that failed to
mention Mr. Ready’s supposed lack of authority. On the contrary, the letter confirmed the
terms of the agreement. It is an accepted rule that when a client, upon becoming aware of
the compromise and the judgment thereon, fails to promptly repudiate the action of his
attorney, he will not afterwards be heard to complain about it.

If PAWI were indeed hoodwinked by Mr. Ready who purportedly acted in collusion
with FASGI, it should have aptly raised the issue before the forum which issued the judgment
in line with the principle of international comity that a court of another jurisdiction should
refrain, as a matter of propriety and fairness, from so assuming the power of passing
judgment on the correctness of the application of law and the evaluation of the facts of the
judgment issued by another tribunal.

Fraud, to hinder the enforcement within this jurisdiction of a foreign judgment, must
be extrinsic, i.e., fraud based on facts not controverted or resolved in the case where the
 judgment is rendered, or that which would go to the jurisdiction of the court or would deprive
the party against whom judgment is rendered a chance to defend the action to which he has a
meritorious case or defense. In fine, intrinsic fraud, that is, fraud which goes to the very
existence of the cause of action – such as fraud in obtaining the consent to a contract- is
deemed already adjudged, and it, therefore, cannot militate against the recognition or
enforcement of the foreign judgment.

SOORAJMULL NAGARMULL VS BINALBAGAN

33 SCRA 46 [1970]

Facts: Plaintiff Soorajmull, a foreign corporation based in India, agreed to sell Hessian Bags to
Defendant Binalbagan-Isabella Sugar Company, a domestic corporation. Plaintiff defaulted in
delivering the agreed number of bags for the months of July, August and September.
Meanwhile, the Government of India increased its export duty. Plaintiff requested Defendant
to increase its letter of credit which Defendant complied with. However, Defendant refused to
pay the increased export duty for the months of July to September. Plaintiff presented its
claim to the Bengal Chamber of Commerce, Tribunal of Arbitration. The Tribunal decided in
favor of the Plaintiff.

Issue: Whether or not the decision of the Tribunal of Arbitration of the Bengal Chamber of
Commerce, as affirmed by the High Court of Judicature of Calcutta, is enforceable in the
Philippines

Ruling: The decision of the Tribunal of Arbitration is not enforceable in the Philippines
because it is based on a clear mistake of law and its enforcement will give rise to a patent
injustice. It failed to apply to the facts of this case fundamental principle of contract.

It is true that under the provisions of Section 50 of Rule 39, Rules of Court, a
judgment for a sum of money rendered by a foreign court "is presumptive evidence of a right
as between the parties and their successors in interest by subsequent title," but when suit for
its enforcement is brought in a Philippine Court, said judgment "may be repelled by evidence
of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or
fact."

Had appellee complied with the delivery of one-hundred fifty-four Hessian bales on
months stated in the contract (July, August, September, 1949) increase in the export tax,
which became effective only on October 1, 1949, would not have been imposed. Thus, to
enforce the decision sought would make an innocent party (appellant) suffer the
consequences of the breach of contract communed by appellee.

(4) The judgments must not contravene a sound and established public policy of the forum.

(5) The judgment must be res judicata in the state that rendered it.

NOTE: The requisites for RES JUDICATA are the following:

a. The judgment must be final;

b. The court rendering the judgment must have jurisdiction over the subject matter and the
parties;
c. The judgment must be on the merits;
d. There must be identify of parties, of subject matter, and of cause of action except that with
reference to the last, the real cause of action is now the recognition or enforcement of the
foreign judgment on the original cause of action.

PHILSEC VS CA
274 SCRA 102 [1997]
 Facts: It is important to note that while the present case was pending in the Court of Appeals, the
United States District Court for the Southern District of Texas rendered judgment in the case before it.
The judgment, which was in favor of private respondents, was affirmed on appeal by the Circuit Court
of Appeals.

Private respondents contend that for a foreign judgment to be pleaded as res judicata, a judgment
admitting the foreign decision is not necessary. On the other hand, petitioners argue that the foreign
judgment cannot be given the effect of res judicata without giving them an opportunity to impeach it
on grounds stated in Rule 39, §50 of the Rules of Court, to wit: "want of jurisdiction, want of notice to
the party, collusion, fraud, or clear mistake of law or fact."

Issue: whether the Civil Case filed here in the Philippines is barred by the judgment of the U.S. court.

Ruling: Petitioners' contention is meritorious. While this court has given the effect of res judicata to
foreign judgments in several cases, it was after the parties opposed to the judgment had been given
ample opportunity to repel them on grounds allowed under the law. It is not necessary for this
purpose to initiate a separate action or proceeding for enforcement of the foreign judgment. What is
essential is that there is opportunity to challenge the foreign judgment, in order for the court to
properly determine its efficacy. This is because in this jurisdiction, with respect to actions in personam,
as distinguished from actions in rem, a foreign judgment merely constitutes prima facie evidence of
the justness of the claim of a party and, as such, is subject to proof to the contrary.

Thus, in the case of General Corporation of the Philippines v. Union Insurance Society of Canton, Ltd.,
which private respondents invoke for claiming conclusive effect for the foreign judgment in their favor,
the foreign judgment was considered res judicata because this Court found "from the evidence as well
as from appellant's own pleadings" that the foreign court did not make a "clear mistake of law or fact"
or that its judgment was void for want of jurisdiction or because of fraud or collusion by the
defendants. Trial had been previously held in the lower court and only afterward was a decision
rendered, declaring the judgment of the Supreme Court of the State of Washington to have the effect
of res judicata in the case before the lower court. In the same vein, in Philippine International
Shipping Corp. v. Court of Appeals, this court held that the foreign judgment was valid and
enforceable in the Philippines there being no showing that it was vitiated by want of notice to the
party, collusion, fraud or clear mistake of law or fact. The prima facie presumption under the Rule had
not been rebutted.

In the case at bar, it cannot be said that petitioners were given the opportunity to challenge the
judgment of the U.S. court as basis for declaring it res judicata or conclusive of the rights of private
respondents. The proceedings in the trial court were summary. Neither the trial court nor the
appellate court was even furnished copies of the pleadings in the U.S. court or apprised of the
evidence presented thereat, to assure a proper determination of whether the issues then being
litigated in the U.S. court were exactly the issues raised in this case such that the judgment that might
be rendered would constitute res judicata.

It was error therefore for the Court of Appeals to summarily rule that petitioners' action is barred by
the principle of res judicata. Petitioners in fact questioned the jurisdiction of the U.S. court over their
persons, but their claim was brushed aside by both the trial court and the Court of Appeals.

PHILIPPINE INTERNATIONAL VS CA
172 SCRA 810 [1992]

Ruling : That foreign judgment — which had become final and executory, no appeal having been taken
therefrom and perfected by petitioner PISC — is thus "presumptive evidence of a right as between the parties
[i.e., PISC and Interpool] and their successors in interest by a subsequent title." We note, further, that there has
been in this case no showing by petitioners that the Default Judgment rendered by the U.S. District Court in 83
Civil 290 (EW), was vitiated by "want of notice to the party, collusion, fraud, or clear mistake of law or fact." In
other words, the Default Judgment imposing upon petitioner PISC a liability of U.S.$94,456.28 in favor of
respondent Interpool, is valid and may be enforced in this jurisdiction.

PROVISIONS OF THE RULES OF COURT ON FOREIGN JUDGMENTS:

SECTION 48, RULE 39. EFFECT OF FOREIGN JUDGMENTS OR FINAL ORDERS – The effect of a judgment or final
order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows:

(a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the
title to the thing; and

(b) In case of a judgment of final order against a person, the judgment or final order is presumptive evidence of
a right as between the parties and their successors in interest by a subsequent title.

In either case, the judgment or final order may be repelled by evidence of want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact.

NOTE: It would seem that when our courts enforce a foreign judgment by allowing it, the effect is
that is really our own court’s judgment that we enforce.

SUMMARY:
REQUISITES FOR RECOGNITION & ENFORCEMENT:
 Proof of foreign judgment;
 Judgment must be on a civil or commercial matter;
 No lack of jurisdiction, no want of notice, no collusion, no extrinsic fraud, no clear mistake of fact or
law;
 Judgment must not contravene a sound and established public policy of the forum;
 Judgment must be res judicata in the state that rendered it.

CHAPTER V

NATURE AND COMPOSITION OF CONFLICT RULES

Conflict rules are the provisions found in a country’s own law which govern factual situations
possessed of a foreign element.

CONFLICTS RULES DISTINGUISHED FROM PURELY INTERNAL RULES

PURELY INTERNAL LAW CONFLICT LAW

Governs a purely domestic problem, one without Applies when the factual situation involves a foreign
any foreign element element.
Directly answers a given problem Merely indirectly responds by indicating whether internal
or foreign law is to be applied

Kinds of Conflicts Rules:

(1) The one-sided rule (which indicates when Philippine internal law will apply).

Example: Art. 15, Civil Code: Laws relating to family rights and duties, or to the status,
condition, and legal capacity of persons are binding upon citizens of the Philippines, even
though living abroad.

(2) The all-sided rule (which indicates when foreign law is to be applied)
 Example: Art. 16 (2), Civil Code: However, in testate and testamentary successions both with
respect to the order of succession and to the amount of success ional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the national law of the
person whose succession is under consideration, whatever may be the nature of the property
and regardless of the country wherein said property may be found.

COMPOSITION OF CONFLICT RULES:

(1) The Factual Situation - the set of facts presenting a conflicts problem
- the situation that the provision wants to govern

(2) The Point of Contact / Connecting Factor - the law of the country with which the factual situation is
most intimately connected
- legal consequence of the facts
- what law to apply

Example: In the conflicts rule “capacity to succeed is governed by the law of the nation of the decedent” (Art.
1039, Civil Code):

a. Capacity to succeed – is the factual situation indicating that a person is dead, and someone alleges a right or
capacity to inherit from the former.

b. Law of the nation of the decedent – is the point of contact. This depends upon several factors:

i) nationality iii) situs v) intention of the parties;

ii) domicile; iv) place of celebration; vi) law of the forum

CHAPTER VI

THE CHARACTERIZATION OF CONFLICTS RULES

Characterization is simply the process of determining under what category a certain set of facts or rules fall. It
is the process of deciding whether or not the facts relate to the kind of question specified in the conflicts rule.

The ultimate purpose of characterization is to enable the forum to select the proper law.

Factors which give rise to the problem of characterization:

1. Different legal systems attach to the same legal term different meanings.
2. Different legal systems may contain ideas or conceptions completely unknown to one another.
3. Different legal systems apply different principles for the solution of problems which, in general term,
are a common nature.

4 STEPS IN CHARACTERIZATION:

1. The characterization of the factual situation  This is the process of assigning the proven facts into
their particular category.

Example: Decide what field of law the given sets of facts belong to know what law to apply. Do the
facts constitute a problem of succession, or a problem of marital property rights or of contracts?

GIBBS vs. GOVERNMENT of the PHILIPPINES

59 PHIL. 293

Facts: Gibbs and his wife were American nationals, domiciled in California. They were married in Ohio
and came to the Philippines, where they acquired lands. In 1929, Mrs. Gibbs died in California. Mr.
Gibbs was appointed administrator in intestate proceedings instituted in the Manila Court. In 1930, he
asked the court to adjudicate to him these lands, not by virtue of succession but because under
 California law the husband acquired the community property, in which the wife in her lifetime had only
an inchoate interest or expectancy (which is extinguished upon her death). This was granted by the
Court of First Instance of Manila, upon proof of California law. The register of deeds refused to register
transfer of title, on the ground that the corresponding inheritance tax had nit been paid. Gibbs refused
to pay alleging that this was not a case of succession. He argued that: (1) under Article 15 of the Civil
Code, the conjugal right of a California wife in community real property in the Philippines is a personal
right; and (2) that if this was a case of succession, under Article 16, paragraph 2, California law should
also apply since the person whose succession was in question was a California national.

Ruling: (1) Article 15 treats of purely personal relations and status and capacity for juristic acts. This is
not such a question for this one relates to property, which should be governed by Article 16. California
law is only resorted to determine questions of status.

(2) Gibbs cannot be heard to say that there is a legal succession under the law of the Philippines, and
no legal succession under the law of California. It seems clear that the second paragraph of Article 16
applies only when a legal or testamentary succession has taken place in the Philippines in accordance
with the law of the Philippine Islands, and the foreign law is consulted only in the regard to the order
of succession or the extent of successional right. In other words, the second paragraph of Article 16
can be invoked only when the deceased was vested with a descendible interest in property within the
jurisdiction of the Philippine Islands. The descendible interest of Eva Johnson Gibbs in the lands
aforesaid was transmitted to her heirs by virtue of inheritance.

2. The determination of the conflicts rule to be applied;

3. The characterization of the point of contact or the connecting factor;

NOTE: In case of contracting by telephone, fax or by mail, what law will govern?

A. (Philippine jurisprudence) place of offer – Article 1319 Civil Code

Manifestation Theory.
B. (US jurisprudence) place of acceptance – Expedition Theory.
C. (German jurisprudence) place of reception of the acceptance Reception
Theory.

Example: In the Philippines, I mailed my offer to you while you were in the US. Then I went to Germany. You
mailed your letter of acceptance to me in Germany.

PARAS: Apply the law of the forum. Thus, if the case is filed in the Philippines, apply Philippine Law.

4. The characterization of the problem as procedural or substantive;

Sir de la Banda: problematic only as to the issues of Prescription and Statute of Frauds

 PROCEDURAL MATTERS are governed by the law of the forum

 SUBSTANTIVE MATTERS – sometimes we apply foreign law

CADALIN VS POEA’S ADMINISTRATOR

238 SCRA 721

Issue: whether it is the Bahrain law on prescription of action based on the Amiri Decree No. 23 of 1976
or a Philippine law on prescription that shall be the governing law.

Ruling: Article 156 of the Amiri Decree No. 23 of 1976 provides:

"A claim arising out of a contract of employment shall not be actionable after the lapse of one year
from the date of the expiry of the contract"

As a general rule, a foreign procedural law will not be applied in the forum. Procedural matters, such
as service of process, joinder of actions, period and requisites for appeal, and so forth, are governed by
the laws of the forum. This is true even if the action is based upon a foreign substantive law.
 A law on prescription of actions is sui generis in Conflict of Laws in the sense that it may be viewed
either as procedural or substantive, depending on the characterization given such a law.

Thus in Bournias v. Atlantic Maritime Company, supra, the American court applied the statute of
limitations of New York, instead of the Panamanian law, after finding that there was no showing that
the Panamanian law on prescription was intended to be substantive. Being considered merely a
procedural law even in Panama, it has to give way to the law of the forum on prescription of actions.

However, the characterization of a statute into a procedural or substantive law becomes irrelevant
when the country of the forum has a "borrowing statute." Said statute has the practical effect of
treating the foreign statute of limitation as one of substance (Goodrich, Conflict of Laws 152-153
[1938]). A "borrowing statute" directs the state of the forum to apply the foreign statute of
limitations to the pending claims based on a foreign law. While there are several kinds of "borrowing
statutes," one form provides that an action barred by the laws of the place where it accrued, will not
be enforced in the forum even though the local statute has not run against it . Section 48 of our Code
of Civil Procedure is of this kind. Said Section provides:

"If by the laws of the state or country where the cause of action arose, the action is barred, it is also
barred in the Philippines Islands."

Section 48 has not been repealed or amended by the Civil Code of the Philippines. Article 2270 of said
Code repealed only those provisions of the Code of Civil Procedures as to which were inconsistent with
it. There is no provision in the Civil Code of the Philippines, which is inconsistent with or contradictory
to Section 48 of the Code of Civil Procedure.

In the light of the 1987 Constitution, however, Section 48 cannot be enforced ex proprio vigore insofar
as it ordains the application in this jurisdiction of Section 156 of the Amiri Decree No. 23 of 1976.

The courts of the forum will not enforce any foreign claim obnoxious to the forum's public. To enforce
the one-year prescriptive period of the Amiri Decree No. 23 of 1976 as regards the claims in question
would contravene the public policy on the protection to labor.

Rule regarding the statute of frauds:

If the Statute of Frauds forbids the creation of obligations, then it shall be considered as SUBSTANTIVE.
On the other hand, if the Statute of Frauds forbids only the execution of obligations, then it shall be considered
as PROCEDURAL. If we examine our Civil Code, our Statute of Frauds merely forbids the execution of
obligations, thus it is PROCEDURAL.

TOTALITY APPROACH :

1. first get the law intended by the parties to govern the contract;
2. then, proceed to apply that intended law in its totality including its periods of prescripton and
its Statute of Frauds.

EXCEPTION: If the subject matter governs property located in the Philippines, our own law on Prescription and
our own Statute of Frauds must apply.

THEORIES ON CHARACTERIZATION:

1. Lex Foil Theory – the forum merely considers its own concept, its own characterization.

2. Lex Causae Theory - exact opposite of the Lex situs theory. Here, we are supposed to follow the
characterization of the foreign state which is the principal point of contact.

3. Universal Analytical Theory (a.k.a, comparative approach theory) – characterization comes

Only after a general comparative analytical study of the jurisprudence of all the states
involved.
 4. Dual Theory of Lex fori and Lex causae – only two concepts enter into the picture-the characterization
of the lex fori and that of the lex causae.

5. Autonomous Theory – the forum considers the characterization of the country referred to in the
conflicts rule of the lex causae. Hence, if the characterization in the forum State A points to State B as
the lex causae, and the conflicts rule in State B refers to State C as the proper point of contact, it is the
characterization in State C which must be used by State A.

6. Totality Theory – get the characterization intended by the parties or get the law intended by the
parties to apply, and then proceed to apply the characterization given by that intended law. This is
otherwise known as the “totality approach”
-characterization of parties
-law intended by the parties

CHAPTER VII

THE VARIOUS THEORIES ON STATUS AND CAPACITY

STATUS is the place of an individual in society, and consists of personal qualities and relationships, more or less
permanent, with which the state and the community are concerned.

CAPACITY is merely a part of status, and may be defined as the sum total of his rights and obligations.

The Civil Code distinguishes two kinds of capacity:

1. capacity to act (active capacity) – power to do acts with legal affects;

2. juridical capacity (passive capacity) – the fitness to be the subject of legal relations

CHARACTERISTICS OF STATUS:

1. Status is conferred principally by the state not by the individual.

2. Status is a matter of public or social interest.
3. Status being a concept of social order, cannot easily be terminated at the mere will or desire of the
parties concerned.
4. Status is generally supposed to have a universal character; when a certain status is created by the
law of one country, it is generally juridical recognized all over the world.

Personal Law – the law that attaches to an individual, wherever he may go -a law that generally governs his
status, his capacity, his family relations, and the consequences of his actuations; this personal law may be his
“national law” or his “domiciliary law” or the ‘law of the situs”, depending upon the theory applied and
enforced in the forum.

Defects of Personal Law:

Different countries understood personal law differently.

Theories on Personal law:

(1) Nationality Theory – by virtue of which the status and capacity of an individual are generally governed by
the law of his nationality. (This is also called the PERSONAL Theory)

(2) Domiciliary Theory – Which regards the law of the domicile as the proper determinative law on status and
capacity. (This is also known as the TERRITORIAL Theory)

(3) Situs Theory – which views the particular place or situs an event or transaction as generally the controlling
law. (This has also been referred to as the ECLECTIC theory).
 CHAPTER VIII

THE NATIONALITY THEORY

OUTLINE :

1. CLASSIFICATION OF CITIZENS
2. HOW CITIZENSHIP IS ACQUIRED
3. HOW LOST
4. HOW REACQUIRED
5. CONSTITUTIONAL PROVISIONS

CASES:

1. RE : APPLICATION 316 SCRA 1 [1999]

2. REP VS DELA ROSA 232 SCRA 785 [1994]
3. BENGZON VS HRET 357 SCRA 545 [2001]

NEW LAWS:

1. RA 9139 [2001]
2. RA 9225 [AUGUST 2003]
 This law repealed or annulled the following cases:
1. LABO CASE
2. LOPEZ CASE
3. MANZANO CASE

NATIONALITY THEORY - This is the theory by virtue of which the status and capacity of an individual are
generally governed by the law of his nationality.

NATIONALITY CITIZENSHIP
Membership in an ethnic, social, racial, and cultural Membership in a political society
group
Includes not only citizenship, but all those owing
allegiance to a particular state, like subjects , or the
inhabitants of colonies.

 For purposes of Private international Law, however, no such distinction exists. Citizens are referred to
as nationals, and vise-versa.

CLASSIFICATION OF CITIZENS :

1. NATURAL BORN – Those who are citizens of the Philippines from birth without having to perform any
act to acquire or perfect their Philippine citizenship. They can hold constitutional positions.

2. NATURALIZED – Citizens who are not natural-born citizens; those who become such through judicial
proceedings. They enjoy the right to vote and to occupy certain positions.

3. DUAL CITIZENS – Enjoy less rights than naturalized citizens.

4. RESIDENT ALIENS – No political rights

5. STATELESS INDIVIDUALS – Found in the Family Code

A person may become stateless by any of the following means;

a. he may have been deprived of his citizenship for any cause;
b. he may have renounced his nationality by certain acts, express or implied;
 c. he may have voluntarily asked for a release from his original state;
d. he may have been born in a state which recognizes only the principle of jus sanguinis of parents
whose law recognizes only the principle of just soli.

The personal law of stateless individuals shall be;

the law of the domicile (habitual residence); or
the law of the place of temporary residence

 Note that this classification is important only in Political Law.

In Private International Law, there are only 2 classifications, namely:

1. CITIZENS
2. ALIENS

CONSTITUTIONAL PROVISIONS:

ARTICLE IV, 1987 CONSTITUTION

Citizenship

Section 1. The following are citizens of the Philippines :

(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution;

(2) Those whose fathers or mothers are citizens of the Philippines;

(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon
reaching the age of majority; and

(4) Those who are naturalized in accordance with law.

Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having
to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in
accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.

Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law.

Section 4. 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 it.

Section 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.

WHO ARE CITIZENS OF THE PHILIPPINES:

Section 1. The following are citizens of the Philippines :

(1) Those who are citizens of the Philippines at the time of the adoption of this constitution;

 This is common in all constitutions – 1935, 1973 & 1987

(2) Those whose fathers or mothers are citizens of the Philippines;

 The Philippine Constitution adopts the JUS SANGUINIS THEORY or citizenship by blood. One follows
the citizenship of his parents.

(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon
reaching the age of majority; and
  This provision is no longer of value because those born before this date aare already at least 31 years
old. By now, they have already elected citizenship.

 3 QUESTIONS:
1. When must the mother be Filipino?
 The mother must be Filipino at the time of MARRIAGE.
2. When must one elect citizenship?
 One must elect within a reasonable time upon reaching the age of majority.
 According to jurisprudence, what is reasonable is a question of fact, depending upon the
peculiar circumstances of each case. In one instance, 3 years from reaching the age of
majority [21 years old] is still reasonable time. But generally, 5 years would be unreasonable.

IN RE: APPLICATION
316 SCRA 1
This case is about a guy who took and passed the bar. He is also an accountant. He elected when he
was 35 years old. The SC said it is already too late. 14 years after reaching the age of majority is already
too late!

3. How should one elect Philippine Citizenship?

a. By filing a sworn statement in the Civil Registrar – if in the Philippines;

b. By filing a sworn statement with Diplomatic or Consular Officials – if in a foreign country

In CO VS HRET, The SC said that Co elected Philippine citizenship INFORMALLY. Now, in the CASE OF
MALLARI, Mallari invoked the CO case. However, the SC said there is no such thing as informal
election.

RULE IS: THERE IS NO SUCH THING AS INFORMAL OR IMPLIED ELECTION OF PHILIPPINE CITIZENSHIP.

(4) Those who are naturalized in accordance with law.

3 ways of Naturalization:

1. By Judicial Process
2. By Legislative Naturalization
3. By Administrative Naturalization

A. JUDICIAL PROCESS OF NATURALIZATION

 governed by CA 473
 DE LA ROSA CASE

PROCEDURE:

1. Filing of declaration of intention 1 year prior to the filing of the petition with the Office of the Solicitor
General. The following are exempt from filing declaration of intention:

a. Born in the Philippines and have received their primary & secondary education in public or private
schools recognized by the Government & not limited to any race or nationality.

b. Resided in the Philippines for 30 years or more before the filing of the petition, and enrolled his
children in elementary & high schools recognized by the Government & not limited to any race or
nationality.

c. Widow & minor children of an alien who has declared his intention to become a citizen of the
Philippines & dies before he is actually naturalized.
2. Filing of the petition in the RTC 1 year after the filing of the declaration of intention.

3. Publication of the petition in the OG or in a newspaper of general circulation once a week for 3 consecutive
weeks. This is a jurisdictional requirement.

4. Actual residence in the Philippines during the entire proceedings.

5. Hearing of the petition 6 months after the publication.

6. Promulgation of the petition.

7. Rehearing after 2 years.

8. Oath taking & issuance of certificate of Naturalization.

 The judicial process takes 3 1/2 years to accomplish plus the 10 year residency requirement. So, all in all, it
will take 13 ½ years.

In REPUBLIC VS DE LA ROSA, the SC noted several irregularities which punctuated the petition & the
proceedings in the application for naturalization of Juan Frivaldo. Thus, the SC held that the procedure for
naturalization must strictly be complied with. Naturalization is a privilege granted by law. Even if the applicant is
a former Filipino citizen, he must follow the procedure for naturalization strictly.

B. LEGISLATIVE NATURALIZATION:

Congress passes a law conferring Philippine citizenship to certain individuals. This is discretionary on
Congress. This is usually conferred on an alien who has made outstanding contributions to the country.

During Marcos’ time, some missionaries were the beneficiaries of this, however, this was abused.

This legislative naturalization cannot be challenged under the Constitution because the Constitution
states : “… those naturalized in accordance with law.” It did not specify what law. Thus, it does not violate the
equal protection clause.

C. ADMINISTRATIVE NATURALIZATION:

This is governed by RA 9139, THE ADMINISTRATIVE NATURALIZATION LAW OF 2000 which grants
Philippine citizenship by administrative proceedings to aliens born & residing in the Philippines.

This is administrative because there is a Special Committee headed by the SolGen, with the Secretary
of Foreign Affairs or his representative, and the National Security Adviser as members. This committee has the
power to approve, deny or reject applications for naturalization under this act.

PURPOSE: To do away with proceedings that lasts for so many years.

QUALIFICATIONS:

In addition to the qualifications set by previous laws, the applicant must :

1. be born in the Philippines & residing therein since birth. This is the most important requirement.

2. not be less than 18 years of age, at the time of filing the petition.

PROCEDURE:

1. Pay P 40,000 upon filing of the petition

2. Publication
3. The committee shall consider & review
4. If the committee approves the application, the applicant is required to pay P50,000.
5. Oath taking, pay another P50,000

Sir de la banda: All in all, the applicant pays P140,000. this is citizenship for sale! 

 The Principle of Reciprocity applies.

STATUS OF ALIEN WIFE & MINOR CHILDREN:

Q: Suppose the alien husband obtains Philippine citizenship through this process, what happens to his wife &
minor children?

A: The wife & mior children shall be benefited. They only have to ask for the cancellation of their ACR. However,
they should pay P60,000 each.

STATUS OF ALIEN HUSBAND & MINOR CHILDREN:

Q: Suppose the wife acquires naturalization, what is the status of her alien husband & minor children?

A: The husband will not benefit from the wife’s naturalization but the minor children will be benefited upon
compliance with the requirements prescribed by law.

REPUBLIC ACT NO. 9139 June 08, 2001

AN ACT PROVIDING FOR THE ACQUISITION OF PHILIPPINE CITIZENSHIP FOR CERTAIN ALIENS BY
ADMINISTRATIVE NATURALIZATION AND FOR OTHER PURPOSES

Be it enacted by the Senate and the House of Representatives of the Philippines in Congress assembled:

Section 1. Short Title. - This Act shall be known as "The Administrative Naturalization Law of 2000."

