Professional Documents
Culture Documents
Chapter 2
Conflict of Laws
That part of the municipal law of a state which directs its Jurisdiction and choice of law
courts and administrative agencies, when confronted with a
legal problem involving a foreign element, whether or not How one deals with a problem in Conflict of Laws
they should apply a foreign law or foreign laws 1. First, determine whether the court has jurisdiction
over the case.
Conflict of laws case If it has no jurisdiction, the case should be
Any case which involves facts occurring in more than one dismissed
state or nation, so that in deciding the case, it is necessary If it has jurisdiction, the court will
to make a choice between the laws of different states or determine whether it should assume
countries jurisdiction over the case or dismiss it on
the ground of forum non conveniens
Note: Conflict of laws is NOT part of international law. It is the law of the forum that determines
Although it is sometimes thought of as part of international whether the court has jurisdiction over the
law because of the presence of a foreign element in a given case
problem, it is not international law in character but is part of 2. It will next determine whether to apply the internal
the municipal law of each state. By municipal law in Conflict law of the forum or the proper foreign law
of Laws is meant the internal or local law of each state.
Three kinds of jurisdiction
Conflict of laws vs. public international law 1. Jurisdiction over the subject matter
Public Conflict of laws 2. Jurisdiction over the person
International 3. Jurisdiction over the res
Law
As to persons Governs Governs private Jurisdiction over the subject matter
involved sovereign states individuals or Conferred by law
and entities that corporations Defined as the power to hear and determine cases
are internationally of the general class to which the proceedings in
recognized or question belong
possessed of Cannot be conferred by consent of the parties or
international by their voluntary submission
personality Must be invoked by filing the proper complaint or
As to nature International in Municipal in petition with the court.
character character
As to Applies only to Deals with Note: In the realm of Conflict of Laws, however, there
transactions transactions in transactions is another element which the court must consider in
involved which only strictly private in determining the matter of jurisdiction the possible
sovereign states nature in which enforceability of its decision in foreign states, subject to
or entities with the country as the rights of said states.
international such has
personality are generally no Jurisdiction over the person
concerned and interest The competence or power of a court to render a
which generally judgment that will bind the parties involved
affect public Jurisdiction over the plaintiff: Acquired the
interest moment he invokes the power of the court by
As to remedies The concerned Recourse is had to instituting the action by the proper pleading
applied states may first judicial or Jurisdiction over the defendant: Acquired when
resort to peaceful administrative he enters his appearance or by the coercive power
remedies. If these tribunals in of legal process exerted by the court over him
remedies fail, the accordance with personal or substituted service of summons
states concerned the rules of o EX: If appearance is for the sole purpose
may resort to procedure of the of questioning the jurisdiction of the court.
forcible remedies country where
they sit Note: Question of erroneous service of summons must
be raised before judgment is rendered, or this would be
Sources of Conflict of Laws a case of waiver. Defective service may be cured by
1. Direct sources actual receipt of summons or if in any other manner,
Treaties knowledge of the existence of the case
International conventions
Constitutions Jurisdiction over the Res
Codifications and statutes Jurisdiction over the particular subject matter in
Judicial decisions controversy, regardless of the persons who may be
International customs interested therein
2. Indirect sources The basis of the exercise of this jurisdiction is the
Natural moral law presence of the property within the territorial
jurisdiction of the forum even though the court
Chapter 3
Purely internal provision of law vs. conflicts rule
Theories that justify the application of the foreign law Purely internal provision Conflicts rule/ A
of law provision in conflict of
Theories that justify the application of the foreign law laws
instead of domestic or internal law Governs a domestic A provision found in our own
1. Theory of comity problem, i.e., one without a law which governs a factual
2. Vested right theory foreign element situation possessed of a
3. Theory of local law foreign element
4. Theory of harmony of laws Example: Art. 796 All Example: Art. 16 Real
5. Theory of justice persons who are not property as well as personal
expressly prohibited by law property is subject to the
Theory of comity may make a will law of the country where it
According to this theory, no foreign law would be allowed to is situated
operate in another state except by the comity of nations
Two kinds of conflicts rules
Comity 1. One-sided rule
The recognition which one state allows within its Indicates when Philippine law will apply
territory, to the legislative, executive, or judicial acts of Example: Article 15 of the CC Laws
another nation relating to family rights and duties, or to
the status, condition, and legal capacity of
Two principles upon which the theory of comity persons, are binding upon citizens of the
rests Philippines even though living abroad
1. The comity based on reciprocity 2. All-sided or multilateral rule
2. The comity based on the persuasiveness of a Indicates whether to apply the local law or
foreign judgment the proper foreign law
Our Civil Procedure still follows the Example: Art. 16 Real property as well
principle of reciprocity because in as personal property is subject to the law
Sec. 48, Rule 39, a foreign final of the country where it is situated
judgment or order “is presumptive
evidence of a right as between the Parts of every conflicts rule
parties and their successors in 1. The factual situation – the set of facts or
interest situation presenting a conflicts problem because
there is a foreign element involved
The vested-rights theory 2. The point of contact or connecting factor –
Under this theory, our courts enforce not the foreign law or The law of the country with which the factual
foreign judgment but the right or rights that have been situation is most intimately connected
vested under such law or judgment.
