REVIEWER IN CONFLICT OF LAWS Cheryl M.

Navarro 2007-0026 Arellano University School of Law DEFINITION OF TERMS Conflict of Laws - or Private International Law - 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 foreign law or foreign laws. Public International Law - the body of legal rules which apply between sovereign states and such other entities as have been granted international personalities. DISTINCTIONS BETWEEN CONFLICT OF LAWS AND PUBLIC INTERNATIONAL LAW CONFLICT OF LAW 1.) MUNICIPAL 2.) PRIVATE INDIVIDUALS BASIS Nature Persons Involved LAW OF NATIONS INTERNATIONAL SOVEREIGN STATES & ENTITIES POSSESSED OF AN INTERNATIONAL PERSONALITY GENERALLY AFFECTING PUBLIC INTEREST; THOSE WHICH IN GENERAL ARE OF INTEREST TO SOVEREIGN STATES MAY BE FORCIBLE OR PEACEFUL Forcible: 1. severance of diplomatic relations, 2. retorsions, 1 | Page

PRIVATE

Transactions

RESORT TO MUNICIPAL TRIBUNALS

Remedies/ Sanctions

3. 4. 5. 6.

reprisals, embargo, boycott, nonintercourse, 7. pacific blockades, 8. collective measures under the UN Charter, and 9. WAR Peaceful: 1.diplomatic negotiation, 2.tender & exercise of good offices, 3.mediation, 4.inquiry and conciliation, 5.arbitration, 6.judicial settlement by the ICJ, 7.reference to regional agencies, 8.reference to the UN Theory of Comity - we apply the foreign law because of its CONVENIENCE, and finally, because WE WANT TO GIVE PROTECTION to our citizens, residents and transients in our land. Theory of Vested Rights - we SEEK TO ENFORCE not the foreign law itself but THE RIGHTS THAT HAVE BEEN VESTED under such foreign laws. Theory of Local Law - We apply foreign law not because it is foreign, but BECAUSE OUR OWN LAWS, by applying similar rules, REQUIRE US TO DO SO; - It is as if the foreign law has become PART AND PARCEL of our own local law. 2 | Page

Theory of Harmony of Laws - In many cases we have to apply the foreign laws so that WHEREVER A CASE IS DECIDED, i.e., irrespective of the forum, THE SOLUTION SHOULD BE APPROXIMATELY THE SAME - thus, identical or similar solutions anywhere and everywhere. When the goal is realized, there will be a harmony of laws. 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. Comity - the RECOGNITION that 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 the RIGHTS OF ITS OWN CITIZENS, or other persons who are under the protection of its laws. Characterization/ DOCTRINE OF QUALIFICATION - the process of determining under what category a certain set of facts or rules fall - the process of deciding whether or not the facts relate to the kind of question specified in a conflicts rule. - Also called the doctrine of qualification - The ultimate purpose is to enable the forum to SELECT THE PROPER LAW. Status - 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. - Among the things which make up the status of a person are the ff.: his being married or unmarried, widowed or divorced, his being a legitimate or an illegitimate child of his parents, his being a minor or his having reached the age of majority; his capacity to enter into various transactions. Capacity 3 | Page

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merely a part of status, and the sum total of his rights and obligations. The Civil Code distinguishes 2 kinds of capacity: CAPACITY TO ACT and JURIDICAL CAPACITY. Capacity to act or ACTIVE CAPACITY is the power to do acts with legal effects Juridical capacity or PASSIVE CAPACITY is the fitness to be the subject of legal relations

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 may be the NATIONAL LAW of his DOMICILIARY LAW or the LAW OF THE SITUS depending upon the theory applied and enforced in the forum. Nationality Theory - the theory by virtue of which the status and capacity of an individual are generally governed by the law of his nationality. Naturalization - a judicial process of acquiring citizenship where formalities of the law have to be complied with, including a JUDICIAL HEARING and APPROVAL OF THE PETITION - it may also mean the acquisition of another citizenship by such acts as marriage to a citizen, and the exercise of the option to elect a particular citizenship. Domiciliary Theory - the theory that in general, the status, condition, rights and obligations, and capacity (SCROC) of a person should be governed by the law of his domicile. Situs or Eclectic Theory - in general, the capacity, legal condition, or status (C.LC.S) of an individual should be governed by the law of the place where an important element of the problem occurs or situated. - If the participation of the individual concerned is active as when he does the act voluntarily, the governing law is the law of the actual situs of the place of the transaction or event. 4 | Page

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If the participation is passive, as when the effects of the act are set forth in the law, the governing law is the law of the legal situs or the legal situs of an individual is supposed to be his domicile.

RENVOI - literally means REFERRING BACK; - the problem arises when there is doubt as to whether a reference to a foreign law is a reference to the internal law of said foreign law, or is a reference to the whole of the foreign law, including its conflicts rules. - renvoi (from the French, meaning "send back" or "to return unopened") is a subset of the choice of law rules and it may be applied whenever a forum court is directed to consider the law of another state. DOUBLE RENVOI - occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi - Double Renvoi or the Foreign Courts Doctrine which will also ensure parity of result so long as no other relevant law is using it. In this scenario, the forum court considers that it is sitting as the foreign court and will decide the matter as the foreign court would. Transmission - the process of applying the law of a foreign state through the law of a second foreign state. Marriage as a contract - ARTICLE 1 FAMILY CODE: 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. It is the foundation of the family and an inviolable social institution whose nature, consequences and incidents are governed by law and not subject to stipulations except that marriage settlements may fix the property relations during the marriage within the limits provided by the Family Code. - marriage as any other contract has two kinds of requisites: the formal and the essential requisites. Marriage as a Status - carries with it implications in two fields: 1. the realm of personal rights and obligations of the spouses; and 5 | Page

the validity of the marriage being presumed or admitted. Legal Separation . Annulment .does not sever the marriage bonds . i.a mode of dissolving the marital ties granted for causes subsequent to the marriage ceremony.Reconciliation prevents a suit for legal separation or rescinds one already granted.Can be granted for causes subsequent to the celebration of the marriage .or separation from bed and board .or divorce a mensa et thoro .the common national law governs b) Concubinage b) if of different nationalitiesthe grounds given by BOTH national laws should all be considered proper grounds c) attempt by one spouse NOTE: Residence requirement against the life of the other if suit is brought in the Philippines: a) if cause occurred in the PhilippinesNO RESIDENCE REQUIREMENT b) if cause occurred outside the Philippines..e. Absolute Divorce .The grounds are those given by the national law of the parties concerned inasmuch as this is purely a question of status. the realm of property relations.2. There is no Divorce in the Philippines. Some Grounds for Legal Separation: Grounds for legal separation National law of the parties a) Adultery a) if of the same or common nationality.the remedy to a voidable marriage. .ONE YEAR 6 | Page . a valid marriage until annulled.or relative divorce .

attempt of respondent to corrupt or induce the petitioner. a common child. to engage in prostitution.4. contracting by the respondent of a subsequent bigamous marriage. previous criminal conviction is essential in view of the necessity of a “final judgment”. 7 | Page . drug addiction or habitual alcoholism of the respondent 6. repeated physical violence or grossly abusive conduct directed against the petitioner. or connivance in such corruption or inducement 4. physical violence or moral pressure to compel the petitioner to change religious or political affiliation 3. lesbianism or homosexuality of the respondent 7.RESIDENCE is required in our country LEGAL SEPARATION DISTINGUISHED FROM ANNULMENT OF MARRIAGE LEGAL SEPARATION Can be granted from causes arising after the celebration of marriage Grounds are given by the national parties concerned Presumes the validity of marriage ANNULMENT Can be granted for causes existing prior to or at the time the wedding takes place Grounds are given by the lex loci celebrationis Questions the very existence of the status GROUNDS FOR LEGAL SEPARATION: 1. attempt by the respondent against the life of the petitioner 10. even if pardoned 5. final judgment sentencing the respondent to imprisonment or more than 6 years. whether in the RP or abroad 8. abandonment of petitioner by respondent w/o justifiable cause for more than one year. a common child or a child of the petitioner . or a child of the petitioner 2. Notes: • Mere preponderance of evidence will suffice to prove the existence of any of the grounds. sexual infidelity (adultery or concubinage) or perversion 9. although in no.