Section 2. Declaration of Policy. - The State shall control and regulate the admission and integration of aliens
into its territory and body politic including the grant of citizenship to aliens. Towards this end, aliens born and
residing in the Philippines may be granted Philippine citizenship by administrative proceedings subject to
certain requirements dictated by national security and interest.

Section 3. Qualifications. - Subject to the provisions of the succeeding section, any person desiring to avail of
the benefits of this Act must meet the following qualifications:

(a) The applicant must be born in the Philippines and residing therein since birth;

(b) The applicant must not be less than eighteen (18) years of age, at the time of filing of his/her petition;

(c) The applicant must be of good moral character and believes in the underlying principles of the Constitution,
and must have conducted himself/herself in a proper and irreproachable manner during his/her entire period
of residence in the Philippines in his relation with the duly constituted government as well as with the
community in which he/she is living;

(d) The applicant must have received his/her primary and secondary education in any public school or private
educational institution dully recognized by the Department of Education, Culture and Sports, where Philippine
history, government and civics are taught and prescribed as part of the school curriculum and where enrollment
is not limited to any race or nationality: Provided, That should he/she have minor children of school age, he/she
must have enrolled them in similar schools;

(e) The applicant must have a known trade, business, profession or lawful occupation, from which he/she
derives income sufficient for his/her support and if he/she is married and/or has dependents, also that of
his/her family: Provided, however, That this shall not apply to applicants who are college degree holders but are
unable to practice their profession because they are disqualified to do so by reason of their citizenship;
(f) The applicant must be able to read, write and speak Filipino or any of the dialects of the Philippines; and

(g) The applicant must have mingled with the Filipinos and evinced a sincere desire to learn and embrace the
customs, traditions and ideals of the Filipino people.

Section 4. Disqualifications, - The following are not qualified to be naturalized as Filipino citizens under this Act:

(a) Those opposed to organized government or affiliated with any association of group of persons who uphold
and teach doctrines opposing all organized governments;

(b) Those defending or teaching the necessity of or propriety of violence, personal assault or assassination for
the success or predominance of their ideas;

(c) Polygamists or believers in the practice of polygamy;

(d) Those convicted of crimes involving moral turpitude;

(e) Those suffering from mental alienation or incurable contagious diseases;

(f) Those who, during the period of their residence in the Philippines, have not mingled socially with Filipinos, or
who have not evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipinos;

(g) Citizens or subjects with whom the Philippines is at war, during the period of such war; and

(h) Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be naturalized citizens
or subjects thereof.

Section 5. Petition for Citizenship. - (1) Any person desiring to acquire Philippine citizenship under this Act shall
file with the Special Committee on Naturalization created under Section 6 hereof, a petition of five (5) copies
legibly typed and signed, thumbmarked and verified by him/her, with the latter's passport-sized photograph
attached to each copy of the petition, and setting forth the following:

(a) The petitioner's name and surname, and any other name he/she has used or by which he/she is known;

(b) The petitioner's present and former places of residence;

(c) The petitioner's place and date of birth, the names and citizenship of his/her parents and their residences;

(d) The petitioner's trade, business, profession or occupation, and if married, also that of his/her spouse;

(e) Whether the petitioner is single or married or his/her marriage is annulled. If married, petitioner shall state
the date and place of his/her marriage, and the name, date of birth, birthplace, citizenship and residence of
his/her spouse; and if his marriage is annulled, the date of decree of annulment of marriage and the court
which granted the same;

(f) If the petitioner has children, the name, date and birthplace and residences of his/her children ;

(g) A declaration that the petitioner possesses all the qualifications and none of the disqualifications under this
Act;

(h) A declaration that the petitioner shall never be a public charge; and

(i) A declaration that it is the petitioner's true and honest intention to acquire Philippine citizenship and to
renounce absolutely and forever any prince, potentate, State or sovereign, and particularly the country of which
the applicant is a citizen or subject.
(2) The application shall be accompanied by:

(a) Duplicate original or certified photocopies of petitioner's birth certificate;

(b) Duplicate original or certified photocopies of petitioner's alien certificate of registration and native born
certificate of residence;

(c) Duplicate original or certified photocopies of petitioner's marriage certified, if married, or the death
certificate of his spouse, if widowed, or the court decree annulling his marriage, if such was the fact;

(d) Duplicate original or certified photocopies of birth certificates, alien certificate of registration or native born
certificate of residence if any, of petitioner's minor children, wherever applicable;

(e) Affidavit of financial capacity by the petitioner, and sworn statements on the good moral character of the
petitioner by at least two (2) Filipino citizens of good reputation in his/her place of residence stating that they
have personally known the petitioner for at least a period of ten (10) years and that said petitioner has in their
own opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way
disqualified under the provisions of this Act;

(f) A medical certificate that petitioner is not a user of prohibited drugs or otherwise a drug dependent and that
he/she is not afflicted with acquired immune deficiency syndrome (AIDS);

(g) School diploma and transcript of records of the petitioner in the schools he attended in the Philippines.
Should the petitioner have minor children, a certification that his children are enrolled in a school where
Philippine history, government and civics are taught and are part of the curriculum; and

(h) If gainfully employed, the income tax return for the past three (3) years.

Section 6. Special Committee on Naturalization. - There shall be constituted a Special Committee on

Naturalization herein referred to as the "Committee", with the Solicitor General as chairman, the Secretary of
Foreign Affairs, or his representative, and the National Security Adviser, as members, with the power to
approve, deny or reject applications for naturalization as provided in this Act.

The Committee shall meet, as often as practicable, to consider applications for naturalization. For this purpose,
the chairman and members shall receive an honorarium of Two thousand pesos (P2,000.00) and One thousand
five hundred pesos (P1,500.00), respectively, per meeting attended.

Section 7. Powers/Functions of the Special Committee on Naturalization. - An alien who believes that he has all
the qualifications, and none of the disqualifications, may file an application for naturalization with the
secretariat of the Special Committee on Naturalization, and a processing fee of Forty thousand pesos
(P40,000.00). Thereafter, the petition shall be stamped to indicate the date of filing and a corresponding docket
number. Within fifteen (15) days from the receipt of the petition, the Committee shall determine whether the
petition is complete in substance and in form. If such petition is complete, the Committee shall immediately
publish pertinent portions of the petition indicating the name, qualifications and other personal circumstances
of the applicant, once a week for three (3) consecutive weeks in a newspaper of general circulation, and have
copies of the petition posted in any public or conspicuous area. The Committee shall immediately furnish the
Department of Foreign Affairs (DFA), the Bureau of Immigration (BI), the civil registrar of the petitioner's place
of residence and tile National Bureau of Investigation (NBI) copies of the petition and its supporting documents.
These agencies shall have copies of the petition posted in any public or conspicuous area in their buildings,
offices and premises, and shall, within thirty (30) days from the receipt of the petition, submit to the Committee
a report stating whether or not petitioner has any derogatory record on file or any such relevant and material
information which might be adverse to petitioner's application for citizenship.

If the petition is found by the Committee to be wanting in substance and form, the petition shall be dismissed
without prejudice.
Section 8. Approval or Disapproval of the Petition. - Within sixty (60) days from receipt of the report of the
agencies which were furnished a copy of the petition or the date of the last publication of the petition,
whichever comes in later, the Committee shall consider and review all relevant and material information it has
received pertaining to the petition, and may, for the purpose call the petitioner for interview to ascertain
his/her identity, the authenticity of the petition and its annexes, and to determine the truthfulness of the
statements and declarations made in the petition and its annexes.

If the Committee shall have received any information adverse to the petition, the Committee shall allow the
petitioner to answer, explain or refute the information.

Thereafter, if the Committee believes, in view of the facts before it, that the petitioner has all the qualifications
and none of the disqualifications required for Philippine citizenship under this Act, it shall approve the petition
and henceforth, notify the petitioner of the fact of such approval. Otherwise, the Committee shall disapprove
the same.

Section 9. Decree of Naturalization and Naturalization Processing Fee. -Within thirty (30) days from the
receipt of the notice of the approval of his/her petition, the applicant shall pay to the Committee a
naturalization fee of One hundred thousand pesos (P100,000.00) payable as follows: Fifty thousand pesos
(P50,000.00) upon the approval of the petition and Fifty thousand pesos (P50,000.00) upon the taking of the
oath of allegiance to the Republic of the Philippines, forthwith, a certificate of naturalization shall be issued.
Within sixty (60) days from the issuance of the certificate, the petitioner shall take an oath of allegiance in the
proper forum upon proof of payment of the required naturalization processing fee and certificate of
naturalization. Should the applicant fail to take the abovementioned oath of allegiance within said period of
time, the approval of the petition shall be deemed abandoned.

Section 10. Duty of the Bureau of Immigration. - Within five (5) days after the applicant has taken his oath of
allegiance as required in the preceding section, the BI shall forward a copy of the petitioner's oath to the proper
local civil registrar. Thereafter, the BI shall cancel the alien certificates of registration of the applicant.

Section 11. Status of Alien Wife and Minor Children. - After the approval of the petition for administrative
naturalization in cancellation of applicant's alien certificate of registration, applicant's alien lawful wife and
minor children may file a petition for cancellation of their alien certificates of registration with the Committee
subject to the payment of the filing fee of Twenty thousand pesos (P20,000.00) and naturalization fee of Forty
thousand pesos (P40,000.00) payable as follows: Twenty thousand pesos (P20,000.00) upon the approval of the
petition and Twenty thousand pesos (P20,000.00) upon the taking of the oath of allegiance to the Republic of
the Philippines.

Section 12. Status of Alien Husband and Minor Children. - If the applicant is a married woman, the approval of
her petition for administrative naturalization will not benefit her alien husband but her minor children may file
a petition for cancellation of their alien certificates of registration with the BI subject to the requirements of
existing laws.

Section 13. Cancellation of the Certificate of Naturalization. - The Special Committee may cancel certificates of
naturalization issued under this Act in the following cases:

(a) If it finds that the naturalized person or his duly authorized representative made any false statement or
misrepresentation or committed any violation of law, rules and regulations in connection with the petition for
naturalization, or if he otherwise obtains Philippine citizenship fraudulently or illegally, the certificate of
naturalization shall be cancelled;

(b) If the naturalized person or his wife, or any or his minor children who acquire Filipino citizenship by virtue of
his naturalization shall, within five (5) years next following the grant of Philippine citizenship, establish
permanent residence in a foreign country, that individual's certificate of naturalization or acquired citizenship
shall be cancelled or revoked: Provided, That the fact of such person's remaining for more than one (1) year in
his country of origin, or two (2) years in any foreign country, shall be considered prima facie evidence of intent
to permanently reside therein;
(c) If the naturalized person or his wife or child with acquired citizenship allows himself or herself to be used as
a dummy in violation of any constitutional or legal provision requiring Philippine citizenship as a condition for
the exercise, use or enjoyment of a right, franchise or privilege, the certificate of naturalization or acquired
citizenship shall be cancelled or revoked; and

(d) If the naturalized person or his wife or child with acquired citizenship commits any act inimical to national
security, the certificate of naturalization or acquired citizenship shall be cancelled or revoked.

In case the naturalized person holds any hereditary title, or belong to any order of nobility, he shall make an
express renunciation of his title or membership in this order of nobility before the Special Committee or its duly
authorized representative, and such renunciation shall be included in the records of his application for
citizenship.

Section 14. Penalties. - Any person who shall fraudulently make, falsify, forge, change, alter, or cause or aid any
person to do the same, or who shall purposely aid and assist in falsely making, forging, falsifying, changing or
altering a naturalization certificate issued under this proceeding for the purpose of making use thereof, or in
order that the same may be used by another person or persons, and any person who shall purposely aid and
assist another in obtaining a naturalization certificate in violation of this Act, shall be punished by a fine of not
more than Five hundred thousand pesos (P500,OOO.OO) and by imprisonment for not more than five (5) years,
and in the case that the person convicted is a naturalized citizen, his certificate of naturalization shall, if not
earlier cancelled by the Special Committee, be ordered cancelled.

Section 15. Any person who failed to register his/her birth with the concerned city or municipal civil registrar
may, within two (2) years from the effectivity of this Act, file a petition for the acquisition of the Philippine
citizenship: Provided, That the applicant possesses all the qualifications and none of the disqualifications under
this Act and subject to the requirements of existing laws.

Section 16. Special Disposition of the Filing Fee. - An amount equivalent to twenty five percent (25%) of the
filing fee to be paid by the applicants pursuant to Section 7 hereof shall accrue to the University of the
Philippines Law Center and another twenty-five percent (25%) shall be allotted for the publication of the Journal
of the House of Representatives. Said amount shall be treated as receipts automatically appropriated.

Section 17. Implementing Rules and Regulations. - The Special Committee on Naturalization is hereby
authorized to promulgate such rules and regulations as may be needed for the proper implementation of the
provisions of this Act.

Section 18. Repealing Clause. -All provisions of existing laws, orders, decrees, rules and regulations contrary to
or inconsistent with this Act are hereby repealed or modified accordingly.

Section 19. Separability CIause. - If any part, section or provision of this Act is declared invalid or
unconstitutional, the part, section or provision not affected thereby shall continue to be in force and effect.

Section 20. Effectivity Clause. - This Act shall take effect after fifteen (15) days following its publication in at least
two (2) newspapers of general circulation.

WHO ARE NATURAL-BORN CITIZENS?

Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having
to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in
accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.

Q: Suppose I am a natural-born Filipino citizen, I acquire foreign citizenship & I go back to Filipino citizenship.
What am I, a natural-born or a naturalized citizen?

ROMUALDEZ CASE – If a natural-born Filipino citizen loses his Philippine citizenship and reacquires it by
REPATRIATION, he shall be considered as a NATURAL-BORN CITIZEN again. If he reacquires it through any other
means, like by naturalization, he shall be considered as a NATURALIZED citizen.
Q: What about people who elected Philippine citizenship prior to the effectivity of the 1987 Constitution whose
mother is Filipino and father an alien?

CO VS ELECTORAL TRIBUNAL – He shall be considered as natural-born. The law has retroactive application.

HOW MAY CITIZENSHIP BE LOST OR REACQUIRED?

Section 3. Philippine citizenship may be lost or reacquired in the manner provided by law.

LOSS OF PHILIPPINE CITIZENSHIP

1. by naturalization in foreign countries;

2. by express renunciation of citizenship;

YU vs. DEFENSOR-SANTIAGO
169 SCRA 364

Petitioner’s own compliance reveals that he was originally issued a Portuguese passport in 1971, valid
for 5 years and renewed for the same period upon presentment before the proper Portuguese
consular office. Despite his naturalization as a Philippine citizen on February 10, 1978, on July 21,
1981, petitioner applied for and was issued a Portuguese Embassy in Tokyo. While still citizen of the
Philippines who had renounced, upon his naturalization, “absolute and forever allegiance and fidelity
to my foreign prince, potentate, state or sovereignty” and pledged to “maintain true faith and
allegiance to the Republic of the Philippines,” he declared his nationality as Portuguese in commercial
documents he signed. To the mind of the Court, the foregoing acts considered together constitute an
express renunciation of petitioner’s Philippine citizenship acquired through naturalization. Express
renunciation was held to mean a renunciation that is made known distinctly and explicitly and no lef
to inference or implication.

Petitioner, with full knowledge and legal capacity, after having renounced Portuguese citizenship upon
naturalization as a Philippine citizen resumed or required his prior status as a Portuguese citizen,
applied for a renewal of his Portuguese passport and represent himself as such in official documents
even after he had become a naturalized Philippine citizen. Such resumption or requisition of
Portuguese citizenship is grossly inconsistent with his maintenance of Philippine citizenship.

Philippine citizenship, it must be stressed, is not a commodity or ware to be displayed when

required and suppressed when convenient.

AZNAR vs. COMELEC

185 SCRA 703

Considering the fact that admittedly Osmena was both Filipino and an American, the mere
fact that he has a Certificate starting that he is an American does not mean that he is not still a Filipino.
In the case of Osmena the Certification that he is an American does not mean that he is not still a
Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express
renunciation here of Philippine citizenship must be “express”, it stands to reason that there can be no
such loss of Philippine citizenship when there is no renunciation, either ‘express’ or “implied”

3. by subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining
twenty one years of age or more: Provided, however, That a Filipino may not divest himself of Philippine
citizenship in any manner with the Republic of the Philippines is at war with country;

4. rendering service to, or accepting commission in, the armed forces of a foreign country; Provided. That the
rendering of service to, or to acceptance of such commission, in the armed forces of a foreign country, and the
taking of an oath of allegiance incident thereto, with the consent of the Republic of the Philippines, shall not
divest a Filipino of his citizenship if either of the following circumstances is present.
a. the Republic of the Philippines has a defensive and/or offensive pact or alliance with the said foreign
country; or
 b. the said foreign country maintains armed forces on Philippine territory with the consent of the
Republic of the Philippines.

BENGZON III VS HRET

May 7, 2001

HELD: The act of repatriation allows the person to recover or return to, his original status before he lost his
Philippine citizenship. Thus, respondent Cruz, a former natural-born Filipino citizen who lost his Philippine
citizenship when he enlisted in the US Marine Corps, was deemed to have recovered his natural-born status
when he reacquired Filipino citizenship through repatriation.

5. by cancellation of the certificate of naturalization;

6. by having been declared by competent authority, a deserter of the Philippine armed forces in
time of war, unless subsequently, a plenary pardon or amnesty has been granted; and,
7. a woman who marries an alien, if by her act or omission, she is deemed under the law to have
renounced her Philippine citizenship

NOTE: The law on prescription & res judicata NEVER applies in Naturalization Proceedings.

REACQUISITION OF PHILIPPINE CITIZENSHIP

1. BY NATURALIZATION, provided that the applicant possesses none of the disqualifications prescribed for
naturalization.

Naturalization - Is the process of acquiring the citizenship of another country. In its strict sense, it is a judicial
process, where formalities of the law have to be complied with including a judicial hearing and approval of the
petition.

ATTRIBUTES:

a. The requisite conditions for naturalization are laid down by Congress; courts cannot change or modify them.
b. Only foreigners may be naturalized.
c. Citizenship is not a right, it is a privilege.
d. Just as the state may denationalize its own citizens; so may naturalization be revoked, by the cancellation of
the certificate of naturalization.
e. Naturalization demands allegiance to our Constitution, laws, and government.
f. Naturalization is a proceeding in rem and therefore jurisdiction over the entire world is acquired by
publication.

GUIDING PRICIPLES:

1. The right to enact a naturalization law is an attribute of sovereignty

2. Aliens cannot demand to be naturalized as a matter of right.
3. Doubts in the application of naturalization laws are resolved against the applicant and in favor of the State.
4. Res judicata and the principle of representation are not applicable in naturalization proceedings.

QUALIFICATIONS:

a. The petitioner must not be less than 21 years of age on the date of the hearing of the petition;
This qualification has not been amended by RA 6809, which lowers the age of majority to 18 years,
because if it were so, then the law should have put “the petitioner must be at the age of majority on the date of
the hearing of the petition”.

b. He must have, as a rule, resided in the Philippines for a continuous period of not less than ten years. Not only
must he be domiciled here, but must have actual, physical and continuous presence to be qualified.

The residence requirement is reduced to five (5) years in any of the following cases:

1. If the applicant has honorably held office under the government of the Philippines;
 2. If he has established a new industry or introduced a useful invention in the Philippines;
3. If he is married to a Filipino woman;
4. If he has been engaged as a teacher in a public or private school, and,
5. If he was born in the Philippines.

c. He must be of good moral character, and believe in the principle’s underlying the Philippine Constitution.

d. He must own real estate in the Philippines worth not less than P5,000. Philippine currency, or must have
some lucrative trade, profession, or lawful occupation;

This part should be deemed modified by the 1987 Constitution which prohibits aliens from owning
lands in the Philippines.

e. He trust be able to speak and write English or Spanish and any of the principal Philippine languages. A deaf-
mute cannot speak, therefore, he cannot be naturalized.

f. He must have enrolled his minor children of school age in any of the public schools recognized by the Bureau
of Private Schools where Philippine history, government, and civics are taught or prescribed as part of the
school curriculum.

REPUBLIC vs. DELA ROSA

232 SCRA 785

Private respondent, having opted to reacquire Philippine citizenship through naturalization under the
Revised Naturalization Law, is duty, bound to follow the procedure requirements which he believes,
even sincerely, are applicable to his case and discard those which he believes are inconvenient or
merely of nuisance value. The law does not distinguish between an applicant who was formerly a
Filipino citizen and one was never such a citizen. It does not provide a special procedure for the
reacquisition of Philippine citizenship by reason of her marriage to an alien.

DISQUALIFICATIONS:

a. Persons opposed to organized government or affiliated with any association or group of persons who uphold
and teach doctrines opposing all organized governments:

b. Persons defending or teaching the propriety of violence, personal assault, or assassination for the success
and predominance of their ideas;

c. Polygamist or believers of polygamy;

d. Persons convicted of a crime involving moral turpitude;

Moral turpitude is that which shows in a person the presence of injustice, dishonesty, immodesty, or
immorality.

e. Persons suffering from mental alienation or incurable contagious diseases;

f. Persons who, during the period of their residence in the Philippines have not mingled socially with the
Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of
the Filipinos;

g. Citizens or subjects of nations with whom the United States and the Philippines are at war;

h. Citizens or subjects of a foreign country other than the United States, whose laws do not grant Filipinos the
right to become naturalized citizens or subject thereof.

CANCELLATION OF NATURALIZATION

a. if is shown that said naturalization certificate was obtained fraudulently or illegally,

b. if the person naturalized shall, within the five years next following the issuance of said naturalization
certificate, return to his native country of to some foreign country and established his permanent residence
therein;
c. if the petition was made on an invalid declaration of intention;
d. if it is shown that the minor children of the person naturalized failed to graduate from public or private high
school
e. if it is shown that the naturalized citizen has followed himself to be used as a dummy in violation of the
Constitution or legal provisions requiring Philippine citizenship as a requisite for the exercise use of enjoyment
of a right, franchise or privilege.

2. BY REPATRIATION

Repatriation shall be affected by merely taking the necessary oath of allegiance to the Republic of the
Philippines and registration in the proper civil registry.

WHO MAY BE REPATRIATED:

a. Deserters of the Armed Forces [CA 63]

b. Filipino women who lost Philippine citizenship on account of marriage to an alien may be repatriated only
after the termination of the marital status. [RA 8171]
c. Those natural-born citizens who lost Philippine citizenship on account of economic necessity. [RA 8171]
d. Those natural-born citizens who lost Philippine citizenship on account of political necessity. [RA 8171] Labo
Case
e. Those who rendered service in the US armed forces without consent from the Philippine government. [RA
2630] Bengzon Case
f. Any former natural-born citizen who lost Philippine citizenship. [PD 725]

3. BY DIRECT ACT OF CONGRESS [CA 63]

LABO vs. COMELEC

176 SCRA I

Even if it be assumed that, as petitioner asserts, his naturalization in Australia alone did not
automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not
concern us here. That is a matter between him and his adopted country. What we must consider is
the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly
embraced the citizenship for a foreign country. The mean that he has been automatically reinstead as
a citizen of the Philippines.

LABO vs. COMELEC

211 SCRA 297

Petitioner Labo’s status has not changed in the case at bar. To reiterate, he was disqualified as a
candidate for being an alien. His election does automatically restore his Philippine citizenship, the
possession of which is an indispensable requirement for holding public office.

Still, petition takes pains in rising a new argument not litigated before the respondent COMELEC.
Petitioner claims that he has reacquired his Filipino citizenship by citing his application for reacquisition
of Philippine citizenship filed before the Office of the Solicitor General. To date, however, and despite
favorable recommendation by the Solicitor General, the Special Committee on Naturalization had yet
to act upon said application for repatriation. Indeed, such fact alone is even admitted by petitioner. In
the absence of any official action or approval by the proper authorities, a mere application for
repatriation does not, and cannot, amount to an automatic reacquisition of the applicant’s Philippine
citizenship.

4. BY TAKING OATH OF ALLEGIANCE – if natural-born under the Dual Citizenship Law [RA 9225]
 Under this law, a natural-born who lost his Filipino citizenship may reacquire it by simply taking an oath of
allegiance.

 Natural-born citizens, who shall lost become citizens of a foreign country shall retain their Philippine
citizenship by merely taking an oath of allegiance.

 Minors whose parents reacquire Philippine citizenship under this law shall be benefited.

 CIVIL & POLITICAL RIGHTS – See Section 5, RA 9225

 IMPLICATIONS OF THE LAW:

a. Under this law, if a natural-born Filipino is naturalized in a foreign country, he retains Filipino
citizenship if he did not take an oath of allegiance in that foreign country.

Under the old law, once naturalized in a foreign country, said person is considered as to have
absolutely lost his Philippine citizenship.

b. The law applies to natural-born Filipinos only.

Republic Act No. 9225 August 29, 2003

AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN CITIZENSHIP
PERMANENT.
AMENDING FOR THE PURPOSE COMMONWEALTH ACT. NO. 63, AS AMENDED AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

Section 1. Short Title – this act shall be known as the "Citizenship Retention and Re-acquisition Act of 2003."

Section 2. Declaration of Policy - It is hereby declared the policy of the State that all Philippine citizens of
another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act.

Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary notwithstanding, natural-
born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-
acquired Philippine citizenship upon taking the following oath of allegiance to the Republic:

"I _____________________, solemny swear (or affrim) that I will support and defend the Constitution
of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly
constituted authorities of the Philippines; and I hereby declare that I recognize and accept the
supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I
imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion."

Natural born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country
shall retain their Philippine citizenship upon taking the aforesaid oath.

Section 4. Derivative Citizenship - The unmarried child, whether legitimate, illegitimate or adopted, below
eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be
deemed citizenship of the Philippines.

Section 5. Civil and Political Rights and Liabilities - Those who retain or re-acquire Philippine citizenship under
this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities
under existing laws of the Philippines and the following conditions:
 (1) Those intending to exercise their right of surffrage must Meet the requirements under Section 1,
Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee
Voting Act of 2003" and other existing laws;

(2) Those seeking elective public in the Philippines shall meet the qualification for holding such public
office as required by the Constitution and existing laws and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the
Republic of the Philippines and its duly constituted authorities prior to their assumption of office:
Provided, That they renounce their oath of allegiance to the country where they took that oath;

(4) Those intending to practice their profession in the Philippines shall apply with the proper authority
for a license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be
exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they are
naturalized citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed forces
of the country which they are naturalized citizens.

Section 6. Separability Clause - If any section or provision of this Act is held unconstitutional or invalid, any
other section or provision not affected thereby shall remain valid and effective.

Section 7. Repealing Clause - All laws, decrees, orders, rules and regulations inconsistent with the provisions of
this Act are hereby repealed or modified accordingly.

Section 8. Effectivity Clause – This Act shall take effect after fifteen (15) days following its publication in the
Official Gazette or two (2) newspaper of general circulation.

RENUNCIATION OF CITIZENSHIP:

Section 4. 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 it.

Marriage by a citizen to an alien will not make the alien spouse Filipino. Likewise, marriage by a Filipino
woman to an alien shall not result in loss of citizenship, unless by her act or omission, she is deemed to have
renounced Philippine citizenship.

RULE: Mere marriage will not result to loss of Philippine citizenship.

LABO CASE – If after marriage to an alien, the Filipino spouse get naturalized in alien spouse’s country by
expressly renouncing Philippine citizenship & by subscribing to an oath of allegiance in the foreign country, the
Filipino spouse cannot be natural-born again.