Note: The first part raises while the second part 4. It is generally supposed to have a universal
answers a legal question character
Note: Modern trend is to consider prescriptive periods Note: The Philippines follows the nationality
or Statute of Frauds that the parties had in mind at the theory.
time the transaction took place
Nationality v. citizenship
Nationality Citizenship
Chapter 6 Refers to membership in a A citizen is one who owes
Persona law – Theories in determining one’s personal political community, one allegiance to and is entitled
law that is personal and more or to the protection of the
less permanent, not State
temporary.
Personal law.
That which attaches to him wherever he may go. The law In the field of Conflict of Laws, nationality and citizenship
that generally governs his status, capacity, condition, family are the same
relations, and the consequences of his actuations. It may
be:
1. National law Chapter 7
2. Law of his domicile The Nationality Theory
3. Law of the situs
Different kinds of citizenship in the Philippines
Status vs. capacity
1. Natural born citizens
Status Capacity Those who are citizens from birth without
Place of an individual in Only part of one’s status and having to perform any act to acquire or
society and consists of may be defined as the sum perfect their Philippine citizenship
personal qualities and total of his rights and
relationships more or less obligations Native-born Filipinos
permanent, with which the Those born in the Philippines. Natural-born
state and the community are citizens may not be native-born if they were
concerned born abroad
Naturalization
The process of conferring on an alien the citizenship of
another country by any of the means provided by law.
Naturalization
Judicial naturalization under Com. Act. 475, Administrative naturalization under RA 9139 or
as amended the Administrative Naturalization Law of 2000
Qualifications 1. The petitioner must not e less than 21 years 1. The applicant must be born in the Philippines
of age on the date of the hearing of the and residing therein since birth
petition 2. The applicant must not be less than 18 years of
2. He must have, as a rule, resided in the age, at the time of filing of his/her petition
Philippines for a continuous period of not less 3. The applicant must be of good moral character
than 10 years and believes in the underlying principles of the
3. He must be of good moral character, and Constitution and must have conducted
believe in the principles underlying the himself/herself in a proper and irreproachable
Philippine Constitution, and must have manner during his/her entire period of
conducted himself in a proper and residence in the Philippines in relation with the
irreproachable manner during the entire duly constituted government as well as with the
period of his residence in the Philippines in community in which he/she is living
his relation with the constituted government 4. The applicant must have received his/her
as well as with the community in which he is primary and secondary education in any public
living school or private education institution duly
4. He must own real estate in the Philippines recognized by the DECS, where Philippine
worth not less than 5,000, Philippine history, government, and civics are taught and
currency, or must have some lucrative trade, prescribed as part of the school curriculum and
profession, or occupation where enrollment is not limited to any race or
5. He must be able to speak and write English or nationality: Provided, that should he/she have
Spanish and any one of the principal minor children of school age, he/she must have
languages and enrolled them in similar schools.
6. He must have enrolled his minor children of 5. The applicant must have a known trade,
school in any of the public or private schools business, profession, or lawful occupation, from
recognized by the Bureau of Private Schools which he/she derives income sufficient for
where Philippine history, government, and his/her support and if he/she is married and/or
civics are taught or prescribed as part of the has dependents, also that of his/her family:
school curriculum during the entire period of Provided, however, that this shall not apply to
the residence required of him, prior to the applicants who are college degree holders but
hearing of his petition for naturalization as are unable to practice their profession because
citizen they are disqualified to do so by reason of their
citizenship
6. The applicant must be able to read, write, and
speak Filipino or any of the dialects of the
Philippines, and
7. 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
Disqualifications 1. Those opposed to organized government or affiliated with any association of group of person who
uphold and teach doctrines opposing all organized governments
2. Those defending or teaching the necessity of or propriety of violence, personal assault or
assassination for the success or predominance of their ideas
3. Polygamists or believers in the practice of polygamy
4. Those convicted of crimes involving moral turpitude
5. Those suffering from mental alienation or incurable contagious disease
6. 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
7. Citizens or subjects of nations with whom the Philippines is at war
8. Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be naturalized
citizens or subjects thereof
Legislative jurisdiction Judicial jurisdiction prohibited under Articles 35(1), (4), (5), and (6), 36, 37,
Legislative jurisdiction over Judicial jurisdiction over and 38.