it being supposed that they were born when their parents were already validly married. i. are. a husband’s or wife’s abandonment or willful failure without just cause to provide for the care.the status of the child in relation to the father or mother. Parental Affection .the love of the parents for the child Filial Affection . we inferentially include also the following matters: a) presumptions of legitimacy and illegitimacy b) rights and obligations of parents and children 8 | Page . regarded by the law as legitimate. Paternity (or maternity) ..e. . and should therefore be ordinarily considered illegitimate children. The following constitute the internal requisites for the legitimation of an illegitimate child: 1) The child must be conceived and born outside wedlock of parents who at the time of the conception were disqualified by any impediment to marry each other. protection or support of the spouse who is in ill health or necessitous circumstances. This includes both the INTENTION to ABANDON and the EXTERNAL ACT by which the intention is carried into effect.The requisites for legitimation are those prescribed by the national law of the father.the civil status of the father (or mother) with respect to the child begotten by him (or her). 2) There must be subsequent valid marriage When we mention the relationship between the child and the parents. by fiction and upon compliance with certain requirements.the love of the child for the parents Legitimation .• Abandonment as used herein is synonymous to criminal desertion.a remedy or process by means of which those who in fact were not born in wedlock. Filiation .

c) parental authority d) reciprocal support Adoption .the process of making a child. Doctrine of Immutability of Status . 3) Adoption cannot be allowed without judicial approval. Adoption of a foreigner does not grant said foreigner Philippine citizenship. whether related or not to the adopter. Any person who has been CONVICTED OF A CRIME INVOLVING MORAL TURPITUDE. 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/her Filipino spouse. or c) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative by consanguinity of the latter. possess in general the rights accorded to a legitimate child. 9 | Page .theory that the STATUS OF A CHILD. our country’s procedural requisites must be complied with in accordance with the theory of lex fori in procedural matter. 4) The following are not allowed to adopt: The GUARDIAN WITH RESPECT TO THE WARD prior to the approval of the final accounts rendered upon the termination of their guardianship relation.HIS LEGITIMACYIS NOT AFFECTED BY ANY SUBSEQUENT CHANGE IN THE NATIONALITY OF THE PARENTS. Note: An alien with whose government of the RP has no diplomatic relations may not be adopted. 2) If the adoption takes place in the Philippines. CONFLICTS RULES ON ADOPTION 1) Whether or not the status of adoption has been created depends on the national law of the adopter.

the national law of the parents will 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. Should the ward have properties in foreign states. However. The parental and filial rights and obligations will now be governed the NEW nationality. Their powers are coextensive with the authority of the appointing court. is not permitted to sue in other jurisdictions unless his guardianship is also recognized in such foreign courts. Hence. 10 | P a g e . General Guardians* (over both the person and the property of the wards). Example: A Filipino illegitimate child who becomes a legitimated child of his Filipino parents by virtue of recognition by both parents and their subsequent valid marriage. Guardians over the Person*.appointed by the court where the property of the ward may be found. Can generally be appointed only by the court of the country where the ward is domiciled and where the properties are located. but the child is considered still a legitimated child. he may litigate in his own individual or private capacity.there are generally 3* kinds of guardians 1.appointed generally by the courts where the ward is domiciled. 2. ancillary guardianship proceedings are imperative. continues to be a legitimate child even if the parents should subsequently embrace another nationality. not before. and cannot have extraterritorial application. Moreover. despite any contrary rule under the new nationality. a guardian as such. Guardianship . Guardians over the Property* . Powers are coextensive with those of the court that designated them. 3. their powers are fixed by the appointing court. the new rights and obligations will be effective only from the moment the new nationality is embraced.- However.

the principal contract (usu. Loan) is governed by the proper law of the contract (lex loci voluntatis/ lex loci . effects of ownership. Ancillary Guardians (those appointed elsewhere) Real Property . NCC) - alienations. capacity of parties.may be tangible or intangible .4.governed by the law of the owner (MOBILIA SEQUUNTUR PERSONAM) . lease. co-ownership.movable property . registration and prescription POINT OF CONTACT Lex rei sitae (Art.INTANGIBLES. interpretation of documents. mortgages.lex loci voluntatis/ lex loci intentionis . eminent domain.Choses in action (such as shares of stock. . franchises.national law of the decedent .part of the country where it is located. taxation. police power. quieting of title. easement. 16. - Exceptions: a) successional rights b) capacity to succeed c) contracts involving real property but which do not deal with the title thereto d) contracts where the real property is given as security 11 | P a g e national law of the decedent .Choses in possession . and copyrights) REAL AND PERSONAL PROPERTIES FACTUAL SITUATION 1) Real prop erty extrinsic and intrinsic validity of usufruct. Domiciliary Guardians (appointed by the courts of the domicile of the wards) 5. accession.TANGIBLES. transfers.Its immovability makes it logical that it shall be subject to the laws of the states where it is found (lex situs/lex rei sitae) Personal Property .

the mortgage would also be void (for lack of proper cause or consideration0.loss. If the principal contract is void. destruction.intentionis note: the mortgage itself. is governed by the lex rei sitae.validity and effect of the seizure of the goods disposition of alienation of the goods law of the flag (or in some cases of the place of registry) law of the depot or resting place - - law of the destination locus regit actum (where seized) bec. the mortgage could have been valid. There is a possibility that the principal contract is valid but the mortgage is void. deterioration . Tangible Personal Property a) in general EXCEPTIONS: SAME AS THOSE FOR REAL PROPERTY b) means of transportation vessels other means - c) thing in transitu (these things have a changing status because they move) . n) LEX REI SITAE Exceptions: same as those for real property except that in example concerning the mortgage the same must be changed to a pledge of personal property. or it may be the other way around. Said place is their temporary situs lex loci voluntatis/lex loci intentionis Intangible personal property 12 | P a g e . although by itself. however.

delivery or negotiation g) law of the place of incorporation h) lex loci voluntatis/lex loci intentionis i) law of the place of incorporation j) law of the place where c) taxation of debts d) administration of debts e) negotiability or nonnegotiability of an instrument f) validity of transfer. situs of the instrument at the time of transfer.a) recovery of debts or involuntary assignment of debts (garnishment) b) voluntary assignment of debts a) where the debtor may be effectively served with summons (usu. delivery or negotiation of the instrument g) effect on a corporation of the sale 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 of the sale 13 | P a g e . The domicile) b) lex loci voluntatis/ lex loci intentionis (proper law of the contract) other theories: 1) NATIONAL LAW OF THE CREDITOR OR DEBTOR 2) DOMICILE OF THE DEBTOR OR THE CREDITOR 3) LEX LOCI CELEBRATIONIS 4) LEX LOCI SOLUTIONIS c) domicile of the creditor d) lex situs of assets of the debtor (for these assets can be held liable for the payment of the debts) e) the right embodied in the instrument f) in general.

a thing in action . 2) A personal right not reduced into possession.right to recover a debt or money Chose in action means any of the following: 1) Right of proceeding in a court of law to procure payment of sum of money. and all property in action which depends entirely on contracts express or implied. Note: foreigners may sue for infringement of trademarks and tradenames in the RP only if Filipinos are granted reciprocal concessions in the state of the foreigners. 14 | P a g e . 3) A right to personal things of which the owner has the possession. but merely a right of action for their possession. 4) Includes personal chattels which are not in possession.a chattel personal. or right to recover a personal chattel or a sum of money by action. and is either IN ACTION OR IN POSSESSION Chose in Action (Intangible Personal Property) .the right of bringing an action or .a thing. trademarks. they are protected only by the state that granted them. Chose . copyrights. but recoverable by a suit at law.corporate shares k) franchises l) goodwill of a business and taxation thereon m)patents. an article of personal property . trade names 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.