Sir Montejo: If the former Filipino lost his citizenship and later reacquires it by naturalization under RA 9225 or
by Repatriation, he may be natural-born again.

Q: What is the citizenship of an alien woman who marries a Filipino?

MOY YA LIM YAO VS COM OF IMMIGRATION

[41 SCRA 292]
 HELD: An alien woman marrying a Filipino, native-born or naturalized, becomes ipso facto a Filipino
provided she is not disqualified to be a citizen of the Philippines under section 4 of CA 63. Moreover,
an alien woman married to an alien who is subsequently naturalized here follows the Philippine
citizenship of her husband the moment he takes his oath as a Filipino citizen, provided she does not
suffer from any of the disqualifications under said section 4.

The decision in effect ruled that it is not necessary for an alien citizen to prove in a judicial proceeding
that she possesses all the qualifications set forth in section 2 and none of the disqualifications in
section 4. [YAP VS REP, May 17, 1972]

PROCEDURE:

1. Alien woman files a petition for cancellation of her ACR with the Bureau of Immigration
2. Attach certification that she is married to a Filipino
3. Show that she possesses none of the disqualifications

PO SIOK PIN vs. VIVO

62 SCRA 363

The prevailing rule is that under Section 15 of the Revised Naturalization Law an alien woman
marrying a Philippine citizen, native-born or naturalized, becomes ipso facto a Philippine citizen,
provided that she is not disqualified under Section 4 of the same law. Likewise, an alien woman
married to an alien, who subsequently becomes a naturalized Filipino citizen, acquires Philippine
citizenship the moment her husband takes his oath as a Philippine citizen provided that she does not
have any of the disqualifications under said Section 4.

Likewise, by virtue of Section 15, the three children of Po Siok Pin, who were born in China,
who were in the Philippines at the time their father was naturalized, who must be of age now,
automatically became Philippine citizens. They should ask for the cancellation of their alien
certificates of registration.

DJUMANTAN vs. DOMIGO

240 SCRA 746

There is no law guaranteeing aliens married to Filipino citizens the right to be admitted, much
less to be given permanent residency, in the Philippines.

The fact of marriage by an alien to a citizen does not withdraw her from the operation of the
Immigration Laws governing the admission and exclusion of aliens. Marriage of an alien woman to a
Filipino husband does not ipso facto make her Filipino citizen, and does not excuse her from her
failure from the country upon the expiration for her extended stay here as an alien.

The word ipso facto without going into the tedious proceedings of judicial determination (cf. Po Siok Pin
case), but such does not bind any governmental agency. She still has to prove before some agency of the
Government that she is not disqualified to become a Filipino citizen by naturalization (cf. Djumantan case).

Note:
If an alien woman marries a Filipino, 10 years residency requirement.
If alien man marries a Filipina, 5 years residency requirement.

Q: What is the citizenship of illegitimate children?

A: Illegitimate child follows the citizenship of the mother. We always know who the mother is, but sometimes
we do not know the father! Ngoirk-ngoirk! 

Q: What is the citizenship of Vietnamese children or children of Filipino males with Vietnamese women?

A: 1995 DOJ OPINION – These children shall be considered as Filipino.

Sabi ni Sir de la Bands, if the mother is Filipino, the child is deemed Filipino also. Kung ang father Filipino tapos
the anak is deemed not Filipino or the child is an alien, pangit di ba? So dapat, children of these Filipino fathers
should also be deemed Filipino. Gets? 

Another reason is taken from the constitution itself , “those whose fathers or mothers are Filipino”

DUAL ALLEGIANCE & DUAL CITIZENSHIP:

Section 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.

In MERCADO VS MANZANO [307 SCRA 630], the court clarified the “dual citizenship” disqualification in
Section 40 of the Local Government Code, and reconciled the same with Section 5, Article IV of the
Constitution on “dual allegiance”. Recognizing situations in which in which a Filipino citizen may, without
performing any act and as an involuntary consequence of the conflicting laws of different countries, be also a
citizen of another state, the Court explained that “dual citizenship” as a disqualification must refer to “dual
allegiance”. Consequently, persons with mere dual citizenship do not fall under the disqualification.

Furthermore, for candidates with dual citizenship, it is enough that they elect Philippine citizenship
upon the filing of their certificate of candidacy to terminate their status as persons with dual citizenship. The
filing of a certificate of candidacy suffices to renounce foreign citizenship, effectively removing any
disqualification as dual citizen. This is so because in the certificate of candidacy one declares that he/she will
support and defend the Constitution and will maintain true faith and allegiance to the same. Such declaration
under oath operates as an effective renunciation of foreign citizenship.

THEORIES OF DUAL & MULTIPLE NATIONALITIES

(1) Jus Soli – if both in a country, a person is a citizen of the same.

(2) Jus Sanguinis – one follows the citizenship of his parents; this is citizenship by blood

DUAL & MULTIPLE NATIONALITIES

This can hardly arise because citizenship is a matter to be exclusively determined by a country’s own law. In
other words, Philippine law are only allowed to determine who are Filipino and who are not.

However, from the viewpoint of a third state, dual or multiple citizenship may really exist.

Article 2 of the Hague Convention on Conflict of nationality laws (April 12, 1930) says:Any question as
to whether a person possesses the nationality of a particular state should be determined in accordance
with the law of that state.

Problem: A testator, considered a Filipino citizen under our law, and a Chinese under Chinese law, died
in France, leaving properties in the Philippines. How should a Filipino judge in a Philippine court of justice
determine the successional rights to the estate of the decedent?

Answer: In as much as we regard him as a Filipino citizen, there is no doubt that applying Art. 16, part.2 of our
Civil Code, Philippine law shall control the successional rights to his estate. (RULE – get the law of the forum if
the forum is one of the countries of which the deceased was a national.)

Problem: A testator, considered a Chinese under Chinese law, and a Japanese under the Japanese law, died in
Manila, leaving properties in the Philippines. Prior to this death, the deceased was domiciled in Japan. How
should a Filipino judge presiding over a Philippine tribunal adjudicate successional rights to the estate of the
deceased?

Answer: Japanese law shall be applied because the deceased was BOTH a citizen and a domiciliary of Japan.
Japanese law, obviously is preferred over Chinese law, for the DOMICLE was also in Japan. (RULE – if
the deceased is not a citizen of the forum, we must get the law of the nation which he was both a
national and domiciliary. This is the theory of effective nationality.)
Problem: A testator, considered a Cuban under the Cuban law, and an Alegrian under Alegrian law, was
domiciled at the moment of his death in Italy. He died in Alaska, leaving properties in the Philippines. How
should a Philippine court dispose of the successional rights to his estate?
[[
Answer: To properly apply Art. 16, par.2, of the Civil Code, it is believed that in case like this our rule should be:
1.) first, get the Cuban and the Alegrian law succession, and apply them in so far as they are
consistent with or identical to each other;
2.) secondly, in so far as there is a conflict, we must refer to the law of Italy, the law of the domicile,
to resolve the conflict.

WAYS IN WHICH MULTIPLE CITIZENSHIP MIGHT ARISE:

1. Through origin a naturalized citizen’s failure to comply with certain legal

requirements in the country of origin;
2.from a combined application of just soli and jus sanguinis;
3.by the legislative act of states; and,
4.by the voluntary act of the individual concerned

Filipino Citizens at the Time of the Adoption of the Constitution

1) persons born in the Philippines who resided therein on April 11, 1899;
2) natives and naturalized Spanish of Peninsular Spain who resided in the Philippines on April 11,
1899;
3) children born of (1) and (2), subsequent to Aril 11, 1899;
4) persons who became naturalized citizens of the Philippines in accordance with the formal
procedure set forth in the Naturalization Law;
5) children of persons embraced in (4);
6) Filipino women who, after having lost Philippine citizenship by marriage to foreigners, had
subsequently become widows and regained Philippine citizenship on or before May 14, 1935;
7) Children of (60 who were still under 21 years old at the time their mothers regained Philippine
citizenship;
8) Foreign women who married Filipino citizens on or before May 14, 1935;
9) Persons of alien parents who were born in the Philippines and subsequently been elected to a
public office in the Philippines.

Children of Naturalized Filipino Fathers

A minor child born BEFORE naturalization

1) if born in the Philippines-is a Filipino

2) if born outside the Philippines
(if dwelling in the Philippines at the time of the parent’s naturalization) is a Filipino;
(if dwelling outside the Philippines at the time of parent’s naturalization) is a Filipino only
during his minority unless he resides permanently in the Philippines when still a minor, in
which case he will continue to be a Philippine citizen even after becoming of age.

A minor child born AFTER naturalization

1) (if born in the Philippines) is a Filipino

2) (if born outside the Philippines) shall be considered a Philippine citizen, unless within one year
after reaching the age of majority he fails to register himself as a Philippine citizen at the
Philippine consulate of the country where he resides and to take the necessary oath of allegiance.

CHAPTER IX

THE DOMICILIARY THEORY

1. What is Domiciliary Theory?

2. Distinguish Domicile from Ordinary Residence.
3. What are the 3 kinds of Domicile?
4. Why is it not possible for a person to have 2 Domiciles?

DEFINITION:

This theory states that in general the status, condition, rights, obligations and capacity of a person should be
governed by the law of his domicile.

Defects:

1. Various countries have varying concepts as to the real meaning of domicile,

2. Domicile is comparatively easier to change than nationality;
3. For ulterior motives, persons may pretend to be domiciliaries of one state when in truth their
domicile may be elsewhere.

Distinguished from Citizenship or Nationality:

DOMICILE speaks of one’s permanent place of abode, in general; upon the other hand, CITIZENSHIP &
NATIONALITY indicate ties of allegiance and loyalty. A person maybe a citizen or national of one state, without
being a domiciliary thereof; conversely, one may possess his domicile in one state without necessarily being a
citizen or national thereof.

DEFINITION / KINDS OF DOMICILE:

Domicile is that place where a person has certain settled, fixed, legal relations because:

a. it is assigned to him by the law AT THE MOMENT OF BIRTH (Domicile of origin)

b. it is assigned to him also by law AFER BIRTH on account of a legal disability caused for instance by minority,
insanity, or marriage in the case of a woman (Constructive Domicile or Domicile by operation of law)

c. because he has his home there – that to which, whenever absent, he intends to return (Domicile of Choice)

ARTICLE 50, NCC. For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural
persons is the place of their habitual residence.

DOMICILE DISTINGUISHED FROM ORDINARY RESIDENCE :

DOMICILE ORDINARY RESIDENCE

(1) More or less permanent (1) More or less temporary

(2) A person can generally have only one domicile. (2) A person can have several places of residence.

(3) Domicile is residence coupled with the intention (3) Residence is not domicile.
to remain for an unlimited time.

(4) Denotes a fixed permanent residence to which (4) Used to indicate a place of abode, whether
when absent, one has the intention of returning. permanent or temporary.

 In view of their legal disability, infants, idiots, lunatics and the insane cannot acquire any domicile of choice.

 Because of lack of voluntariness, the following cannot also acquire a new domicile of choice:

1. A convict or a prisoner
2. Involuntary exiles
 3. Soldiers
4. Public officials and employees, diplomats and consular officers

WHERE WE FOLLOW THE DOMICILIARY THEORY :

1. Formalities in Making Wills

2. In the Revocation of wills – entirely founded on domiciliary theory; based on the law of the place where the
will is revoked

3. In Election Laws – regarding the qualifications of the persons running for elective positions

4. When the Nationality Theory is ineffective – when the National Law of an individual is inadequate, the
Domiciliary Theory will come to the rescue , like in solving conflicts problems regarding stateless individuals,
and by those possessed of a dual or multiple citizenship.

FUNDAMENTAL PRINCIPLES GOVERNING DOMICILE OF CHOICE :

1. No natural person must ever be without a domicile.

REASON : kasi kung walang domicile, the law will assign one and kung wala talaga, the domicile of
origin will be retained

2. No person can have 2 or more domiciles at the same time.

3. Domicile may be changed.

4. Once acquired, it remains the domicile, unless a new one is obtained.

HOW TO ACQUIRE A NEW DOMICILE OF CHOICE :

1. Must be made by a CAPACITATED PERSON;

2. With FREEDOM OF CHOICE;

 OLD CASE : An American soldier who has resided in the Philippines for 10 years, wanted to adopt a
Filipino child. The courts did not allow him to adopt because he has no freedom of choice. His being
here in the Philippines was forced upon him. He was merely compelled to follow the dictates of
military exigencies.

 ROMUALDEZ CASE : Brother of Imelda went to the US for sometime. Then, he came back to the
Philippines. He wanted to register as a voter. COMELEC did not allow him because he lacked the
residence requirement. The Supreme Court ruled that he be allowed to register. There was no
freedom of choice on his part when he ran out of the Philippines because his life was in danger. He was
afraid of being killed. So, even if he stayed in the US for sometime, Philippines pa rin ang domicile
niya.

3. With ACTUAL PHYSICAL PRESENCE in the place chosen;

4. An INTENTION to acquire a new one.

Change and Retention of Domicile

(a) For a change of domicile, intention to reside elsewhere without actual residence in the place chosen will not
be sufficient and vise-versa. In other words, to effect a change of domicile both ACTUAL STAY and the INTENT
must concur.
(b) For a retention, there need not be a concurrence of the two for unless a new domicile is acquired, the old
one is retained. Hence, one may retain old domicile so long as he resides there OR even if not, so long as he
intends to return.

Note: Intention without residence or residence without intention will not suffice for the acquisition of a
domicile but will be sufficient for the retention of an existing domicile.

Q: To acquire a new domicile of choice, what things must concur?

A: There must concur:

1. residence or bodily presence in the new locality.

2. an intention to remain there; and
3. an intention to abandon the old domicile. (Gallego v. Vera)

ROMUALDEZ MARCOS vs. COMELEC

248 SCRA 300

We have stated many lines in the past, that an individual does not lose his domicile even if he has lived
and maintained residences in different places. Residence, it bears repeating, implies a factual
relationship to a given place for various purposes. The absence from legal residence or domicile to
pursue a profession to study or to do other things of a temporary or semi-permanent nature does not
constitute loss of residence. Thus, the assertion by the COMELEC that “she could not have been a
resident of Tacloban City since childhood up to the time she filed certificate of candidacy because she
became a resident of many places “ flies in the face of settled jurisprudence.

A citizen may leave the place of his birth to look for “greener pastures”, as the saying goes, to improve
his lot and that, of course includes study in other places practice of his vocation, or engaging in
business. When an election is to be held, the citizen who left his birthplace to improve his lot may
desire to return to his native town to cast his ballot; but for professional or business reasons, he may
not absent himself from his profession or business activities so there registers himself as voter as he
has the qualifications to be one and is not willing to give up lose opportunity to choose the officials
who are to run the government especially in national elections. Despite such registration, the animus
revertendi to his home, to his domicile, or residence of origin has not forsaken him. This may be the
explanation why the registration of a voter in a place other his residence of origin has not been
deemed sufficient to constitute abandonment or loss of such residence. It finds justification in the
natural desire and longing of every person to return to his place of birth. This strong feeling of
attachment to the place of ones birth must be overcome by positive proof of abandonment for
another.

Although petitioner held various residences for different purposes during the past four decades, none
of these purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban,
Leyte. Moreover, while petitioner was born in Manila, as a minor she naturally followed the domicile
of her parents. She grew up in Tacloban, reached her adulthood there and eventually established
residence in different parts of the country for various reasons; even during her husbands presidency, at
the height of the Marcos Regime’s powers, petitioner kept close ties to her domicile of origin by
establishing residences in Tacloban, celebrating her birthdays and other important personal milestones
in her home province, instituting will-publicized projects for the benefit of her province and
hometown, and establishing a political power base where her siblings and close relatives held positions
of power either through the ballot or by appointment, always with either her influence or consent.
These well-publicized ties to her domicile of origin are part of the history and lore of the quarter
century of Marcos power in our country.

AQUINO vs. COMELEC

248 SCRA 400

We agree with COMELEC’s contention that in order that petitioner could quality as a candidate for
Representative of the Second District of Makati the latter “must prove that be has established not just
residence but domicile of choice.”
 The place where a party actually or constructively has his permanent home,” whether he no matter,
where he may be found at any given eventually intends to return and remain, i.e his domicile, is that to
which the Constitution refers when it speaks of residence for the purposes of election law. The
manifest purpose of this deviation from the usual-conceptions of residency in law is to exclude
strangers or newcomers unfamiliar with the conditions and needs of the community from taking
advantage of favorable circumstances existing that community foe electoral gain. While there is
nothing wrong with the practice of establishing residence in a given area for meeting, election law
requirements, this nonetheless defeats the essence of representation, which is the place through the
assent of voters those most recognizant and sensitive to the needs of a particular district. If a
candidate falls short of the period of residency mandated by law for him to qualify. That purpose could
obviously be best met by individuals who have either had actual residence in the area for a given
period or who have been domiciled in the same area either by origin or by choice. It would, therefore,
be imperative for this Court to inquire into the threshold question as to whether or not petitioner
actually was a resident for a period of one year in the area now encompassed by the Second Legislative
District at the time of his election or whether or not he was domiciled in the same.

As found by the COMELEC en bane petitioner in his Certificate of Candidacy for the May 11, 1992
elections, indicated not only that he was a resident of San Jose, Concepcion. Tarlac in 1992 but that he
was a resident of the same for 52 years immediately preceding that election. At the time, his
certificate indicated that he was also a registered voter of the same district. His birth certificate places
Concepcion, Tarlac as the birthplaces of both his parents Benigno and Aurora. Thus, from data
furnished by petitioner himself to the COMELEC at various times during his political career, what stands
consistently clear and unassailable is that his domicile of origin of record up to the time of filing of his
most recent certificate of candidacy for the 1995 elections was Concepcion, Tarlac.

Petitioner’s alleged connection with the Second District of Makati is an alleged lease agreement of a
condominium unit in the area. The intention not to establish e permanent home in Makati City is
evident in his leasing a condominium unit instead of buying one. While a lease contract may be
indicative of petitioner’s intention to reside in Makati City it does not engender the kind of
permanency required to prove abandonment of one’s original domicile. While property ownership is
not and should never be an indicia of the right to vote or to be voted upon, the fact that petitioner
himself claims that he has other residences in Metro Manila coupled with the short length of time he
claims to be a resident of the condominium unit in Makati “ indicate that the sole purpose of
petitioner in transferring his physical residence” is not to acquire a new residence or domicile,” but
only to qualify as a candidate for Representative of the Second District of Makati City.” The absence of
clear and positive proof showing a successful abandonment of domicile under the conditions stated
above, the lack of identification sentimental, actual or otherwise – with the area, and the suspicious
circumstances under which the lease agreement we affected all belie petitioner’s claim of residence
for the period required by the Constitution.

Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is a bare assertion
which is hardly supported by the facts in the case at bench. Domicile of origin is not easily lost. To
successfully effect a change of domicile, petitioner must prove an actual removal or an actual change
of domicile; a bona fide intention of abandoning the former place of residence and establishing a new
one and definite acts which correspond with the purpose. In the absence of clear and positive proof,
the domicile of origin should be deemed to continue.

RULES FOR DOMICILE OF ORIGIN :

a.) LEGITIMATE CHILD – domicile of choice of his father at the moment of the birth of the child domicile of
choice of either the father or the mother

 If the child is posthumous (one born after the death of the father), its domicile of origin is the domicile
of choice of the mother.

b.) ILLEGITIMATE CHILD – domicile of choice of the mother at the time of the birth of the child
c.) LEGITIMATED CHILD – domicile of the father at the time of the birth (not the legitimation) of the child
because the effects of legitimation shall retroact to the time of the child’s birth

d.) ADOPTED CHILD - domicile of the real parent or the parent by consanguinity & NOT the domicile of the
adopter

e.) A FOUNDLING - (an abandoned infant whose parents are unknown) the country where it was found

QUESTION : Suppose the parents become known, what will be the domicile of origin of the foundling?

ANSWER : It is not a foundling, and therefore cannot have a domicile of origin as a foundling. If legitimate, we
follow the rules hereinabove given; if illegitimate, follow the indicated rules.

RULES FOR CONSTRUCTIVE DOMICILE :

a) RULES FOR INFANTS:

1. IF LEGITIMATE – the domicile of choice of either the father or mother

 If both parents of the legitimate child are dead, the constructive domicile of the child
will be that of the parent who died later.

2. IF ILLEGITIMATE – the domicile of choice of the mother

3. IF ADOPTED – the domicile of choice of the adopter

4. IF A WARD – the domicile of choice of the guardian [over the person of the ward]

b) RULES FOR MARRIED WOMEN

1.) If the marriage is VALID - Domicile of choice of both husband and wife ( in case of disagreement
the court shall decide).

2.) If the marriage is VOIDABLE

 Prior to annulment, domicile of the wife is the domicile of choice of both the wife
and the husband.

 After, the woman ceases to be wife, hence, being no longer under any legal disability,
she no longer has any constructive domicile.

3.) If the marriage is VOID – no constructive domicile.

 Should she continue being domiciled in the same place as where her “husband” is a
domiciliary, it would be her domicile of choice. It is as if there was no marriage, and the
“wife” is not really one. Hence, she is not laboring under any legal disability; consequently,
she has no constructive domicile.

In the following instances among others, the wife may be allowed to have a separate domicile

1. If the husband lives abroad, or there are other valid and compelling reasons for the exemption.
2. If they are legally separated.
3. If the husband forcibly ejects the wife from the conjugal home so that may have illicit relations with
another.
4. If there is a separation de facto of the spouses.

c) RULES FOR IDIOTS, LUNATICS & INSANE:

 (1) If BELOW the age of majority - considered as infants; thus, the rules for infants are applicable to
them.

(2) If ABOVE the age of majority:

i. with guardians over their persons - domicile choice of their guardians

ii. without guardians - the place where they had their domicile of choice shortly before they
became insane.

 it should be remembered, however, that voluntary domicile of choice may be acquired by

insane individuals if at the time of the choice they were in their lucid intervals.

Q; If the husband is insane or otherwise incapacitated, what is the constructive domicile of his wife?

A: The wife is free from all legal disability insofar as domicile is concerned, therefore, she is free to select her
own domicile of choice.

CHAPTER X

THE SITUS OR ECLECTIC THEORY

This theory states that the capacity, legal condition or status of an individual should be governed not
necessarily by the law of his nationality nor by the law of his domicile but by the law of the place (situs) where
an important element of the problem occurs or is situated.

However, the theory distinguishes between two kinds of participation of the individual concerned:

1. If the participation is active (as when he does the act voluntarily) - the governing law as the law of the
ACTUAL SITUS (the place of the transaction or event)
2. If the participation is passive (as when the effects of the act are set forth in the law) - the governing
law is the LEGAL SITUS (the legal situs of an individual is supposed to be his DOMICILE).

Problem : Two Filipinos Domiciled in Japan, get married in California. What law governs:

(a.) the validity of marriage?

(b.) The marital obligations of husband and wife?

Answer: (a) The act of getting married is a voluntary one; hence the participation of the man and the woman is
ACTIVE. Since the marriage took place in California, California is the ACTUAL SITUS, hence California law
governs the validity of the marriage.

(b). Generally the marital obligations of husband and wife are not fixed by them, they are regulated or imposed
by the law. Hence, their participation in this matter may be said to be merely PASSIVE. The governing law is,
therefore, the law of the LEGAL SITUS, which is the DOMICILE of the parties. Since they are domiciled in Japan,
their marital rights and obligations are governed by Japanese law.

Note: The theory that we follow in the Philippines on the same matter is different. Hence, this Situs Theory is
properly applied only to property.

Problem: What law governs the capacity of a German to alienate his hands and cars located in the Philippines?

Answer: Applying the SITUS THEORY to the problem, said capacity is governed by the law of the place where
the property is located. Since the properties are in the Philippines, the law of the Philippines shall govern.

CHAPTER XI
 THE PROBLEM OF THE RENVOI

RECITATION:

1. What is Renvoi?
2. Is it related to Question of Law?
3. When there is Renvoi, what are the 4 Options of the Court?
4. If a court rejects the renvoi, what law will it be applying?
5. If it accepts, what law will be applied in the end?
6. Suppose it applies Dessistment, which legal system will it be applying?
7. 4th Theory?
8. In the Philippines, what theory are we applying? What Case? –accept renvoi 

Renvoi literally, means a “referring back”; the problem arises when there is a doubt as to whether a reference
to a foreign law –

(a.) is a reference to the INTERNAL law of said foreign law; or

(b.) is a reference of the whole of the foreign law, including its CONFLICTS RULES:

 arises when one state adopts NATIONALITY THEORY & the other state adopts the DOMICILIARY THEORY

Problem: An English domiciliary of the Philippines dies in Manila leaving his English child. England follows the
DOMICILIARY theory while the Philippines adheres to the Nationality theory. Should the successional rights of
the child be governed by English internal law on succession, or by the Philippine internal law on succession?

Possible solutions:

1. We may reject the renvoi - this means that we do not want the problem to be sent back to us, the reference
is to the INTERNAL LAW of England on succession.

Conclusion: we apply the English internal law on successional rights of the child.

2. We may accept the renvoi - here the reference is to the WHOLE of English law including its conflicts rules.
Inasmuch as English rules refer the matter back to the law of the domicile, namely, the Philippines, the
successional rights of the child shall be determined by our internal law on succession. Single renvoi or the
single remission” we mentally referred back the matter to us.

Conclusion: The Philippine internal law on succession will apply

3. We may follow theory of desistment (also referred to as the mutual-disclaimer of jurisdiction theory) - we
desist or refrain from applying the English law because we tell ourselves under Art 16. par. 2, we are asked to
apply the English or national law, but how can we apply English law when said law is based, NOT ON THE
NATIONALITY but on the domicile.

Conclusion: the successional rights of the English child shall be governed by the Philippine internal law
on succession.

4. We may make use of the foreign court theory – this means that our Philippine court, in deciding the case,
will put itself in the position of the English[foreign court]; and whatever the English court will do respecting the
case, the Philippine court will likewise do. This phenomenon has been referred to as “international ping-pong”,
international football”, revolving doors”, and “inextricable circle.” Etc.

Note: If we adopt the foreign court theory we may discover that the foreign court may:

(a) reject the renvoi - in which case we will apply OUR internal law on succession.
(b) accept the renvoi - the ultimate end is for us to apply English internal law on succession. This
results in what is generally referred to as the DOUBLE RENVOI that which occurs when the local court
in adopting the foreign court theory, discovers that the foreign court accepts the renvoi.
 (c) follow the desistment theory - we will apply the English internal law on succession.
(d) follow the “foreign court theory” - the result will be the vicious circle already adverted to as
“international ping-pong”.

NOTE : PARAS suggests that we follow no. 2, that is, we ACCEPT THE RENVOI.

TRANSMISSION - Is the process of applying the law of a foreign through the law of a second foreign state.

Examples:

(1) An Italian domiciled in the Philippines dies in England. If the case is tried in England, the English court
(following the Domiciliary Theory) refers to the law of the Philippines, but discovers that the Philippines in turn
refers the matter to Italy (following our Nationality Theory). Hence England, through Philippine law, ultimately
Italian law.

(2) Two Filipinos domiciled in China get married in England Under on law if the marriage is valid where
celebrated, it will generally be valid also in the Philippines. However, let us grant that in England the law is “
marriages here in England between foreigners shall be considered as valid here only if they are recognized as
valid in the law of their domicile. Now, then on Philippine courts may eventually have to apply Chinese law,
through the law of another state, England.

DOUBLE RENVOI DISTINGUISHED FROM TRANSMISSION

DOUBLE RENVOI TRANSMISSION

Deals with TWO countries - with THREE or MORE counties
Deals with a referring back” - with a “transmitting”

IMPLICATIONS OF RENVOI AND TRANSMISSION

(1) Both renvoi and transmission may apply not only to successional rights, they may refer also to marriage, to
other contracts and agreements, in fact, to almost anything covered by Courts of Laws.