one’s status is the power of one’s status is the power of In other words, we follow the rule of lex loci
his personal law to govern the courts to decide celebrationis
his status wherever he goes questions or controversies EX: A foreign marriage of Filipinos in a foreign country will
concerning one’s status still be void in the Philippines if:
1. Either or both parties did not have legal capacity to
Note: Thus, our courts can decide cases involving the get married (Art. 35 (1))
status and capacity of foreigners brought before them, but 2. The marriage is immoral for being bigamous or
in doing so, our courts will apply the personal law of the polygamous (Art. 35 (4))
foreigner, whether it be his national law or the law of his 3. Consent of one party is lacking, because of mistake
domicile, depending on what theory the country of his as to the identity of the other (Art. 35 (5))
citizenship follows. 4. One of the parties was psychologically
Example: Even if the personal law of the foreigner incapacitated at the time of the marriage to comply
allows divorce, he cannot apply for divorce from his with the essential marital obligations (Art. 36)
spouse before a Philippine court because we do not 5. The marriage is incestuous (Art. 37)
recognize divorce and our courts have no 6. The marriage is void by reason of public policy
jurisdiction to grant divorces. However, a foreigner (Art. 38)
who applies for legal separation in our country on a
ground available under his national law but not Note: Consular marriages of Filipinos abroad are valid (Art.
under our law, may obtain a favorable judgment 10, Family Code)
from our courts, because it is his national law on
legal separation that our courts will apply, but Conflicts rules on marriages between foreigners
subject to our procedural law. solemnized abroad
1. We still apply the rule of lex loci celebrationis, but
not the exceptions in the first par. of Art. 26 of the
Chapter 12
Family Code which apply only to Filipinos
Conflicts rules on marriage
But universally considered incestuous
marriages and marriages that are highly
Philippine internal law on the formal validity of immoral are excepted
marriages or the validity of marriage as a contract 2. Proxy marriages – Not allowed under Philippine
1. Essential requisites internal law
(1) Legal capacity of the contracting parties Rule in the US – if permitted by the law of
who must be male and female the place where the proxy participates in
(2) Consent freely given in the presence of a the marriage ceremony, proxy marriages
solemnizing officer are entitled to recognition insofar as the
2. Formal requisites formal validity of the marriage is
(1) Authority of the solemnizing officer concerned
(2) A valid marriage license 3. Marriages on board a vessel on the high seas –
(3) A marriage ceremony takes place with the Since the country whose flag the ship is flying has
appearance of the contracting parties jurisdiction over the ship, the rule is that
before the solemnizing officer and their compliance with the law of the said country is
personal declaration that they take each required for the marriage to be valid
other as husband and wife in the presence 4. If the parties or at least the husband is a Muslim –
of not less than two witnesses of legal age it is believed that we would recognize up to four
marriages of the same husband (Philippine Muslim
Note: The above formal requisites apply to foreigners who Code on Personal Laws)
get married in the Philippines. If one or both of the parties
are foreigners, the foreigner must submit a certificate of Mixed Marriages
legal capacity to contract marriage issued by the diplomatic Marriage between a If the marriage is valid
or consular officials of his/her country in the Philippines Filipino and foreigner under the law of one of the
before he/she can be issued a marriage license. Stateless ABROAD spouses while void under the
persons or refugees need only to submit an affidavit stating law of the other, we should
the circumstances showing such capacity to contract uphold the validity of the
marriage marriage, unless the
marriage is universally
Common law marriages of foreigners incestuous or highly immoral
As to common law marriages of foreigners who come to the (the same rule as to