the name or symbol of a store or business place Service Mark . to the extent of the value of the inheritance.the right of literary property as recognized and sanctioned by positive law.Personal thing of which one has possession Goodwill . rights and obligations. funds. Will . Trade name . Copyright .one law governs the transmission of both real and personal property 15 | P a g e .5) A right to receive or recover a debt. with the formalities prescribed by law. or damages on a cause of action ex-contractu or for a tort or omission of a duty. Trademark . Succession .the PATRONAGE of any established trade or business .the BENEFIT acquired by an establishment BEYOND the mere value of the capital stocks. of a person are transmitted through his death to another or others either by his will or by operation of law. or property employed therein IN CONSEQUENCE OF THE GENERAL PUBLIC’S PATRONAGE AND ENCOURAGEMENT which it receives from its customers.a mode of acquisition by virtue of which the property. to take effect after his death.the name or symbol of goods made or manufactured. Theories on the Proper Law for the Transmission of Successional Rights 1) Unitary or Single System. demand. Chose in Possession (Tangible Personal Property) .an act whereby a person is permitted. to control to a certain degree the disposition of his estate.the name or symbol of services rendered.

one law governs real property while another determines successional rights to personal property. amount of successional rights.2) Split or Scission System.by a non-domiciliary by a domiciliary 16 | P a g e . AND ADMINISTRATION 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 RP 2) Extrinsic validity of JOINT WILLS (made in the same instrument) a) made by Filipinos abroad b) made by aliens abroad POINT OF CONTACT a) lex nationalii/ lex domicilii/ RP law/ lex loci celebrationis b) lex nationalii/ lex loci celebrationis c) lex nationalii/ lex loci celebrationis 3) 4) 5) a) c) made by aliens in the Philippines Intrinsic Validity of wills (including order of succession. WILLS. SUCCESSION. Lex nationalii/ lex domicilii/ lex loci celebrationis c) lex loci celebrationis therefore VOID Lex nationalii of the deceasedregardless of the location and nature of the property Lex nationalii of the deceased a) lex loci actus (of the revocation) b) .lex loci celebrationis of the WILL/ lex loci domicilii . and intrinsic validity of the provisions of the will) Capacity to succeed Revocation of wills if done in RP a) lex nationalii (void even if valid where made) b) valid if accdg.lex domicilii/ lex loci actus of REVOCATION if done outside RP .

and 17 | P a g e . .decedent is the general term applied to the person whose property is transmitted through succession.the capacity to comprehend the nature of transaction in which the testator is engaged at the time.where the assets are found b) co-extensive with the qualifying or the appointing court note: these rules also apply to principal.to recollect the property to be disposed of and the persons who would naturally be supposed to have claims upon the testator. but enforcement of the foreign judgment on probate is enough) a) if domiciled. if he left a will. dated and signed by the hand of the testator himself. Decedent and Testator . . Testamentary Capacity .The disposition of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions.where domiciled at death if not domiciled.Subject to no other form and need not be witnessed. domiciliary or ancilliary administrators and receivers even in nonsuccession cases.a will which is entirely written.6) probate of wills made abroad a) if not yet probated b) if already probated abroad a) lex fori b) lex fori (must also be probated in the RP. 7) Executors and administrators a) where appointed b) powers Holographic Wills . . whether or not he left a will. he is also called a testator.

An agreement which creates an obligation . and these services were accepted by the latter.a meeting of the minds between 2 persons whereby one binds himself.May be express or implied. i. Attestation Clause .. Estate .- to comprehend the manner in which the instrument will distribute his property among the objects of his bounty. with respect to the other.the agreement in fact is presumed or inferred from the acts of the parties . . may demand satisfaction from the assets of the latter. to do or not to do a particular thing. under the principle of facio ut des. . Express Contract .the terms of the agreement are declared by the parties in writing or verbally at the time it is entered into Implied Contract . I do that you may give. .a juridical necessity to.e.the clause wherein the witnesses certify that the instrument has been executed before them. to give something or to render some service. in the absence of proof that the services were rendered gratuitously.A juridical relation whereby a person (creditor) may demand from another (debtor) the observance of a determined conduct and in case of breach. Contract .Agreement upon sufficient consideration. to do or not to do. Tort 18 | P a g e .the agreement is formal and stated verbally or in writing .where one party rendered services to another.may also arise from mere consent . or any other subject of property Obligation .the interest which a person has in lands. an obligation results to pay the reasonable worth of the services rendered upon the implied contract of hiring. and the manner of the execution of the same.

transgression against the Revised Penal Code Offense . the capacity to encumber or otherwise dispose of them. having the right of succession and the powers.an artificial being created by operation of law. and so forth.law of the place of the celebration or execution 19 | P a g e .transgression against a special law Infraction . the conditions under which alien retail trade may still continue. this rule applies to both real and personal property. the reciprocal privileges in the matters of patents. LEX SITUS .- a legal wrong committed upon another’s person or property. Special Laws . LEX LOCI CELEBRATIONIS . and properties expressly authorized by law or incident to its existence.an act or omission punishable by law Felony . the treatment of foreign insurance companies.In the Philippines.law of the place where the property is situated . for instance. the requisites before an alien may obtain a copyright. urging us to do whatever is right and avoid whatever is evil.regulate. attributes. Natural Moral Law .governs almost everything that concerns real property: formalities for their alienation. and the grant of incentives to foreign investors. . independent of a contract Crime .rule of human conduct implanted by God in our nature and in our conscience.transgression against a local or municipal or local ordinance Corporation .

Criminal Law Principle of Territoriality . Criminal Law Principle of Generality . One important exception to this rule is whenever property is involved. i.the authority of a court to hear and decide cases of the general class to which the proceedings in question belong .the allegations in the petition or complaint.the power of the court to render a judgment that will be binding on the parties involved: the plaintiff and the defendant .from the Latin “jus dicere”.jurisdiction over the person of the plaintiff is acquired from the moment he institutes the action by the proper pleading 20 | P a g e .The authority of a tribunal to hear and decide a case and also the power to enforce any judgment it may render thereon in foreign states.“Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory.- governs generally all transactions insofar as FORMALITIES OR SOLEMNITIES are concerned. only the law confers it and only the law may change it. . . subject to the rights of said states. read together with the proper jurisdictional law. subject to the principles of public international law and to treaty stipulations.Aliens come under our territorial jurisdiction because while they are in our country. JURISDICTION . they owe some sort of allegiance.” . will confer jurisdiction on the court JURISDICTION OVER THE PERSON .. in which a case it is the lex situs that should control. even if it be temporary. .Conferred by law.the place or territory where a crime has been committed has jurisdiction to try the offense that has been committed. JURISDICTION OVER THE SUBJECT MATTER . the right to speak. the consent or the submission of the parties on this point is of no consequence.criminal laws of a country bind both the citizens and the aliens who are in the said country or territory.e.

virtually implies a direct act of sovereignty .if the laws and judgments of the forum are recognized in a foreign state.our courts will allow said FOREIGN JUDGMENT TO BE PRESENTED AS A DEFENSE TO A LOCAL LITIGATION .may exist without enforcement ENFORCEMENT OF FOREIGN JUDGMENTS .a plaintiff wants the courts to POSITIVELY CARRY OUT AND MAKE EFFECTIVE IN THE PHILIPPINES A FOREIGN JUDGMENT .necessarily carries with it recognition Extrinsic Fraud .fraud based on facts not controverted or resolved in the case where the judgment was rendered.the manifest will of the state . REGARDLESS of persons who may be interested therein.does not require either action or a special proceeding .jurisdiction over the particular subject matter in controversy. voluntary appearance 2. COMITY BASED ON RECIPROCITY .that which it desires on account of its own fundamental principles of justice.involves merely the sense of justice . RECOGNITION OF A FOREIGN JUDGMENT . personal substituted service of summons JURISDICTION OVER THE RES . and its deep-rooted traditions for the common weal. Intrinsic Fraud 21 | P a g e . FORUM-SHOPPING .necessitates a separate action or proceeding brought precisely to make the foreign judgment effective . the forum in turn will recognize the laws and judgments emanating from said foreign state.the practice of looking over the courts of the world for possible advantages ought to be curbed PUBLIC POLICY . its own perception of morals.- jurisdiction over the person of the defendant is acquired through the following means: 1.