(2)Both problems may occur even if (in renvoi) the countries BOTH adhere, say to the Nationality theory or
BOTH to the Domiciliary theory.

AZNAR VS. CHRISTENSEN-GARCIA

7 SCRA 95

Facts: This case was an appeal from a decision of the CFI of Davao, approving among other things, the
final account of the executor and directing the distribution of the property in accordance with the
provisions of the will of the testator Edward E. Christensen. The will was executed in Manila.

Helen Christensen-Garcia opposed the approval of the project of partition insofar as it deprives her of
her legitimate as an acknowledged natural child of the deceased Edward E. Christensen. The legal
grounds for the opposition are: (1) that the distribution is contrary thereof insofar as it denies to Helen
Christensen, one of the two acknowledged natural children, one-half of the estate in full ownership.

It was alleged that the law that should govern the estate of the deceased Christensen should not be
the internal law of California alone, but the entire law thereof because several foreign elements are
involved, that the forum is the Philippines and if the case were decided in California. Section 946 of
California Civil Code, which required that the domicile of the decedent should apply would be
applicable.

The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State
of California at the time of his death, the success ional rights and intrinsic validity of the provision in his
will are to be governed by the law of California, in accordance with which a testator has the right to
dispose of his property in the way he desires, because the right of absolute demission over his
property is sacred and inviolable.

Issue: What is the law in California governing the disposition of personal property?

Held: Article 946 of the Civil Code of California is as follows:

“If there is no law to the contrary in the place where personal property is situated, it deemed to follow
the person of its owner, and is governed by the law of his domicile.”

We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in
Re Kaufman, its internal law. If the law on succession and the conflicts rules of California are to be
enforced jointly, in each own intended and appropriate sphere. The principle cited in In Re Kaufman
should apply to citizens living in the state, but Article 946 should apply to such of its citizens as are not
domiciled in California but in other jurisdictions. The rule laid down of resorting to the law of domicile
in the determination of maters with foreign element involved in an accord with the general principle of
American law that the domiciliary law should govern and most matters of rights which follow the
person of the owner.

Appellees argued that what Article 16 of the Civil code of the Philippines pointed out as the national
law is the internal law of California. But as above explained the laws of California have prescribed two
sets of laws for its citizens, one for residents therein and another for those domiciled in other
jurisdictions. Reasons demands that we should enforce the California internal law prescribed for its
citizens residing therein, and enforce the conflict of law rules for the citizens domiciled abroad. If we
must therefore enforce the law of California in comity We are bound to do, as so declared in Article 16
of the Civil Code, then enforce. We must the law of California in accordance with the express mandate
thereof and as above explained, i.e., apply the internal law for residents therein and its conflict of law
rules for those domiciled abroad.

Hence, the national law mentioned in Article 16 of on Civil Code is the law in the California Civil Code,
i.e., Article 946, which authorizes the reference or return of the question to the law of the testator’s
domicile. The conflict of law in California, Article 946, Civil Code cannot and should not refer the case
back to California such action would leave the issue incapable of determination because the case will
then be like a football, tossed back and forth between the two States, between the country of which
the decedent was a citizen and the country of his domicile. The Philippine court must apply its own
law as directed in the conflict of law rule of the State of the descendent, if the question has to be
decided, especially as the application of the internal law of California provides no legitimate for
children while the Philippine law, Arts. 887 and 894 Civil Code of the Philippines, makers natural
children legally acknowledged forced heirs of the parents recognizing them.

BELLIS vs. BELLIS

20 SCRA 358

Facts: Amos G. Bellis was a citizen and domiciliary of Texas at the time of his death. He executed two
will, one disposing of his Texas properties, the other disposing of his Philippines properties. Both wills
did not make any provision for his recognized illegitimate children. Under Texas law, there are no
compulsory heirs and therefore no legitimates. The illegitimate children opposed the wills on the
ground that they have been deprived of their legitimes to which they would be entitled, if Philippine
law were to apply. They contended that by executing two wills – one to govern his Texas estate and
the other his Philippine estate – the decedent intended Philippine law to govern his Philippine estate.

Held: Said children were not entitled to their legitimes, since under Texas law, the decendents national
law, there are no legitimes.

Nor can the renvoi doctrine apply. Said doctrine is usually pertinent where the decedent is a national
of one country, and a domiciliary of another. In the present case, the decedent was a national and
domiciliary of Texas at the time of his death. So that even assuming that Texas has a conflict of law
rule providing that the law of the domicile should govern, the same would not result in a reference
(renvoi) to Philippine law, but would still refer to Texas law.
 PCIB vs. ESCOLIN
56 SCRA 368

Facts: A married woman Linnte Jane Hodges, a citizen of Texas, was a domiciliary of the Philippines at
the moment of her death. With respect to the validity of certain testamentary provisions she had
made in favor of her husband, a question arose as to what exactly were the laws of Texas on the matter
at the precise moment of her death (for while one group contended that Texas law would result in the
renvoi, the other group contended that no renvoi was possible).

Issue: Should the laws of Texas on the matter be ascertained?

Held: Yes, for what the law of Texas is governing the order of succession and the amount of
successional rights is in the first instance, one of fact, and that foreign laws may not be taken judicial
notice of and have to be proven like any other fact in dispute between the parties in any proceeding.

While in the Amos Bellis case, the Court partially discussed the law of Texas, still it is needful to prove
in the instant case what that law precisely was – at the moment of Linnie Jane Hodges’ death. After
all, the law may have been different. Besides, in Amos Bellis, the deceased was a citizen and
domiciliary of Texas, here she was a citizen but not a domiciliary of Texas.

CHAPTER XII

RULES ON STATUS IN GENERAL

FACTUAL SITUATION POINT OF CONTACT

(1) Beginning of personality of natural person, (1) national law of the child (Art. 15, Civil
Code)
(2) Ways and effects of emancipation
(2) national law (Art. 15)
(3) Age of majority
(3) national law (Art. 15)
(4) Use of names and surnames
(4) national law (Art. 15)
(5) Use of titles of nobility
(5) national law (Art. 15)
(6) Absence
(6) national law (Art. 15)
(7) Presumptions of death and survivorship
(7) lex fori (See Arts, 43, 390, 391, Civil Code;
Rule 131, Sec. 5(jj), Revised Rules of Court)

In General - The status of a person depends on his national law.

ARTICLE 15 CIVIL CODE. Laws relating to family rights and duties, or to the legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad.

The Beginning of Personality of Natural Persons

ARTICLE 40. CIVIL CODE. Birth determines personality, but the conceived child shall be considered born for all
purposes that are favorable to it, provided it be born later with the conditions specified in the following article.
ARTICLE 41. CIVIL CODE. For civil purposes, the fetus is considered born if it is alive at the time it is completely
delivered from the mother’s womb. However, if the fetus had an intra-urine life of less than seven months, it is
not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.

Comment:
Personality does not begin at birth, it begins at conception (this is called presumptive personality). It is of
course essential that birth should occur later, otherwise the fetus will be considered as never having possessed
legal personality.

TWO KINDS OF CHILDREN:

(a) Ordinary – with an intra-uterine life of at least seven months. Mere birth is sufficient here.

(b) Extraordinary – if the intra-uterine life be less than seven months. )Here, the child must have lived for at
least 24 hours after its complete delivery from the maternal womb.)

Note: Articles 40 and 41 of the Civil Code apply only to Filipino babies. If the child be a foreigner, the
beginning of its personality depends upon its national law.

Q: Can one donate property to a fetus of a Filipino couple?

A: Yes, because allowed by Articles 40 & 41 NCC.

Q: How about if the parents of the fetus are Chinese?

A: It will now depend on the national law of the child,.

Ways and Effects of Emancipation – governed by NATIONAL LAW

Titles of Nobility

The right to use a title of nobility depends upon the national law of the individual concerned. An
Englishman, who may have such a title, is allowed to use the same in our country, but if he applies for Philippine
naturalization, he must renounce any hereditary title or order of nobility he possesses, for the same is not
allowed under Philippine laws.

However, such prohibition is not without its share of exceptions. Thus, under the 1987 Constitution, a
public official may be conferred with a foreign title of nobility provided. Congress agrees (Article VI, Section 31
Constitution)

Absence

Q: A, a Filipina is married to B, Zimbabwean. They are domiciliaries of the Philippines. The latter has been
absent for four years. Assuming that the law on absence in Zimbabwe is that a person may be declared absent,
considering that in the Philippines B can now be declared absent after a disappearance of ten years, can A go to
court and petition that her husband be declared absent, considering that in the Philippines B can now be
declared absent?

A: No. Absence, being a legal status of a person who disappears from his domicile, his whereabouts
being unknown is naturally governed by his NATIONAL LAW. Considering that Zimbabwean laws prescribe for
ten years before one can be considered absent, A must still wait for the lapse of ten years before she can
petition the court for a declaration of absence.

Presumptions of Death and Survivorship

Presumption of Death: involves one person

Presumption of Survivorship: involves two or more persons

Q: Why is death / survivorship governed by lex fori?

A: This is because in certain cases, there may be a burden proof. And when a question of evidence is involved, it
is procedural.

CHAPTER XIII

MARRIAGE AS A CONTRACT

OUTLINE:
MARRIAGE AS A CONTRACT:
1. INTRINSIC / SUBSTANTIVE VALIDITY
 CAPACITY
 CONSENT
 POSSIBLE IMPEDIMENTS
2. EXTRINSIC / FORMAL VALIDITY

Marriage:

Christian viewpoint - marriage is a union of one man with one woman or the reciprocal blessings of a domestic
life, and for the birth, rearing and education of children.

Legal viewpoint - 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 life.

Two aspects of Marriage

(1) It is a CONTRACT;
(2) It is also a UNION, a STATUS, a LEGAL RELATION

Synopsis of the Rules on Marriage as a Contract

FACTUAL SITUATION POINT OF CONTRACT

(1) If celebrated abroad (1)
a. between Filipinos a. Lex loci celebrations without prejudice to the
exceptions under Arts. 26, 35 (1), (4), (5) and (6),
(36), 37 and 38 of the Family Code (bigamous,
polygamous, and incestmous marriages) and
*consular marriages.)

b. Lex loci celebrationis except if the marriage is:

b. between foreigners
1) highly immoral (like bigamous and polygamous
marriages); or

2) universally considered INCESTUOUS, i.e.,

between brothers and sisters (whole or half-blood,
whether the relationship is legitimate or
illegitimate) and between ascendants and
descendants

c. apply (1-b) – to uphold the validity of the

marriage
c. mixed
(2)

(2) if celebrated in the Philippines a. national law (Art. 21) provided the marriage is
not highly immoral or universally considered
a. between foreigners incestuous)

b. national law of the Filipino

 (otherwise public policy may be
b. mixed militated against)

(3) lex loci celebrationis ( with prejudice to the

foregoing rules)
(3) Marriage by proxy

(NOTE: a marriage by proxy is considered as

celebrated where the proxy appears)

I – INTRINSIC / SUBSTANTIVE VALIDITY

A. BETWEEN FOREIGNERS ABROAD :

 LEX LOCI CELEBRATIONIS

 EXCEPTIONS:

1. Highly immoral

a. bigamous marriage
b. polygamous marriage

2. Universally considered Incestuous

a. between brothers & sisters – whether of the full or half blood, whether legitimate or
illegitimate

b. between ascendants & descendants – whether the relationship be legitimate or

illegitimate

Q: If a Turk brings to the Philippines four wives to all of whom he got married validly in Turkey, should we
recognize as valid all the four marriages?

A: We distinguish:

For cohabitation purposes, only the first wife will be recognized as legitimate; the rest will be deemed
mere concubines (Art. 334, RPC)

For the purpose of determining successional rights to the estate of the husband in case of death, all
the wives should be regarded as legitimate.

B. BETWEEN FILIPINOS ABROAD:

 ARTICLE 26, FC – LEX LOCI CELEBRATIONIS

 EXCEPTIONS :

1. When one party lacks LEGAL CAPACITY (ART. 35)

2. BIGAMOUS OR POLYGAMOUS marriages

3. Those contracted through MISTAKE of one contracting party as to the IDENTITY of the other

4. Those SUBSEQUENT MARRIAGES that are VOID under Article 53,FC

5. When one party is PSYCHOLOGICALLY INCAPACITATED
  2 Filipinos got married in Malaysia. There, psychological incapacity does not render the
marriage void. When they come back in the Philippines, they can still have their marriage
be declared null and void because the rule that when the marriage is valid in the place of
celebration shall also be valid here in the Philippines, DOES NOT APPLY. [because 1 of the
exceptions yan! Gets? ]

6. INCESTUOUS marriages

7. Marriages that are against PUBLIC POLICY----

ARTICLE 26, FAMILY CODE: 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.

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 likewise
have capacity to remarry under Philippine law.

ARTICLE 35, FAMILY CODE. The following marriages shall be void from the beginning:

(1) those contracted by any party below eighteen years of age even with the consent of parents or guardians:
xxx
(4) those bigamous or polygamous marriages not falling under Article 41;
(5) those contracted through mistake of one contracting party as to the identity of the other, and,
(6) those subsequent marriages that are void under Article 53

ARTICLE 36, FAMILY CODE. A marriage contracted by any party who, at the time of the celebration was
psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void
even if such incapacity becomes manifest only after its solemnization.

ARTICLE 37, FAMILY CODE. Marriages between the following are incestuous and void from the beginning
whether the relationship between: the parties be legitimate or illegitimate:

(1) between ascendants and descendants of any degree

(2) between brothers and sisters, whether of the full or half-blood.

ARTICLE 38 FAMILY CODE: The Following marriages shall be void from the beginning for reasons of public
policy:

(1) between collateral blood relatives, whether legitimate, up to the fourth civil degree
(2) between step-parents and step-children;
(3) between parents-in-law and children-in-law;
(4) between the adopting parent and the adopted child;
(5) between the surviving spouse of the adopting parents and the adopted child;
(6) between the surviving spouse of the adopted child and the adopter;
(7) between adopted child of the same adopter; and
(8) between parties where one, with the intention to marry the other, killed that other person’s spouse or his or
her own spouse.

Problem : Filipino first cousins got married in California, where the marriage is considered valid will their
marriage be recognized in the Philippines?

Answer: No, because such a marriage is incestuous as determined by Philippine law.

Problem: A Filipino step-brother married his Filipino step-sister in California. Will our courts recognize the
validity of their marriage abroad?

Answer: Yes, because it is valid in the place of celebration and the marriage in neither bigamous, polygamous,
or incestuous as determined by Philippine law.
Q : A pangit but rich Filipino wanted to marry a pretty girlash in Borneo. Ginawa nya, gun-point! Para pumayag
ang girlash. Now, they came to the Philippines, the girlash wants their marriage to be annulled. Can she validly
have it annulled?

A: It seems that the answer is NO because it does not fall under any of the abovementioned exceptions.

Example: Two Filipinos got married in Russia. The marriage was celebrated by a Catholic Priest. In Russia, this
kind of marriage is not valid. Hence, in the Philippines, their marriage is also not valid.

C. MIXED MARRIAGES :

 If by one law the marriage is valid, and by the other the marriage is void, that which
will UPHOLD THE VALIDITY of the marriage should be followed.

 EXAMPLE : A Filipina marries her American 1 st cousin here in the Philippines. The
marriage is NOT VALID because it is CONTRARY TO PUBLIC POLICY. However, if they marry
in the US and the marriage is considered as valid there, the marriage shall also be valid
here. In case of doubt, resolve in favor of the unity of the family.

D. SAME SEX MARRIAGE :

Q : Same sex marriage between 2 foreigners celebrated abroad. They come to the Philippines. One dies. Is the
marriage valid?

A : Seems yes because it does not fall under any of the exceptions.

Q : Same sex marriage between an alien & a Filipino celebrated abroad. Marriage was considered valid where
celebrated. One dies. Succession. Is the marriage valid here?

A : In case of doubt, uphold the validity of the marriage.

Q : Same sex marriage between 2 Filipinos celebrated in Canada where their marriage is considered valid. They
come back to the Philippines. Is the marriage valid here?

A : Seems yes because it does not fall under any of the exceptions. Very Problematic. See Article 15 NCC.

II – EXTRINSIC / FORMAL VALIDITY

1. Legal capacity of the contracting parties;

2. Consent of the contracting parties, freely given;

3. Authority of the person solemnizing the marriage;

4. A marriage license

5. Marriage ceremony [implied only because of requisite nos. 3 & 4]

 RULE : LEX LOCI CELEBRATIONIS WITHOUT EXCEPTIONS

MIXED MARRIAGES IN THE PHILIPPINES

If a Filipino marries in the Philippines an American, it is believed that the national law of the Filipino should be
followed; otherwise our public policy on this point may be militated against. Thus, a Filipino girl cannot marry
her American first cousin in Manila.

Distinctions between the Contract of Marriage and Ordinary Contracts

ORDINARY CONTRACTS CONTRACT OF MARRIAGE

1. Mere contracts 1. Also an inviolable social institution

2. The agreements entered into usually depend on
the stipulation agreed upon by the contracting
parties unless those stipulations violate the law,
public policy, public order, good customs or good
morals.
2. The nature & consequences as well as the
incidents, are governed by the law- except marriage
settlements. GR, stipulations are of no value.

3. Age requirement is age of majority. 3. The age requirements vary.

4. May end thru the express provision of the law, 4. Only death, annulment or legal causes dissolves
thru expiration of the term for which the contract the contract.
was agreed upon, thru fulfillment of the purpose
for which the contract was entered into, & thru
mutual agreement.

5. The intrinsic validity is usually resolved by an

inquiry into the law intended by the parties. 5. The validity is verified generally by a reference to
the lex loci celebrationis.

CHAPTER XIV

MARRIAGE AS A STATUS

TAKE NOTE OF THE TABLES. 

FACTUAL SITUATION POINT OF CONTACT

(1) PERSONAL RIGHTS AND OBLIGATIONS (1) NATIONAL LAW OF THE HUSBAND
BETWEEN HUSBAND & WIFE

[mutual fidelity, cohabitation, respect, assistance (NOTE: Effect of subsequent change of nationality
& support; right of wife to use husband’s –
surname; duty to follow husband’s residence]
(a) if BOTH will have a new nationality
-- the new one

(b) if only one will change

-- the last common nationality

(c) if there never was any common nationality

-- the national law of the husband at the time of
the wedding)

(2) PROPERTY RELATIONS BETWEEN HUSBAND & (2) NATIONAL LAW OF THE HUSBAND, without
WIFE prejudice to what the Civil Code provides
concerning REAL property located in the
 Philippines.(Art 80)

(NOTE: Effect of change of nationality –

NO EFFECT – DOCTRINE OF IMMUTABILITY IN THE

MATRIMONIAL PROPERTY REGIME)

OUTLINE:

1. MARRIAGE AS A STATUS

A. PERSONAL RELATIONS – LAW OF THEHUSBAND IS FOLLOWED 

B. PROPERTY RELATIONS

2. DECLARATION OF NULLITY

Marriage as a status carries with it implications in two fields; the realm of personal rights and
obligations of the spouses, and the realm of property relations. Generally, the first field is a personal affair
between the husband and wife, and as such, will not ordinarily be interfered with by the courts of justice, in the
second, there are several judicial sanctions applicable.

Personal relations between the spouses are in this jurisdiction governed by the national law of the
parties. To avoid the possibility of conflict between two antagonistic legal systems, the national law of the
husband is usually given preference.

2 ITEMS (under Marriage as a status) :

A] Personal Relations
B] Property Relations

A] PERSONAL RELATIONS

 Personal rights and obligations between the husband and the wife covers:

1. Mutual fidelity, cohabitation and respect:

The wife may establish a separate domicile in the following cases:

 If the husband continually indulges in illicit relations with others.

 If the husband is immoderate or barbaric in his demands for sexual intercourse.
 If the husband grossly insults her;
 If she has been virtually driven out of their home;
 If the husband continually gambles and refuses to support the family;
 If the husband lives as vagabond;
 If the court exempts her because the husband lives abroad.

2. Mutual assistance and support;

3. Right of the wife to use the husband’s name; and
4. Duty of the wife to follow the husband to his residence or domicile.

Under Article 68 of the Family Code, “the husband and wife are obliged to live together, observe
mutual love, respect and fidelity, and render mutual help and support.”

 As to the Personal Relations between the Husband & Wife, the National Law of the Husband will govern,
the reasons are:

1. The law considers the husband as the head of the family;

 2. When the woman marries, she also acquires the nationality of her husband
{ngek!!!} (but take note, this is under the old law) 

 If there is a change of nationality of both spouses, there is also a change in the personal relations
between them.

The reason is: Article 15, Nationality Theory will be the governing principle.

e.g. In the Philippines, there is a duty of mutual aid and support. If one goes to the US, the
spouses will no longer have the duty of mutual aid and support.

 If there is no provision in the New Civil Code and Family Code, we apply Principles of Private
International Law.

Rules on Procedure

To enforce rights granted by the husband’s national law, resort is had to the lex fori, hence should suits
be litigated in the Philippines, our procedural rules will have to be followed.

B] PROPERTY RELATIONS

Property Relations – means the property regime that will govern the marriage.

Examples of Matrimonial Property Regimes:

i. Absolute Community of Property

ii. Relative Community/Conjugal Partnership of Gains
iii. Complete Separation of Property

 Marriage between foreigners who come to the Philippines – apply the national law of the husband

 If the marriage is mixed –apply Article 80 of the Family Code –which repealed Article 124 NCC

Art. 80 of the Family Code is our conflicts rule on the subject of property relations between the husband and
the wife:

ARTICLE 80, FAMILY CODE. In the absence of a contrary stipulation in a marriage settlement, 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.

This rule shall not apply:

(1) Where both spouses are aliens;

(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and
executed in the country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property
situated in a foreign country whose laws require different formalities for its extrinsic validity.

Common between (2) and (3): both refer to extrinsic formalities

: both refer to property situated outside the Philippines
Difference:

(2) refers to contracts executed in foreign country

(3) refers to contracts executed in the Philippines

Article 80 – says we apply Family code – Absolute community Regime

Scope of Article 80:

1. Applies even to mixed marriages

2. Applies even if the marriage is celebrated abroad

3. Applies even if the parties reside abroad

4. Applies even if the properties are located abroad

Limitations of Article 80 FC:

1. Does not apply if the marriage is between aliens

2. Does not apply to mixed marriages if the parties stipulate otherwise

3. Does not apply to the extrinsic validity of contracts

marriage settlements \
donations in consideration of marriage / governed by the law of place where the contract was
executed or where the property is situated and not by the
FC

Situation 1:
(Act of disposition)
A, a foreigner, married B, a Filipino. They came to the Philippines and settled here. They had one child, C. Under
A’s country , the system of complete separation of property is followed and the husband can fully dispose of his
property. A bought properties out of his salary as WB consultant. A died. He left all his properties to his brother,
D, in a will. B and C opposed the will on the ground of preterition. B claims that ½ of the properties belong to
her.

Answer: The Family Code applies. This example pertains to a mixed marriage, thus under the FC, the absolute
community regime shall govern.

Will – conjugal property

50% A
50% B

Is there preterition? NO. A is free to dispose his properties to D but only as to his ½ share. B can get the
other half as her share in the absolute community of property. C cannot get anything. The other half will go to D
as heir named in the will. Wills are governed by the national law of the decedent. [SIR de la BANDA]

Situation 2:
(Ownership)
Problem: An American, whose national law follows the system of complete separation of property, marries a
Filipino woman, whose national law provides, in the absence of a contrary stipulation in a marriage settlement
or the absolute property regime. The husband, as a technical consultant in an engineering project of the
Philippine government, earns the sum of P4 million with which he purchases a house located in the Philippines.
Who owns the house, the husband or both of the spouses?
Answer: The husband is the exclusive owner of the house. Applying Art. 80 of the Family Code, it is clear that
their matrimonial property relationship shall be governed by separation of property regime. In other words,
under Art. 80, it is the national law of the husband that designates the matrimonial property regime to be
enforced. [PARAS]

Be it noted that the law chooses the matrimonial property regime under the national law of the
HUSBAND, instead of the wife. And this is true, even if both the spouses are foreigners of different
nationalities. For in such a case, Art. 80 can clearly be applied by analogy.

DOCTRINE OF IMMUTABILITY OF PROPERTY REGIME :

This doctrine states that regardless of change of nationality on the part of the husband or of the wife
or of both, the original property regime at the start of the marriage remains.

The reasons for the doctrine are as follows:

1. Marital peace in property relationship shall be more or less guaranteed;

2. The spouses will not be able to prejudice creditors.
3. Maneuvering between spouses will be avoided

TAKE NOTE that change in nationality or status is to be distinguished from change in legislation; if the governing
legislation, say the Civil Code, is changed (which is what actually happened with the enactment of the Family
Code), relations that are regulated by it are changed accordingly. The change, particularly if it operates
retroactively, must comply with the requirements of the due process clause of the Constitution.

CHAPTER XV

ANNULMENT OF A VOIDABLE MARRIAGE

AND DECLARATION OF NULLITY OF A VOID MARRIAGE

FACTUAL SITUATION POINT OF CONTACT

 grounds for annulment (if the marriage is  the law alleged to have been violated: in other
voidable merely) and grounds for declaration of words, the law of the place of celebration subject
nullity (if the marriage is void ab initio) to certain exceptions, that furnishes the grounds

Annulment Distinguished from Declaration of Nullity of a Void Marriage

A voidable marriage is valid until annulled. The remedy here is therefore ANNULMENT. If the marriage
is null and void (void ab initio), there ordinarily is no need of an annulment proceeding since there obviously is
nothing to annul. However, if a party wants to obtain damages because of a void marriage, the only way to
obtain said damages would obviously be by asking the proper court to declare the marriage null and void.

2 Issues in Declaration of Nullity of Marriage:

1. Issue of jurisdiction.

2. Issue of choice of law.

A] JURISDICTION:

1. Courts where parties are nationals

2. In cases of mixed marriage, the courts of either country has jurisdiction

 3. Courts where parties are domiciliaries

 A tourist cannot sue annulment in the Philippine courts even if married here

Question: Can tourists here in Philippines obtain an annulment in Philippine Courts?

Answer: Old Civil Code required number of years before foreigners can file annulment in the
Philippines . This is however removed in the Family Code.

B] CHOICE OF LAW: – lex loci celebrationis

 Lex loci celebrationis because the cause of annulment/declaration nullity arose at the time of
marriage pa, although nadiscover, later na.

Situation:

Two Americans file annulment in Philippines.

Philippine courts should look at the law of America.

Suppose Both Filipinos:

1. Lex loci celebrationis

2. Family code
e.g.
 You, a Filipino got married in Singapore to A who is psychologically incapacitated.
Psychological incapacity is not a ground in Singapore. You can annul the marriage here in the
Philippines because of the Family Code.

Problem: Two Americans got married in State X where sterility is a ground for annulment of the marriage. May
the marriage be annulled in the Philippines courts on the ground of sterility?

Answer: Yes. Since the marriage is voidable in State X, it shall also be voidable here. This is true even if under
our internal law, sterility is not such a ground.

Problem: Suppose in the preceding problem, it had been two Filipinos who had married in State X, would the
marriage be also annulled in our country?

Answer: Yes, and for exactly the same reason. Since the marriage is voidable in State X, it is also to be regarded
as voidable by us here in the Philippines.

CHAPTER XVI

ABSOLUTE DIVORCE

NOTE: This is an important chapter.