Philippines as husband and wife, it would seem that we foreigners who get married
should consider the marriage valid if valid under their abroad)
national law or the law of the place where the relationship
Marriage between a The national law of the
began. But the marriage must not be contra bonos mores or
Filipino and a foreigner in Filipino – Philippine law
universally considered incestuous
the PHILIPPINES should be followed –
otherwise our public policy
Foreign marriages of Filipinos
would be violated
GR: Under Art. 26 of the Family Code, all marriages outside
the Philippines in accordance with the laws in force in the
Two aspects of marriage as a status
country where they were solemnized and valid there as
1. Aspect of personal rights and obligations of the
such, shall also be valid in this country, except those
spouses
Purely personal and are not ordinarily 2. The national law of the wife happens to be the law
interfered with by the courts of the forum
2. Aspect of their property relations Conflicts rules on the property relations of husband
The law lays down rules and judicial and wife
sanctions as they may affect public GR: Property relations of the spouses are governed by
interest Philippine law, regardless of the place of the celebration of
marriage and their residence (nationality theory)
Law governing personal relations of spouses in If one spouse is a Filipino (wife or husband) and
Conflict of Laws the other is an alien, Philippine law would still
1. Countries that follow the nationality theory (e.g. govern
Philippines) – apply the spouses’ national law in
determining their personal relations with each EX:
other 1. If both spouses are aliens – general rule in Conflict
2. Countries that follow the domiciliary theory – the of Laws will apply
personal relations of the spouses are governed by 2. With respect to extrinsic validity of contracts
the law of their domicile affecting real property – the lex situs will govern
the formalities to be observed for the contract’s
Spouses of different nationalities: law governing their validity
personal relations
GR: The personal relations of the spouses are governed by Doctrine of immutability of matrimonial (property)
the national law of the husband regime of the spouses
Regardless of the change of nationality by the husband or
Alien woman who Ipso facto becomes a Filipino the wife or both, the original property regime that prevailed
marries a Filipino citizen if she does not suffer at the start of their marriage prevails
husband under any disqualification for
naturalization as a Filipino Immutability of the property regime v. immutability
citizen of the law governing the property regime
Immutability of the Immutability of the law
Personal relations: property regime governing the property
national law of the husband regime
shall govern (GR) A subsequent change of The law that creates and
A Filipina who marries an Constitution provides that nationality by the husband governs the property regime
alien husband she “shall retain her or wife or both does NOT may change
Philippine citizenship, unless change the original property
by her act or omission, she regime
is deemed, under our law, to
have renounced her Annulment v. Declaration of nullity of marriage
citizenship” Annulment Declaration of nullity
Remedy if the marriage is Remedy if the marriage is
Personal relations: Art. 80 voidable or annullable (valid void ab initio
of the Family Code provides until annulled)
that the national law of the
wife or Philippine law would Voidable v. void marriage – legal effects
govern the spouses’ Voidable marriage Void marriage
personal relations (rule was It can be convalidated either It cannot be convalidated
intended to protect the by free cohabitation or
Filipino wife) prescription
The same property regime The only property
Conflict rules on the law governing personal relations as in a valid marriage is relationship between the
of spouses who change nationalities established between the parties is a co-ownership
General Rules spouses
1. If the spouses have the same nationality but they The children are legitimate if The children are illegitimate,
acquire a new nationality by their common act – conceived before the decree except children of void
their new national law will govern their personal of annulment marriages under Art. 36 and