Directly answers a given problem CONFLICTS RULE .getting the law intended by the parties to govern the contract then applying the intended law in its totality including its periods of prescription and its statute of frauds. FACTUAL SITUATION .applies when the factual situation involves a foreign element .set of facts presenting a conflicts problem . and someone alleges a right or capacity to inherit from the former. LEX CAUSAE THEORY .the characterization of the foreign state.the law identified in the choice-of-law stage of the conflict process as the one to be applied to determine the case . CAPACITY TO SUCCEED . 22 | P a g e . one without any foreign element .- fraud which goes to the very existence of the cause of action.merely indirectly responds by indicating whether internal or foreign law is to be applied. which is the principal point of contact. otherwise there will be a virtual surrender of sovereignty right in the forum’s own home.the forum considers its own concepts its own characterization. TOTALITY APPROACH .Governs a purely domestic problem.The factual situation indicating that a person is dead. is supposed to be followed. PURELY INTERNAL RULE .raises a legal question POINT OF CONTACT OR THE CONNECTING FACTOR .the law of the country with which the factual situation is most intimately connected.defines its object –certain operatives facts . LEX FORI THEORY .the exact opposite of the lex situs theory .

AUTONOMOUS THEORY (may be related to TRANSMISSION) . NATURAL-BORN CITIZENS . NATURALIZED CITIZENS .Citizens who. by virtue of certain legal provisions.The forum should consider the characterization of the country referred to in the conflicts rule of the lex causae . ONLY TWO CONCEPTS ENTER INTO THE PICTURE: THE CHARACTERIZATION OF THE LEX FORI AND THAT OF THE LEX CAUSAE.common factors both in the LEX FORI and the LEX CAUSAE are taken into consideration in order to avoid unjust results . EFFECTIVE NATIONALITY THEORY . except that instead of considering worldwide conceptions. it is the characterization in State C which must be used by State A.if the deceased is not a citizen of the forum.Hence. become such by choosing or electing Philippine citizenship at the age of 21 or within a reasonable time hereafter. DUAL THEORY OF LEX FORI AND LEX CAUSAE .UNIVERSAL ANALYTICAL THEORY/ COMPARATIVE APPROACH THEORY .Characterization comes only after a general comparative analytical study of the jurisprudence of all the states involved.Similar to the Comparative Approach Theory.those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. if the characterization in the forum State A points to State B as the lex causae.citizens who are not natural-born citizens and those who become citizens through judicial proceedings CITIZENS BY ELECTION . we must get the law of the nation of which he was both a national and a domiciliary DOMICILE 23 | P a g e . and the conflicts rule in State B refers to State C as the proper point of contact.

married women.a more or less temporary place of abode which may be located in several places FOREIGN COURT THEORY .a result of the voluntary will and action of the person concerned PRINCIPLE OF ONLY ONE DOMICILE .applies only to infants .May change from time to time. legal relations because it is assigned to him by the law at the moment of birth (DOMICILE OF ORIGIN) the place assigned to him by law after birth on account of a legal disability caused for instance by minority.No natural person can have more than one domicile at a time while a person may have more than one residence.The RP court.never changes for a person is born only once. whenever he is absent. idiots and insane) .all those who lack capacity to choose their own domicile (infants. or marriage in the case of a woman or because he has home there (CONSTRUCTIVE DOMICILE/DOMICILE BY OPERATION OF LAW) that to which. depending upon circumstances DOMICILE OF CHOICE . CONSTRUCTIVE DOMICILE (DOMICILIUM NECESSARIUM) .International PINGPONG/ International Football/ Revolving Doors/ inextricable circle . the RP court will likewise do.acquired at birth .Legal disabilities prevent their making a choice .given after birth . 24 | P a g e . will put itself in the position of the foreign court and whatever the foreign court will do respecting the case. fixed. RESIDENCE . insanity. he intends to return (DOMICILE OF CHOICE) DOMICILE OF ORIGIN (DOMICILIUM ORIGINS) .- - the place where a person has certain settled. the Civil Code recognizes only one domicile: the place of habitual residence. in deciding the case.

with an intra-uterine life of at least 7 months. and 5 years in case the absentee has left a person in charge of the administration of his property.the legal status of a person who disappears from his domicile. Ordinary Children . after its complete delivery from the maternal womb. Birth determines personality.if the intra-uterine life be less than 7 months . . after its complete delivery from the maternal womb NCC Article 40. but the conceived child shall be considered born for all purposes that are favorable to it. 25 | P a g e . the RP court applies its internal law. otherwise the fetus will be considered as never having possessed legal personality.Article 384 of the Civil Code: 2 years having elapsed without any news about the absentee or since the receipt of the last news.Mere birth is sufficient Extraordinary Children . if the fetus had an intra-uterine life of less than 7 months. it is not deemed born if it dies within 24 hrs. it begins at conception.the RP court desists or refrains from applying a foreign law because of its inadequacy being founded on a different basis. the fetus is considered born if its is alive at the time it is completely delivered from the mother’s womb. majority commences at the age of 18 yrs. Unless otherwise provided. Emancipation . provided it be born later with the conditions specified in the following article. Hence.the child must have lived for at least 24 hrs. It is essential that birth should occur later. For civil purposes.THEORY OF DESISTMENT .takes place by the attainment of majority.Personality does not begin at birth. his ABSENCE may be declared. his whereabouts being unknown . NCC Article 41. Absence . However. Presumptive Personality .

If there is doubt. The absentee shall not be presumed DEAD for the purpose of opening his succession till after an absence of 10 years. [ORDINARY ABSENCE] After the absence of 7 years. it is presumed that THEY DIED AT THE SAME TIME AND THERE SHALL BE NO TRANSMISSION OF RIGHTS FROM ONE TO THE OTHER. except those of succession. as to which of them died first. Sec. If he disappeared after the age of 75 years. PRESUMPTION OF DEATH Article 390. or conflagration. 3 (jj) Rules of Court: When 2 or more persons perish in the same calamity. as between 2 or more persons who are called to succeed each other. IN THE ABSENCE OF PROOF. Rule 131.death is presumed to have occurred at the beginning of the period. such as wreck. it being unknown whether or not the absentee still lives. whoever alleges the death of one prior to the other. and there are no particular circumstances from which it 26 | P a g e . an absence of 5 years shall be sufficient in order that his succession may be opened. and it is not shown who died first. he shall be presumed dead for all purposes. In ordinary absence. SURVIVORSHIP The rules on survivorship are found in Article 43 of the Civil Code and in Rule 131 of the Rules of Court: Article 43 CC.- Article 386 of the Civil Code: The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. shall prove the same.death is presumed to have occurred on the last day of the period In extraordinary / qualified absence. battle.

ie. and the other between those ages. bet. 3. ) if celebrated abroad * between Filipinos POINT OF CONTACT 1. the male is presumed to have survived. polygamous. the younger is presumed to have survived. the survivorship is presumed from the probabilities resulting from the STRENGTH AND AGE OF THE SEXES. if both be over 15 and under 60. 4. and the sexes be different. the older is presumed to have survived. the former is presumed to have survived. the latter is presumed to have survived. if the sexes be the same. if one is under 15 and the other above 60. if both were under the age of 15. and incestuous marriages and consular marriages LEX LOCI CELEBRATIONIS except if the marriage is: a) Highly immoral (like bigamous and polygamous marriages) b) Universally considered incestuous.can be inferred. if one be under 15 or over 60. then the older.) LEX LOCI CELEBRATIONIS (without prejudice to the exceptions under bigamous. LEX LOCI CELEBRATIONIS except if the marriage is: c) Highly immoral (like bigamous and 27 | P a g e * between foreigners * mixed . 5. MARRIAGE AS A CONTRACT FACTUAL SITUATION 1. 2. Brothers and sisters and bet. Ascendants and descendants. according to the following rules: 1.. if both were above the age of 60.

b) if only one will change. bet. If celebrated in the Philippines between foreigners NATIONAL LAW provided the marriage is not highly immoral or universally considered incestuous NATIONAL LAW of the Filipino (otherwise public policy may be militated against) LEX LOCI CELEBRATIONIS (with prejudice to the foregoing rules) mixed Marriage by proxy (celebrated where the proxy appears) MARRIAGE AS A STATUS FACTUAL SITUATION 1) Personal Rights and Obligations between the Husband and the Wife POINT OF CONTACT NATIONAL LAW OF THE HUSBAND Note: Effect of subsequent change of nationality a) if both will have a new common nationality. Ascendants and descendants. THE LAST COMMON NATIONALITY c) if there was never any common nationality. THE NEW ONE. Brothers and sisters and bet.TO UPHOLD THE VALIDITY OF THE MARRIAGE. ie. THE NATIONAL LAW OF THE HUSBAND AT THE TIME OF THE WEDDING NATIONAL LAW OF THE 2) Property Relations between 28 | P a g e .. .polygamous marriages) d) Universally considered incestuous.