OUTLINE: DIVORCE

CASES:

1. VAN DORN VS ROMILLO 139 SCRA 139 [1985]

2. PILAPIL VS IBAY-SOMERA 174 SCRA 653 [1989]
3. QUITA VS CA 300 SCRA 406 [1998]
4. GARCIA VS RECIO 366 SCRA 437 [2001]
 FACTUAL SITUATION POINT OF CONTACT

(1) IF SOUGHT IN THE PHILIPPINES (1) lex fori (thus, will not be granted)
[whether by Filipinos or by foreigners]
Exception: Moslem divorces

(2) IF OBTAINED ABROAD: (2)

(a) between Filipinos (a) national law [therefore, not valid here
even if valid abroad; and this is true regardless of
the cause of divorce]

(b) between Foreigners (b) national law [if valid in State granting it, and
valid according to the national law of the parties,
will also be valid here]

(c) apply (a) & (b) respectively. See, however,

(c) mixed Art. 26, par 2 FC

Ireland, Brazil, Argentina, Netherlands, Philippines – countries that do not allow divorce
South Carolina – does not allow divorce
NY – only one ground: adultery
Japan, Nevada, & under the Islamic Law (Talak) – very lax on divorce
Under TALAK, you can divorce somebody by just saying: “I will divorce you.”

In Philippines:

 General Rule: We do not allow/recognize divorce

Reason: Contrary to Public Policy
 Exceptions:
1. Divorce between aliens.

Reasons: a. Aliens are governed by their national law

Article 15

b. Under the Family code, aliens are required to submit a

“certificate of legal capacity”

c. Aliens who have obtained divorce in their country and

are capable of re-marrying are also allowed/recognized in
the Philippines

2. Muslims/Indigenous Cultural Communities

3. Mixed Marriages

Article 26 Family Code. 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)

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. (As amended by Executive Order 227)

3 Requisites for Article 26 to apply:

1. Marriage must be mixed

 2. Divorce is obtained by the alien spouse

3. The divorce capacitates the alien spouse to remarry

What is a mixed marriage?

1. According to Sympio Dy – mixed at the time of celebration.

It is because one of parties who is Filipino may later become an alien.

2. However, here is another applicable answer. In 1993, Opinion No. 134 Series of 1993, Secretary of
Justice rendered an opinion.

 Two Filipinos, married, 1 went to Vienna, became a foreigner and obtained divorce there.

Can both of them remarry?

Yes. Based on Family Code, purpose is to remove a situation wherein a Filipino is still married to
an alien and the alien is no longer married to the Filipino.

Family Code only says divorce by alien spouse. Law is silent as to when naging alien. The law did
not distinguish.

VAN DORN VS ROMILLO

favorite case of Dean Estrellado

Filipino woman got married in Hong Kong to an American. Filipino obtained the divorce. Filipino married
another foreigner. She puts up a business in Manila. First husband came to Philippines, and sued for accounting
and right to manage the property.

SC: First husband no longer has the right to manage the property.
For purposes of settling property rights, it is not important to determine who asked for the divorce. Divorce is
valid.

PILAPIL VS. IBAY- SOMERA

Filipino married to a German. Divorced in Germany. German husband filed adultery case against wife for acts
that happened prior to divorce.

SC: Case must be filed by offended spouse. German no longer considered as offended spouse because already
divorced. Case dismissed.
QUITA VS. COURT OF APPEALS

In 1941, Both were Filipinos when they got married. W went to US, obtained a divorce in California. Then she
married another. Years later, first husband died. W returned to Philippines and asked for her share in the
property.

SC: W already American but we do not know when. If became American prior to divorce, divorce null and void,
therefore have a right to inherit.

If already American at the time of the divorce, then divorce valid and thus no share in property.

GARCIA VS RECIO

Recio married an Australian. Recio obtained divorce. After divorce, he became an Australian, went to
Philippines and married a Filipino. 2nd wife filed action to annul her marriage because bigamous.

SC: If absolute divorce, cant annul marriage because not bigamous.

If relative divorce, can annul marriage because bigamous.

Problem: A Filipino husband and a Filipino wife went to Las Vegas where they obtained a divorce decree on
account of the wife’s adultery. Will the divorce be recognized in the Philippines?

Answer: No, because the divorce is contrary to an important public policy of the forum.

Problem: An American actress married an American star in Hollywood. After several months of marriage, she
obtained a valid divorce in Hollywood. If she comes to Philippines, will she be allowed to get married here?

Answer : Yes. The divorce will be recognized as valid here because it is valid in accordance with her national
law and it is valid in the place which granted the same.

Problem : A Filipino woman got married to H, a national of X country. Under the laws of X, the wife acquired
the husband’s nationality. Later, H and the wife obtained a decree of absolute divorce, which was considered
valid in country X. Upon the woman’s return to the Philippines, will she be allowed to marry again here?

Answer : Yes, because by virtue of her acquisition of foreign citizenship, the rules on foreigners govern the
validity of the divorce. Inasmuch as her divorce is considered as valid in country X, her divorce should be
recognized in our courts.

Problem : A Filipino woman W, married an American H, but remained a Filipino. Later H obtained a decree of
absolute divorce in Reno, Nevada where he had a permanent domicile. He, thereupon, married Whoopee
Goldberg. Give the effect of the divorce decree.

Answer : It depends. In order for the divorce’s recognition insofar as Philippine courts are concerned, the
following must exist:

*it is a mixed marriage;

*the divorce was obtained by the alien;
*the alien remarried (Art. 26, FC)

In the above problem, all the requisites exist. Therefore, the divorce is valid insofar as Philippines courts are
concerned. This rule is adopted to avoid unfairness to a Filipino spouse.

VAN DORN vs. ROMILLO

139 SCRA 139

Facts: Petitioner Alice Reyes Van Dorn is a citizen of the Philippines while private respondent Richard
Upton is a citizen of the United States; they were married in Hong Kong in 1972; after the marriage,
they established their residence in the Philippines, and begot two children; the parties were divorced
in Nevada, United States, in 1982; and petitioner has returned also in Nevada, this time to Theodore
Van Dorn.

On June 8, 1983, Upton filed a suit against petitioner in the RTC of Pasay City, stating that petitioner’s
business in Ermita, Manila (the Galleon Shop), is a complied property and asking that petitioner be
ordered to render an accounting of that business, and that Upton be declared as having the right to
marriage the conjugal property.

Issue: The effect of the foreign divorce on the parties and their alleged conjugal property in the
Philippines.

Held: The Nevada District Court, which decreed that divorce, had obtained jurisdiction over petitioner
who appeared in the person before it. It also obtained jurisdiction over Upton who authorized his
attorneys to agree to a divorce on the ground of incompatibility in the understanding that there was
neither community property nor community obligations.
 There can be no question as to the validity of that Nevada divorce in any of the state of the United
States. The decree is binding on Upton as an American citizen. For instance, he cannot sue petitioner,
as her husband, in any state of the Union. What he is contending in this case is that the policy.

It is true that owing to the nationality principle embodied an Article 15 of the Civil Code only Philippine
nationals are covered by the policy against absolute divorces the same being considered contrary to
our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law.

In this case, the divorce in Nevada released private respondent from the marriage from the standards
of American law, under which divorce dissolves the marriage.

Thus, pursuant to his national law, Upton is no longer the husband of petitioner. He would have no
standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal
assets. As he is bound by the Decision of his own country’s Court. Which validity exercised jurisdiction
over him, and whose decision he does not repudiate, he is estopped by his own representation before
said Court from assisting his right over the alleged conjugal property.

To maintain, as Upton does, that under our laws petitioner has to be considered still married to him
and still subject to a wife’s obligations under Article 109, et. Seq. Of the Civil Code cannot be just.
Petitioner should not be obliged to live together with, observe respect and fidelity, and render support
to private respondent. The latter should not continue to be one of her heirs with possible rights to
conjugal property. She should not be discriminated against in her own country if the ends of justice
are to be served.

BAR QUESTIONS ON DIVORCE

1992 #1
Question:

In 1989, Jan Pueyo, a Filipino citizen, married her boss, Piolo Paul, an American citizen, in Tokyo in a
wedding ceremony celebrated according to Japanese laws. One year later, Piolo Paul returned to his native
Nevada, and he validly obtained in that state an absolute divorce from his wife, Jan Pueyo.

After Jan Pueyo received the final judgment of divorce, she married her childhood sweetheart Diet
Diether, also a Filipino citizen, in a religious ceremony in Cebu City, celebrated according to the formalities of
Philippine law. Diet Diether later left for the United States and became naturalized as an American citizen. Jan
Pueyo followed Diet Diether to the United States, and after a serious quarrel, Jan Pueyo filed a suit and
obtained a divorce decree issued by the court in the State of Maryland.

Jan Pueyo then returned to the Philippines and in a civil ceremony celebrated in Ceby city according to
the formalities of Philippine law, she married her former classmate Leo Witanco likewise a Filipino citizen.

a. Was the marrieage of Jan Pueyo and Piolo Paul valid when celebrated? Is her
marriage still validly existing now? Reasons.

b. Was the marriage of Jan Pueyo and Diet Diether valid when celebrated? Is
their marriage still existing now? Reasons.

c. Was the marriage of Jan Pueyo and Leo Witanco valid when celebrated? Is
their marriage still validly existing now? Reasons.

d. At this point in time, who is the lawful husband of Jan Pueyo? Reasons.

Answer:
 a. The marriage of Jan Pueyo and Piolo Paul was valid when celebrated because all marriages solemnized
outside the Philippines (Tokyo) in accordance with the laws in force in the country where they are
solemnized (Japan), and valid there as such, are also valid in the Philippines.

Their marriage no longer validly subsists, because it has been dissolved by the absolute divorce validly
obtained by Piolo Paul which capacitated Jan Pueyo to remarry. (Article 26, Family Code)

b. The marriage of Jan Pueyo and Diet Diether was valid when celebrated because the divorce validly
obtained by Piolo Paul in Manila capacitated Jan Pueyo to remarry Diet Diether.

The marriage of Jan Pueyo and Diet Diether is still validly existing because the marriage has not been
validly dissolved by the Maryland divorce. (Article 26, Family Code)

c. The marriage of Jan Pueyo and Leo Witanco is void ab initio because it is a bigamous marriage
contracted by Jan Pueyo during the subsistence of her marriage with Diet Diether (Article 25, and
Article 41 of the Family Code).

The marriage of Jan Pueyo and Leo Witanco does not validly exist because Article 26 does not apply.
Diet Diether was not a foreigner at the time of his marriage with Jan Pueyo and the divorce abroad (in
Maryland) was initiated and obtained not by the alien spouse, but by the Filipino spouse. Hence, the
Maryland divorce did not capacitate Jan Pueyo to marry Leo Witanco.

d. At this point in time, Diet Diether is still the lawful husband of Jan Pueyo because their valid marriage
has not been dissolved by any valid cause (Article 26, Family Code).

1996 #5
Question:

Eva and Tony were married to each other in Roxas City in 1980. In 1984, Eva was offered a teaching job
in Canada, which she accepted. In 1989, she applied for and was granted Canadian citizenship. The following
year, she sued for divorce from Tony in a Canadian court. After Tony was served with summons, the Canadian
court tried the case and decreed the divorce. Shortly thereafter, Eva married a Canadian.

Can Tony marry again in the Philippines? Explain.

Answer:

NO. Tony cannot validly remarry. His case is not covered by Article 26 of the Family Code. For said
article to be applicable, the spouse who filed for divorce must be a foreigner at the time of the marriage. Since
both of them were Filipinos at the time of marriage, the divorce obtained by Eva did not capacitate Tony to
remarry. The fact that Eva was already an alien at the time she obtained the divorce does not give Tony the
capacity to remarry under Philippine Law.

Alternative Answer:

A. YES. Tony can validly remarry. Article 26 of the FC merely states the alien spouse without taking into
consideration his or her nationality at the time of the marriage. While his case is not covered by the letter of
article 26, FC, it is however, covered by the spirit of said article. The injustice to the Filipino spouse sought to be
cured by said article is present in this case. (Department of Justice Opinion Number 134, Series of 1993.)

B. Although the marriage originally involved Filipino citizens, it eventually became a marriage between an
alien and a Filipino after Eva became a Canadian citizen. Thus, the divorce decree was one obtained by an alien
spouse married to a Filipino. Although nothing is said about whether such divorce did capacitate Eva to remarry,
that fact may as well be assumed since the problem states that she married a Canadian shortly after obtaining
the divorce. Hence, Tony can marry again under Philippine Law, pursuant to Article 26, FC which applies because
Eva was already an alien at the time of the divorce.

1997 # 2
Question:

In 1977, Joji and Gil, both Filipino citizens, were married in the Philippines. Three years later, they went
to the United States of America and established their residence in San Francisco, California. In 1987, the couple
applied for and were granted U.S. citizenship. In 1989, Gil, claiming to have been abandoned by Joji, was able to
secure a decree of divorce in Reno, Nevada, U.S.A.

In 1990, Gil returned to the Philippines and married Janjaaaan who knew well Gil’s past life.

a. Is the marriage between Gil and Janjaaaan valid?

b. Would the Renvoi doctrine have any relevance to the case?

Answer:

A. YES. In relation to Article 15 of the CC, conflict of laws provides that the recognition of an absolute
divorce granted another State rests on the citizenship of the parties at the time the divorce was granted (Paras,
Phil conflict of laws, p. 259). Applied in this case, the divorce decree to Joji and Gil will be recognized as valid
here considering that at the time the foreign decree was granted, both Joji and Gil are citizens of the U.S.A, a
country which grants/allows absolute divorce. Since the marriage between Gil and Joji has been validly
terminated, Gil and Janjaaaan can freely marry each other.

B. NO. The renvoi doctrine is relevant in cases where one country applies the domiciliary theory and the
other nationality theory, and the issue involved is which of the laws of the two countries should apply to
determine the order of succession, the amount of successional rights, or the intrinsic validity of the
testamentary provisions. Such issue is not involved in this case.

Alternative Answer:

YES, Renvoi which means referring back is relevant because here, we are applying U.S. law to Gil, being
already its citizen, although the formalities of the second marriage will be governed by Philippine law under the
principle of lex loci celebrationis.

1999 # 4
Question:

Petite and Josh were both Filipino citizens at the time of their marriage in 1987. when their marriage
turned sour, Josh went to a small country in Europe, got himself naturalized there, and then divorced Petite in
accordance with the law of that country. Later, he returned to the Philippines with his new wife.

Petite now wants to know what action or actions she can file against Josh. She also wants to know if
she can likewise marry again. What advice can you give her?

Answer:

Considering that Article 26, FC contemplates a divorce between a foreigner and a Filipino, who had
such respective nationalities at the time of their marriage, the divorce in Europe will not capacitate the Filipino
wife to remarry. The advice we can give her is either to file a petition for legal separation, on the ground of
sexual infidelity and of contracting bigamous marriage abroad, or to file a petition to dissolve the conjugal
partnership or absolute community of property as the case may be.

Alternative Answer:

Petite may file an action for legal separation on the grounds of sexual infidelity of her husband and the
contracting by her husband of a bigamous marriage abroad.

Petite may remarry. While a strict interpretation of Article 26, FC would capacitate a Filipino spouse to
remarry only when the other spouse was a foreigner at the time of the marriage, the DOJ has issued an opinion
(Opinion 134 Series of 1993) that the same injustice sought to be cured by Article 26 is present in the case of
spouses who were both Filipino at the time of the marriage but one became an alien subsequently. Said
injustice is the anomaly of Petite remaining married to her husband who is no longer married to her. Hence,
said opinion makes article 26 applicable to her case and the divorce obtained abroad by her former Filipino
husband would capacitate her to remarry. To contract a subsequent marriage, all she needs to do is present to
the civil registrar the decree of divorce when she applies for a marriage license under Article 13 of the Family
Code.

2002 # 3
Question:

Alex and My, both Filipino citizens, were married in Malolos, Bulacan on 1 June 1950. In 1960, Alex
went to the U.S., becoming a U.S. citizen in 1975. in 1980, he obtained a divorce from My, who was duly notified
of the proceedings. The divorce decree became final under California law. Coming back to the Philippines in
1982, Alex married Lea, a Filipino citizen. In 2001, Alex, then domiciled in Los Angeles, California, died, leaving
one child by My, and another one by Lea. He left a will which was executed in Manila, under which he left is
estate to Lea and his two children and nothing to My.

Lea files a petition for the probate of Alex’s will. My questions the intrinsic validity of the will, arguing
that her marriage to Alex subsisted despite the divorce obtained by Alex because said divorce is not recognized
in the Philippines. For this reason, she claims that the properties left by Alex are their conjugal properties and
that Lea has no successional rights.

A. Is the divorce secured by Alex in California recognizable and valid in the Philippines? How does it affect
Alex’s marriage to My? Explain.

B. What law governs the formalities of the will? Explain.

C. Will the Philippine Law govern the intrinsic validity of the will? Explain.

Answers:

A. 1. The divorce secured by Alex 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 (Van Dorn vs. Romillo, Jr. 139 SCRA 139;
1985) {Quita vs. CA, 300 SCRA 406 (1998)} [ Llorente vs. Ca, 345 SCRA 592, 2000]

2. With respect to Alex the divorce is valid, but with respect to My it is not. The divorce will not
capacitate My to remarry because she and Alex were both Filipinos at the time of their marriage. However, in
DOJ opinion No. 134 series of 1993, My 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:

i. The law of the country of which he is a citizen under Article 817 of the NCC; OR

ii. 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 intrinsic validity of the will. Article 16 of the NCC provides that
intrinsic validity of testamentary provisions shall be governed by the national law of the persons whose
succession is under consideration. California law will govern the intrinsic validity of the will.

 Asked by Dean Iñigo:

A, American, married B, a Filipino.

B later obtained a divorce from A and married C an American in the US.

Question: do we recognize the marriage between B and C as valid?

What kind of marriage? Mixed marriage. We will not apply FC. We will apply public international law.
Situation here: Valid in C’s country; not valid in B’s country.
Paras: we will uphold the validity of marriage. 

CHAPTER XVII

LEGAL SEPARATION

NOTE: This is an important chapter

: No bar question yet as to this topic

OUTLINE:

1. JURISDICTION – in which country must the action for legal separation be filed
2. CHOICE OF LAW – what legal system shall be applied or shall provide for the grounds for legal
separation?

FACTUAL SITUATION POINT OF CONTACT

(1) Grounds for legal separation (1) national law of the parties

(a) Adultery (a) if of the same or common nationality – the

common national law governs

(b) Concubinage (b) if of different nationalities – the grounds given

by BOTH national laws should ALL be considered
proper grounds

(c) Attempt by one spouse against the life of the NOTE: Residence requirement if suit is brought in
other the Philippines:

(a) if cause occurred in the Philippines – NO

residence requirement

(b) if cause occurred outside the Philippines – 1

year residence is required in our country [Art. 99,
Civil Code]

LEGAL SEPARATION ABSOLUTE DIVORCE

Does not sever marriage bonds Dissolves the marriage hence the parties are
allowed to remarry

Reconciliation prevents a suit for legal separation Reconciliation does not revive a marriag00e
or rescinds one already granted already dissolved by a decree granting absolute
divorce

LEGAL SEPARATION ANNULMENT OF MARRIAGE

Can be granted for cause for cause arising AFTER Requires causes existing PRIOR TO or AT THE TIME
the celebration of the marriage the wedding takes place

The grounds for legal separation are those given Questions the very existence of that status, hence,
by the national law of the parties concerned, generally the grounds annulment are those given
 inasmuch as this is purely a question of status, the by the lex loci celebrationis
validity of the marriage being presumed or
admitted
JURISDICTION – Hague Convention relating to Legal Separation

The petition for legal separation marriage can be filed anywhere for as long as:

1. It is allowed under the national law of the petitioner and

2. It is allowed by the laws of the forum.

Q: Can foreigners file a petition for legal separation in the Philippines?

A: Yes, if their country allows/recognizes legal separation.

Q: How about Filipinos, can they go to any country and get legal separation?
A: Yes, if the forum allows it.

TAKE NOTE : FORUM NON CONVENIENS is NOT A DEFENSE in legal separation because we are a signatory to the
Hague Convention.

TAKE NOTE ALSO: Article 99, NCC provides that “ No person shall be entitled to a legal separation who has not
resided in the Philippines for one year prior to the filing of the petition, unless the cause for the legal separation
has taken place within the territory of this Republic.”

However, this Article has already been expressly repealed by the Family Codes. So, there is now no
residence requirement. Thus, even if the parties are just passing through or come to the Philippines as
tourist, they can now file such petition.

CHOICE OF LAW

As legal separation affects” the personal status of a person, the NATIONAL LAW OF THE PARTIES will be
applied.

Q: Why is it that in annulment or in declaration of nullity, we use lex loci celebrationis but why is it that in legal
separation, we use the national law of the parties?

Reason: Annulment – grounds existed at the time of celebration of marriage

Legal Separation – grounds existed after the celebration of marriage

Q: What happens if the spouses come from 2 different legal systems?

Paras: The grounds will be CUMULATIVE. Meaning, if the nationality of the husband and wife be different, the
grounds enumerated under the national law of the husband PLUS the grounds given by the national law of the
wife constitute all the available grounds for granting them legal separation. If the ground is found in one legal
system, it shall already be sufficient.

Q: What are the grounds/defenses?

Q: Can you invoke defenses from the Family Code if Mixed Marriage?
A: NO. Not Family Code but national law of the spouse whose national law is invoked.

Defenses: Governed by National Law of Parties

Problem: A man and a woman, citizens of State X, get married in State Y. They are now in the Philippines. In
State X, the presence of an incurable contagious disease is a ground for legal separation; in State Y as well as in
the Philippines, this is not a ground. If the husband has said disease, may the wife sue in our courts for legal
separation?

Answer: Yes, because this is allowed by their national law despite the fact that our Family Code provisions on
legal separations do not consider this a proper ground.
Problem: In the preceding example, what will be the prescriptive period for the brining of the sue in the
Philippines?

Answer: Since the cause of action accrued in State X, it follows that the prescriptive period is that provided for
by the law of State X.

Our Internal Laws on Legal Separation

According to Article 55 of the Family Code, 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 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 (adultery or concubinage 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.

TENCHAVEZ vs. ESCANO

17 SCRA 674

Facts : In 1948, Pastor Tenchavez, an engineer, ex-army officer and of undistinguished stock, and Vicenta
Escaño (seion of a well-to-do and socially prominent Filipino family of Spanish ancestry and a “sheltered
colegiala”) were married before a Catholic priest in beautiful Cebu City, Philippines. The marriage was a
culmination of a previous love affair.

On October 22, 1950, Vicenta obtained an absolute divorce from her husband in the Seond Judicial
District Court of the State of Nevada, USA, on the ground of extreme cuelty, entirely mental in character.
She then married in Nevada an American, Russell Leo Moran. Both presently reside in California, the girl
having acquired American citizenship in 1958.

On July 1985, however Fenchay had already initiated legal separation proceeding by a complaint in the CFI
of beautiful Cebu against Vicenta Escano, her parents, whom he charged with having, dissuaded and
discouraged Vicenta from joining her husband and alienating her affections.

Issue: Will the legal separation proceedings and relief for damages proper?

Held: It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta
Excano remained subsisting and undissolved under Philippine law, not withstanding the decree of absolute
divorce that wife sought and obtained on 22 October 1950 like her husband was still a Filipino citizen (She
was naturalized as an American citizen only on August 8, 1958). She was then subject to Philippine law.

The Civil Code does not admit absolute divorce, quo ad inculo matrimonii; and in fact does not even
use that term, to further emphasize its restrictive policy on that matter. Instead of divorce, the present
Civil Code only provides for legal separation and even in that case, it expressly prescribes that marriage
bonds shall not be severed.”
 From the prescribed facts and considerations; there flows as a necessary consequence that in this
jurisdiction Vicenta Escano’s divorce and second marriage are not entitled to recognition as valid; for her
previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows, likewise,
that her refusal to perform is entitled to corresponding indemnity. Her marriage and cohabitation with
Russell Leo Moran is technically intercourse with a person not her husband” from the standpoint of
Philippine law, and entitles Tenchavez to a decree of legal separation under our law, on the basis of
adultery.

From the case of Tenchavez vs. Escano, the following doctrines can be gleaned:

(a) a foreign divorce between Filipino citizens is not entitled to recognition as a valid decree in this
country;

(b) marriage contracted with another party by the “divorced” consort subsequent to the foreign decree
of divorce is not entitled to validity in the Philippines;

(c ) the marriage of the “divorced” consort and his cohabitation with a person other then his lawful
spouse entitles the latter to obtain a decree of legal separation.

(d) the desertion and obtaining of an invalid divorce decree by one consort entitles the other to
recover lawful damages;

(e) an action for alienation of affections against parents of one consort will not prosper in the absence
of proof of malice and unworthy motives on her part;

(f) to grant affectivity to such foreign divorce would be to patently violate the declared policy of the
State as enunciated in the 3rd paragraph of Article 17 of the Civil Code.

Defenses in legal separation:

a. condonation
b. consent
c. connivance;
d. recrimination or mutual guilt;
e. collusion;
f. prescription

Effect of Death During the Pendency of the Case

If one party dies during the pendency of the case, the same should be dismissed since the action is
purely a personal one. This is true even if there would have been effects of property rights if a decree of legal
separation had been granted. Without the decree, there can be no effects.

CHAPTER XVIII

PATERNITY AND FILIATION

ADOPTION, GUARDIANSHIP AND FUNERALS

FACTUAL SITUATION POINT OF CONTACT

(1) PATERNITY & FILIATION (including PARENTAL (1)

AUTHORITY & RECIPROCAL SUPPORT) – (a) if legitimate – national law of the
legitimacy, legitimation, recognition, father
presumptions of legitimacy, rights & obligations of
parents & children, including parental authority, (b) if illegitimate – national law of the
and reciprocal support. mother unless recognized by the
father, in which case, national law
 of the father.

(c) determination of whether

legitimate or illegitimate –national
law of the father, as a rule

Doctrine of Immutability of Status – change of

parent’s nationality does NOT affect the status of
the child.

(2) ADOPTION – creation of the status of
adoption; rights & obligations of adopter &
adopted.
(2) in general, national law of the adopter
NOTE: In the Philippines, adoption by a Filipino
does NOT confer Filipino citizenship on an adopted
alien child.

(3) GUARDIANSHIP (3)

(a) over the person (a)

1) appointing court 1) court of the domicile of the ward

2) powers of guardian 2) coextensive with those of the

appointing court ( law of the
appointing state)

(b) over the property (b)

1) appointing court 1) court where the property is found

2) powers of guardian 2) coextensive with those of the

appointing court

(c) over the person & over the property (c) see 3(a) & (b)

(4) FUNERALS – incidents thereof (4) where the body is buried.

OUTLINE:
1. PATERNITY & FILIATION – What law governs legitimacy of child?
What law governs the relationship between parents &
child?
2. ADOPTION – Can aliens adopt?
Can one adopt an alien?
Inter-country adoption

PATERNITY AND FILIATION

Paternity is the civil status of the father with respect to the child begotten by him. On the other, Filiation is the
status of the child in relation to the father or mother. When we mention the relationship between the child and
the parents, we inferentially include also the following matters:

 presumption of legitimacy and illegitimacy;

 rights and obligations of parents and children;
 parental authority; and
 reciprocal support.
REGARDING LEGITIMACY OF CHILD:

Q: What law governs the legitimacy of the child?

A: National law of the FATHER at the time of the BIRTH of the child.

--> In the Philippines, what is the determining factor/standard?

 If the birth is within a lawful marriage – legitimate
 Conception of the child is not important
 In some countries, conception is important. Before a child can be considered legitimate, must be
conceived within lawful marriage.

Q: What happens if there is a subsequent change in the nationality of the parents?

A: Apply the Doctrine of Immutability of Status. The change in nationality of the parents will not affect the
nationality of the child.