relations 53 of FC
2. If the husband alone changes his nationality after
the marriage – the law of the last common Art. 36 – children born
nationality of the spouses would govern under marriage that is void
3. If the spouses retain their different nationalities on the ground of psy.
after the marriage – National law of both spouses Incapacity
should govern
RE: 3 Better solution: apply the national Art. 53 – children born of
law of the husband at the time of the the first marriage of parties
marriage before said first marriage
EXCEPTIONS had been annulled or
1. If the national law of the husband violates public declared void, and those
policy of the forum
who marry a second time (1) The petitioner or respondent had his or
without delivering the her habitual residence in the state where
presumptive legitime of the the divorce was obtained
children of their first (2) If both spouses were nationals of said
marriage state
The marriage cannot be The marriage may be (3) Although the petitioner was a national of
attacked collaterally attacked directly or another country, he or she had his or her
collaterally residence in the place where the divorce
The marriage can no longer The marriage can still be was obtained
be impugned after the death impugned even after the 2. In the US, a state has a duty to recognize a divorce
of the spouses death of the spouses obtained in a sister state if the spouses were
domiciled in the latter state
Conflicts rules on annulment and declaration of nullity 3. A divorce obtained in a foreign country would be
of marriage recognized under the same circumstances that a
1. In Conflict of Laws, the grounds for annulment of divorce obtained from a sister state is given
marriage and for declaration of nullity of marriage recognition
are the grounds provided for by the law alleged to 4. in the Philippines, if both spouses are aliens, we
have been violated lex loci celebrationis or the recognize a decree of divorce obtained by them
law of the place where the marriage was abroad if valid under their national law
celebrated 5. If one of the spouses is a Filipino and the other an
Reason: Considering that it is the lex loci alien, we also recognize the divorce obtained by
celebrationis that is usually applied to the alien spouse abroad
determine whether a marriage is valid or
not, it is the same law that also Legal separation v. divorce
determines whether a marriage is voidable Legal separation Divorce
or void Relative divorce, only a Absolute divorce, dissolves
2. As for declaration of nullity of marriage between separation from bed and the marriage and the parties
two Filipinos abroad, the grounds are the board but the parties remain can marry again
exceptions to the lex loci celebrationis in Article 26 married
of the Family Code:
(1) Either or both parties did not have legal Legal separation v. annulment of marriage
capacity to get married (Art. 35 (1)) Legal separation Annulment
(2) The marriage is immoral for being Marriage is not defective Marriage is defective
bigamous or polygamous (Art. 35 (4)) Grounds arise after the Grounds must exist at the
(3) Consent of one party is lacking, because marriage time of or before the
of mistake as to the identity of the other celebration of the marriage
(Art. 35 (5)) Parties are still married to Marriage is set aside
(4) One of the parties was psychologically each other
incapacitated at the time of the marriage Grounds are those given by Grounds are those given by
to comply with the essential marital the national law or the the lex loci celebrationis
obligations (Art. 36) domiciliary law – question is subject to certain exceptions
(5) The marriage is incestuous (Art. 37) one of status – questions the very
(6) The marriage is void by reason of public existence of status
policy (Art. 38)
3. As to foreigners who get married abroad – the Conflict rules on legal separation
exceptions to the lex loci celebrationis would be the 1. If the parties are of the same nationality – grounds
same as those in marriages as a contract: for legal separation are those given by their
(1) Marriages that are highly immoral personal law (national law or domiciliary law)
(2) Universally incestuous marriages 2. If the parties are of different nationalities –
4. Consular marriages – either the national law or the grounds for legal separation are those under both
law of the domicile of the parties applies the personal law of the husband and wife
Courts that have jurisdiction over cases for Courts that may grant legal separation
annulment or declaration of nullity of marriage 1. Jurisdiction in the case of aliens is not assumed by
1. In the Philippines – since we follow the nationality the forum unless the national law of the parties is
theory, our courts have jurisdiction willing to recognize its jurisdiction
Citizens and domiciliaries can file in the 2. In the Philippines, foreigners may ask for legal
Philippines, even if the defendant is a non- separation here, even if they did not get married in
resident this country. What is important is that the court
2. In other countries – it is usually the courts of the has jurisdiction over both parties
parties’ domicile who have jurisdiction over such 3. Most countries assume jurisdiction over case for
cases since that is the place which has the greatest legal separation on the basis of the domicile of one
interest in the domestic relations of the spouses of the parties or the matrimonial domicile
Rules on the validity of foreign divorces by foreigners Note: It is NOT necessary that the cause for legal
abroad separation take place in the country for our courts to
1. Hague Convention states that a foreign divorce will have jurisdiction over the case.
be recognized in the contracting states if, at the
date of the filing of the proceedings:
Grounds for legal separation under Philippine internal their first marriage are considered
law (Article 55, FC) LEGITIMATE CHILDREN
1. Repeated physical violence or grossly abusive
conduct against the petitioner, a common child, or
a child of the petitioner
2. Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation Law governing the rights and duties between parent
3. Attempt to corrupt or induce the petitioner, a and child
common child, or a child of the petitioner, to 1. If the child is legitimate – either the common
engage in prostitution, or connivance in such personal law of the parents or the personal law of
corruption or inducement the father if the parents are of different
4. Final judgment sentencing the respondent to nationalities governs
imprisonment of more than 6 years, even if 2. If the child is illegitimate – The personal law of the
pardoned mother is decisive, UNLESS the child is
5. Drug addiction or habitual alcoholism of the subsequently recognized by the father, in which
respondent case the rules on legitimate children will be applied
6. Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or Doctrine of immutability of status
abroad The status of a child (whether legitimate or illegitimate) is
7. Lesbianism or homosexuality of the respondent not affected by a subsequent change of nationality of the
8. Sexual infidelity or perversion parents
9. Attempt by the respondent against the life of the But the rights an duties of parent and child would
petitioner after the parents’ change of nationality, be
10. Abandonment of petitioner by respondent without governed by the new national law of the parents
justifiable cause for more than one year
Legitimation, defined
Defenses to legal separation under Philippine internal A process whereby children who in fact were not born in
law (Article 56, FC) lawful wedlock and should therefore be ordinarily considered
1. Condonation of the offense or the act complained illegitimate children are by fiction of law and upon
of compliance with certain legal requirements, regarded by law
2. Consent of the aggrieved party to the commission as “legitimate,” it being supposed that they were born after
of the act or offense complained of their parents had already been validly married.