3) With respect to the extrinsic validity of contracts entered into in the RP but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. regardless of the place of the celebration of the marriage and their residence. the property relations of the spouses shall be governed by RP laws. The following shall be presumed dead for all purposes. to wit: In the absence of a contrary stipulation in a marriage settlement. Article 391. To the Doctrine of immutability in the matrimonial property regime. This rule shall not apply: 1) Where both spouses are aliens. including the division of the estate among the heirs: 29 | P a g e . 2) With respect to the extrinsic validity of contracts affecting property not situated in the RP and executed in the country where the property is located. 80 of the FC.the Husband and the Wife HUSBAND. w/o prejudice to Art. Effect of Change of NationalityNo EFFECT accdg.

the living-in together or the celebration of a man and a woman as husband and wife without getting married Marriage by Proxy .Almost all the properties of the marriage are owned in common by the husband and the wife Relative Community Regime/Community Partnership of Gains or the Ganancial System 30 | P a g e .it is IMPERATIVE for the parties to follow the formalities of the PLACE OF CELEBRATION Optional Rule . Juridical Jurisdiction . a person in the armed forces who has taken part in war.authority to hear and determine a legal controversy.the parties may follow EITHER THE LEX LOCI CELEBRATIONIS OR THEIR NATIONAL LAW Ecclesiastical Rule . and has been missing for 4 years.One where one of the parties is merely represented at the ceremony by a friend or delegate Absolute Community Regime . who has not been heard for 4 years since the loss of the vessel or airplane. a person who has been in danger of death under other circumstances and his existence has not been known. A person on board a vessel lost during a sea voyage. Legislative Jurisdiction . for 4 years.The jurisdiction of our tribunals of justice is governed by our own law on the matter.the authority to enact laws . or on an airplane which is missing. 2.the formalities of BOTH THE LEX LOCI CELEBRATIONIS AND THE NATIONAL LAW of the parties must be complied with Common-Law Marriage . .the competence of a person’s national law to govern his status Compulsory Rule .1. 3.

but the husband administers all the properties. but later. protection or support of a spouse who is still in ill health or necessitous circumstances . the marital regime.However. the property of its value must be returned. vested rights must be duly protected. before the marriage.REGARDLESS OF CHANGE OF NATIONALITY on the part of the husband or the wife or both. Socially grotesque situation . . Complete Absorption or Administration by the husband . .Includes both the intention to abandon and the external act by which the intention is carried into effect.- everything earned during the marriage belong to the conjugal partnership Complete Separation of Property Regimes .a situation where a Filipino woman is still married to a man who is no longer her husband Abandonment . when the marriage is dissolved. delivers a dowry or property to the husband to help out in the marriage obligations. Immutability of Matrimonial Property Regime Doctrine . but he is liable for all the debts Marital Administration System . has to change accordingly.A husband’s or wife’s willful failure without just cause to provide for the care.the wife.each owns his/her earnings Dotal or Dowry System . Mutability of Law .each spouse still owns his/her property. the property relationship.the husband owns all the properties of the marriage. THE ORIGINAL PROPERTY REGIME AT THE START OF THE MARRIAGE REMAINS. 31 | P a g e .This cannot be helped for law is essentially a dynamic thing.when the law of the original nationality itself changes.Synonymous to CRIMINAL DESERTION .

an abnormality by a person in matters of sex Pre-marital Sex . or .the living together as man and wife of two persons who are not lawfully married with the implication that they habitually practice fornication (unlawful sexual intercourse between two unmarried persons). even if the marriage be subsequently declared void. Sexual Infidelity .committed by a married woman who shall have sexual intercourse with a man not her husband. knowing her to be married. and their so living and the fact that they are not husband and wife must be known in the community Concubinage .committed by any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved. ILLICIT COHABITATION .Adultery and concubinage are encompassed in the term Sexual perversion .voluntary sexual intercourse of a married person other than the offender’s husband or wife . 32 | P a g e .BIGAMY . Adultery . OPEN AND NOTORIOUS ADULTERY .who shall contract a second or subsequent marriage before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.The parties must reside together publicly in the face of society as if conjugal relations existed between them. (3)cohabit with her in any other place.indulging by an unmarried couple in sexual intercourse prior to getting married. and by a man who has carnal knowledge of her.Unfaithfulness in marriage .committed by any husband who (1)shall keep a mistress in the conjugal dwelling or (2)have sexual intercourse under scandalous circumstances with a woman not his wife.

f) Prescription. despite such efforts. FC: No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied. 59. Note: Art. 33 | P a g e . in particular. not one caused by negligence for in the latter case.ATTEMPT BY ONE SPOUSE AGAINST THE LIFE OF THE OTHER . Must be free. voluntary. or sometimes even mistake c) Connivance d) Recrimination or mutual guilt. a countercharge of adultery or concubinage made by one charged with the same offense in a suit for legal separation.the attempt must not be justified as in the case of lawful self-defense. and not induced by duress or fraud b) Consent. Need not be alleged. duress. that reconciliation is highly improbable. e) Collusion. Must be unclouded by fraud. 58 FC: An action for legal separation shall in no case be tried before 6 months shall have elapsed since the filing of the petition.may be express or implied. against the person who has charged him or her. nor must it be one where the attempt was made because the other was caught in flagrante delicto with a lover. express or implied.a charge made by an accused person against the accuser.Art.forgiveness. 60 of FC: No decree of legal separation shall be promulgated upon stipulation of facts or a confession of judgment. Note: Art. Defenses in Legal Separation: a) Condonation.Art. This is an agreement whereby one party will pretend to have committed the ground relied upon. it cannot be said that there was an attempt. The attempt must be one of attempted or frustrated parricide. 57. FC: An action for legal separation shall be filed within 5 years from the time of the occurrence of the cause.

43) 5) The custody of the minor children shall be awarded to the innocent spouse.) 34 | P a g e . 61 FC: After the filing of the petition for legal separation. shall designate either of them or a third person to administer the absolute community or conjugal partnership property. 213 of FC 6) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. (the provisions of the will being referred to here are provisions made PRIOR TO and NOT AFTER the decree of legal separation. Purpose: to enable the parties to cool-off. the spouses shall be entitled to live separately from each other. otherwise it cannot be said that the decree revokes any provision. are not required to do so. 7) The provisions in favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law. Art. in the absence of a written agreement between the spouses. Note: The spouses. while may be entitled to live separately from each other after the filing of the petition. Effects of legal separation: 1) Spouses may live separately 2) Marriage bonds not severed 3) The absolute community or the conjugal partnership shall be dissolved and liquidated 4) The offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership. which shall be forfeited (in accordance with the provisions of Art. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. subject to Art. The court. for the will had not yet been made.The “cooling-off period” (6 months) is the period of time in which no action may be taken by either sides.

reconciliation is a voluntary resumption of marital relations in the fullest sense. unless the spouses agree to revive their property regime. and not induced by duress or fraud.the connection or relation of persons descended from the same stock or common ancestor.TWO THINGS THAT MAY BE REVOKED BY THE INNOCENT SPOUSE: 1) Donations made in favor of the offending spouse (must be brought within 5 years from the time the decree of legal separation has become final).Shall have the ff. shall thereby be terminated in whatever stage.blood relationship .In law of domestic relations.forgiveness.to constitute valid defense.kinship . it must be free.an agreement whereby one party will pretend to have committed the ground relied upon. AFFINITY 35 | P a g e . voluntary. and 2) Designation of the offending spouse as beneficiary in the insurance contracts of the innocent spouse.a charge made by an accused person against the accuser . COLLUSION . The final decree of legal separation shall be set aside. requiring common consent. express or implied . if still pending. whether express or implied. RECRIMINATION OR MUTUAL GUILT . Condonation . RECONCILIATION .a bilateral act. consequences: a. against the person who has charged him or her. . . The legal proceedings. CONSANGUINITY .a counter charge of an adultery or concubinage made by one charged with the same offense in a suit for legal separation. but the separation of property and any for forfeiture of the share of the guilty spouse already effected shall subsist. b.