Q: What if the change in the nationality of the parents will improve the status of the child?
A: No effect pa rin. The Doctrine Of Immutability of Status still applies.

Doctrine of Immutability of Status

The theory that states that the status of a child, i.e, his legitimacy, etc is NOT affected by any
subsequent change in the nationality of the parents. However, the national law of the parents will of
course be changed should the parents effect a change of nationality. The rights and obligations of
parents and child will now be determined by the new national law.

REGARDING THE RELATIONSHIP BETWEEN PARENTS & CHILDREN

Q: What rules govern the relationship and duties of the parents and the child?
A: It is submitted that the following answers will generally be adequate.
(a) If the child has been determined to be legitimate, the national law of the father controls,
(b) If the child is illegitimate, the national law of the mother is decisive, unless the child be
subsequently recognized by the father, in which case, the national law of the father prevails.

Q: If there is a change in the nationality of the parents, the new national law will apply as to the relationship
between the child and his parents.

Problem: In State X, all children whether born inside or outside or outside wedlock are considered legitimate.
In State Y, all children born outside of wedlock are illegitimate. Now then a child is born outside of wedlock of a
father who is a citizen of State Y, and a mother is a citizen X
(i) Should Philippine courts consider the child legitimate or illegitimate?
(ii) What country’s law will govern relationship of parents and child?

Answer: (i) The child should be considered ILLEGITIMATE, because such is the characterization under the
father’s national law.
(ii) Inasmuch as the child is illegitimate, the relationship of parents and child should be governed by
the national law of the mother.

RECAP : EFFECT OF CHANGE OF NATIONALITY

Property relations between spouses -- the change has no effect

Personal relations between spouse – ang change MAY effect (may na bisaya ha!)
Law governing legitimacy of child -- the change has no effect
Law governing relatonship between parent & child – ang change MAY effect (may na bisaya ha!)

Legitimation:
Legitimation is a remedy or process by means of which those who in fact were not born in wedlock, and should
therefore be ordinarily illegitimate children, are by fiction and upon compliance with certain requirements,
regarded by the law as LEGITIMATE, it being supposed that they were born when their parents were already
validly married.

Philippine Internal Rules on Legitimation and Recognition

(1) The child must be conceived and born outside wedlock of parents who at the time of the conception
(of the child) were not disqualified by any impediment to marry each other

(8) There must be a subsequent valid marriage (not prior) otherwise the child would already be legitimate,
and there would be no need for legitimation.

NOTE: If a marriage is voidable but subsequently annulled, the legitimation remains valid – for after all, a
voidable marriage is valid before it is annulled.

ADOPTION

Adoption is defined as the process of making a child whether related or not to the adopter, possess in general
the rights accorded to a legitimate child.

Conflicts Rules on Adoption

(1) Whether or not the status of adoption has been created depends on the national law of the
adopter.

(2). If the adoption takes place in the Philippines, our country’s procedural requisites must be complied
with in accordance with the theory of lex fori in procedural matter.

(9) In the Philippines, in accordance with ARTICLE 184 FC, the following, among others, are not given the
right to adopt:

A. The guardian with respect to the ward prior to the approval of the final accounts rendered upon the
termination of their guardianship relation;

B. Any person who has been convicted of a crime involving moral turpitude;

C. An alien, except:

a. a former Filipino citizen who seeks to adopt a relative by consanguinity;

b. one who seeks to adopt the legitimate child of his or her Filipino spouses; or
c. One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a
relative by consanguinity of the latter.

Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on
inter-country adoption as may be provided by law.

D. In the Philippines also, an alien with whose government the Republic of the Philippines has no
diplomatic relations may NOT be adopted.

E. The rights and obligations of the adopter and the adopted are governed by the national law of the
adopter.

PRINCIPLES:

1. CAPACITY TO ADOPT IS BASED ON THE NATIONAL LAW OF THE ADOPTER

 An alien may adopt if his national law allows him

 The alien must be qualified not only under his national law but also under Philippine law
 Under the new law and the family code, the alien must be qualified here in the Philippines and in his
country

2. THE QUESTION ON WHETHER THE STATUS OF ADOPTION HAS BEEN CREATED IS BASED ON THE NATIONAL
LAW OF THE ADOPTER

NG YAN VS COLLECTOR

A Chinese from mainland China came to the Philippines and became a resident here. He brought with him his
adopted child. The Collector questioned him how he adopted the child in China. Ng Yan replied that the
adoption in China is very simple, the adopter needs only to get the consent of the biological parents. The
Collector said that the adoption is not valid here in the Philippines because here, the adoption must be by
judicial process.

The SC allowed the child to enter into the Philippines because if his adoption is valid in China, it is also valid
here. Thus, the status of adoption will be governed by the adopter’s law.

3. ADOPTION DOES NOT CONFER CITIZENSHIP

 REASON: Citizenship is a privilege.

Can aliens adopt? (favorite BAR question)

In Family code, alien can adopt only if:

1. Formerly Filipino naturalized in another country; or

2. One married to Filipino (kinship)

FAMILY CODE RA 8552

ALIENS, AS A RULE, CANNOT ADOPT

EXCEPTIONS:

1. A former Filipino citizen who seeks to adopt a - relative by consanguinity OR affinity within the
relative by consanguinity 4th civil degree

2. One who seeks to adopt a legitimate child of

his/her Filipino spouse

TAKE NOTE: Legitimate child ONLY

3. One who is married to a Filipino citizen who - relative by consanguinity OR affinity within the
seeks to adopt jointly with him/her a relative by 4th civil degree
consanguinity of the latter
The basis here is KINSHIP.
1. A former Filipino who got naturalized in another
country.

2. Pure alien but married to a Filipino.

REPUBLIC vs. CA
227 SCRA 401

Facts: James Anthony Hughes, an American citizen is married to Lenita Mabuhay Hanghes, a Filipino,
who herself was later naturalized as an American citizen. On June 29, 1990, the spouses jointly filed a
petition with the Regional Trial Court of Angeles City to adopt the minor nephew and nieces of Lenita
 who had been living with the couple even prior to the filing of the petition. The minors, as well as their
parents, gave consent to the adoption.

The Regional Trial Court granted the petition. The Solicitor General promptly filed an appealed
contending that the spouses cannot adopt in the Philippines because they are disqualified.

Held: It is clear that James Anthony Hughes is not qualified to adopt. The Family Code is explicit:

Art. 184. The following may not adopt:

(3)an alien, except:
(a) former Filipino citizen who seeks to adopt a relative by consanguinity
(b) one who seeks to adopt the legitimate child of his or her Filipino spouse; or
(c) one who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a
relative by consanguinity of the latter.

While James Antony unquestionably is not permitted to adopt under any of the exceptional cases,
Lenita, however can qualify pursuant to paragraph 3(a). The problem in her case lies, instead, with
Article 185 of the Family Code, expressing as follows:

Art 185. Husband and wife must jointly adopt, except in the following cases:
(1) when one spouse seeks to adopt his own illegitimate child; or
(2) when one spouse seeks to adopt the legitimate child of the other.

Lenita may not thus adopt alone since Article 185 requires a joint adoption by the husband and a wife,
a condition that must be read together with Article 184.

The respondent court, in affirming the grant of adoption by the lower court, has theorized that James
Anthony should merely be considered a “nominal or formal party” in the proceedings. This view of the
appellate court cannot be sustained. Adoption creates a status that is closely assimilated to legitimate
paternity and filiations with corresponding rights and duties that necessarily flow from adoption, such
as but not necessarily confined to the exercise of parental authority, use of summon of the adopter by
the adopted, as well as support and success ional rights. These matters are obviously cannot be
considered inconsequential to the parties.

We are not unmindful of the possible benefits, particularly in this instance, that an adoption can bring
not so much for the prospective adopting parents as for the adopted children themselves. We also
realize that in proceedings of this nature, paramount considerations is given to the physical, moral,
social and intellectual welfare of the adopted for whom the law on adoption has in the first place been
designed. When, however, the law is clear and no other choice is given, we must obey is still full
mandate.

Sir de la Banda: He cannot adopt because he is not married to a Filipino citizen, he is only married to a former
Filipino citizen.

CHING LENG vs. GALANG

164 Phil. 1058
unreported
Facts: Ching Lee, a Chinese was granted Philippine citizenship on May 2, 1950 by the Court of First Instance of
Rizal. Later, his wife filed a petition for the adoption of his five illegitimate minor children. The adoption was
allowed. Ching Leng then requested the Commissioner of Immegration for the cancellation of the alien
certificates of registration of said minors on the theory that they were now Filipino citizens. Immigration
Commissioner Galang denied the request, citing DOJ Opinion No. 269, which filed that adoption does not affect
a change of nationality of the adopted. Ching Leng then filed this action to compel Galang to cancel said alien
certificates.

Held: The alien certificates of registration will not be cancelled because the adopted children have not become
Filipinos, in view of the following reasons.
 While generally an adopted has the rights of a legitimate child, still citizenship is not a night but a mere
privilege:
Granting that citizenship is a right, it is not enumerated as such as among the rights of legitimate
children, and therefore is not one of those alluded to in the Family Code:
Acquisition of citizenship partakes of the character of naturalization and this matter is regulated not by
the Family Code, but by special laws;
Under Section 15 of the Revised Naturalization Law, the words “minor children” refer generally to
legitimate children of the mother, for in the latter case, they follow their nationality not that of the illegitimate
father.
If adoption can confer Philippine nationality on the adopted, many people will resort to this method
rather than to the more difficult process of formal naturalization proceedings.

(Seledano)Toledaño vs. Rep

A, an American married a Filipino. B, the Filipino became an American citizen. When they visited Philippines and
wanted to adopt the niece of B.

Is B qualified to adopt?
Yes, because she was a former Filipino who seeks to adopt a relative.

Can A adopt?

No, not a former citizen, married to Filipino who seeks to adopt a legitimate child of Filipino spouse, and not
married to a Filipino who seeks to adopt jointly a relative of Filipino spouse.
Because under no. 3, B is not a Filipino citizen because she was already an American citizen.

The adoption is valid to B But not to A. Since Family Code requires joint adoption, the adoption is null and void.
RA 8552 (residence here is simple residence. Now, under RA 8552, based on residency, puwede na.)

REQUISITES BASED ON RESIDENCE:

1. He must be a resident of Philippines for 3 consecutive years prior to the filing of petition
 (simple residence lang ang kinahanglan)

2. He has the legal capacity to adopt under the laws of his own country

3. He maintains such residence until the decree of adoption is issued

4. His country allows the adopted to enter in the country of the adopter

CAN ONE ADOPT AN ALIEN?

FC – Yes, only if country of alien have diplomatic relations to Philippines

NCC
Child and Youth welfare code

New Law: No diplomatic relations anymore.

2 qualifications for an alien to be adopted under RA 8552:

1. He must be below 18 years old; and

2. He has been declared judicially and administratively allowed to be adopted

Situation::
A Filipino married to an Italian, Monique. Monique can’t bear child. Can they adopt 19 years old niece of
Monique?
NO. Niece is already 19. Not allowed under New Law.
Situation::
A German couple filed a petition of adoption in Makati RTC under Child and Youth Welfare Code. Subsequently,
FC suspended CYWC.

When filed for petition – eligible

When set for hearing – ineligible to adopt

Capacity to adopt is determined at the time of filing of petition and not at the time the order
was issued.

NOTE : That law that governs the successional rights of an adopted child is the national law of the deceased, not
the national law of the heir/ Similarly, the law that determines the capacity of the adopted child to inherit is
also the national law of the deceased.

Q: Should the Philippine courts recognize a foreign decree concerning adoption?

A: It would seem from our Rules of Court that there is nothing to prevent our tribunals from recognizing a
foreign decree of adoption so long as:
 the court granting the same was vested with jurisdiction;
 the judgment is meritorious and was arrived at impartially, and
 there was no collusion or extrinsic fraud.

Inter-Country Adoption

Inter-country adoption refers to the 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 is undertaken, and the
decree of adoption is issued outside the Philippines.

DOMESTIC ADOPTION ACT OF 1998

DEFINITION OF TERMS:

1. Voluntary committed child – is one whose parents knowingly and willingly relinquishes parental authority to
the Department of Social Welfare & Development (DSWD).
2. involuntary committed child – is one whose parents, known or unknown has been permanently and judicially
deprived of parental authority due to:
i) abandonment;
ii) substantial continuous, or repeated neglect;
iii) abuse; or
iv) incompetence to discharge parental responsibilities
3. Abandoned Child = one who has no proper parental care or guardianship or whose parents’ has deserted
him/her for a period of at least 6 continuous months and has been judicially declared as such.
5. Supervised trial custody = a period of time within which a social worker oversees the adjustment and
emotional readiness by both adopter and adoptee in stabilizing their filial relationships.

WHO MAY ADOPT

1. Filipino Citizens
: of legal age,
: in possession of full civil capacity an legal rights,
: of good moral character
: has not been convicted of any crime involving moral turpitude
: emotionally and psychologically capable of caring for children
: who is in a position to support and care for his/her children in keeping with the
means of the family,
: at least 16 years older than the adoptee

2. Aliens in addition to the above requirements

: the foreign country has diplomatic relations with Republic of the Philippines.
 : he has been living in the Philippines for at least 3 continuous years prior to the filing of the application for
adoption, and maintains such residence until the adoption decree is entered
: he has been certified by his diplomatic office that he the legal capacity to adopt in his country
: his government allows the adoptee to enter his country as his adopted child

3. Guardian with respect to the ward after the termination of the guardianship and clearance of his financial
accountabilities

4. Husband and wife, except

 if one spouse seeks to adopt the legitimate child of the other,
 if one spouse seeks to adopt his own illegitimate child, with the consent of the other spouse; or
 if the spouses are legally separated from each other

WHO MAY BE ADOPTED

 any person below 18 years old who has been administratively or judicially declared available for
adoption;
 the legitimate child of one spouse by the other spouse;
 an illegitimate child by a qualified adopter to improve his status to that of legitimacy
 a person of legal age if, prior to the adoption, said person has been consistently considered and treated
by the adopter as his own child since minority;
 a child whose adoption has been previously rescinded; or
 a child biological or adoptive parents have died

CONSENT WHEN NECESSARY

 the adoptee, if 10 years of age or over,

 the biological parents of the child, if known the legal guardian, or the proper government
instrumentality which has legal custody of the child;
 the legitimate and adopted children, 10 years of age or over, of the adopter and adoptee if any;
 the illegitimate children, 10 years of age or over, of the adopter if living with said adopter and the
latter’s spouse if any and
 the spouse, if any of the person adopting or to be adopted.

PROCEDURE:

1. biological parents are properly counseled to prevent them from making hurried decisions
2. Case study made by a licensed social worker of DSWD on the adoptee, his biological parents, as
well as the adopter.

 the concerned social worker shall confirm with the Civil Registry the real identity and registered name
of the adoptee. If the adoptee is not registered, it is the duty of the social worker to register him.
 The case study involves:
: the child is legally available for adoption
: the documents to support this fact are valid and authentic
: the genuine intentions of the adoptee
: the adoption is for the best of the child

3. Publication and hearing on the petition for adoption, basing on the case study
4. Supervised trial custody period for at least 6 months, which may be reduced by the court motu
propio or on motion of any party’s. During said period, temporary parental authority shall be
vested in the adopter.
5. When the court is finally convinced that the adoption is for the best interest of the child and no
opposition has been interposed, a decree shall be issued which shall be effective as of the date of
filing of the petition
6. Cancellation of the original record of birth in the Civil Registry.

EFFECTS OF ADOPTION
 All legal ties between the biological parents and the adoptee shall be severed and the same shall then
be vested on the adopter.
The adoptee shall be the legitimate child of the adopter for all legal intents and purpose
Succession – the adopter and the adoptee shall have reciprocal rights of succession whithout
distinction from legitimate filiation.

REGISSION OF ADOPTION

(upon petition of the adoptee assistance of the DSWD if the adoptee is a minor of legally
incapacitated)

Ground:
- repeated physical and verbal maltreatment by the adopter despite having undergone counseling;
- attempt of the life of the adoptee
- sexual assault of violence;
- abandonment and failure to comply with parental obligations

Effects:

i parental authority shall be restored to the biological parents, if known, or to the legal custody of the
DSWD, if the adoptee is a minor or legally incapacitated;
ii reciprocal rights and obligations of the adopter and the adoptee to each other shall be extinguished;
iii the Civil Registrar shall cancel the amended certificate of birth and restore the adoptee’s original
birth certificate.
iv. successional right shall revert to its status prior to adoption
v. if criminal acts are involved, penalties under the Penal Code shall be imposed

INTER COUNTRY ADOPTION ACT

DEFINITION OF TERMS
Inter-country adoption – refers to the socio-legal process of adopting a Filipino child by a foreigner or a Filipino
citizen residing abroad where the petition is filed, the supervise trial custody is undertaken, and the decree of
adoption is issued outside the Philippines.

Matching – the judicious pairing of the adoptive child and the applicant to promote a mutually satisfying
parent-child relationship

DOCUMENTS SUBMITTED TOGETHER WITH PETITION

 child study;
 birth certificate/founding certificate;
 deed of voluntary commitment/decree of abandonment/death certificate of parent;
 medical evaluation/history
 psychological evaluation; and
 recent photo of the child

QUALIFICATIONS OF THE ADOPTER

 at least 27 years old

 at least 16 years older than the child to be adopted
 if married his spouse must jointly file for the adoption;
 has full legal capacity to act;
 has not been convicted of a crime involving moral turpitude;
 is eligible to adopt under his national law;
 is in a position to provide the proper care and support;
 agrees to uphold the basic rights of the child as embodied under Philippine laws and the UN
Conventions;
 comes from a country with whom the Philippines has diplomatic relations.
ILLEGAL ADOPTIONS

a. consent for an adoption was acquired through or attended by coercion, fraud, improper material
inducement;
b. there is no authority from the Inter-country Adoption Board to effect the adoption;
c. the procedures and safeguards placed under the law for adoption were not complied with; and,
e. the child to be adopted is subjected to, or exposed to danger, abuse and exploitation.

Sec. 4 The Inter-country Adoption Board – There is hereby created the Inter-Country Adoption Board, herein
referred to as the Board to act as the central authority in matters relating to inter-country adoption. It shall act
as the policy-making body for purposes of carrying out the provisions of this act, in consultation and
coordination with the Department, the different child-care and placement agencies, adoptive agencies, as well
as non-governmental organizations engaged in child care and placement activities.

Sec. 8 Who may be Adopted. Only a legally free=-child may be the subject of inter-country adoption.

Legally –free child – means a child who has been voluntarily or involuntarily committed to the Department of
Social Welfare and Development of the Republic of the Philippines, in accordance with PD

Sec. 9. Who may Adopt. – Any alien or a Filipino citizen permanently residing abroad may file an application for
inter-country adoption of a Filipino child is he/she.
a. is at least twenty-seven (27) years of age and at least sixteen (`16 ) years older than the child to be
adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the
spouse of such parent;
b. if married, his/her spouse must jointly file for the adoption;
c. has the capacity to act and assume all rights and responsibilities of parental authority under his
national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country;
d. has not been convicted of a crime involving moral turpitude;
e. is eligible to adopt under his/her national law;
f. is in a position to provide the proper care and support and to give the necessary moral values and
example to all his children, including the child to be adopted;
g. agrees to uphold the basic rights of the child as embodied under Philippine laws, the UN Convention
on the Rights of the Child, and to abide by the
h. comes from a country with whom the Philippines has diplomatic relations and whose government
maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national
laws; and
i. possesses all the qualification and none of the disqualification provided herein and in other
applicable Philippine laws.

Sec. 10. Where to File Application – An application to adopt a Filipino child shall be filed either with the
Philippine Regional Trial Court having jurisdiction over the child, or with the Board, through and intermediate
agency, whether governmental or an authorized and accredited agency, in the country of the prospective
adoptive parents.

REQUISITES BEFORE AN ADOPTION CAN BE INTER-COUNTRY:

a. Adoption by an alien or a Filipino who resides abroad;

b. The petition is filed abroad;

c. Trial custody is undertaken abroad;

d. The decree of adoption is issued abroad

Administrative Proceedings in the Philippines:

a. File a petition with the Inter-Country Adoption Board (ICAB);

 b. Matching Stage;
 Child is matched with a particular applicant

c. The Filipino residing abroad will fetch the child from the Philippines;

d. Trial Custody
 Done in the foreign country

e. Filing of the Petition with the foreign court

 Only thing that will take place in the Philippines

Who can be Adopted?

1. Below 15 years old

2. The child must be legally free

Means the child is committed with the DSWD:

a. Voluntary

b. Involuntary (youthful offenders)

BAR QUESTIONS ON ADOPTION

1989
Question:

Felix, a Filipino doctor of Medicine, married Monique, an Italian nurse, in 1985. It was later discovered that
Monique couldn’t bear a child so that the couple decided to adopt one. Can they jointly adopt Marie, the 19-
year old niece of Monique? Explain.

Answer:
Since the child to be adopted is an Italian citizen, the joint adoption cannot be effected. Had the child been a
relative by consanguinity of the Filipino Spouse, the adoption would have been valid under the Philippine Law.

2001
Question:

A German couple filed a petition for adoption of a minor Filipino child with the RTC of Makati under the
provisions of the Child and Youth Welfare Code which allowed aliens to adopt. Before the petition could be
heard, the Family code which repealed the Child and Youth Welfare Code, came into effect. Consequently, the
SolGen filed a motion to dismiss the petition, on the ground that the Family Code prohibits aliens from
adopting.

If you were the judge, how will you rule on the motion?

Answer:

The motion to dismiss the petition for adoption should be denied. The law that should govern the action is the
law in force at the time of filing of the petition. At that time, it was the Child and Youth Welfare Code that was
in effect, not the Family Code. Petitioners have already acquired a vested right on their qualification to adopt
which cannot be taken away by the Family code (Republic vs. Miller G.R. No. 125935, April 21, 1999; citing
Republic vs. Court of Appeals, 205 SCRA 356)

Alternative Anwer:
The motion has to be granted. The New Law shall govern their qualification to adopt and under the new law,
the German couple is disqualified from adopting. They cannot claim that they have already acquired a vested
right because adoption is not a right but a mere privilege. No one acquires a vested right on a privilege.

NOTE: If the examinee based his answer on the current law, RA 8552, his answer should be considered correct.
This question is based on the repealed provision of the Family Code on Adoption. Gets????? Hehehehe

Guardianship
There are generally three kinds of guardians:
 guardians over the person;
 guardians over the property; and
 guardians over the property, and
 general guardians
From another viewpoint, there are also:
 domiciliary guardians; and
 ancillary guardians

GUARDIANSHIP OF MINOR ROY REGINALD LELINA

101 Phil 762

Facts: The Court of First Instance of La Union, in a special proceeding appointed Severo Viloria the guardian of
Roy Reginald Lelina, a minor, beneficiary of arrears in pay, insurance and other benefits from the US Veterans
Administration due to the death of his father. Supposedly a member of the US Armed Forces. A few years later,
a motion was filed by the Administrator of Veterans Affairs seeking a refund of sums allegedly wrongfully paid
to the minor, its records in Washington showing that the father had no guerilla or other service in the Armed
Forces of the United States. To the opposition of the guardian who submitted evidence of the father’s service
records. The Administrators replied that under the US Code Annotated (Tit 38, Sec. 808) his decision is final and
conclusive and that, therefore, the Philippine court was without jurisdiction.

Held: Clearly, the Philippine court has jurisdiction. In all questions of jurisdiction, it is the court of the forum
that determines whether or not it possesses jurisdiction. To apply a foreign law on this matter would be
infringe on our national sovereignty. While it may be true that the provisions of the US Code make the decision
of the US Veterans’ Administrator final and conclusive when made on claims property submitted to him for
resolution, still these provisions are not applicable to cases, where, as the one at bar, the Administrator is not
acting as a judge but as litigant. There is a great difference between actions against the Administrator which
must be filed strictly in accordance with the conditions imposed by the Veterans Act. Including the exclusive
review by US courts) and those actions where the Veterans Administrator seeks a remedy from the Philippine
courts and submits to their jurisdiction by filing an action therein. If the findings of the Veterans Administrator,
in actions where he is a party, are made conclusive on Philippine courts, this in effect would deprive out
tribunals of judicial discretion and render them mere subordinate instrumentalities of the Veterans
Administrator.

CHAPTER XIX

REAL AND PERSONAL PROPERTIES

Synopsis of Conflicts on Property

NOTE: nang gawas ni sa among exam, eg vessels 

FACTUAL SITUATION POINT OF CONTACT

(1) Real Property – extrinsic and intrinsic validity of (1) lex rei sitae
 alienations,
 transfers,
 mortgages.
 Capacity of parties
 Interpretation of documents,
 Effects of ownership,
 Co-ownership
  Accession,
 Usufruct,
 Lease
 Easement,
 Police domain
 Taxation
 Quieting of title
 Registration and
 prescription
Exceptions:
Exceptions: a. national law of decedent (Art. 16, par 2, Civil
a. successional rights Code)
b. national law of decedent (Art. 1039, Civil Code)
b. capacity to succeed
c. the law intended will be the proper law of the
contract (lex loci voluntatis or lex loci intentionis)
c. contracts involving real
property but which do not
deal with the title thereto d. the principal contract (usually loan is governed
by the proper law of the contract (lex loci
d. contracts where the real voluntatis or the lex loci intentionis)
property is given as security
NOTE: The mortgage itself however is governed by
the lex rei sitae. There is a possibility that the
principal contract is valid but the mortgage is void,
or it may be the other way around. If the principal
contract is void the mortgage also be void (for lack
of proper cause or consideration), although by
itself the mortgage could have been valid.

(2) Tangible Personal Property (Chooses in (2)

possession)

a. in general (see things enumerated in No. 1) a. lex rei sitae (Art. 16, par. 1, Civil Code)

Exceptions – same as those for real property Exceptions – same as those for real property
except that in the example concerning the
mortgage the same must be changed to a pledge
of personal property

b.
1. law of the flag (or in some cases of the place of
b. means of transportation registry)
1. vessels
2. law of the depot or resting place

2. other means c.

c. things in transitu (these things have a changing

status because they move)
1. loss, destruction, deterioration
2. validity & effect of the seizure of the
goods
1. law of the destination (Art. 1753,
Civil Code)
2. locus regit actum (where seized) – because said
place is their temporary situs
3. lex loci voluntatis or lex loci intentionis because
here there is a contract
 2. disposition or alienation of the goods
3. Intangible Personal Property (Choses in action)
(a) recovery of debts or involuntary assignment of
debts (garnishment)
(b) voluntary assignment
(c) taxation of debts
(d) administration of debts
(e) negotiability or non-negotiability of
instrument (bill of exchange, for example)
(f) validity of transfer, delivery or negotiation of the
instrument
(g) effect on a corporation of the sale of corporate
shares
(h) effect between the parties of the sale of
corporate shares
(i) taxation on the dividends of corporate shares
(j) taxation on the income from sale of corporate
shares’
(k) franchises
(l) goodwill of a business and taxation thereon
(m) patents, copyrights, trademarks, trade name
(3)
a. where debtor may be effectively served with
summons (usually the domicile)
b. lex loci voluntatis or lex loci intentionis (proper
law of the contract)
Other Theories:
1. national law of the debtor or creditor
2. domicile of the debtor or the
creditor
3. lex loci celebrationis
4. lex loci solutions
c. domicile of creditor
d. lex situs of assets of the debtor (for these assets
can be held liable for the payment of the debts)
e. the tighten bodied in the instrument (for
an example, in the case of a Swedish bill of exchange,
Swedish law determines its negotiability)
f. in general, situs of the instrument at the time of
transfer, delivery or negotiation
g. law of the place incorporation
h. lex loci voluntatis or lex loci intentionis (proper
law of the contract) – for this is really a contract;
usually, this is the place where the certificate is
delivered
i. law of the place of incorporation
j. law of the place where the sale was
consummated
k. law of the place that granted them
l. law of the place where the business is carried on
m. in the absence of a treaty, they are protected
only by the state that granted them
NOTE: foreigners may sue for infringement of
trademarks and trade name in the Philippines only
if Filipinos are granted reciprocal concessions in
the state of the foreigners
REAL AND PERSONAL PROPERTY

 Apply lex situs/les rei sitae

 Subject to the law of the country where they are located

 Paras: Almost all things (real and personal) are subject to such law

1. Extrinsic validity of contracts - Relate to Article 17 (exception, real property)

2. Intrinsic validity of contracts - Substantive validity of contracts

3. Capacity of the parties - Exception to the nationality theory

4. Validity of encumbrance - e.g. validity of a lease, mortgage, foreclosure proceedings

5. Technical interpretation of terms - Only good if the property is located in the Philippines.

EXCEPTIONS : matters not covered

1. Successional rights
 Covered by the law of the decedent

2. Capacity to succeed
e.g. share of an adopted child – national law will apply

3. Contracts involving property which do not deal with title to such property – lex loci voluntatis/
intentionis will apply

4. When property is given as security, the principal will not be governed by lex situs – lex loci
voluntatis/ intentionis will apply

GENERAL RULE: LEX SITUS WILL APPLY TO REAL AND PERSONAL PROPERTY.