3. Connivance between the parties in the commission
of the offense or act constituting the ground for Conflicts rules on legitimation of children
legal separation 1. The requisites of legitimation are generally
4. Where both parties have given ground for legal considered those prescribed by the national law of
separation the parents, and if the latter have different national
5. Collusion between the parties to obtain legal laws, the national law of the father
separation 2. In countries following the domiciliary theory, law of
6. Prescription the domicile of the parents, or in proper cases, the
law of the domicile of the father should govern
Note: The prescriptive period for filing of an action for legal
separation in the Philippines is 5 years from the time of the Philippine internal law on legitimation of children
occurrence of the case (Art. 57, FC) (Articles 177-182, FC)
Requisites for legitimated children
Chapter 13 1. The child was conceived AND born outside lawful
Status of Children wedlock
2. The parents at the time of the child’s conception,
were not disqualified by any impediment to marry
Conflict rules in determining legitimacy of children
each other
1. If the parents are of the same nationality – their
common personal law (national law or law of
Note: Legitimation creates a permanent (immutable) status
domicile) will be applied
of the child
2. If the parents are of different nationalities –
personal law of the father governs
Adoption
An act, which establishes a relationship of paternity and
Legitimate and illegitimate children under Philippine
filiation and in so doing, endows the child with legitimate
internal law
status
1. Legitimate children – children conceived or born
during the marriage of the parents
Law which determines whether the relationship of
2. Illegitimate children – children conceived and born
adoption has been created or not
outside a valid marriage
1. The child’s personal law
EX: Children born of void marriages under
2. If the child does not reside in the country of his
Article 36 (psychological incapacity) and
citizenship – the personal law of the adopter will
Article 53 (those born of the first marriage
govern, or the personal law of the adopter and that
of parties before said first marriage had
of the child will be applied concurrently
been annulled or declared void, and who
marry a second time without delivering
Law which determines the legal effects of adoption
the presumptive legitime of the children of
The legal effects of adoption are determined by the same decree of adoption, it is believed that under Sec. 48 of Rule
law that created the relationship of adoption 39 of the Rules on Civil Procedure, we can recognize such
foreign decree of adoption provided the foreign court had
jurisdiction to render said decree, and that there is no want
of notice, collusion, extrinsic fraud, or clear mistake of law
or fact leading to the foreign decree of adoption
Adoption by aliens in the Philippines Does adoption confer on the adopted child the
Under RA 8552 or the Domestic Adoption Act of 1998, aliens citizenship of the adopter?
(who are not even former Filipino citizens) can adopt in our No. Adoption does not confer on the adopted child the
country, provided: citizenship of the adopter. Adoption is a matter political and
1. The have the same qualifications as those required not civil in nature, and the ways in which it should be
of Filipino citizens conferred are outside the ambit of the Civil Code.