SECONDARY AFFINITY . The direction to Courts and Administrative agencies 3.Subsists between persons who have the same ancestors.Subsists between the husband and the relations of his wife’s relations ENUMERATION Elements of Private International Law: 1. or between the wife and the husband’s relations by blood. but who do not descend or ascend one from the other DIRECT AFFINITY . Conflict of laws is that part of the municipal law of the State 2.subsists between persons of whom one is descended in a direct line from the other and so upwards in the direct ascending line and so downwards in the direct descending line. A legal problem involving a foreign element 4.subsists between the husband’s and his wife’s relations by marriage COLLATERAL AFFINITY . between each of the married persons and the kindred of the other. The application or non-application of foreign law/foreign laws Importance of Conflict of Laws 36 | P a g e .- connection existing in consequence of a marriage. Lineal Consangunity . COLLATERAL CONSANGUINITY .subsists between the husband’s and his wife’s relations by blood.

Judicial Decisions 37 | P a g e . property and successional contractual problems. States must of necessity observe the subject because it is part of their municipal law. The determination of the force.Natural Moral Law .Work of Writers 2. To specify the circumstances in which a foreign judgment can be recognized as a decisive of the question in dispute In other words. Direct . Surely.Constitutions . To adjust conflicting rights in international mercantile and corporate transactions 2. To solve personal. a government.1. To prescribe the conditions under which the court is competent to entertain such a suit 2. individuals observe it because of fear of municipal sanctions SOURCES OF CONFLICT OF LAWS 1.Special Laws .Codifications . validity and effectiveness of a foreign judgment Why conflict of law is observed? 1. To determine for each cases the particular territorial system of law by reference to which the rights of the parties must be ascertained 3. possessed of facts or elements operating in two or more states. The applicability to a particular case of either the local or the foreign law 3. is duty bound to enforce and respect its own municipal legislation 2. anywhere and anytime. Scope of Functions of Conflict of Laws 1. Indirect .Treaties and Conventions . The determination of which country has jurisdiction 2. 1. family.

Jurisdiction over the person 3. when the case involves any of the exceptions to the application of the proper foreign law Exceptions To The Application Of Foreign Law 1) When the foreign law. judgment.Contrary to a sound and established public policy of the forum . judgment or contract is: .Purely fiscal or administrative matters . Jurisdiction over the res Reasons for Refusal to Assume Jurisdiction: Forum Non Conveniens 1. or contract: .Contrary to almost universally conceded principles of morality (contra bonos mores) .May work against the vital interests and national security of the state of the forum 38 | P a g e . when the proper foreign law has not been properly pleaded and proved 3. the court dockets of the forum may already be clogged. Jurisdiction over the subject matter 2.Real or personal property situated in the forum 3) When the application of the foreign law. to permit additional cases would inevitably hamper the speedy administration of justice 3. the evidence and the witnesses may not be readily available 2.Penal laws.May work undeniable injustice to the citizens or residents of the forum .Involves procedural matters 2) When the case involves: .- International Customs Kinds of Jurisdiction 1. contracts and judgments . when the law of the forum expressly so provides in its conflicts rules 2. the evils of forum shopping Application of the Internal or Domestic Law 1.

No lack of jurisdiction. The administration of justice may be shockingly corrupt in some countries Conditions and Requisites Before Foreign Judgments may be Recognized and Enforced in the Philippines 1. By a COPY ATTESTED BY THE OFFICER HAVING THE LEGAL CUSTODY OF THE RECORD. No want of notice. and accompanied with a CERTIFICATE THAT SUCH OFFICER HAS CUSTODY Proving of an Unwritten Law 1. Theory of Comity 2. Theory of Vested Rights 3. No collusion. Theory of Justice Kinds of Comity 1. Theory of Harmony of Laws 5. Based on the persuasiveness of foreign judgment Reasons why not all foreign judgments can be recognized or enforced in our country 1. No clear mistake of law or fact 4. By an OFFICIAL PUBLICATION thereof. No fraud. Based on Reciprocity 2. They may contradict one another: one cannot be guided by contradictions 4. 2. They may contravene our established public policy 3. By PRINTED AND PUBLISHED BOOKS OF REPORTS OF DECISIONS of the country involved. The judgment must not contravene a sound and established public policy of the forum 39 | P a g e . Theory of Local Law 4. there is no necessity for a separate action or proceeding 2. The requisite proof thereof may not be adequate 2. Proof of Foreign Judgment (For recognition. if proved to be commonly admitted in such courts Theories on Why the Foreign Law may in Some Cases Be Given Effect 1. the judgment must be on civil or commercial matter 3.Proving of a Written Foreign Law 1. or by his deputy. By the ORAL TESTIMONY of expert witnesses 2.

2. Application of the proper law Steps in Characterization (According to Edgardo Paras) 1. Different legal systems may contain ideas or conceptions completely unknown to one another 3. are of common nature Steps in Characterization (According to Dean Falconbridge) 1. application of the proper foreign law to the problem Theories in Characterization (DUAL LT) 1. of subject matter. All-sided Rule/ Multilateral Rule Factors Which Give Rise to the Problem of Characterization 1. Selection of the proper law 3. 4. 3. 6. and of cause of action Kinds of Conflicts Rule 1. There must be identity of parties. Characterization of the problem as procedural or substantive 6. Different legal systems apply different principles for the solution of problems which. Determination of the facts involved 2. One-Sided Rule/ Unilateral Rule 2. The judgment must be on the merits 4. The judgment must be final 2. Characterization of the point of contact or the connecting factor 5. 5. Determination of the conflicts rule which is to be applied 4. The court rendering the judgment must have jurisdiction over the subject matter and the parties 3. pleading and proving of the proper foreign law 7. Characterization of the questions 2.The Requisites for Res Judicata 1. Different legal systems attach to the same legal term with different meanings. Characterization of the factual situation 3. 2. in general terms. LEX FORI LEX CAUSAE UNIVERSAL ANALYTICAL DUAL THEORY OF LEX FORI AND LEX CAUSAE AUTONOMOUS THEORY TOTALITY THEORY 40 | P a g e .

of Filipino mothers. conferred principally by the State 2. Those whose fathers or mothers are citizens of the Philippines 3. Naturalized 3. those who are naturalized in accordance with law. Jus Sanguinis Citizens of the Philippines Under the 1987 Constitution 1. juridical capacity Characteristics of Status: (CCUPS) 1.Personal Theory 2. Jus Soli 2. Citizen by election 2 Theories on Whether Place or Ancestry Determines Citizenship 1.Territorial Theory 3. Nationality Theory. Situs Theory. a matter of public or social interest 3. Natural-born 2. Those born before 17 January 1973. cannot be easily terminated at the mere will or desire of the parties concerned 5. generally supposed to have a universal character THEORIES ON PERSONAL LAW OR THE LAW THAT SHOULD GOVERN STATUS AND CAPACITY IN GENERAL 1. Qualifications for Naturalization 1. capacity to act 2. who elect Philippine citizenship upon reaching the age of majority 4. The petitioner must not be less than 21 years old on the date of the hearing of the petition 41 | P a g e .Two kinds of capacity: 1. AGE. Domiciliary Theory. Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution 2.Eclectic Theory 3 Kinds of Citizens of the Philippines 1. a concept of social order 4.

