LIM, ADELAIDE JOIE

A Reaction Paper on
A Restatement of Conflict of Laws (Private International Law) for the Philippines

The rise of modern technology and the increased interconnectedness of the world's
societies do not only affect our day to day life, but it also influences the laws and legal system
where we are living in. Every group of people has a language, culture, customs, religion, ideals
and beliefs, distinct to such group, which are reflected in their legal systems. Consequently, cases
of conflict of laws arise from differences between these legal systems.

Jorge Coquia’s journal article A Restatement of Conflict of Laws (Private International

Law) for the Philippines discusses conflict of laws concepts, doctrines, and principles and
emphasizes the need of restatement of the conflict of laws in the Philippines. The sources of the
conflict of laws are the Constitution, codifications, judicial decisions and works of writers.
Today, however, judicial decisions of national courts and international tribunals can now be said
to be the main sources of conflict of laws.

Private international law, otherwise known as conflict of laws is defined as that part of
the municipal law of a state which directs courts or government agencies to apply a foreign law
in a case where a foreign element is involved. A factual situation that cuts across territorial lines
and is affected by diverse laws of two or more States is said to contain a foreign element. Unless
the case falls under any of the exceptions to the rule of comity, the Philippine judge is called
upon to apply a foreign law if properly pleaded and proved.

I agree with Coquia that even up to this date, private international law, compared to other
branches of law, had been developed partly because the Philippines had been largely influenced
by foreign jurisprudence. Provisions governing cases where foreign elements are involved are
scattered in several books and chapters of the Civil Code. It can be observed that although the
Civil Code was supposed to be in conformity with the customs, traditions, and idiosyncrasies of
the Filipino people, the Code did not altogether reflect such ideals and kept much of Roman law
and foreign law influences. I would like to focus on one of the many areas in private
international law that needs to be developed and improved, the subject of divorce.

The Philippines, being a predominantly Catholic country, has no divorce law. However, it
should be noted that Article 26, paragraph 2 of the Family Code partially recognizes absolute
divorce. The said provision states that when a foreigner spouse obtains divorce allowing him or
her to remarry, the Filipino spouse “shall likewise have capacity to remarry under Philippine
law.” This has solved the problem when the alien spouse obtains a divorce and remarries and yet
the Filipino spouse remains married to the said spouse. However, in a situation where it is the
unhappy Filipino spouse who obtained the divorce from the alien spouse in the foreign country,
the law is silent. This would mean that the divorce obtained by the Filipino spouse would not be
LIM, ADELAIDE JOIE

recognized here in the Philippines because of the absence of absolute divorce in the country. By
the plain reading of the law, the unhappy Filipino cannot be happily married again.

Now, the Supreme Court has solved this problem. In the landmark ruling, in Republic vs.
Manalo, the Supreme Court held that a divorce obtained by a Filipino from a foreign spouse is
deemed valid in the Philippines. With this ruling, the state now recognizes the divorce obtained
by the Filipino, and couples of the same circumstances of mixed-marriage will be considered not
married to each other and the Filipino shall have the right to remarry. Even with this solution, I
still believe that there should be an amendment to the provision in the Code that would allow the
Filipino spouse who obtained the divorce from an alien spouse to have the right to remarry. If I
may propose, I suggest that the amendment would be: “Where a marriage between a Filipino
citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by
either of the spouses, capacitating the alien spouse to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law.”

Moreover, I agree that an additional provision should be formulated to govern a situation

where a Filipino spouse obtains a foreign nationality and later divorces his spouse who remains a
Filipino citizen. It should be included since such scenario would prejudice the Filipino spouse.

Marriage and divorce are only few of the subjects in relation to the conflict of laws.
Globalization has led to people instantly connecting from all over the world and mixed marriages
have become common and our lawmakers must open their eyes to the realities of the present
time. Although diverse laws and customs still prevail, I believe that we must all move towards a
universally accepted system of conflict of laws.