2. Their countries have diplomatic relations with our
country Chapter 14
3. They have been living in the Philippines for at least Wills, succession, and administration of the estate of
3 years prior to the filing of the petition for deceased persons
adoption, and maintain such residence until the
adoption decree is entered
Two theories or systems in determining the proper
4. The have been certified by their diplomatic or
law for the transmissions of successional rights
consular offices or by any appropriate government
1. Unitary or single system – only one law
agency that they have the legal capacity to adopt
determines transmission of real as well as personal
in their own countries and
properties
5. Their government allows the adopted child to enter
2. Split or scission system – Succession to real
their own country as their adopted child
property is governed by the lex situs, while
succession to movable or personal property is
Special aliens who can adopt under RA 8552
governed by the law of the domicile of the
1. A former Filipino citizen who seeks to adopt a
deceased at the time of his death
relative within the 4th degree of consanguinity or
affinity
Note: In the Philippines, we follow the unitary or single
2. One who seeks to adopt the legitimate son or
system, in that Article 16 of the NCC applies the
daughter of his or her Filipino spouse
national law of the deceased, whatever may be the
3. One who is married to a Filipino citizen and seeks
nature of the property and regardless of the country
to adopt jointly with his or her spouse a relative
where the property is found
within the 4th degree of consanguinity or affinity of
the Filipino spouse
Extrinsic v. intrinsic validity of wills
These aliens need not comply with the residency in the
Extrinsic validity Intrinsic validity
Philippines and they also need not submit a certification that
they have the capacity to adopt from the diplomatic or Forms and solemnities of Substance of wills
consular office of their country in the Philippines or any wills
other government agency Deals with the forms and Concerns itself with:
solemnities in the making of 1. Order of succession
Note: RA 8552 still requires that the (alien) husband and wills which include: 2. Amount of
wife must jointly adopt. However in cases where the 1. Age and successional rights,
spouses are legally separated, the husband or the wife can testamentary and other matters
adopt alone, and the consent of the other spouse to an capacity of the of substance
adoption filed by one spouse is not necessary testator
2. Form of the will
Nature of adoption in Philippine law (notarial or
1. Adoption proceedings are always judicial an din holographic) etc
rem, i.e., publication is required
2. A mere agreement of adoption between the Conflicts rules in the Philippines on extrinsic validity
adopters and the parents of the child is not a valid of wills
adoption, nor the fact that the child had been 1. If a Filipino makes a will abroad - he may comply
adopted de facto (ampon) by the alleged adopting with the formalities of Philippine law (lex nationalii)
parents or the lex loci celebrationis (the law of the place
3. Neither is mere registration of the child in the civil where he was at the time of the execution of the
registry as the child of the adopter a valid will) – Art. 815, NCC
adoption. This even amounts to the crime of 2. If an alien makes a will abroad - he may comply
simulation of birth with the formalities of his lex nationalii (law of the
4. The capacity and right of the adopter to file a country of which he is a citizen, the lex domicilii
petition for adoption are governed by the law in (law of his domicile0, or the lex loci celebrationis
force at the time the petition is filed, and cannot be 3. If an alien makes a will in the Philippines – he may
impaired by a new law disqualifying him or her for comply with the formalities of his own country (lex
adoption nationalii) or of Philippine law (lex loci
celebrationis)
Recognition of a foreign decree of adoption 4. Holographic wills – must be entirely written, dated,
While there is no provision of law nor jurisprudence and signed by the hand of the testator. It is subject
expressly requiring the Philippines to recognize a foreign to no other form and may be made in or out of the
Philippines and need not be witnessed (Art. 810, 1. The allowance of disallowance of a will is
NCC) essentially procedural, so that the law of the forum
applies to all procedural matters
Conflicts rules on joint wills 2. Art. 838, 1st par: “now will shall pass either real
1. Filipinos cannot make joint wills whether he or or personal property unless it is proved and
abroad allowed in accordance with the Rules of Court”
2. Joint wills made by aliens shall be considered valid 3. There is no period of prescription for the probate of
in the Philippines if valid according to their lex a will
nationalii or lex domicilii or if valid under lex loci 4. Wills proved and allowed in a foreign country
celebrationis according to the laws of each country may be
3. Joint wills made by aliens in the Philippines are allowed, filed, and recorded by the proper court in
void even if valid under their lex nationalii or lex the Philippines
domicilii in order that our public policy on joint wills 5. Although a foreign will had already been probated
may not be militated against in a foreign country, it still has to be reprobated in
4. A joint will executed by an alien and a Filipino the Philippines in accordance with our procedural
citizen abroad will be valid even as to the alien (if law it is sufficient to ask for the enforcement of
his national law or law of his domicile or lex loci the foreign judgment of the probate abroad
celebrationis allows it) but void as to the Filipino 6. The evidence necessary for the probate or
allowance of wills which have been probated