domicile of origin 2.the RP court desists or refrains from applying a foreign law because of its inadequacy being founded on a different basis. he must have a real estate in the Philippines worth not less than PHP5. 4.2. Hence. 7. government. He must be of good moral character and 4. constructive domicile 3. CONSTI. he must have enrolled his minor children of school age in any of the public schools/private schools recognized by the Bureau of Private Schools where RP history. he must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is living. profession.000.International PINGPONG/ International Football/ Revolving Doors/ inextricable circle 42 | P a g e . 3 Kinds of Domicile 1. or lawful occupation. Follow the Theory of Desistment/ mutual disclaimer of jurisdiction theory.00 OR must have some lucrative trade. domicile of choice Proposed Solution to the Renvoi 1. CONDUCT. to wit: THEORY OF DESISTMENT . MINORS. MORAL. RESIDENCE. 3. Accept the Renvoi 3. Reject the Renvoi 2. PROPERTY. the RP court applies its internal law. 6. He must believe in the principles underlying the Philippine Constitution 5. to wit: FOREIGN COURT THEORY . he must have resided in the Philippines for a continuous period of not less than 10 years. and civics are taught or prescribed as part of the school curriculum during the entire period of the residence required of him. prior to the hearing of the petition. he must be able to speak an write English or Spanish and any one of the principal Philippine languages 8. make use of the foreign court theory. LANGUAGE.

will put itself in the position of the foreign court and whatever the foreign court will do respecting the case. 3. DEPRIVATION of citizenship for any cause. BORN in a country which recognizes only the principle of jus sanguinis but whose law of the parents recognizes only the principle of jus soli. and respect 2. RENUNCIATION of nationality by certain acts. in deciding the case. 2. express or implied 3. cohabitation. marriage license. As a contract 2. Mutual assistance and support 3. a status. Right of the wife to use the husband’s name STATELESSNESS 1. As a union. VOLUNTARY RELEASE from his original state 4. 4. Emancipation takes place by: 1. authority of the person solemnizing the marriage 5. a legal relation Substantial or Essential Requisites of Marriage of Filipinos 1. Marriage of the minor attainment of the age of majority parental concession judicial concession ASPECTS OF MARRIAGE 1.- The RP court. legal capacity of the contracting parties 2. 2. except in marriage of exceptional cases 4. the RP court will likewise do. Personal Law of stateless individuals 43 | P a g e . consent of the contracting parties freely given 3. Mutual fidelity. marriage ceremony Personal Rights and Obligations between the husband and the wife 1.

except those prohibited under Articles 35 (1). (5) and (6). Article 35: The ff. Beginning of personality 2. and valid there as such. Presumptions of death and survivorship POINT OF CONTACT National law of the child National law National law National law National law National law Lex fori ANNULMENT OF VOIDABLE MARRIAGE AND DECLARATION OF NULLITY OF A VOID MARRIAGE FACTUAL SITUATION 1) Grounds for annulment (if the marriage is voidable merely) 2) Grounds for declaration of nullity (if marriage is void ab initio) POINT OF CONTACT The law alleged to have been violated: in other words. and 38. it is the law of the place of celebration (lex loci celebrationis) subject to certain exceptions that furnish the grounds) ARTICLE 26. Use of names and surnames 5. marriages shall be void from the beginning: *those contracted by any party below 18 years of age even with the consent of parents or guardians 44 | P a g e . Articles 36. shall also be valid in this country. 37. Absence 7. All marriages solemnized outside the RP is accordance with the laws in force in the country where they were solemnized. Ways and effects of emancipation 3.The Hague Conference of 1928 on International Private Law suggested that the personal law of stateless individuals shall be: 1. (4). Use of titles and nobility 6. Age of majority 4. secondarily the law of the place of temporary residence RULES ON STATUS IN GENERAL FACTUAL SITUATION 1. the law of the domicile (habitual residence) 2.

between parties where one. 53 Article 36: A marriage contracted by any party. between brothers and sisters of the full or half blood Article 38: The ff. between step-parents and step-children 3. marriages shall be void from the beginning for reasons of public policy: 1. between adopted children of the same adopter 8. whether legitimate or illegitimate. up to the 4th civil degree 2. between parents-in-law and children-in-law 4. killed that person’s spouse. are incestuous and void from the beginning whether the relationship between the parties be legitimate or illegitimate: 1. with the intention to marry the other. or his or her own spouse. the existence of the pertinent provision of the foreign marriage law 45 | P a g e . between ascendants and descendants of any degree 2. was psychologically incapacitated to comply with the essential marital obligations of marriage. 41 * those subsequent marriages that are void under Art. shall likewise be void even of such incapacity becomes manifest only after its solemnization. between collateral blood relatives. REQUIREMENTS TO PROVE A FOREIGN MARRIAGE: 1. Article 37: Marriages between the ff. between the surviving spouse of the adopted child and the adopter 6.*those bigamous or polygamous marriages not falling under Art. between an adopted child and a legitimate child of the adopter 7. between the adopting parent and adopted child 5. who at the time of the celebration.

it is not the National law that governs. Under our law. it is also valid here. and are not binding on our civil laws and courts of our country. SIMPLY PUT: If valid where celebrated. • Church annulments of marriages and declarations of their nullity are only for religious purposes. and not those of the place of celebration of marriage.C. the celebration or performance of the marriage in accordance with said law 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. • Since we follow the NATIONALITY THEORY. the ambassador cannot perform a marriage. subject to certain exceptions. and VICE-CONSULS can under the Family Code. In US. it is the LEX LOCI CELEBRATIONIS. • Two Filipinos are married by the Philippine Ambassador to the US inside the RP Consulate in Washington D. let’s say. an Ambassador is authorized to perform marriages. • The grounds for LEGAL SEPARATION are those indicated in the national law of the parties concerned. the Filipino spouse shall likewise have the capacity to remarry under the RP law. Having been celebrated in the RP consulate in Washington. unless amendments to our family Code are made. or where they are domiciliaries of the Philippines. Art. 46 | P a g e . our courts have jurisdiction to take cognizance of annulment and nullity suits where the litigants are Filipinos. will such marriage be given cognizance in the RP? Ans: NO. ONLY CONSULsGENERAL. 15 will apply because a suit or legal separation necessarily admits the validity of the marriage.2. the marriage is considered to have been performed in the Philippines. NOTES: • Insofar as the grounds for annulment or nullity are concerned.

And even if these causes should manifest themselves long after the wedding.• Art. was psychologically incapacitated to comply with the essential marital obligations of marriage. Womanizing 5. particularly the SC. Adamant refusal to give support to a degree incompatible with a mature understanding of responsible married life This degree is of course subject to determination by the courts. • Under Church laws. who at the time of the celebration. not valid here even if valid abroad. A wrong concept of marital vows and marital infidelity 2. ABSOLUTE DIVORCE FACTUAL SITUATION 1) if sought in the RP (whether by Filipinos or by foreigners) 2) if obtained abroad: a) bet. Alcoholism 3. will not be granted) a) nati b) bet. Filipinos POINT OF CONTACT 1) lex fori (therefore. 47 | P a g e . examples of PHYCHOLOGICAL INCAPACITY will include inter alia: 1. Gambling 4. said causes are considered to be potentially existing already at the time of the celebration of the marriage. 36 OF FC: A marriage contracted by any party. will also be valid here) c) apply (a) and (b) respectively. Foreigners c) mixed onal law (therefore. shall likewise be void if such incapacity becomes manifest only after its solemnization. and this is true regardless of the divorce) b) National law (if valid in the State granting it and valid according to the national law of the parties.