EXCEPTIONS:

1. When it comes to moving objects

e.g. means of transportations – vessels

 Goods in transitu – governed by the law of the place of destination

2. Intellectual property – Covered by GATT

 No physical existence
e.g. copyrights
trademarks
trade name

Problem: A Japanese donated in Germany in favor of a Filipino a parcel of land in the Philippines. Indicate:
(a) the law of which country governs the formalities of the donation. Why?
(b) the law of which country governs the capacity of the Japanese to make the alienation?
(c) the law of which country governs the intrinsic validity of the donation. Why?

Answer:
(a) The law of the Philippines. The doctrine enunciated in Article 17 (1) of the Civil Code does not apply because
the transaction relates to land and must, therefore, be governed by the law of the place where the land is
situated.
(b) The law of the Philippines. Article 15 yields, precisely because the subject matter is land.

(c) The law of the Philippines. The general rule of lex loci voluntatis yields because the subject matter is land.

Problem: In Manila, a German, owning land in Switzerland, agreed to pay as salary to a Japanese employee,
10% of the annual produce of the land in Switzerland, on condition that said land would not be expropriated by
the Swiss authorities. It was the mutual desire of both parties that the stipulation of their employment contract
should be governed by Philippines laws. What governs the extrinsic and intrinsic validity of their agreement?

Answer: The extrinsic validity is governed by Philippine law because the contract was celebrated in our country.
The intrinsic validity should likewise be governed by Philippine law for this was likewise the lex loci voluntatis.
The fact that the contract involved land located in Switzerland is of no moment, for the agreement does not
concern itself with any transfer of title thereto, at least as between the parties. The fact that this case deals
with foreign land in a way is merely incidental.

Problem: Two Frenchmen in France entered into a contract loan, with Philippine land as security by way of
mortgage. Let us assume that in France, a contract of loan to be valid must be in a public instrument; in the
Philippines, it does not have to be. Now then, if a contract of loan and the contract of mortgage are in a private
instrument, can the mortgage be enforced in the Philippines?

Answer: Since the contract of loan is in a private instrument and therefore void in France (which is the proper
law of the contract of loan); the contract of mortgage is rendered automatically also void in our country. (for
when a principal contract fails, all accessory obligations are also considered void. And this is true despite the
fact that the mortgage standing by itself would have been deemed valid by Philippine laws.

Personal Property

The doctrine of lex situs, with reference to personal property, extends in general to all relations already
adverted to in the case of real property. Similarly, the exceptions to the rule in the case of immovable apply to
problems in personal property.

Kinds of personal Property

(1) Chose in action – is a thing in action and is the right of bringing an action or right to recover a debt or
money.

This means any or all of the following:

 right of proceeding in a court of law to procure payment of sum money;

 a personal right not reduced into possession, but recoverable by a suit at law;
 a right to personal things the owner has not the possession but merely a right of action for their
possession;
 includes all personal chattels which are not in possession, and all property in action which depends entirely
on contracts express or implied;
 a right to receive or recover a debt, demand or damages on a cause of action ex contracts or for a tort or
omission of a duty

 For the recovery of debts or for involuntary assignment of the debts, the proper point of contract is the
place where the debtor may be effectively served with summons

Problem: A German, domiciled in California, owes a Filipino in Manila an amount of money. Generally, where
should the Filipino sue for the recovery of the debt?

Answer: Generally, suit must be instituted in California because the debtor is domiciled in the latter country.
This is a convenient and practical solution.

Problem: A Filipino is the creditor of a German domiciled in Manila. The credit is the result of a business
transaction entered into in Manila. Payment is also stipulated to be made in Manila. If the Filipino, while
vacationing in Japan, assigns his credit in favor of a Russian, also domiciled in Manila, what law will govern?
Answer: The proper law that should control the validity and effectiveness of the assignment should be
Philippine law, for it is evident that is this law that the parties intended to be applicable. After all, it is clear in
the problem that Manila is the place which has the most substantial connection with the assignment.

(2) Choses in possession - is a personal thing of which one has possession

Choses in possession that usually move naturally have a changing situs.

Vessels, in view of their inherent movability, are governed by the law of the flag in many states; in
others, the law of the place of registry.

Problem: If in contract, certain limitations of ability as to the negligence on the part of carrier are agreed upon,
can the carrier invoke this clause of the contract at the point of destination the laws thereof as well as those of
the place, where the contract was made permitting such limitations, if the damage occurred while the
merchandise was in transit in a state which did not recognize the validity of such stipulation?

Answer: Yes, the carrier can invoke the clause in question. It does not matter that in the state where the
damage occurred the stipulation is not recognized. What is important is the recognition given to the stipulation
at the place of destination. Article 1753 of the Civil Code provides that the law of the country to which the
goods are to be goods are to be transported shall govern the liability of the common carrier for their loss
deterioration.

If in the course of the voyage, the destination is changed. It is evident that the law of the new
destination applies. If on the other on hand the goods were slipped, they were never in transitu.

BAR questions

1988
Questions:

a. Pursuant to private international law or conflict of laws, to what law is real property as well as
personal property subject? Are there any exceptions to the rule? If there are, name them.

b. What are the four aspects of succession which are governed by the national law of the
decedent if he is a foreigner?

Answers:

a. Real property as well as personal property is subject to the law of the country where it is
situated (Article 16, par. 1 CC). There are, however, two exceptions to this rule. They are:

i. Under the second paragraph of Article 16, which declares that testamentary and
intestate succession, both with respect to the order of succession, the amount
of successional rights and the intrinsic validity of testamentary provisions shall
be regulated by the national law of the decedent; and

ii. Under Number 2, Article 124, which declares that if the husband is a foreigner
and the wife is a Filipino, their property relations shall be governed by the
husband’s national law, without prejudice to the provisions of the Civil Code with
regard to immovable property.

b. The four aspects of succession which are governed by the national law of the decedent if
he is a foreigner are:

i. The order of succession;

ii. The amount of successional rights;

 iii. The intrinsic validity of testamentary provisions; and

iv. The capacity to succeed.

1995 # 2
Question:

While in Afghanistan, a Japanese by the name of Sato sold to Ramoncito, a Filipino, a parcel of land
situated in the Philippines which Sato inherited from his Filipino mother.

1. What law governs the formality in the execution of the contract of sale? Explain your
answer and give its legal basis.

2. What law governs the capacity of the Japanese to sell the land? Explain your answer
and give its legal basis.

3. What law governs the capacity of the Filipino to buy the land? Explain your answer
and give its legal basis.

Answer to Number 1:

Under Article 16, par. 1, NCC, real property is subject to the law of the country where it is situated. Since the
property is situated in the Philippines, Philippine law applies. The rule of lex rei sitae in Article 16 prevails over
lex loci contractus in Article 17 of the NCC.

Alternative answer: Afghanistan law governs the formal requirements of the contract since the execution
is in Afghanistan. Article 17 of the Civil Code provides that 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. However, if
the contract was executed before the diplomatic or consular officials of the Republic of the Philippines in
Afghanistan, Philippine law will apply.

Answer to Number 2:

Japanese Law governs the capacity of the Japanese to sell the land being his personal law on the basis of an
interpretation of article 15, NCC.

Alternative Answers:

a. Since capacity to contract is governed by the personal law of an individual, the

Japanese seller’s capacity should be governed either by his national law (Japanese
law) or by the law of his domicile, depending upon whether Japan follows the
nationality or domiciliary theory of personal law for its citizens.

b. Philippine law governs the capacity of the Japanese owner in selling the land.
While as a general rule capacity of persons is governed by the law of his
nationality, capacity concerning transactions involving property is an exception.
Under article 16 of the NCC, the capacity of persons in transactions involving title
to property is governed by the law of the country where the property is situated.
Since the property is in the Philippines, Philippine law governs the capacity of the
seller.

Answer to Number 3:

Philippine law governs the capacity of the Filipino to buy the land. In addition to the principle of lex rei sitae
given above, Article 15 of the NCC specifically provides that Philippine laws relating to legal capacity of persons
are binding upon citizens of the Philippines no matter where they are.

CHAPTER XX
 WILLS, SUCCESSION, AND ADMINISTRATION
OUTLINE:
1. EXTRINSIC VALIDITY
2. INTRINSIC VALIDITY
3. REVOCATION
Synopsis of Conflicts Rules
FACTUAL SITUATION
(1) EXTRINSIC VALIDITY OF WILLS
a. made by an alien abroad
b. made by a Filipino abroad
c. made by an alien in the
Philippines
(2) EXTRINSIC VALIDITY OF JOINT WILLS (made in
the same instrument)
a. made by Filipinos abroad
b. made by aliens abroad
c. made by aliens in the
Philippines
(3) INTRINSIC VALIDITY OF WILLS (including order
of succession, amount of successional rights, &
intrinsic validity of the provisions of the will)
(4) CAPACITY TO SUCCEED
(5) REVOCATION OF WILLS
(a) If done IN the Philippines
(b) If done OUTSIDE the Philippines
(1) by a NON-DOMICILIARY
(2) by a DOMICILIARY of the Philippines
(6) PROBATE OF WILLS MADE ABROAD
POINT OF CONTRACT
(1)
a. lex nationalii OR lex domicilii OR Philippine law
(Art 816, Civil Code), OR lex loci celebrationis (Art
17, par 1, Civil Code)
b. lex nationalii OR lex loci celebrationis (Art 815,
Civil Code)
c. lex nationali OR lex loci celebrationis (Art 817,
Civil Code)
(2)
a. lex nationalii (VOID even if valid where made –
Art 819 NCC)
b. valid if valid according to lex nationalii, or lex
domicilii or lex loci celebrationis (see 1a & Art. 819
NCC)
c. lex loci celebrationis therefore void even if
apparently allowed by Art. 817 – because the
prohibition on joint wills is a clear expression of
our public policy.
(3) lex nationalii of the deceased – regardless of
the LOCATION & NATURE of the property (Art. 16,
par. 2)
(4) lex nationalii of the deceased – not of the heir
(Art. 1039 NCC)
(5)
(a) lex loci actus (of the revocation – Art 829 NCC)
(b)
(1) lex loci celebrationis (of the making of the
will, not the revocation), Or lex domicilii (Art. 829)
(2) lex domicilii (Philippine Law) OR lex loci actus
(of the Revocation) Art. 17 NCC
(6)
 (a) If not yet probated abroad
(a) lex fori of the Philippines applies as to
PROCEDURAL aspects – that is – the will must be
fully probated here & due execution must be
shown[ see (1)]
(b) If already probated abroad
(b) lex fori of the Philippines again applies as to
the procedural aspects – that is, the will must
ALSO be probated here – but instead of proving
due execution, generally it is enough to ask for the
enforcement here of the foreign judgment on the
probate abroad.

(7) EXECUTORS AND ADMINISTRATORS (7)

(a) where appointed (a) place where domiciled at death or in case of

non-domiciliary, where assets are found

(b) co-extensive with the qualifying or the

(b) powers appointing court –that is- powers may exercised
only within the territorial jurisdiction of the court
concerned.

NOTE: these rules also apply to principal,

domiciliary administrators and receiver even in
non-succession cases.

EXTRINSIC VALIDITY OF WILLS :

Important Provisions:

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.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the
Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their
execution.

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order,
public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country. (

Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established
by the law of the country in which he may be. Such will may be probated in the Philippines. (n)

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities
prescribed by the law of the place in which he resides, or according to the formalities observed in his country,
or in conformity with those which this Code prescribes. (n)

Art. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in
accordance with the law of the country of which he is a citizen or subject, and which might be proved and
allowed by the law of his own country, shall have the same effect as if executed according to the laws of the
Philippines. (n)

Extrinsic Validity Deals with the form and solemnitities in the making of a will including:

1. age and capacity of the testator to make the will;

 2. number of witness;
3. form of the will

(i) oral;
(ii) private instrument
(iii) public instrument

POINT OF CONTACT:

A. Made by Filipino/Abroad

1. Philippine Law

2. Place of Making (except: joint wills, consular wills)

B. Made by Aliens/ Philippines

1. Philippine Law

2. National Law

C. Made by Alien/Abroad

1. Philippine Law

2. Place of Making

3. National Law

4. Domicile

Take Note: In extrinsic validity of wills, AGE AND CAPACITY of the testator are extrinsic. However, on
other items, age and capacity are regarded as intrinsic.

BAR Questions

1998 # 1
Question:

Juan is a Filipino citizen residing in Tokyo, Japan. State what law govern:

a. His successional rights as regards his deceased Filipino father’s property in Texas,
U.S.A..

b. The extrinsic validity of the last will and testament which Juan executed while
sojourning in Switzerland.

c. The intrinsic validity of said will

Answers:

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

Another answer:
 Juan’s sucessional rights are governed by Philippine law, pursuant to Article 1039 and the second
paragraph of Article 16, both of the Civil Code. Article 1039, Civil Code, provides that capacity to
succeed shall be governed by the “law of the nation” of the decedent, i.e., his national law. Article 16
provides in paragraph two that the amount of successional rights, order of succession and intrinsic
validity of testamentary succession shall be governed by the “national law” of the decedent who is
identified as a Filipino in the present problem.

b. The extrinsic validity of Juan’s will is governed by:

i. Swiss law, it being the law where the will was made (Article 17, 1 st paragraph, Civil
Code); OR

ii. Philippine Law, by implication from the provisions of Article 816, Civil Code which
allows even an alien who is abroad to make a will in conformity with our Civil Code.

c. The intrinsic validity of his will is governed by Philippine law, it being his national law. (Article
16, Civil Code).

2000 # 3 (not answered by law)

Question:

Manuel, a Filipino, and his American wife Eleonor executed a JOINT Will in Boston, Massachusetts
when they were residing in said city. The law of Massachusetts allows the execution of joint will. Shortly
thereafter, Eleonor died. Can the said will be probated in the Philippine for the settlement of her estate?

Answer:

YES, the will may be probated in the Philippines insofar as the estate of Eleonor is concerned. While
the Civil code prohibits the execution of joint wills here and abroad, such prohibition applies only to Filipinos.
Hence, the joint will which is valid where executed is valid in the Philippines but only with respect to Eleonor.
Under Article 819, it is void with respect to Manuel whose joint will remains void in the Philippines despite
being valid where executed.

Alternative Answer: The will cannot probated in the Philippines, even though valid where executed,
because it is prohibited under Article 818 of the Civil Code, and declared void under Article 819. The prohibition
should apply even to the American wife because the joint will is offensive to public policy. Moreover, it is a
single juridical act which cannot be valid as to one testator and void as to the other.

Extrinsic Validity of Wills includes:

a. Age and Capacity of Testator – here, in other matters, not considered as extrinsic but intrinsic
like marriage

b. Number of witnesses

c. Forms of the will (either oral or written)

 If Filipino and alien execute a joint will abroad: the alien died. Will is now being probated:
Will is valid – by analogy, apply Paras’ commentary on marriage if aliens country valid also as
to Filipino
It is alien’s will (part/estate) being probated

INTRINSIC VALIDITY OF WILLS :

Impotant Provisions :
Art. 16. Real property as well as personal property is subject to the law of the country where it is stipulated.

However, intestate and testamentary successions, both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property may be found.

Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

What are the matters covered by intrinsic validity?

1. Order of succession;

2. Amount of successional rights;

3. Intrinsic validity of the provisions of the will;

4. Capacity to succeed

 (all these 4 items, national law of the decedent will apply)

 Is it possible that testator will say in his will that the intrinsic validity of the will will be governed
by some other legal system?

Answer: NO. Must be governed by national law. – Brimo Case. only possible exception is
when Renvoi comes to play.

Note: memorize Article 16, paragraph 2

 You cannot provide in your will that other countries’ law will apply other than your law. Except
if renvoi will apply.

MICIANO vs. BRIMO

50 Phil. 867

If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the
herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as
expressed, prevented from receiving his legacy.

Facts: Joseph Brimo, a Turkish subject, executed a will which says in part:
“I likewise desire to state that although by law, I am a Turkish citizen, this citizenship having been
conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand,
having resided for a considerable length of time in the Philippine Islands where I succeeded in
acquiring all of the property that I now posses, it is my wish that the distribution of my property and
everything in connection with this, my will, be made and disposed of in accordance with the laws in
force in the Philippine Islands, requesting all my relatives to respect this wish, otherwise, I annul and
cancel beforehand whatever disposition is found in this will favorable to the person or persons who fail
to comply with this request.”

Andre Brimo, one of the brothers of the deceased, opposed the scheme of partition. One of the errors
he assigned on appeal is his exclusion as a legatee due to his stand that Turkish law, not Philippine law,
govern the disposition of the state. He also contended that the testamentary dispositions did not
conform to Turkish laws.

Held: The institution of legatees in this will is conditional and the condition is that the instituted
legatees must respect the testator’s will to distribute his property, not in accordance with the laws of
his nationality, but in accordance with the laws of the Philippines.
 The fact however is that the said condition is void, for Article 792 of the Civil Code provides the
following:

Impossible conditions and those contrary to law or good morals shall be considered as not imposed
and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator provide
otherwise.

And said condition is contrary to law because it expressly ignores the testators national law when
according to Article 16 of the Civil Code, such national law of the testator is the one to govern his
testamentary disposition. Said condition then, in the light of the legal provisions above cited as
considered unwritten, and the institution of legatees in said will is unconditional and consequently
valid and effective even as to the herein oppositor.

It results from all this that the second clause of the will regarding the law which shall govern it, and the
condition imposed upon the legatees, is null and void, being contrary to law.

Theories on the Proper Law for Transmission of Successional Rights

There are at least two theories on the proper law for the transmission of successional rights:
(a) Unitary or Single System (one law governs the transmission of both real and personal property
(b) Split pr Scission System (one law governs the real and personal property while another determines
successional rights to personal property.

It is clear under Article 16(2) of the Civil Code that the theory prevailing in this jurisdiction is the unitary system,
that is whether the property be real or personal, only the national law of the deceased governs for the laws
says whatever may be the nature of the property and regardless of the country wherein said property may be
found.

VDA. Perez vs. Tolete

232 SCRA 722 (1994)

Filipino spouses practiced medicine in New York. They died in NY. Made will in my. Probated in NY. Properties in
Philippines. Allowed in New York and probate. May the property be distributed in Philippines in accordance
with the probate done in NY?
Yes. But it must be reprobated here in the Philippines.

VDA DE PEREZ vs. TOLETE

232 SCRA 723

Facts: Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens,
established a successful medical practice in New York, USA. On August 23, 1979. Dr. Cunanan executed
a last will and testament, bequeathing to his wife”:all the remainder of his real and personal property
at the time of his death “wheresover situated”. Four days later, on August 27, Dr. Evelyn P. Cunanan
executed her own last will and testament containing the same provisions as that of the will of her
husband.

On January 9, 1982 Dr. Cunanan and his family perished when they were trapped by fire that gutted
then home. Thereafter, Dr. Rafel G. Cunanan as trustee and substitute executor of the two wills, fitted
separate proceedings for the probate thereof with the Surrogate Court of the Country of Onondaga,
New York. On April 7, these two wills were admitted to probate and letters testamentary were issued
in his favor.

On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunana, filed with the
Regional Trial Court of Bulacan a petition for the reprobate of the two wills ancillary to the probate
proceedings in New York, she also asked that she appointed special administrator of the estate of the
deceased couple consisting primarily of a farm land in San Miguel, Bulacan.
 The trial court denied the petition, holding among others that to allow the probate of the two wills in a
single proceeding would be a departure from the typical and established mode of probate where one
petition takes care of one will”. He pointed out that even in New York “where wills in question were
first submitted for probate, they ere death with in separate wills of two or more different persons even
if they are husband and wife cannot be undertaken in a single petition.”

Held: There is merit in petitioner’s insistence that the separate wills of the Cunanan spouses should be
probated jointly. Respondent Judges view that the Rules on allowance of wills is couched in singular
terms and therefore should be interpreted to mean that there should be separate probate proceedings
for the wills of the Cunanan spouses is too literal and simplistic an approach.

What the law expressly prohibits is the making of joint will either for the testators’ reciprocal benefit or
for the benefit of a third person. In the case at bench, the Cunanan spouses executed separate will.
Since the two wills contain essentially the same provisions and pertain to property which in all
probability are conjugal in nature, practical considerations dictate their joint probate. As this Court has
held in a number of times, it will always strive to settle the entire controversy in a single proceeding
leaving no root or branch to bear the seeds of future litigation.

Held: Peitioner alleges that the wills had been admitted to probate in the Surrogate Court’s decision of
April 13, 1983 and that the proceedings were terminated on November 29, 1984.

The respective will of the Cunanan spouses, who were American citizens, will only be effective in this
country upon compliance with the following provision of the Civil Code of the Philippines:

Art. 816. The will of an alien who is abroad produces no effect in the Philippines if made with the
formalities prescribed by law of the place in which he resides, or according to the formalities observed
in this country, or in conformity with those which this Code prescribes.

Thus, proof both will conform with the formalities prescribed by New York or by Philippine law is
imperative.

What are to be probated here in the Philippines?

1. Due execution of will in accordance with foreign law;

2. That testator has his domicile in the foreign country and not in the Philippines;

3. That true will has been admitted to probate in such country;

4. The fact that foreign tribunal is a probate court;

5. The laws of the foreign country on allowance of wills.

Problem: Carl Schultz, Swiss citizen and resident of Bagiuo City, Philippines, for the last for years, died in that
city leaving six children and real and personal properties located in the Philippines. In his will executed in
Switzerland, where the institution of forced heirs does not executed he designated as his sole heir his eldest
son. Can the other children question the validity of the in the probate proceeding filed before our courts?
Explain briefly.

Answer: The other children cannot question the extrinsic and the intrinsic validity of the will.

(a) Extrinsically the will is valid on the presumption that this alien abroad had executed the will accordance with
the formalities prescribed in Switzerland, which is all at once the place execution, his country and his domicile.
(Art. 17 & 816, Civil Code)
(b) Intrinsically, the will is also valid. The designation of the eldest son as sole heir is valid and nor properly
constitute “preterit ion’ or “pretermission” as the terms are technical understood under Philippine law, because
after all in Switzerland, of which the deceased national, there are no forced or compulsory heirs. It is clear that
the intrinsic, validity provision shall governed not by Philippine but by Swiss law. (art. 16 Civil Code).
Effect of Change of Nationality of the Testator

(a) With reference to extrinsic validity of the will, the nationality at the time the will was executed should
control.
(b) With reference to intrinsic validity order of succession and amount of successional rights (both in
testamentary and intestate succession, as regards the latter two), the nationality at the moment of death
should be determinative of the national law to be followed.

REVOCATION

Revocation – no bar questions yet; no SC decisions yet

2 possibilities:

1. Revocation is done in the Philippines;

2. Revocation is done outside the Philippines

a. Domiciled in the Philippines

i. law of the domicile (Philippine law)

ii. law of the place of revocation (lex loci actus)

b. Not domiciled in the Philippines

i. Law of domicile

ii. Law of the place of celebration (lex loci celebrationis)

TAKE NOTE:

WHEN IT COMES TO REVOCATION: NATIONALITY THEORY IS USELESS. NATIONAL LAW OF TESTATOR IS

IRRELEVANT

Suppose I am a Filipino living in the US. I executed a will in the US then at one time, I decided to burn it.
Assuming that burning is not a ground for revocation in the US. Is there a valid revocation? NO.

Art 829 NCC is relevant here

A Filipino domiciled in USA, executed will in USA. He burned will. Is there a valid revocation, assuming burning is
not a ground of revocation in US?
No.

CHAPTER XXI

OBLIGATIONS AND CONTRACTS

OUTLINE:

1. OBLIGATIONS AND CONTRACTS

2. TORTS AND DAMAGES
CASES:

1. ZALAMEA VS CA 228 SCRA 23 [1993]

2. SAUDIA VS CA 297 SCRA 469 [1998]
3. PAKISTAN AIRLINES VS OPLE 190 SCRA 90 [1990]
4. CADALIN VS POEA 238 SCRA 729 [1994]

Synopsis of Conflicts Rules

FACTUAL SITUATION POINT OF CONTRACT

(1) formal or extrinsic validity (1) lex loci celebrationis (Art. 17 par. 1, Civil Code)

Exceptions:
(a) lex situs (Art. 16 par. 1, Civil Code)
(a) alienation and encumbrance of property

(b) consular contracts (b) law of the Philippines if made in the Philippine
consulates)

(2) capacity of the contracting parties (2) national law (Art. 15, Civil Code) without
prejudice to the case of Government vs. Frank
where the Supreme Court adhered to the theory of
lex loci celebrationis

Exception
Exception
(a) lex situs (Art. 16, par. 1, Civil Code)
(a) alienation and encumbrance of property

(3) intrinsic validity (including interpretation of (3) the proper law of the contract – the lex
instruments, and amount of damages for breach contractus (in the broad sense), meaning the lex
loci intentionis or voluntatis

Note: Other theories are:

(a) lex loci celebrationis (defect this makes

possible the evasion of the national law)
(b) lex national (defect this may impedd
commercial transactions)
(c) lex loci solutions law of the place of
performance (defect there may be aevenial places
of performance)
( d) Prof. Minor’s solution:
1) Perfection – lex loci
celebrationis
2) cause of consideration – lex
loer considerations
3) performance – lex loci
solutions

Conflicts Rules for Specific Contracts

FACTUAL SITUATION POINT OF CONTRACT

(1) Sales and Barter (1)

(a) extrinsic validity (a) lex situs
(b) capacity of parties (b) lex situs
(c) intrinsic validity (c) lex situs
(2) Lease of Property
(a) extrinsic validity (2)
(b) capacity of parties (a) lex situs
(c) intrinsic validity (b) lex situs
(c) lex situs
 (3) Lease of Services
(a) extrinsic validity
(b) capacity of parties
(c) intrinsic validity
(4) Contract of Common Carriage of Goods
(a) extrinsic validity
(b) capacity of parties
(c) intrinsic validity
liability for loss, destruction
(5) Contract of Agency
(a) extrinsic validity
(b) capacity of parties to be principal
or agent
(c) intrinsic validity
(6) Simple Loan (Mutuum)
(a) extrinsic validity
(b) capacity of parties
(c) intrinsic validity
(7) Commodatum
(a) extrinsic validity
(b) capacity of parties
(c) intrinsic validity
(8) Pledge, Chattel Mortgage, and Antichresis
(a) extrinsic validity
(b) capacity of parties
(c) intrinsic validity
(9) Guaranty and Suretyship
(a) extrinsic validity
(b) capacity of parties
(c) intrinsic validity
Strictly speaking, obligations and contracts include
 those creating a status (like the contract of marriage)
 those transferring real rights (like the sale of property),
(3)
(a) lex loci celebrationis
(b) national law
(c) loci voluntatis or lex loci intentionis
(4)
(a) fixed situs of the carrier (depot or resting place)
(d) (b) fixed situs of the carrier
(c) fixed situs of the carrier
(d) law of the destination or deterioration of goods
in transitu (Art. 1753, Civil Code)
(5)
(a) lex loci celebrationis (unless the agency deals
with the conveyance or encumbering of property in
which case the lex situs of the property applies
(b) national law of the parties (unless the agency
deals with the conveyance or encumber property-in
which case the lex situs of the property applies)
(c) lex loci voluntatis or lex loci intentionis (unless
the agency deals with the conveyance or
encumbering of property – in which case the lex
situs of the property applies)
(6)
(a) lex loci celebrationis
(b) national law
(c) lex loci voluntatis or lex loci intentionis
(7)
(a) lex situs
(b) lex situs
(c) lex situs
(8)
(a) lex situs
(b) lex situs
(c) lex situs
Note: These are accessory contracts only; therefore
if the principal contract (generally the contract of
loan) is defective, the accessory contract must also
be deemed defective.
(9)
(a) lex loci celebrationis
(b) national law
(c) lex loci voluntati or lex loci intentionis
Note: These are also accessory contracts if the
principal contract is detective the accessory
contract is also generally defective.
  those which are purely civil or commercial in nature.