Conflicts rules on intrinsic validity of wills outside the Philippines are:
1. lex nationalii – in countries that follow the (1) The due execution of the will in
nationality theory accordance with the foreign law because
2. lex domicilii – in countries that follow the we cannot take judicial notice of foreign
domiciliary theory laws
(2) The testator had his domicile in the
What governs the intrinsic validity of wills in the foreign country where the will was
Philippines probated
The NCC applies the lex nationalii of the decedent (3) The will had been admitted to probate in
Note: in case of conflict between the nationality said country
theory and the domiciliary theory, we can treat the (4) The foreign tribunal is a probate court
case as one of “renvoi” so that we can still apply (5) The laws of the foreign country on
Philippine law even if the deceased was a citizen of procedure and allowance of wills were
another country followed
Liability for loss, destruction, 3. Theory of Dr. Rabel – The locus delicti is the
deterioration of goods in transit: law place which has the most substantial connection
of destination of goods (Art. 1753, with the wrongful act
NCC)
Modern theories in determining liability for torts
If COGSA applies, limiation on 1. State of the most significant relationship – the
liability applies, unless the shipper rights and obligations of parties in a case of tort is
declares value of goods and inserts determined by the local law of the state which,
such declaration in the bill of lading with respect to the particular issue, has the most
Contract of significant relationship to the occurrence and the
transportation Contract for air transportation parties
or carriage (Warsaw Convention)
(render 1. The liability of the airline in case 2. The interest-analysis approach – This approach
services) of death, injury to passengers, considers the relevant concerns that two or more
or loss or damage to cargo is states may have in the case and their respective
governed by Warsaw Convention interests in applying their laws to it
2. If there was malice, gross If however, the case poses a real conflict
negligence, or bad faith, or between two or more States, if the
improper discrimination, carrier interested forum finds that he other State
is liable for damages beyond has a greater claim in the application of its
those limited by Warsaw law to a given case, the forum should
Convention yield and apply the law of the other state.
If the forum is disinterested in the case, it
Note: if contracts involve encumbrances of property, can dismiss the same on the ground of
real or personal, apply lex situs. If personal contracts, forum non conveniens
law on contracts will apply In short, the state which has the more
relevant and weighty interests in the case
Chapter 17 should be considered the locus delicti
TORTS
3. Qavers principle of preference – Under this
theory, a higher standard of conduct and financial
Tort, defined protection given to the injured party by one state
Legal wrong committed upon person or property is applied by the State where the injury happened,
independent of contract if the latter state adopts a lower standard of
Spanish law: quasi delict/culpa aquiliana fault or conduct and financial protection to the injured
negligence
American law: broader fault or negligence and Conflict rules on maritime torts
also those committed with malice or willful intent 1. If the tort is committed abroad a public vessel,
whether on the high seas or in foreign territorial
Concept of tort in the Philippines waters, the law of the flag is the lex loci delicti
Blending of both Spanish and American laws commissii
Art. 20 NCC: Every person who, contrary to law, 2. If the tort is committed aboard a private or
willfully or negligently causes damage to another, merchant vessel on the high seas, the law of the
shall indemnify the latter for the same. registry is the lex loci delicti commissii
Art. 2176 NCC: Whoever by act or omission 3. If two vessels collide and are from the same state,
causes damage to another, there being fault or the law of registry is the lex loci delicti commissii
negligence, is obliged to pay for the damage done. 4. If the vessels come from different states with
Such fault or negligence, if there is no pre-existing identical laws, apply said identical laws
contractual relation between the parties, is called a 5. If the vessels come from different states with
quasi-delict and is governed by the provisions of different laws, the lex loci delicti commissii is the
this Chapter. general maritime law as understood and applied by
the forum where the cas eis filed
Law governing liability for torts in Conflict of Laws
Liability for torts in general is governed by the lex loci delicti Foreign tort to be actionable/subject of an action for
commissi (law of the place where the delict or wrong was damages in the Philippines – Requisites/Conditions
committed) 1. Must acquire jurisdiction over the defendant (action
State where the social disturbance occurred has for damages is action in personam)
the primary duty to redress the wrong and 2. Foreign tort must not be penal in character
determine the effects of the injury; and 3. The enforcement of the tortuous liability should not
To compensate victim for the damage or injury contravene our public policy
suffered 4. Our judicial machinery must be adequate for such
enforcement
Three theories in determining locus delicti Note: all procedural matters are governed
1. Civil law theory – The locus delicti is the place by the lex fori Phil law).
where the act began Substantive matters are governed by the
2. Common law theory – The locus delicti is the lex loci delicti commissii, thus:
place where the wrongful act became effective (1) Period of prescription of the
action is governed by lex loci
delecti commissii because in