If illegitimate but recognized by the father. NATIONAL LAW OF THE MOTHER.Legitimacy . ADOPTION.change of parents’ nationality does not affect the status of the child.creation of the status of adoption. nonetheless. Doctrine of Immutability of Status.Legitimation . AND FUNERALS FACTUAL SITUATION . rights and obligations of 48 | P a g e .ABSOLUTE DIVORCE Distinguished from ANNULMENT ABSOLUTE DIVORCE Presupposes a VALIDLY EXISTING MARRIAGE ANNULMENT Ends a marriage which though considered valid in the interim. NATIONAL LAW OF THE FATHER If illegitimate. PATERNITY AND FILIATION. In general. NATIONAL LAW OF THE FATHER.Including Parental Authority and . GUARDIANSHIP. where parties remain married. although this time.Presumptions of legitimacy . the NATIONAL LAW OF THE FATHER.Including parental authority and reciprocal support POINT OF CONTACT If legitimate. Determination of whether legitimate or illegitimate.Reciprocal support . in general. is DEFECTIVE Granted for causes Granted for causes AT THE SUBSEQUENT to the marriage VERY TIME THE MARRIAGE ceremony IS ENTERED INTO KINDS OF DIVORCE: 1) ABSOLUTE DIVORCE (Divorce a vinculo matrimoniee) – marital ties are dissolved.Paternity and filiation .Rights and obligations of parents and children . 2) RELATIVE DIVORCE (divorce a mensa et thoro)separation from bed and board or legal separation. NATIONAL LAW OF THE ADOPTER. - Adoption.Recognition . they are allowed to live separately from each other.

The duty and the right to make arrangements for the funeral of a relative devolve on the persons obliged to support the deceased while still alive. Every funeral shall be in keeping with the social standing of the deceased. first adopted by the Court of Appeals of New York.appointing court powers of guardian b) Over the property . the more dignified and expensive his funeral be. Prohibited is pompous and elaborate funeral of a criminal on whom the death penalty has been inflicted. The higher the social standing of the deceased in life.adopter and adopted.Funerals.incidents thereof FUNERALS - Where the body is buried. the incidents of funerals are governed by the law of the country where the body is to be buried. as a general rue. In the Philippines. might be characterized as a simplified 49 | P a g e .appointing court powers of guardian - c) over the person and over the property (general guardian) . The "center of gravity" approach. adoption by a Filipino does not confer Filipino citizenship on an adopted alien child. - Guardianship court of the domicile of the ward coextensive with those of the appointing court (law of the appointing state) court where the property if found (lex rei sitae) coextensive with those of the appointing court a) Over the person .appointing court powers of guardian - court where the property and the ward are found coextensive with those of the appointing court .

• PROBLEM: Some laws may be treated by one country as procedural and by another country as substantive (e. This approach authorizes courts to look at all the existing contacts between the various parties to a suit and various jurisdictions. HOW FOREIGN LAW IS GIVEN APPLICATION IN THE PHILIPPINES: 1. which in turn refers 50 | P a g e . EXCEPTION: when contrary to public policy or prohibitive laws 2. 3. the court should choose the law of whatever jurisdiction is most closely tied to the case. By statutory directives (consent of the State) By agreement of the parties By treaty or convention By conflict of laws rule In their absence -A. Procedural Principles All matters of procedure are governed by the law of the forum where the case is filed.version of the "most significant relationship" test of the Second Restatement.the law of the country whose interest is most impaired by failure to apply its statute should be applied Borrowing Statute .the law of the country has a statute “borrowing” the prescriptive period provided in the foreign statute. 2. Ultimately. statute of limitations) SOLUTIONS: • • Government Interest Analysis . 4. Principles governing Conflict of Law Cases 1. while matters of substance are governed by the law of the country where the cause of action arose. Renvoi Doctrine (Table Tennis Theory) The conflict of law rule of the forum resorts to the foreign law.g. Center of Gravity Doctrine (Grouping of Contacts Principle or State of the Most Significant Relationship Theory) Law of the state which has the most significant relationship with the occurrence and with the parties determines their rights and liabilities in tort or in contract 3. Substance vs.

R. Lex Fori The law of the forum governs all matters pertaining to procedural or remedial rights. RENVOI DOCTRINE APPLIED Aznar vs. which is the conflict of laws rule of California. The reason is that In Re Kaufman applies only to residents while Art. 946. SC held that the national law is Art. L-16749. then Maria Helen is entitled to her legitime. Thus. One is enunciated in In Re Kaufman (which does not provide for legitimes) and another is Art. Helen opposed the partition on the ground that she is deprived of her legitime. 4. No. 2. Applicability of Foreign Laws and its Exceptions WHEN FOREIGN LAW. Foreign law contravenes prohibitive law or public policy of the forum Relationship of the parties affects public interest Real property is involved (apply lex rei sitae) Foreign law. However. 3. Jan. 1963 FACTS: Edward Christensen. 946 contains a refer-back to Philippine laws (the law of the domicile). G.back to the law of the forum. MAY NOT BE GIVEN APPLICATION: 1. left a will. who at his death was a US citizen but domiciled in the Philippines. EVEN THOUGH APPLICABLE. B. In the present case. ISSUE: Whether or not the national law or the domiciliary law should apply HELD: The intrinsic validity of wills is governed by the national law of the decedent. 946 of the California Civil Code (which provides that the law of the domicile applies). 4. Garcia. judgment or contract is contrary to a sound and established public policy of the forum 51 | P a g e . Her contention is that the law of California directs that the law of the domicile (Philippines) should govern the will. since Art. there were two conflicting California laws regarding succession. devising unto Maria Helen a certain amount of money and giving the rest of his estate to Maria Lucy. 946 is specific to nonresidents. 3. the national law of Edward is the laws of California.

their acts or property. duly licensed to do business in the Philippines and existing under the laws of California.R No. prohibitive laws concerning persons. Authentication. Thus. . These loans were secured by two real estate mortgages by American Realty. NT vs. granted US Dollar loans to certain foreign corporate borrowers. and those which have for their object public order. public policy and good customs shall not be rendered ineffective b laws or judgments promulgated. Thus. 133876. C. Dec. While these cases were pending. 29. the said foreign law. 1999 FACTS: Bank of America. Moreover. SC further held that even assuming arguendo that English laws were proven. judgment or order shall not be applied. Bank of America likewise judicially foreclosed the real estate mortgages in the Philippines.5. American Realty sued for damages against Bank of America. American Realty Corporation. Bank of America sued them before English courts. the doctrine of processual presumption applies. Electronic Evidence and Judicial Cognizance of Foreign Judgments 52 | P a g e . Foreign law is procedural in nature (lex fori governs procedural matters) 6. But English law was never properly impleaded and proven. When the borrowers defaulted. USA. When the foreign law. Foreign law is penal in nature EXCEPTION: CONTRARY TO SOUND PUBLIC POLICY Bank of America. or by determinations or conventions agreed upon in a foreign country. said foreign law would still no find applicability.G. a domestic corporation. Additionally. the foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum. ISSUE: Whether or not Bank of America can judicially foreclose the real estate mortgages despite pendency of the civil suits before English courts HELD: English law purportedly allows the filing of judicial foreclosure of mortgage despite pendency of civil suit for collection. judgment or contract is contrary to a sound and established public policy of the forum. The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the splitting of a single cause of action.

**To be recognized by Philippine courts. Certified true copy or one attested by the officer having the legal custody of the record. it will not be recognized and the Doctrine of Processual Presumption will apply (Philippine courts will assume the foreign law is the same as Philippine laws). consul general. and accompanied with a certificate that such officer has custody • • The certificate must be made by a secretary of the embassy or legation. consul. or by his deputy. foreign laws and judgments must be alleged and proved. HOW FOREIGN PUBLIC DOCUMENTS ARE PROVED: 1. GENERAL RULE: Philippine courts are not authorized to take judicial notice of foreign laws. Official publication 2.g. Spanish civil law) Where the adverse party did not dispute the application of foreign law Where the tribunal is a quasi-judicial body which is not bound by strict rules of technicality 53 | P a g e . or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept Authenticated by his seal of office **If the foreign law or judgment does not comply with the above requirements. vice consul. • EXCEPTIONS: • • • • Where there are exceptional circumstances when the foreign laws are already within the actual knowledge of the court (generally known or actually ruled upon in a prior case) Where the courts are familiar with the specific foreign laws (e.

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