Problem: Suppose our law provides that certain instruments shall be void and unenforceable unless they bear
documentary stamps, and a written contract is entered into in the Philippines to be performed in France. The
contract was not stamped in the Philippines as required by law. The placing of a stamp on written contracts is
not, however, required by the laws of France. In an action brought on the contract in France, may the
defendant avail himself of the invalidity of the contract? Explain.

Answer: Since the forum of the problem is France, the answer will depend not on Philippine Conflict of Laws.
On the assumption that the French conflicts rule on the matter is identical with ours, it is believed that the
contract should be considered as valid. And the defense of invalidity cannot be sustained. The rule to apply is
evidently the lex loci voluntatis or the lex loci intentionis that which was voluntarily agreed upon or intended by
the parties (and we can assume that the parties intended French internal law to apply because the place of
performance is there in France. We cannot presume that the parties were not sincere or that they did not
intend to bound by their agreement. Ut res magis valeat qua perent (a contract should be so interpreted as to
effectuate to the fullest extent the intention of the parties).

Exception to the Rule of Nationality Theory in Capacity of Parties

INSULAR GOVERNMENT vs. FRANK

13 SCRA 236

Facts : Frank, in 1903, entered into a contract in Illinois for a period of 20 years with the Insular
Government. He was to receive a salary of $1,200 per annum as stenographer in the service of the
Government, was paid in advance the expenses incurred in traveling from Chicago to Manila, and the
one-half salary paid during such period. Frank entered upon the performance of his contract on April
30, 103 when he arrived in the Philippines. On February 11, 1904, he left the service of the plaintiff
and refused to comply further with the terms of the contract. Plaintiff brought this action to recover
traveling expenses and the half-salary paid. Defendant filed a special defense alleging, inter alia, that
he was a minor at the time the contract was executed, and therefore it could not be enforced against
him. It appeared that he had not yet reached the age of 23, which was then the age of majority in the
Philippines. But the records show that in Illinois, where the contract was entered into, he was an adult
and had full authority to contract.

Held: No rule is better settled in law than that matters bearing upon the execution, interpretation, and
validity of a contract are determined by the law of the place where the contract was made. Matters,
connected with its performance, are regulated by law prevailing at the place of performance. Matters
respecting a remedy, such as bringing of a suit, admissibility of evidence, and statuses of limitations,
depend upon the law of the place where the suit is brought.

The defendant being fully qualified to enter into the contract at the place and time the contract was
made, he cannot plead infancy as a defense at the place where the contract is being enforced.

The Supreme Court, if it were sensitive to legal symmetry” could have arrived at the same result,
without ignoring the import of the nationality principle implicit in the provisions of the Civil Code. It
should have looked at the national law of Frank, but considering the law of his domicile (which is
assumed to be Illinois) as his national law, and could have held that since by that law he was capable of
entering into the contract, he could not successfully pleas minority as a defense.

This is not to say that the nationality principle, when applied to a person’s capacity to enter into
contracts, is admittedly sound, what it merely being pointed out is that in the absence of a different
statutory rule, the provision of the Civil Code relating to capacity in general cannot be flouted.
Apparently, the only way out, without changing the Civil Code provision, would be to limit the term
capacity to transactions involving family or domestic relations or resort to the vague, slippery concept
of public order” or public policy” in order to subject aliens entering into contracts in the Philippine law.

OBLIGATIONS AND CONRACTS:

Note: We speak here of ORDINARY CONTRACTS, like contracts for services and not contracts involving property
because those are governed by the previous chapter.

1. Capacity

2. Extrinsic/Formalities

3. Intrinsic Validity

A. CAPACITY – NATIONAL LAW OF THE PARTIES

NOTE:
 Commentary in Book of Paras: Insular vs Frank (1906) – ignore this decision. We have to follow
his national law.  gets????

B. EXTRINSIC VALIDITY

 governed by Article 17 – lex loci celebrationis

Exceptions:

1. When contract involves properties; and

2. Consular Contracts

C. INTRINSIC VALIDITY

2 Theories here:

1. Lex Loci Contractus – law of the place of contracting

 Zalamea case vs. CA 228 SCRA 23

SC: Lex loci contractus. Place where plane tickets were purchased, it is in Manila and 2
Filipinos are involved.

ZALAMEA vs. CA
228 SCRA 23

Facts: Petitioner spouses Cesar Zalamea and Suthira Zalamea, and their daughter. Liana purchased
three airline tickets from the Manila agent of respondent Transworld Airlines, Inc. for a flight from New
York to Los Angeles. All three tickets represented confirmed reservations.

While in New York petitioners received notice of the reconfirmation of their reservations for said flight.
On the appointed date, however, petitioner checked in at 10:00 AM, an hour earlier than the
scheduled flight at 11:00 AM but were placed on the wait-list because the number of passengers who
had checked in before them had already taken all the seats available on the flight. Even in the next
TWA a flight to Los Angeles, they could not be accommodated because it was fully booked. Thus, they
were constrained to book in another flight and purchased two tickets from American Airlines.

Upon their arrival in the Philippines, petitioners filed an action for damages based on breach of
contract of air carriage before the RTC of Makati.

Held: Respondent TWA relied solely on the statement of Ms. Gwendolyn Lather, its customers service
center agent, in her deposition that the Code of Federal Regulations of the Civil Aeronautics Board
allows overbooking. Aside from said statement, no official publication of said code was presented as
 evidence. Thus, respondent courts finding that overbooking is specifically allowed by the US Code of
Federal Regulations has no basis in fact.

Even if the claimed US Code of Federal Regulations does exist the same is not applicable to the case at
bar in accordance with the principle of lex loci contractus which requires that the law of the place
where the airline ticket was issued should be applied by the court where the passengers are residents
and nationals of the forum and the tickets is issued in such State by the defendant airline. Since the
tickets were sold and issued in the Philippines, the applicable law in this case would be Philippine law.

2. Lex Contractus – the proper law of the contract

2 Possible Laws Applicable:

1. Law voluntarily agreed by the parties

 The parties expressly agreed that such system will apply.

2. Law intended by the parties

 Impliedly agreed.
 Parties did not expressly state that it will be governed by a specific law.

There are limits to the choice of the parties:

1. Parties cannot abolish compulsory domestic rules;

2. The parties cannot contravene public policy or morality;

PAKISTAN AIRLINES VS OPLE

190 SCRA90

Facts: Petitioner Pakistani International Airlines (PIA) executed in Manila two separate contracts of
employment with flight attendants Farrales and Mamansig. The contracts provided, among others,
that PIA can terminate the agreement at any time by giving the employee notice in advance one
month before the intended date of termination or in lieu thereof by paying the employee wages
equivalent to one month salary.

Roughly 1 year and 4 months prior to the expiration of the contracts of employment, the employee
were informed that their services would be terminated. Consequently, Farrales and Mamasig
instituted before the DOLE a complaint for illegal dismissal. The Regional Director ordered the
reinstatement of the said employees. Hence, the instant petition for certiorari.

Held: Petitioner PIA cannot take refuge in paragraph 10 of its employment agreement which specifies,
firstly, the law of Pakistan, as the applicable law of the agreement, and secondly, lays venue for
settlement of any dispute arising out of or in connection with the agreement only in courts of Karachi,
Pakistan. The first clause of paragraph 10 cannot be invoked to prevent the application of Philippine
labor laws and regulations to the subject matter of this case, i.e. the employer-employee relationship
between petitioner PIA and private respondents. We have already pointed out that the relationship is
much affected with public interest and that the otherwise applicable Philippine laws and regulations
cannot be rendered illusory by the parties agreeing upon some other law to govern their relationship.

3. The parties cannot choose a country having no connection with the contract.

Cadalin Case:
Can parties choose several legal systems with respect to a contract?
SC: YES, provided all the countries have connection with the contract.
 CADALIN VS POEA
Supra

The parties to a contract may select the law by which it is to be governed. In such a case, the
foreign law is adopted as a "system" to regulate the relations of the parties, including questions of
their capacity to enter into the contract, the formalities to be observed by them, matters of
performance, and so.

Instead of adopting the entire mass of the foreign law, the parties may just agree that specific
provisions of a foreign statute shall be deemed incorporated into their contract "as a set of terms."
By such reference to the provisions of the foreign law, the contract does not become a foreign
contract to be governed by the foreign law. The said law does not operate as a statute but as a set
of contractual terms deemed written in the contract.

A basic policy of contract is to protect the expectation of the parties. Such party expectation is
protected by giving effect to the parties' own choice of the applicable law. The choice of law must,
however, bear some relationship to the parties or their transaction. There is no question that the
contracts sought to be enforced by claimants have a direct connection with the Bahrain law
because the services were rendered in that country.

Bar questions

1992 # 14
Question:
X and Y entered into a contract in Australia, whereby it was agreed that X would build a commercial building for
Y in the Philippines, and in payment for the construction, Y will transfer and convey his cattle ranch located in
the United States in favor of X.

What law would govern:

a. The validity of the contract?

b. The performance of the contract?

c. The consideration of the contract?

Answer:
a. The validity of the contract will be governed by Australian law, because the validity
refers to the element of the making of the contract in this case. (Optional
addendum: “xxxxxxx unless the parties agreed to be bound by another law.)

b. The performance will be governed by the law of the Philippines where the contract
is to be performed.

c. The consideration will be governed by the law of the United States where the
ranch is to be performed.

(Optional Addendum: In the foregoing cases, when the foreign law would apply,
the absence of proof of that foreign law would render Philippine law applicable
under the “eclectic theory”.)
1998
Question:

Francis Albert, a citizen and resident of New Jersey, USA, under whose law he was still a minor, being
only 20 years of age, was hired by ABC Corporation of Manila to serve for two years as its chief computer
programmer. But after serving for only four months, he resigned to join XYZ Corporation, which enticed him by
offering more advantageous terms. His first employer sues him in Manila for damages arising from the breach
of his contract of employment. He sets up his minority as a defense and asks for annulment of the contract on
that ground. The plaintiff disputes this by alleging that since the contract was executed in the Philippines under
whose law the age of majority is 18 years, he was no longer a minor at the time of perfection of the contract.

a. Will the suit prosper?

b. Suppose XYZ Corporation is impleaded as a co-defendant, what would be the basis

of its liability, if any?

Answer:

a. The suit will not prosper under Article 14, NCC. New Jersey law governs Francis
Albert’s capacity to act, being his personal law from the standpoint of both his
nationality and his domicile. He was, therefore, a minor at the time he entered into
the contract.

Alternative Answer: The suit will not prosper. Being a US national, Albert’s
capacity to enter into a contract is determined by the law of the State of which he
is a national, under which he is still a minor. This is in connection with Article 15 of
the CC which embodies the said nationality principle of lex patriae. While this
principle intended to apply to Filipino citizens under that provision, the SC in Recto
vs. Harden is of the view that the status or capacity of foreigners is to be
determined on the basis of the same provision or principle, i.e. by US law in the
present problem.

Plaintiff’s argument does not hold true, because status or capacity is not
determined by lex loci contactus by by lex patriae.

Another answer: Article 17 of the CC provides that 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.

Since the contract of employment was executed in Manila, Philippine law should
govern. Being over 18 years old and no longer a minor according to Philippine law,
Francis Albert can be sued. Thus, the suit of ABC Corporation against him for
damages will prosper.

b. XYZ Corporation, having enticed Francis Albert to break his contract with the
plaintiff, may be held liable for damages under Article 1314, CC.

2002
Quesiton:

Felipe is a Filipino citizen. When he went to Sydney for vacation, he met a former business associate,
who proposed to him a transaction which took him to Moscow. Felipe brokered a contract between Sydney
Coals Corporation (Coals), an Australian firm and Moscow Energy Corporation (Energy), a Russian firm, for Coals
to supply coal to Energy on a monthly basis for three years. both these firms were not doing, and still do not do,
business in the Philippines. Felipe shuttled between Sydney and Moscow to close the contract. He also executed
in Sydney a commission contract with Coals and in Moscow with Energy, under which contracts he was
guaranteed commissions by both firms based on a percentage of deliveries for the three-year period, payable in
Sydney and in Moscow, respectively, through deposits in accounts that he opened months, after which they
stopped paying him. Felipe learned from his contacts, who are residents of Sydney and Moscow, that the two
firms talked to each other and decided to cut him off. He now files suit in Manila against both Coals and Energy
for specific performance.

A. Define or explain the principle of lex loci contractus.

Answer:
 Lex loci contractus may be understood in two senses, as follows:

1. It is the law of the place where contracts, wills and other public instruments are executed and governs
their “forms and solemnities”, pursuant to the first paragraph of Article 17 of the NCC, or

2. It is the proper law of the contract; i.e., the system of law intended to govern the entire contract,
including its essential requisites, indicating the law of the place with which the contract has its closest
connection or where the main elements of the contract converge. As illustrated by Zalamea vs. Court
of Appeals (228 SCRA 23, 1993) it is the law of the place where the airline ticket was issue, where the
passengers are nationals and residents of , and where the defendant airline company maintained its
office.

CHAPTER XXII

TORTS (QUASI-DELICTS)

OUTLINE:

1. DEFINITION
2. JURISDICTION
3. CHOICE OF LAW
4. CHARACTERIZATION

CASE: SAUDIA VS CA 297 SCRA 469 [1998]

Synopsis of Conflicts Rules

FACTUAL SITUATION POINT OF CONTACT

(1) Liability and Damages for Torts in General
NOTE: The locus delicti (place of commission of
torts) is faced by the problem of characterization In
civil law countries, the locus delicti is generally
where the act began; in common law countries, it
is where the act first become effective
(1) lex loci delicti (law of the place where the delict
was committed)
NOTE: liability for foreign torts may be enforced in
the Philippines if:
a. The tort is not penal in character
b. The tortuous liability will not
contravene our public policy
c. If our judicial machinery is
adequate for such enforcement

A. DEFINITION

Tort is a legal wrong committed upon another’s person or property independent of a contract. It may be:

(1) a direct invasion of some legal right of the individual;

(2) the infraction of some public duty by which special damage accrues to the individual; or
(3) the violation of some private obligations by which like damage accrues to the individual.

The three elements of every tort action are:

1. Existence of legal duty from defendant plaintiff

2. Breach of duty and
3. Damage as proximate result

In the Philippines, Article 20 of the Civil Code reads: Every person who, contrary to law, willfully or negligently
causes damage to another, shall indemnify the latter for the same.
B. JURISDICTION

Q : If you are a victim of a tort in another country, can you sue the offender here in the Philippines?

A : It depends. If it is an action in personam, very difficult to sue the offender here because you cannot obtain
jurisdiction over his person. But, if the action is in rem [res in the Philippines], and the offender is properly
served with summons, then the offender may be sued here in the Philippines.

C. CHOICE OF LAW

 LEX LOCI DELICTI COMMISSI – the law of the place where the tort was committed

Q : Assuming the foreigner offender can be sued here, what law shall apply?
A : Lex Loci Delicti Commissi

D. CHARACTERIZATION

(1) CIVIL LAW THEORY - the locus delicti is where the act began
 All norms are embodied by Acts of Congress
 The OBJECTIVE is to regulate the conduct of the actor

(2) COMMON LAW THEORY – the locus delicti is where the tortious act first became effective. The reason
is evident: until there is produced some effect, some result no injury or wrong has really been
committed, despite the disregard of human norms.

 Under this theory, Judges are more powerful. They can make decisions even if no law
supports their decision.
 The OBJECTIVE is to protect the victim.

(3) THE THEORY OF DR. RABEL - the locus delicti is the place which has the most substantial or essential
connection with the act.

 It is submitted that generally the theory of Dr. Rabel should control as the most logical one.

SAUDI ARABIAN AIRLINES vs. CA

297 SCRA 469

RULING : After a careful study of the pleading on record we are commended that there is a reasonable
basis for private respondent’s assertion that although she was already working in Manila petitioner
brought her to Jeddah on the pretense that she would merely testify in an investigation of the charges
she mage against the two SAUDIA crew members for the attack on her person while they were in
Jakarta. As it turned out, she was the one made to face trial for very serious charge including adultery
and violation of Islamic laws and tradition.

Considering that the complaint in the court a quo is one involving torts, the “connecting factor or point
of contact could be placed or places where the tortuous conduct or lex actus occurred. And applying
the torts principle in a conflict case, we find that the Philippines could be said as situs of the tort (the
place where the alleged tortious conduct took place). This is because it is in the Philippines where
petitioner allegedly deceived private respondent, a Filipina residing and working here. According to
her she had honestly believed that petitioner would, in the exercise of its rights and in the
performance of its duties, act with justice, give her due and observe honestly and good faith. Instead,
petitioner failed to protect her she claimed. That certain acts on parts of the injury allegedly occurred
in another country is no moment. For in our view what is important here is the place where the over
all barn or the totality of the alleged injury to the person reputation, social, standing and human rights
 of complainant had lodged according to the private respondent. All told, it is not without basis to
identify the Philippines as the situs of the alleged tort.

Moreover, with the widespread criticism of the traditional rule of lex loci delicti commissi, modern
theories and rules on tort liability have been advanced to offer fresh judicial approaches to arrive at
just results. In Keeping abreast with the modern theories on tort liability, we find here an occasion to
apply the STATE OF THE MOST SIGNIFICANT RELATIONSHIP RULE which in our view should be
appropriate to apply now, given the factual context of this case.

In applying said principle to determine the State which has the most significant relationship the
following contacts are to be taken into account & evaluated according to their relative importance with
respect to the particular issue:

1. the place where the injury occurred;

2. the place where the conduct causing the injury occurred:
3. the domicile, residence, nationality, place of incorporation and place of business of the parties
and
4. the place where the relationship, if any, between the parties is centered.

As already discussed, there is basis for the claim that over-all injury occurred and lodged in the
Philippines. There is likewise no question that private respondent is a resident Filipina national
working with petitioner, a resident foreign corporation engaged here in the business of international
air carriage. Thus, the relationship” between the parties was centered here, although it should be
stressed that this suit is not based on mere labor law violations. From the record, the claim that the
Philippines has the most significant contact with the matter in this dispute, raised by private
respondent below against petitioner, in our view, has been properly established.

Presiding from this premise that the Philippines is the situs of the tort complained of and the place
“having the most interest in the problem,” we find by way of recapitulation, that the Philippine law on
tort liability should have paramount application to and control in the resolution of the legal issues
arising from this case. Moreover, we find untenable petitioner’s insistence that “since private
respondent instituted this suit, she has the burden of pleading and proving that applicable Saudi law
on the matter. As aptly said by private respondent, she has “no obligation to plead and prove the law
of the Kingdom of Saudi Arabia since here cause of action is based on Article 19 and 21 of the Civil
Code of the Philippines. She never alleged that Saudi law should govern this case. And as correctly
held by respondent appellate court, “considering that it was the petitioner who was invoking the
applicability of the law of Saudi Arabia, then the burden was on the petitioner to plead and to establish
what the law of Saudi Arabia is.

Special Rules

(1) If the tort is committed about a public vessels whether the high seas or in foreign territorial waters the
country to which vessel belong.

*Law of the flag” is that law of the nation or country whose flag is flown by a particular vessel.
* A ship owner who sends his vessel into a foreign port gives notice by his flag to all who enter into contracts
with the master that he intends the law of that flag to regulate such contracts, and that they must either submit
to its operation, or not to contract with him.

(2) If the tort takes place aboard or private or merchant vessel on the high seas the two of the case likewise the
lex loci delicti commissi:

The rules in case of crime should not necessarily be applied because in the case of torts, the parties are
interested merely in the civil liability, not the public punishment of the offense.

(3) If the tort concerns property – whether real or personal the lex situs is usually also the lex of delicti
commissi.

(4) Maritime torts

(i) if the colliding vessels are of the same state, or carry the same flag, said law is the lex loci delicti commissi;

(ii) if the vessels come from different states, whose laws however, on the matter are identical, said laws
constitute the lex loci delicti commissi;

(iii) if the vessels come from different states with different laws, the lex loci delicti commissi is the general
maritime law as understood and applied by the forum where the case is tried.

(5) Air transportation contracts:

The plaintiff is given an option:

a. before the court of the domicile of the carrier or of its principal place of business;
b. where he has a place of business through which the contract has been made; or
c. before the court at the place of destination

SANTOS vs. NORTHWEST AIRLINES

210 SCRA 259

Facts: On October 21, 1989, Santos a minor and a resident of the Philippines, purchased from
Northwest Airlines a round-trip ticket in San Francisco, US for his flight from San Francisco to Manila
via Tokyo and back. The scheduled departure date from Tokyo was December 20, 1986. No date was
specified for his return to San Francisco. On December 19, 1986, Santos checked in the NOA counter in
San Francisco airport for his scheduled departure to Manila. Despite a previous conformation and
reconfirmation, he was informed that he had no reservation for his flight from Tokyo to Manila. He
therefore has to be waitlisted.

On March 12, 1987, Santos, through his father and legal guardian, sued NOA for damages in the RTC of
Manila. NOA moved to dismiss the complaint on the ground of lack of jurisdiction, citing Article 28 (1)
of the Warsaw Convention, which provides that at the option of the plaintiff, an action for damages
must be brought in the territory of one of the High Contracting Parties, either before the court of the
domicile or of his principal place of business or where he has a place of business through which the
contract has been made, or before the court at the place of destination.

In February 1988, the lower court granted the motion to dismiss.

Held: Article 28 (1) of the Warsaw Convention is a jurisdiction and not a venue provision. Venue and
jurisdiction and entirely distinct matters. Jurisdiction may not be conferred by consent or waiver upon
a court which otherwise would have no jurisdiction over the subject matter of the action. But the
venue of an action as fixed by statute may be changed by consent of the parties

The place of destination, within the meaning of the Warsaw Convention is determined by the
terms of the contract of carriage or, specifically in this case, the ticket between the passenger and the
carrier: Examination of the petitioner’s ticket shows that his ultimate destination is San Francisco.
Although the date of the return flight was left open, the contract of carriage between the parties
indicates that NOA was bound to transport the petitioner to San Francisco from Manila. Manila should
therefore be considered merely an agreed stopping place and not the destination.

Article (2) also draws a distinction a destination” and an agreed stopping place”. It is the “destination
and not an agreed stopping place” that controls for purposes of ascertaining jurisdiction under the
Convention.

Enforceability of Foreign Torts in the Philippines

In the Philippines, foreign torts may be properly the subject of suit provided certain conditions are present
aside from the requisite that our courts must have jurisdiction over the case:

1. the foreign tort must not be penal in character;

 2. the enforcement of the tortious liability should not contravene our public
policy; and
3. our judicial machinery must be adequate for such enforcement.

Application by Philippine Courts of the Proper Lex oci Delicti Commissi

Once our tribunals find themselves confronted with the properly proved and pleaded lex loci delicti commissi
said law will now be used to govern, among other things, the following points:

a. The proper prescriptive period

b. The proper parties – plaintiffs and defendants –0 of the case.
c. Whether or not the act is considered the proximate cause of the injury
d. The measure of damages, except punitive ones
e. The burden of proof and the defenses that may be interposed.

Enforceability of Philippine Torts in Foreign Countries

IN RE ESTATE OF FERDINAND MARCOS vs. HILAO ET AL.

US APP. LEXIS, 14796

Appellee rest their principal argument in support of federal jurisdiction upon the Alien Tort Statute, 28
USC 1350, which provides: The district courts shall have original jurisdiction of any civil action by an
alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

It was held by the Court of Appeals that although torture was once a routine concomitant of criminal
interrogations in many nations, during the modern and hopefully more enlightened era it has been
universally renounced. The State Department reports a general recognition of this principle:

There now exists an international consensus that recognizes basic human rights and obligations owed
by all governments to their citizens. There is no doubt that these rights are often violated but virtually
all governments acknowledged their validity.

We have been directed to an assertion by any contemporary state of a right to torture its own or
another nation’s citizens.

Having examined the sources from which customary international law is derived (the usage of nations,
judicial opinions and the work of jurists (we conclude that official torture is now prohibited by the law
of nations. The prohibition is clear and unambiguous and admits of no distinction between treatment
of aliens and citizens. Thus, all persons have fundamental rights which can be enforced against their
own governments.

We also reject the Estates argument that international law does not provide a basis for federal court
jurisdiction. The prohibition against official torture carries with it the force of a jus cogens norm, which
enjoys the highest status within international law. We therefore conclude that the district court did
not err in founding jurisdiction on a violation of the jus cogens norm prohibiting official torture.

The Estate argues that we have held that “international law principles standing on their own, do not
create substantive rights or affirmative defenses for litigants in United States courts”, quoting US vs.
Davis (905 F. 245). The facts and the law in that case is not applicable here. We do not find the need
even to distinguish the two for the differences are strikingly clear. On the contrary, actionable
violations of international law must be of a norm that is specific, universal and obligatory.

The right to be free from official torture is fundamental and universal, a right deserving of the highest
statue under international law, norm of jus cogens. To subject a person to the horrors of torture is to
commit one of the most egregious violations of the personal security and dignity of a human being.

What makes the case against the Estate on Marcos unique is the fact that as many as 10,000 victims of
human rights violation were allowed in as class in the United State for alleged acts of torture
committed in the Philippines during the Marcos years (probably the last in the history of Private
International law throughout the world. Many persons including lawyers find it difficult to understand
how American courts including the US Supreme Court can possibly entertain suits for damages filed by
Filipinos arising from acts of torture and brutality committed by the Marcos officials here in the
Philippines during the martial law years.

It might be help to point out that what the courts are concerned is the civil inability of the Marcoses
and their subordinates and associates, not their criminal liability. Tort liability has a double purpose (to
deter other wrongdoers and to compensate for the damage caused to the victim of the injury. On the
other hand, criminal liability arising from an offense against the State can only be tried and adjudged in
the place where the crime was allegedly committed. But in case of tort liability the case can be filed in
any place where the torfeasor may be found so he can be subject to the jurisdiction of the court.

Thus, we have here the basis for the US courts’ assumption of jurisdiction over tort cases filed by
Filipino human rights victims against former President Marcos. The obligatio theory in Conflict of Laws
that a tort committed anywhere in the world gives use to an obligation which follows the defendants
wherever they may be found.